Volume 44 — Indiana Appellate Court Reports

From Daviess Circuit Court; Milton S. Hastings, Special Judge. Action by the State of Indiana, on the relation of Ida Noelting and others, against William Berkemeier and others. From a judgment for plaintiff, defendants appeal.

<p>1. Appeal. — Briefs.—Failure to File. — The failure of appellee to file a brief may constitute a cause for reversal, p. 10.</p> <p>2. Pleading. — Complaint.—Negligence.—Cause Arising in Foreign State. — Presumptions.—Procedure.—A complaint for personal injuries sustained in another state which fails to set out any statute of such state as the basis of the action, is presumed to be based upon a common-law liability, and the action will be controlled by the laws of procedure of this State, p. 10.</p> <p>3. Pleading. — Answer.—Demurrer to. — Defective Complaint. — Effect. — A demurrer to an answer will be carried back and sustained to the complaint, where such complaint is defective, p. 10.</p> <p>4. Pleading. — Complaint.—Negligence.—How Shown. — Negligence may be pleaded in general terms, or the facts showing a necessary inference of negligence may be alleged, p. 11.</p> <p>5. Pleading. — Complaint. — Negligence. — Street Railroads. — Running Over Persons. — A complaint alleging that while plaintiff was attempting to go upon one of defendant’s street-cars she went in front of such ear while it was standing, and that defendant started such car without the ringing of the bell or sounding of the gong, or the giving of any other warning, and ran it against plaintiff, to her damage, fails to state a cause of action. p. 12.</p> <p>6. Pleading.— Complaint.— Definiteness.— Words and Phrases.— “Near." — A complaint alleging that defendant street railroad company started its car while plaintiff was in front thereof and “near” such car, is bad, the word “near” being too indefinite, p. 13.</p> <p>7. Street Uailkoads. — Starting Cars Without Warning. — Negligence. — The starting of a street-car while a person is crossing the track in front thereof might or might not be negligence, p. 13.</p>

<p>1. Pleading. — Complaint.—Contributory Negligence. — A complaint for the recovery of damages for personal injuries, which alleges facts showing that the plaintiff was guilty of negligence materially contributing to his injuries, is bad on demurrer, p. 17.</p> <p>2. Pleading. — Complaint.—Negligence.—Street Railroads. — A complaint alleging facts showing that the plaintiff’s decedent was proceeding slowly and carefully, and was looking and listening when he drove along the street toward the railroad crossing, and that by reason of obstructions he was unable to see or hear the approaching train, that when he had driven upon the track defendant ran its train, without warning, and in violation of the city ordinance, against decedent’s horse and wagon, inflicting fatal injuries upon decedent, does not show that decedent was guilty of contributory negligence, p. 18.</p> <p>3. Railroads. — Care. — Ordinances. — Presumptions.— Travelers using the streets of a city are not required to use more than ordinary care in crossing railroad tracks in the streets, and they have a right to rely upon the presumptions that railroad companies will exercise due care and will obey city ordinances, p. 18.</p> <p>4. Pleading.— Complaint. — Railroads.— Negligence.— Last Clear Chance. — A complaint alleging that as the plaintiff’s decedent was driving slowly and carefully along the street and upon the railroad crossing the defendant railroad company negligently, without warning, and in violation of the city ordinance ran upon decedent inflicting fatal injuries, sufficiently presents the question of defendant’s liability under the rule of the last clear chance, p. 19.</p> <p>5. Trial.— Issues.— Waiver.— Last Clear Chance.— Where both parties to a personal injury case treated the question of last clear chance as though it were involved, introduced evidence tending to prove and to disprove such negligence, and asked and received instructions thereon, they are precluded from asserting, on appeal, that such question was not involved, p. 20.</p> <p>6. Trial. — Variance.—How Availed of. — Where no question is made at the trial as to an alleged variance, no question thereon can be raised on appeal, p. 20.</p> <p>7. Trial. — Variance.—Acquiescence.—Where the parties, without objection, choose their own issue, within the general scope of the pleadings, they cannot, on appeal, raise the objection that the issue was not tendered, p. 22.</p> <p>8. Trial. — Pleadiny.— Recovery.— Variance.— Heyliyence.— Last Clear Chance. — Where defendant’s negligent killing of the decedent is alleged generally, and the evidence shows that defendant was guilty under the rule of the last clear chance, the plaintiff’s recovery is “secundum alleyata of probata.” p. 20.</p> <p>9. Appeal. — Erroneous Procedure.- — -Failure to Object. — Estoppel.— A defendant who, without objection, knowingly permits the court to submit a case upon an issue not presented by the pleadings, is estopped, on appeal, from questioning such procedure, p. 20.</p> <p>10. Appeal. — Briefs.—Instructions.—To present any questions on an instruction, all instructions or their substance must be set out in the party’s brief, p. 26.</p> <p>11. Railroads. — Street Crossings. — Last Clear Chance. — Where defendant railroad company’s engineer saw plaintiff’s horse become unmanageable on a street crossing in time to stop his train without a collision, and he failed to stop the train, such company is liable for the damages under the rule of last clear chance, p. 27.</p> <p>12. Appeal —Reversal.—Technicalities.—A judgment will not be reversed on bare technicalities, p. 27.</p>

<p>From Floyd Circuit Court; William C. Utz, Judge.</p> <p>Action by Charles Taylor against the Cumberland Telephone and Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

From St. Joseph Circuit Court; Walter A. Funk, Judge. Action by Sarah M. Wilson, as executrix of the will of Carrie B. Fahnestock, deceased, against Augustus A. Fahnestock, as administrator of the estate of Camillus S. Fahnestock, deceased. From a judgment for defendant, plaintiff appeals.

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

<p>1. Contracts.— Construction. — Terms.—In construing a contract the courts will give effect to the provisions thereof, rather than to any name that may have been given to it by the parties, p. 49.</p> <p>2. Contracts. — Sales.—Real Property. — “Lease.”—“Bent.”—A contract of sale of real estate, the purchase price to be paid in instalments, is not changed to one of tenancy by the words “lease” and “rent” used therein, p. 50.</p> <p>3. Contracts. — Sales.—RBeal Property. — Vendor and Purchaser.— Landlord and Tenant. — A contract by which a purchaser of real estate agreed to pay the purchase price of the real estate in instalments, and in default of the making of such payments he was to vacate and surrender the premises, all sums paid to be held by the vendor “as rent for said premises and as liquidated damages,” does not create the relation of landlord and tenant between such vendor and purchaser, p. 50.</p> <p>4. Justices of the Peace. — Jurisdiction.—Title to Real Estate.— Where the rights of a vendor and his purchaser are involved in an action, a justice of the peace has no jurisdiction, p. 50.</p> <p>5. Courts.— Circuit.— Justices. — Jurisdiction.—Appeal.—Where a justice of the peace had no jurisdiction of an action, the circuit court obtained none on appeal therefrom, p. 50.</p> <p>6. Jurisdiction. — Raising Question of. — Subject-Matter.—The jurisdiction of the court over the subject-matter of an action may be raised at any time, with or without motion; or the court, of its own motion, may raise the question, p. 50.</p>

<p>From Elkhart Circuit Court; James S. Dodge, Judge.</p> <p>Suit by George E. Compton and others against Francis A. Benham and others. From a decree for defendants, plaintiffs appeal.</p>

<p>From Cass Circuit Court; Joseph M. Rabb, Special Judge.</p> <p>Action by Charles M. Peck against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred to Supreme Court (see 43 Ind. App. 316). Transferred to Appellate Court (see 172 Ind. 19). Retransferred to Supreme Court. (Retransferred to Appellate Court [see 172 Ind. 562], Retransferred to the Supreme Court [see 45 Ind. App. —].</p>

<p>1. Pleading. — Complaint. — Railroads. — Crossings. — Proximate Cause. — A complaint alleging that defendant railroad company “negligently failed to blow the whistle eighty rods from said [highway] crossing, and negligently failed to ring the bell continuously as it approached said crossing, and negligently ran said locomotive and one ear attached thereto at a high and dangerous rate of speed, to wit, sixty miles an hour,. * * * against said buggy in which the plaintiff’s decedent was riding, * * * and negligently killed the plaintiff’s decedent,” is sufficient, and shows that the proximate cause of the death was the dangerous speed coupled with the failure to give the statutory signals, p. 75.</p> <p>2. Trial. — Verdict.— Interrogatories.— Conflict. — The answers to the interrogatories control the general verdict only where they are in irreconcilable conflict therewith, p. 76.</p> <p>3. Trial.— Instructions. — Imputed Negligence. — Interrogatories.— Curing Error. — The refusal to give certain instructions concerning imputed negligence is not harmful, where the court has fully instructed on such point; and favorable answers to interrogatories on such points would render harmless any error in refusing such instructions, p. 76.</p> <p>4. Railroads.— Highway Crossing Signals.— Failure.— Excuses.— Where a traveler on a public highway near a railroad crossing heard the whistle of the locomotive at a crossing one-half mile away, such signal “filled the purpose of the law in requiring a whistle to be sounded within eighty or one hundred rods of a highway crossing,” which the traveler was about to cross, p. 81.</p> <p>5. Negligence. — When Question of Law. — Negligence is ordinarily a mixed question of law and fact, but becomes a question of law where but one inference can be drawn from the undisputed facts, p. 81.</p> <p>6. Railroads.— Highway Crossings.— Contributory Negligence.— Where a father was riding in a buggy on the highway with his son who was driving, at a distance of 230 feet from a railroad crossing, and they heard the whistle of the engine at a highway crossing one-half mile away, and drove toward the crossing and upon arriving at a point thirty feet from the crossing they slowed the horse to a walk but did not stop, the fog being so dense that the train was not visible over 100 feet, and the train failed to sound the whistle or to ring the bell, the train running at sixty miles per hour, and killing the father on the crossing, such father was guilty of contributory negligence as a matter of law. Pittsburgh, etc., R. Co. v. Lynch, 43 Ind. App. 177, distinguished, pp. 81, 82.</p> <p>7. Railroads.— Highway Crossings.— Contributory Negligence. — A traveler upon a highway knowing that a train is approaching a half-mile away is guilty of contributory negligence as a matter of law if he attempts to cross the track, without stopping to listen, and he has no right to rely upon the sounding of the whistle or the ringing of the bell for his crossing, though the fog is so dense that he cannot see the approaching train over 100 feet, p. 84.</p>

<p>1. Depositions. — ’Suppression.— Officers. — Interest.—Attorney mid Client. — Trial.—Evidence.—A deposition taken by a notary who is a clerk for an attorney shown by an affidavit to have been interested in the case, may be suppressed on motion, p. 85.</p> <p>2. Depositions. — Suppression.—Time.—A motion to suppress a deposition may be made at any time before the trial, p. 86.</p> <p>3. Depositions.— Suppression.— Estoppel.— Notice. — A deposition taken before a clerk of an interested attorney may be suppressed, and the party moving to supxiress is not e.stopped to make such motion because of his knowledge of the defects at the time of the taking of the deposition, p. 86.</p> <p>4. Depositions.'— Suppression.— Notary. — Interest. — Where the relationship of attorney and client exists, though not in the case at bar, between parties taking depositions and the attorney whose clerk takes such depositions, they may be suppressed, p. 87.</p>

From White Circuit Court; A. H. Plummer, Judge. Action by Charles E. Stewart against John B. Unger (Templeton White being substituted on appeal), as guardian of Elizabeth White, a person of unsound mind. From a judgment for defendant, plaintiff appeals.

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by Carl Ziehm against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by Edward W. Pelt and another against John P. Mitchell. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Pleading. — Complaint.—Allegations.—Ultimate Facts. — Only the ultimate facts to be proved need be alleged in a complaint, p. 102.</p> <p>2. Pleading. — Complaint.—Cas and Oil. — Marketable Quantities.— Facts. — Evidence.—A complaint, upon a contract providing that if defendant gas and oil company found gas in marketable quantities such company would pay a certain sum per well to the owner, which alleges that gas was found in “sufficient quantities * * * to be marketed and in sufficient quantities to be piped” to market, and that such gas “could have been sold at a profit to defendant,” states ultimate facts and not mere conclusions, the amount of gas, its cost of transportation and cost of production being evidentiary, p. 102.</p> <p>3. Trial.— Instructions.— Cas and Oil.— Marketable Quantities.— Cost. — In an action upon a contract obligating defendant gas and oil company to pay a certain rental if gas were found in marketable quantities, an instruction that gas would be found in such quantities if, “taking into consideration the opportunity to sell the same, the cost and expense attendant thereon” the gas might have been reasonably sold at a profit, is not objectionable as leaving out the annual rental to be paid. p. 102.</p> <p>4. Trial. — Instructions:—Gas and Oil.- — Cost of Production. — Cost of Wells. — Where wells are being pumped for oil for market under a contract with the landowner providing for certain compensation if oil should be found in paying quantities, and an additional sum if gas should be found in marketable quantities, and an action is brought for certain rentals due for gas obtained from the same wells, it is correct to instruct that the cost of sinking the wells should not be considered in estimating whether gas existed in marketable quantities, since such cost was covered by the operation of the wells for oil. p. 103.</p> <p>5. Trial.-— Instructions.— How Considered.— Instructions will be considered as a whole, and where they fairly state the law a reversal will not be ordered because of technical defects, p. 104.</p> <p>6. Trial. — Instructions.—Gas and Oil. — Marketable Quantities.— Cost. — In an action upon a contract providing for the payment to the landowner of certain rentals if gas should be found upon his land in marketable quantities, an instruction that the cost of marketing such oil, which includes the rentals therefor, should be considered in determining such question, is proper, p. 104,</p> <p>7. Appeal. — Weighing Evidence. — Where there is some evidence supporting the judgment, the Appellate Court will not disturb it. p. 105.</p>

<p>1. Pleading. — Complaint.—Railroads.—Care Towards Shippers. — Assumption of Risk. — A complaint alleging that the plaintiff was an employe of a shipper on defendant railroad company’s road, and that while he was loading a box-car defendant negligently ran its locomotive against such ear, to his injury, states a cause of action, there being no assumption of risk in the case. p. 107.</p> <p>2. Pleading. — Complaint.—Theory.—The rule requiring a complaint to proceed upon a definite theory should not be refined to absurdity nor subverted to injustice, p. 108.</p> <p>3. Pleading.— Complaint. — Railroads.—Negligence.—Theory.—The theory of a complaint alleging that defendant railroad company negligently ran its locomotive against the box-car in which plaintiff was loading freight for a shipper, is that of negligence, p. 108.</p> <p>4. Pleading.— Complaint.— Statutory Requisites.— The statute (§343 Burns 1908, §338 R. 8. 1881) requires only such a statement of facts in a complaint as will enable a person of common understanding to know what was intended, p. 109.</p> <p>5. Pleading. — Complaint.— Railroads. — Negligent Running. — Slippery Tracks. — Under an allegation that defendant railroad company negligently ran its locomotive against the box-car in which the plaintiff, a shipper’s servant, was working, admits proof of a slippery track as a contributing cause of such collision, p. 109.</p> <p>6. Champerty and Maintenance. — Railroads.—Evidence.—Motions to Dismiss. — Trial.—A motion to dismiss a personal injury case on the ground of champerty, because an expert medical witness testified that plaintiff’s attorney employed such witness to examine the plaintiff, and because the defendant railroad company’s claim agent testified that the plaintiff would have settled his claim except for the fact that his attorney was to get half of the amount recovered, should be overruled, p. 110.</p> <p>7. Trial. — Instructions.—Construction of r¡ Sentences. — An instruction containing a compound sentence, the alleged objections to the latter part being obviated by the statements in the former part, is not erroneous, p. 110.</p> <p>8. Trial. — Instructions.—Copyiny from Appellate Court Decision.— Applicable passages copied from Appellate Court decisions may be used in instructing the jury in a similar case. p. 110.</p> <p>9. Trial. — Instructions.—Appeal.—Certiorari.—Alleged defects in an instruction which have been obviated by a writ of certiorari will be disregarded, p. 110.</p>

<p>1. Wills. — Devises.—Poioers.—Real Property. — A wife’s will in form, “I give and devise to my beloved husband, * * * the farm on which we now live * * * to sell and convey as he may see proper,” devises a fee-simple title to the husband, the power to sell and convey merely emphasizing the testator’s intention to dispose of the fee-simple title, p. 113.</p> <p>2. Descent and Distribution. — Wife to Husband. — Debts.—Under §3016 Burns 1908, Acts 1891, p. 71, §1, a surviving husband takes one-third of his deceased wife’s real estate subject to its proportion of her debts contracted before marriage, p. 114.</p> <p>3. Wills. — Wife to Husband. — Debts.—A surviving husband electing to take under his deceased wife’s will, takes subject to her debts, p. 115.</p> <p>4. Wills. — Wife to Husband. — Election.—Under §3016 Burns 1908, Acts 1891, p. 71, §1, a surviving husband, to take under his deceased wife’s will, must file his election so to take within ninety days from the probate thereof, p. 115.</p> <p>5. Trial. — Venire de Novo. — Bptceial Findings. — Evidence.—A motion for a venire de novo is not apxilicable where the special findings contain the evidence and not the ultimate facts, p. 115.</p> <p>6. Wills. — Probate.—Time of. — Election.—The confirmation of a will dates back to the time of the filing thereof for probate, and an election by the husband, under §3016 Burns 1908, Acts 1891, p. 71, §1, to take under his wife’s will, should be filed within ninety days from the time of such filing, p. 116.</p>

<p>1. Divorce. — Residence.—Proof.—Statutes.—The provision of §1066 Burns 1908, §1031 It. S. 1881, requiring the residence of the plaintiff in a divorce suit to be established by at least two freeholders and householders, is mandatory, p. 117.</p> <p>2. Evidence. — Divorce.—Residence.—Freehold Witnesses. — Express or formal proof of the qualifications of the two freehold witnesses required in a divorce case, is not necessary, it being sufficient if proper inferences of such qualifications may be drawn from their testimony, p. 118.</p>

<p>From Lake Circuit Court; John B. Peterson, Special Judge.</p> <p>Action by Bessie Cronin against Arthur P. Zimmerman. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading.— Complaint. — Principal and Agent.— Execution of Contracts. — An allegation, in a complaint, that defendant executed the contract sued upon, and an allegation that her agent executed it on her behalf, are legally equivalent, p. 124.</p> <p>2. Pleading.— Complaint.— Answer.— Reply.— Surplusage. — Principal and Agent. — Where a complaint alleged that defendant executed the contract sued upon, defendant’s answer that she did not, that her husband executed it, and that in so doing he was not her agent, and the reply alleging that such husband was her agent in so doing, though legally sufficient on demurrer, are surplusage, all of the facts being admissible under the general denial, p. 124.</p> <p>3. Mechanics’ Liens. — Evidence.—Husband, and Wife. — Principal and Agent. — "Where a husband, with his wife’s knowledge and permission, purchased lumber to construct a greenhouse on her land, and she denied any agency on the part of the husband, but there was evidence of declarations made by her that she was constructing it, the trial court’s finding that her property was subject to a mechanic’s lien therefor, will not be disturbed on appeal, p. 125.</p> <p>4. Principal and Agent.— Undisclosed Principal.— Liability.— A principal who is undisclosed at the time of the execution of a contract is liable thereon nevertheless, p. 125.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by E. Bert McNeeley against the Southern Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

From Monroe Circuit Court; James B. Wilson, Judge. Action by James B. Swing, as trustee for the creditors and policy-holders of the Union Mutual Fire Insurance Company, against Nathaniel U. Hill and another. From a judgment for defendants, plaintiif appeals.

<p>1. Trial.— Instructions.— Contracts. — Misstatement of Consideration. — An instruction, in an action for the breach of a contract, that “the price of the farm fixed in the contract is $6,000, and that the price fixed in the contract for the stock of goods and fixtures is not to exceed $7,000, * * * and if the market value of the goods was less than their first invoice price, that would be no excuse for the defendants to refuse to take the same, * * * nor would it be an excuse for plaintiffs to break their contract, if the land had been worth less than the contract price of $6,500,” is not misleading where the contract was read in evidence showing the real consideration for the farm to be $6,500. p. 147.</p> <p>2. Trial.— Instructions.— Contracts.— Breach.— Assumption of Mortgage. — Where, in a trade of lands valued at $6,500, the same _ being encumbered by a mortgage for $3,000 which was assumed, for a stock of goods invoiced at not to exceed $7,000, an instruction was given, in an action for the breach of such contract, that “these values [of the farm and.stock of goods] the parties themselves fixed, and they are bound by them,” and that the damage for a breach of such contract is the difference, at the date of such contract, “between the market value of the goods and the market value of the land, as shown by the evidence,” is not bad because of telling the jury that the price of the farm was fixed at $6,500, ' where there was no evidence that the mortgage affected the contract price, p. 148.</p> <p>3. Trial.— Instructions.— Contracts.— Sales.— Inspection. — “Representation.” — “Stipulation.”—In an action for the breach of a contract for the sale of a stock of goods, the purchaser reserving the right of inspection and of avoiding the contract in case the goods were not as “represented,” an instruction that it was for the jury to determine the purpose of the inspection made, and also whether the stock of goods was as “stipulated for,” is not misleading, the words “represented” and “stipulated for” being practically equivalent, p. 148.</p> <p>4. 'Words and Phrases.— “Stipulation.”— “Representation.” — The word “stipulation” imports an agreement, a bargain, a contract; and the word “representation” imports a description, a portrayal, or a setting forth, p. 149.</p> <p>5. Trial. — Instructions.—Applicability.—An instruction cannot be held inapplicable to the case, where there was an issue pertinent thereto and some evidence to sustain such issue, p. 150.</p>

<p>From Fulton Circuit Court; Harry Bernetha, Judge.</p> <p>Suit by Milo E. Smith and others against John H. Pyle, as treasurer of Pulton county. From a judgment for defendant, plaintiffs appeal.</p>

<p>Original petition by The State of Indiana against Frank B. Ross.</p>

<p>1. Municipal Corporations.— Franchises. — Limitations.— Bail-roads. — Street Railroads. — A city’s grant to a railroad company of a franchise to run its trains upon a certain street does not prevent the grant of a franchise to a street railroad company to run its cars across such street, the railroad company’s right being taken subject to the right of the city to authorize the use of the street for any proper purpose implied from the street’s dedication. p. 161.</p> <p>2. Contracts. — Fixing Rights of Railroad Company and Street Railroad Company as to Street Crossings. — Consideration.—A contract by which a street railroad company agrees to construct and maintain a crossing over a railroad track in a street, and to yield at all times the preference in crossing to the railroad company, is supported by a valid consideration, there being no statute regulating such matters, p. 161.</p> <p>3. Contracts. — Parties.—Validity as to Others. — Parties to a contract, and those in privity of estate or contract, are the only ones bound thereby, p. 162.</p> <p>4. Contracts.— Parties. — Assignees.— Interurban Railroads. — An interurban railroad company which purchased the property of a street railroad company at a sale under a decree of foreclosure of a mortgage executed prior to the time of the making of the contract sued upon, is neither a legal nor an equitable assignee of such contract, pp. 163, 164.</p> <p>5. Pleading.— Complaint.— Contracts. — Assumption of. — Row Alleged. — A complaint by a railroad company against an interurban railroad company for the breach of a contract executed by such interurban company’s predecessor street railroad company, which alleges that the defendant interurban company acquired “all the rights, franchises and property of the street railroad company, and assumed and became bound by all its contracts and obligations, including said contract,” fails to show the assumption of such contract, p. 103.</p> <p>6. Contracts.— Assumption of.— Street Railroads.— Purchase of Property of. — The purchaser of all of the property of a street railroad company cannot from the fact of such purchase be held to have assumed the performance of a contract between such street railroad company and a railroad company relative to the maintenance of a crossing, p. 164.</p> <p>7. Pleading. — Complaint.—Contracts.—Assumption of. — Consideration. — In order to show that an interurban railroad company in purchasing the property of a street railroad company assumed such street railroad company’s contract to maintain a railroad crossing, the complaint must show a consideration therefor, none being implied from the fact of purchase of the property, p. 164.</p> <p>8. Conteacts.— Covenants.— Privity of Contracts and Estate.— Street Railroads — Crossings.-—The purchaser of all of the property of a street railroad company at a sale upon a decree of foreclosure of a mortgage executed prior to the execution, by the street railroad company, of the crossing maintenance contract in question, is not privy by contract, or in estate, to such maintenance contract, p. 164.</p> <p>9. Contracts. — Assumption of. — Interurban Railroads. — Equity.— An interurban railroad which purchases the entire property of a street railroad company at a sale under a decree of foreclosure of a mortgage executed prior to the execution by the street railroad company of the crossing maintenance contract in question, is not equitably bound to perform such crossing maintenance contract, such interurban company’s title being in no way dependent upon, or derived through, or by virtue of, such maintenance contract, p. 165.</p> <p>10. Contracts. — Railroads. — Crossings. — Purchasers. — When Bound. — The purchaser of railroad property is not ordinarily bound by crossing contracts, without notice thereof, p. 168.</p>

<p>1. Pleading.— Complaint.— Injunction.— Injury. — Facts.—A complaint for an injunction to prevent irreparable injury must state the facts constituting such injury, p. 170.</p> <p>2. Pleading. — Complaint.—Injunction.—Cutting Off Sewer Outlet. —A complaint to enjoin defendant from cutting off plaintiff’s sewer outlet, alleging that his houses are connected with a certain sewer, describing it, that such sewer carries off all of the sewage from such houses, and that if defendant should disconnect such sewer the plaintiff would suffer irreparable damage, in that he would be left without an outlet for sewage, is insufficient, the facts showing plaintiff’s right to such connection, and the facts showing irreparable injury being omitted, p. 170.</p>

<p>1. Attachment and Garnishment.— Affidavits.— Jurisdiction.— Objections. — Evidence.—Where a complaint in attachment and garnishment purported to be sworn to before Harold H. Wheeler, the defendant answering thereto without questioning the court’s jurisdiction, a judgment for the plaintiffs will not be disturbed because the complaint was not sworn to, where said Wheeler was clerk of the court trying the cause, since the presumption is that the trial court took judicial notice that he was authorized to administer oaths, p. 172.</p> <p>2. Appeal. — Briefs.—Waiver.—A failure to discuss alleged errors constitutes a waiver thereof, p. 172.</p> <p>3. New Trial. — Decision “Contrary to the Evidence.” — That the decision is “contrary to the evidence,” constitutes no ground'for a new trial, p. 172.</p> <p>4. Appeal. — Weighing Evidence. — The Appellate Court cannot weigh conflicting evidence, p. 172.</p>

<p>1. Interurban Railroads. — Passengers.—Who are. — Question for Jury. — -Evidence showing that the plaintiff entered defendant interurban railroad company’s car while it was standing at the customary place for receiving passengers, that the conductor was late and that the motorman started without any conductor, that the plaintiff was ready and willing to pay his fare, that there was no one to whom to pay it, that the motorman directed him to alight at a certain place, and that while doing so the ear gave a sudden jerk, throwing him upon the street, to his injury, sustains a verdict that the plaintiff was a passenger, p. 174.</p> <p>2. Trial.— Instructions.— Interurban Railroads.— Passengers Care. — An instruction that a carrier of passengers, though not an insurer, must exercise the highest degree of care in receiving, transporting and discharging passengers, and that it is liable to a passenger, without fault, for the slightest neglect of duty, does not assume that the plaintiff was a passenger, p. 176.</p> <p>3. Trial.— Instructions.— Interurban Railroads.— Passengers. — Care Toioard. — An instruction, in an action against an interurban railroad company for personal injuries, that carriers of passengers were required to exercise the highest degree of care for the safety of their passengers, and to discharge them safely, would not mislead the jury into thinking that the instruction was inapplicable to interurban railroads, especially where other instructions followed showing the rights of the parties in detail, p. 177.</p> <p>4. Trial. — Instructions.—Limiting.—Duty of Parties. — Parties desiring a general instruction limited to the particular case should prepare such an instruction and properly request the giving thereof. pp. 178,179.</p> <p>5. Trial.— Instructions.— Interurban Railroads.— Passengers. — Who are. — Liability to. — An instruction that if plaintiff entered defendant interurban railroad company’s car while it was standing at the customary place for receiving passengers, that he was ready and willing to pay his fare, but that there was no one to receive same, he is a passenger and the company is liable for the slightest neglect of duty toward him in transporting and in providing proper “means” for him to alight, is proper; and if the company desired the question of plaintiff’s good faith submitted, it should have asked for a modification thereof; and the word “means” instead of the word “opportunity” was not misleading, there being no question but that the car was provided with proper appliances, p. 178.</p>

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Action by Clifton Thompson and others, by their next friend, against the Michigan Mutual Life Insurance Company. From a judgment for plaintiffs, defendant appeals.

<p>1. Pleading.' — Coinplaint.—Negligence.—Automobiles.—A complaint alleging that defendants “carelessly, negligently and recklessly ran and operated said automobile at a high, reckless and dangerous rate of speed * * * toward and against said plaintiff, and thereby knocked him down, * * * to plaintiff’s great injury,” states a cause of action, p. 189.</p> <p>2. Pleading. — Complaint.—Construction.-—A complaint should be tested by its general scope; and nothing extrinsic should be considered which impairs the result set forth therein, p. 190.</p> <p>3. Pleading. — - Complaint.— Negligence. — Automobiles.—Highways. —Use of. — A. general allegation that defendants negligently ran their automobile against plaintiff, is sufficient on demurrer, without alleging the specific facts; and the facts showing the negligence are admissible .in evidence thereunder, pp. 190,195.</p> <p>4. Negligence. — Law of the Iload. — Turning to the Right. — Automobiles. — The law of the road, requiring vehicle drivers, upon meeting, to pass to the right, does not apply to their meeting of pedestrians, p. 190.</p> <p>5. Highways. — Right to Use. — All persons have equal rights to the use of the highways, and all must use reasonable care, under the particular circumstances, to avoid injuries to others using them. pp. 190,195.</p> <p>6. Negligence. — Contributory.—Contributory negligence precludes a recovery by the plaintiff, p. 191.</p> <p>7. Negligence. — Automobiles.—The drivers of an automobile, who met an old man, almost blind, cautiously walking along the side of the road, such drivers failing to stop their machine or to turn out, on account of which the old man in trying to escape was struck and injured, are guilty of negligence, p. 191.</p> <p>8. Negligence. — Highways.—Use of, by Blind Persons. — A person almost blind is not guilty of negligence by reason of the mere fact of traveling upon the highway, the law requiring him to use ordinary care under the circumstances, p. 192.</p> <p>9. Pleading. — Complaint.— Highways.— Use of .-Automobiles.- — A complaint alleging that the plaintiff, a pedestrian, almost blind, was “walking along the west side of said highway, and to the right of the beaten roadway,” shows — not improperly — a fact indicating the use of care. p. 192.</p> <p>10. Negligence. — Automobiles.—Evidence.—In an action by an old man, almost blind, against the drivers of an automobile, for running over him, the evidence showing that he was at the side of the road and they ran straight toward him, it is not material on which side of the road they were driving, where they saw him and took no heed. p. 192.</p> <p>11. Negligence. — -Automobiles.— Running Over People.— Automobilists have no right to run their machines straight toward people upon the highway, thus compelling such people at their peril to escape, p. 193.</p> <p>12. Trial. — Instructions.—Harmless.—Where an instruction could not have prejudiced the appellants, they have no cause for complaint. p. 193.</p> <p>13. Appeal. — Right Result — Where the result reached by the trial court is correct, its judgment will not be disturbed, p. 193.</p> <p>14. Trial. — Verdict.—Interrogatories.—Answers to the interrogatories to' the jury overthrow the general verdict only when such answers exclude every conclusion which would authorize a recovery by the plaintiff, p. 194.</p> <p>15. Trial.— Verdict.— Interrogatories. — Allegations.—A utomobiles. —Where a complaint alleged that both defendants were in possession and control of an automobile, by the negligent use of which plaintiff was injured, and the answers to the interrogatories do not contradict such allegation, a general verdict for plaintiff is not irreconcilable therewith, p. 194.</p> <p>16. Pleading. — Complaint.—Negligence.—Automobiles.—Lano of the Road. — A complaint alleging that the plaintiff, an aged man and nearly blind, while walking south along the western side of the road was met by an automobile, that the drivers thereof negligently ran it along the western side of the road, refusing to turn, thereby injuring the plaintiff, states a cause of action, p. 195.</p> <p>17. Pleading. — Complaint.— Negligence.- — Automobiles.—Presumptions on Appeal. — A complaint alleging that the defendants “carelessly and negligently failed and neglected to turn said automobile to the right,” when qualified by the words “and thus pass plaintiff,” states actionable negligence, every presumption being made, on appeal, in favor of the ruling of the lower court, p. 196.</p> <p>18. Trial.— Instructions. — Negligence.—Automobiles.—An instruction that “if these acts [carelessly, negligently and recklessly running an automobile against plaintiff, and failing to turn to the right] were done by the defendants in the manner as charged, and said acts were negligent, careless and reckless as charged,” is not erroneous as charging that it was defendants’ duty to turn to the right, p. 196.</p>

From Lawrence Circuit Court; James B. Wilson, Judge. Action by Carrie Nickless, as administratrix of the estate of Ambrose Nickless, deceased, against the Mitchell Lime Company. From a judgment on a verdict for plaintiff for $2,500, defendant appeals.

<p>1. Appeal. — Briefs.—Waiver.—Points not discussed are waived. p. 208.</p> <p>2. Pleading.— Answer.— Conversion.— Denying Title.— Evidence Admissible. — In an action for conversion, all evidence tending to deny plaintiff’s title to the property, and to sustain defendant’s right thereto, is admissible under the general denial, p. 210.</p> <p>3. Pleading.— Answer.— Paragraphs.— Sustaining Demurrer.— Proof Admissible Under Another Paragraph. — It is harmless to sustain a demurrer to a paragraph of answer, where the facts contained in such paragraph can be proved under the general denial, already pleaded, p. 210.</p> <p>4. Landlord and Tenant. — Oil and Gas Leases. — Surrender of Land. — Indefinite Description. — A lessee has no cause to complain of the uncertainty in the description of the undescribed ten-acre piece surrounding a successful oil well which such lessee had the contractual right to retain, where such lessee has the right to select such tract, p. 210.</p> <p>5. Landlord and Tenant. — Fixtures.—Removal.—Machinery and fixtures used in sinking oil and gas wells do not become parts of the freehold by reason of necessary annexation thereto, and the title thereto does not vest in the lessor upon a forfeiture of the lease, p. 212.</p> <p>6. Landlord and Tenant. — Removal of Fixtures. — “At Any Túrne.” —Where a tenant reserves the right to remove the fixtures “at any time,” a reasonable time after the expiration of the lease is intended, p. 212.</p> <p>7. Landlord and Tenant. — Oil and Gas Leases. — Options.—Forfeiture. — Where an oil and gas lease provides for the sinking of a well within a certain time, or failing therein, to pay certain rentals, and failing so to pay, the lease to determine, the lessor may elect to determine the lease or to proceed against the lessee for breach of covenant, p. 212,</p> <p>8. Landlord and Tenant. — Determination of Lease. — Election.— Failure of. — Where a lessor has an option to determine a lease for nonpayment of rentals, but fails to exercise same by giving notice thereof, the lease is still in effect, and he must pursue his rights under such lease, p. 212.</p>

<p>1. Appeal.— Briefs.— Concise Statement of Record.— Failure. — Whether appellant’s failure to set out a concise statement of the record in its brief will work a reversal, is discretionary with the court, p. 214.</p> <p>2. Eminent Domain.— Appraisement.— Exceptions.— Questions Raised by. — Damages.—Interurban Railroads. — Where landowners except to an interurban railroad condemnation appraisement on the grounds that (1) the assessment of damages is too low, (2) the appraisers failed to allow damages for depreciation of remainder of real estate, (3) the appraisers allowed insufficient damages for land taken, and (4) the appraisers failed to assess damages to the improvements, the trial thereon is not restricted, but any damages allowable under the statute (§934 Burns 1908, Acts 1905, p. 59, §6) should be permitted, p. 215.</p> <p>3. Trial.— Verdict.— Sufficiency.— Eminent Domain. — Damages.— Interurban Railroads. — In an action for the condemnation of an interurban railroad right of way, a verdict assessing separately the damages for the land taken, the damage to the residue of the land, and other resulting damages, will support a judgment rendered thereon, p. 217.</p> <p>4. Appeal. — Rehearing.—Questions Presentable. — Briefs.—Failure to Set Out Record. — Where appellant’s brief fails to set out the record presenting the alleged errors, and the court fails to pass on some of them, the others cannot be raised on a petition for a rehearing, p. 217.</p>

<p>From Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by Lizzie Pauli against the Island Coal Company. From a judgment for defendant, plaintiff appeals.</p>

From Whitley Circuit Court; J. W. Adair, judge. Action by Henry Jeffries, as executor of the last will of David Jeffries, deceased, against John W. Orndorf, as executor of the last will of Marcus L Jeffries, deceased. From a judgment for defendant, plaintiff appeals. On motion to dismiss the appeal.

<p>From Howard Superior Court; P. H. Elliott, Judge.</p> <p>Action by Albert N. Miller against the Toledo, St. Louis and Western Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Cass Circuit Court; John S. Lairy, Judge.</p> <p>Action by Elvira M. Wysong against Charles H. Sells. From a judgment for defendant, plaintiff appeals.</p>

From Fayette Circuit Court; George L. Gray, Judge. Action by Abraham Bossert, as administrator of the estate of Benjamin P. Schoonover, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $1,550, defendant appeals.

<p>1. Appeal.— Briefs.— Rules.— Substantial Compliance With.— Where appellant’s brief substantially, though not technically, complies with the rules, the errors assigned will be considered, p. 254.</p> <p>2. Appeal.— Assignments of Errors.— Duplication of.— Briefs.— Removal of Causes. — Where appellant assigned as error the trial court’s refusal to remove the cause to the federal court, both independently and as a cause for a new trial, and discussed such assignments together, no waiver of the alleged error in overruling the motion for a new trial is shown, p. 254.</p> <p>3. Appeal.— Assignments of Errors. — Independent.— Removal of Causes. — Error in the overruling of a motion to remove the cause to the federal court is available only when such ruling is made a ground for a new trial, p. 254.</p> <p>4. Removal of Causes. — Citizenship.—Amount in Controversy. — A petition for removal of a cause from a state to a federal court, showing a diverse citizenship of the plaintiff and defendant, and a controversy involving a claim for $10,000, a proper bond being filed with such petition, requires the removal of such cause; and a refusal of such request constitutes reversible error, p. 2§5.</p>

From Scott Circuit Court; Joseph H. Shea, Judge. Action by Jerry McOsker, as administrator of the estate of William McOsker, deceased, against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Suit by Michael McCauley against Charles Schatzley and another. From a judgment for defendants, plaintiff appeals.</p>

<p>From Lake Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by the German Insurance Company of Preeport, Illinois, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Warren Circuit Court; Joseph M. Rabb, Judge.</p> <p>Suit by John GL McCord, as guardian of Fannie Agnes Bright, an infant, against Oakley Bright and others. From a decree for defendants, plaintiff appeals.</p>

<p>From Jay Circuit Court; John F. LaFollette, Judge.</p> <p>Suit by Volney D. Carmony against Silas H. Adams. From a decree for plaintiff, defendant appeals.</p>

<p>Appeal. — Technicalities.—Penalties.—Railroads.—Fences.—Where a railroad company persistently refuses to build fences along its right of way, and on technical grounds attempts to evade payment therefor to the persons constructing same, the Appellate Court may impose a penalty in affirming a judgment for the cost of such construction.</p>

<p>1. Liens.— Landlord and Tenant.— Exemptions.— Under §8070 Burns 1908, §5224 R. S. 1881, providing for landlords’ liens, a landlord leasing his land partly for cash and partly for a portion of the crop to be raised, has a lien on the crop raised for such cash rent, and the tenant has no right of exemption as against such lien, nor has he any right to remove such crop until such rent is paid. p. 301.</p> <p>2. Conversion. — Landlord and Tenant. — Liens.—Purchaser of Crop Covered by. — The purchaser of a crop covered by a landlord’s lien (§8070 Burns 1908, §5224 R. S. 1881), is liable to such landlord to the extent of the value of the crop so purchased, provided the same be necessary to extinguish such lien. p. 303.</p>

From Dearborn Circuit Court; George E. Downey, Judge. Action by Margaret E. Cook against the Cincinnati, Lawrenceburg and Aurora Electric Street Railroad Company. From a judgment for plaintiff, defendant appeals. (For opinion on motion to dismiss, see 41 Ind. App. 227.)

From Hancock Circuit Court; Robert L. Mason, Judge. Action by Clarence M. Beard, as administrator of the estate of John B. Gordon, deceased, against the Columbia Creosoting Company and another. From a judgment on a verdict for plaintiff for $5,000, defendants appeal.

<p>1. Master and Servant. — Assumption of Risk. — Safe Place. — Obvious Dangers. — Questions for Jury. — The questions of assumption of risk, safe place, obviousness of risk, ordinary care, and negligence, are ordinarily for the jury. p. 320.</p> <p>2. Master and Servant. — Safe Place. — Creation of. — Assumption of Risk. — A servant in assisting to arrange a place in which to work ordinarily assumes the risk of defects therein, but a servant who assists in arranging a place in which other servants shall work performs a duty of the master, p. 320.</p>

From Rush Circuit Court; Will M. Sparks, Judge. Suit by Chester P. Pelton and others against Thomas M. Green and others. From a decree for plaintiffs, defendants appeal. (For decision on merits, see 42 Ind. App. 675.) On motion to retax costs.

<p>From Dekalb Circuit Court; Emmet A. Bratton, Judge.</p> <p>Action by Christ Winterich against the City of Garrett. From a judgment for plaintiff, defendant appeals.</p>

From Laporte Circuit Court; Walter A. Funk, Special Judge. Suit by Stephen D. Flynn, as administrator of the estate of Margaret Smith, deceased, against Lavina Northam and another. From a judgment for defendants, plaintiff appeals.

<p>From Clinton Circuit Court,- Joseph Claybaugh, Judge.</p> <p>Action by the Farmers National Bank, of Sheridan, Indiana, against William S. Coyner and another. From a judgment for defendants, plaintiff appeals.</p>

<p>From Marion Circuit Court; Henry Clay Allen, Judge.</p> <p>Action by John Byrnes against the Emrich Furniture Company. From a judgment on a verdict for the. plaintiff for $1,500, defendant appeals.</p>

From Floyd Circuit Court; William C. Utz, Judge. Action by Sarah H. Stepp, as administratrix of the estate of George H. Stepp, deceased, against the Chicago, Indianapolis and Louisville Railway Company. From a judgment on a verdict for plaintiff for $4,500, defendant appeals.

<p>From Knox Circuit Court; Louis A. Meyer, Special Judge.</p> <p>Suit by Margaret C. Cauthorn against "William C. Bierhaus and another. From the judgment rendered, plaintiff appeals.</p>

<p>1. Trial. — Directing Verdict. — Municipal Corporations. — Defective Street Crossing. — A verdict should not be directed for the defendant in an action by a pedestrian against a city for injuries sustained on account of an alleged defective street crossing, unless the court can say, as a matter of law, that the city was guilty of no negligence, or that the plaintiff was guilty of contributory negligence, p. 368.</p> <p>2. Municipal Corporations. — Defective Streets. — It is the duty of a municipal corporation to use ordinary care to keep its streets in a safe condition, p. 36S.</p> <p>3. Municipal Corporations. — Negligence.—Street Crossings. — Cutters. — The maintenance of spaces between the flagstones in a street crossing for the purpose of draining the water from the street, or the maintenance of gutters along the sidewalk, does not constitute negligence, p. 368.</p> <p>4. Municipal Corporations. — Defective Street Crossing. — Question for Jury. — Whether a city was guilty of negligence in maintaining, in a street crossing, a stepping stone one and three-fourths inches higher than the sidewalk, and having a corner broken in such manner as made it liable to catch a traveler’s foot and cause him to trip, is a question for the jury. p. 369.</p> <p>5. Negligence. — Contributory. — Escaping Danger. — Defective Streets. — Whether a woman who was running from a place where men were engaged in a fight, and who stepped on a defective flagstone in a street crossing, was guilty of contributory negligence, is a question for the jury. p. 370.</p> <p>6. Municipal Corporations. — Use of Streets. — Escaping Dangers — The use of a street to escape dangers is a proper and reasonable use thereof, and for injuries received from defects while the plaintiff was trying to escape, the city is liable, p. 371.</p>

<p>1. Pleading. — Pica in Abatement. — Construction of. — Intendments. —A plea in abatement, being a dilatory plea, should be strictly construed, and no intendments should be made in support thereof, p. 373.</p> <p>2. Pleading. — Plea m Abatement. — Obviating Supposable Special Answers. — A plea in abatement must be accurate and precise, and must obviate every supposable special answer, p. 373.</p> <p>3. Corporations. — Foreign.—Actions Against. — A foreign corporation may be sued in this State (1) when such corporation has an office or agency in this State for the transaction of business, the action being maintainable in the county in which such office or agency is located, where the action grew out of the business of such office or agency, and (2) when such corporation has property, money, credits or effects situate in the county where the action is brought, p. 373.</p> <p>4. Pleading. — Plea in Abatement. — Foreign Corporation. — A plea in abatement denying that the person served was an agent of defendant foreign corporation is not sufficient on demurrer, since it does not negative a legal service otherwise, p. 374.</p> <p>5. Pleading. — Plea in Abatement. — References to Other Papers.— A plea in abatement cannot be aided by references to the process or other papers in the case, where they are not made a part of such plea. p. 374.</p> <p>6. Process.— Foreign Corporations.— Special Agents.— Service of process on the special agent of a foreign corporation is valid where such agency subsists, and is not valid if such agency has terminated, p. 375.</p>

<p>From Martin Circuit Court; Hileary Q. Houghton, Judge.</p> <p>Action by William J. S. Davis against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Agreed Case. — Bow Determined. — An agreed case, under §579 Burns 1908, §553 R. S. 1881, is determined de novo on appeal to the Supreme or Appellate Court, p. 382.</p> <p>2. Appeal.— Jurisdiction.— Drains.— Mandamus. — The jurisdiction of appeals in cases of drainage and mandamus is in the Supreme Court, p. 382.</p> <p>3. Drains. — Issuance of Bonds. — Mandamus.—Appeal.—An appeal in an action to compel a board of commissioners to issue bonds for the payment of the cost of constructing a public drain, does not relate to the establishment of the drain, and is therefore not transferable to the Supreme Court as a drainage case, there being no appeal from an order refusing to issue such bonds, p. 382.</p> <p>4. Drains. — Bonds.—Boards of Commissioners. — Mandamus.—Mandamus is the appropriate remedy for a contractor where the board of commissioners refuses to issue bonds in payment of the cost of constructing a public drain, p. 385.</p> <p>5. Mandamus.— Appeal.— Jurisdiction. — Drains.—The jurisdiction of an appeal in an agreed case which, if the action be successful, must result in a mandate against defendant board of commissioners requiring such board to issue bonds in payment of the cost of constructing a public drain, is in the Supreme Court, p. 385.</p>

<p>From Marion Circuit Court (14,360); Henry Clay Allen, Judge.</p> <p>Action by Henry Heller against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $100, defendant appeals.</p>

<p>From Parke Circuit Court; Gould G. Rheuby, Judge.</p> <p>Action by the Bedford Coal and Coke Company against the Parke County Coal Company. From a judgment for defendant, plaintiff appeals.</p>

From Clark Circuit Court; William G. Utz, Special Judge. Action by Almira Taggart and another against Samuel E. Taggart, as executor of the will of James C. Taggart, deceased, the Owen Creek Presbyterian Church and other ereditors being permitted also to defend. From a judgment for plaintiffs, defendant creditors appeal.

<p>1. Trial. — Special Findings. — Conclusions of Law. — Exceptions.— Time for Talcing. — Exceptions to the conclusions of law must be taken at the time the special findings are filed, and before any other steps are taken; and it makes no difference if another motion is pending at the time, the provision of the code (§656 Burns 1908, §626 R. S. 1881) as to the time of taking such exception being mandatory, p. 399.</p> <p>2. Trial. — Special Findings. — Motions for Additional. — Motions for additional special findings are not authorized, the want of a finding being construed as a finding against the party having the burden of proof upon the omitted facts, p. 400.</p> <p>3. Trial. — Special Findings. — Venire de Novo. — Neio Trial. — Where special findings are not so defective that a judgment cannot be rendered thereon, a motion for a venire de novo should be overruled, a motion for a new trial being the proper remedy, p. 400.</p> <p>4. New Trial. — Motion for. — Time for Filing. — A motion for a new trial should ordinarily be filed at the term during which the decision is rendered (§587 Burns 1908, §561 R. S. 1881). p.400.</p> <p>5. Trial. — Special Findings. — Motions for Judgment Upon. — A motion for a judgment upon the special findings presents no question, p. 401.</p> <p>6. Injunction. — Highways.—Closing of. — Evidence.—A suit to enjoin the use of an alleged private right of way must fail where the proof shows the way to be public, p. 401.</p>

<p>1. Principal and Surety. — Married, Woman. — Notes.—A contract of suretyship entered into by a married woman is void. p. 403.</p> <p>2. Contracts. — Void.—Return of Property Received. — Where a married woman executed a contract of assignment of certain property as a security for her husband, it is not necessary for her to return anything in order to maintain an action to recover the property so assigned, p. 403.</p> <p>3. Replevin. — Demand.—Unlawful Detention. — A demand made by a married woman for her property assigned as a security for her husband’s debt, renders the defendant’s further detention thereof unlawful, p. 404.</p> <p>4. Replevin. — Right of. — Shares of Stock. — Replevin lies to recover shares of bank stock unlawfully detained, p. 404.</p> <p>5. Trial. — Directing Verdict. — Where there is evidence that would support a verdict for the plaintiff, it is erroneous to direct a verdict for the defendant, p. 404.</p>

From Clark Circuit Court; Harry C. Montgomery, Judge. Suit by Clara Copeland and another against William H. Bruning and another, as trustees under the will of John F. Bruning, deceased. From a judgment for defendants, plaintiffs appeal.

<p>From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Action by George W. Cutsinger against Julius W. Pinnell and another. From a judgment on a verdict for plaintiff for $4,000, defendants appeal.</p>

<p>1. Deeds. — Acceptance.—Dedication.—Use.—The execution and recording of a deed conveying certain land to a city “for the use of a street, wharf or highway to be left open for the benefit of the public generally’’ sufficiently dedicate such land to the use of the public, and the taking possession thereof and continued use of same constitute an acceptance by the city. p. 427.</p> <p>2. Deeds. — Streets.—Use of, for Parks. — Abandonment.—A city’s use of land dedicated to it for “street, wharf or highway” purposes, partly for street and partly for park purposes, does not constitute an abandonment of the use to which the land was dedicated. p. 428.</p> <p>8. Municipal Corporations. — Lease of Land Dedicated for Streets. —A city has no power to lease, to a private company, lands dedicated to it for highway purposes, p. 428.</p> <p>4. Highways.— Ohio River.— Riparian Rights.— Wharves.— The Ohio river is a public highway; and boatmen may use any parts thereof that are navigable, but may not use the banks except in cases of emergency, without the consent of the owners, unless the banks are used as a public landing, p. 429.</p>

<p>From Kosciusko Circuit Court; Lemuel W. Royse, Judge.</p> <p>Action by John B. Remm against Edward Landon. From the judgment rendered, plaintiff appeals.</p>

From Laporte Superior Court; Charles H. Truesdell, Special Judge. Action by August Ambre against the South Shore Gas and Electric Company and another. From a judgment on a verdict for the plaintiff for $4,750 against such electric company, it appeals.

<p>1. Appeal. — Dismissal.— Opinion Upon.— Courts.— The Appellate Court may, in its discretion, dismiss an appeal without submitting a written opinion, the motion to dismiss constituting notice of the grounds for such dismissal, p. 442.</p> <p>2. Appeal. — Transcript.—Error.—An appellant, to be entitled to a reversal, must present a transcript showing an error, the presumption being that the trial court’s action and decision were correct, p. 442.</p> <p>3. Appeal. — Assignments of Errors. — Transcript.—An appeal will be dismissed where the assignment of errors raises no question presented by the record, p. 443.</p> <p>4. Appeal.— Transcript.— Cleric’s Certificate.— Where the clerk’s certificate fails to show that the transcript contains a full, true and complete copy of the proceedings in the ease, and it is impossible to tell whether the ruling complained of applied to the motion complained of, or to some other motion, no question is presented thereon for decision, p. 443.</p> <p>5. Appeal. — Dismissal.—New Appeal. — Where a motion to dismiss an appeal is sustained, and the appellant has time within which to correct the defects in the transcript and to file another appeal, and he fails to do so, he may not complain on a petition for a rehearing- that his right of appeal has been denied, p. 443.</p>

<p>From Marion Circuit Court (15,314) ; Henry Clay Allen, Judge.</p> <p>Suit by Livingston D. Foudray against John S. Foudray and others. From the decree entered, the plaintiff and others appeal.</p>

<p>1. Pleading. — Answer.—Initial Attack on Appeal. — Waiver.—Motion in Arrest. — The sufficiency of an answer cannot be questioned for want of facts for the first time on appeal, nor will a motion in arrest of judgment in the trial court question the sufficiency thereof, failure to demur constituting a waiver of the right to question same. p. 451.</p> <p>2. Pleading. — Answer.—Argumentative Denial. — Surplusage.—In a suit to restrain a city from collecting alleged excessive water rentals indicated by a defective water meter, an answer, there being a general denial, that a leak in the plaintiff’s plumbing-caused the excessive flow and alleging that the meter was correct, is sufficient, even if unnecessary, p. 451.</p> <p>3. Appeal. — Injunction.—Dissolving Temporary Restraining Order. —No appeal lies from an order dissolving a temporary restraining order, p. 451.</p> <p>4. Appeal. — Filial Judgment. — Transcript.—Where the transcript shows a submission of the cause for trial and states that the court “finds for the defendants, and that the restraining order, heretofore made and entered in this cause, be and the same is hereby dissolved and set aside,” the record further showing the overruling of motions for a new trial and in arrest of judgment, and a judgment for costs, an appeal therefrom will be considered as having been taken from a final judgment, p. 452.</p> <p>5. Appeal. — Evidence Not in Record. — Presumptions.—The judgment, in the absence of the evidence, is presumed to be sustained thereby, p. 452.</p>

From Probate Court of Marion County; Merle N. A. Walker, Judge. Claim by Mary J. Dougherty against William Featherngill and others, as administrators of the estate of Adam S, Dougherty, deceased. From a judgment for plaintiff, defendants appeal.

From Superior Court of Madison County; Cassius M. Greenlee, Judge. Action by James B. Swing, as trustee for the creditors and policy holders of the Union Mutual Fire Insurance Company, of Cincinnati, Ohio, against James Wellington and another. From a judgment for defendants, plaintiff appeals.

<p>From Laporte Circuit Court; Walter A. Funk, Special Judge.</p> <p>Action by Benjamin E. Bear against Joseph O. Reese. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Trial. — Instructions.—How Considered. — Instructions in a case are considered as a whole, and if they fairly state the law, prejudicial error is not shown, p. 470.</p> <p>2. Trial. — Instructions.—Interurban Railroads. — Alighting from.— An instruction that the plaintiff must prove (1) that she was injured, and (2) that the injury was proximately caused by the defendant interurban railroad company’s negligent starting of its car with a jerk, and that it was defendant’s duty to stop its car a sufficient length of time for the plaintiff, considering her age, sex and physical strength, to alight safely, and to provide facilities enabling the plaintiff to alight safely, does not make defendant an insurer of plaintiff’s safety, where other instructions explained the legal effects of contributory negligence and pure accidents and another stated that defendant was not an insurer, p. 470.</p> <p>3. Trial.-— Instructions.— Construction.— Harmony. — Separate instructions are required to be given on the various branches of the case on trial, and, on appeal, such instructions will be considered as harmonious where they reasonably may be so construed, p. 471.</p> <p>4. Trial.— Instructions.— Interurban Railroads. — Passengers.—An instruction that an interurban railroad company is bound to use the highest degree of care for the safety of its passengers, provided they are not guilty of contributory negligence, is not misleading, where other instructions said that defendant was not an insurer, and that the highest practicable care consistent with the practicable operation of the road was all that was required, p. 471.</p> <p>5. Trial. — Instructions.—Interurban Railroads.- — Alighting From.— Assuming Fads. — An instruction that if the plaintiff knew that the defendant interurban railroad company’s car had stopped for her to alight therefrom, she had a right to assume that it would not be started until she had a reasonable time in which to alight, does not assume that defendant put the plaintiff into a position of danger, p. 473.</p> <p>6. Interurban Railroads. — Passengers.—Performance of Duty. — Reliance Upon. — Passengers of an interurban railroad company, who are without fault, may rely upon the company’s performance of its duty. p. 473.</p> <p>7. Trial. — Instructions.—Damages.—Considering All the Evidence. —An instruction that the jury in estimating the damages, besides certain specified things, might consider “every particular and phase of the injury proved,” does not permit the jury to consider evidence, such as the plaintiff’s religious affiliation, which has nothing to do with the damages, p. 474.</p> <p>8. Trial. — Instructions Requested. Covered by- Those Gwen. — It is proper to refuse instructions requested that are already covered by those given, p. 475.</p> <p>9. Evidence. — Privileged.—Declarations of Patient to Physician.— Witnesses. — A plaintiff, in an action for damages, cannot be required to divulge her declarations to her physician, made in the presence of a third person, as to how the injury occurred, although such third person, unless her presence is necessary to enable the patient and physician to communicate, is pot privileged from testifying thereto, p. 475.</p> <p>10. Appeal. — Evidence.—Presenting Error. — Questions on the exclusion of evidence, to be available, must be clearly shown by the record, p. 476.</p> <p>11. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p.476.</p>

<p>From Shelby Circuit Court; Will M. Sparks, Judge.</p> <p>Action by Lee W. Gray against Warren Good and others, as trustees of the Second Baptist Church of Shelbyville, Indiana. From a judgment for defendants, plaintiff appeals.</p>

<p>From Harrison Circuit Court; Christopher W. Cook, Judge.</p> <p>Action by Clara A. Worrell against the Louisville and Southern Indiana Traction Company. From a judgment for plaintiff, defendant appeals.</p>

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Action by James W. Ramsey and others, as trustees of the Washington congregation of the Cumberland Presbyterian church in Daviess County, Indiana, against Joseph P. Hicks, and others. From a judgment for defendants, plaintiffs appeal.

<p>1. Fraud.— Remedies.— Defenses.— Election. — Rescission.— The purchaser of property induced to purchase through fraud may retain the property and set up such fraud as a defense, or he may rescind and thus defeat the action for the purchase price, p. 528.</p> <p>2. Pleading. — Answer.—Rescission.—Fraud.—An answer of rescission for fraud must show a return of the property, or an offer to return, or allege that it was of no value, p. 528.</p> <p>3. Pleading. — Answer.—Fraud.—Damages.—An answer of fraud must show that the defendant was damaged thereby, p. 528.</p> <p>4. Pleading. — Answer.—Conditional Sale. — An answer, in an action for the purchase price of a piano, that such piano was sold subject to certain warranties, and that if such warranties were false the defendant should hold such piano at the plaintiff’s disposal, is sufficient, where it alleges that such warranties were false, and that the defendant holds the piano at the plaintiff’s disposal, p. 528.</p> <p>5. Pleading.— Cross-Complaint.— Fraud.— Damages.— Value of Property. — A cross-complaint for damages for breach of warranty in the sale of a piano, which sets out only the contract price of the piano, and not its actual value, is insufficient, p. 528.</p> <p>6. Appeal. — Doubtful Result. — Errors of the trial court cannot be held harmless, where the result is not clearly right, p. 529.</p>

<p>1. Appeal. — From Juvenile Courts. — An appeal lies to the Appellate Court, from any judgment of a juvenile court, except one founded upon a plea of guilty, p. 531.</p> <p>2. Appeal. — From Juvenile Courts. — Affidavits.—Sufficiency.—The sufficiency of an affidavit charging defendant with contributing to the delinquency of a child cannot be questioned on appeal, p. 533.</p> <p>3. Courts.— Juvenile. — Misdemeanors.— Jurisdiction.— Juvenile courts have the power, in aid of their other powers, to punish in misdemeanor cases, pp. 533, 534.</p> <p>4. Judgment. — Two, for Same Cause. — Failure to Satisfy. — Estoppel to Question. — A defendant ordered, by a superior court that granted to his wife a divorce, to pay $1.50 per week for the support of his infant child, and who was also ordered by the juvenile court to pay a like amount for the same purpose, is estopped to question the right to impose two judgments for the same cause so long as he refuses to pay either, pp. 533, 535.</p> <p>5. Parent and Child. — Support.—It is the duty of an able-bodied father to support his infant child, p. 533.</p> <p>6. Parent and Child. — Support.—Custody.—Divorce.—The fact that the court granting to a wife a divorce from her husband takes from him the custody of their infant child, does not relieve him from his duty to support such child, p. 534.</p> <p>7. Courts. — Juvenile.—Suspending Judgment. — The juvenile courts have the power to suspend sentence in. cases of misdemeanors tried before them. p. 535.</p>

From Vigo Circuit Court; James E. Piety, Judge. Petition by the International Building and Loan Association against Roscoe Stark, as administrator de bonis non of the estate of Sarah Welch, deceased. From a judgment for defendant, plaintiff appeals.

<p>1. Taxation.— Railroads.— Omitted Property.— Auditors.— Treasurers. — Duties of. — Neither the county auditor nor the county treasurer has any right to place on the tax duplicates property belonging to a railroad company, the State Board of Tax Commissioners alone having power to assess railroad companies, p. 541.</p> <p>2. Taxation. — Railroads.—Assessment of, in Wrong Township.— Readjustment. — Where a railroad company’s property has all been assessed, but part of it was assessed and paid in the wrong township, such company cannot be made to pay to the proper township, p. 542.</p> <p>3. Injunction.— Taxation.— Railroads. — ■Omitted Property. — -An assessment for taxation, by a county auditor and a county treasurer, of property belonging to a railroad company, can be enjoined. p. 543.</p> <p>4. Taxation. — Illegal Assessment. — Payment to Township. — Remedy. — Where a railroad company is assessed and pays taxes in the 'wrong township, and subsequently is assessed for such property and pays such • assessment in the right township, such company cannot recover the money paid to the wrong township, p. 543.</p>

<p>1. Judgment.— Setting Aside.— Excusable Neglect.— Denial of Process. — The judgment defendant, in a suit to set aside a judgment on the ground of excusable neglect, may contradict the sheriff’s return showing process, for the purpose of showing an excuse, hut not to defeat the court’s jurisdiction, p. 548.</p> <p>2. Process. — Return.—Corporations.—Jurisdiction.—A sheriff’s return showing service upon the secretary of the defendant corporation, “he being the highest officer of said company found within my bailiwick,” confers jurisdiction upon the court, p. 549.</p> <p>3. Judgment. — Setting Aside. — Ignorance of Corporation President. — Weighing Evidence.- — Appeal.—Where a defendant corporation seeks to sot aside a judgment because the president of such corporation was not served with process and knew nothing of the suit until after judgment, and there is evidence that he did know thereof, the trial court’s refusal to set aside such judgment will not be disturbed on appeal, p. 549.</p>

<p>1. Pleading. — Complaint.—Master and Servant. — Defective Ricks of Sacks. — Assumption of Risk. — Notice.—A complaint alleging that defendant ordered plaintiff to work near a rick of sacks, eight feet high and piled one be the top of another instead of with broken joints, that plaintiff had no knowledge thereof, and defendant did have knowledge thereof, and that the rick fell upon plaintiff, to his injury, states a cause of action, the plaintiff being held, as a matter of common observation, to knowledge of the height of the rick but not to knowledge of the manner of idling the sacks. p- 552.</p> <p>2. Master and Servant. — Fellow Servants. — Assumption of Risk. — Defectivo Ricks of Sacks. — A plaintiff who checks out sacks from a car while other servants, under the direction of a foreman, rick such sacks defectively in a wareroom, and such plaintiff, without knowledge of such defect, and while helping to remove such sacks for use in defendant’s factory, is injured by the fall of such defective rick, assumes the risk thereof, and the company Is not liable whether such foreman was, or was not, a vice-principal, the proper ricking of the sacks not being a duty of the master. Roby, J., dissenting, pp. 553, 557.</p> <p>3. Master and Servant.'— Dangerous Place.— Knowledge.— A master who knowingly orders a servant to work in an unsafe place is ordinarily liable, regardless of how the placo came to be unsafe, p. 556.</p> <p>4. Master and Servant. — Dangerous Place. — Care Required.— Where danger inheres in the place furnished for the servants in which to work, or where the danger wheres in the things furnished to the servants with which to work, the master is required to exercise ordinary care to detect such danger, p. 556.</p> <p>5. Master and Servant. — Dangerous Place Caused by Felloio Servants. — Notice.—Where the master furnishes a proper place and proper tools, but the servants improperly do their work, causing injury to one of them, the master is under no duty to inspect for such defect, nor warn thereof, and is not liable therefor, in the absence of actual notice, p. 557.</p> <p>6. Master and Servant. — Employers’ Liability Act. — Manufacturing Corporation. — Section one of the employers’ liability act (Acts 1893, p. 294, §8017 Burns 1908) has no application to a manufacturing corporation, p. 558.</p>

<p>From Jay Circuit Court; John F. LaFollette, Judge.</p> <p>Action by Grant Maitlen against Ruth. A. Maitlen. From a judgment for plaintiff, defendant appeals.</p>

From Allen Circuit Court; E. O’Rourke, Judge. Final report by Aaron M. Keener, as executor of the last will of John Thimlar, deceased, to which Ira I. Grubb, as guardian of Isabelle Thimlar, a person of unsound mind, excepts. From a judgment for the exceptor, the executor appeals.

<p>From Starke Circuit Court; John C. Nye, Judge.</p> <p>Cross-complaint by John H. Hopp against William Luken and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Setting Out Record of Alleged Errors. — Appellants’ brief should set out the record showing the alleged erroneous rulings, and failing therein, it is discretionary with the court whether it will consider such errors, p. 571.</p> <p>2. Pleading. — Complaint.—Sustaining Demurrer to Paragraph of. —Facts Provable Under Another. — Where the facts provable under a paragraph of complaint are provable under another, the sustaining of a demurrer to the former is harmless, p. 572.</p> <p>3. Evidence. — Confidential Communications. — Attorney and Client. —Executing Deeds. — Where the parties to a deed secure an attorney merely to prepare same, such attorney may testify as to conversations at the time, the evidence failing to show that such attorney was counsel for, or advised with, the parties, or that he was in their employ as an attorney, p. 572.</p> <p>4. Evidence.— Insanity.— Cross-Examination.— Outside Facts.— Deeds. — Where a witness, after reciting certain conversations and facts, expressed his opinion that a certain grantor was of sound mind, it is not erroneous for the court to refuse to permit such witness, on cross-examination, to express an opinion, where the facts assumed in the question were not testified to by such witness. p. 573.</p> <p>5. Evidence. — Exclusion of. — Offer to Prove. — Appeal.—Where a question is objected to, and no offer is made showing what the answer thereto would be, the sustaining of the objection presents no question on appeal, this court being unable to say whether the answer would have been beneficial or detrimental to the complaining party, p. 573.</p>

<p>From Scott Circuit Court; Seba A. Barnes, Special Judge.</p> <p>Suit by Alice Warner against William L. Jennings. From a decree for defendant, plaintiff appeals.</p>

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Petition by the People’s National Bank of Lawrenceburg, Indiana, against the Board of Finance of the School City of Aurora. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Briefs.—Rules. —A failure of the appellant to comply with the Appellate Court rules in the preparation of his brief constitutes a proper ground for dismissal of the appeal.</p>

<p>From Sullivan Circuit Court; Orion B. Harris, Judge.</p> <p>Action by Frank B. Mahan against the Hymera Coal Mining Company. From a judgment for plaintiff, defendant appeals.</p>

From Superior Court of Marion County (71,286); James M. Leathers, Judge. Suit by Collie E. Kinney, as trustee in bankruptcy of the estate of John Martin, against Martha E. Heuring and others. From the decree entered, plaintiff appeals.

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by David M. Kaufman against Jesse S. Gordon. From a judgment on a verdict for plaintiff for $400, defendant appeals.</p>

<p>From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by William S. Van Natta and another against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal. — Weighing Evidence.— Boundaries.— Ejectment. — Evidence showing that the plaintiffs’ remote grantor and the defendant secured a surveyor to ascertain the boundary line between their lands, and (hat tiny were content therewith and constructed a fence thereon, each building one-half thereof, sustains a finding of the trial court that the boundary line was agreed upon. p. 617.</p> <p>2.. Appeal. — Weighing Evidence. — Where there is any evidence tending to support the finding of the trial judge, such finding will be sustained on appeal, p. 617.</p> <p>3. Boundaries. — Estoppel.—Contracts.—Where adjoining proprietors agree upon a boundary line and jointly erect a partition fence thereon, they and their grantees are estopped from repudiating or denying such agreement, pp. 617, 618.</p> <p>4. Ejectment. — Title.—Burden of Proof.- — In an action in ejectment the burden is upon the plaintiffs to establish their own title, and they cannot recover by merely showing the weakness of their adversary’s title, p. 618.</p> <p>5. Trial. — Special Findings. — Omissions.—Ejectment.—Where the special findings in an action in ejectment omit facts material to the plaintiff’s case, it will be considered that such facts were not proved, and the plaintiffs cannot recover, p. 619.</p> <p>6. Ejectment. — Demand.—Necessity for.- — Where plaintiffs’ remote grantor sold land to the defendant and put him in possession thereof, the plaintiffs, to recover a portion thereof, must make a demand therefor before the commencement of an action in ejectment, p. 619.</p> <p>7. Ejectment. — Right of Possession. — Ejectment lies only where the plaintiff has a present right to the possession of the land, p. 619.</p>

<p>From Boone Circuit Court; Samuel R. Artman, Judge.</p> <p>Action by James B. Johns against the Town of Sheridan. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—Telegraphs and Telephones. — Failure to Light Exchanges. — Notice.—A complaint by a patron of a telephone exchange for damages sustained in falling in such exchange because of the darkness, need not negative knowledge of such darkness, p. 626.</p> <p>2. Pleading. — Complaint.—Telephones.—Negligently “Maintaining” Stairway. — Recitals.—A complaint alleging that defendant telephone company negligently “maintained” an unlighted stairway, by reason whereof plaintiff was injured, imports an affirmative act, and that defendant knew thereof, and is not a recital, p. 627.</p> <p>3. Trial. — Interrogatories.— When Controlling.— Telephones.— Failure to Light Exchange. — Contributory Negligence. — Answers to interrogatories showing that defendant telephone company maintained its p.ublic office on the second floor of a building, that neither the stairway nor hallway was lighted, that plaintiff, a patron, knew thereof, and that while attempting to descend from such exchange and after trying to locate the head of the stairway, he fell, to his damage, do not show contributory negligence, nor overthrow a verdict for the plaintiff, p. 627.</p> <p>4. Trial. — Verdict.—General.-—Interrogatories.—Answers to interrogatories to the jury overthrow a general verdict, only when in irreconcilable conflict therewith, p. 628.</p> <p>5. Appeal. — -Instructions.— Failure to File.— Trial.— Appellant’s failure to show affirmatively by the record that the questioned instructions were filed in the trial court precludes the raising of any question thereon, on appeal, p. 628.</p> <p>6. Telegraphs and Telephones. — Safe Place for Patrons. — Telephone companies are required to provide reasonably safe places for the use of their patrons in telephoning, p. 628.</p>

<p>1. Townships. — Advisory Boards. — Powers.—Statutes.—Township advisory boards possess and can exercise only statutory powers, p. 631.</p> <p>2. Statutes. — Enforcement.—The courts should enforce valid statutes as written, p. 632.</p> <p>3. Townships. — Advisory Boards. — Special Meetings. — Powers.— Township advisory boards, at special meetings, may, by unanimous consent, consider expenditures not included in the existing estimates and levy, and, by a majority vote, may appropriate money for such expenditures, p. 632.</p> <p>4. Words and Phrases. — “Whether.” — Statutes. — The word “whether,” as used in §9595 Burns 1908, Acts 1901, p. 415, §1, providing that township advisory boards may determine “whether an emergency exists for the expenditure of any sum not included in the existing estimates and levy,” imports a possible negative as well as an affirmative determination, p. 632.</p> <p>5. Townships. — Advisory Boards. — Regular Sessions. — Powers.— At the regular sessions of the township advisory boards, they may transact business without the unanimous consent of the members, a majority being sufficient. Rabb, C. J., and Hadley, J., dissenting, pp. 633, 634.</p> <p>6. Schools. — Buildings.— Bonds.— Statutes. — Construction.—The township advisory board statutes were enacted to prevent fraud, and not to curtail the perfecting of the schools; and the courts will construe the statutes so as to carry out such purposes and to settle the confidence of the public in the value of securities issued for school buildings, p. 633.</p>

From White Circuit Court; James P. Wason, Judge. Action by William J. Reed, as administrator of the estate of John Reed, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $3,000, defendant appeals.

<p>From Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by Terry O’Donnell, by Ms next friend, against the Holliday & Wyon Company. From a judgment on a verdict for plaintiff for $2,500, defendant appeals.</p>

<p>Master and Servant. — Negligence.—Ordinary Work. — An experienced stove mounter who, under orders from his foreman to mount a certain number of stoves, and who, in pursuance thereof, attempted to chisel off projections from a grate preparatory to fitting it into a stove, whereby his eye was destroyed by a flying particle, cannot recover damages therefor.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Action by The State of Indiana, on the relation of the Board of Commissioners of the County of Hamilton, against Horace W. Carey, and others. From a judgment for defendants, plaintiff appeals.

<p>From Henry Circuit Court; John M. Morris, Judge.</p> <p>Action by William Brewer against the Town of Shirley. From a judgment for the plaintiff, defendant appeals.</p>

<p>1. Appeal. — Directing Verdict. — Evidence.—When All Required.— Yew Trial. — Where appellant assigns error upon the overruling of his motion for a new trial, the grounds thereof being (1) that the evidence was insufficient, (2) that the verdict was contrary to law, and (3) that the court wrongfully directed a verdict, the complete evidence is necessary, such third ground being substantially the same as the first and second, p. 665.</p> <p>2. Appeal. — Requisites.—Appellant, to be successful, must present a record affirmatively showing error, p. 667.</p>

<p>From Johnson Circuit Court; Fred R. Owens, Special Judge.</p> <p>Action by James R. Givens against James T. Polk and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Pleading. — Complaint.—Intoxicating Liquors. — Unlawful Sales. —Damages.—A complaint alleging that defendant saloon-keepers sold intoxicating liquor to plaintiff’s husband, “while her husband was in an intoxicated condition, and known to be in said intoxicated condition by said defendants,” and that while in such condition he attempted to pass up a flight of stairs and because of such intoxication he fell, sustaining fatal injuries, to her damage, sufficiently alleges that decedent was intoxicated when the sale was made. pp. 676, 677.</p> <p>2. Intoxicating Liquors.— Unlawful Sales.— Statutes.— Section fifteen of the act of 1875 (Acts 1875 [s. s.], p. 55), providing that any person who shall sell liquor to an intoxicated person shall be guilty of a misdemeanor, is in force so far as necessary to support a civil action under §8355 Burns 1908, §5323 R. S. 1881, providing that any person who unlawfully sells liquor shall be liable in damages therefor to any person sustaining damages because thereof, p. 676.</p> <p>3. Intoxicating Liquors. — Unlawful Sales. — Damages.—Elements. —To a recovery for damages for unlawful sales of liquor two elements must concur, (1) intoxication resulting from such sales, and (2) direct or remote loss occasioned thereby, p. 677.</p> <p>4. Intoxicating Liquors. — Unlawful Sales. — Intoxication.—Knowledge. — Complaint.—Evidence.—In order to recover against a saloon-keeper for an unlawful sale of liquor to an intoxicated person it is not necessary to allege nor prove that such saloon-keeper knew that such person was intoxicated at the time of the sale. p. 677.</p> <p>5. Trial. — Instructions.—Intoxicating Liquors. — Contributory negligence. — An instruction that if the wife furnished liquor to the husband and thereby contributed to his appetite for liquor, she would not be entitled to recover for his subsequent death from intoxication, even though defendant saloon-keepers unlawfully sold liquor to him, is properly refused, p. 680.</p> <p>6. Trial. — Instructions.—Duplication.—It is not harmful to refuse an instruction already covered by others given, p. 080.</p> <p>7. Trial.— Instructions.— Intoxicating Liquors.— notice Hot to Sell. — Revocation.—The refusal to give an instruction that if the wife, after notifying defendant saloon-keepers not to sell to her husband any more liquor, told them to let him have it when he was not drunk, and when he was sobering up from a spree, and that the defendant made sales only as authorized, the wife could not recover because thereof, is not reversible, the evidence showing that the wife authorized only the sale of beer, and that only when he was working and not drinking, p. 080.</p> <p>8. Evidence. — Declarations.—Cause of Drinking. — Intoxicating Liquors. — Declarations of a decedent as to the cause of his drinking-are not admissible in an action for damages by his widow against the saloon-keepers who unlawfully sold to him the liquor which caused his death, p. 080.</p> <p>9. Evidence. — Declarations.—Of Third Persons. — Res Inter Alios Acta. — In an action by a widow against saloon-keepers for unlawfully selling liquor to her husband causing his death, declarations by the person serving a subpoena upon a witness for the plaintiff made to such witness, are inadmissible, p. 680.</p> <p>10. Evidence.— Entering Saloon. — Cross-Examination. — Intoxicating Liquors. — In an action for damages by a widow against saloon-keepers who unlawfully sold liquors to her husband causing his death, it is proper on cross-examination of defendants’ witness to inquire when such witness saw decedent go into defendants’ saloon, p. 680.</p>

<p>1. Trial.— Interrogatories.- — -Contracts.— Attorney and Client. — A general verdict for plaintiff in an action on the quantum meruit for services rendered as an attorney, is not controlled by answers to interrogatories which fail to show that the contract found therein embraced the particular service sued for. p.682.</p> <p>2. Attorney and Client. — Contracts.—Abandonment of. — Quantum Meruit. — Evidence.—Where there is evidence tending to show that a client employed an attorney to prosecute a suit to quiet title, the representation being that the defense would be merely formal, and upon a hearing the defendant made a real defense involving seriously contested litigation, the client instructing the attorney to proceed with the case and “fight it to a finish,” and the client paid to the attorney, on account, more than the contract price, a verdict for a still larger sum is supported, the evidence justifying an inference of an abandonment of the contract. Rabb, J., dissenting, pp. 682, 685,693.</p> <p>3. Attorney and Client.- — Contracts.—An attorney, like other persons, is bound by his contracts, p. 685.</p> <p>4. Trial. — Question for Jury. — Contracts.—Whether a client contracted with an attorney for the prosecution of a merely formal suit, or for a contested litigation, is a question of fact for the jury. p. 687.</p> <p>5. Contracts. — Abrogation.—Formalities.—No formality is necessary for the abrogation of an ordinary verbal contract, p. 694.</p>

<p>1. Contracts.— Oral.— Sharing Proceeds of Suit. — Statute of Frauds. — An oral contract between two creditors that they would-separately sue their debtor, share expenses equally, and share equally in the money collected, is not within the statute of frauds, p. 690.</p> <p>2. Contracts. — Champerty.—A contract between two creditors that they would separately sue their debtor, share expenses equally, and share equally in the amounts realized, is not champertous. p. 696.</p> <p>3. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 098.</p> <p>4. Appeal. — Instructions.—When Part of Record. — Under §561 Burns 1908, Acts 1907, p. 052, providing that “all instructions * * * shall be filed with the clerk of the court at the close of the instructions of the jury,” instructions cannot be considered as a part of the record, unless it appears by a proper record entry that such instructions were filed with the clerk at the close of the instructions. Hammond, etc., Electric R. Co. v. Antonia, 41 Ind. App. 335, overruled, p. 698.</p>

<p>1. Liens. — Waiver.—Surrender of Possession. — Agents.—The surrender of possession of goods, by an agent, with no intention of preserving his lien, constitutes a waiver of such lien, and defeats such agent’s claim therefor, p. 703.</p> <p>2. Pleading. — Answer.— Reply.— Replevin.— Liens. — Waiver.— An answer, in an action in replevin, showing that the defendant agent retained a common-law lien on the goods in question, is sufficient without negativing a waiver of such lien by a surrender of possession, such waiver constituting a proper matter for reply, p. 703.</p> <p>3. Liens. — Continuance after Surrender of Possession. — Agents.— As between a principal and his agent, the surrender of possession by the agent, no intention to relinquish his lien existing, does not extinguish his lien. p. 703.</p> <p>4. Pleading. — Answer.—Burden of Proof.— Liens. — Agents.— An answer, in an action in replevin, that the defendant was plaintiff’s agent for the purchase of the wool in question; that defendant performed his part of the contract and that he retains possession only for the purpose of securing his lien, is sufficient, such answer being in denial of plaintiff’s ownership, and casting the burden of proving ownership upon the plaintiff, p. 703.</p> <p>5. Trial. — Interrogatories.—Inferences Against Verdict. — Liens.— Surrender of Possession — An answer to an interrogatory to the jury showing the contract between an agent and his principal to be that the agent should purchase wool, that the principal should furnish the necessary money for payment, and sacks for storing, and that for “storing, sacking and delivering the same on board the cars as aforesaid,” the agent should receive one cent per pound for the wool purchased, cannot be construed with an answer to another interrogatory making it read that the agent should deliver the wool “to plaintiff on board the cars at the depot for shipment,” especially where in the latter answer the jury expressly denied the execution of the contract as thus contended for. p. 705.</p> <p>6. Trial.' — Interrogatories.—Inferences.—Inferences will not be indulged in support of answers to interrogatories as against a general verdict, p. 706.</p> <p>7. Trial. — Interrogatories.— Liens.— Agents.— Delivery to Principal. — Answers to interrogatories that an agent contracted to deliver wool to his principal on board the cars for shipment, are not in irreconcilable conflict "with a general verdict for the agent, where his answer averred that he retained a lien for his services upon such wool so delivered, p. 706.</p> <p>8. Principal and Agent. — Commissions.-—-Liens For. — Contracts.— Completion.- — Where the time for payment of an agent’s commissions is not specified, they are due upon the completion of the service, p. 706.</p> <p>9. Sales.- — Passage of Title. — Implied Conditions. — The vendor’s delivery of the goods ordinarily passes title to the property, but an implied condition thereof is the immediate payment of the price by the purchaser, and, failing therein, the vendor may reclaim his property, p. 706.</p> <p>10. Principal and Agent. — Liens.-—Delivery.—An agent who purchases wool and delivers it on board ears for his principal, has the right to retain possession thereof until his commissions are paid. p. 707.</p> <p>11. Liens. — Abrogation.—Contracts.—A common law lien is destroyed by a contract between the parties inconsistent therewith, p. 707.</p> <p>12. Liens. — Relinquishment.—Contracts.—A contract to pay commissions at a time subsequent to the delivery of the goods, is a relinquishment of the common-law lien for such, commissions, p. 708.</p> <p>13. Liens. — Conversion.—Demand.—A lienor’s claim of absolute ownership when demand is made by the owner constitutes a conversion, but his claim of right of possession until his lien is paid is proper, p. 708.</p> <p>14. Appeal. — Instructions.— How Questioned.— New Trial.— Instructions not included in the motion for a new trial cannot be questioned on appeal, p. 709.</p> <p>15. Trial. — Instructions.—When Shown Harmless try Interrogatories. — Agents.—-Exceeding Powers. — An instruction that an agent is entitled to possession of goods bought until his principal pays to him the purchase price and his commissions, though such agent exceeded his authority, is harmless, where answers to interrogatories show that he did not exceed his authority, p. 709.</p> <p>16. Principal and Agent. — Ratification.—A principal who with full knowledge of his agent’s acts, approves them, thereby ratifies such acts, and they are as binding as though done with his authority in the first instance; and such ratification cannot be recalled. p. 710.</p> <p>17. Principal and Agent. — Exceeding Authority. — A principal cannot be compelled to accept from an agent goods purchased in excess of his authority, p. 711.</p> <p>IS. Trial. — Instructions.—How Considered. — Reversible error is not shown by the giving of instructions, where such instructions, as a whole, fairly present the case to the jury. p. 711.</p> <p>19. Evidence. — Declarations.—Res Cesta. — Where an agent’s acts in loading wool upon cars are admissible in evidence, declarations made as a part thereof, and in explanation thereof, are admissible as a part of the res gesta, p. 711.</p> <p>20. Evidence. — Compromise.—Letters written in an effort to compromise, which contain no independent facts bearing on the case, are inadmissible in evidence, p. 712.</p>

<p>From Jackson Circuit Court; Joseph H. Shea, Judge.</p> <p>Action by Thomas S. Graves against Tunis Garard and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Action.- — Joint and, Several. — Dismissal.—Election.—Bonds.— Where an action was filed against contractors and their sureties on their joint and several bond for the value of materials furnished, and the plaintiff, after a judgment on demurrer was rendered in favor of such sureties, dismissed as to such contractors, such dismissal does not operate as a discontinuance against such sureties, p. 719.</p> <p>2. Appeal. — Parties.—Dismissal.—Parties below against whom the action was dismissed are not necessary parties on appeal, p. 719.</p> <p>3. Pleading. — Title.—Name of Court — A complaint whose caption reads: “State of Indiana, County of Vigo. In the Superior Court of Vigo County,” sufficiently shows the name of the court, p. 719.</p> <p>4. Transcript. — Certificate.—Clerics of Superior Courts. — A certificate to a transcript, signed by a person designated as clerk of the Vigo Circuit Court, and ex-officio clerk of the Superior Court of Vigo County, is sufficient, the clerk of the circuit court being ex-officio clerk of such superior court, p. 719.</p> <p>5. Appeal. — Transcript.—Mistake in Designating Proper Trial Court. — A transcript reciting that there was “filed in the office of the clerk of the Vigo Circuit Court” the following complaint, where the whole record shows that the ease was in the Superior Court of Vigo County, is not defective, such mistake being merely a clerical error, p. 720.</p> <p>6. Appeal. — Assignments of Errors. — Sustaining Demurrer to “Complaint." — An assignment that the court erred'in sustaining appellees’ demurrer to the “complaint” raises no question, where they did not demur to the complaint as an entirety, p. 720.</p> <p>7. Appeal. — Briefs.-—Failure to Discuss Errors. — Where several alleged errors presenting the same question are discussed together in appellants’ brief, such errors are not waived, p. 720.</p> <p>8. Appeal.- — Joint Demurrers. — Exceptions.—A single exception taken to a ruling on a joint demurrer, is sufficient to present the correctness of the ruling as to each specification of such demurrer, p. 720.</p> <p>9. Bills and Notes. — Payment.—Prima Facie. — The acceptance of a negotiable note for a debt is, and the acceptance of a nonnegotiable note is not, a satisfaction of the debt, but such presumption is rebuttable, p. 720.</p> <p>10. Pleading. — Complaint.—Notes.—Payment.—A complaint alleging that the defendant contractors executed their note as an evidence of certain indebtedness, and not in payment thereof, and that it was so accexrted, shows that there was no payment of the debt. p. 720.</p> <p>11. Principal, and Surety. — Bonds. — Notes. — Liabilities. — The bondsmen for a contractor are not liable on a note executed by such contractor for material used, though they may be liable for the debt evidenced by such note. p. 721.</p>

<p>From Clay Circuit Court; Lewis F. Tilley, Special Judge.</p> <p>Action by George A. Knight and another against the Board of Commissioners of the County of Clay. From a judgment for plaintiffs, defendant appeals.</p>