Volume 51 — Indiana Appellate Court Reports

<p>Prom Vermillion Circuit Court; Gould G. Rheuby, Special Judge.</p> <p>Action by Paris IT. Larrance against Mark Lewis. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Insurance. — Mutual Company.- — By-laws.—Policy.—By-laws of a mutual insurance company that are not inconsistent with the provisions of the policy become a part of the contract of insurance and must be construed therewith, even though not referred to in the policy, p. 10.</p> <p>2. Insurance. — -Fire Insurance.— Mutual Company.— By-laivs.— Suspension of Policy. — A provision in the policy of a mutual fire insurance company that the company will “not pay any loss or damage on any dwelling house when vacant more than ten days,” is not inconsistent with a by-law suspending the policy where there is such vacation, and providing that the owner shall notify the secretary of the company of reoccupation in order to revive the policy, p. 10.</p> <p>3. Insurance. — Action on Policy. — Pleading By-laws. — An allegation in the answer of a mutual insurance company, that, at the túne the policy was issued to plaintiff, it delivered to plaintiff a-copy of the company’s by-laws, is a sufficient allegation that the by-laws were in force at the time the policy was issued, p. 11.</p> <p>4. Insurance.— Fire Insurance.— Mutual Company.— By-laws.— Suspension of Policy. — “Vacant.”—A house is vacant within the meaning of a by-law of a mutual fire insurance company suspending a policy where the building insured becomes vacant for more than ten days, when no one lives therein, although it contains articles of furniture which the last occupant failed to remove. p. 12.</p> <p>5. Insurance. — Fire lnsuram.ee. — Suspension of Policy. — Liability for Loss. — Cancellation.—Where a policy of fire insurance provided that the company reserved the right to cancel at any time after giving tlie insured five days’ notice, and the house covered by the policy was burned while the policy was suspended under a by-law providing for such suspension in case of vacancy for more than ten days, affirmative action was necessary on the com pany’s part to avoid the policy, although it had no knowledge of the vacancy until after the fire, and, having failed to cancel the policy and return the unearned premium after obtaining knowledge of such vacancy, its action must be construed as an election to hold the policy valid, and a recovery thereon may be had. p. 12.</p> <p>0. Pleading. — Reply to Bad Answer. — Where an answer is bad, a bad reply is sufficient, p. 13.</p> <p>7. Insurance. — Policies.—Conditions.—Avoidance of lAaViliiy.— To prevent liability under a policy, whether for breach of a condition precedent or of a condition subsequent, the company on learning of such breach must elect to avoid the policy and return all money or premiums paid for the time during which no risk . attached, p. 14.</p>

From Superior Court of Marion County (78,690); James M. Leathers,- Judge. Petition by Henry S. Leonard and another against William P. Anderson to set aside a judgment by default. From a judgment for petitioners, the defendant appeals.

Prom Clinton Circuit Court; Joseph Glaybaugh, Judge. Petition by Rado T. Shirley against Richard N. Grove and another to set aside an adoption decree. Prom an adverse judgment, the petitioner appeals.

<p>From Superior Court of Marion County (72,889); Clarence E. Weir, Judge.</p> <p>Action by Maurice F. Reilly against Walter J. Hubbard. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by William P. Gaffield against James T. Morton. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>Prom "Wabash Circuit Court; A. E. Plummer, Judge.</p> <p>Action by Palmer National Bank of Danville, Illinois, against George L. Krieg0and another. Prom a judgment for plaintiff, the defendants appeal.</p>

From Shelby Circuit Court; Will M. Sparks, Judge. Action by Catherine Prendergast as administratrix of the estate of Leo Prendergast, deceased, against Charles L. Henry, receiver of the Indianapolis and Cincinnati Traction Company and others. From a judgment for plaintiff, the defendant receiver appeals.

<p>Prom Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by the Outcault Advertising Company against the Harry Joseph Clothing Company. Prom a judgment for defendant, the plaintiff .appeals.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Ellen Eyan against James McConnell and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Briefs.—Statement of Evidence. — Rules of Court.— Where sixteen ■ witnesses testified, and in appellant’s brief only three of them are mentioned and the evidence, embracing 248 pages of the record, is condensed to nine pages and omits any reference to the testimony of numerous witnesses on important matters in issue, there is no substantial compliance with the requirements of the rules of the Supreme and Appellate courts with reference to setting out the evidence in appellant’s brief, p. 64.</p> <p>2. Appeal. — Briefs.—Questions ReviewaWe. — Instructions.—Where appellant’s brief does not comply with the court rules with reference to setting out the evidence, and it is necessary to determine whether the instructions given were applicable to the evidence, the court is not required to pass on them, except to decide whether they were proper in view of any evidence that might have been given under the issues, p. 65.</p> <p>8. Master and Servant. — Injury to Servant. — Complaint.—Sufficiency. — In an action by a railroad brakeman for injuries by falling through an open bridge in the track near a station while he was on the ground examining the air-brakes while the train was in motion, the averments of the complaint that on account of the negligence of the engineer in failing to observe the usual customs in giving the signal to start the train from the station and in moving and stopping the train, the brakeman believed that the train had passed the opening, and left the train and proceeded along the track examining the air-brakes and releasing air-brakes in the train, and while so doing fell into the opening and was injured, are sufficient to show an exception to the rule denying recovery to a servant who has previous knowledge of the dangers complained of and which are incident to his employment, p. 65.</p> <p>4. Master and Servant. — Injury to Servant. — Assumption of Rislc. —Question for Jury. — Where a servant is shown to have been surrounded at the time of injury by extraordinary circumstances, not of his own making, in which attention is diverted from the danger by a great and important duty to his master which ho is required to discharge, it becomes a question for the jury to determine whether the risk was or was not assumed, p. 65.</p> <p>5. Master and Servant. — Injury to Servant. — Verdict.—Answers to Interrogatories. — In an action by a brakeman for injuries received in falling through an open bridge in the track while at work in the discharge of his duties, answers to interrogatories by the jury showing that he believed that the train was beyond the opening, that he used the roadway along the track to release air-brakes, that his attention was diverted from the danger of the opening by the duty of his employment, that he continued to run along the train in the performance of his duty of releasing air-brakes and that while so doing he fell into the opening, that he was at the time acting in a reasonably prudent manner, that he could not see the opening and did not then have his mind on the opening, are not in conflict with a general verdict for plaintiff, pp. 67, 70.</p> <p>G. Trial. — Verdict.—Answers to Interrogatomes. — A general verdict finds every material fact essential to a recovery, and judgment cannot be rendered on answers to 'interrogatories unless they are in irreconcilable conflict with the general verdict, p. 70.</p> <p>7. Trial. — Verdict.—Answers to Interrogatories. — Conflicting Answers. — Where answers to interrogatories are inconsistent or in conflict with each other, they cancel and nullify each other and have no effect on the general verdict, p. 70.</p> <p>8. Master and Servant. — Injury to Servant. — Duty of Master.— Construction of Railroad Bridge. — Negligence.—Although a railroad bridge constructed and maintained in a rural district, according to an approved plan, may be conclusive under ordinary circumstances in favor of the railroad company on the question of negligence, where a bridge is constructed in the same way in a switchyard or at a station where employes of the company necessarily pass over and near the same, not only the construction and maintenance of the bridge, but its location, use and the handling of the company’s business, and the operation of its trains in the immediate vicinity, must be considered in determining the question of negligence in the manner of its construction and maintenance, p. 70.</p> <p>9. Master and Servant. — Injury to Servant. — Negligence.-—Construction of Railroad Bridge. — In an action by a railroad brakeman for injuries in falling through an open bridge while in the discharge of .his duty in running along the train to release air-brakes, where it was established that the bridge was 2400 feet west of the signal tower at the crossing where the telegraph station was situated, and 2000 feet west of the station, that a pumping house was 3100 feet west of the tower and 700 feet west of the bridge, that the water tank was 3700 feet west of the tower and 1300 feet west of the bridge, it cannot he said as a matter of law that defendant was free from negligence in maintaining such open bridge although it may have been of an approved plan in general use. p. 71.</p> <p>10. Negligence. — Question for Jury.- — Although the court will declare negligence as a matter of law where the facts are undisputed, where the facts are controverted and reasonable minds may draw different conclusions, the question is for the jury, p. 71.</p> <p>11. Appeal. — Review.—Harmless Error. — Instructions.—Where an Instruction, otherwise correct, assumes the proof of a fact about which there is no controversy, or one proved by undisputed evidence, its giving is not reversible error, p. 72.</p> <p>22. Evidence. — Preponderance. —• 'Weight. — Instructions. — An instruction telling the jury that the preponderance of the evidence does not depend on the number of witnesses, but on the weight of the testimony, and that the plaintiff cannot recover if the evidence is equally balanced, but that he must have the preponderance in his favor, is a correct statement of the law. p. 72.</p> <p>13. Appeal. — Revisto.—Incomplete Instruction. — Failure to Tender Complete Instruction. — An instruction, which, though Incomplete, is correct as far as it goes, cannot be attacked on appeal, where appellant failed to tender a more complete instruction, p. 73.</p> <p>14. Railroads. — Maintenance.—Construction of Traclos. — Duty.— A railroad company must keep its tracks and grounds in a safe and suitable condition for the purposes for which they are used, and where switching is done and trains are made up, and the employes are constantly exposed to dangers, a greater degree of care is required than at points where such duties are rare, p. 73.</p> <p>13. Appeal . — Review.—Harmless Error. — Instructions.—Where the instructions given on the whole state the law fully and correctly as applied to the facts, technical errors and omissions, if any, in particular instructions are harmless, p. 77.</p> <p>10. Appeal. — Review.—Finding.—Judgment.—Evidence.—The finding and judgment on issues properly submitted to the jury, will not be disturbed on appeal, where there was evidence tending to sustain the same. p. 77.</p>

<p>1. Master and Servant. — 'Injury to Servant. — Complamt.—Theory. —Factory Act. — Although a complaint by a servant for injuries received while making repairs to shafting which was suddenly put in motion, described the shafting as “defective”, where it was manifest from other specific averments that the word “defective” was used in the sense that the shafting was unguarded, and it was averred that defendant had notice of the defect, without alleging plaintiff’s want of knowledge thereof, such complaint is on the theory of liability for failure to guard the shafting, as proyided by §9 of the factory act (§8029 Burns 1908, Acts 1899 p. 231.) pp. 81, 82.</p> <p>2. Pleading. — Complamt.—Determination of Theory. — The nature of an action must be determined from the general character and scope of the- pleading, and isolated and detached allegations, not essential to support its main theory, will be disregarded, p. 82.</p> <p>3. Pleading. — Complamt.—Sufficiency.—Theory.—A paragraph of complaint must proceed on a single definite theory, and be good on that theory, or it will not be good at all. p. 82.</p> <p>4. Negligence. — Proximate Cause. — The proximate cause of an injury is the efficient cause, or the cause which originates and sets in motion the dominating agency that necessarily proceeds through other causes as mere instruments or vehicles in the natural line of causation to the result, p. 82.</p> <p>5. Master and Servant. — Injury to Servant. — Proximate Cause. —'Complamt.—Sufficiency.—A paragraph of complaint in a servant’s action for personal injuries, based on the theory of a liability under §9 of the factory act (§8029 Burns 1908, Acts 1899 p. 231) requiring shafting, etc., to he properly guarded, which averred that while plaintiff was engaged in making repairs in and about defendant’s shafting, the machinery was suddenly put in motion and caused such shafting to revolve against and strike plaintiff and hurl him to the floor, and which charged defendant with failure to install a guard “regulating the action and force of operation of said shafting”, was insufficient, since it was not shown that the failure to guard the shafting was the proximate cause of the injury, p. 83.</p> <p>6. Pleading. — Inferences.—Inferences will not be indulged in favor of a pleading, it being presumed that a party’s pleading is as strong in his favor as the facts to sustain it will warrant, p. 83.</p> <p>7. Master and Servant. — Injury to Servant. — Negligence.—Com-, plaint. — A paragraph of complaint, for injuries to a servant, does not show negligence by merely alleging the removal of a certain clutch from defendant’s shafting, where it is neither averred that the clutch was necessary for the safety of employes, nor that the use of the shafting without such clutch was attended with more danger than when used with it, nor that its removal was an act of negligence on the part of defendant, p. 85.</p> <p>8. Negligence.- — Complaint.—Allegations.—In common-law actions, based on negligence, the particular negligence relied on must be directly averred, or such facts must be stated 'as will compel the presumption or inference that such negligence was the proximate cause of the injury sustained, p. 85.</p> <p>9. Master and Servant. — Injury to Servant. — Defective Machinery. — Complaint.—Notice of Defect. — The complaint in a servant’s action for injuries, counting on a common-law liability, must aver that defendant had knowledge of the defect which caused the injury, and a want of such knowledge on the part of plaintiff, p. 86.</p> <p>10. Master and Servant. — Injury to Servant. — Knowledge of Defects. — Assumption of Itislc. — Where defects are known by the servant, or are open and obvious to both the master and the servant, and the servant voluntarily continues in the service and incurs the hazards of such defects, he thereby assumes the perils thereof, and cannot recover for the injuries sustained therefrom. p. 86.</p> <p>11. Master and Servant. — Injury to Servant. — Negligence in Starting Machinery. — Complaint.—Sufficiency.—The complaint, in a servant’s action for injuries, alleging that defendant ordered plaintiff to make certain repairs, and that to make them with safety it was necessary that the power operating the machinery should be cut off, that plaintiff requested defendant not to start the engine until word was received from him that the repairs were made, that plaintiff commenced work when the machinery was motionless, and that while at said work, and in a position made necessary therefor, defendant carelessly and negligently, without warning and without the knowledge of the plaintiff, suddenly started the engine and machinery connected therewith into rapid motion, whereby plaintiff was thrown to the floor and injured; sufficiently charges defendant with notice of plaintiff’s dangerous position and with negligence in starting the machinery. p. S6.</p> <p>32. ArPEAL. — Review.—Harmless Error. — Ruling on Demurrer. — ■ Overruling a demurrer to a bad paragraph, of complaint is not reversible error, where it clearly appears that the verdict rests solely on the charge' o-f negligence contained in a good paragraph. ■ p. 87.</p> <p>13. Master and Servant.- — -Injury to Servant. — Negligence.— Pleading and Proof.- — In an action by a servant against the master for personal injuries, the charge of negligence that the master, after being requested not to do so, started the machinery while the servant was repairing it, whereby the servant was injured, is not supported by evidence showing that the request was made to one who was an employe, not of the master, but of the company which sold power to the master, and that such employe started the machinery at the direction of the power company, p. 87.</p>

<p>1. Appeal. — Assignment of Errors. — Consideration of Errors.— Briefs. — Alleged error in overruling a demurrer to an answer cannot be considered where neither the demurrer, nor its substance, nor any statement of the record presenting the error thus relied on, is contained in appellant’s brief, p. 91.</p> <p>2. Appeal. — Assignment of Errors. — Conclusions of Laio. — Briefs. —An assignment of error challenging the trial court’s conclusion of law cannot be considered on appeal, where it is not referred to in appellant’s brief under “points and authorities”, nor in the argument, p. 91.</p> <p>3. New Trial. — Grounds—Ruling on Demurrer. — The action of the court in overruling a demurrer is not cause for a n’ew trial, p. 91.</p> <p>4. New Trial. — Grounds.-—Ruling on Motion to Strike Out. — Overruling a motion to strike out parts of an answer is not available as ground for a new trial, p. 92.</p> <p>5. Appeal. — Review.—Admission of Evidence. — Briefs.—Any question as to the admissibility of evidence is waived, where no reference is made to the record in connection with the motion for a new trial, copied in appellant’s brief, and such brief neither sets out the objections, nor indicates by pages and lines, or otherwise, the places in the record where the testimony in question, the objection and exception, and the ruling of the court, may be found, p. 92.</p> <p>6. Appeal. — Review.—Searching Record. — Appellate tribunals will not search the record to reverse a judgment, but may do so to affirm it. p. 93.</p> <p>7. Appeal. — Review.—Harmless Error. — Admission of Evidence.— While the admission of improper material evidence over objection is error, the admission of that which is immaterial, unimportant and of no influential consequence, as a rule on appeal, will not be considered as having influenced the jury, and therefore cannot be made the basis of reversible error, p. 93.</p> <p>S. Trial. — Reception of Evidence. — Objections.—Unless offered evidence is on its face clearly incompetent, an objection thereto that it is incompetent, immaterial and irrelevant is not sufficiently specific to be available and the overruling of same is not error, p. 93.</p> <p>9. Trial. — Reception of Evidence. — Objections.—It is not error to overrule a general objection to offered evidence, where any part of such evidence is not subject to the objection, p. 93. .</p> <p>10. Appeal. — Review.—Decision.—Sufficiency of Evidence. — On appeal the court will look only to the evidence and the inferences to be drawn therefrom most favorable to the decision of the trial court, in determining whether the decision is sustained by sufficient evidence, p. 94.</p> <p>11. Sales. — Warranty.—Notice of Breach. — Waiver.—Notice to the seller of a breach of warranty in accordance with the terms of the contract may be waived by the seller, p. 96.</p> <p>12. Corporations. — Agents.—Notice to Agent. — Notice to an agent of a corporation relating to any matter of which he has the management and control, is notice to the corporation, p. 96.</p> <p>13. Appeal.— Review.— Weighing Evidence.— The court cannot weigh the evidence on appeal, p. 97.</p>

<p>Prom Superior Court of Marion County (78,213); Pliny W. Bartholomew, Judge.</p> <p>Action by tbe Burnet-Lewis Lumber Company against Willard W. Hubbard and others. Prom a judgment for plaintiff, the defendant, Hubbard, appeals.</p>

<p>1. Schools and School Districts. — Location of Schoolhouse.— Injunction. — Parties.—County Superintendent. — Where the county superintendent had granted a petition to change the location of a schoolhouse, under §6417 Burns 1908, Acts 1893 p. 17, providing for the change of location of schoolhouses on petition of the township trustee and a majority of the patrons, he was not a necessary party to a suit thereafter brought to enjoin the taking of plaintiff’s land and the building of a schoolhouse thereon, since by law he had no power or authority to do either, p. 104.</p> <p>2. Appeal. — Review.—Harmless Error. — Ruling on Demurrer.— Where matters pleaded in a special answer could have been proved under the general denial, the action of the court in overruling a demurrer thereto, even if erroneous, was harmless, p. 105.</p> <p>3. Schools and School Districts. — Location of Sehoolliouse.— Action to Enjoin. — Answer.—Where the complaint in an action to enjoin the relocation of a sehoolliouse, on the theory that the order of the county superintendent changing the location was granted on a petition that was not signed by a majority of the patrons of the school, as required by §6417 Burns 1908, Acts 1803 p. 17, alleged that withdrawals by three persons were filed on the day that the petition was finally ruled on by the county superintendent, a paragraph of answer alleging that a remonstrance on which plaintiff relied had been executed without authority, and that rescissions of withdrawals had been filed to offset withdrawals, was proper, p. 105.</p> <p>4. Schools and School Districts. — High Schools. — District Schools. — Patrons.-—Under §6583 Burns 1908, Acts 1907 p. 323 and §6602 Burns 1908, Acts 1907 p. 146, the state board of education prescribes a uniform course of study for noncommissioned high schools, and recognizes as noncommissioned high schools those schools following such course, so that a school that is not commissioned, or that has not complied with the law for non-commissioned high schools, must be deemed merely a district school, although high school subjects are taught therein, and the patrons of such school are the patrons of the district, p. 100.</p> <p>5. Schools and School Districts. — District Schools. — Patrons.— Location of Sehoolliouse. — In any year the patrons of a school within the meaning of §0417 Burns 1908, Acts 1893 p. 17, requiring the petition for change and relocation of a school building to be signed by a majority of the patrons of the school, are the legal patrons living in the district who were enumerated in April</p> <p>• of that year, or who have made satisfactory proof that they are actually the parents, guardians or custodians of children of school age living in the district, though not. enumerated, p. 106.</p> <p>6. Schools and School Districts. — District Schools. — Patrons.—. Persons living in a school district in July and August, though not enumerated, and having children of school age whom they intend to send to school in the district the following winter, are patrons of the district, p. 107.</p> <p>7. Schools and School Districts. — Location of School House.— Withdrawals from Petition. — Revocation of Withdrawals. — There is the same power to revoke a withdrawal from a petition under §6417 Burns 190S, Acts 1893 p. 17, to change the location of a sehoolliouse, as there is to withdraw a signature, p. 109.</p> <p>8. Appeal. — Review.—Decision.—Issues of Fact. — The appellate court is not authorized to change the decision of the trial court on issues oí fact, where there is evidence to support the decision, p. 109.</p>

<p>From Hamilton Circuit Court; Meade Vestal, Special Judge.</p> <p>Action by Burney Moore against the Lake Erie and "Western Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by John B. Rexing against the Princeton Window Glass Company and others. From an adverse judgment, the plaintiff appeals.</p>

<p>1. Appeal. — Ruling on Motion for Judgment on Answers to Interrogatories. — Deteo'mination of Question. — The question raised on the ruling of the trial court in sustaining a motion on the answers to interrogatories, notwithstanding the general verdict, must be decided from a consideration of the issues, the general verdict and the answers to the interrogatories, p. 134.</p> <p>2. Pleading. — General Denial. — Verdict.—Every material averment of a complaint is put in issue by the general denial, and a general verdict for plaintiff is a finding for him on every material point thus in issue, p. 136.</p> <p>3. Trial. — Verdict.—Answers to Interrogatories. — Control of Verdict. — Unless the answers to interrogatories are in such irreconcilable conflict with, or so antagonistic to, the general verdict that both cannot stand, the general verdict will be sustained, p. 136.</p> <p>4. Pleading. — Complaint.—Theory.—Issues and Proof. — A pleading must proceed on a single, definite theory, and a plaintiff cannot declare on one theory and recover on another, p. 137.</p> <p>5. Railroads. — Interurban.—Injury to Persons on Tracies. — Complaint. — Theory.—Where the complaint, in an action against an interurban railroad company for damages to plaintiff in a collision with a car, alleged that the approach of a car and an obstruction in the highway required plaintiff to drive upon an adjoining track, that before he could leave the latter track, another car of the defendant, running negligently and without warning and at a high rate of speed toward him, struck his horses and wagon and caused the injuries, and that with reasonable care plaintiff’s peril could have been seen and the car stopped before striking him, the theory is not that of operating the car at a negligent rate of speed, but of negligence either in failing to exercise proper care to discover plaintiff’s dangerous situation, or to make proper efforts to stop the car after making such discovery, p. 137.</p> <p>6. Pleading. — Complaint.—Construction.—Inconsistent Theories. — < Where a complaint proceeds on inconsistent theories, the one most consistent with its general scope and character must be adopted, p. 139.</p> <p>7. Raileoads. — Interurban.—Injury to Persons on Tracks. — Last Clear Chance. — Negligence.-—The doctrine of last clear chance, though usually applied where the negligence of defendant is .shown, and where it also appears that the injured by his own negligence had placed himself in a position of imminent peril exposing him to danger as a result of the defendant’s negligence, is also applicable in charging original negligence to defendant in an action for injuries sustained in a collision with an interurban car, where plaintiff, because of an obstruction in the highway and to avoid injury from the approach of a car, drove upon an adjoining track in the highway, where he was struck by another of defendant’s cars, and those in charge of the latter car with reasonable care could have seen his perilous position and stopped the car before striking him. p. 139.</p> <p>8. Raileoads. — Interurban.—Injury to Persons on Track. — Verdict. — Ansioers to Interrogatories. — In an action for injuries sustained in a collision with an interurban car, where it was shown by the complaint that plaintiff was unavoidably placed in a perilous position on defendant’s track, and it was alleged that with reasonable care his peril could have been seen and the car stopped before striking him, answers to interrogatories showing that the car was running rapidly, but, that on seeing plaintiff, the motorman did all that he could to stop the car and avoid striking him, while in conflict with the general verdict for plaintiff on the question of negligence in failing to stop the car after discovering plaintiff’s peril, are not in conflict therewith as to defendant’s negligence in failing to discover his peril in time to avoid the injury, p. 141.</p> <p>9. Raileoads. — Interurban.—Injury to Persons on Tracks. — Contributory Negligence.■ — Burden.—An interurban railroad company, in an action against it for striking plaintiff with one of its cars, has the burden of proving that plaintiff was guilty of contributory negligence which proximately contributed to his injury, p. 141.</p> <p>10. Railroads. — Interurban.—Injury to Persons on Track. — Com tributory Negligence. — Evidence.—To show contributory negligence by the driver of a vehicle struck by an interurban car, it must be shown that after plaintiff was in a position where he saw his own danger, or could have seen it by the exercise of ordinary care, he had an opportunity to escape therefrom, and failed to do so. p. 143.</p> <p>11. Railboads. — Interurban.—Injury io Persons on Track. — Oontributory Negligence. — Verdict.—Answers to Interrogatories. — In an action for injuries sustained in a collision with an interurban car, where the complaint alleged that plaintiff was unavoidably placed in a perilous position on defendant’s track, answers to interrogatories not showing affirmatively that he was negligent in failing to discover his danger in time to escape, or in failing to use proper efforts to escape after such discovery, are not in conflict with a general verdict for plaintiff, p. 143.</p> <p>12. Appeal. — Ruling on Motion for Judgment on Answers to Interrogatories. — Pleadings.—Determination of Issues and Pads Provable. — In passing on a motion for judgment on the answers to interrogatories, the court will look to the pleadings only to determine what the issues were and what facts could have been proved under them. p. 144.</p> <p>13. Appeal. — Review. — Verdict.— Answer's to Interrogatories.— Reconciliation with General Verdict. — It is the duty of the court on appeal to reconcile the answers to interrogatories with the general verdict when possible to do so. p. 145.</p>

<p>1. Municipal Corporations. — Governmental Powers.- — Failure to Exercise. — Liability.—A city is not liable for a failure to exercise powers of a purely governmental character, p. 148.</p> <p>2. Municipal Corporations. — Ministerial Duties. — Failure to Perform. — Liability.—Where a fixed, certain and absolute ministerial duty is imposed on a city by statute, and means provided for its discharge, the city is under obligations to perform and will be held answerable in damages for failure to perform, or for the negligent performance of such duty. p. 149.</p> <p>3. Municipal Corporations. — Streets.—Licensed Use for Display of Fireworlcs. — Liability for Injury. — The use of a street for the display of fireworks therein is foreign to the purposes of a street, and is intrinsically dangerous, and may be found to be a nuisance which will render a city, authorizing such use, liable for injury to one in the street from the discharge of fireworks negligently handled by inexperienced persons, pp. 151,153,155.</p> <p>4. Municipal Corporations. — Streets.—Licensed Use for Extraordinary Purpose. — -Liability for Injury. — The liability of a city for injuries to one caused by its authorized use of a street for a purpose foreign to the purpose for which it was dedicated is not affected by the fact that such authorized use does not change or affect the physical condition of the street, p. 151.</p> <p>5. Municipal Corporations. — Streets.—Obstruction.—"Nuisance,— Liability. — Question for Jury. — A city is liable for erecting or maintaining a nuisance, and, while a permanent obstruction in a street is a nuisance per so, the question of whether a temporary obstruction or use constitutes a nuisance is for the determination of the jury under proper instructions, p. 154.</p> <p>0. Municipal Cobpoeations. — Streets.—Licensed Use for Display of Fireworks.- — Injury to Bystander. — Contributory Negligence.— The mere fact that a child of tender years, who was injured, while in a street, by the discharge of fireworks therein, was not at the lime using the street for travel, but was present solely for the purpose of watching the' display of fireworks, did not render it guilty of contributory negligence as a matter of law. p. 157.</p> <p>7. Negligence. — Contributory Negligence. — Question for Jury.— Where the undisputed facts bearing on the question of contribuí tory negligence are of such a character that impartial men may differ as to the inference to be drawn therefrom, the question is for the jury. p. 158.</p>

<p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Andrew "Wyeoff against the Indianapolis Southern Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Parke Circuit Court; Gould G. Rheuby, Judge.</p> <p>Action by John P. Daugherty against the United Coal Mining Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Factory Act. — Emery-Wheels.—Exhaust-Ferns. — Dust.—The word “dust” as used in the factory act (§8029 Burns 1908, Acts 1899 p. 231) requiring that exhaust-fans of sufficient power shall be provided for the purpose of carrying off dust from emery-wheels and grindstones and dust-creating machinery, includes particles of iron and crystals created and thrown from an emery-wheel while in operation, p. 177.</p> <p>2. Master and Servant. — Injury to Swvant. — Emery-Wheels.■— Exhaust-Fans. — Complaint.—Allegations.—Proof.—In an action by a servant for injury, based on the master’s failure to provide an emery-wheel with an exhaust-fan as required by §8029 Burns 1908, Acts 1899 p. 231, the plaintiff must allege and prove that the emery-wheel could have been provided with an exhaust-fan ■without rendering it useless for the purposes intended, p. 178.</p> <p>3. Appeal. — Review.—IxwHect Error. — Instructions.—In an action by a servant for injury based on the master’s failure to comply with §8029 Burns 1908, Acts 1899 p. 231, requiring emery-wheels to be provided with exhaust-fans, where it was not contended that such fan could not have been installed, but the sole theory of the defense was that one could not have been installed that would have carried away all the dust or that would have prevented the injury, defendant cannot take advantage of the failure of an instruction purporting to enumerate the facts essen-; tial to recovery by the plaintiff to include the element of the practicability of installing such fan, since the error was invited by the theory of its defense, p. 180.</p> <p>4. Appeal. — Remew.—Harmless Error. — Instructions.—In an action by a servant for injuries, based on the master’s failure to l>rovide an emery-wheel with an exhaust-fan, as required by §8029 Burns 1908, Acts 1899 p. 231, the failure of an instruction, purporting to enumerate the facts essential to recovery by the plaintiff, to include the element of the practicability of installing such fan, was harmless, where the defense did not contend that it was impracticable to install same, but that the installation thereof would not have prevented the injury, p. 184.</p> <p>5. Master and Servant. — Assumption of Rislo. — Factory Act. — A servant does not assume the risk resulting from the master’s failure to guard a machine or equip it with attachments as required by the factory act, §8029 Bums 1908, Acts 1899 p. 231. p. 185.</p> <p>6. Appeal. — Review.—Harmless Error. — Instructions.—Where the subject of an instruction, in a servant’s action against the master for injuries resulting from the master’s failure to provide an emery-wheel with an exhaust-fan, as required by §8029 Bums 1908, Acts 1899 p. 231, was clearly limited to the question of the servant’s assumption of the risk in such cases, the fact that it included the words “machinery required to be guarded” could not have misled the jury. p. 185.</p> <p>7. Appeal. — Review.—Evidence.—Verdict.—A verdict for plaintiff will not be disturbed on ground of insufficiency of the evidence where there was some evidence to support every material allegation of the complaint, p. 186.</p> <p>8. Appeal. — Review.—Verdict.—Damages.-—ffihe verdict of the jury will not- be disturbed on the ground that the damages are excessive, except in extreme cases, p. 186.</p>

From Cass Circuit Court; John 8. Lairy, Judge. Applications by Claude C. Bishop and another for letters of administration on the estate of George R. Hoopes, deceased, who was a resident of Pennsylvania. Pending the proceedings thereon Harry G. Reed and another, as executors under the will probated in Pennsylvania, sought to have the will admitted to record in this State and to have letters issued to themselves.

<p>1. Trial. — Reception of Evidence. — Admissions of Party. — In a wife’s action on a mutual benefit certificate, where another claimant filed a cross-complaint alleging that decedent had complied with all requirements to make cross^complainant his beneficiary, except that of surrendering the old certificate, which was prevented through the fraud and deceit of plaintiff, who had possession o-f it, evidence that plaintiff had stated, before the death of her husband, that she had possession of the certificate and intended to keep it, could have been properly admitted as a part of cross-complainant’s case in chief, p. 196.</p> <p>2. Evidence. — A dmissions of Party. — Admissibility.—-As a rule, the admissions of a party to the record are admissible against him. p. 196.</p> <p>3. Appeal. — Review.-—Harmless Error. — Exclusion of Evidence.— In a wife’s action on a mutual benefit certificate, where another claimant filed a cross-complaint alleging that decedent had complied with all requirements to make cross-complainant his beneficiary, except that of surrendering the old certificate, which was prevented through the fraud of plaintiff who had possession of it, error, if any, in excluding evidence that plaintiff had stated, prior to the death of her husband, that she had the certificate and intended to keep it, was harmless, where there was no evidence to authorize a finding that plaintiff fraudulently prevented decedent from surrendering such certificate, p. 197.</p> <p>4. Appeal. — Review.—Evidence.—Fraud.—Equity.—The rule that equity will regard that as done which in good conscience ought to be done, in order to prevent injury to another through fraud and deceit, cannot be extended to work a reversal of a judgment for appellee in an action on a benefit certificate, where there was no evidence that appellee had fraudulently prevented decedent from surrendering such certificate and procuring a new one in favor of appellant, p. 198.</p>

<p>3. Chattel Mortgages. — Household Goods. — Possession of Goods. —Statutes.—VaMdAty.—Sections 8636, 8637 Burns 1908, Acts 1897 p. 271, relative to the right of a mortgagee of household goods to the possession thereof, prohibiting the sale of such goods under any power of sale contained in such mortgage, and providing for foreclosure thereof, are constitutional and valid, p. 199.</p> <p>2. Chattel Mortgages. — Household Goods. — Recovery hy Assignee of Mortgagee. — Statutes.—Under §8637 Burns 1908, Acts 1897 p. 271, providing that the mortgagee of household goods is not entitled to their possession unless it is so provided in the mortgage, and he takes actual possession at the time of the execution of the mortgage and holds possession continuously until sale, where a mortgagee of household goods failed to take possession of such goods when the mortgage was executed, his assignee under the mortgage could not replevin them; his sole remedy being by foreclosure as provided by §8636 Burns 1908, Acts 1897 p. 271. p. 200.</p> <p>3. Chattel Mortgages. — Household Goods.- — Payments.—Failure to Execute Receipts. — Effect.—Under §8638 Burns 1908, Acts 1897 p. 271, providing that the failure of the holder of a mortgage on household goods to execute receipts in a specified form for all payments made on such mortgage shall render the same void, he can not recover in a suit for its enforcement without proving the execution of the receipts necessary to preserve its validity, where it is shown that payments have been made. p. 200.</p> <p>4. Appeal. — Review.—Evidence.—Sufficiency.—Where the evidence is conflicting, the decision of the lower court, under the strong presumption which obtains in its favor, will be held to be supported by sufficient evidence, p. 200.</p>

<p>1. Frauds, Statute oe. — Judicial Sales. — Judicial sales made under the supervision of a court are not within the statute of frauds, and are binding on the purchaser without any written contract or memorandum of sale. p. 204.</p> <p>2. Executors and Administrators. — Representative Capacity.— Sales of Real Estate. — An executor or administrator, in selling the lands of his decedent pursuant to an order of court, acts simply in a representative capacity, p. 204.</p> <p>3. Executors and Administrators. — Sales of Real Estate. — Confirmation of Sale. — Under §2874 Burns 1908, §2357 R. S. 1881, requiring an executor or an administrator to report the sale of his decedent’s real estate to the court granting the order of sale, such sale is not fully consummated until ratified by the court, p. 204.</p> <p>4. Executors and Administrators. — Sales of Real Estate. — Estate Conveyed. — Warranties and Representations. — Liability.—Notice of Limited Powers. — Persons purchasing lands sold by one in his capacity of executor or administrator, are chargeable with notice that he can sell no greater interest in lands offered than the deceased person actually possessed, so that no warranty or representation as to title made by such executor or administrator, is binding on the estate, unless the same was authorized by the will or by the order of court under which the sale proceeds, p. 204.</p> <p>5. Executors and Administrators. — ■Sales of Real Estate. — Its-representations as to Title. — Liability.—The fraudulent representations made by an executor or administrator in connection with sale of his decedent’s real estate, are his individual torts, for which he alone is liable in his individual capacity, p. 205.</p> <p>6. Trial. — Findings.-—Effect.—Where defendant sought to avoid a sale of real estate made to him by an executor on the ground of fraudulent representations as to title made by such executor, the failure of the .court’s findings to include a finding as to whether any warranties or representations were made by such executor, was in effect a finding that such were not made. p. 206.</p>

Prom Boone Circuit Court; Samuel R. Artman, Judge. Action by Robert B. Stimson, administrator of the estate of Lucy Stimson, deceased, against Charles Rountree, executor of the will of Florence B. Rountree, deceased, and others. Prom a judgment for plaintiff, the plaintiff appeals.

Prom Knox Circuit Court; Orlando H. Cobb, Judge. Action by Alexander Gilchrist and others against the Princeton Coal and Mining Company and others. Prom a judgment for plaintiffs, the defendants appeal.

<p>3. Carriers. — Injury to Passenger — Complaint.—Allegation of Ptcgligence. — Sufficiency.—In an action by a passenger for injuries received in a railroad collision, a complaint averring that on a certain date plaintiff was a passenger on defendant’s train, then being operated by it, and had paid liis fare in cash, and after paying same, a collision, caused by defendant’s negligence, occurred between the train on which plaintiff was riding and another train, whereby plaintiff without his fault or neglect ivas injured, sufficiently alleges defendant’s negligence so as to withstand a demurrer, pp. 227,228.</p> <p>2. Pleading. — Allegations.—Inferences.—Pacts material and necessary to constitute a cause of action should be directly averred, as only inferences necessarily arising from facts alleged will Do indulged in determining the sufficiency of a pleading when tested by demurrer, p.227.</p> <p>3. Carriers. — Injury to Passenger. — Contributory negligence.— Jiwy Question. — Whether a passenger on a train, in arising to his feet when a signal of danger was given and in remaining standing until the collision occurred, causing him to fall against the seat and onto the floor, was guilty of contributory negligence, was a question for the jury to determine, p. 228.</p> <p>4. Appeal. — Review.—Instructions.—Misleading Jury. — In an action against a railroad company for injury to a passenger, an instruction, which, after enumerating the elements proper to be considered in estimating damages, concluded by stating that the jury should allow such damages as in its opinion, from all the facts and circumstances in evidence, would be a fair and just compensation for the injury sustained, was not misleading to the jury, when taken as a whole, p. 229.</p> <p>5. Appeal. — Review.—Harmless Error. — Refusal of Instruction.— Where, in an action for personal injuries, the evidence was conflicting on the question of whether the hernia complained of was an old injury, and the jury in its answers to interrogatories found that it was not an old injury, the refusal of an instruction that, if the jury found from the evidence that plaintiff had been ruptured before the occurrence of the accident complained of and that the injury was merely a recurrence of the original rupture, their finding shall be for defendant, was harmless, p. 229.</p> <p>G. Evidence. — Demonstrative Evidence. — Wound Made by Surgeon in Operating on Injury. — In an action for personal injuries, where there was evidence to show that a surgical operation was rendered necessary on account of the injury resulting from defendant’s negligence, the jury was entitled to all the evidence showing the extent and effect of the operation, including a view of the wound made thereby, p. 230.</p> <p>7. Appeal. — Objection to Evidence. — Record.—No question is presented on alleged error in admitting certain evidence, where the record discloses no objection made to such evidence at the time it was offered, p. 230.</p> <p>8. Pleading. — General Denial. — Effect.—A general denial admits the capacity in which the defendant is sued. p. 231.</p> <p>9. Appeal. — Rcvieio.—Evidence.—Sufficiency.—In an action by a passenger against a railroad company for personal injuries, where plaintiff testified that when he paid his fare defendant’s conductor gave him a cash fare receipt, and such cash fare receipt was introduced in evidence, and plaintiff further testified that he knew that he was a passenger on defendant’s train, the evidence was sufficient to justify the jury in inferring that the railroad and car on which plaintiff was injured was at the time of the injury in control of and being operated by defendant, p. 231.</p>

<p>1. Appeal. — Bight of Appeal. — The right of appeal is granted only by statute, and must be invoked and presented in the manner and form provided by statute, p. 233.</p> <p>2. Appeal. — Vacation Appeal. — Parties.—A vacation appeal must be taken pursuant to §674 Burns 1908, Acts 1899 p. 5, and, in order to bring the appeal within the jurisdiction of the court, all coparties to the judgment, or judgment defendants, must be joined as appellants, and if not so joined the appeal must be dismissed, p. 233.</p> <p>3. Appeal. — Parties.—■‘‘Coparties.”—“Coparties,” as used in §674 Burns 1908, Acts 1890 p. 5, providing for notice to coparties where a part of several coparties appeal, means coparties to the judgment, or all the parties against whom the judgment is rendered, p. 234.</p> <p>4. Appeal.— Bight of Appeal. — ¡Necessary Party.— Dismissal.— Where, in an action on a fire policy, it was shown by the policy that the company’s codefendant had an interest in the property destroyed, although the complaint alleged that she had no interest and her answer admitted such averment, she was a necessary party defendant in the lower court, and, being a judgment defendant, was a necessary party appellant on appeal, and failure to make her such requires a dismissal of the appeal for want of jurisdiction, p. 235.</p>

<p>Prom Martin Circuit Court; Hileary Q. Houghton, Judge.</p> <p>Action by Rutb Craney against Rutherford School Township, of Martin County. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Briefs.—Briefs on appeal must be so prepared that all the questions iwescnted by the assignment of errors can be determined from an examination of the briefs without reference to the record, p. 243.</p> <p>2. Appeal. — Briefs.—Statement of Record. — Ruling on Demurrer. —No question is presented as to the ruling of the trial court on a demurrer to the complaint, where neither the demurrer nor its substance is set out in the briefs, p. 243.</p> <p>3. Appeal. — Briefs.—Statement of Record. — Motion for Row Trial. —No question arising on the motion for a new trial can be presented on appeal, unless the briefs set out a copy of such motion, or give its substance, p. 244.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by John W. Jones against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.'</p>

From Vanderburgh. Circuit Court; G. A. DeBruler, Judge. Action by the Walter A. Wood Eeaping and Mowing Manufacturing Company and others against Nicholas Angemeier and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Deeds. — Construction.—Wills.—Where it appears from an instrument having the formalities of a deed, that the maker intended to convey an estate, to vest upon the execution of the paper, such instrument will be construed to operate as a deed; but if it appears that the estate is reserved to the grantor during his life, and that the instrument is to take effect only on his death, it will be construed to be testamentary in character, p. 264.</p> <p>2. Deeds. — Validity.—Postponement of Possession of Property Conveyed. — A deed may be valid, although it withholds possession from the grantee until the death of the grantor, p. 265.</p> <p>S. Deeds. — Delivery.—Escrow.—-Wills.—Where a deed is executed and delivered to a third person to be kept until the grantor’s death, and has passed out of the grantor’s dominion and beyond his power of recall, it is not a testamentary disposition of property, since such delivery operates to pass the title to the grantee, p. 265.</p> <p>4. Wills.— Concmrent Deeds.— Execution.— Where a will and deeds are executed at the same time, any necessity for looking to all the instruments in ascertaining the testator’s intention, will not alone make them a part of the will. p. 265.</p> <p>5. Wills. — Contest.—Complaint.—Reference to Concurrent Deeds. —Where, on the same day, prior to the execution of his will, a testator executed deeds showing his intention to convey a present title and delivered them to a bank to be held for delivery to the grantees at his death, without any provision for their recall by him, title to the property described was thereby passed to the grantees, and, although mentioned in the will, such deeds were not a part of that instrument, so that, in an action to contest such will, all reference to such deeds was properly stricken from the complaint, p. 265.</p> <p>6. Wills. — Validity.—Disposition of Estate Same as Provided by Statute — Contest.—Where a will makes no other disposition of property than the law would make, the devisees will take under the statute of descents, and the will'is a mere nullity and not subject to contest, p. 266.</p>

<p>From Jay Circuit Court; John F. LaFolleite, Judge.</p> <p>Action by Frank Harter against the F. Bimel Company. From a judgment for plaintiff, the defendant appeals.</p>

Prom the Superior Court of Allen County; Joseph W. Adair, Special Judge. Action by Octavia Marks, administratrix of the estate of Charles Q. Marks, deceased, against Horace Mariotte. Prom a judgment for defendant, the plaintiff appeals.

<p>From Wayne Circuit Court; Henry'G. Fox, Judge.</p> <p>Action by William H. Pickett against William S. Clendenin. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>Prom Superior Court of Marion County (69,896) ; Vinson Garter, Judge.</p> <p>Action by Mary Alice Collins against the Catholic Order of Foresters. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Floyd Circuit Court; William G. Utz, Judge.</p> <p>Action by Clem Crone against tbe Southern Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Demuirer.—Exceptions to Conclusions of Law. — Where exceptions to the trial court’s conclusions of law raise the same- questions as the demurrer to the complaint, and the facts found are in accord with the evidence and substantially follow the allegations of the complaint, a decision as to such conclusions necessarily determines the correctness of the ruling on the demurrer, p. 318.</p> <p>2. Eminent Domain. — Gtrcrnt of Railroad Right of Way. — Extent of Right. — -Damages.—The grant of a railroad right of way does not carry the right to go beyond its limits, and an assessment of damages for a right of way does not include compensation for wrongful acts after the acceptance of a deed or the making of an apx>ropriation. p. 319.</p> <p>3. Municipal Corporations. — Streets.—Change of Grade. — Liability. — Municipalities may establish grades and improve their streets in accordance therewith, and no liability will follow simply from the fact that the grading results in an injury to some private proprietor, p. 319.</p> <p>4. Municipal Corporations. — Streets.—Improvement.—Contract.— Liability. — Special Damage to Abutters. — While a municipality may contract with a third person to make street improvements which it is authorized to make, and such person will not be liable in damages so long as the work is carefully and skilfully done in the manner authorized, it cannot legally authorize one of its streets to be invaded so as to cause special or peculiar damage to an abutting owner, without making the wrongdoer liable for such damage, p. 320.</p> <p>5. Eminent Domain. — Change of Railroad Grade. — Municipal Ordinance Authorizing Change. — Liability of Raib-oad Company.— A municipal ordinance which established the grade of a street only so far as it was crossed by the tracks of a railroad, authorized the railroad company to raise its tracks and right of way so as to conform to such grade, and required that the street and sidewalks be caused to conform to such grade at the sole expense of the company, did not authorize the construction of such work so as to exempt the company from liability for damages to an abutting owner resulting from the change in such street, since such ordinance was for the accommodation of the railroad company and not for that of the general public, p. 320.</p> <p>6. Waters and Watercourses. — Surface-Waters.—Special Findings. — A special finding showing that a railroad company raised its roadbed and tracks to conform to the grade of a street as established by an ordinance, and that the change caused the surface-water to flow over and upon plaintiff’s lot and into her well, and that loose dirt and gravel were by said surface-water washed on plaintiff’s lot, does not show a liability against defendant, since it is not a finding that defendant collected a surplus of surface-water and discharged it in a body onto • plaintiff’s lot. p. 322.</p> <p>7. Waters and Watercourses. — Raib'oads.—Liability for Flow of Surface-Water. — The liability of a railroad company as to surface-water is the same as that of any other landowner, it being liable only when it collects surface-water on its land in a volume, or in a channel, and turns such water onto the lands of an adjoining owner, to his damage, p. 323.</p> <p>8. Railboads. — Liability for Floto of Water from Stoolc Oars. — A railroad company is liable in damages, where water thrown by its servants into stock cars in passing trains, falls therefrom and carries the offal from the stock onto the land of plaintiff, thereby destroying her well and rendering her premises unsanitary and damaging their value, p. 323.</p> <p>9. Appeal. — Review.—Special Findings. — Affirmance.—Where, in an action against a railroad company for damages to abutting property caused by the flow of surface-water thereon and the change of grade of the street and railroad track, the facts found do not render appellant liable for turning surface-water onto appellee’s land, but sufficiently show the liability of appellant on other grounds and damage therefrom to the full extent of the judgment, the judgment will be affirmed, p. 324.</p>

<p>1. Pleading. — Counterclaim. — Cross-Complamt. — Sufficiency.— For the purpose of determining the sufficiency of a counterclaim, it is not material whether it has been treated as a counterclaim or cross-complaint, since in either case the pleading must state a cause of action in favor of. defendant, p. 326.</p> <p>2. Appeal. — Briefs.—Failure to Set Out Assignment of Errors. — • Errors Presented. — Where appellant failed to set out in his brief any assignment of errors or to indicate where any such assignment could be found in the record, he will be limited to the errors as presented therein-under the head of “errors relied on for reversal.” p. 327.</p> <p>3. Appeal. — Assignment of Errors. — Questions Presented. — An assignment that “appellee’s cross-complaint does not state facts sufficient to constitute a cause of action against appellant,” challenges the sufficiency of the pleading as a whole, and not the sufficiency of each separate paragraph, p. 327.</p> <p>4. Appeal. — Pleading.—Challenging Sufficiency for First Time on Appeal. — -All intendments are in favor of a pleading challenged for the first time on appeal, and if a complaint does not wholly fail to state some essential element, and states facts sufficient to bar another suit for the same cause, it will be held sufficient to sustain the judgment, p. 328.</p> <p>5. Appeal. — Assignment of Errors. — Attacking Sufficiency of Pleading as a Whole. — Where, on appeal, the sufficiency of a pleading as a whole is attacked, and any paragraph thereof is sufficient, no reversible error is presented, p. 328.</p> <p>6. Appeal. — Review.—Harmless Error. — Ruling• on Demurrer.— Form of Demurrer. — Demurrer to Counleralawn. — Where a pleading, styled a paragraph of answer, was in fact a counterclaim, a demurrer thereto on the ground that it did not state facts sufficient “to constitute a defense to plaintiff’s complaint or either paragraph thereof,” did not raise the question of the sufficiency of the pleading to state a cause of action, no- available error resulted from overruling the same. p. 328.</p> <p>7. Appeal. — Review.—Questions Waived. — Motion for New Trial. —The grounds of a motion for a new trial are waived on appeal by failing to present any question thereon, p. 329.</p> <p>8. Appeal.- — Briefs.—Statement of Evidence. — Appellant’s failure to set out in his brief any of the oral evidence, or to-refer by page or line to the record where any of the evidence can be found, does not entitle him to a consideration of any question presented by the evidence, p. 329.</p> <p>9. Appeal. — Revieio.—>.Harmless Error. — Overruling Motion for New Trial. — Sufficiency of Evidence. — Where all the paragraphs of a cross-complaint were sufficient as against the attack made on them, and either had sufficient evidence for its support, no available error is presented on the overruling of a motion for a new trial on the ground of insufficient evidence to support a verdict for cross-complaint, p. 330.</p>

Prom Allen Circuit Court; Richard K. Erwin, Special Judge. Exceptions by Alonzo A. Huffman, by Ms next friend Hubert C. Cbenneour, to the report and final settlement of Annie J. Huffman, guardian of Alonzo A. Huffman. Prom an adverse judgment, the exceptor appeals.

<p>1. Statutes. — Repeal.—Repeal by Implication.- — Although the repeal of statutes by implication is not favored, where two inconsistent statutes relating to the same subject-matter, but passed at different times, are to be construed, the court will hold the earlier statute to be repealed by implication, p. 343.</p> <p>2. Statutes. — Repeal.—Subject-matter Covered by New Act.— Where a new act covers the whole subject-matter of a former act, it is the intention that the new act shall take the place of the old one. and the old law is repealed, p. 343.</p> <p>3. Pause Impbisonment. — Town Cleric. — Judicial Powers.- — Statutes. — Section 27 of the cities and towns act (§9001 Burns 1908, Acts 1905 p. 219) defines the powers and duties of a town clerk, and §32 of said act (§9009 Burns 1908) provides a method of enforcing penal ordinances different from that provided in the act of 1901 (Acts 1901 p. 57, §4346 Burns 1901) making it the duty of a town clerk to enforce the ordinances of the town, and vesting him with the powers of a justice of the peace, and the latter act, though not repealed in express terms, was clearly within the purview of the act of 1905 and was repealed by implication, so that a town clerk in issuing a warrant for the arrest of a person charged with violating an ordinance, and a town marshal in serving such warrant, were acting without authority of law and were trespassers, p. 343.</p> <p>4. Appeal. — Action for False Imprisonment. — Reviejo.—Instructions. — In an action for damages for false imprisonment, simply stating the issues to the jury is not a sufficient compliance with §558 Burns 1908, subd. 5, §533 R. S. 1881, requiring the court to give general instructions to the jury, but the court should also have stated the law relating to false imprisonment, p. 344.</p> <p>5. Trial. — Instructions.—Duty of Court. — Although parties desiring special instructions given must present same to the court, §558 Burns 1908, subd. 5, §533 R. S. 1881, makes it mandatory on the court, at the conclusion of the argument, to give general instructions to the jury. p. 344.</p> <p>0. False Imprisonment. — Instructions.—Officers.—Defense.—In an action for false imprisonment on a warrant issued by a town clerk and served by the town marshal, an instruction telling the jury that the fact that the defendants were the duly elected and acting clerk and marshal of the town “is not a complete defense to the action,’’ was erroneous, since such fact constitutes no defense to the action, p. 344.</p> <p>7. False Imprisonment. — Instructions.—Assumption of Fact.— Jury Question. — In an action for false imprisonment, an instruction which told the jury that, in determining the question of damages, it had a right to take into consideration that the officers had investigated as to their authority in the prosecution, and as to the guilt of plaintiff and her motive in committing the act with which she was charged, was erroneous in that it assumed that such investigation had been made, when the existence of such fact was a question for the jury to determine, p. 344.</p> <p>8. False Imprisonment. — Warrant Issued by Town Cierto. — Proof Essential to Recovery. — To entitle plaintiff to recover in an action for false imprisonment on a warrant issued by a town clerk, it was only necessary for her to show that defendants imposed an unlawful restraint on her freedom of movement or action, p. 345.</p> <p>9. False Imprisonment. — Malice.—Exemplary Damages. — In an action for false imprisonment, it is not necessary to aver that the imprisonment was either wrongful, unlawful, malicious or without probable cause, to justify a jury in assessing exemplary dam- ■ ages, since if the imprisonment is extra-judicial, without legal process, it is false imprisonment, and the right of recovery is not limited to compensatory damages, p. 345.</p> <p>10. False Imprisonment. — Instructions.—Evidence.—In an action for false imprisonment, an instruction which told the jury that if it believed that plaintiff, by her actions and conduct, invited and encouraged the proceeding complained of, and was conniving at her own imprisonment, she could not recover, was inapplicable and misleading, where the evidence merely showed that plaintiff knew that the ordinance under which she was arrested had been passed, that she had been advised that the act giving the town clerk judicial powers had been repealed, and that she had said slie knew lier act was a violation of tlie ordinance, but that she was “going to give them a pull.” p. 346.</p> <p>11. Appeal.— Review.'— Instructions. — ■ V ertMct.— Presumptions. — • Where only one instruction was given by the trial court that authorized a verdict for defendant, it must be presumed that such verdict was returned on such instruction, p. 346.</p> <p>12. Appeal. — Reversal.—Judgment.—Nominal Damages. — While a judgment will not be reversed to enable the complaining party to recover nominal damages, this rule does not apply where there was evidence on which the jury, under proper instructions, might be warranted in awarding more than nominal damages, p. 347.</p>

<p>1. Contracts.- — Contract for Benefit of Third Persons. — Enforcement. — Parties.—A contract may be entered into for the primary benefit of third persons not parties- thereto, and, in such case, the persons for whose benefit the contract is made may maintain an action on it in their own names, p. 351.</p> <p>2. Contracts.— Public Buildings.— Contractor’s Bond.— Liability for Labor and Material. — A bond to secure the performance of a contract for the construction or repair of public buildings that are not subject to liens, inures to the benefit of persons furnishing material or labor in the performance of such contract, only where there is an express stipulation, either in the contract or bond, that the contractor shall pay all claims for labor and material. p. 352.</p> <p>3. Contracts. — Public Buildings. — Contractor’s Bond. — Construction. — Liability for Labor and Material. — Although a contract for the repair of a public school building contained no agreement on the part of the contractor to pay claims for labor and material, where the bond contained a condition providing for the payment</p> <p>■ by the contractor of all indebtedness incurred by him in carrying out the contract, such condition will be construed as having been made for the benefit of third persons so as to render the sureties on such bond liable in an action by such third persons for labor or material furnished, notwithstanding such persons are not' entitled to liens and the bond provided that it was for the use and benefit of all persons who may become entitled to liens under the contract, p. 353.</p> <p>4. - Contracts. — Public Buildings. — Contractor’s Bond. — Construction.- — Liability for Labor and Material. — Condition Restricting Liability to Persons Entitled to Liens. — While the maxim ex-yressio unius est exclusio alterius applies to the construction of contracts, all contracts are to be read and understood in the light of the law applicable thereto, and where a bond to secure the performance of a contract to repair a school building contained a condition providing for the payment by the contractor of all indebtedness incurred by him in carrying out the contract, the further provision therein restricting the benefit of the bond to persons who may become entitled to liens does not have the effect of excluding any one from the benefit of the bond, since such building is not subject to a lien in favor of any one, and such bond will be held to inure to the benefit of all persons to whom the contractor may become indebted on account of such contract, p. 353.</p> <p>5. Bonds. — Conditional Provision for Attorney’s Fees. — Validity of Condition. — Section 90S9 Burns 1908, §5518 R. S. 1881, providing that agreements to pay attorney’s fees, depending on any condition, and made a part of any bill of exchange, acceptance, draft, ' promissory note, or other written evidence of indebtedness, are illegal and void, does not apply to such an agreement contained in a bond given by a contractor to secure faithful performance, p. 356.</p>

<p>Prom Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Charles W. Crawley against the Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Washington. Circuit Court; Thomas B. Busldrh, Judge.</p> <p>Action by Emmet H. Cadle against John W. McIntosh. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Hendricks Circuit Court; James L. Clark, Judge.</p> <p>Action by Annetta Cooper against William Cooper. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>Prom Gibson Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by Hanker Bell against the Ohio Farmers Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Assignment of Errors. — Waiver.—Briefs.—Errors assigned, but not presented by appellant in the points and authorities, or in the argument, in his brief, are waived, p.382.</p> <p>2. Appeal. — Presenta-tiem, of Grounds of Review. — Objections to Evidence. — Objections to the introduction of evidence must be made at the time it is offered, and the grounds of objection stated with such reasonable certainty as to call the mind of the court to the rule or rules of law making it incompetent, or they will not be considered on appeal, p. 383.</p> <p>3. Contracts. — Action for Breach. — Pleading.—Evidence.—In an action by a sub-contractor who did part of the work on a brick building, where the complaint alleged the making of the contract, and that, by subsequent agreement, part of the work required to be done by him was omitted, and that a specified amount was a reasonable credit for the same, it was proper for defendants to prove, under the general denial, the entire agreement by which such work was omitted, or their version thereof, and that a greater deduction should be made from the contract price, p.384.</p> <p>4. Pleading. — General Denial. — Pacts Provable. — Under the general denial, in addition to negative proof in denial of the facts stated in the complaint as a cause of action, defendant may introduce prooi of facts independent of those alleged in the complaint, but which are inconsistent therewith, and tend to meet and break down or defeat the plaintiff’s cause of action, p. 384.</p> <p>5. Witnesses. — Contradiction.-—Evidence.—In an action by a subcontractor to recover for work done, where he testified that a credit allowed by him for omitted work was a reasonable credit, evidence of an agreement by plaintiff to allow a much larger credit was competent for the purpose of contradicting and rebutting his evidence as to the value of the work, and as an admission of such value made by him before testifying, p.385.</p> <p>G. Appeal. — Review.—Objection to Evidence. — Theory of Action.— Where it appears that the case was tried below on the theory that certain evidence was within the issues tendered, the parties will be held to that theory on appeal, p. 385.</p> <p>7. Appeal. — Review.—Harmless Error. — Admission of Evidence.— In an action by a building contractor, the admission of a statement made by the architect in plaintiff’s absence was harmless, where there was other evidence given in the case before such statement was admitted, to the effect that the architect had made the same statement in plaintiff’s presence, p. 386.</p>

<p>1. Appeal. — Record.—•Review.—Affirmance.—Where the record and briefs on appeal disclose no error, the judgment will be affirmed.</p>

<p>Prom Superior Court of Marion County (68,911); James M. Leathers, Judge.</p> <p>Action by James B. Allfree against tbe Allfree Engine Company, in which William C. Hall, on his own application, was made a party defendant and, for himself and others, filed a cross-complaint. Prom a judgment for plaintiff, and against the cross-complainant, the cross-complainant appeals.</p>

Prom Clay Circuit Court; John M. Bawley, Judge. Action by William P. Clark, administrator of the estate of Maggie Clark, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and others. Prom a judgment for plaintiff, the defendants appeal.

From Scott Circuit Court; Joseph H. Shea, Judge. Action by Solon T. Harrod and others against William H. Littell and others. From a judgment granting part of the relief prayed for, the plaintiffs appeal.

<p>1. Highways. — Road Supervisors. — Validity of Election. — Section 1 of the act of 1907 (§7761 Bums 1908, Acts 1907 p. 371), which is an amendment of §92 of the act of 1905 (Acts 1905 p. 567) relating to highways and providing for the election of road, supervisors, contains no provision as to the manner of holding such election or certifying the result thereof, and such elections not being controlled by the general election law, the courts have no authority to declare against the result of an election of a road supervisor held pursuant to the act of 1907, at which there was a full and fair expression of the voters, and the result was conceded to be in accordance with the will of the majority, simply because the election was not held in accordance with the Australian ballot system, pp. 427,428.</p> <p>2. Elections. — Validity.—Effect of Irregularities. — Where an election has been fairly and honestly conducted, it will not thereafter be invalidated by mere irregularities which are not shown to have affected the result, p.427.</p> <p>3. Elections. — Laws as Mandatory or Directory. — All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose, but after election they should be held directory only, In support of the result, unless of a character to obstruct the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. p. 428.</p>

<p>1. AppealVacation Appeal. — Motion to Dismiss. — Affidavit in Support of Motion. — Counter-Affidavits.—Presurmpttons.—Where, on motion to dismiss a vacation appeal, an affidavit in support of the motion showed that aiipellant had notice of the death of five of the defendants, named as appellees, before the filing of the transcript, and that there had been no substitution of parties, nor steps taken to perfect the appeal as to them, and that ten other defendants were not represented by attorneys and had not been served with notice of the appeal, and counter-affidavits by appellant and his attorneys showed that neither appellant nor his attorneys had notice, at the time of filing the transcript, that any of the defendants were dead or that the appearance entered for any of the defendants was not a full or hona fide appearance, and the proof of service showed service on the attorneys of record for all of such defendants nine days before the filing of the transcript, the court will conclude, in the absence of a showing that the person who served the notice on behalf of appellant was not fully advised of the facts set out in the affidavit in support of the motion, that before filing the transcript appellant knew that five of the defendants were dead, and that ten other defendants were not represented by attorneys, p. 430.</p> <p>2. Appeal. — Notice.—Service on Attorney. — Sufficiency.—For the purpose of serving notice of appeal pursuant to §681 Burns 1908, §640 R. S. 1881, an attorney of record is presumed to continue as such until appellant has notice of the termination of the relation of attorney and client, and, in the absence of a showing that appellant knew of the termination of such relation, or that no such relation ever existed, service of notice on such attorney is as good as service on the party himself, p. 432.</p> <p>3. Appeal. — Time for Perfecting: — Service of Notice. — Section 672 Burns 1908, §633 R. S. 1881, limits the time within which appeals may be taken to one year from the date of the judgment, and the appeal must be fully perfected within such time, so that where notice, as required by §681 Burns 1908, §040 R. S. 1881, was not served on all the ijarties within that time, there can be no determination of the cause on its merits, pp. 432,433.</p> <p>4. Appeal. — Power to Fsocuse Failure to Perfect Appeal in Time.— The court possesses the inherent power to grant relief against accidents and mistakes in a proper case, but it will not grant leave to appeal or perfect an appeal after the time fixed by §672 Burns 1908, §633 R. S. 1881, except on a clear and strong showing, p. 433.</p>

<p>1. Appeal. — Record.—Omission of Complaint. — In the absence of tbe complaint from the record, no question is presented on appeal, p. 434.</p> <p>2. Appeal. — Record.—Requisites.—Although under §§G67, G90 Burns 1908, Acts 1903 p. 338, §649 R. S. 1881, an appellant is not required to bring up the entire record on appeal, its contents must be sufficient to present to the court, in intelligent form, the question sought to be reviewed, so that no question is presented by an assignment that the court erred in the conclusions of law, where only the findings, the conclusions of law and the judgment of the court are set out in the record, p. 435.</p>

<p>From Lagrange Circuit Court; James S. Dodge, Judge.</p> <p>Action by Frank H. Calaban against George W. Dunker and another. From a judgment for defendants, the plaintiff appeals.</p>

From Delaware Circuit Court; J oseph G. Leffler, Judge. Action by Herbert L. Benbow and another against Benjamin Studebaker and others. From a judgment for defendants, the plaintiffs appeal.

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by John Craig and another against John Goff. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Appeal. — Rulings on Demurrers. — Motion for New Trial.— Briefs. — Where error in sustaining certain demurrers and in overruling a motion for a new trial is relied on for reversal, appellant’s failure to set out in his brief the demurrers and motion, or the grounds of each, is such failure to comply with the court rules as to warrant an affirmance of the judgment, p. 467.</p> <p>2. Appeal. — Transcript.—Bill of Exceptions. — Cleric’s Certificate. —Heal of Court. — The bill of exceptions should precede the clerk’s certificate, and unless the transcript is attested by the clerk with tke seal of the court, the evidence contained in such bill of exceptions cannot be considered, p. 468.</p> <p>3. Hxjsband and Wise. — Judicial Sale of Husband’s Land. — Interest of Wife. — Rights of Surviving Husband-. — Where, following the judicial sale of a husband’s lands, the wife’s interest therein' was set off to her in a partition proceeding under the provisions of §3052 Burns 190S, §2508 It. S. 1881, the title acquired by her was an absolute one, which, if undisposed of during her life, vested in the husband at her death under the provisions of §3054 Burns 1908, §2510 R. S. 1SS1, so that a quitclaim deed by the husband of his interest therein after the death of the wife passed complete title, p. 468.</p> <p>4. Fraud. — Complaint.—Sufficiency.—-A complaint alleging that a signature to a deed was obtained by fraud, but failing to 'allege the facts and circumstances constituting the fraud, is insufficient, p. 469.</p>

<p>Prom Superior Court of Marion. County (78,013); Pliny W. Bartholomew, Judge.</p> <p>Action by Mamie Greenwald against the German Pire Insurance Company of Indiana. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Appeal. — Briefs.—Statement of Record. — The court on appeal will be governed by the statement of the record set out in appellant’s brief, p.476.</p> <p>2. Limitation oe Actions. — Actions Against Public Officers. — Circuit Cleric. — -Under §295 Burns 1908, §293 R. S. 1S81, providing that all actions against a public officer, or against such officer and his sureties on a public bond, growing out of a liability incurred by doing an act in an official capacity or by the omission of an official duty, shall be brought within five years after the cause of action has accrued, except actions against the officer or his legal representatives, for money collected in an official capacity and not paid over, which may be brought at any time within six years, an action brought against a former clerk of the circuit court individually, for money collected in his official capacity, must be commenced within six years after it accrued, p. 478.</p> <p>3. Appeal. — Action Against Public Official.- — Review.—Judgment. —Affirmance.—Where plaintiff appealed from a judgment in its favor in an action against a public official to recover fees collected in his official capacity, but made no claim that the judgment did not cover all the fees collected by defendant within the six years before the beginning of the action, the judgment will not be reversed for failure to include items collected prior to such six year period, in the absence of facts showing that the cause of action as to such items was removed from the operation of the statute, p. 478.</p> <p>4. Limitation of Actions. — Concealment of Cause of Action.— Acts Constituting Concealment. — Under §302 Burns 1908, §300 It. S. 1881, providing tliat if any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation after the discovery of the cause of action, the concealment contemplated must he more than mere silence, and must he of a character to prevent the discovery of the cause of action after it has arisen, p. 479.</p> <p>5. Limitation of Actions. — Avoiding Statute of Limitations.— Complaint. — Allegations.—Proof.—Concealment of Cause of Action. — To avoid the statute of limitations on the ground that there has been a concealment of the cause of action, the plaintiff should allege and iirove the facts constituting such concealment, p. 479.</p> <p>C. Appeal. — Burden of Showing Error. — The burden is on appellant affirmatively to show harmful error, and the court will not search the record to reverse a judgment, p. 480.</p>

<p>1. Negligence. — Complaint. — Allegations. — Sufficie-neij. ■— Evidence. — A complaint charging that certain acts were negligently done to the injury of complainant, is sufficient to withstand a demurrer, if a legal duty and the violation thereof are shown; and under such averments proof is admissible to show the alleged negligent acts and their relation to the injury charged, p. 4S5.</p> <p>2. Cabbiees. — Carriage of Passengers. — Transportation in Box-Car. ■ — Complaint.—A complaint for personal injuries, against a railroad company, alleging that defendant accepted from plaintiff a certain horse for shipment, and at the same time accepted plaintiff as a passenger on its railroad, and in the box-car with the horse, and received from him the usual fare therefor, shows that plaintiff was a passenger for hire. p. 486.</p> <p>3. Caeeiers. — Carriage of Passengers. — Transportation in Box-Car. —Care Required. — While one, who is a passenger on a freight train, assumes the risks and inconvenience necessarily and reasonably incident to being carried by that method, he does not assume the risk of injury resulting from negligently handling the car in which he is riding, but the railroad company must exercise the highest degree of care for his safety consistent with the usual and practical operation, of such trains, p. 480.</p> <p>4. Cabbiees. — Carriage of Passengers. — Transportation in Box-Car. —Injury to Passenger. — Complaint.—Allegations in a complaint against a railroad company by a passenger for injuries received while riding in a box-car with a horse he was transporting, that defendant negligently, violently and with great force shoved and pushed the car, in which plaintiff was riding, into and against a locomotive standing on the track, by reason of which plaintiff was violently thrown to the car floor and injured, show an act of switching out of the usual and ordinary mode, and tend to sup- ■ port the general allegation of negligence, p. 487.</p> <p>5. Aepeal. — Review.—Harmless Error. — Ruling on Demurrer.— Where a cause was tried on one paragraph of a complaint, error, if any, in ruling on a demurrer to another paragraph was harmless. p. 487.</p> <p>6. Trial. — Ansioers to Interrogatories. — • Effect.— An answer of “we don’t know” to an interrogatory pertinent to the issues is uncertain and without effect, p.488.</p> <p>7. Carriers. — Injury to Passengers. — Verdict.—‘Where, in an aC‘ tion by a passenger against a railroad company for personal injuries, the complaint alleged that plaintiff was thrown violently forward in the car in which he was riding, down upon the floor and against the side and end of such car, whereby he received various alleged injuries, a general verdict for plaintiff includes a finding that he received all the injuries alleged in the manner stated in the complaint, p. 488.</p> <p>8. Carriers. — Injury to Passengers. — Verdict.—Answers to Interrogatories. — In an action by a passenger against a railroad company for personal injuries, where the complaint alleged that plaintiff, who was riding in a box-ear with a horse which he was having transported, was thrown violently to the floor and against the side and end of the car, whereby he received various alleged injuries, the jury’s answer, “we don’t know,” to an interrogatory asking whether plaintiff was injured by the door of defendant’s car or by his own horse, even if considered as showing anything, is not the equivalent of saying generally, that the jury did not know how plaintiff was injured, and neither such answer nor the jury’s further answer that it did not know if plaintiff’s hand was injured by the closing of the door, is inconsistent with a general verdict for plaintiff, p. 4S9.</p> <p>9. Carriers. — Injury to Passengers. — Verdict.—Answers to Interrogatories.- — In a passenger’s action against a railroad company for personal injuries, where the complaint alleged an injury to plaintiff’s hand and also alleged various other injuries, the jury’s answer to an interrogatory, that there was no evidence to show how plaintiff’s hand was injured, is insufficient to overcome the general verdict for plaintiff, in the absence of a showing that the jury considered the injury to the hand in the assessment of damages, p. 489.</p> <p>10. Trial. — Verdict.—Presumptions.—Answers to Interrogatories. —Where facts found by the jury in answer to interrogatories are such only as to preclude a recovery on one branch of a case, and no facts are found which preclude a recovery on anothei branch, it will be presumed that the jury based its verdict on that branch wherein the answers are not inconsistent with the general verdict, p. 490.</p> <p>11. Carriers. — Injury to Passengers. — Verdict.—Ansioers to Interrogatories. — In a passenger’s action against a railroad company for personal injuries, where the complaint alleged an injury to plaintiff’s hand and also alleged various other injuries, and there was no dispute at the trial on the proposition that his hand was found in the mangled condition alleged, answers by the jury that there was no evidence showing how his hand was injured, is not in irreconcilable conflict with the general verdict for plaintiff, p. 490.</p> <p>12. Carriers. — Injury to Passengers. — Passenger Ridmg in Box-Oar. — Instructions.—In an action for injuries to plaintiff while riding as a passenger for hire in a box-car with a horse which he was having transported, instructions as to the duty of a common carrier, as applied to persons on regular passenger trains, and instructions stating that a railroad company is not bound to furnish a passenger on a freight train the conveniences of a passenger train, that such passenger is presumed to know the way freight trains are ordinarily operated, that he assumes the risk ordinarily incident to riding on such freight train, and mentioning perils necessarily incident to traveling in a freight car, and stating that plaintiff could not recover for injuries caused by perils necessarily incident to the operation of the car on which he was riding, when considered together, fully and correctly stated the law applicable to the case. pp. 491,492.</p> <p>1.3. Carriers. — Carriage of Passengers. — Passenger on Freight Oar. — f'Oaretalcer.”—Where the. shipper of a horse paid his fare as a passenger and was allowed to ride in the car with the horse, with the knowledge and acquiescence of those in charge of the train, he was in practically the same situation as a caretaker of stock in shipment, and does not assume the risk incident to negligence in the management of the train, p. 492.</p> <p>14. Appeal. — Revieio.—Refusal of Instructions. — The refusal of a requested instruction is not error, where its substance and meaning were embraced in an instruction given, p. 492.</p> <p>15. Carriers. — Injury to Passengers. — Passenger on Freight Oar.— Instructions. — Refusal.—In an action for injuries to a passenger on a freight car, an instruction that if he had been warned to stay away from the door of the car because it was a place of danger, and that, after being so warned, he remained by said door and was injured thereby, the finding should be for defendant, was properly refused, since it precluded any recovery for any other injuries which he may have received through defendant’s negligence and in no way contributed to or caused by his remaining at the door, and also precluded recovery even though the injury caused by remaining at the door may not have been alleged in the complaint as a basis of recovery, p. 493.</p> <p>16. Trial. — Instructions.—Consideration.—Instructions are to be considered as a whole, and not in detached parts, p. 493.</p> <p>17. Carriers. — Carriage of Passengers. — Passenger m Stock Car. —Right to 6o Carried to Stoclcyards. — Jury Question. — In an action for injuries to plaintiff while riding as a passenger in a freight car with a horse he was having transported, the question whether he was entitled to ride to the stockyards where the horse was to be unloaded, or was bound to alight at the passenger station, was for the jury to determine, p. 494.</p> <p>IS. Trial. — Recovery ly Plaintiff. — Evidence.—It is not incumbent on a plaintiff to prove his ease by any particular kind or class of evidence, but to support a verdict in his favor he must produce some evidence to sustain each material allegation of his complaint, p. 495.</p> <p>19. Appeal. — Review.—Evidence.—Findings.—Where, from all the facts and circumstances proven in the case, the inference maybe drawn that plaintiff was injured in the manner alleged, and the jury has so found, the finding and judgment will not be disturbed on appeal on the ground of insufficient evidence, p. 495.</p> <p>20. Evidence. — Expert Witnesses. — Examination of Injuries,— Questions to medical men as to what they saw when examining plaintiff’s injuries were proper, and tfie testimony elicited was competent, p. 495.</p> <p>21. Evidence. — Res Gestae. — Expressions of Pain. — The testimony of a physician attending plaintiff for his injuries, as to plaintiff’s expressions of pain, is competent, regardless of whether such expressions were made before or after suit is begun, p. 490.</p> <p>22. Evidence. — Res Gestae. — Expressions of Pam. — Evidence of expressions of present pain is not objectionable on the ground of hearsay, p. 496.</p> <p>23. Evidence. — Expressions of Pain. — Exact Words. — The exact words of the person whose expressions of present pain are called for in evidence need not be given, and a slight departure from the rule admitting such testimony is not sufficient cause for reversal. p. 496.</p>

<p>1. Pleading. — Complaint.—Determination of Sufficiency. — The sufficiency of a paragraph of complaint cannot depend on the construction of a written agreement that is neither set out in the complaint nor filed therewith as an exhibit, nor on any constructions that may be placed on the evidence introduced in its support, either written or oral, but its sufficiency must be determined from its own averments, p. 501.</p> <p>2. Easements. — Easement Running With the Land. — Complaint.— Sufficiency. — In an action against a railroad company for tho destruction of a passageway under its tracks, a paragraph of complaint alleging that defendant’s tracks cross plaintiff’s farm, that when defendant and its predecessors acquired the right of way, plaintiff’s father, who then owned the farm, reserved for the use of said real estate for himself, his heirs and assigns, a perpetual right to a passageway under the railroad track, that such passageway has been used continuously by plaintiff and his immediate and remote grantors up to the time of its destruction by defendant, and that defendant has wholly destroyed same, shows an easement running with the land and is sufficient to withstand a demurrer, p. 502.</p> <p>3. Eminent Domain. — Assessment of Damages. — Scope.—Damages assessed in condemnation proceedings for a railroad right of way, although assessed as of date of the appropriation, include all damages of every character which might reasonably be expected to result from the appropriation and construction of the road in a proper and lawful manner, but are not presumed to include damages resulting from negligent construction of the road, or from improper enroachments on land outside of the right of way. pp. 502, 503.</p> <p>4. Railroads. — Right of Way. — Deed.—Effect.—A deed of land for a railroad right of way, like the assessment of damages in condemnation proceedings, is presumed to include all damages arising from the proper construction of the road. p. 503.</p> <p>5. Easements. — ■Easement by Prescription. — Drainage of Surface Water. — Obstruction.-—Complaint for Damages. — Sufficiency.—A complaint showing that plaintiff acquired an easement by prescription to maintain a ditch, in a passageway under defendant’s railroad, for the drainage of his farm, and that defendant had destroyed the ditch by closing the passageway, to the injury of plaintiff, States a cause of action, p. 504.</p> <p>0. Eminent Domain. — Assessment of Damages. — Easement by Prescription Under Railroad Right of Way. — Damages resulting from the destruction of an after acquired easement by prescription for the maintenance of a drainage ditch under defendant’s railroad right of way, are not within the rule that the assessment of damages in the original condemnation proceedings includes all damages of every character which might reasonably be expected to result from the appropriation and construction of the road in a proper and lawful manner, p. 504.</p> <p>7. Waters and Watercourses.- — Drainage of Surface Water. — Action Against Railroad. — Damages.—Complaint.—Sufficiency.—A paragraph of complaint in an action for damages against a railroad company, alleging that defendant in the reconstruction of its roadbed had excavated ditches along and upon its right of way across and beyond plaintiff’s farm, whereby large quantities of water, not accustomed to flow upon plaintiff’s land, were accumulated and poured thereon, but not averring any negligence in the construction of such ditches, or that they carried any water other than was necessary for the proper drainage of defendant’s right of way, or that defendant had failed to provide an outlet for such water, was insufficient to state a cause of action, since it showed only such damages as were included in the original assessment of damages in the condemnation of the land for a right of way. pp. 504, 506.</p> <p>8. Waters and Watercourses.— Surface Waters.— Railroads.— While a railroad company has a right to lower the grades of its tracks, and to dig ditches to convey water off its right of way, it may not turn such water onto the lands of an adjacent owner, except by authority of law or under contract, where it imposes a burden on such lands, p. 505.</p> <p>0. Easement. — Private Railroad Crossing. — Contract.—Construction. — Easement Appurtenant or in Gh'oss. — A contract between a landowner and a railroad company, whose right of way extended across his land, providing in section three that such landowner should have a perpetual right for himself and his stock to the use of a passageway under the track, and, in sections four and five, providing for a lane on either side of the track and for a private crossing over such track, and providing in the sixth section that the rights and privileges granted in the fourth and fifth sections should not continue beyond the time when such landowner ceased to own such farm, granted an easement, by its third section, which was appurtenant to the land and not merely personal to the then owner, pp. 507,509.</p> <p>10. 'Easements. — Construction.—An casement is never presumed to be in gross, or a mere personal right, when it can be fairly-construed to be appurtenant to some other estate, p. 509.</p> <p>11. Easements. — Grant.—Construction.—In construing an instrument creating an easement, the intention of the parties, as ascertained from an examination of all the material parts of the instrument, must govern, p. 509.</p> <p>12. Easements. — Grant.—Sufficiency.—Under §3900 Burns 1908, §2929 II: S. 1881, providing that the words “heirs and assigns of the grantee” shall not be necessary to a deed to create in the grantee an estate of inheritance, the word “heirs” is not essential in the grant of an easement to make the same an easement appurtenant to the land. p. 509.</p> <p>13. Easement. — Easement Acquired Toy Grant or Reservation.— Nomiser. — Effect.—An easement acquired by actual grant or reservation cannot he lost by nonuser. p. 510.</p> <p>14. Appeal. • — Review. —Instructions. —Pleading and Evidence. — Damages. — Where the theory of the pleadings and the evidence was that the damages for which recovery was sought were permanent, an instruction that if plaintiff had not sustained permanent injuries, but had sustained temporary injury, he was entitled to such damages as the evidence showed he had sustained, was erroneous, p. 510.</p> <p>15. Appeal. — Review.—Judgment.—Damages.—Where, in an action for damages, the paragraphs of complaint that were sufficient were upon the theory of permanent damages, and all the evidence was upon that theory, and it conclusively appears from the record that, of the judgment for $4,500, $4,000 is predicated on the good paragraphs of complaint, is sustained by proof, and was in no way affected by error in overruling the demurrer to a bad paragraph of complaint and in giving an instruction authorizing damages for temporary injuries, and the cause has been tried twice, the ends of justice are best served by ordering a remittitur of the excess, rather than a reversal of the cause, p. 511.</p>

<p>1. Fraud. — Action Against Real Estate Agent. — Nature of Action. —Complaint.—Sufficiency.—A complaint against real estate agents, employed by plaintiff, on commission, to effect an exchange of real estate, for fraudulently preventing the consummation of the exchange on terms favorable to plaintiff, and inducing plaintiff to sell the land for cash to a third person for less than could have been obtained in the proposed trade, is not insufficient for failure to allege that the contract for the payment of the commission was in writing as required by §7463 Burns 1908, Acts 1901 p. 104, since the action, being based on the fraud of defendants, is ew delicto and not dependent on the existence or validity of any contract p. 517.</p> <p>2. Fraud. — Action Against Real Estate Agent. — Evidence.—Verdict. — A verdict for plaintiff, in an action against real estate agents for fraud perpetrated in disposing of real estate for plaintiff, is not contrary to law, or supported by insufficient evidence, because plaintiff’s contract to pay defendants a commission was not reduced to writing, as required by §7463 Burns 1908, Acts 1901 p. 104. p. 518.</p> <p>3. Appeal. — Review.—Harmless Error. — Admission of Evidence.— Contents of Writing. — The admission of parol testimony, over defendants’ objection, as to the contents of a writing, shown to be in the possession of defendants, and in the absence of any notice on defendants to produce it at the trial to be used in evidence, although erroneous, was rendered harmless where defendants introduced a carbon copy of such writing showing the contents to be in exact conformity to such parol testimony, p. 518.</p> <p>4. Appeal. — Review.—Evidence.—Admissibility in Rebuttal. — In an action for fraud perpetrated by defendants, who were employed by plaintiff to effect an exchange of real estate, where testimony was introduced by defendants tending to show that plaintiff had engaged another agent to sell the same land, testimony by a witness for plaintiff, that in a conversation which he overheard between plaintiff’s husband and such other agent plaintiff’s husband refused to list the property for sale or trade, was proper in rebuttal, as tending to prove that it was not listed with such agent at the time the conversation took place, p. 518.</p> <p>5. Witnesses. — Contradiction.—Evidence.—In an action against real estate agents for fraud, where plaintiff’s husband testified that one of the defendants called him by long distance telephone from Indianapolis on a certain day, and that a certain conversation took place between them, which was denied by such defendant, the testimony of the telephone operator that she had a ticket of such date from an Indianapolis pay station to plaintiff’s husband, and the ticket itself, showing the call and the duration of the conversation, were admissible, as tending to show that a conversation was had with some one; other evidence being admissible to show that such defendant was the person conversed with. p. 519.</p> <p>0. Appeal. — Review.—Harmless Error. — Instructions.—Where the second paragraph of a complaint had been dismissed, an instruction calling attention to the difference between the first and second paragraphs, was rendered harmless by an instruction informing the jury that such second paragraph had been dismissed and that its verdict must rest on the first paragraph, p. 519.</p> <p>7. Trial. — Instructions.—To be good, an instruction purporting to state the material allegations of the complaint, proof of which will entitle plaintiff to recover, must embody every material fact essential to a recovery, p. 519.</p> <p>8. Fraud. — Burden of Proof. — Instructions.—In an action to recover for fraud, an instruction purporting to state the material allegations of the complaint, proof of which would entitle plaintiff to recover, in which the jury was told that it was necessary for plaintiff to prove by a fair preponderance of the evidence that defendants deceived and defrauded her while acting as her agents, as described in the complaint, but which omitted a statement of the facts necessary to constitute fraud, was not erroneous or misleading when considered with another instruction stating that representing to another as true, for the purpose of being acted upon, that which one knows to be false, in such way and under such circumstances as to induce a reasonable man to believe that it is true, constitutes fraud, where the person to whom such representation is made believes it and acts upon it, and suffers damage thereby, p. 519.</p> <p>9. Fraud. — Action Against Real Estate Agent. — Harmless Error.— Instructions. — In an action against real estate agents for fraud perpetrated on plaintiff in disposing of plaintiff’s real estate, an instruction that if the jury found from a fair preponderance of the evidence that defendants were not the agents of plaintiff at the time of the transaction complained of and that it was a deal wherein no agency existed and no fraud was perpetrated, the verdict should be for defendants, although inaccurate, was not misleading and did not constitute reversible error, since it did not conflict with other instructions given, and the jury was told in other instructions that plaintiff could not recover unless she had proved by a preponderance of the evidence that the agency existed and that the fraud was perpetrated as charged in the complaint, p. 520.</p> <p>10. New Teial. — Newly Discovered Evidence. — Diligence.—Discretion. — Where, on application for a new trial on the ground of newly discovered evidence, the trial court had before it conflicting affidavits on the question of diligence on the part of defendants, its action in refusing a new trial was not an abuse of its discretion, p. 521.</p>

<p>Prom Orange Circuit Court; Harry G. Montgomery, Special Judge.</p> <p>Action by John Gorman, administrator of the estate of James Simpson, deceased, against H. A. MeCowen & Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Putnam Circuit Court; John M. Bawley, Judge.</p> <p>Action by John C. Eeeder against the Indianapolis and Martinsville Eapid Transit Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Jackson Circuit Court; JoJmM. Lewis, Judge.</p> <p>Action by Pinch Sharpe and another against Celestus Baker and others. Prom a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Oaebiees. — Carriage of Passengers. — Personal Injuries. — Limitation of Liability. — One riding on a pass issued to bim gratuitously is not a passenger for hire, and is bound by conditions thereon releasing the carrier from any and all claims for injuries. p. 575.</p> <p>2. Oaebiees. — Carriage of Passengers. — Passenger for Hire. — Verdict. — Conelusiveness.—A verdict for plaintiff, in an action for injuries received in a railroad accident while riding on a pass, if supported by evidence, conclusively settles that he was a passenger for hire, and not a mere gratnitant p. 575.</p> <p>3. Oaebiees. — Can'iage of Passengers. — Personal Injuries. — Evidence. — Verdict.—In' an action by plaintiff for injuries received while riding on a railroad pass, where the evidence showed that as a result of negotiations opened by defendant, plaintiff located his factory on defendant’s line, in consideration of which defendant bound itself to make certain rates on freight and to build side tracks for plaintiff’s benefit, and that as a part of the agreement defendant was to furnish transportation to plaintiff, that all the terms of the agreement were carried out and the pass issued before plaintiff’s factory was moved, and that each year thereafter a pass was issued to plaintiff, a verdict for plaintiff conclusively settled that plaintiff was a passenger for hire, p. 575.</p> <p>4. Oaebiees. — Carriage of Passengers. — Personal Injuries. — Limitation of Liability. — Public Policy. — A contract exempting a common carrier from the consequences of its own negligence in injuring a passenger is against public policy, and void; but such, a contract in a pass issued by a private carrier, is valid, although issued for a consideration, if it is accepted and used with knowledge of the conditions, p. 576.</p> <p>5. Carriers. — Carriage of Passengers. — Personal Injuries. — Passenger Traveling on Pass. — Common Carrier.- — Liability.—Where a railroad company issued a pass to plaintiff as one of the inducements to secure the location ■ of plaintiff’s factory on its line, whereby defendant anticipated benefits in its capacity as a public-carrier, it acted as a common, and not a private, carrier in transporting plaintiff on the pass so issued, and a stipulation therein contained releasing defendant from liability for injuries to plaintiff was void. p. 578.</p> <p>6. Appeal. — Review. — Instructions. — Refusal. — In an action against a railroad company for personal injuries to plaintiff who was traveling on a pass issued to him by defendant as one of the inducements for locating his factory on defendant’s line, instructions tendered by defendant on the theory that the pass was issued and accepted as a mere gratuity and that a stipulation contained therein exempting defendant from liability for injury was binding on plaintiff, were properly refused, p. 583.</p>

<p>Prom Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by The Burley Tobacco Society against Ilarry Gillaspy. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Joel 0. Duling against the Indiana Natural Gas and Oil Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Pike Circuit Court; John L. Brets, Judge. Action by Lydia Abbot, by her next friend, Willard Teague, against Millard S. Teague, administrator of the estate of Jefferson Teague, deceased. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Negligence. — Complaint.—Allegations.—Duty.—While a complaint for damages in a negligence case must show the violation of a legal duty owing by the defendant to the person injured, which resulted in the injury, it need not specifically aver that defendant owed such duty. p. 618.</p> <p>2. Negligence. — Complaint.—Conclusions.—Allegation of Duty.— The allegation, in a complaint in a negligence ease, that defendant owed to plaintiff a legal duty, the violation of which caused the injury, is merely a conclusion and is insufficient in the absence of averments showing such relation between the parties, at the time of the injury, as will create the legal obligation or duty. p. 618.</p> <p>3. Negligence. — Oomplaint.—Allegation of Duty. — Sufficiency.—A ■ complaint in a negligence case averring that defendant, a merchant, conducted a general hardware store, that by solicitation and advertisement he invited the general public to enter his store to purchase goods, and that plaintiff entered the store to make a purchase, and was invited and conducted by defendant to a place in the store near to an unprotected elevator opening, and that, while there, plaintiff fell into the opening and was injured, sufficiently shows the existence of a legal duty owing to x>lain-tiff, the violation of which caused his injury, p. 618.</p> <p>4. Negligence. — Gontrib utory Negligence. — Oomplaint.—Sufficiency. - — In an action for injuries from falling into an elevator opening in defendant’s store, a complaint alleging that it was dark and plaintiff could not see the opening and had no knowledge of its existence and no means of ascertaining such fact, and containing no specific averments affirmatively showing that he was guilty of contributory negligence, is sufficient as against the objection that it fails to show that plaintiff could not have discovered the elevator by the use of ordinary care, since under §3,62 Burns 1908, Acts 1899 p. 58, plaintiff is not required to negative contributory negligence, p. 620.</p> <p>5. Appeal. — Briefs.—Failure to Set Out Motion for New Trial.— Where there was a total failure by appellant to set out in his brief the motion for a new trial, or any of the grounds thereof, but the statement that “over appellant’s motion for a new trial the court rendered judgment”, and again, under the points and authorities, where a ruling of the court on a question of evidence is urged as error, the statement that the ruling is assigned as one of the reasons for a new trial, citing the page and line of the transcript, are the only references to such motion to be found in the brief, there has been no sufficient compliance with Rule 22 of the Supreme and Appellate cotirts, and such questions cannot be considered, p. 621.</p>

<p>1. Appeal. — Assignment of Errors. — Questions Presented. — Under §1635 Burns 1908, Acts 1907 p. 221, providing for appeals from the juvenile court, an assignment of error, that the decision of the court is contrary to law, is sufficient to present the sufficiency of the facts found to sustain the judgment, p. 623.</p> <p>2. Pabent and Child. — Nonsupport of Children. — Dependent Child. — Neglected Child. — Suf/ieieney of Findings. — A special finding of facts by the juvenile court, in a prosecution against a father for contributing to the neglect of his children, showing that tin? mother left the defendant, taking the children with her, and that, after an unsuccessful attempt to obtain a divorce, she took the children to the home of her sister where they were kept contrary to the wishes of defendant, that defendant had provided a home and had insisted that the wife and children return to it, and that he refused to pay money for the support of the children so long as they were kept at the home of his wife’s sister, is insufficient to show that such children were either dependent or neglected children within the meaning of §§1642, 1643 Burns 1908, Acts 1907 p. 59, §§1, 2, defining dependent and neglected children, so as to render the father guilty of a misdemean- or under the provisions of §1645 Bums 1908, Acts 1907 p. 59, §4. pp. 625, 627.</p> <p>3. Pabent and Child. — Support of Children. — Duty of Father. — It ' is the duty of a father to support his minor children in’return for which he is entitled to their services and companionship, p. 627.</p> <p>4. Husband and Wiee. — Rights of Husband. — Family Domicile.— A father, as head of the family, has a right to establish a domicile for the members of his family and to insist that they dwell there, in the absence of a sufficient reason for them not to do so. p. 627.</p>

<p>1. Appeal. — Record.—Bill of Exceptions. — Presumptions.—The bill of exceptions on appeal, signed and approved by the trial court, is presumed to speak the truth, and no error can be predicated on a state of facts not incorporated into the record, p. 630.</p> <p>2. Appeal.- — Record.—Briefs.—Matters contained in a brief, which are foreign to the record, cannot be considered on appeal, p. 630.</p> <p>3. Appeal. — Assignment of Errors. — Waiver.—Briefs.—-Errors assigned on appeal, but which are not discussed, are considered waived, p. 630.</p> <p>4. Appeal. — Assignment of Errors. — Rcvieto.—Failure to Present Question Below. — Errors assigned, relating to alleged irregularities in the trial court, will not be considered where the record discloses that no objection was made or exception reserved at the time. pp. 630, 631.</p> <p>5. Appeal. — Review.—Order to Produce Papers at Trial. — In an action against a bank for an accounting and the recovery of money deposited, the action of the court sustaining defendant’s motion to require plaintiff to produce, at the trial, his deposit tickets, cancelled checks and pass book, was not error, such proceedings being- directly authorized by §502 Burns 1908, §479 R. S. 1881. p. 630.</p> <p>6. Appeal. — Review.—Harmless Error. — Admission of Evidence.— Bunio BooJcs. — In an action against a bank for an accounting and to recover money deposited, the action of the court in allowing the books of the bank to be introduced in evidence over plaintiff’s objection and exception, was harmless, where defendant’s • bookkeeper gave evidence as to the same facts, irrespective of any- books of the bank. p. 631.</p> <p>7. Appeal. — Review.—Objection to Evidence. — General Objection. —Where the only objection to the introduction of evidence is general, the overruling of the same is not erroneous, p. 681.</p> <p>8. Appeal. — Review.—Instructions.—A cause will not be reversed for alleged error in instructions, where such instructions, considered as a whole, contain a fair and correct statement of the law applicable to the case. p. 631.</p> <p>0. Appeal. — Review.—Sufficiency of Evidence. — Ver Met. — Where there is a conflict in the evidence, and there is some substantial evidence supporting the verdict on the material points involved, the court will not weigh the evidence, but will allow the verdict to stand, p. 632.</p>

Prom Harrison Circuit Court; William Ridley, Judge. Action by Anna Eastridge, by her next friend, James A. Eastridge, against James H. Tucker and others. From a judgment for plaintiff, the defendants appeal.

<p>1. Appeal. — Revieio.—Evidence.—Weight.—Where there was much verbal testimony interwoven with documentary evidence and which bore directly on the vital questions in issue, the court on appeal is not required to weigh the evidence within the meaning of §698 Burns 1908, Acts 1903 p. 338, §8, providing that in a cause not triable by jury the judgment of the trial court shall be reversed if it'is not supported by, or is clearly against, the weight of the evidence, and the judgment, if supported by some evidence, will be affirmed, although the cause was one not triable by jury. p. 642.</p>

<p>Prom Warrick Circuit Court; Boscoe Kiper, Judge.</p> <p>Action by Mollie Pifer against the city of Evansville and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>Prom Superior Court of Allen County; Owen N. Heaton, Judge.</p> <p>Action by Harriett Blair against the city of Port "Wayne. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. New Trial. — Misconduct of Juror. — Voir Dire Examination. — ■ The act of a juror in misleading and deceiving defendant by failure to frankly, fully and truthfully answer the questions put to him on his voir dire, is such misconduct as will entitle defendant, on a, proper showing, to a new trial, p. 660.</p> <p>2. New Trial. — Misconduct of Juror. — Voir Dire Examination.— Diligence-. — To entitle a party to a new trial on the ground of misconduct of a juror, it must be shown that such misconduct was not known to the party or any of his attorneys before the verdict was returned, or that it did not become known in time to take the necessary steps to correct or avoid any prejudicial effect of such misconduct, p. 660.</p> <p>3. Malicious Prosecution. — iProbable Cause. — Instructions.—An instruction, in an action for malicious prosecution, telling the jury that it should consider only certain facts and circumstances in determining the question as to whether defendant had probable cause to> institute the prosecution, is erroneous, since the question of whether, under a given state of facts, probable cause existed, is a question of law for the court, p. 661.</p> <p>4. Malicious Prosecution. — Probable Cause. — Conflicting Theories. — Instructions.—Where, in an action for malicious prosecution, the evidence presents two conflicting theories on the question of probable cause, one consistent with its existence and the other consistent with its absence, the court should hypothetically state to the jury the group of facts which it concludes show probable cause, and direct the jury to find that there was probable cause if such group of facts are found to have been proven by the evidence; and should also hypothetical!y state the group of facts which it concludes show the absence of probable cause, and direct a finding of n want of probable cause if such facts are found to have been proven by the evidence, p. 663.</p> <p>5. Malicious Prosecution. — -Probable Cause. — Instructions.—An instruction, in an action for malicious prosecution, that it is necessary to find that there was no probable cause, before plaintiff can recover, is correct, where the jury has also been told what particular facts within the evidence necessitate a finding of a want of probable cause, p. 664.</p> <p>6. Appeal. — Review.—Invited Error. — Instructions.—Whether or not error in an instruction given by the court was invited by appellant, by a requested instruction which was not given, should depend on the principle involved in the two instructions, rather than on any particular wording of the same. p. 664.</p> <p>7. Malicious Prosecution. — Probable Cause. — Knowledge of Pacts. — Instructions.—Where, in an action for malicious prosecution, the jury had been told that a prosecutor is not bound to verify the correctness of each item of information, and that he is Warranted in instituting a prosecution only when he has information from a credible source of such fact as would induce a reasonably intelligent and prudent man to believe that the accused is guilty of the crime charged, a succeeding instruction that, in determining the question of probable cause, the jury should consider only such facts' and circumstances as the evidence shows were known to the defendant, or its agent, at the time of instituting the prosecution, is not objectionable as requiring defendant’s knowledge, or that of its agent, to be personal knowledge, p. 666.</p> <p>8. Malicious Prosecution. — ■Probable Cause.— Determination.— Pacts to be Considered. — In determining tbe sufficiency of facts to show the existence, or want, of probable cause for instituting a criminal prosecution, consideration should be limited to the fac-ts in possession of the person making the charge at the time th&.proseeution was instituted, p. 667.</p> <p>9. Malicious Prosecution. — Damages.—Compensatory Damages. ■ — Instructions.—In an action for malicious prosecution, an instruction, that in assessing compensatory damages, the jury could take into account “all the circumstances surrounding the case as shown by the evidence”, though open to criticism, is not erroneous, since the jury has a right to assess punitive as well as compensatory damages, p. 668.</p> <p>10. Malicious Prosecution. — Evidence.—'Character of Plamtiff. — - In an action for malicious prosecution, evidence of the good character of plaintiff is admissible without first showing that >snch character was known to defendant, p. 669.</p>

Prom Monroe Circuit Court; James B. Wilson, Judge. Action by Dolly M. Barker, administratrix of tbe estate of Albert S. Barker, deceased, against the Chicago, Indianapolis & Louisville Eailway Company. Prom a judgment for defendant, the plaintiff appeals.

From Grant Circuit Court; E. J. Pmilus, Judge. Action by Davis Vermillion, administrator of the estate of Walter Fleming, deceased, against the Marion Light and Heating Company and others. From a judgment for plaintiff against the Marion Light and Heating Company only, said defendant appeals.

<p>Prom Warren Circuit Court; James T. Saunderson, Judge.</p> <p>Action by Solon A. Arms, as superintendent of the Levee Company, against William P. Carmichael and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Superior Court of Marion County (76,723) ; John L. MeMasior, Judge.</p> <p>Action by the Indiana Fuel Supply Company against the Aetna Indemnity Company of Hartford, Connecticut, and another. From a judgment for plaintiff, the defendant, Aetna Indemnity Company, appeals.</p>

<p>From Superior Court of Marion County (80,595); James M. Leathers, Judge.</p> <p>Action by the First National Bank of Seymour, Indiana, against the Atlas Engine Works and another. From a judgment for iilaintiff, the defendants appeal.</p>

<p>From Superior Court of Marion County (70,307) ; Glarencc E. Weir, Judge.</p> <p>Action by the Clinton Paving Brick Company and others against the Aetna Indemnity Company of Hartford, Connecticut. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Ellen S. Lillibridge against the Federal Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>