Volume 52 — Indiana Appellate Court Reports

From Jay Circuit Court; James J. Moran, Judge. Action by Catherine Manning against David. S. Wilson, executor of the last will and testament of William Manning, deceased. Prom a judgment for defendant, the plaintiff appeals.

<p>From Boone Circuit Court; James B. Kent, Special Judge.</p> <p>Action by the Farmers State Bank against Matthew G. Miller. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Contracts. — Action.—Contract Partly in Writing. — Parol Contract. — Where a written contract is relied on, the entire contract must be in writing, since a contract, partly in writing and partly in parol, is deemed in law a parol contract, p. 13.</p> <p>2. Contracts. — Elements.—Meeting of Minds. — To constitute a contract, there must be a meeting of the minds of the parties on one and the same thing, p. 16.</p> <p>3. Sales. — Contracts.—Offer.—Acceptance.—Where defendant, by letter to plaintiffs, indicated a desire to sell his corn, both old and new, and asked for prices on both, and plaintiffs replied by stating that they understood that he wanted to sell both the new and old corn, stating the prices that they could give for each kind, based on the day’s bid, and requesting an acceptance by return mail, and defendant, instead of accepting by return mail, replied the following day that he would sell the corn on the home farm at the price offered, but that as to the old corn he would like a little more, no valid contract of sale was thereby created, since defendant’s acceptance, not being in accordance with the offer, was at most only a partial acceptance of plaintiff’s proposition, and not binding upon either party, pp. 16,18.</p> <p>i. Conteacts. — Acceptance.—Scope.—The acceptance of a proposal, to constitute a contract, must be as broad as the proposal itself, and exactly meet its terms, p. 17.</p>

<p>Prom Huntington Circuit Court; Burdge H. Hurd, Special Judge.</p> <p>Action by Sylvester Zent against John Craig and another. Prom a judgment .for plaintiff, the defendants appeal.</p>

From Harrison Circuit Court; C. W. Cook, Judge. Action by the Ladoga Canning Company against the Corydon Canning Company. From a judgment in its favor for nominal damages, the plaintiff appeals.

<p>1. Railroads. — Interurban.—Injury to Persons on Iliglmay. — Evidence. — Sufficiency.—In an action for injuries sustained in a collision with an interurban car, where the complaint charged that the car was being operated “at an excessive, negligent and careless rate of speed of about thirty miles an hour,” thereby causing unusual, excessive and unnecessary noises which frightened plaintiff’s team and caused it to turn upon the track in front of said car, whereby plaintiff was injured, evidence showing that there was at the time a city ordinance in force prohibiting the running of cars at a higher rate of speed than ten miles per hour, and that, as the car approached, it was running at twenty-five or thirty miles an hour and made a loud noise and raised considerable dust, was sufficient to justify the jury in finding that the car was operated in excess of the speed allowed by ordinance, and that the team was frightened by the unusual noise and high rate of speed, and was sufficient to charge defendant with liability although there was some evidence tending to show that at the time of the collision the car had slowed down and was not running to exceed eight or ten miles an hour. p. 34.</p> <p>2. Railroads. — Operation.—Excessive Speed. — negligence Per Se.— It is negligence per sc for a railroad company to operate its cars in violation of a statute or municipal ordinance regulating the speed thereof, making the company liable for injury proximately caused thereby to one who is himself without fault, p. 35.</p> <p>3. Appeal. — Review. — Evidence. — Verdict. — Ooneluslveness.— AVhere the evidence is conflicting, the jury’s finding in the general verdict will not 'be disturbed on appeal, if there is any evidence tending to support each material issue, p. 35.</p> <p>4. Railroads. — Interurban.—Injury to Persons on Highway. — Duty to Slop Oar. — Instructions.—In an action for injuries caused by the collision of an interurban car with plaintiff’s team, which had become frightened by the approach of such car, an instruction that while those in charge of a car being operated on and through a public street are not required to immediately stop the car on seeing a team manifesting fright, it is the duty of such person to be constantly on the alert and if he discovers a person so situated that injury must follow unless the car is stopped, it is his duty to make all reasonable efforts to stop such car, and his failure to do so will render the company liable for the resulting damage, is correct and stated the rule with reference to the duty to stop as favorably to appellant as the authorities warrant, p. 36.</p> <p>5. Appeal. — Review. — Instructions. — Instructions in an action against a street car company, which attempted only to define certain duties of those in charge of street cars, in the management thereof, for the breach of which there may be a liability against the company, but not purporting to state the entire law of the case, were not objectionable on the ground of Ignoring the question of contributory negligence, where other instructions were given which covered that question, since the instructions must be considered as a whole, p. 36.</p> <p>6. Appeal.— Review.— Harmless Error.— Instructions.— Error, if any, in omitting the element oí contributory negligence from instructions, given in an action for damages for personal injuries, was harmless, where it was not contended at the trial that plaintiff was guilty of contributory negligence, and the evidence does not indicate that he was at any time at fault, p. 37.</p> <p>7. Railroads. — Interurban.—Injury to Persons on Highway. — Instructions. — Issues.—Evidence.—In an action for injuries in a collision with an interurban car, where the complaint alleged that plaintiff’s team became frightened through the negligent operation of the car, and that the car ran against the team, and there was some evidence that the car was running in excess of the speed allowed by ordinance, that as it approached it made unusual and loud noise, frightening the team, that the motorman was signalled to stop the car when 300 feet away, and that the speed was not slackened until the team was struck, an instruction which told the jury that when the operator of the car sees another in danger of peril from which he cannot extricate himself by the exercise of reasonable care and prudence, it is the highest duty of the operator to so act as not to increase such peril, and, if he does so act as to increase the peril, with full knowledge of the facts, it is negligence rendering the company liable for the injuries caused thereby, was not objectionable, as injecting the doctrine of “last clear chance,” and was warranted by the issues and evidence, p. 37.</p> <p>8. Appeal. — Review.—Refusal of Instructions. — Burden of Proof. —An instruction which in substance stated that plaintiff,' to recover, must prove each paragraph of his complaint by a xireponderance of the evidence, was properly refused. ji. 38.</p> <p>9. Appeal. — Revieio.—Refusal of Instructions. — Inapplicability to Issues. — A requested instruction, not shown to be applicable to the issues, was properly refused, p. 38.</p> <p>10. Appeal. — Revieio.—Instructions.—Refusal of Instructions Covered by Others Given. — The refusal of requested instructions is not error, where the essential elements of such refused instructions were completely covered and better stated in the instructions that were given, p. 39.</p> <p>11. Trial. — Instructions.—Repetition of Principles. — It is not necessary that the rules or principles contained in instructions should be repeated in different language, p. 39.</p> <p>12. Trial. — Instructions.—Confidential Relation of Physician and Palient. — In an action for personal injuries, an instruction is not objectionable which states that the law recognizes the relation of physician and patient as confidential, and that a physician is not competent to testify to matters communicated to him by the patient in the course of his professional services, if the privilege is claimed by the patient, and that plaintiff’s failure to call such physician "as a witness should not influence the verdict, p. 39.</p>

<p>Prom Gibson Circuit Court; Walter S. Jackson, Special Judge.</p> <p>Action by Joseph S. Heston against Albert P. Dougan. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>From Superior Court of Marion County (76,596); Vinson Carter, Judge.</p> <p>Action by Laura A. Glidewell against Joseph II. Cropper and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From DeKalb Circuit Court; Emmet A. Bratton, Judge.</p> <p>Action by Guy Myers, by Ms next friend, George Myers, against the Lake Shore and Michigan Southern Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Madison County; H. Clarence Austill; Judge.</p> <p>Action by Albert L. Heritage against Oliver Morton Heritage. From a judgment for plaintiff, the defendant appeals.</p>

From Lake Circuit Court; Willis C. McMahan, Judge. Action by Lucy M. Rossiter, administratrix of the estate of Frederick O. Rossiter, deceased, against the Lake Shore and Michigan Southern Railway Company. From a judgment for defendant, the plaintiff appeals.

From Fountain Circuit Court; J. E. Schoonover, Judge. Action by Charles V. McAdams, Executor of the last will and testament of William C. Smith, deceased, against Arthur Weidenhammer and others. Prom a judgment for plaintiff, the defendants appeal.

<p>Prom Hendricks Circuit Court; James L. Clark, Judge.</p> <p>Action by Lou S. Beard against tbe Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Chattel Mortgages. — Priority.—Estoppel,—Where the mortgagor of chattels removed the goods to another county without the consent of the mortgagee, the mere fact that the mortgagee acquiesced in the keeping of the goods in the county to which they had been removed, and made collections from the mortgagor while the property was in such county, and, on failure of the mortgagor to make a payment, suggested that he borrow the money to make such payment, and received part of the money which the mortgagor borrowed, does not estop the mortgagee from questioning the validity of a second mortgage executed for the money borrowed pursuant to such suggestion and recorded in the county to which the property had been removed, p. 111.</p> <p>2. Chattel Mortgages. — Application of Proceeds of Second Mortgage to Payment, of Debt Scoured by First Mortgage. — Subrogation. — Where the mortgagor of chattels removed the goods to another county without the consent of the mortgagee, and the mortgagee thereafter acquiesced in such removal and the keeping of the property in the county to which it had been removed, and, on failure of the mortgagor to make a payment, suggested that he borrow the money to make such payment, and the mortgagor thereupon borrowed $84 for which he executed a mortgage on the goods in the county to which they had been removed, and applied $33 of such borrowed money to the payment of the first debt, leaving $S0 remaining unpaid, of which the sum of $51.90 was still unpaid when the holder of the second mortgage brought suit to recover the mortgaged property, such facts were insufficient to entitle the second mortgagee to subrogation under the first mortgage, p. 111.</p> <p>3. Chattel Mortgages. — Record.—Failure to Record in County Where Mortgagor Resides. — Effect.—The failure of the mortgagee of chattels to record the mortgage in the county where the mortgagor resided at the time of its execution, as required by §7472 Burns 1908, Acts 1897 p. 240, renders such mortgage void as against the right of possession of one holding by virtue of a prior valid mortgage, pp. 112,113.-</p> <p>4. Replevin. — Proof Essential to Maintain Action. — To maintain an action in replevin, the plaintiff must show that he has a right to the possession of the property he seeks to recover, p. 113.</p> <p>5. Chattel Mortgages. — R&moval of Property. — Consent of Mortgagee. — Effect.—The removal of mortgaged chattels to- another county without the consent of the mortgagee, does not invalidate the mortgage, since §2299 Burns 1908, Acts 1905 p. 5S4, §406, making it a penal offense to remove mortgaged property from the county in which the mortgagor resides without the written consent of the mortgagee, in so far as it relates to the personal rights of the parties, is for the protection of the mortgagee, but does not affect the validity of the mortgage, p. 118.</p> <p>C. Chattel Mortgages. — Location of Property. — Residence of Mortgagor. — The presence of chattels in a county other than that of the residence of the mortgagor does not warrant the assumption that the mortgagor resides in such county, p. 118.</p>

<p>1. Railroads. —•Interurban. — Crossing Accident. — Complaint. — Charge of Negligence. — Sufficiency.—A complaint, in an action against an interurban railroad company for the death of plaintiff’s child .in a crossing accident, charging that the hiotorman negligently failed to sound the gong with which' the car was equipped, which could have been heard by a person approaching the crossing when the car was a quarter of a mile away, and negligently ran said car against said child, thereby causing the injury, sufficiently charged negligence to withstand a demurrer. p. 118.</p> <p>2. Negligence. — Complaint.—General Charge of Negligence. — Sufficiency. — Objection that the charge of negligence, in a complaint for personal injuries, is not specific, can only be taken by a motion to make the complaint more specific, and, in the absence of such motion, a complaint stating the injury and alleging that it was caused as a consequence and solely by reason of defendant’s negligence, sufficiently charges actionable negligence, p. 118.</p> <p>3. Railroads. — Interurban.—Crossing Accident. — Wilful Injury.-— Evidence. — In an action against an interurban railroad company for the death of plaintiff’s child, evidence showing that the motorman saw the child approaching the crossing when the car was about a quarter of a mile away, and watched it continuously until within about fifty or one hundred feet of the place where the injury occurred, before sounding the whistle or making any effort to stop the car, and that he knew the child’s attention was diverted from the approaching car, and that the ear was going at a speed sufficient to drive it 150 to 200 feet beyond the point where it struck the boy, was, in the absence of any reason for the motorman’s failure to sound the whistle or gong in time to attract the child’s attention before reaching the point of danger, or for his failure to stop the car sooner, sufficient to justify a finding that the motorman’s conduct was wilful, p. 119.</p> <p>4. Evidence.'— Wrongful Acts.— Intention.— Presumptions.— The rule that every x>erson is x>resumed to intend the natural and probable consequences of his wrongful or unlawful acts applies in civil as well as in criminal cases, and such intent may be shown by direct evidence, or may be inferred from conduct showing a reckless disregard of consequences and a willingness to inflict injury by purposely and voluntarily doing an act with knowledge that some one is unconsciously or unavoidably in a situation to be injured thereby, p. 120.</p> <p>5. Appeal. — Review.—Instructions.—Assumption of Pacts. — An instruction assuming a fact about which the evidence is undisputed is not erroneous, p. 121.</p> <p>0 Railroads. — Interurban.—Grossing Accident. — Injury to Child.— Instructions. — In an action for the death of plaintiff’s child by being struck by an interurban cár, where the motorman saw the child approaching the track and watched it continuously from the time the car was a quarter of a mile away until within fifty or one hundred feet from the x>lace where the injury occurred, without signalling the ajiproach of the car or attempting to stop it, an instruction that “the presumption that a person seen on an interurban car track or approaching the track wjll leave it or not enter upon it before the car reaches him, cannot be indulged in where a child of tender years is seen on the track or is seen approaching it apparently unconscious of the approaching car,” is not objectionable as being mandatory in telling the jury not to consider any xiresumption that the child would not • come on the track in front of the car. p. ]22.</p> <p>7 Railroads. — Interurban.—Duty Toward Persons on Trades.— Children. — Where a person is seen walking on the track, or where there is nothing to prevent the motorman from seeing one in that Xiosition, especially a child, and such xierson is unmindful of the axrproach of the car, the motorman is bound to use every reasonable care and means at command to warn him, and, if necessary to avoid a collision, to stop the car. p. 122.</p> <p>8. Death. — Death of Child. — Measure of Damages. — Instructions. • — An instruction, in an aci ion by a father for the wrongful death of his child, that the measure of plaintiff’s damages would be the reasonable value of the child’s services from the date of its . death until it would have become twenty-one years of age less the reasonable expense of providing it with the ordinary necessaries of life during that time, is not objectionable as leading the jury toi conclude that the father was obliged to furnish only the bare necessities of life, since the word “ordinary” must have been understood by the jury as synonymous with “usual” or “customary.” p. 123.</p> <p>9. Appeal. — Review.—Instructions.—Considera,Hon as a Whole.-— Instructions given in a case should he considered as a whole, and a separate instruction will not be held erroneous for the omission of a point covered by other instructions, p. 123.</p> <p>10. Appeal. — Revieto.—Objection lo Evidence. — Although appellant saved exceirticms to the admission of certain evidence, and to the refusal to admit certain, evidence, where no specific objection is pointed out, and none is disclosed by the record, no error can be predicated thereon, p. 123.</p> <p>11. Death. — Death of Child. — Damages.—Excessive Damages. — A verdict awarding pilaintiff $3,000 for the death of his son, seven and one-half years old, in a collision with an, interurban car, is not excessive, p. 123.</p> <p>12. Damages.- — Excessive Damages. — Damages assessed by a jury will not be considered excessive unless they are such as to induce the belief that the jury in awarding them acted from, prejudice, passion, partiality or corruption, p. 123.</p>

<p>From Vanderburgh Circuit Court; C. A. DeBruler, Judge.</p> <p>Action by Henry F. McCool and another against Margaret Wagner. From a judgment for plaintiffs, the defendant appeals.</p>

From Howard. Circuit Court; H. J. Paulus, Special Judge. Action by the General Convention of the New Church in the United States and others against Alzora Nativa Smith and others. Prom a judgment for defendants, the plaintiffs appeal.

From Posey Circuit Court; Herdis F. Clements, Judge. Action by Arthur Hedderick, by his next friend, John E. Hedderick, against John W. Espenlaub and others. Prom a judgment for plaintiff, the defendants appeal.

<p>1. Bills and Notes. — Action.—Answer.—Sufficiency.-—In an action on an ordinary promissory note, appearing on its face to be complete, an answer admitting its execution but alleging that an oral agreement ivas made at the time, whereby the note was not to be paid in the event an enterprise, in furtherance of which it was executed, should terminate unsuccessfully, and that such enterprise had failed, is insufficient in the absence of a showing that fraud or mistake entered into the transaction, p. 144.</p> <p>2. Evidence. — Parol Evidence. — Variation of Terms of Written Instrument. — In the absence of a showing of fraud or mistake, parol evidence is not admissible to annul or substantially vary the terms of a written- instrument, p. 145.</p> <p>8. Bills and Notes. — Action.—Defenses.—Where a husband upon lending money took a note payable to his wife, the wife’s delivery of the note to defendant after the death of the husband, pursuant to the husband’s request, is no defense to an action thereon, in the absence of averments showing a gift, or that it was delivered pursuant to an agreement based on a sufficient consideration, p. 146.</p> <p>4. Bills and Notes. — Rote Payable to Wife for Money Loaned by Husband. — Consideration. — Presumptions. — Where, a husband upon lending his money, took a note payable to his wife, it will be presumed, in the absence of any averment to the contrary, that the note was so made on a sufficient consideration, p. 147.</p> <p>5. Pleading. — Presumptions.—It is always presumed that a party’s pleading is as strong in his favor as the facts will warrant, p. 147.</p> <p>6. Appeal. — Review.—Harmless Error. — Amount of Recovery.— While error in the ámount of recovery, whether too large or too small, is a statutory cause for new trial, appellant cannot avail himself thereof, where the verdict against him was for $400 less than it should have been, as shown by the evidence, since it is manifest that lio was not harmed thereby, p. 148.</p> <p>7. Appeal. — Error Warranting Reversal. — A judgment will be reversed for error only when it is shown to have been prejudicial to the complaining party, p. 14S.</p>

<p>3. Appeal.— Ruling on Demurrer. — Waiver.— Briefs.— Error alleged in the overruling of a demurrer is waived by appellant’s failure to set out in its brief a copy of such demurrer, or to state its substance or the grounds thereof, p. 150.</p> <p>2. Tbial. — Reception of Evidence. — Discretion of Court. — Where, in an action on an insurance certificate, plaintiff rested her case without having shown that proofs of death had been made as provided for in the certificate, the action of the court in permitting plaintiff to reopen the case and introduce such proof and other evidence, after defendant had asked for a peremptory instruction, was a matter within the discretion of the trial court, and not erroneous, pp. 150,151.</p> <p>3. Appeal. — Review.—Discretion of Lower Court. — Order of Proof. —The action of a trial court in permitting the introduction of evidence out of the usual order is a matter within its sound discretion, and will not be interfered with on appeal, unless it^ is made to appear affirmatively that there has been an abuse of such discretion which prevented the complaining party from having a fair trial, p. 151.</p> <p>4. Appeal. — Review. — Evidence. — Refusal to Direct Verdict. — Where there was some evidence to support each material averment of the complaint, it was proper to refuse to direct a verdict for defendant, p. 151.</p> <p>5. Tbial. — Direction of Verdict for Plaintiff. — When Authorised.— Where the evidence to support the material averments of the complaint is documentary and clearly makes out a case for plaintiff, and is susceptible of no other inference, and there is no evidence to contradict it or to establish a defense, an instruction to find for the plain tiff is proper, p. 351.</p> <p>6. Insubance. — Fraternal Insurance. — Defense.—Nonpayment of Dues. — Conditions Precedent.- — A fraternal insurance company may not defend an action on a certificate issued by it on the ground that a payment of dues was made too late, and at the same time retain the amount of such payment, but, to defend on such ground, it should show that it had refused to accept such payment, or had offered to return it and had kept the tender good by bringing the amount into court, p. 152.</p> <p>7. Ihsueance. — Fraternal Insurance. — Evidence.—Direction of Verdict. — In an action on a fraternal benefit certificate, uncontradicted documentary evidence as to the issuance of the certificate, the xiayment of dues and. the death of the member, made a prima facie case for plaintiif, notwithstanding evidence showing an offer to return the last payment of dues, where defendant failed to keex> the tender good, and, in the absence of any other evidence, an instruction to return a verdict for plaintiff was not erroneous, p. 152.</p>

<p>1. Appeal.—Review.-—Harmless Error.—Ruling on Motion to Dismiss.—Where an action was brought before a justice of the peace to recover $200 for material furnished and labor performed at the special instance and request of defendant, and, on appeal to the superior court, plaintiff filed an additional paragraph of complaint to recover the same amount on the theory of an express contract, error in overruling defendant's motion to dismiss the action, on the ground that the court had not jurisdiction of tlio subject-matter, was harmless, where, after such ruling the plaintiff dismissed such additional paragraph and proceeded to trial on the original complaint, p. 154.</p> <p>2. Appeal.—Review.—Harmless Error.—Affirmance.—A judgment will not be reversed on account of an error which did not prejudice the substantial rights of the party complaining, p. 155.</p> <p>3. Evidence.—Account lioolcs.—Ledger.—In an action to recover for material furnished and labor performed, a ledger kept by plaintiff’s bookkeeper in the regular course of plaintiff’s business, the entries in which were made from memoranda furnished by the employes who sent out the material and by the men who did the work, was admissible as affording some proof of the account, although such bookkeeper had no personal knowledge of the amount of material furnished or the amount of labor performed at the time such entries were made by him. -p. 155.</p> <p>4. Appeal.—Review.—Refusal to Direct Verdict.—The refusal to direct á verdict for defendant was not error, where there was evidence tending to support a verdict for plaintiff, p. 150.</p>

<p>Prom J ohnson Circuit Court; W. E. Deupree, Judge.</p> <p>Action by Carl Van Laningham, administrator of the estate of Cassius C. Van Laningham, deceased, against The Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Witnesses. — Communications to Physician. — Waiver of Privilege. — The privilege conferred by §520 Burns 1908, §497 R. 8. 18S1, on communications by a patient to bis physician, may be waived by the patient, or by those who stand in his place, or are authorized to represent him. p. 172.</p> <p>2. Witnesses.— Competency.— Privileged Commwvications.— Communications to Physicians. — Waiver of Privilege. — Fa/ilure to Object. — The privilege conferred by §520 Burns 1908,' §497 R. S. 1881, on communications by a patient to bis physician, is waived where the witness has been permitted without objection to testify at a former trial as to matters learned in such communications, p. 172.</p> <p>S. Appeal. — Review.—Right to Search Record of Former Appeal.— Axipellate courts may search their own records on their own motion or the suggestion of counsel, and, while they may not go to the record of a former appeal in the same cause to compare the probative force of evidence given, they may look to such record in order to ascertain that a witness testified without objection to matters sought to be excluded in the pending appeal, p. 173.</p> <p>4. Witnesses. — Privileged Convm/unications. — Communications to Physician. — Waiver.—Persons Entitled to Waive Privilege. — The right to waive the privilege of confidential communications after the death of the patient, in litigation affecting the estate, is lodged in those who represent and stand in the place of decedent, and the waiver may be expiress, or implied from the conduct of such persons in standing by and permitting the testimony to be given without objection, p. 174.</p>

<p>1. Trial. — Verdict.—Answers to Interrogatories. — Motion for Judgment. — A motion for judgment on the answers to interrogatories can only he sustained where the facts thereby found are in irreconcilable conflict with the general verdict, p. 182.</p> <p>2. Trial. — Verdict.—Answers io Interrogatories. — Presumptions.— Every reasonable presumption is indulged in favor of the general verdict, and nothing is presumed in favor of the answers to the interrogatories, p. 182.</p> <p>3. Trial. — Verdict.—Ans-wcrs to Interrogatories. — Judgment.—To authorize a judgment on the facts found by answers to interrogatories, such facts must he sufficient to overcome any evidence legitimately admissible under the issues, p. 1S2.</p> <p>4. Pleading. — Complaint.—Determination of Theory. — The theory of a complaint must he determined from its general scope and tenor, and not from fragmentary statements, detached parts or conclusions, and that theory which is most apparent and clearly outlined by the leading averments of the pleading will be adopted. p. 182.</p> <p>5. Master ano Servant. — Injury to Servant. — Complaint.—Construction. — A complaint alleging that plaintiff was employed in defendant’s shale hank or pit as a common laborer or shoveler, that defendant’s shot-firer was discharged by defendant, and that defendant, knowing that the pit was unsafe, wrongfully and negligently ordered and directed plaintiff to go into such dangerous place and blast and loosen such shale and continue loading cars, does not show that xfiaintiff was employed as, or accepted the position of shot-firer, but that he was merely transferred temporarily from his emxiloyment as a shoveler to that of a shot-firer, p. 182.</p> <p>O. Master and Servant. — Inexperienced Servant. — Duty to Warn and Instruct. — Where the master requires a dangerous service at the hands of an inexperienced servant, it is the duty of the master to warn him and to give him such instructions as will enable him to avoid injury, unless both the danger and the means of avoiding it are apparent, p. 183.</p> <p>7. Master and Servant. — Assumption of Bisk. — Work Outside Scope of Employment. — The servant’s implied assumption of risk, which is a part of the contract of hiring, is confined to the particular ■work or class of work for which he is employed, and if he is ordered temporarily to do other work, involving different or greater dangers than those incident, to the work within the scope of his employment, he does not, by obeying such orders, necessarily assume the risk incident thereto, p. 183.</p> <p>S. Master and Servant. — Hazardous Employment. — Assumption of Bisk. — One who enters upon an employment, which is from its nature necessarily hazardous, assumes the usual and ordinary risks and perils of such service, p. 184.</p> <p>O. Master and Servant. — Employment to Make Dangerous Place Safe. — Assumption of Risk. — One employed to do the work' of making a dangerous place safe, assumes the risks ordinarily incident to such employment p. 184.</p> <p>10. Master and Servant.- — Assumption of Risk. — The risks assumed by an employe in any case are those ordinarily incident to the particular work covered by the contract of hiring, p. 184.</p> <p>11. Master and Servant. — Assumption of Risk. — Right of Servant to Rely on Master Providing Safe Place to Work. — Employment to Make Dangerous Place Safe. — A servant may ordinarily assume that the master has provided him a safe place in which to work, and rely on that assumption, except as to defects and dangers which he may ascertain by ordinary care for his own safety; and while one who undertakes to make a dangerous place safe may not presume that the master has already done the work ho is employed to do, he does not assume all possible risks, but only those incident to such employment, p. 184.</p> <p>12. Master and Servant. — Injury to Servant. — Work Outside Scope of Employment. — Assumption of Risk. — Where a complaint against the master for personal injuries proceeds on the theory that plaintiff was employed as a common laborer and while working as such was called upon by defendant to perform temporarily the duties of shot-firer after the discharge of defendant’s regular shot-firer, and alleges that plaintiff was assigned to such new duties after the regular shot-firer had reported to defendant that conditions in the place of work were unsafe and had refused to send the men back to work in¡ such place- unless he was first permitted to make the place safe, the rule as to assumption of risk, governing where one is employed to make a dangerous place safe, is not applicable, p. 185.</p> <p>13. Master and Servant. — Injury to Servant. — Verdict.—Answers to Interrogatories. — Where the allegations of the complaint in a servant’s action for personal injuries showed that plaintiff was employed as a common laborer and while working as such was called upon by defendant to perform temporarily the duties of shot-firer in defendant’s shale pit, 'that it was a dangerous place in which to work, but appeared to plaintiff to be safe, that the danger was such that without long experience it was impossible for a person of ordinary prudence and foresight to discern it, that plaintiff had no experience and did not know or appreciate the danger, all of which defendant knew, and that defendant wrongfully and negligently ordered plaintiff to proceed to blast and loosen shale and to load cars in said dangerous jdace, and that in performing such work plaintiff was injured, a verdict for plaintiff is a finding that such allegations are true, so that a recovery by plaintiff is authorized unless the answers to interrogatories are in irreconcilable conflict therewith, p. 185.</p> <p>14. Master and Servant. — Injury to Servant. — Work Outside Scope of Employment. — Dirty to Warn and Instruct. — Where defendant, knowing of the dangerous condition of its shale pit, and knowing that plaintiff was a common laborer and did not understand and appreciate such danger, ordered him, in an emergency, to take the place of shot-firer in such pit, and plaintiff was injured within a few minutes after beginning such duties, the defendant's failure to warn and instruct plaintiff as to the dangers was inexcusable, p. 186.</p> <p>15. Master and Servant. — Injury to Servant. — Verdict.—Ansivers to Interrogatories. — Where the complaint in a servant’s action for personal injuries is on the theory that plaintiff was employed by defendant as a common laborer, and that he was ordered by defendant to perform temporarily the duties of a shot-firer in defendant’s shale pit, in the performance of which duties he was injured, a general verdict for plaintiff is not overcome by answers to interrogatories showing that plaintiff was given the position of, and proceeded to discharge the duties of, shot-firer in the place of a shot-firer who had been discharged, since such answers do not conclusively show that plaintiff was employed to take the position in any other sense or to any further extent than that charged in the complaint, p. 187.</p> <p>16. Appeal. — Review.—Verdict.—Answers to Interrogatories. — In considering a motion for judgment on answers to interrogatories nothwithstanding the general verdict, all evidence admissible under the issues will be treated as actually in the record, and the court will indulge every reasonable presumption in favor of the general verdict and reconcile such answers therewith, if possible on any reasonable theory within the issues, p. 188.</p> <p>17. Master and Servant. — Injury to Servant. — Verdict.—Answers to Interrogatories. — Where the complaint, in a servant’s action for personal injuries, alleged that plaintiff was a common laborer employed in defendant's shale pit, that defendant discharged its shot-firer for refusing to obey defendant’s order to have the men work in the pit while it was in a dangerous condition, and that defendant, knowing that the pit was unsafe, wrongfully and negligently directed plaintiff to perform the duties of shot-firer, with knowledge that plaintiff was inexperienced and did not know and appreciate the danger, answers to interrogatories showing that the shot-firer was discharged because of unsatisfactory work, though excluding the idea that he was discharged because he refused to obey orders as alleged in the complaint, do not negative the facts found by the general verdict, that defendant knew and plaintiff did not know the hidden dangers incident to the new duties to which pilaintiff was assigned, p. 180.</p> <p>18. Appeal. — Review.—Judgment on Answers to Interrogatories.— Disposition of Cause. — Where, on appeal, the facts are complicated and close questions of law are involved, and reversible error is found in the action of the trial court in rendering judgment non obstante veredicto, a new trial will be ordered rather than judgment on the general verdict, pp. 189,190.</p> <p>19. Courts. — Appellate Court. — Powers.—New Trial. — The Appellate Court has the power to order a new trial, and it is its duty to do so, where it appears that the ends of justice will be best subserved thereby, p. 190.</p> <p>20. New Trial. — Rights of Parties. — The party against whom a general verdict has been rendered, on proper motion, has the right to have the trial court pass on the verdict before judgment thereon is rendered against him. p. 190.</p>

<p>1. PusAjime. — Complaint.—Theory.—The theory of an action must he determined from the general character and tenor of the leading and controlling averments of the complaint, p. 195.</p> <p>2. Waters and Watercourses.- — Obstruction.—Injury to Property. — Complaint. — Sufficiency.- — A complaint in substance alleging that by the wrongful acts and negligence of defendants in obstructing a natural watercourse, excavations were washed in plaintiff’s land, crops growing thereon were destroyed, the soil was washed away, the fertility of the land was destroyed, and that the stream was changed from its natural channel onto plaintiff’s land, shows a complete loss or destruction, of a part of plaintiff's land, and was sufficient on the theory of a permanent injury, p. 195.</p> <p>3. Waters and Watercourses. — Obstruction.—Permanent Injury io Land. — Trial.-—Eaielus-ion of Evidence. — In the trial of an action on the theory of permanent injury to land caused by the obstruction, of a natural watercourse, testimony in support of any other theory was properly excluded, p. 196.</p> <p>4. Waters and Watercourses. — Obstruction.—Permanent Injury to Land. — Damages.—Instructions.—Where an action was based on the theory of a permanent injury to land by the obstruction of a natural watercourse, instructions, that the measure of damages was the depreciation in the rental value of the land, were properly refused, p. 196.</p> <p>5. Appeal. — Review.—Instructions.—Defect Cured by Other Instructions. — An instruction, that if plaintiff has proved both paragraphs of the complaint, the jury should find generally for plaintiff, is not objectionable for the omission of any reference to a preponderance of the evidence, where the jury was fully advised on that subject in other instructions given, p. 196.</p> <p>O. Appeal. — Review.—Instructions.—Consideration as a Whole.— On appeal instructions will he considered as a whole, and if, when so considered, they fairly state the law, an inaccuracy in a particular instruction will not cause a reversal, p. 196.</p> <p>7. Waters and Watercourses. — Obstruction.-—Permanent Injury to Land. — Verdict.—Answers lo Interrogatories. — In an action based on the theory of permanent injury to land caused by the obstruction of a natural watercourse, where there was evidence that defendants had pflaced piles so ,as to deflect the stream and cut pilaintiff’s bank, and had allowed the bed to become partially filled with stone and debris, thereby easting the water onto plaintiff’s land and causing the same to cut, wash away, and cave in, answers to interrogatories showing that a large portion of the damage to plaintiff’s property was caused by natural overflow, and that part of it was done by cutting, are not in irreconcilable conflict with a general verdict for plaintiff, p. 197.</p>

<p>1. Appeal.—Record.—Bill of Exceptions.—Evidence.—The sufficiency of the evidence cannot be considered on appeal, unless it shall affirmatively appear, over the signature of the trial judge, that the bill of exceptions contains all the evidence, p. 19S.</p> <p>2. Appeal.—Record.—Bill of Exceptions Containing Evidence.— Form.—A bill of exceptions containing the evidence, preceding the formal conclusion, should contain the words: “And this was all the evidence given in said cause.” p. 198.</p>

<p>1. Evidence.—Discharge in Bankruptcy.—A certificate of discharge in bankruptcy is evidence of the jurisdiction of the court, the regularity of the proceedings in the bankruptcy case, and the fact that such order of discharge was made therein, p. 203.</p> <p>2. Bankruptcy.—Discharge.—Debts Affected.—Under the provisions of the bankruptcy act of 1898, as amended in 1903, a discharge in bankruptcy does not operate as a discharge of all the debts of the bankrupt, but releases him from all provable debts, except as therein otherwise specially provided, p. 204.</p> <p>3. Bankruptcy.—Provable Debts.—Judgment.—A judgment is a provable debt under §63a(l) of the bankruptcy act of 1898 as amended in 1903. (1 Fed. Stat. Annot. 679.) p. 205.</p> <p>4. Bankruptcy. — Debts Discharged. — Notice. — Under the bankruptcy act of 1898, as amended in 1903, providing that debts not duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, are not affected by a discharge in bankruptcy, unless the creditor had actual knowledge of the proceeding in bankruptcy, and providing that, in his list of creditors, the bankrupt shall show the residence of each creditor, if known, a debt was not discharged by a bankruptcy proceeding, where the schedule of the debt gave only the initial, instead of the full Christian name, of the creditor, and gave his residence as Indianapolis, without any street or number, and such creditor received no actual notice of the proceedings, pp. 205, 206.</p> <p>5. Names.—Initials.—The. initial of a given name alone and unexplained is not recognized as a name. p. 206.</p> <p>0. Judgment. — Action on Judgment. —Defense.—Discharge in Bankruptcy.—Proof.—Burden.—In an action on a prior judgment, where defendant pleaded a discharge in bankruptcy, he had the burden of proving that the debt which, he listed in Ms schedule of creditors in the bankruptcy proceeding was the debt of the plaintiff on which the action is brought, so that a judgment for plaintiff will not be disturbed on the ground that the decision is not sustained by sufficient evidence, or that it is contrary to law, where there was no proof in any way identifying the judgment sued on and the debt listed in the bankruptcy proceedings as being one and the same debt. p. 208.</p> <p>7. Judgment.—Action on Judgment.—Review.—Form of Judgment. —Failure to Object.—Although it was improper, in an action on a judgment with relief and without exemption, to render a judgment with benefit of exemption and without relief, the judgment will not be reversed, where appellant failed to make objections or take exception to the form of the judgment, and made no motion to modify same. p. 209.</p> <p>8. Appeal.—Objection to Form of Judgment.—Presenting Question for Revieio.—Motion for Nc.w Trial.—Questions arising on the form of a judgment are not presented by a motion for a new trial, on the ground that the decision is not sustained by sufficient evidence, except in cases where the facts are specially found and, an error in the finding is carried into the judgment, but such questions are saved by objection and exception made at the time the judgment is rendered, or by a motion to modify or correct, pp. 209, 210.</p> <p>9. Appeal.—Review.—Error in Form of Judgment.—Disposition of Oause.—In an action on a judgment with relief and without exemption, error in rendering judgment with benefit of exemption and without relief, will not operate as a cause for reversal on appeal, but the judgment will be ordered cured by a modification. p. 211.</p>

From Carroll Circuit Court; James P. Wason, Judge. Action by the German American Trust Company, administrator of the estate of John Hall, deceased, against the Lafayette Box Board and Paper Company. Prom a judgment for defendant, the plaintiff appeals.

<p>1. Appeal. — Assignment of Errors. — Waiver.—Briefs.—Error assigned is waived by appellant’s failure to present it either under points and authorities in the briefs, or by other diseussison. p. 216.</p> <p>2. Insurance. — Fraternal Insurance. — Parol Contract. — Complaint. —Sufficiency.—A complaint against a fraternal order, stating that decedent applied to a local lodge for a beneficiary certificate, naming plaintiff, his sister, as beneficiary, that the application was accepted and approved, that he paid his fees, became a member and performed all the conditions required of him to entitle him to a certificate, that defendant agreed to insure his life for a specified sum to be paid to plaintiff on decedent’s death, and that he was assessed as a member until his death, but that a certificate was never issued and that defendant refused to issue it, etc., sufficiently states a cause of action on the theory of a parol contract of insurance, pp. 216, 218, 219.</p> <p>3. Insurance. — Action on Parol Contract. — Complaint.—Testing Sufficiency. — Although some writings are set out and made part of a complaint in an action against an insurance company, drawn on the theory of a parol contract, such fact does not require the sufficiency of the pleading to be tested by the rules applicable where the action is based on a certificate or policy actually issued, p. 218.</p> <p>4. Contracts. — Contract Partly in Writing. — Parol Contract. — A contract that is partly in writing and partly in parol will be treated as a parol contract, p. 218.</p> <p>5. Insurance. — Fraternal Insurance. — Parol Contract. — Complaint. —By-Laws.—In an action against a fraternal insurance company, where the complaint was on the theory of a parol contract of insurance, it was not essential to the sufficiency of the complaint that copies of the constitution and by-laws be set out therein, p. 219.</p> <p>(i. Insurance. — Parol Contracts. — A parol contract of insurance is valid and enforceable, p. 219.</p> <p>7. Insurance. — Fraternal Insurance. — By-laws.—Conditions Precedent. — Waiver.—Where the by-laws of a fraternal insurance society make ail application for a beneficiary certificate a condition precedent to initiation in a local lodge, and provide that the same shall be in possession of tbe lodge at the time of the initiation, that before initiation a committee of the local lodge must pass on the qualification of the applicant and recommend him for membership, and that the local physician must make the required medical examination and report thereon before initiation, and that if the applicant has met the conditions and is initiated within the prescribed time, he is entitled to a beneficiary certificate, subject only to the approval of the grand medical examiner, the action of a local lodge in initiating a member after the expiration of the time prescribed in tbe by-laws, and tbe failure of the grand lodge to reject him as a member of the lodge, was a waiver of the objection that he was not initiated within the prescribed time following his medical examination, pp. 224,225.</p> <p>S. Insurance.- — Fraternal Insurance.— By-laws.— Construction.— Where the object of a fraternal order is not the seeking of profit, but the protection of its members and their beneficiaries by means of indemnity, its constitution, by-laws and other writings are to be liberally construed to promote the benevolent objects of tbe organization, p. 224.</p> <p>9. Insurance. — Fraternal Insurance. — By-Laws.—Waiver.—A fraternal insurance organization may waive compliance with a by-law or regulation made for its benefit, and it may ratify the action of a local lodge in waiving compliance with any such bylaw or regulation, p. 225.</p> <p>10. Insurance. — Fraternal Insurance. — Medical Examiner. — Powers. — Where the authority of the grand medical examiner of an insurance order, under its constitution and by-laws, extended to the determination of the physical qualifications of the applicant, and to the ascertainment that the application complies generally with the prescribed forms, rules and laws of the order, he had no authority to deny an applicant a beneficiary certificate because he was not initiated within a certain time after medical examination, as prescribed by the laws of the order, p. 226.</p> <p>'ll. Appeal. — Assignment of Errors. — Motion for New Trial. — The action o£ the trial court in denying a motion to require an answer returned by the jury to an interrogatory to be made more specific, is not properly presented by assignment of error, but the alleged error is ground for a motion for a new trial, p. 228.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Joseph H. Campbell, receiver of tbe Clear Creek Stone Company, against the Maryland Casualty Company of Baltimore, Maryland. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Master and Servant.- — Injury to Servant. — Coinplamt.—Sufficiency. — In a servant’s action for personal injuries, a complaint alleging that plaintiff was employed as a common laborer in and about defendant’s factory, and that while so employed, and while he was engaged in his duties as such common laborer, and while he was so standing in the yards of said defendant, he was injured through the negligence of defendant, is not insufficient on the ground that it does not show that plaintiff at the time oí his injury was acting in the line of his duty as an employe of defendant, or that defendant owed him any duty, since the word “duties” refers to any work which his employment required him to perform as common labor, and the word “so,” in the allegation that the injury occurred while he was “so” standing in the yards, refers back to the statement that he was engaged in his duties, p. 239.</p> <p>2. Master and Servant. — Injury to Servant. — Place of Worlc.-— Duty of Master. — Complaint.—Necessary Allegations. — Where the relation of master and servant exists, the law imposes on the master the general duty to furnish the servant a reasonably safe place in which to perform his work, so that a complaint in a servant’s action for personal injuries, showing that the relation of master and servant existed at the time of the injury and that the servant was performing the work which he was employed to do, need not specifically aver that the masterial duty was owing to him; but the allegation of facts showing the existence of such duty is necessary where the complaint discloses that the servant's employment required him to do a particular work in a particular place, and that at the time of the injury he was not in such place, but in a different one where the performance of the particular work could not have called him. p. 240.</p> <p>8. Master and Servant. — Injury to Servant. — Existence of Relation. — Complaint.—The statement in a complaint for injuries to a servant, that plaintiff was in the employ of defendant as a common laborer, fixes the relation of master and servant, and sufficiently shows the existence of the legal duty owing to plaintiff by defendant to use ordinary care to furnish him a reasonably safe place in which to work, and reasonably safe appliances with which to work. South Bend, etc., Plow Co. v. Cissne (1905), 85 Ind. App. 373, is overruled. p. 242.</p> <p>4. Trial. — Verdict.—Answers to Interrogatories. — On a motion for judgment on answers to interrogatories notwithstanding the general verdict, all reasonable intendments are taken in favor of the general verdict, and no intendments are made in favor of the moving party, and, in order to grant such motion, the special findings must be in such conflict with the general verdict that the two cannot be reconciled, p. 242.</p> <p>5. Master and Servant. — Injury to Servant. — Verdict.—Answers to Interrogatories. — In an action by a servant for injuries sustained by the breaking of a defective link in a chain used by defendant in moving a car, the general verdict for plaintiff amounted to a finding that the defect would have been apparent to one making a reasonably careful inspection of the chain, and one with knowledge of which defendant was chargeable, and answers to interrogatories showing that the link was defective because of imperfect weld, that a slight darkness in it at one point of the weld was the only thing to indicate any imperfections in the link or to distinguish its appearance from any other link in the chain, are not inconsistent with such general verdict, since it cannot be said therefrom that an inspection would have been useless, nor that the defect was a hidden one which defendant could not have discovered by the exercise of proper care, nor that the accident was inevitable and one which defendant could not anticipate, p. 243.</p> <p>O. Master and Servant. — Injury to Servmit. — Assumption of Risk. —Instructions.—Where the complaint, in a servant’s action for personal injuries, alleged facts sufficient to constitute a cause of action and showing nonassumption of risk, an instruction that if plaintiff has proved the material allegations thereof by a preponderance of the evidence, he is entitled to a verdict, provided the evidence does not show that he was guilty of contributory negligence, was not erroneous on the ground that it omitted the question of assumption of risk by plaintiff, and especially where the jury was fully informed on that subject by other instructions, p. 240.</p> <p>7. Master and Servant. — Injury to Servant. — Assumption of Risk. —negligence of Master. — Instructions.—An instruction, that while a servant assumes the ordinary risks incident to his master’s business, in which he is engaged, he does not assume those risks occasioned by the master’s negligence* unless such risks were occasioned by defects of which the servant had knowledge, or of which he is chargeable with knowledge, is correct p. 246.</p> <p>8. Master and Servant. — Injury to Servant. — Knoioledge of Defect.- — Instructions.—Where the complaint in a servant’s action for personal injuries, caused by the breaking of a chain* charged that the chain was defective and also that it was not sufficient to stand the strain to which it was put and for which it was used, and the law governing the necessity of showing knowledge of the danger on the master’s part was sufficiently stated to the jury, an instruction that if plaintiff has proved by a preponderance ol' the evidence either of such allegations, and if under the evidence he is otherwise entitled to recover, and was not guilty of contributory negligence and had not assumed the risk, he has made a case, is not open to the objection that the element of knowledge or means of knowledge on defendant’s part is ignored, p. 247.</p> <p>O. Trial. — Instructions.—Construction.—Instructions should all be construed together and not separately, p. 247.</p> <p>10. Trial. — Instructions.—Assumption of Facts. — An instruction in a personal injury action, that if the jury finds for plaintiff, it becomes its duty to assess his damages at such sum as the evidence relating thereto shows him to be entitled, not exceeding the sum of $15,000, and that the elements of damage which the jury may consider consist of all the effects of the injury complained of, if any, as shown by the evidence relating thereto, is not objectionable as assuming the truth of facts in issue, or that certain facts have been proved, p. 248.</p>

From DeKalb Circuit Court; D. R. Best, Special Judge. Action by Luther Camp, administrator of the estate of Susan Camp, deceased, against Jesse W. Camp, executor of the last will of Oliver Camp, deceased. From a judgment for defendant, the plaintiff appeals.

From Monroe Circuit Court; Rufus H. East, Special Judge. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Monroe, against James W. Jackson and others. From a judgment in favor of'certain defendants, the relator appeals.

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

<p>From Whitley Circuit Court; Joseph W. Adair, Special Judge.</p> <p>Action by Louise Felts Griffith against Frank E. Felts and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>Prom Floyd Circuit Court; Joseph. H. Shea, Special Judge.</p> <p>Action by Archie Utz against the Southern Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Samuel Ailes against Matthew G. Miller. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Í. Specific Performance. — Contracts Enforceable. — Courts of equity will decree the specific performance of a contract only when it is for an adequate consideration, and is in writing, certain and definite in all its provisions, fair and mutual in its terms, and is capable of being performed, p. 287.</p> <p>2. Specific Performance. — Contract for Sale of Real Estate.— Sufficiency. — Right to Enforce. — A letter from a real estate agency stating that it has, from the owner of certain real estate, an agreement to accept a certain sum for same, if taken on or before a certain date, that it was obtained after an offer made by the addressee, and that the agency would be glad to hold the offer open for the addressee’s account until the date specified, together with the addressee’s written acceptance, and the agency’s receipt for one dollar as earnest money, does not constitute a contract capable of being specifically enforced in a court of equity, since it is uncertain as to terms and time of payment and assumption of liens, and is susceptible of being construed as merely an option, p.288.</p> <p>3. Specific Performance.' — Contracts Enforceable. — In suits for specific performance, the equitable doctrine is that the enforcement must be mutual, and before a vendee is entitled to specific performance, the vendor must likewise be able to compel the acceptance of a deed and the payment of the stipulated consideration. p. 290.</p>

<p>1. Wills. — Contract to Bequeath or Devise. — Mvidence.—Sufficiency. — Evidence showing that shortly after plaintiff moved onto the farm of decedent, he and the decedent went together to a justice of the peace, where a will was prepared by decedent by which he devised and bequeathed to plaintiff and his heirs all his real and personal property, and that at that time decedent said he wanted plaintiff and his heirs to have his property, that he loved plaintiff and his children and wanted them to- have his farm, and that he wanted plaintiff to come and run it until he died and take care of him in his old age, was sufficient to warrant the jury in drawing an inference that the will was made in consideration of an agreement on tlie part of plaintiff to move on decedent’s farm and run it so long as decedent lived, and to take care of him in his old age. p. 293.</p> <p>2. Appeal. — Revieio. — Evidence. — Verdict. — Conclusweness. —Where the evidence is of such a character that opposite inferences may reasonably be drawn therefrom, a finding by the jury of a fact, sustained by either of such inferences, is supported by evidence and will not be disturbed on appeal, p. 294.</p> <p>3. Wills. — Contracts to Bequeath or Devise. — Breach.—Remedy.— Where a person has fully performed his contract to perform services and board and care for another during his lifetime, in consideration of the other’s promise to will all his property to him, he may, upon the failure of the other x>arty to leave such a will in force at his death, recover as damages for such breach the reasonable value of the services rendered under such contract, p. 295.</p> <p>4. Limitation oe Actions. — Accrual of Cause of Action. — Breach of Contract to Bequeath or Devise. — Where a person fully performs his contract to perform services and to board and care for another during his lifetime, in consideration of the other’s promise to will all his property to him, and the other party fails to leave such a will in force at his death, the breach occurs immediately prior to his death, at which time the cause of action accrues and the statute of limitations begins to run. p. 295.</p> <p>5. Limitation oe Actions. — Accrual of Cause of Action. — Breach of Contract to Bequeath or Devise. — Where a party who has agreed to will all his property to another, in consideration of the other’s services in running his farm and providing him board and care during life, prevents performance on such person’s part by so mistreating him that he is compelled to abandon his efforts to perform, the contract is terminated at the time of such abandonment and thereupon the statute of limitations begins to run against the right of action for the value of services rendered under the contract, p- 296.</p>

Prom Tipton. Circuit Court; Lex J. Kirkpatrick, Judge. Action by the Lake Erie and ’Western Railroad Company against the Town of Cicero and others. Prom a judgment for plaintiff, the defendants appeal.

<p>1. Master and Servant. — Injury to Servant. — Unguarded Machinery. — Complaint—Sufficiency.—A complaint, in a servant’s action for personal injuries, alleging that a lathe used in defendant’s shops, and which plaintiff was employed to operate, was of dangerous character, that the same could have been guarded, without impairing its usefulness, so as to protect the eyes and face of the operator from injury, that on the day of the injury the dogIJlate on said lathe had been removed and plaintiff was directed to use a face-plate thereon instead, that said lathe was thereby rendered unsafe and dangerous, that defendant furnished a defective file to be used in connection with the work on said lathe, and negligently failed to guard said lathe, and that while operating said lathe the file was, by reason of its defective condition and the absence of a guard on said lathe, hurled against plaintiff’s face, causing the injury complained of, sufficiently states a cause of action within the provisions of §S029 Burns 1908, Acts 1S99 p. 231, requiring certain machinery to be guarded, p. 316.</p> <p>2. Master and Servant. — Injury to Servant. — Complaint.—Violation of Statutory Duty. — Assumption of Rislc. — The doctrine of assumption of risk does not apply in a servant’s action for personal injuries, where the complaint alleges facts showing the master’s violation of a statutory duty, and in such case it is unnecessary to allege facts showing that the risk was not assumed, p. 31S.</p> <p>3. Appeal. — Review.-—Harmless Error. — Exclusion of Evidence — Error, if any, in the exclusion of evidence, is harmless, where the record discloses that substantially the same facts were proved in another way. p. 318.</p>

<p>1. Pleading. — Complaint.—Sufficiency.—Defects Curable by Motion to Mahc Specific. — Demurrer.—A complaint is not demurrable for defects that may be reached by a motion to make more specific, and will be held good if it states facts entitling plaintiff to any relief, p. 321.</p> <p>2. Pleading. — Complaint.—Sufficiency.—A complaint alleging facts from which it may readily be determined that defendant was the agent of plaintiff in buying and selling real estate, that on account of moneys advanced by plaintiff, interest collected, and profits derived from the sale of real estate, defendant became indebted to plaintiff, that defendant, as attorney in fact for plaintiff, wrongfully and without any consideration, conveyed certain real estate to his wife for the purpose and with the intent to cheat and defraud plaintiff, and which demands an accounting and the setting aside of such conveyance, is sufficient to withstand a demurrer, p. 321.</p>

<p>1. Carriers. — Injury to Passengers. — Negligence.—Derailment of Train. — Res Ipsa Loquitur. — Complaint.—Where the complaint, in an action against a railroad company for personal injuries, clearly shows that the relation of carrier and passenger existed, and that the plaintiff was injured by the derailment of the train, the rule of res ipsa loquitur applies, notwithstanding several causes are alleged to have produced the derailment, p. 326.</p> <p>2. Carriers. — Injury to Passengers. — Derailment of Train. — Complaint. — Allegation of Particular Defects. — Proof.—Where the complaint, in a passenger’s action for injuries caused by the derailment of a train, alleges the particular defects that caused the derailment, the carrier is relieved from the burden of disproving or meeting any other negligence in regard to the derailment than that alleged, nor can the plaintiff prove any other causes than those alleged, p. 327.</p> <p>3. Carriers. — Injury to Passengers. — Complaint.—Sufficiency.— Where the complaint, in an action for injury to a passenger by the derailment of a train, charged negligence in three respects, namely, defective track, defective axles and excessive speed, and further alleged that thereby and on account of the negligent and careless manner in which the train was run and managed, it was derailed and plaintiff was thereby injured, sufficiently charged that the derailment was caused by the negligence of defendant and that such negligence was the proximate cause of the injury, pi 328.</p> <p>4. Carriers. — Injury to Passengers.- — Derailment of Train. — Particular Defects. — Proof.—Where a passenger, in an action for injuries caused by the derailment of a train, alleged a number of defects as cause for the derailment, proof that the derailment was occasioned by any one or more of the causes alleged would warrant a finding for plaintiff, p. 328.</p> <p>5. Trial. — Argument.—Statement of Counsel. — Objection.—Motion. — Where a party objects to a statement made by counsel in argument, a part oí which is proper and warranted by evidence, he should direct ills motion to the objectionable part and not to the whole statement p. 329.</p> <p>6. Appeal. — Review.—Harmless Error. — Misconduct of Counsel.— Refusal to Set Aside Submission of Cause. — Where counsel indulged in improper remarks in argument, and the court instructed the jury to disregard them, the refusal of the court to set aside the submission of the cause will not work a reversal, where there is nothing in the record to overcome the presumption that the instructions were heeded, or indicating that appellants were thereby prevented from having a fair trial. x>. 329.</p> <p>7. Carriers. — Injury to Passengers. — Derailment of Train. — 'Negligence. — Presumptions.—In a passenger’s action for injuries caused by the derailment of a train, proof of the relation of carrier and passenger, and a derailment resulting in .injury to the passenger, creates a presumption of negligence on the part of the carrier, entitling plaintiff to recover, unless it is removed by evidence, and plaintiff is not deprived of such i>resumption by the fact that he has alleged specific acts of negligence as causing the derailment p- 330.</p> <p>S. Carriers. — injury to Passengers. — Derailment of Train. — Instructions. — Refusal.-—-Where, in a passenger’s action for injuries caused by the derailment of a train, plaintiff alleged that the derailment was caused by defective axles, defective tracks and excessive speed, a requested instruction that to be entitled to recover the plaintiff must prove that the derailment was the result of the three causes combined, was properly refused, p. 330.</p> <p>O. Trial. — Instructions.—Refusal of Instructions. — The refusal of requested instructions that are covered by other instructions given is not error, xi- 330.</p> <p>10. ¿Appeal. — Review.—Harmless Error. — Instructions.-—-An instruction that although a common carrier of passengers does not insure the safety of its xiassengers the law will not tolerate any negligence on the part of the carrier, though inaccurate in failing to limit the negligence to that charged in the complaint, is harmless where the omission was covered by other instructions given, p. 331.</p>

<p>1. Injunction. — A.ct Involving Violation of Contract. — Complaint. —Sufficiency.—lücshibtt.—In an action by the assignee of a contract, granting the right to lay and maintain a gas main along the right of way of a railroad company, to enjoin the company from removing the main, the complaint- was not demurrable on the ground that it contained an insufficient statement of the contract and that the defect was not cured by making the contract an exhibit thereto, since the contract was the foundation of plaintiff’s fight and was properly incorporated into the complaint by attaching thereto and filing therewith a copy as an exhibit, as provided by §30S Burns 1908, §362 R. S. 1881, requiring, where a pleading is founded on a written instrument, that the original, or a copy thereof, must be filed with such pleading, p. 337.</p> <p>2. Injunction. — nature of Remedy. — Injunction is a form of proceeding in which the relief sought is negative in character, that is, it is to prevent the commission of some threatened act involving the violation of a contract or duty. p.. 337.</p> <p>3. Contracts. — Written Agreements. — nature.—Determination.— In determining the nature of a written agreement, the courts will look to the engagements of the parties as therein- set out, rather than to the designation of the instrument, p. 338.</p> <p>4. Contracts. — Grant of Right to Lay Gas Main.■ — Assignability.— An agreement by a railroad company specifically providing that for a definite consideration, the company grants to a named company the right to lay and maintain a gas main along and across its right of way for a certain number of years, subject to certain supervisory control by the chief engineer of the railroad company, though designated both as an agreement and a license, constitutes an assignable agreement in the absence of an express covenant against assignment, p. 338.</p> <p>5. Contracts. — Grant of Right to Lay ' Gas Main. — Covenant Agamisl Assignment. — Construction.—Where a contract granting the right to lay a gas main along the right of way of a railroad company, provided that it should not be assigned without the written consent of the railroad company, an assignment by a receiver of the grantee passed to the assignee all rights of the grantee under such contract, since such covenants are not favored, and do not operate against an assignment by operation of law, but will be held to be directed only against a voluntary assignment by the grantee, p. 339.</p> <p>O. Appeal. — Review.—Theory of Action.- — Where the assignee of a contract, granting the right to maintain a gas main on the right of way of a railroad company, sued to enjoin the company from removing such main, and the company defended on the theory that the contract was not assignable and that plaintiff obtained no rights by virtue of such assignment, it will be held to such theory on appeal, and cannot adopt the theory that plaintiff has no rights because the evidence fails to show that the stipulated rental was paid. p. 341.</p>

<p>1. Appeal. — -Presentation of Questions for liev-icw. — Errors Occurring During Trial. — No question is presented on appeal by assignment that the trial court erred in overruling a motion to dismiss the action for want of certain proof, and that it erred in sustaining certain objections to questions asked a witness, since errors occurring during the trial, to be available, must be saved by assigning them as causes for a new trial, p. 344.</p> <p>2. Replevin. — Action.—Necessity for Demand. — Where the possession of goods sought to be replevied was wrongfully obtained, no demand is necessary before bringing the action, p. 344.</p> <p>3. Atpeal. — Review.—Insufficient Briefs.- — On appeal from a judgment for plaintiff in replevin, the court cannot determine if l>roof of a demand was necessary where appellant’s brief does not contain any of the evidence in the case. p. 344.</p> <p>4. Appeal. — Ruling on Motion for New Trial. — Waiver of Error.— Briefs. — An assignment of error in overruling a motion for a new trial, based on the insufficiency of the evidence, will not be considered, where neither the motion nor any of its grounds are set out in appellant’s brief, and no statement of the evidence is contained therein, p. 344.</p>

From Superior Court of Marion County (75,812); Lawson M. Harvey, Judge. Proceedings supplementary to execution brought by Jacob Hert against Antonio Mascari and another. Prom a judgment against him for costs, the defendant, Antonio Mascari, appeals.

From Marion Circuit Court (17,318); Charles Remster, Judge. Action by Baxter G. Nichols, administrator of the estate of John A. Shewmon, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.

<p>Prom Noble Circuit Court; Andrew A. Adams, Special Judge.</p> <p>Action by Philip Pfaffman against David P. Ohlwine and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by George Z. Rumsey against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Marion County (79,152) ; Clarence E. Weir, Judge.</p> <p>Action by Thomas McKinney, by his next friend, Mauda McKinney, against the Sanitary Can Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Marion County (73,810); Clarence E. Weir, Judge.</p> <p>Action by Sarah Ray against the city of Indianapolis. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant.—Injury to Servant.—Complaint.—Proximate Cause.—A complaint, in an action by a coal miner for personal injuries, alleging that defendant failed to furnish him a reasonably safe place in which to work, and failed to perform its statutory duty of sprinkling the roadways and entries of its mine, so that the air therein became charged with dust, that the same could have been sprinkled and the dust allayed without interfering in the operation of the mine, that the concussion and fire, resulting from illegal shots fired by other miners, acted on the air in the roadways and entries so as to produce a dust explosion in which plaintiff was injured, and that such explosion could not have occurred if defendant had sprinkled the dust and if such illegal shots had not been'fired, shows that the combined negligence of the defendant and the miners was the proximate cause of the injury, and was sufficient to withstand a demurrer, p. 399.</p> <p>2. Master and Servant.—Injury to Servant.—Complaint.—negligence of Fellow Servant.—A complaint, from which it affirmatively appears that the injury was the proximate result of the negligence of a fellow servant, is bad and there can be no recovery thereon, but the rule does not apply where the negligence of the master, combined with the negligence of the fellow servant, was the proximate cause of the injury, p. 400.</p> <p>3. Negligence.—Proximate Cause.—-There may be several elements combining to make up the proximate cause of an injury, p. 401.</p> <p>4. Appeal. — Review. — Verdict.—Evidence.—In determining tiie sufficiency of tlie evidence to support a verdict, the court will not weigh the evidence, but will consider only that most favorable to appellee, p. 402.</p> <p>5. Appeal.—Review.—Verdict.—Evidence.—The fact that the evidence may be weak, or unsatisfactory, will not authorize a reversal, if there is some evidence to support the verdict in every material respect, p. 402.</p> <p>(i. Appeal.—Review.—Instructions.—Refusal.—The refusal of requested instructions, that were covered by others given, was not error, p. 403.</p>

<p>1. Carriers.—-.Passengers.—Contract Relation.—The law implies a contract between passenger and carrier, that the latter shall carry the passenger safely, so far as human foresight, reasonably exercised, can guard against disaster, p. 409.</p> <p>2. Carriers.—Duty.—Injury to Passengers.—Liability.—A carrier is required to exercise the highest degree of care to secure the safety of passengers, and is responsible for the slightest neglect which is the proximate cause of injury to a passenger who is himself without fault, p. 409.</p> <p>3. Negiigeíí ce.—Acts Constituting Negligence. — Operation of Train.—The sudden or violent motion or jerking of a train may be negligence, p. 410.</p> <p>4. Carriers.—Injury to Passengers.—Complaint.—In a passenger’s action for injuries caused by being thrown from a train while standing near the door of the car preparatory to alighting, a complaint alleging that after defendant’s agents had called the station, and at a time when, according to usage and custom, passengers were making preparation to leave the train at said station, defendant’s agents, well knowing such custom and that passengers were preparing to leave the train, and that they were likely to be standing in the aisles, “negligently, unnecessarily and suddenly increased the speed of said train and unnecessarily and negligently jerked said coach,” etc., whereby plaintiff was thrown and injured, sufficiently charges negligence so as to withstand a demurrer, in the absence of specific averments that overcome the effect of those constituting such charge, p. 410.</p> <p>5. Carriers.—Injury to Passengers—Presumption of Negligence.— Instructions.—Reference to Complaint.—An instruction, in a passenger’s action for personal injuries from being thrown from a train, that if plaintiff has proved by a fair preponderance of the evidence that she was a passenger on defendant’s train, “and that she was jerked or thrown therefrom and injured as charged in her complaint, without any fault on her part,” such facts would raise a presumption of negligence on the part of defendant, and that defendant would have the burden of proving that the injury could not have been avoided by the highest practical care and diligence, in order to rebut such presumption, did not tell the jury that proof of the injury alone would create a presumption of negligence, but stated as an express condition that the injury must be shown to have occurred in the manner charged in the complaint, and without fault on plaintiff’s part, and therefore was not erroneous, p. 411.</p> <p>6. Carriers.—Injury to Passengers.—Presumption of Negligence.— Instructions.—In a passenger’s action for injuries, an instruction that if a carrier provides perfect machinery, cars and roadbed, and the servants in charge of same are negligent, there is a breach of duty, and a presumption of negligence arises in favor of the passenger injured without fault by the negligent operation of the train, the same as it would in case the injury flowed from defective track, cars, or machinery, is not open to the objection that it tells the jury that defendant’s negligence will be presumed from the injury regardless of the circumstances under which it was received, p. 413.</p> <p>7. Carriers.—Injury to Passengers.—Contributory Negligence.— Children.—Instructions.—Where, in a passenger’s action defended on the ground that plaintiff contributed to her injury by leaving her seat before the train had stopped, there was evidence that plaintiff was sixteen years of age and had comparatively no experience in riding on trains, that the brakeman had twice announced the station, that the train had slowed down, and that plaintiff, believing that it was nearing the station, and with information that it stopped but a few seconds, left her seat and walked to the door through which the brakeman had passed, when, by a sudden jerk of the train, she was thrown and injured, an instruction that recovery could not be defeated on tlie ground of contributory negligence, if considering her age and experience and all the surrounding circumstances, plaintiff acted as a reasonably prudent person, similarly situated, would have acted, was proper and applicable to the evidence, p. 413.</p> <p>S. Carriers. — Injury to Passengers. — Negligence.—Instructions.— An instruction, in a passenger's action for injuries, that if defendant was guilty of other negligence than that charged, there can be no recovery, was properly refused, since its effect was that, even though defendant was guilty of the negligence charged, and it was the proximate cause of the injury, plaintiff could not recover if the jury found that defendant was also guilty of other negligence, p. 415.</p> <p>9. Trial. — InstiueMons.—Refusal.—An instruction open to criticism on account of being inaccurate, ambiguous, uncertain or misleading, may be properly refused," even when its giving might not constitute reversible error, p. 415.</p> <p>10. Trial. — Conflicting Evidence. — Assumption of Pacts. — Instructions. — Refusal.—A requested instruction stating tliat the evidence shows certain facts, where the evidence as to such facts is conflicting, invades the province of the jury and is i>roperly refused, p. 415.</p> <p>11. Appeal. — Review.-—Refusal of Instructions. — The refusal of instructions, that are covered in their essential features by the instructions given, is not error, p. 416.</p> <p>12. Trial. — Answers to Interrogatories. — Motion for Judgment.— Grounds. — The fact that the jury’s answers to interrogatories are not consistent with the evidence, or with each other, furnishes no ground for sustaining a motion for judgment thereon, p. 416.</p> <p>13. Appeal. — Review.—Verdict.—Ansioers to Interrogatories. — Tn determining the correctness of the trial court’s ruling on a motion for judgment on answers to interrogatories, only the pleadings, the general verdict, and the interrogatories and answers, will be considered, p. 417.</p> <p>14. Appeal. — Review.—Presumptions,—Verdict.—Answers to Interrogatories. — Every presumption is indulged in favor of the general verdict as against the answers to interrogatories, and it is only when the conflict between them and the general verdict is irreconcilable on any theory, or on any supposable state of facts provable under the Issues, that such answers will control, p. 417.</p> <p>15. Appeal. — Review.—Verdict.—Evidence.—Sufficiency. — Where there is some evidence on each fact essential to its support, a verdict will not he set aside on the ground of insufficient evidence. p. 418.</p> <p>1G. Appeal. — Questions Presented for Revieio. — Motion for New Trial. — Grounds.—Special Verdict. — No question is raised on appeal by the grounds of a motion for a new trial, that the special verdict is not sustained by sufficient evidence, and is - contrary to law. p. 419.</p> <p>17. Carriers. — Injury to Passengers. — Evidence.—Admissibility.— Contributory Negligence. — In a passenger’s action for injuries in being thrown from a train by the sudden jerking of the train while plaintiff was standing near the door preparatory to alighting at a station, evidence in relation to plaintiff’s experience in riding on trains, and her information as to the length of time the train stopped at the.station, was admissible as affecting the question of whether she was guilty of negligence contributing to her injury, p. 419.</p>

From Steuben Circuit Court; E. A. Bratton, Judge. Action by Della Butz, administratrix of the estate of William H. Butz, deceased, against the Angola Railway and Power Company. From a judgment for plaintiff, the defendant appeals.

From Greene Circuit Court; Charles E. Henderson, Judge. Action by Enos W. Carpenter, trustee of tbe estate of Sherman Hash, bankrupt, against the Northern Assurance Company of London. From a judgment for plaintiff, the defendant appeals.

<p>1. Pleading. — Complaint. — Bwplieity. — Remedy. — Where each paragraph of complaint contains two separate and distinct causes of action, that may be properly joined, the defect cannot be reached by a demurrer for want of facts, but the remedy is by a motion to require that the causes be separated and stated in separate paragraphs, p. 442.</p> <p>2. Oontkacts.—Contracts Partly in Writing.—Action.—Complaint. —Sufficiency.—A contract, partly in writing and partly in parol, rests entirely in parol, and a complaint thereon is not rendered insufficient by failure to set out therein the portion of the contract that is written, or to malee the same an exhibit thereto, p. 443.</p> <p>3. Cokteacts.—Action.—Complaint.—’Sufficiency.—Bill of Particulars.—Where, in an action on a building contract, each paragraph of complaint stated facts sufficient to constitute a cause of action on the contract, plaintiff’s failure to file a bill of particulars of items claimed ns extras in each paragraph, does not render .the complaint demurrable, p. 443.</p> <p>4. Pleading.—Complaint.—D&nvurrer.—A complaint is sufficient to withstand a demurrer, if it states facts sufficient to entitle plaintiff to some relief, p. 443.</p> <p>5. Appeal.—Record.—Bill of Exceptions Not Signed.—Questions Not Considered.—Questions presented by a motion for new trial, and depending on the evidence, cannot be considered where tho bill of exceptions containing the evidence, as shown by the record, is not signed by the trial judge, p. 443.</p>

<p>From Owen Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Stephen B. Thompson against John W. Newsom and others. Prom a judgment for defendants, the plaintiff appeals.</p>

From Orange Circuit Court; Thomas B. Buskirk, Judge. Petition by the Southern Railway Company to vacate a street in the town of French Lick, and contested by the town and certain citizens. From an adverse judgment, the petitioner appeals.

From Pulaski Circuit Court; Francis J. Vurpillat, Judge. Action by The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company against Carl Johnson and another to enjoin the enforcement of an execution. Prom a judgment against it on a cross-complaint seeking to cure the defect of the judgment on which the execution was issued, by reading and signing the record thereof nunc pro tunc, the plaintiff appeals.

<p>From Morgan Circuit Court; Henry G. Barnett, Special Judge.</p> <p>Action by Sarah. B. Morgan against William P. Park. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Boiras.—Fidelity Bonds.—Conditions in Application.—Breach.— Effect.-—Where a bond to secure an employer against embezzlement by a sales manager, was issued by a surety company on such employer’s representation in the application that daily reports and monthly statements would be required of such manager, and that a representative would check up his accounts, such representations were conditions precedent, a breach of which would prevent a recovery on the bond, in the absence of a waiver thereof by the surety, p. 484.</p> <p>2. Boiras.-—Fidelity Bonds.—I/iability.-—Estoppel.—Failure to Return Premium.—A surety company is not estopped, by failure to return premium, from setting up the defense of forfeiture of a bond securing an employer against embezzlement by his sales manager, occasioned by the employer’s breach of conditions binding him to require such manager to furnish daily reports, monthly statements, etc., where the bond was valid and in force when issued, p. 484.</p> <p>3. Boiras.—Fidelity Bonds.—Breach of Conditions.—Forfeiture.— Waiver.-—The right of a surety company to declare the forfeiture of a bond, executed to secure an employer against embezzlement by his employe, because' of the employer’s breach of conditions binding him to require the employe to furnish daily reports, monthly statements, etc., is not waived by the company’s request for the prosecution of the defaulting employe, in the absence of a showing that it knew of such breaches by the employer prior to the time of requesting the irrosecution of such employe. p. 4S7.</p>

<p>1. Appeal.—Weight of Evidence.—Statutes.—Where the evidence on which the finding of the trial court rests consists in whole or in part of oral testimony, §698 Bums- 1908, Acts 1903 p. 338, providing that in causes not triable by jury, the court on appeal shall weigh the evidence, etc., does not apply, even though the cause was not triable by jury. p. 488.</p> <p>2. Appeal.—Review.—Evidence.—Emdmgs.—On appeal the court will not weigh conflicting evidence consisting of oral testimony, but will consider only that which is favorable to the finding in determining the sufficiency of the evidence to support same, p. 490.</p> <p>3. Appeal.-—Review.—Evidence.—Fundings.—Where there is some evidence to justify a finding o-f the trial court, such finding is sustained by sufficient-evidence, p. 490.</p> <p>4. Pleading.—Complaint.—General Denial.—The general denial puts in issue every material, allegation of the complaint, p. 490.</p> <p>5. Vendor and Purchaser.—Vendor's IAen.—Issues.—Evidence.— In an action to enforce a vendor’s lien, the plaintiff, under the issues formed by tlie general denial, must prove that the vendee is still indebted for some part of the purchase price, p. 400.</p> <p>6. Evidence.—Admissions.—Testimony m Another Action.—Testimony of a party, given in another action, is admissible as an admission, p. 491.</p> <p>7. Appeal.—Bedew.—Objections to Evidence.—Availability.—Objections to evidence, which do not state the grounds on which they are based, are unavailing on appeal, p. 491.</p>

Prom Tipton Circuit Court; Leroy B. Nash, Judge. Action by Anna B. Poling, administratrix of the estate of Henry E. Poling, deceased, against the Penn American Plate Glass Company. From a judgment for plaintiff, the defendant appealed and on June 30,1911, the appeal was dismissed per curiam, and thereafter a petition for a rehearing was granted.

<p>1. Appeal. — Briefs.—-Sufficiency—Statement of Substance of Pleads ■ ings. — Where appellant makes a good faith effort to set out the substance of each of the pleadings and gives a reference to the page and lines of the record where the entire pleading is found, so that the court can know by reference to the brief alone the real question attempted to be raised as to the sufficiency of such pleadings, the brief is sufficient to require a consideration of such question, p. 498.</p> <p>2. Sales. — Rescission.—Common Law Rule. — The right to return a warranted article and rescind the contract does not exist at common law, except in cases of fraud or where there is a special contract to that effect, and the purchaser is limited in his remedy to a recovery of damages for the breach of warranty, p. 504.</p> <p>8. Sales. — Warranty.—Return of Properly and, Rescission of Contract. — Exclus-vveness of Remedy. — Contracts óf sale containing provisions for the return of the property and a rescission of the contract, or for the substitution of other property for that Which fails to comply with the warranty, are not treated as exclusive in the. remedy provided, unless such intention is clearly expressed by the language and terms of the warranty, p. 505.</p> <p>4. Sales. — Warranty.—Breach.—Limitation of Remedy.- — In a contract of sale, the parties may provide all and entire the remedies contemplated and agreed upon to be applied in the event of a breach of the warranty, in which case they are bound thereby and limited to the remedy, or remedies, so provided, p. 505.</p> <p>5. Sales. — Wairanty.— Construction Against Warrantor.— The rule, that an express warranty should be construed most strongly against the party in whose interest the contract was prepared, applies only where there is ambiguity or uncertainty in ascertaining the intent of the parties, p. 506.</p> <p>(i. Sales.— Warranty.— Construction.— Intention of Parties.— In construing an express warranty, the object to he attained is the intention of the parties, and such intention must be ascertained, if possible, by the language used, and not by reading into it words that import an understanding wholly unintended and unexpressed when the contract was written, but suggested by some apparent hardship in the enforcement thereof, p. 506.</p> <p>7. Sales. — Warranty.—Construction.—Exclusiveness of Remedy.— A contract of sale, in which the seller of a horse contracted that “in the event the above named stallion, in perfect health with proper usage * * * does not get with foal 50 per cent, * * * then on return * * * in good health and condition I agree to furnish another,” etc., and which stated that should the stallion thereafter become injured or disabled through accident or disease, the warranty should be null and void and of no effect and all obligations of the seller considered fulfilled and ended, and that the contract contained all the agreements of warranty connected with such sale, construed in its entirety, limits the buyer’s remedy for a breach of the warranty, and an action for damages for such breach will not lie. pp. 506, 508.</p> <p>S. Oonteacts. — Construction.—The true meaning of any contract is to be ascertained from a consideration of all its provisions in their entirety, and not from a literal or technical construction of any isolated or special clause, p. 508.</p>

<p>1. Municipal Cobpobations. — Streets and Public Ways. — Defects. —Liability.—Cities have complete jurisdiction over all streets and lmblic ways within their respective limits, under §§8655, 8960-S960 Burns 1908, Acts 1905 p. 219, §§53, 266-271, and consequently are liable for failure to keep such public highways in reasonably safe condition for travel, p. 515.</p> <p>2. Municipal Coepokations. — Defective Streets. — Liability of Abutting Owners. — A property owner, wlm, by some affirmative wrongful act, causes the defective condition of a street, is liable to the city or town for any amount which it may be required to pay as damages on account of such defect, p. 515.</p> <p>3. Municipal Coepokations. — Defective Streets. — Railroad Crossings. — Liability of RaiVroad Company. — Statutes.—Under §5250 et. seq. Burns 1908, Acts 1S05 p. 233, requiring railroad comXianies to properly grade and plank their roads at all' street crossings, so as to afford security for life and property at such crossings, providing for the collection of penalties for failure so to do, and also providing that the municipality may, on their failure so to do, have the work done at the expense of such railroads, it is the primary duty of a railroad company so to construct and maintain all street crossings as to make them reasonably safe for travel, and a railroad company is primarily liable for injuries resulting from its failure to perform such duty, p. 515.</p> <p>4. Municipal Coepokations. — Defective Streets. — Railroad Crossings. — Liability.—One, who is injured by a defective street caused by the failure of a railroad company to properly repair such street at the intersection of its tracks therewith, may bring an action against the railroad company, or he may bring it against the city, since, as between the city and the public, the city stands as a guarantor that the company will not be negligent, and, it is therefore primarily liable for such negligence; and where the city has been obliged to pay, the company is primarily liable to it for such damages, together with the costs and expenses fairly incurred, pp. 517, 518.</p> <p>5. Railroads. — Street Crossings. — Approaches.—Duty to Maintain. —The approaches of a street to a railroad crossing constitute a part of such crossing, and the company is bound to maintain such portion of the street as well as that which crosses the tracks, p. 518.</p> <p>G. Municipal Corporations. — Action for Personal Infartes. — Defective Railroad Crossing. — Judgment.—Res Judicata. — Matters Directly in Issue. — In an action by a pedestrian against a city for injuries caused by the defective condition of a railroad street crossing, where the railroad company, after notice, failed to appear and defend, the only matters adjudicated, so far as the right of the railroad company is concerned, were such as were essential to support the verdict, namely, the existence of the defect, the liability of the city to plaintiff, and the amount of damages which the city was required to pay; so that in an action by the-city against the railroad company to recover the amount of the judgment rendered against it, the company was not prevented from showing that it was under no duty to repair the defect, and that the injury was not caused by any negligence on its part, p. 519.</p> <p>7. Municipal Corporations. — Streets.—Duty to Light. — Liability for Fadlure. — The lighting of streets by a municipality is merely the exercise of a governmental function, and negligence cannot be imputed for a failure to exercise such power, p. 520.</p>

<p>Prom Huntington Circuit Court; Charles F. Sturgis, Judge.</p> <p>Action by the Caswell-Runyan Company against Lewis C. Mitten and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>Prom Boone Circuit Court; Willett E. Parr, Judge.</p> <p>Action by Nola S. Grubb against James W. Brendel and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>1. Peincipal and Agent.—Husband and Wife.—Power of Attorney. —Construction.—Death of Wife.—Revocation.—A power of attorney executed by a husband and wife directly authorizing the attorney in fact to convey the property of “any one of us,” etc., and not containing any power to convey joint property, is several and is not revoked by the death of the wife. p. 539.</p> <p>2. Principal and Agent.—Power of Attorney.—Payment of Money to Authorized Agent.—Recovery.—One who pays money to an agent authorized to receive it is entitled to Ms credit without tracing the fund through the hands of the agent and into those of his principal, so that where an agent, authorized by a power of attorney to borrow money on “the note, notes, mortgage or mortgages” of the principal, borrowed money on Ms promise to give the note of the principal therefor, a recovery may be had by the lender against the principal, although no note was ever executed, p. 540.</p> <p>3. Principal and Agent.—Existence of Relation.—Evidence.—Instructions.—In an action for money loaned, where it was alleged that defendant borrowed the money through an agent, evidence that the alleged agent received a check from plaintiff and deposited same to defendant’s credit, and was constantly loaning money for defendant, and performed other and similar acts for defendant, an instruction by which the question of whether he was the defendant’s agent in the making of such loan was left wholly to the jury, after a consideration of all the facts shown, was proper, p. 541.</p> <p>4. Principal and Agent.—Poxoer of Attorney.—Recovery of Money Paid to Agent.—Instructions.—In an action to recover money alleged to have been loaned to defendant through his agent, an instruction that if the jury determined from all the evidence that a power of attorney from defendant to such agent was in force during the time of the business dealings between plaintiff and such agent, and that such agent borrowed the money under the authority therein granted, defendant would be liable, was not erroneous, p. 541.</p> <p>5. Appeal.—Review.—Instructions.—Refusal.—The refusal of requested instructions is not error, where they are fully covered by others given, or where they are not applicable to the evidence, p. 541.</p> <p>6. Appeal.—Review.—Affirmance.—Where there is ample evidence to support the verdict, and no prejudicial error is shown by the record, the judgment must be affirmed, p. 542.</p>

<p>From Superior Court of Marion County (80,383); Charles J. Orbison, Judge Pro Tem.</p> <p>Action by the Indianapolis Coal Company against Arthur Jordan. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Marion Circuit Court (18,500) ; Charles Remster, Judge. Action by Emma G-. Morton and others against the Antioch Baptist Church and others. Prom a judgment for plaintiffs, the defendants appeal.

<p>1. Appeal. — Review.—Answer in Abatement. — Sufficiency.—Failure to Point Out Defect. — An answer in abatement which appears to state sufficient facts will be deemed on appeal to be sufficient to withstand a demurrer, where appellant fails to point out any specific defect therein, p. 551.</p> <p>2. Dismissal. — Right to Dismiss. — Gommon-Law Rule. — Statutes.—■ The rule prevailing in common-law Jurisdictions, that the plaintiff in an action at law has a right to dismiss his action at any time before verdict, but that complainant in a suit in equity does not possess a similar right, is not applicable in this State, since under §249 Burns 1908, §249 R. S. 1881, providing that there shall be but one form of action denominated a civil action, and abolishing all distinctions in pleading and practice between actions at law and suits in equity, the provisions of §338 Burns 1908, §333 R. S. 1881, that a plaintiff may dismiss his action at any time before the Jury retires, or, when the trial is by the court, at any time before the finding of the eourt.is announced, must be held to apply to a civil action, regardless of whether the relief sought is legal or equitable, pp. 553, 551.</p> <p>3. Actions. — Actions at Lmo. — Suits m Equity. — Effect of Statute Abolishing Distinctions. — Section 219 Bums 1908, §219 R. S. 1881, providing that there shall be but one form of action, denominated a civil action, and abolishing all distinctions in pleading and practice between actions at law and suits in equity, neither abridges the power of courts to grant equitable relief nor changes the rules of law or principles of equity as applied in determining the substantial rights of the parties, though in some instances it changes the form of procedure by which the remedy is obtained, p. 551.</p> <p>1. Courts. — Judicial Duties. — Master Commissioner. — Report.— The report of a master commissioner is not a finding of the court, since a master commissioner is not a court, and judicial duties, which a court alone can exercise, cannot be conferred on him. p. 555.</p> <p>5. Dismissal. — Right to Dismiss. — Repos-t of Master Commissioner as Affecting Right. — The right of plaintiff to dismiss his action, under §338 Burns 1908, §333 R. S. 1881, providing that plaintiff may dismiss at any time before the finding of the court is announced, is not affected by the fact that prior to asking the dismissal, the report of the master commissioner, to whom the ease had been referred, had been prepared and copies submitted to the parties, p. 555.</p> <p>O. Dismissal. — Wrongful Dismissal. — Effect.—Where a court has jurisdiction of the subject-matter and of the parties to the action, an order of dismissal wrongfully entered is not ineffective, but merely erroneous, and is binding on the parties unless reversed on appeal or set aside in a direct proceeding brought for that purpose, p. 555.</p> <p>7. Dismissal. — Collateral Attach. — An order of dismissal, even if erroneous, is not subject to collateral attack, p. 555.</p> <p>8. Dismissal. — Yolimtary Dismissal. — Effect as to Set-off. — Rights of Defendant. — A set-off is not affected by the dismissal of the cause of action stated in the complaint, but defendant may proceed to final judgment on the issues tendered by such set-off, although the court, in determining the questions thus presented, would have no right to consider any issues formed on the complaint. p. 555.</p> <p>9. Appeal. — Review.—Assumption That Trial Court Will Err.— The court on appeal has no right to assume that a trial court, in passing on a matter, will consider questions not presented by the pleadings then on file. p. 556.</p> <p>10. Abatement. — Another Action Pending. — Evidence.—Sufficiency. —An answer in abatement on the ground that another action is pending is not sustained by evidence showing that a former action was commenced on the same cause of action, where it is also apparent that such former action was dismissed and was not Xiending when the latest action was filed, p. 556.</p> <p>11. Pleading. — Pleas to Jurisdiction. — Requisites.—Am answer denying the jurisdiction of the court is a dilatory plea and must be certain and definite and must anticipate and exclude all such supposable facts as would, if alleged on the opposite side, defeat the plea, since nothing can be supplied by intendment, p. 557.</p> <p>12. Venue. — Joinder of Several Defendants. — Answer in Abatement. — Sufficiency.—Under §315 Burns 1908, §312 R. S. 1881, authorizing an action against two or more defendants, jointly liable, in the county where either resides, jurisdiction is not acquired by a defendant against whom plaintiff has a cause of action, in 'an action brought in a county of which he is not a resident, by joining him as a codefendant with a person residing where the action is brought, but against whom plaintiff has no cause of action, so that an answer showing that jurisdiction of a defendant could not have been acquired by the service of summons in the county where the action was brought, and that the other defendant, who resided in such county, was not in any way indebted to plaintiff on the cause of action stated in the complaint, stated facts sufficient to abate the action, p. 558.</p> <p>13. Pleading. — Demurrer.—Admissions.—Par the purpose of testing the sufficiency of a pleading, a demurrer admits the truth of its averments, p. 558.</p> <p>14. Pleading. — Answer in Abatement. — Joinder of Matter in Abatement With Matter in Bar. — Warner of Grounds of Abatement.— A plea in abatement must precede a plea in bar, and where matter in abatement is joined in the same paragraph with matter in bar, the matter in abatement is waived and may be stricken out on motion, p. 558.</p>

<p>1. Taxation. — Tax Sales. — Validity.—To convey title, a tax sale must be in accordance with the statute, and if any essential act has been omitted, or has been improperly done, the sale is ineffectual and insufficient to convey title to the purchaser, p. 563.</p> <p>2. Taxation. — Tax Sales. — Place of Sale. — Validity.—Under §10355 Burns 1908, Acts 1891 p. 199, §184, providing for posting copies of the delinquent list, and also notice that so much of such delinquent lands and lots as may be necessary to discharge the taxes, etc., will be sold at public auction at the courthouse door, etc., and §10380 Burns 1908, Acts 1891 p. 191, §206, providing the form of tax deed, the failure to conduct a tax sale at the courthouse door renders such sale invalid and the tax deed will not convey a good and sufficient title, p. 564.</p> <p>3. Taxation. — Tax Sales. — Invalid Sales. — Rights of Purchaser.— Under the provisions of §§10388, 10394 Burns 1008, Acts 1901 p. 366, §§1, 3, where a conveyance of land for taxes is invalid, the lien for taxes, which the State had prior to the sale, is transferred to the purchaser at such sale and he becomes subrogated to all of the rights of the State therein, and such right of lien remains a charge against the land until the taxes, interest and penalty, are actually repaid to him, or until such time as the lien grows into an absolute title, p. 564.</p> <p>4. Taxation. — Tax Sales. — Invalid Sales. — Priority of Lien Over Lien for Street Improvement. — Estoppel.—Although by §8714 Burns 1908, Acts 1905 p. 219, §109, relating to special assessments for street improvements, it is provided that liens for such special assessments shall have precedence over all liens except taxes, where a purchaser of a lot at a tax sale, holding a tax deed regular on its face, and having knowledge of irregularities in conducting the sale which rendered same invalid, remained silent after notice of the adoption of a resolution for the improvement of the street on whidh such lot abuts, and did not disclose that he was not the absolute owner of such lot until after the improvement was made and suit was brought to foreclose the assessment-lien, he thereby waived the superiority of the lien for taxes, and is estopped from setting up the defect in his title to defeat the lien for such assessment, p. 565,567.</p> <p>5. Subrogation. — Equitable Rights. — The right of subrogation is an equitable right, and one who asserts such right must act fairly and equitably before the courts will decree in his favor, p. 566.</p>

<p>1. Principal and Agent. — Bills and Jiotes. — Equitable Defenses.— In an action by an agent against his principal on a note for money borrowed from the agent and invested by the principal in the business which the agent was conducting for him, the principal may, by cross-complaint, present an equitable defense and require the agent to give an account of his trust, p. 570.</p> <p>2. IhttNOtPAn and Agent. — Aetions.—Waiver of Tort. — Action on Implied Contract. — A principal may waive the tort of his agent based on his failure to account, and sue him as on an implied contract for the money due. p. 570.</p> <p>3. Principal and Agent. — Accounting by Agent. — Where an agent has been intrusted with his principal’s money to be expended for a definite purpose, he may be required to account in equity, and ih making such accounting he has the burden of showing that his trust duties have been performed, and the manner of such performance. p. 571.</p> <p>4. Principal and Agent. — Accounting by Agent. — Evidence.—8ufficémey. — Where, on the question of whether an agent, intrusted with the management of a store, had accounted for the property and funds which came into his hands, it was shown that although the system of bookkeeping was careless, both the principal and the agent knew the condition of the business, and the agent testified that he had accounted for and turned over to the principal all moneys he received, except his salary, there was some evidenpe from which it may be said that such agent had accounted for the money coming into his hands, p. 571.</p> <p>5. Appeal. — Review.—Findings.—Evidence.—Where there is some evidence to sustain the finding of the trial court, the evidence will not be weighed on appeal, p. 572.</p> <p>6. Appeal. — Questions Removable. — Excessive Amount of Recovery. — Manner of Salving Question. — An assignment, as ground for a new trial, that the assessment of the amount of the recovery is erroneous, being too large, correctly saves the question, and a motion to modify the judgment is not necessary, p. 573.</p> <p>7. Appeal.- — Revieio.—Findings.—Evidence.—In the absence of evidence to the contrary, the court on appeal cannot say that tho amount of attorney’s fees allowed by the trial court, based on the testimony of a practicing attorney, is either against the evidence or in conflict therewith, p. 573.</p>

<p>1. Contracts.—Construction.—Surplusage.—In construing a contract for the sale of corn, where it appears that the memorandum was written on a blank form providing for the advancement of a money loan on an agreement for the sale of grain, and no money loan was in fact made, the part of the memorandum referring to such loan will be disregarded, as being mere surplusage, p. 575,</p> <p>2. Pbaud, Statute ok—Contracts.—Signatures.—-The statute of frauds, §7469 Bums 1908, §4910 R. S. 1881, under which a contract, for the sale of goods worth more than $50, in the absence of part payment or partial delivery, must be in writing, etc., is satis¡Sed, and the contract is enforceable, if it is signed alone by the party sued. p. 575.</p> <p>3. Contracts.—Signatures.—Acceptance of Contract.—Effect.—A contract, though signed by one party only, may become mutual ' and binding on both, if it is accepted and acted upon by the party not signing, p. 576.</p> <p>4. Contracts.—Acceptance.—Action.—Mutuality.—The bringing of an action on a contract, signed alone by the party to be charged, is in itself a sufficient acceptance to make the contract mutual, p. 570.</p> <p>5. Contracts. — Executory Contracts. —■ Consideration. — Mutual Promises.—Where a contract is executory on both sides, consisting of promises by each party to do something, the mutual promises of the parties are a sufficient consideration, each for the other, to render either party liable for a failure to carry out his part. p. 576.</p> <p>0. Frauds, Statute of.—Contract of Sale.—Consideration.—It is not necessary under the statute of frauds, §7464 Burns 1908, §4905 R. S. 1881, that the memorandum of a contract of sale should state the consideration, p. 576.</p> <p>7. Appeal.—Review.—Evidence.-—Verdict.—A verdict for plaintiff is supported by sufficient evidence, where there was evidence to support the complaint in all particulars, p. 577.</p>

<p>Prom Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by Ray Q. Newsom against the Chicago and Eastern Illinois Railroad Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>.1. Appeal.—Briefs.—Waiver of Error.—Questions as to alleged errors in the admission and exclusion of testimony are waived by appellant’s failure to discuss them in his brief, or to cite authority in support thereof, p. 583.</p> <p>2. Appeal.—Review.—Objection to Evidence.—Waiver.—Questions as to alleged error in the admission and exclusion of testimony are waived by a failure to state specific objections, p. 583.</p> <p>3. Limitation of Actions.—Accrual of Oause of Action.—Injury to Property.—Statutes.—An action for injury by the overflow of real property is barred by the six years’ statute of limitations, §294 Burns 1908, §292 R. S. 1881, where the acts which produced the overflow occurred more than six years before the bringing of the action, although the injuries are alleged to have been suffered within such six year period, p. 584.</p> <p>4. Appeal.—Review.—Harmless Error.—Rulings on Demurrers to Anstccrs Pleading Statute of Limitations.—Where a cause of action was barred by the six years’ statute of limitations, §294 Burns 1908, §202 R. S. 1881, which was pleaded, the action of the court in overruling demurrers to paragraphs of answer pleading the other statutes of limitations was harmless, p. 584.</p> <p>5. Waters and Watercourses.—Drainage of Surface Water.—Answer Showing Easement by Prescription.—Sufficiency.—In an action for injury to land by the drainage of surface water thereon, an answer showing an open, notorious, exclusive and adverse possession and use of the drains complained of for thirty years, with the right to flow water through the same across plaintiff’s land during all that time, is sufficient as an answer showing an easement by prescription, p. 585.</p> <p>G. Waters and Watercourses.—Drainage of Surface Water.— Rights of Purchaser With Notice.—In an action for damages in overflowing plaintiff’s land, the fact that defendant’s drains were constructed and in use by .and with the consent of all the owners of the lands affected, long before plaintiff purchased his real, estate, and that he purchased with full knowledge of such fact and of defendant’s easement or right to flow water across such land, constitutes a good defense, p. 585.</p> <p>7. Waters and Watercourses.—Overflowing Land.—Actions.— Evidence—Sufficiency.—la an action for damages in overflowing plaintiff’s land, evidence showing that from time immemorial water collected in small, well-defined, branch streams on defendant’s land and was carried over a portion of plaintiff’s land and emptied into an ancient natural watercourse flowing through said land, that defendant placed certain tile ditches which empty into said branch streams on his land, and that no more water was emptied into said branch streams and carried over plaintiff’s land into said watercourse than formerly resulted from the natural drainage of the land, is sufficient to support a finding and judgment for defendant, p. 580.</p>

<p>Prom Superior Court of Marion County (77,834); John L. McMaster, Judge.</p> <p>Action by the City of Indianapolis against the Barber Asphalt Paving Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by John J. Farrell against the Michigan Central Railroad Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Boone Circuit Court; W. H. Parr, Judge.</p> <p>Action by Walter J. Hubbard against Ida M. Ranje and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Pike Circuit Court; John L. Bretz, Judge.</p> <p>Action Tby John ~W. Patterson against the Southern Railway Company of Indiana and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Husband and Wiee.—-Actions.—Parties.—Where, in an action against a husband and wife on a note executed by the wife before her marriage, judgment was had against the wife, but no finding or judgment was rendered against the husband, the husband is neither a necessary nor proper party in an action on such judgment, brought after a divorce had been granted, p. 627.</p> <p>2. Fraud.—Complaint.'—Allegations.—Bringing Action in Wrong County.—A complaint in an. action to set aside a judgment, on the ground that the original action was fraudulently brought in the wrong county, is insufficient in the absence of averments of acts or conduct constituting fraud, p. 628.</p> <p>3. Venue.—Action Brought in. Wrong Coimty.—Waiver of Objection.—Where an action is brought in the wrong county, and defendant is lawfully served with notice of the pendency of the action, the question of jurisdiction is waived by permitting a default to be taken, under §348 Burns 1908, §343 K. S. 1881, providing that an objection that the action is brought in the wrong county shall be deemed waived, if not taken by answer or demurrer, p. 628,</p>

<p>From Marion Circuit Court (12,099); Charles Remster, Judge.</p> <p>Action by Melvin L. Wilson against the National Biscuit Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From. Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by the Baltimore & Ohio Southwestern Railroad Company against the Cincinnati, Lawreneeburg & Aurora Electric Street Railroad Company. From a judgment for defendant, the plaintiff appeals.</p>

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

<p>Prom Greene Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by John A. Gaskill against Clarence C. Barnett. Prom a judgment- for defendant, the plaintiff appeals.</p>

<p>1. Neoi.xoem'oe.—Contributory Negligence.—Complaint.—Sufficiency. —A complaint which states facts sufficient to show negligence on the part of defendant and that such negligence resulted in the injury complained of, is sufficient on demurrer, unless other facts pleaded show affirmatively, as a matter of law, that plaintiff was guilty of contributory negligence, pp. 664, 665.</p> <p>2. Railroads. — Crossing Accidents. — Contributory Negligence. — Complaint.—Sufficiency.—A complaint, in an action against a . railroad company for injuries sustained by being struck by a train at a crossing, is not insufficient on the theory that plaintiff’s contributory negligence may be inferred from his failure to allege an excuse for his failure to observe the approach of the tram, since under §362 Bums 1908, Acts 1899 p. 58, plaintiff is not required to allege or prove that he was free from contributory negligence, p. 664.</p> <p>3. Pleading.—Presumptions Against Pleader.—Application of Rule. —The rule, that a plaintiff is presumed to have stated his case as strongly in his favor as the facts warrant, applies only to such facts as are necessary to his cause of action, and does not apply to facts which tend to disclose a defense, p. 665.</p> <p>4. Trial.—Instructions.—Contributory Negligence.—In an action, for personal injuries where contributory negligence is a defense, an instruction which tells the jury that the burden is on defendant to prove contributory negligence, that such proof may be made under the general denial, and that in order to render such defense available it must be proved by a fair preponderance of all the evidence in the case, is not open to the objection that would lead the jury to believe that contributory negligence could be proved only by the evidence produced by defendant, p. 665.</p> <p>5. Appeal.—Review.—Instructions.—Refusal.-—Matter Covered by Other Instructions.—In an action for personal injuries, where, on the subject of contributory negligence, the jury was instructed that such defense must be proved by a fair preponderance of all the evidence in the case, the refusal of a requested instruction stating that if evidence of contributory negligence appeared from the testimony of plaintiff it would be available to defendant on such question, was not error, although such instruction could properly have been given, p. 666.</p> <p>C. Trial.—Instructions.—Refusal.—It is error to refuse requested instructions that state the law correctly, if they are not fully covered by the instructions given, p. 666.</p> <p>7. Railroads.—Crossing Accidents.—Instructions.—Refusal.— An instruction, in an action for injuries sustained in a railroad crossing accident, stating that if a person is struck by a train at a crossing, the law deems the fault prima facie his own, etc., was properly refused, since the burden of proving contributory negligence is on defendant, p. 667.</p> <p>8. Appeal.—Review.—Verdict.—Evidence.—Sufficiency.—The court on appeal cannot weigh conflicting evidence, and where there is some evidence tending to support the verdict, although a strong preponderance seems to be in favor of appellant, the verdict will not be disturbed on the ground of insufficient evidence, p. 668.</p> <p>9. Railroads.—-Crossing Accidents.—Contributory Negligence.— Jury Question.—Where, in an action for injuries sustained in a railroad crossing accident, plaintiff testified that the crossing watchman touched him and told him to go on across the track and that he was thus led to believe that no train was approach- . ing and that it was safe to cross, and that he thereupon started to cross the track, the question of whether he was guilty "of contributory negligence was one of fact for the jury, and its finding ' in his favor is conclusive on appeal, although the evidence in the record tends strongly to show that he was guilty of contributory negligence, pp. 669, 670.</p> <p>10. Appeal.—Review.—Verdict.—Evidence.—Sufficiency. — On appeal, in determining whether the verdict is supported by the evidence, the court can consider only the evidence which tends to sustain the verdict, and must ignore all evidence to the contrary, p. 670.</p> <p>11. Railroads.—Crossings.—Care Required m Crossing.—Relimce on Signals of Watchman.—A signal or direction, given by the watchman at a railroad crossing directing a traveler on the highway to cross, is' an affirmative assurance that there is no danger, and relieves the traveler from exercising the high degree of diligence and caution that otherwise would be required in approaching a crossing, p. 670.</p> <p>12. Trial.—Evidence.-—Weight and Sufficiency.-—-Credibility of Witnesses.—Province of Jury.—Motion for Tsfeto Trial.-—Duty of Trial Court.—While a question of fact, where the evidence is conflicting, should be submitted to the jury, and the weight of the evidence and the credibility of the witnesses are questions to be passed on by the jury in arriving at a verdict, it is the duty of the trial court, after verdict, on a motion for new trial on. the ground that the evidence is insufficient to sustain the verdict, to weigh the evidence and consider the credibility of the witnesses in determining whether the jury has arrived at a correct result, p. 670.</p> <p>13. Appeal.—Review.—Presumptions.—Weight and Sufficiency of Evidence.-—Credibility of Witnesses.—On appeal, it will be presumed that the trial court, in passing on a motion for new trial on the ground that the evidence is insufficient, has considered the credibility of the witnesses and has weighed their testimony, and that in overruling the motion it was satisfied with the result, p. 671.</p>

<p>Prom Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Jacob P. Downey against The National Exchange Bank. . Prom a judgment for defendant, the plaintiff appeals.</p>

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by Clara Belle Claycomb against the Marion County Construction Company and others. From a judgment for plaintiff, the defendant, Marion County Construction Company, appeals.</p>

From Vigo Circuit Court; Joshua Jump, Special Judge. Action by Winifred Harper Cooley against Frank A. Kelley individually, and as executor of the last will of Thomas W. Hamper, deceased. From a judgment for defendant, the plaintiff appeals.

<p>From Putnam Circuit Court; John M. Rawley, Judge.</p> <p>Action by Alonzo Wheeler against The Cleveland, Cincinnati, Chicago &, St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action between Matthew G. Miller and The Bank of Advance, and from an adverse judgment, Miller appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action between Matthew G. Miller and George Hogshire, and from an adverse judgment, Miller appeals.</p>

<p>From Boone Circuit Judge; James V. Kent, Special Judge.</p> <p>Action by James T. Mellette against Matthew G. Miller. From a judgment for plaintiff, the defendant appeals.</p>