Volume 56 — Indiana Appellate Court Reports

<p>Prom Hamilton Circuit Court; Ernest E. Cole, Special Judge.</p> <p>Action by Charles C. Hatfield and another against Dora E. Rooker and another. Prom a judgment for defendants, the plaintiffs appeal.</p>

From Lake Superior Court; Virgil 8. Reiter, Judge. Action by the Modern Brotherhood of America against George Matkovitch and others to determine the rightful claimants to the proceeds of a benefit certificate issued by plaintiff. From a judgment for defendant Louis Grahovac, this appeal is prosecuted.

<p>Prom Wabash. Circuit Court; A. H. Plummer, Judge.</p> <p>Action by William E. Hines and another against Hannah Schaefer and another. Prom a judgment for plaintiffs, the defendants appeal.</p>

Prom Tippecanoe Circuit Court; Richard P. DeHart, Judge. Action by Rose Ella Young, as administratrix of tbe estate of Nathaniel W. Young, deceased, against the Terre Haute, Indianapolis and Eastern Traction Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Appeal — Assignment of Errors. — Causes for New Trial. — Assignments of error, which, in so far as they are available for any purpose, are causes for a new trial, present no questions on appeal, p. 40.</p> <p>2. New Trial. — Causes for New Trial. — Motions.—Under subd. 6, §585 Burns 1908, §559 R. S. 1881, authorizing the granting of a new trial where the decision of the court is not sustained by sufficient evidence, or is contrary to law, though the use of the word “finding” instead of “decision” in a motion for new trial does not render the assignment bad, a motion on the grounds “that the finding in the judgment of the court was not sustained by sufficient evidence,” and “that the finding and judgment of the court is contrary to law,” presents no question, p. 40.</p> <p>3. Quieting Title. — Cross-Complaint.—Sufficiency.—Initial Attach on Appeal. — In an action to quiet title, a cross-complaint alleging that cross-complainant was the owner in fee simple of certain real estate including the land in controversy, and that plaintiff claimed some right, title or interest in the same, or part thereof, which claim is unfounded and a cloud on cross-complainant’s title, was not only sufficient as against initial attach on appeal, but would have withstood a demurrer, p. 41.</p>

<p>From Lawrence Circuit Court; J ames B. Wilson, Judge.</p> <p>Action by Elbert Walker Shirk against the Baltimore and Ohio Southwestern Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Tbial. — Findings.—Construction.—A special finding of facts will be regarded as a general finding where there was no request by either party that the facts be specially found, p. 48.</p> <p>2. - Appeal. — Review.—Evidence.—Sufficiency.—The decision of the trial court is sustained by sufficient evidence where there is some evidence to sustain it as to every question raised, p. 48.</p>

<p>Prom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by The Tincher Motor Car Company against the Board of Commissioners of the County of St. Joseph. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Municipal Corporations. — Contracts. — Listing Sequestered Property for Taxation. — A city may enter into a contract engaging persons to discover sequestered property and cause tlie same to be entered upon the tax duplicates, p. 56.</p> <p>2. Municipal Corporations. — Contract for Discovery of Sequestered Property. — Validity.—Ordinance.—Where a contract employing experts to discover sequestered property and cause the same to be entered for taxation, was entered into by the mayor of a city pursuant to an ordinance directing the execution of same, and recited that it was made in compliance to such ordinance, the provisions of such ordinance thereby became a part thereof as much as if set out therein at full length, so that such contract was not invalid as being unauthorized on the ground that it did not specifically mention certain conditions set forth in the ordinance, p. 56.</p> <p>S. Municipal Cobpobations. — Contracts.—Discovery and Listing of Sequestered Property for Taxation. — LiaMUty.—While a city that had entered into a contract with experts to discover sequestered property and cause the same to be entered for taxation had the right under its express provisions to reject any or all such property or taxes as uncollectible and thus become exempt from liability for the services performed, where, after it had exercised such right of rejection, the experts reported the property to the county assessor who caused same to be entered on the duplicates, and the full amount of the taxes was thereafter collected by such city, there was such an acceptance as rendered the city liable for the payment of the compensation provided in the contract, p. 57.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Under Rule 22 of the court, appellant’s brief should be prepared so that each of the judges may comprehend therefrom the questions presented without recourse to the transcript, except in case of disagreement between the parties as to what the transcript contains; but a brief will be held sufficient, even though it does not fully comply with the rule, if a good faith effort at compliance is apparent, p. 61.</p> <p>2. Railroads.— Crossing Accidents.— Evidence.— Sufficiency.— In an action for injuries to a boy run over by a train at or near a railroad crossing, where there was evidence to sustain each material allegation of the complaint and each material element of the cause of action, the question of its preponderance was for the jury in the first instance, and for the trial court on the motion for new trial, so that on appeal the verdict for plaintiff is conclusive on the evidence, regardless of the fact that the evidence supporting it is not entirely satisfactory, p. 67.</p> <p>3. Railroads. — Crossing Accidents. — Violation of Ordinance.— Speed. — Signals.—The failure of a railroad company to comply with the provisions of a city ordinance regulating the speed of trains and requiring the ringing of the bell on a moving train, constitutes negligence per se. p. 67.</p> <p>4. Railroads. — Crossing Accidents. — Contributory Negligence. — In an action for injuries to a boy who was run over by a train at or near a railroad crossing, the defendant had the burden of proof on the issue of contributory negligence, and under evidence showing that the flagman was inattentive, and that the boy, who was of tender age, used some care to ascertain whether a train was approaching, and other evidence, which was conflicting, as to the speed of the train and as to whether any warning as to its approach was given, the question of whether the boy used a proper degree of care was for the jury. p. 67.</p> <p>5. Appeal. — Review.—Harmless Error. — Instructions.—In an action against a railroad company for injuries received at or near a crossing, the refusal of an instruction that plaintiff must prove that the accident occurred at the crossing, if error, was harmless in view of the jury’s answers to interrogatories showing that it did occur at the crossing, p. 68.</p> <p>6. Appeal. — Review.—Harmless Error. — Instructions.—Where the court refused an instruction that in determining the-existence of contributory negligence the jury should consider all the evidence bearing on the question, whether introduced by plaintiff or defendant, the error was cured by another instruction that all the evidence should be considered and if it showed contributory negligence, it would be available to defendant, p. 69.</p> <p>7. Railroads. — Crossing Accidents. — Instructions.— Violation of Ordinance. — In an action for injuries sustained at a railroad crossing, where the negligence charged consisted of failure to ring the bell and the running of the train at an excessive speed, all in violation of a city ordinance, an instruction permitting a recovery if defendant violated the ordinance in either respect was not erroneous on the ground that both acts of negligence constituted the plaintiff’s cause of action, since the acts of omission and of commission charged were not dependent on each other, and negligence in either respect, if shown to be the proximate cause of the injury, would complete the cause of action, p. 70.</p> <p>8. Appeal. — Review.—Harmless Error. — Instructions.—In an action for injuries to a boy by being run over by a train, where there was some dispute as to whether the accident occurred at a crossing or at a point on the track some distance therefrom, the concluding statement in an instruction submitting to the jury certain facts which, if found to be true, would entitle plaintiff to recover, that if the facts thus submitted were found to be true the finding should be for plaintiff “and that plaintiff’s said son was injured on said crossing and injured as charged in the complaint,” if erroneous, was harmless, since if the facts submitted were found to be true the accident must of necessity have occurred at the crossing, and it is not probable that the jury was misled, p. 72.</p> <p>9. Railroads. — Crossing Accidents. — Instructions. — Contributory Negligence. — An instruction that plaintiff’s son, who was run over by a train, was not guilty of contributory negligence if he looked for trains while within, a few feet of the crossing was erroneous in view of the evidence upon the question of his care in looking, which was of such character that it can not be determined therefrom as a matter of law that he was not guilty of contributory negligence, pp. 73,74.</p> <p>10. Bahjroads.— Crossing Accidents.— Instructions.— “Thoughtful Card'. — “Care and Caution”. — “Few”.—The terms “thoughtful care” and “care and caution”, as used in an instruction respecting care used by a person approaching a railroad crossing, are not legally definite, as there are all degrees of “thoughtful care” and “care and caution”; and the use of the word “few” in referring to the number of feet from the track where he looked for trains is an indefinite expression that includes a small or limited number, p. 73.</p> <p>11. Appeal. — Review.—Consideration of Instructions. — While it is (he rule that an instruction, or some detached portion thereof, will not be held erroneous, if, upon consideration of all the instructions together it appears that the law was stated with substantial accuracy so that the jury could not have been misled, the rule applies only where the instructions under consideration are alike in being either general or specific; hence error in an instruction specific in character is not rendered harmless on the theory that the law was correctly stated in general instructions given, p. 75.</p> <p>12. Appeal. — Review.—Objections to Mvidence. — No question is presented on an objection to the admission of evidence, where appellant’s brief does not disclose the nature of the objection made. p. 76.</p>

<p>Prom Superior Court of Marion County (18,279); Vinson Garter, Judge.</p> <p>Action by Abner D. Crull against the Parry Manufacturing Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom White Circuit Court; James P. Wason, Judge. Action by the State of Indiana, on the relation of J. W. Stockton, against Edward P. Lane and others. Prom a judgment for defendants the relator appeals.

<p>Prom Martin Circuit Court; J. TV. Ogden, Judge.</p> <p>Action by Peter Hasler against Charles Stiles. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Marion County (83,874); Charles J. Orbison, Judge.</p> <p>Action by Lydia E. Finney against Carey L. Smith and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Superior Court of Marion County (85,108); Clarence E. Weir, Judge.</p> <p>Action by N. Rue Whitney against A. A. McCray. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Floyd Circuit Court; William C. Viz, Judge.</p> <p>Action by Mary Ginter against Louis Ginter. From a judgment for plaintiff, the plaintiff appeals.</p>

<p>Prom Washington Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by Tbe Wasbburn-Crosby Milling Company against Oliver L. Brown. Prom -a judgment for defendant, tbe plaintiff appeals.</p>

<p>1. Pleading.— Complaint.— Sufficiency. — Exhibits.— Reference to Exhibit in Insufficient Paragraph. — Sustaining a demurrer to a paragraph of complaint containing an exhibit, does not take the exhibit out of the case so as to render another paragraph insufficient which merely incorporated the exhibit by reference, p. 114.</p> <p>2. Insurance. — Accident Insurance. — Benefit Certificate. — Construction. — A provision in a certificate of insurance, providing for the payment of an indemnity in ease of accidental injury and for the payment of a specified sum on the death of the insured by accidental means, that an injury received by a member in an attempt to rob him shall be considered an accident creating a liability for payment of the weekly indemnity only for a period not exceeding ten consecutive weeks, as in the case of an accidental injury received in any other manner, applies to injuries that do not prove immediately fatal, but does not apply to a ease where an injury inflicted in an attempt to rob proves instantly fatal, p. 115.</p> <p>3. Insurance. — Accident Insurance. — “Disabled”.—As the term is ordinarily used in contracts of accident insurance, a person is “disabled” when he is so injured as to be incapacitated from following his ordinary business, but still lives, and death is not to be regarded as a disability either permanent or otherwise, p. 115.</p> <p>4. Insurance.— Accident Insurance.— “Accident”.— Murder. — The word “accident” in a certificate of insurance providing for the payment of weekly indemnity in case of accidental injury, and the payment of a specified sum on death of the insured from accident, means an event which takes place without expectation or foresight, so that where one is murdered without fault his death is an accident, p. 116.</p> <p>5. Insurance. — Accident Insurance. — Action on Policy. — Complaint. — Sufficiency.—A complaint on a policy of insurance providing for the payment of weekly benefits in ease of accidental injury, and for the payment of a specified sum on death of the assured by accidental means, alleging that the assured, while standing in his place of business, was shot through the body by a ball from a pistol and thereby instantly and accidentally killed by a person intending robbery, sufficiently charged that the death was accidental within the terms of the policy, p. 116.</p> <p>6. Appeal. — Review.—Harmless Error. — Ruling on Demurrer to Answer. — In an action on ah insurance policy, where defendant was permitted to prove under tile general denial without objection matters alleged in a special paragraph of answer, the sustaining of a demurrer to such answer, even if erroneous, was harmless, p. 116.</p> <p>7. Insurance. — Accident Insurance — Trial.—Findings.—In an action on an insurance policy providing for the payment of a specified sum on death of assured from accidental means, a finding that while the assured, who was a cashier of a bank, stood in the bank with other officers, a third person intent on robbery entered and began shooting a pistol aimlessly, promiscuously and indiscriminately and accidentally and unintentionally shot and instantly killed the assured and seriously wounded another officer, was not objectionable as being a conclusion that assured’s death was accidental and unintentional, since intention when material is a pure question of fact. p. 117.</p> <p>8. Insurance. — Accident Insurance. — Accidental Death of Insured. —Evidence.—-Sufficiency.—In an action on a certificate of insurance providing for the payment of a specified sum on the death of insured from accidental means, evidence showing that while insured was standing in his bank in company with other officers of the institution, an unknown man entered for the purpose of robbery, that the vadlt was open and those in the room were commanded to enter the vault, that they partly complied by standing closely together near the door of the vault, that the stranger then commenced to shoot with a revolver in each hand, firing promiscuously and indiscriminately about the room, that two shots struck insured, killing him instantly, and showing insured had provoked no quarrel with the stranger and did nothing to bring on the shooting, was sufficient to support a finding that the insured’s death was accidental and unintentional within the meaning of the policy, pp. 118,122.</p> <p>9. Insurance. — Accident Insurance. — Infliction of Injury by Third Person — Intent.—In determining whether an injury inflicted by a third person upon one who was insured against accidental injuries was intended by such third person, the intention of such third person is alone material, though in determining whether the injury was an accident within the meaning of the policy the intention of the insured with reference thereto may be material, p. 119.</p> <p>10. Insurance. — Accident Insurance. — Infliction of Injury by Third Person. — Intent.—Presumptions.—While it is the general rule that a person is presumed to intend the usual and ordinary consequences of his act, such presumption applies where the rights of him who does the act are involved either in a criminal or civil proceeding, but where a person, insured under an accident policy which exempted the insurer from liability for intentional injuries inflicted by a third person, was shot by a stranger who fired several shots in an indiscriminate and promiscuous manner while attempting to rob a bank, the presumption that such stranger intended to injure assured could not prevail to defeat recovery under the policy, but the insurer had the burden of proving that the injury was Intentionally inflicted. pp. 120,121.</p> <p>11. Insurance — Accident Insurance. — Contracts.—Construction.—> “Intentional Injuries”. — “Intentional injuries” inflicted by another upon a person insured under an accident policy exempting the insurer from liability for injuries intentionally inflicted by a third person, refers to injuries actually intended and directed toward insured by the wrongdoer, p. 120.</p> <p>12. Trial. — Findings.—Failure to Find Fact. — A failure to find a fact in favor of one having the burden to establish same, is equivalent to an adverse finding, p. 122.</p>

<p>Prom Elkhart Circuit Court; James 8. Drake, Judge.</p> <p>Action by Charles M. Eisenbiess and others against Cyrus E. Frye. From a judgment for plaintiffs, the defendant appeals.</p>

<p>Prom Morgan Circuit Court; Joseph W. Williams, Tudge.</p> <p>Action by Ella Wilson against tbe Spencer Light, Power, Heat and Water Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Huntington Circuit Court; Samuel E. Cook, Judge. Receivership proceeding against the Cincinnati, Bluifton and Chicago Railroad Company. Prom a judgment denying their claims priority over the claims of bondholders, Fred A. Dolph and others appeal.

Prom Vanderburgh Circuit Court; John ~W. Spencer, Judge. Action by Clifford T. Curry, as guardian of Jourdan G. Winfrey, a person of unsound mind, against the City of Evansville. Prom a judgment for defendant, the plaintiff appeals.

<p>1. Malicious Prosecution. — Malice.—Instructions.—In an action for malicious prosecution, instructions stating that malice is the doing of a wrongful act intentionally and without just cause or excuse therefor and that its existence is a question of fact for the jury, and that malice in the sense of the-law does not presuppose personal hatred or revenge, but may be implied under certain circumstances from a total want of probable cause, or from gross or culpable omission to make suitable and reasonable inquiry, and that while both want of probable cause and malice must be shown to entitle plaintiff to recover, malice may be inferred from a want of probable cause, though the jury is not bound to do so, were not open to the objection that they convey the idea of “legal malice” to the entire exclusion of the idea of “malice in fact”, and construed as a whole they gave the jury a correct idea of malice, p. 145.</p> <p>2. Malicious Prosecution. — Action.—Express Malice. — It is not necessary that express malice be shown in order to sustain an action for damages for malicious prosecution, but malice may be inferred from a want of probable cause, p. 146.</p> <p>3. Malicious Prosecution. — Provable Cause. — Instructions—An instruction in an action for malicious prosecution stating that if defendant caused plaintiff’s arrest without making the inquiry that a prudent, cautious person would make under like circumstances, the prosecution was instituted without probable cause, was not objectionable as placing on defendant the burden of the inquiry of a “prudent” man rather than that of an “ordinarily prudent” man, especially in view of another instruction on the same subject which correctly told the jury that probable cause was that apparent state of .facts found to exist upon reasonable inquiry, such as the given case renders convenient and proper and which would induce a reasonable, intelligent and prudent man to believe the accused man had committed the crime charged, p. 147.</p> <p>4. Malicious Peosecutioüst.— Action. — Punitive Damages.— In an action for malicious prosecution the jury, in the exercise of its sound discretion, may award exemplary or punitive damages in addition to actual damages proven, p. 148.</p>

From Starke Circuit Court; George A. Williams, Special Judge. Action by Norman E. Golding, as administrator of tbe estate of Cora Golding, deceased, against the Town of Knox. From a judgment for defendant, the plaintiff appeals.

<p>Prom Marion Circuit Court (19,172); Charles Remster, Judge.</p> <p>Action by Otto R. Lieber against Alexander M. Robertson and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>Prom Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by Alta M. Ward against the Terre Haute Brewing Company and others. Prom a judgment for plaintiff, the defendant named appeals.</p>

<p>Prom. Dekalb Circuit Court; Emmett A. Bratton, Judge.</p> <p>Action by William Walley against James C. Wiley and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>1. Corporations. — Sale of Capital Stoclc. — -Statutes.—-Fraud.— Under §5089 Burns 1914, §3859 R. S. 1881, providing that the capital stock of a corporation organized under the manufacturing and mining act shall be paid into the treasury within eighteen months, considered with §§4069, 4070 Burns 1914, Acts 1891 p. 335, §3020 R. S. 1881, providing that any corporation may sell, dispose or negotiate its bonds, notes or stock for such prices as will best advance its interests, etc., where a corporation organized under the manufacturing and mining act sells its capital stock at the best price obtainable therefor, it cannot be charged with fraud as against subsequent creditors for failure to require the, par value of its capital stock to be paid into the company’s treasury within eighteen months, p. 186.</p> <p>2. Corporation's. — Capital Stoclc. — Payment.—Rights of Creditors. —Creditors of a corporation organized under the manufacturing and mining act, having actual or constructive notice that the stock was sold to the stockholders at less than par, do not extend credit on the faith of the capital stock being paid in full, and can recover no more from the stockholders than the amount agreed to be paid. p. 186.</p> <p>3. Receivers. — Purpose of Appointment. — The primary purpose in the appointment of a receiver is to do the things which the creditors can not do for themselves, p. 187.</p> <p>4. Corporations. — Insolvency. — Authority of Receivers. — The receiver of an insolvent corporation is authorized to take possession of all its assets, and may bring any action which it might have brought, but he can assert no rights that it could not have asserted at the time of his appointment, p. 187.</p> <p>5. Corporations. — Capital Stock. — Liability of Stockholders. — Receivers. — A right of action exists in favor of a corporation against a stockholder who fails to pay his stock subscription, and, on insolvency of the corporation, such right passes to the receiver; but where stock was issued to the stockholders by the corporation for less than par, pursuant to an agreement that it was to be taken and held as fully paid and nonassessable, a receiver thereafter appointed, could not, in the absence of fraud on the part of the corporation, maintain an action against such stockholders to recover any amount in excess of the agreed price, p. 187.</p> <p>6. Corporations. — Capital Stock. — Payment.—Rights of Creditors. —Where creditors of a corporation extended credit with knowledge that the stock was purchased at less than par and issued as fully paid and nonassessable, such stockholders were under no obligation to inform such creditors of the terms on which the stock was purchased, and such creditors had no equitable right to collect from such stockholders a greater sum than the corporation itself could have claimed as a part of its assets, p. 188.</p> <p>7. Corporations. — Capital Stock. — Payment.—Rights of Creditors. —Where credit is extended to a corporation on the faith that its full capital stock has been paid in, when in fact its stock was sold at less than par, an action by a receiver of the corporation against the stockholders can not be maintained on behalf of the creditors, but recovery, if any, must be in a direct action by such creditors against the stockholders, on the theory that such stockholders are estopped to deny their liability, p. 189.</p>

From Superior Court of Marion County (82,445) ; Joseph Collier, Judge. Receivership proceeding against the Automobile Insurance Company of America, in which ¥m. B. Joyce & Company and another intervened. From a judgment directing the receiver in the making of distribution, the interveners appeal.

<p>1. Appeal. — Briefs.—Sufficiency.—To be sufficient to present the errors relied on, appellant’s briefs must comply with Rule 22 which requires that they shall contain, under separate headings of each error relied on, separately numbered propositions or points, stated concisely and without argument or elaboration, together with authorities relied on in support of them. p. 199.</p> <p>2. Pleading. — Waiver of Objections. — Cross-Complaint. — Where former adjudication is pleaded on the theory that the matters in issue were adjudicated on the issue tendered by a cross-complaint in a former action, an objection that such cross-complaint was not germane to the action in which it was filed and the proceedings thereon were illegal and void, must be deemed to have been waived by a joinder of issues on such cross-complaint, p. 202.</p> <p>3. Judgment. — Conclusiveness.—Former Adjudication. — Parties.— An adjudication to be valid need not necessarily be between the same parties, but is binding alike upon the parties and their privies; hence an adjudication in favor of defendant of the issue of title tendered by its cross-complaint was binding upon the plaintiff in that action without making defendant’s lessees parties to such cross-complaint, and is conclusive against such plaintiff in a subsequent action against defendant and its lessees involving the title to the same land, p.203.</p> <p>4. Judgment. — Former Adjudication. — Parties.—Former adjudication is conclusive, even though the plea or form of the action is not the same in each suit, if it appears that the particular controversy was in issue and adjudicated between the same parties or their privies, p. 203.</p> <p>5. Judgment. — Former Adjudication. — Parties.—A plea of former adjudication is good as between persons who were parties to both suits, though, there may have been other parties to one of such suits, p. 204.</p> <p>6. Judsment. — Scope and Effect. — A judgment settles all issues-between the parties and their privies, which might have been properly litigated within the issue tendered or made by the pleadings. p. 204.</p>

Prom Carroll Circuit Court; James P. Wason, Judge. Action by the State of Indiana, on the relation of Charles Hansen and others, against Walter A. Rainford, Trustee of Lake Township, Newton County. Prom a judgment for defendant, the relator appeals.

From Montgomery Circuit Court; Jere West, Judge. Action by The Supreme Tribe of Ben Hur to require Emma Grubb and John J. Darter, Jr., to interplead for the purpose of determining which of them was the rightful claimant under a benefit certificate. From a judgment for Emma Grubb, John J. Darter, Jr., appeals.

<p>From Superior Court of Marion County (76,540); James M. Leathers, Judge.</p> <p>Action by Fred Wells against the Vandalia Railroad Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Presenting Questions for Review. — Defective Findings. —Motion for New Trial. — Motions to modify, strike out, or add to special findings are not recognized by the code, and rulings thereon can not be assigned as independent error on appeal, but where the facts found are not sustained by sufficient evidence, or the decision is contrary to law, or where facts within the issues should have been found, and were not, the remedy is by a motion for new trial, p. 225.</p> <p>2. Trial. — Special Findings. — Withdrawal of Request. — While a party may withdraw his request for a special finding of facts at any time before the finding is prepared, and a special finding prepared after such withdrawal will be regarded merely as a general finding, where the court has already made a special finding, followed by a motion to modify same presented by the party requesting the finding, a motion to withdraw the request for a special finding made after the overruling of the motion to modify was properly denied, and such denial is not affected by the fact that the special finding had not been signed and filed when the motion to withdraw the request was made. p. 225.</p> <p>3. Trial. — Special Findings. — Discretion.—Where parties do not request a special finding of the facts until after the trial has commenced, the granting or refusal of such request is in the discretion of the court, and on the same principle the refusal of an untimely motion to withdraw a request for a special finding is a matter of discretion, p.226.</p> <p>4. Appeal. — Assignment of Errors — Motion to Withdraw Request for Findings. — Overruling a motion to withdraw a request for special findings is not cause for independent assignment of error on appeal, but, where such motion was made and overruled after the trial had begun, the ruling, if erroneous, was ground for a new trial, p. 227.</p> <p>5. Trial. — Special Findings. — Failure to Find Ultimate Fact.— The failure of the court to find an ultimate material fact within the issues is the equivalent of a finding against the party having the burden of proving the same, p.227.</p> <p>6. New Tkial. — Grounds.—Failure to Find Fact Within Issues.— Where the trial court’s attention is duly called to a failure to make a finding on a material issuable fact, as to which there was conflicting evidence, it is the better practice to state in the findings that such fact was or was not found, but a failure to so state is not cause for a new trial, but will be regarded as a finding adverse to the party having the burden to establish such fact, p. 227.</p> <p>7. New Tkial. — Grounds.—Findings.—Failw'e to Find. — Where the undisputed evidence establishes a fact which the court has failed to find, a motion for a new trial on the grounds that the finding or decision is not sustained by sufficient evidence, and is contrary to law, should be granted, p. 228.</p> <p>8. Appeal. — Review.—Conflicting Fvidenoe. — The court on appeal can not weigh conflicting evidence, or draw conclusions different from those drawn by the trial court where the evidence is susceptible to different reasonable inferences, p. 229.</p> <p>9. Appeal. — Questions Reviewahle.- — Record.—On appeal the court can only consider the questions presented by the record, p. 230.</p>

<p>Prom Superior Court of Marion County (73,017); Joseph Collier, Judge.</p> <p>Action by Ida Slider against tbe city of Indianapolis. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Floyd Circuit Court; William C-. TJiz, Judge.</p> <p>Action by Jesse Walts against tbe Monongahela River Consolidated Coal and Coke Company. From a judgment for plaintiff, the defendant appeals.</p>

Prom Jay Circuit Court; Daniel W. Comstock, Special Judge. Action by Lawrence Hayes, as administrator of the estate of John Hayes, Sr., deceased, and others, against Benjamin Johnson. Prom a judgment for defendant, the plaintiffs appeal.

<p>1. Appeal. — Questions Reviewable. — Instructions. — Absence of Evidence from Record — Presumptions.-—In determining the question of whether there was error in instructions given, the court on appeal must assume, in the absence of the evidence from the record, that all evidence within the issues to which such instruc-</p> <p>tions could be applicable was before tbe court giving them, and will look to tbe pleadings to determine whether they were within the issues-and their applicability to evidence that might have been introduced, p. 248.</p> <p>2. Rape. — Assault With Intent to Rape. — Civil Actions. — Instructions. — Where a complaint for damages alleged that defendant removed all his clothes excepting his undershirt, and broke into plaintiff’s bedroom where she was lying in bed clad only in her nightrobe, made an indecent proposal to her, with force and arms assaulted, struck and beat her, laid hold of her and threw her onto the bed and attempted to ravish her, that when she attempted to escape defendant pursued her and again attempted to assault and ravish her, that to avoid defendant she was forced to escape through a window, and that by reason of such wrongful acts plaintiff suffered great bodily and mental anguish, instructions given by the court defining an assault both in its general and its restricted sense, stating certain facts within the issues, which if found, might be considered with all the other evidence in determining whether defendant committed an assault or an assault and battery on plaintiff, and stating that if certain facts were found the verdict should be for plaintiff, if it was found that she had reasonable grounds to believe that defendant intended to use force upon her, were not erroneous, pp. 249, 252.</p> <p>3. Assault and Battery. — Complaint.—Issues.—Proof and Variance. — While a complaint should proceed on a single theory, and a recovery, if any, must be upon the theory adopted, "under a complaint for damages for an assault and battery with intent to rape, there could be a recovery on proof of the assault without proving a battery, since every battery necessarily involves an assault, but there could be no recovery for an assault separate and distinct from, and in no way connected with, the battery charged, p. 252.</p> <p>4. Rape. — Assault With Intent to Rape. — Ci/oil Liability. — Where defendant removed all his clothing, except an undershirt, broke into plaintiff’s bedroom at an hour of night when she might be expected to be disrobed and in bed, and, though ordered to do so, failed to leave the room or to explain his presence, there was an assault as distinguishable from a preparation for an assault, since she had reasonable ground to believe that his purpose and intention was unlawful, that he proposed to lay hands on her, and that he had the present ability to do- so. p. 256.</p> <p>5. Rape. — Assault With Intent to Rape. — Civil Actions. — Instructions. — In an action for damages for an alleged assault and battery with intent to rape, an instruction correctly defining a battery, without attempting to indicate the method of arriving at the measure of damages resulting from the battery, was not erroneous or misleading in stating that “the law can not draw the line between the different degrees of violence, and prohibits the first and lowest state of it”, p. 257.</p> <p>6. Rape. — Assault "With Intent to Rape. — Givil Actions. — Instructions. — In an action for damages for an assault and battery with intent to rape, an instruction that if defendant disrobed and without invitation entered plaintiff’s bedroom after she had retired for the night, that on being ordered to leave the room he refused to do so and attempted to throw plaintiff on the bed, and that if plaintiff escaped through a window, the finding should be for plaintiff, was not objectionable as failing to characterize the acts as rude, insolent or angry, and as omitting the element of unlawfulness and the element of damages suffered, since the facts required to be found supplied grounds for inferring the constructive intent which made the wrongful act wilful, and rendered unnecessary a requirement that the jury should find the act wrongful, or that it was rude, insolent or angry, p. 258.</p> <p>7. Rape.— Assault With Intent to Rape.— Ci/vil Liability.— Damages — Where defendant, clothed only in an undershirt, Without plaintiff’s invitation or consent, entered plaintiff’s bedroom after she had retired for the night, and though told to leave the room did not do so, but attempted to throw plaintiff on the bed, she was entitled to recover without proof of actual damages, since the law presumes that nominal damages at least result from such a civil wrong, p. 259.</p> <p>8. Rape. — Assault With Intent to Rape. — Givil Liability. — Instructions. — “Physical Suffering”. — “Mental Pain and Anguish”. — “Humiliation”. — In an action for damages for assault and battery with intent to rape, an instruction that in assessing the damages the jury could consider the physical pain and suffering caused to plaintiff, if any, and also the mental pain and anguish, and the shame and humiliation, if any, which would naturally follow from the assault, was not objectionable as violating the rule against the assessment of double damages, since, while “physical suffering” is in a sense mental, it is generally understood to mean the suffering or pain flowing directly from the physical injury, while “mental pain and anguish” relates more particularly to the consequences and result of the injury, and “humiliation” differs from both in that it is not wholly personal but is a state of mind generally induced by the consciousness of the injured party that others are aware of the insult and wrong suffered, p. 259.</p> <p>9. Rape. — Assault With Intent to Rape. — Givil Liability. — Elements of Damage. — In an action for damages for an assault and battery with intent to rape, the physical pain and suffering caused to plaintiff, and the mental pain and anguish, and the shame' and humiliation, resulting from the assault are proper elements of damages, p. 260.</p> <p>10. Tbial. — Verdict.—Venire De Novo. — Where a verdict is so defective and uncertain that no judgment can be rendered on it, a venire de novo should be granted, but on appeal the overruling of such a motion, even if erroneous, will be regarded as harmless where it is apparent from the record that the uncertainty of the verdict has been cured and substantial justice done by the judgment rendered, p. 260.</p> <p>11. Tbial. — Verdict.—TJncertamty.—Evidence to Explain. — Where a verdict was returned for plaintiff for “fifteen (1500 00) dollars”, the affidavits of nine of the jurors, of the clerk of the court who read the verdict when returned, and of plaintiff’s attorneys who were present at the reading, to the effect that the jury intended to return a verdict for $1500, that the clerk so read it and that all the affiants understood it to be a verdict for $1500, were properly received in support oí a motion for judgment, since, while jurors are prohibited from showing misconduct or any act on their part to impeach their verdict, their evidence is admissible to perfect their verdict or correct any inadvertence or mistake that has occasioned the entry of a verdict not in accord with their finding, and it was apparent that the omission of the word “hundred” was a mere oversight or clerical mistake, p. 260.</p> <p>12. Appeal.— Revieio.— Harmless Error.— Overruling Motion for Venire De Novo. — Although a verdict was such as to render proper the granting of a motion for a venire de novo, where it appears from the record that after the overruling of such motion the court received affidavits of the jurors showing that the uncertainty was the result of a clerical omission and stating that the construction placed on the verdict by the clerk of the court when it was read represented the true verdict, the imperfection in the verdict was thereby cured and the error in overruling the motion for a venire de novo was rendered harmless, although it would have been the better practice to have received the evidence in explanation of the verdict before ruling on the motion for a venire de novo. p. 262.</p>

<p>Prom Henry' Circuit Court; Ed Jackson, Judge.</p> <p>Action by John P. Roback against the City of Greenfield. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Presenting Questions for Review. — Sufficiency of Evidence. — The sufficiency of the evidence can not be questioned on appeal by an independent assignment of error, but its insufficiency should be alleged as a ground for a new trial and then presented on appeal by an assignment of error in overruling the motion for new trial, p. 267.</p> <p>2. Account. — Complaint.—Sufficiency.—A complaint stating facts showing that the action was on an account on which the defendant was indebted to plaintiff in a certain sum, as shown by a bill of particulars filed as an exhibit, was not insufficient by reason of surplusage contained therein, or for failure to allege a demand before suit, p.267.</p> <p>3. Action.— Parties. — Real Party in Interest. — Corporations.— The mere change of the name of a corporation does not change the identity of such corporation, hence where the undisputed evidence showed that plaintiff was in fact the same corporation to whom defendant was indebted, though its name had been changed, it was the real party in interest and entitled to maintain the action, p. 268.</p> <p>4. Appeal. — Review.—Evidence.—Sufficiency.—Where the evidence on the question oí payment in an action on account was conflicting, and there was some evidence to support the finding, it will be sufficient on appeal, p. 268.</p>

Petition by John Whisler for an order of the Appellate Court directing an appeal from the Hancock Circuit Court in a matter relating to the estate of a decedent, under §2978 Burns 1914, Acts 1913 p. 65, §3.

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by tbe Edward Thompson Company against Emmett O. King and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>Prom Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by John Ness against the Chicago, South Bend and Southern Indiana Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Catherine Ault against Tbe New York, Chicago and St. Louis Eailroad Company. Prom a judgment for Aaintiffi, the defendant appeals.</p>

Prom Howard Circuit Court; William C. Purdum, Judge. Action by Mary A. Laisure and others against Robert O. Richards for partition, in which defendant filed a cross-complaint. Prom the judgment rendered, certain of the plaintiffs appeal. '

<p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Frederick S. Wright against Barbria E. Pox. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Waiver of Error. — Briefs.—Causes assigned in the motion for a new trial will be deemed waived on appeal, where appellant fails to mention or refer to them in the briefs, p. 333.</p> <p>2. Appeal.— Questions Reviewable.— Instructions.— Record.— Instructions requested by the parties are not in the record on appeal under §561 Burns 1914, Acts 1907 p. 652, where there was no memorandum at the close of same signed by the judge and indicating the numbers of those given and those refused, nor is such omission cured by the fact that the order book entry shows the instructions given and those refused, but a substantial compliance with the statute is required in order to make them a part of the record, p. 833.</p> <p>3. Appeal. — Questions Reviewable. — Instructions.—Error urged on instructions given by the court on its own motion, even if properly in the record, will not be considered on appeal, where the instructions tendered by the parties are not in the record, since in such case the presumption is indulged that the error, if any, was obviated or cured by the absent instructions, p. 334.</p> <p>4. Evidence. — Admissibility.—Pain and Suffering. — Complaints of present existing pain and suffering after commencement of suit, as well as before, and which are a result of the injury complained of, are admissible in an action for personal injuries, p. 335.</p> <p>5. Pleading. — ■Complaint.— Admissibility of Evidence.— Pam and Suffering. — The averments of a complaint for personal injuries, that plaintiff was injured inwardly, that his internal' organs were mashed and bruised, causing him to spit blood for several days, and causing him to have hemorrhages of the lungs, etc., were sufficiently broad to admit evidence of complaints of pain and suffering endured after the complaint was filed, p. 336.</p>

<p>From Rush, Circuit Court; Alonzo Blair, Judge.</p> <p>Action by Richard H. Warrum and another against Crawford Fairbanks and another. From a judgment for plaintiffs, the defendants appeal.</p>

Prom Benton Circnit Court; J. T. Saunderson, Judge. Action by Julia E. Mitchell, by her next friend, McClellan Mitchell, against the Chicago and Eastern Illinois Railroad Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Replevin. — Property Taken on Attachment. — Courts.—Jurisdiction. — While property in custodia legis is in the exclusive jurisdiction of the court having such custody, an order directing the sheriff to attach the property of a defendant confers no authority for taking the property of one not a party to the action, so that where the sheriff of one county, acting on a writ of attachment issued from the circuit court of another county, took the property of one not a party to the action, the circuit court of the county in which the property was situate when attached, had jurisdiction by virtue of §960 Burns 1914, Acts 1901 p. 121, defining the practice where property is claimed by a person other than the attachment defendant, and §1330 Burns 1914, §1266 R. S. 1881, providing for actions in replevin, to hear and determine an action against such sheriff to replevy the property so taken, p. 370.</p> <p>2. Replevin. — Property Taken on Attachment. — Estoppel.—Where, acting on a writ of attachment directed against the property of the attachment defendant, the sheriff took the property of one not a party to the action, neither the fact that the latter was a witness, and that he attended the trial in which the attachment proceeding was had, and at the time knew that his property had been attached, nor the fact that he later brought suit before a justice of the peace to recover the property, which he subsequently dismissed, would estop him from thereafter maintaining an action in the circuit court to replevy the property so taken, p. 371.</p> <p>3. Replevin. — Property Taken on Attachment. — Courts.—Jurisdiction. — Where the sheriff of one county, acting under a writ of attachment from the circuit court of another county directed against the property of the attachment defendant, took the property of one not a party to the action, the action of the latter, in bringing a suit to replevy the property In the circuit court of the county in which the property was situate when attached, was not in conflict with the jurisdiction of the other court, where the title to his property was not in issue and was not adjudicated by that court, p. 372.</p> <p>4. Replevin. — Property Taken on Attachment. — Res Judicata.— Pleading. — Even if the judgment of a court adjudicated the title to property taken on a writ of attachment against the claims of one who sought to replevy such property, such judgment would not be available as a defense to the replevin suit unless pleaded, p. 372.</p> <p>5. Replevin. — Complaint.—Sufficiency.—In an action against a sheriff to replevy property of plaintiff taken on a writ of attachment directed against the property of another, a complaint alleging that defendant unlawfully and without right holds and retains possession of plaintiff’s property, and that the plaintiff is the owner and is entitled to the immediate possession thereof, is sufficient without alleging a demand before suit, p.372.</p> <p>6. Replevin. — Demand.—Necessity.—In an action of replevin, proof of demand is only required when it is necessary to show that the detention by the replevin defendant is unlawful; and where defendant’s possession was unlawful from the beginning, or where property lawfully taken is later converted, it is not necessary either to allege or prove a demand, p. 372.</p> <p>-7. Replevin. — Complaint.—Demand.—Where the facts pleaded in a complaint for replevin show that the possession of the defendr ant was at any time lawful, it must, in order to withstand a demurrer, also show a demand to make the possession wrongful, p. 373.</p>

<p>1. Municipal Corporations. — Powers.—Expenditures for Street Lighting. — Aside from §8921 Burns 1914, Acts 1911 p. 561, relating to the erection of electric light works by municipal corporations, a city or town, as an incident to the ordinary powers given to it by the State, and as necessary to a proper exercise of its functions, may use its accumulated funds and current revenue, not otherwise appropriated, for the purpose of furnishing its streets and other public places with electric light, p. 378.</p> <p>2. Municipal Corporations. — Powers.—Issue and Sale of Bonds for Light Plant. — Statutes.—The authority of a town to issue and sell bonds for the purpose of building an electric light works is to be found only in §8921 Burns 1914, Acts 1911 p. 561, and since under that statute such authority is dependent upon the vote of the citizens, the purpose for which the statute permits the creation of the debt must be strictly observed, and the conditions and terms on which the authority is granted must be fully and substantially followed, p. 378.</p> <p>3. Municipal Corporations. — Town Trustees. — Judicial Powers. —Exercise of Poioer. — While a' board of town trustees is clothed with judicial powers, it has an inferior and limited jurisdiction, and in the exercise of statutory powers, where the method is prescribed, the course prescribed must be strictly pursued or its acts will be void, and where it assumes to act beyond its authority, it may be enjoined if the facts are such as to warrant an injunction, p. 379.</p> <p>4. Municipal Corporations. — Electric Light Works. — Election on Question of Bond Issue. — Prior Determination of Cost. — Statutes. —Under §8921 Burns 1914, Acts 1911 p. 561, conferring authority on municipal corporations to issue and sell bonds for the erection of electric light works, provided the question of erecting such works has first been favorably voted upon by a majority of the voters at an election held for the purpose, it is not required that either the cost or the amount of the bond issue shall be determined before submitting the question of erection to the voters, p. 380.</p> <p>5. Municipal Corporations. — Action to Enjoin Performance of Contract for Lighting. — Complaint.—Sufficiency.—A complaint to enjoin the carrying out of a contract between a town board and an electric railway company whereby the latter was to furnish electricity for lighting the town, alleging that the town had determined to erect a light plant pursuant to §8921 Burns 1914, Acts 1911 p. 561, that the requisite steps, including an election, had been taken under said statute, and that bonds had been issued and sold for the purpose, and further alleging that such board is not erecting and does not intend to erect a light plant, but is about to purchase and erect poles and wires and has entered into a contract with its codefendant for the supply of electric current, etc., sufficiently shows that such board is not expending the proceeds of the bond issue for the purpose authorized by the statute and the resolution passed pursuant thereto, and states a cause of action against both defendants, pp. 381,382.</p> <p>6. Municipal Corporations. — Construction of Electric Light Plants. — Statutes.—“Electric Light Worlcs.” — The purchase and erection of poles and wires by a town for the distribution of electricity for lighting purposes, is not the erection of an electric light plant within the meaning and intent of §8921 Burns 1914, Acts 1911 p. 561, authorizing municipal corporations, on conditions therein prescribed, to construct “electric light works” and to issue and sell bonds for such purpose, but such statute contemplates the erection of works which include a generating as well as a distributng plant, p. 381.</p>

<p>Prom Lawrence Circuit Court; Joseph PL. Shea, Judge.</p> <p>Action by Mason H. McCord against the Baltimore and Ohio Southwestern Railroad • Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Trial. — Instructions.—Assumption of Facts. — Where the facts are agreed upon or established by undisputed evidence, or are of such character that reasonable minds can draw therefrom but one inference or conclusion, the court may assume the existence of such facts in an instruction, p. 389.</p> <p>2. Appeal. — Review.—Instructions.—In an action for injuries to a horse through negligence of defendant’s servant, where there was evidence to show the negligence as charged, an instruction assuming the facts agreed upon or established by undisputed evidence and stating that if defendant’s servant was guilty of such carelessness or negligence as to cause his truck wagon to strike and injure plaintiff’s horse in the manner stated, without any negligence on the part of plaintiff, the defendant would be liable, did not purport to tell the jury the measure of care required of defendant’s agent, was pertinent to the evidence, and was a substantially correct statement of the law. p. 389.</p> <p>3. Appeal. — Review.—Instructions.—Applicability to Evidence.— In an action for injuries to a horse, evidence supporting the complaint by showing that defendant’s servant was driving a heavy truck wagon along a paved street at a rapid speed, that without slackening the speed such driver suddenly turned across the street car track to avoid a wagon standing at the curb, and in so doing caused his truck-wagon to skid in such manner as to strike the horse of plaintiff, who was approaching from an opposite direction, with such force as to throw plaintiff’s horse and drag it some distance and that plaintiff tried to avoid the collision, warranted the giving of an instruction stating that if defendant was guilty of the negligence charged and it was the proximate cause of the injury, the plaintiff could recover if he was not guilty of contributory negligence, p. 390.</p> <p>4. Appeal. — Review.—Verdict.—Evidence.—Where there was some evidence to sustain every material averment of the complaint in an action for damages to a horse through the negligence of defendant’s servant, the existence of the negligence charged, as well as the weight of the evidence, was for the jury to determine, so that its verdict for plaintiff will not be disturbed on appeal on the ground of insufficient evidence, p. 391.</p> <p>5. Tblal. — Admission of Evidence. — Expert Testimony. — In an action for injury to a horse caused by collision with a heavy truck wagon, which being rapidly driven and suddenly turned across a car track, was caused to skid and strike plaintiff’s horse, where there was evidence as to the character of the truck and the condition existing in the street, it was not error to permit plaintiff, whose qualifications as an expert were not questioned, to testify that such a truck could be turned across the street without skidding by driving slowly, or, if driving at a rapid speed, by slackening the speed before attempting to turn, since the evidence showed that plaintiff was experienced in the driving of heavy trucks under similar circumstances, and the effect of suddenly turning such a truck when driven at a particular rate of speed on such a street is not a matter of such common knowledge or experience as to preclude expert testimony thereon, p. 391.</p> <p>6. Evidence. — Testimony of Experts. — Determining Admissibility. —The question of determining whether the subject-matter of an inquiry is or is not within the common knowledge and experience of ordinary men, so as to preclude the admission of expert testimony thereon, is for the trial court and its act with reference thereto will be sustained on appeal, unless it appears that there was an abuse of discretion resulting in harm to the complaining party, p. 392.</p> <p>7. Evidence. — Testimony of Experts. — Admissibility.—Expert testimony bearing upon the subject-matter of an inquiry is admissible only where the subject of inquiry is not within the common knowledge and experience of ordinary men selected without regard to their education, experience, trade, calling or profession, since, if it is within such common knowledge, the jury must be presumed to be as competent as any witness to form an opinion and reach a correct conclusion, p. 393.</p> <p>8. Evidence. — Opinion Evidence. — Admissibility. — A witness, though not an expert, may state his opinion relating to a question of skill, where it is based on facts known to him personally and related by him to the jury. p. 393.</p> <p>9. Appeal. — Review.—‘Harmless Error. — Admission of Expert Testimony. — In an action for injuries to a horse caused by negligence of defendant in turning a heavy truck wagon across a street ear track in such manner as to strike the horse, the admission of expert testimony as to the effect of suddenly turning such a truck under conditions like those shown by the evidence, if erroneous, was not cause for reversal, where it appeared from all the evidence that appellant could not have been harmed thereby, p. 393.</p>

Prom Sullivan Circuit Court; William E. Bridwell, Judge. Action by the State of Indiana against Andy Weaver and another on a forfeited recognizance signed by them as sureties. Prom a judgment for the State, the defendants appeal.

<p>Prom Perry Circuit Court; William Ridley, Judge.</p> <p>■ Action by William C. Badger and others against the J. I. Case Threshing Machine Company. Prom the judgment rendered, the defendant appeals.</p>

Prom Orange Circuit Court; Thomas B. Bnskirk, Judge. Action by Sophia Gagnon against Anna S. Gagnon and others, in which the Baden-Liek Sulphur Springs Company filed a cross-complaint. Prom a judgment for cross-complainant, Anna S. Gagnon appeals.

From Marion Superior Court (82,188); Pliny W. Bartholomew, Judge. Action by tbe Union Trust Company, administrator of the estate of Hugh O. Holmes, deceased, against the Prudential Insurance Company of America. From a judgment for plaintiff, the defendant appeals.

<p>1. False Imbisonment. — Excessive Damages. — In an action for damages for false imprisonment, where the evidence showed that plaintiff, a woman, was arrested and roughly treated in a public business house and subjected to humiliation before a large crowd, which, because of her age, produced a nervous shock which resulted in her complete loss of health, and that she was taken along the public streets to the station house, where she was subjected to examination by an officer, a verdict for $3,000 did not indicate that the jury acted from prejudice, partiality or corruption, and hence will not be disturbed on the ground of excessiveness. p. 438.</p> <p>2. False Imprisonment. — Persons Liable. — Scope of Employment. —A woman in the employ of a store company as a private detective, whose duty it was to guard and protect the property of her employer from theft and to report to it or to the city detectives when any acts of larceny were committed, was acting in the line of her duty in following plaintiff from the store under the supposition that she had stolen goods, and procuring her arrest by a policeman away from the store, so as to render her employer liable in an action for false imprisonment, p.438.</p> <p>3. Master and Servant.' — Liability for Acts of Servant. — False Imprisonment. — An employer is liable in an action for false imprisonment procured at the instance of an employe while acting in the line of his employment, even though such employe violated the positive instructions of the master, p. 440.</p> <p>4. False Imprisonment. — Action for Damages. — Instructions.—In an action against a store company for damages for false imprisonment procured by an employe of the company on the supposition that plaintiff had committed a theft while in the store, an instruction on the liability of the company for the act of its employe, which, when considered as a whole, clearly shows that the court intended to confine the instructions to the facts therein stated, was not fatally erroneous in stating that “the proprietors of a general store who invite the public to become their patrons are bound under the law to protect such patrons from injury while visiting or trading within the store, and to protect them from any torts or wrongs by their agents or employes”, though such statement when separated from the context, as an abstract proposition of law is subject to criticism, p. 440.</p> <p>5. Master and Servant. — Liability for Acts of Servant. — Instructions. — The master as a rule is liable for injuries resulting from the act of his employe, and an instruction on the master’s liability need not always set out the exceptions to such liability, especially where the facts set out, if proven, show a liability, p. 442.</p> <p>6. Faise Imprisonment. — Instructions.—Punitive Damages. — In an action for damages for false imprisonment, an instruction that in considering the amount of damages the jury could consider among other facts the plaintiff’s mental suffering, if any, her sense of shame and humiliation, and wrongful acts, if any, committed against her, and award her such damages as are shown by a fair preponderance of all the evidence, is not susceptible to the construction Ahat it authorized punitive damages, p. 443.</p> <p>7. Appeai. — Review.—Refusal of Instructions. — The refusal to give requested instructions is not error, where, in so far as they state the law correctly, they were covered by other instructions given, p. 443.</p>

Prom Henry Circuit Court; Ed. J ackson, Judge. Action by John E. Lyons and another against Bert Souder and another. Prom a judgment for defendants, the plaintiffs appeal.

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

Prom Superior Court of Yigo County; John E. Cox, Judge. Action by the Mechanics Building, Loan and Savings Association against Albert P. Mosel and others, in which James H. Hull filed a cross-complaint. Prom a judgment for plaintiff, the cross-complainant appeals.

<p>1. Appeal. — Assignment of Errors. — Form.—Effect.—Where it appears that the complaint consisted of but one paragraph at the time a demurrer thereto was filed and overruled and exception taken, and that thereafter a second paragraph was filed to which a demurrer was also filed and overruled, and appellant assigned error “in overruling the demurrer to the complaint”, and also assigned error in overruling the demurrer to the second paragraph of complaint, the first assignment, though using the word “complaint” without qualification, did not present the sufficiency of the complaint as a whole, since there could be no doubt as to the identity of the ruling intended to be assigned as error, and that it questions the ruling on the demurrer to the original or first paragraph of complaint, p.459.</p> <p>2. Appeal. — Assignment of Errors. — Requisites.—As a general rule appellant is confined to his assignment of errors as written, and to be available each error assigned must be so complete, specific and certain, as to indicate clearly the identity of the particular ruling upon which the error is predicated, p. 460.</p> <p>3. Master and Servant. — Injuries to Servant. — Assumption of Rislo. — Complaint.—A complaint for the death of one who was employed to assist in the construction of a building, which alleged that decedent had no knowledge of the defective condition of the floor, that the defect and danger was hidden from his view, that the planks did not rest on or lap on the joists, and that when decedent was in the performance of his duty, looking upward and walking on such floor to adjust a guy rope, he stepped where such planks did not rest on and lap on the joists, whereby they tilted and caused him to fall to the floor below, sufficiently negatived assumption of risk. p. 460.</p> <p>4. Master and Servant. — Injuries to Servant. — Assumption of Rislc. — Complaint.—In an action for the death of a servant by falling through the floor of a building which he was assisting to construct, under a showing made in a paragraph of complaint that the floor was put down so as to be safe, and was used by decedent and other employes and found to be safe, that thereafter without decedent’s knowledge the defendant caused an opening to be made, which was later covered by replacing the boards in such manner as not to indicate that the floor had been disturbed, decedent can not be held to have assumed the risk of danger that would follow from stepping on such boards, since it must follow as a reasonable inference from the facts alleged that decedent did not know, and by ordinary observation and care could not have known of such danger, p. 461.</p> <p>5. Master and Servant. — Injuries to Servant. — Complaint.—In an action for the death of a servant by falling through the floor of a building which he was assisting to construct, a paragraph of complaint alleging that defendant caused an opening to be made in the floor and later replaced the boards in such manner as to render the place dangerous, and showing that decedent’s work required him to be at the place where he was injured, sufficiently showed that defendant knew the condition of the floor, and, though alleging that the injury occurred to decedent “while in the line of his duty”, was not objectionable as failing to allege that decedent’s employment required him to be where he was when injured, since the words quoted, in the connection in which they were used, were equivalent to an averment that the injury occurred to decedent “while in the performance of the work of his employment”, pp. 461,464.</p> <p>6. Pleading. — Complaint.—Inferences.—Inferences reasonably arising from allegations made may be indulged in aid of a complaint, p. 463.</p> <p>7. Master and Servant. — Injuries to Servant. — Complaint.—Theory. — Appeal.—Where it appears that the parties to an action for the wrongful death of a servant treated the complaint as proceeding under the common law, the court will so treat it in determining its sufficiency on appeal, notwithstanding it discloses an intention of the pleader to state a cause under the statute, p. 464.</p> <p>8. Executors and Administrators. — Appointment.—Collateral Attach. — Fraud.—Cross-Gomplamt.—Sufficiency.—In an administratrix’s action to recover for the wrongful death of her decedent, a cross-complaint by defendant alleging a release and settlement of all claims against it for such death by decedent’s widow before her appointment as administratrix, that there were no assets to be administered upon, and that the procuring of plaintiff’s appointment' was a fraud upon the jurisdiction of the court and ought to be revoked, even if such a collateral attack were permissible, was insufficient, in the absence of allegations showing any fraudulent intent or misrepresentation of fact made by plaintiff and relied on by the court in making such appointment, or showing a constructive fraud on either the defendant or the court, since fraud is never presumed but must be alleged and proved, p. 465.</p> <p>9. Pleading. — Cross-Complaint.—Requisites.—A cross-complaint is in effect a complaint and must conform to the rules governing a complaint, and hence is bad on demurrer if it does not state facts sufficient to constitute a cause of action, p. 465.</p> <p>10. Executors and Administrators. — Appointment.—An administrator may be appointed for the purpose of prosecuting an action for the death of one caused by the wrongful act or omission of another, and the right to letters does not depend upon the existence of tangible assets to be administered, p. 466.</p> <p>11. Evidence. — Weight and Sufficiency. — Appeal.—The court on appeal will not weigh conflicting evidence, p. 466.</p> <p>12. Master and Servant. — Injuries to Servant. — Duty of Master. —Liability.—Evidence.—In an action against an employer for the death of a servant, who, while assisting in the construction of a building, fell through an opening in the floor, of which he had no knowledge and which had been covered by loose boards, the ends of which did not rest on the joists, the defendant was liable, where the evidence showed that the opening was made at his direction and for his convenience, since the master’s duty to furnish a safe place to work is continuing and nondelegable, and the coservants of decedent, in relaying the floor, were performing duties for the master in preparing a place for decedent to occupy in the performance of other work of a different character, and their negligence was his negligence, p. 467.</p> <p>13. Appeal.— Questions Reviewable.— Instructions. — Briefs.— Although instructions are to be considered as a whole and not singly or fragmentarily, appellant’s failure to set out in his brief any of. the instructions, except those as to which he urges error, will not prevent a consideration of such alleged errors, since where error is thus pointed out, it becomes the duty of the appellee to show that it was cured by other instructions given, p. 467.</p> <p>14. Master and Servant. — Injuries to Servant. — Duty of Master.— Instructions. — While an instruction that it is the master’s duty to his employes to provide safe places for them to work, is open to the objection that the master is thereby made an insurer of the safety of the employe, no harm resulted from its being given, in view of other instructions properly defining defendant’s duty and the degree of care required of him in the matter of furnishing a safe place to work, p.468.</p> <p>15. Appeal. — Review.—Harmless Error. — Instructions.—Error in an instruction defining a master’s duty to his employe so as to make him an insurer of the employe’s safety, is not cause for reversal, where it is apparent from other instructions given that the jury was not misled thereby, p. 469.</p> <p>16. Appeal: — Review—Instructions.—Technical Objections. — Error in instructions, of the technical character contemplated by §407 Burns 1914, §398 R. S. 1881, is not cause for reversal, p. 469.</p> <p>17. Trial. — Instructions.—Refusal.—The refusal of an instruction which invades the province of the jury is proper, p.469.</p> <p>18. Appeal. — Review.—Harmless Error. — Ruling on Demurrer.— The sustaining of a demurrer to a cross-complaint, even if erroneous, was harmless where defendant set up substantially the same facts by way of answer and had the benefit of all the evidence that could have been admissible under the cross-complaint, and the verdict was for plaintiff on the issue tendered by such answer, p. 470.</p> <p>19. Evidence. — Weight and Sufficiency. — Appeal.—While the question of the sufficiency of the evidence is for the court on appeal, its weight is for the court and jury trying the cause, p. 470.</p> <p>20. Master and Servant. — Injuries to Servant. — Release of Claim. —Evidence.—In an action for the death of a servant, where defendant pleaded a release of the claim by decedent’s widow, evidence showing the defendant’s agents represented to her that they would make her a present of fifty dollars and pay the hospital and doctor bills, and that she did not understand when she signed the paper that she was releasing her claim, but that she thought she had to sign in order to get the fifty dollars, was not sufficient to preclude an inference by the jury of a want of consideration for the signing of such release, p. 471.</p> <p>21. Master and Servant. — Injuries to Servant. — Release of Claim. —Effect.—In an action by an administratrix for the wrongful death of her decedent, a release signed by decedent’s widow, even if valid, could not operate as a bar to the action as against interests of the daughter who signed the release later and without consideration, p. 471.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by James T. Moore against James A. Baxter and another.</p> <p>Prom a judgment for plaintiff, the defendants appeal.</p>

<p>From Superior Court of Marion County (84, 162) ; Vinson Garter, Judge.</p> <p>Action by Opal Lindley against the Sanitary Can Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Howard Circuit Court; William C. Purdum, Judge.</p> <p>Action by Tarver Seagraves against Laura L. Cates and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Assignment of Rrrors. — Questions Reviewable. — Complaint — The sufficiency of a complaint filed since §348 Burns 1914, Acts 1911 p. 415, became in force can not be presented on appeal by an assignment that such complaint does not contain facts sufficient to constitute a cause of action, p. 494.</p> <p>2. Pleading. — Complaint.—Demurrer.—Waiver of Defects. — In determining the sufficiency of a complaint as against a demurrer thereto, all defects are waived except those pointed out in the memorandum accompanying the demurrer, as required by §344 Burns, 1914, Acts 1911 p. 415. p. 494.</p> <p>3. Insurance. — Live Stoclo Insurance. — Action.—Issues.—Answers to Interrogatories. — In an action to recover on a policy insuring plaintiff against loss of a horse by death, where defendant answered that the horse had been killed by plaintiff’s own act, and plaintiff filed a reply admitting that he had killed the horse, but alleging that it had received an injury from which it could not recover, and that on the advice of a veterinary surgeon and others of experience in such matters, he shot and killed the horse to relieve it from pain and suffering, and to avoid a charge of cruelty to animals, a verdict for plaintiff found the averments of the reply to be true, hence answers to interrogatories showing substantially the facts alleged in the answer were not in irreconcilable conflict with the general verdict, p. .494.</p> <p>4. Insukance. — Live Stock Insurance. — Death of Animal by Act of Insured. — Liability—'Where a horse had been fatally injured without any fault of the owner, and thereafter on the advice of a veterinary surgeon and others of experience in such matters, he shot and killed it for the purpose of relieving it of pain and suffering and to avoid the charge of cruelty to animals, the loss was within the meaning of a policy insuring against loss by death and rendered the insurer liable, p. 495.</p> <p>5. Appeal. — Revieio.—Harmless Error. — Error in the admission of evidence or the giving of instructions is not cause for reversal where appellant was not harmed thereby, p. 498.</p> <p>6. Appeal. — Assignment of Errors. — Designation of Parties. — The assignment of errors should properly designate the parties to the appeal, otherwise a dismissal of the appeal is authorized, unless the defect is one which is clerical in character and may be deemed amended, p. 498.</p> <p>7. Appeal. — Assignment of Errors. — Oaption.—Cure of Defect.— Where appellant in the caption to the assignment of errors designated the appellee as “Edgar Atkinson” instead of “Atkinson Edgar”, in whose favor the judgment below was rendered, and notice of the appeal was served on Atkinson Edgar, who appeared and filed briefs on the merits, without questioning the assignment of errors, the defect in name will be treated as clerical and the assignment of errors deemed amended, p. 498.</p>

<p>Prom Posey Circuit Court; Eerdis F. Clements, Judge.</p> <p>Action by Prank Schwetz against Joseph A. Schapker. Prom a judgment for plaintiff, the defendant appeals.</p>

From Superior Court of Vanderburgh. County; F. M. Hostetter, Judge. Action by Clifton Thompson and others, by Charles Thompson, their next friend, against the Michigan Mutual Life Insurance Company. From a judgment for defendant, the plaintiff appeals.

<p>Prom Superior Court of Marion County (84,360); Charles J. Orhison, Judge.</p> <p>Action by Edith Boyer against Joseph Lynch. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Saxes. — Rescission by Seller. — Fraud.—A seller of goods may assume that the purchaser will pay, and the act of an insolvent purchaser, who, knowing that he is insolvent, purchases property with the formed and preconceived intention of not paying, constitutes such fraud upon the seller as will enable him to rescind the contract, even though no fraudulent representations were made. p. 522.</p> <p>2. Saxes.— Rescission by Seller.— Fraud.— Whether there was fraud on the part of an insolvent purchaser so as to warrant the seller in rescinding depends upon the intent of the purchaser not to pay, which is a fact to be proved as any other fact, and though inferable from other facts proven, such intent can not be inferred alone from proof that the purchaser at the time knew of his insolvency and did not disclose it to the seller, p. 522.</p> <p>3. Saxes. — Rescission by Seller. — Fraud.—Burden of Proof. — In a seller’s action to rescind and to recover goods sold on the ground of fraud, the seller has the burden of proving the fraudulent intent of the purchaser not to pay. p. 522.</p> <p>4. Appeal. — Review.—Findings.—To warrant the court on appeal in setting aside the finding of the trial court in a seller’s action to rescind on the ground of fraud, to the effect that there was no fraudulent intent by the purchaser not to pay, such intention must have been established as a fact, or facts must have been proved by undisputed evidence from which such intention must be inferred as a matter of law. p. 522.</p> <p>5. Trial.— Findings.— Questions for the Oowrt or Jury. — ■ Where the undisputed facts are susceptible to but one reasonable inference, such inference is one of law; otherwise the inference is one of fact for the court or jury trying the issues of fact, and in such case the court on appeal will not disturb the finding on the evidence, p. 523.</p>

<p>From Lake Circuit Court; J. Frank Meeker, Special Judge.</p> <p>Action by "Wilhelmine Anderson against Julia B. Follette. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Daviess Circuit Court; James W. Ogden, Judge.</p> <p>Action by George Hoffman against the Evansville and Terre Haute Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Jacob Schoeff against the Port "Wayne and Northern Indiana Traction Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Scott Circuit Court; Francis M. Thompson, Judge.</p> <p>Action by David R. Hawn against Robert Blunt, as Auditor of Scott County. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action by Thomas L. Neill and others against Edward Harrell. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Appeal. — Omvfession of Error. — Confession of error by appellees requires a reversal of the judgment.</p>

<p>Prom Marion. Circuit Court (17,030); Charles Bemsier, Judge.</p> <p>Action by John S. Good against the Pennsylvania Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal.— Briefs.~ Sufficiency.— Evidence Considered Below.— Where appellant’s brief, in an action on a benefit certificate, did not show that any part of appellant’s by-laws was considered as evidence, and the only disclosure is that the by-laws were attached to an agreed statement of facts on which the cause was tried for the purpose of enabling the parties to select the parts to be used in evidence, the court can not determine what part was considered by the lower court in reaching its conclusion, p. 570.</p> <p>2. Appeal.— Briefs.— Statement of Evidence. — Appellant’s statement of the evidence in its brief, that the benefit certificate sued on, the application, the appellant’s by-laws and a stipulation of facts agr'eed on, which provided that either party could point out what by-laws it desired to have considered in evidence, were all the evidence in the cause, was insufficient where neither the instruments, by-laws, nor the agreed facts were properly set out. p. 571.</p> <p>8. Appeal. — Briefs.—Statement of Evidence. — Where the parties to the cause tried by a court stipulated to point out particular parts of by-laws to be considered as evidence, the briefs on appeal should show the particular portion of the by-laws considered. p. 571.</p> <p>4. Appeal. — Briefs.—Presumptions.—Where the court can not determine from appellant’s briefs what the facts were upon which the trial court based its conclusions, it will be presumed that the cause was rightly decided, p. 572.</p>

From Monroe Circuit Court; J ames B. Wilson, Judge. Action by Lizzie White and others against William A. Suggs and others. From a judgment for defendants, the plaintiffs appeal.

<p>From Fountain Circuit Court; I. E. Schoonover, Judge.</p> <p>Action by Thomas Rowell against Samuel E. Snoddy. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Posey Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by Henry Maley and another against George P. Schultze and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Contbacts. — Commission for Sale of Beal Estate. — Signature.— Statutes. — Under §7463 Burns 1914, Acts 1913 p. 638, providing that no contract for a commission for the sale of real estate shall be valid unless in writing signed by the owner or his legally appointed representative, a real estate agent with whom such a contract is entered into can not act as agent or legal representative for the owner in signing nis name to the contract, and any subsequent statement of the owner that he would pay the commission specified, can not operate to ratify and make valid a contract so signed, p.595.</p>

<p>1. Carriers. — Injury to Passengers. — Complaint.—Averment of negligence. — Sufficiency.—A complaint against a railroad company by a mail clerk for injuries sustained while he was in charge of a mail car, alleging that defendant placed said car on its side track, that plaintiff was required by his employment to remain upon said car, that it was defendant’s custom to allow plaintiff and other mail clerks in charge of mails on its cars to enter mail cars left on such side track to perform their work, that it was defendant’s duty, while plaintiff was so engaged upon said ear, to protect it from being run into by the cars of another company whose track connected with such side track, but that defendant negligently failed to so protect such car and carelessly permitted the other company to run its car into and against it, so as to injure plaintiff, sufficiently showed in what the negligence of defendant consisted and was not subject to a motion to make more specific in that respect, p. 599.</p> <p>2. Carriers. — Injury to Passengers. — Railway Mail Cleric. — Verdict. — Answers to Interrogatories. — A railroad company owes to a railway mail clerk in charge of mails upon its train the same duty that it owes to passengers during all the time that he is required by the duty of his employment to be in the mail car, hence answers by the jury to interrogatories showing that at the time of the injury complained of, plaintiff, who was a mail clerk, was sitting on a stool in the car eating his lunch, are not inconsistent with a general verdict for plaintiff, in view of the fact that evidence was admissible to show that the duties of his employment required his presence in the car even while so eating his lunch, p.602.</p> <p>3. Carriers. — Injury to Passengers. — Railway Mail Cleric. — Evidence. — Admissibility.—In an action by a railway mail clerk for injuries sustained while he was in charge of a mail car, evidence that the government paid his salary during the time that he was incapacitated by his injuries was properly excluded, since the fact of such payment could not inure to defendant’s benefit in the reduction of damages, p. 603.</p> <p>4. Carriers. — Injury to Passengers. — Railway Mail Cleric. — Instructions. — An instruction, in a railway mail clerk’s action for injuries received while performing his duties in a mail car on defendant’s side track, stating that if plaintiff was, with defendant’s consent, placed in charge of such car and such car was with the consent and at the direction of the defendant, placed upon such side track, while plaintiff was aboard, and that if it was his duty to remain aboard and such fact was known or could hare been known to defendant by the exercise of ordinary care, then it was defendant’s duty to exercise ordinary care to avoid injuring him, was proper, p. 603.</p> <p>5. Appeal. — Review.—Instructions.—In a railway mail clerk’s action for damages for injuries received while in a mail car on the company’s side track, which was struck by the car of another company whose tracks connected with such side track, where there was evidence to charge the latter company with knowledge of his presence therein, an instruction that if the latter company had, or by the exercise of ordinary care could have had, knowledge of his presence in the ear, it was bound to use ordinary care to avoid injuring him by running another ear against such mail car, was not erroneous, p. 603.</p>

<p>Prom Cass Circuit Court; John 8. Lairy, Judge.</p> <p>Action by the Indiana Lumber Company against Alice A. Meeks and another. Prom a judgment for plaintiff, the defendant named appeals.</p>

<p>From Cass Circuit Court; John 8. Lairy, Judge.</p> <p>Action by George E. Ross against Claude C. Bisbop, as administrator of the estate of George R. Hoopes, deceased. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Superior Court of Marion County (80,624); Charles J. Orbison, Judge.</p> <p>Action by Prank Plummer against The Indianapolis Union Railway Company. Prom a judgment for the defendant, the plaintiff appeals.</p>

<p>From Lake Superior Court, Johannes Kopelke, Judge.</p> <p>Action by Nat. L. Smith against John C. Eastman. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Injuries to Servant.- — Statutes.—Section 8017 Burns 1914, Acts 1893 p. 294, in its provisions for the liability of railroad companies to employes injured by the negligence of any employe in charge of any signal, * * * locomotive engine, etc., is not to be restricted so as to benefit those who may be strictly termed trainmen, but it embraces all that class whose employment exposes them to the peculiar dangers and perils attendant upon the use and operation of engines and trains upon a railroad, p. 631.</p> <p>2. Master and Servant. — Injuries to Servant. — Statutes.—Under §8017 Burns 1914, Acts 1893 p. 294, providing that railroad companies shall be liable to employes injured by the negligence of any employe in charge of any signal, * * * locomotive engine or train upon a railway, etc., a switch track over which engines are moved to an ashpit and to the company’s roundhouse is a railway, p. 631.</p> <p>3. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency. — In a railroad engineer’s action for injuries sustained by the negligence of a hostler in starting the engine while plaintiff was inspecting it, the averments of the complaint that at the end of each trip the engines were placed upon a siding leading to a cinder pit and the roundhouse, and delivered to the hostler to be moved and cleaned by him, that the rules of the company required the hostler to ring the bell before starting the engine, that the engineer after placing his engine on the siding and delivering the saíne to the hostler, proceeded to inspect and examine the same as required by defendant’s rules, and that while he was thus engaged the hostler negligently started the engine, sufficiently showed as a matter of pleading that the hostler was at the time in control and management of the engine within the purview of §8017 Burns 1914, Acts 1893 p. 294, making a railway company liable for the negligence of its servants in charge of locomotives, p. 631.</p> <p>4. Master and Servant. — Injuries to Servant. — Jury Question.— The question of whether a railroad locomotive was in the custody of plaintiff as engineer, at the time of his injury, or in the control of the hostler, as alleged in the complaint, was a question of fact for the jury. p. 632.</p> <p>5. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Complaint.—The court can not say that plaintiff was guilty of contributory negligence from the fact that the complaint shows that after delivering his engine to the custody of the hostler he proceeded to examine and inspect same in compliance with defendant’s rules, and was so engaged when he was injured by the hostler’s act in starting the engine, in view of the fact that the statute places the burden of showing contributory negligence upon defendant, and the court is required to indulge in favor of plaintiff any inferences upon that subject which may naturally and legitimately be drawn from the averments, p. 633.</p> <p>6. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Under §8017 Burns 1914, Acts 1893 p. 294, creating a liability against railroad companies for injuries to employes from negligence of servants in charge of locomotives, a person so injured can not be said to have assumed the risk. p. 633.</p> <p>7. Master and Servant. — Injuries to Servant. — Negligence.—Complaint. — A complaint for injuries to a railroad engineer showing that plaintiff had delivered the engine into the custody of the hostler, and that the latter started the same without ringing the bell as required by the rules of the company at a time when he knew or should have known that the plaintiff was engaged in inspecting it in accordance with the rules and custom of defendant, sufficiently charges negligence making the company liable both under §8017 Burns 1914, Acts 1893 p. 294, and under 35 U. S. Stat. Chap. 149, p. 65, U. S. Comp. Stat. Supp. 1909, 1172. p. 633.</p>

<p>1. Masteb and Servant. — Injuries to Servant. — Complaint.—Negligence. — A complaint for injuries to the servant from the negligence of the master is sufficient if it advises the defendant of the negligence charged so as to inform him of what he is expected to meet at the trial, and plaintiff need not plead in detail such facts as are peculiarly within the knowledge of defendant, p. 637.</p> <p>2. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency. — A complaint for injuries to a coal mine employe from falling slate, alleging that defendant employed a bank boss to act for it in furnishing plaintiff a reasonably safe place to work, that defendant negligently permitted slate 'and rock in the mine roof to become loose and likely to fall, that said mine boss, who was authorized to direct plaintiff, ordered plaintiff to leave his work as tracklayer and to put up a neck bar in the room where the defective roof existed, that while performing such service he was injured by falling slate and rock, that defendant knew of the unsafe condition of the roof from one to ten days prior to the injury, but failed to give plaintiff any notice or warning thereof, that plaintiff did not know of such condition, and that there was nothing in the appearance of the slate or stone to indicate to him any immediate danger, sufficiently showed a legal duty owing from defendant to plaintiff and was not open to the objection that the facts pleaded showed that plaintiff assumed the risk, pp. 638, 639.</p> <p>3. Master and Servant. — Injuries to Servant. — Knowledge of Defect. — Duty to inform Servant. — Where the master has knowledge of the defective condition of the servant’s place of work, or may obtain such knowledge by inspection, and the defect is such that it can not be readily detected by the servant, the master must inform him thereof, and a failure to do so will render him liable in damages for injuries to the servant resulting therefrom, p. 639.</p> <p>4. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Reliance on Performance of Duty hy Master. — Where an employe is ordered by the master to leave his accustomed-work and engage in services which subject him to increased or additional hazard, he does not in engaging in such temporary service, necessarily assume the risk, but he has a right, in the absence of knowledge of such hazard, to assume that the master has used ordinary and reasonable care to make the place safe, and that he will use such care to keep it safe. p. 639.</p> <p>5. Pleading. — Demurrer.—Admissions.—A demurrer to a complaint not only admits the facts that are well pleaded, but also all necessary inferences to be drawn therefrom, p. 639.</p> <p>6. Judgment. — Judgment hy Default. — Setting Aside. — The trial court may, either on its own motion or that of a party, set aside a defáult and judgment and correct any error connected therewith which it has committed, at any time during the term at which such default or judgment was taken, p. 640.</p> <p>7. Appeal. — Review.—Issues.—Instructions.'—There is no error in giving an instruction which conforms to the pleadings that are sufficient, even though it is not as full as contended for, since in such ease it is the duty of the complaining party to tender an instruction embracing a more comprehensive statement of the issues, p. 640.</p> <p>8. Appeal. — Review.—Issues.—Complaint.—In a negligence case, where there was more than one paragraph of complaint, an instruction correctly stating the law as to the burden of proof, and stating that the plaintiff to recover must prove “the material allegations of at least one paragraph of his complaint” was not objectionable, p. 641.</p> <p>9. Master and Servant. — Injuries to Servant. — Trial.—Instructions. — Negligence.—Proximate Cause. — An instruction in a servant’s action for personal injuries, stating that the elements of negligence are the existence of a duty on the part of the defendant to protect the plaintiff from the injury complained of, a failure to perform that duty, and an injury to plaintiff from such failure, was not misleading in view of other instructions on the subject of proximate cause, p. 641.</p> <p>10. Trial. — Instructions.—An omission in an instruction that is not mandatory may be supplied by another instruction, and if together they correctly state the law, there is no error, though, standing alone, either does not fully state the law. p. 641.</p> <p>11. Appeal.— Review.— Instructions. — ■Conformity to Issues. — An instruction stating that a failure to employ a competent mine boss, or a failure of the mine boss to keep a watch over the air ways of the mine, was negligence which must be attributed to the defendant, was properly given where such negligence was specifically charged in one paragraph of the complaint, p. 642.</p> <p>12. Master and Servant. — Injuries to Servant. — Coal Mine Employes. — Duty of Master. — Assumption of Bish. — The statute specifically imposes upon the operator of a coal mine certain duties to secure safety to the miners, and while an employe engaged in making a dangerous place safe assumes the risk attending such service in that particular place, he neither assumes the risk at other places where he is directed to work, of which he has no knowledge and which can be observed only by an inspection, nor does he assume the risk occasioned by the master’s negligence, p. 642.</p> <p>13. Appeal. — Beview.—Befusal of Instructions. — Modification of Instructions. — The refusal of tendered instructions is not error where they were modified and given by the court with the instructions given on his own motion, p. 643.</p> <p>14. Master and Servant. — Injuries to Servant. — Defective Place of Worh. — Scope of Employment. — The fact that a coal mine employe was at the time of his injury eating his lunch directly under the rock which fell upon him, at a point four feet from where he had begun his work, was not sufficient to show that he had voluntarily left his working place and was outside the scope of his employment, in view of other facts shown by the evidence, p. 643.</p> <p>15. Appeal. — Beview.—Misconduct of Counsel. — The fact that during a recess granted to the jury, one of the plaintiff’s counsel wrote upon a blackboard in the court room the words, “The rules of the court are smashed,” can not be made cause for reversal, where it appears that defendant’s counsel knew of the writing and made no effort to have it removed, and especially in the absence of a showing that the jury was in any manner affected, or defendant harmed thereby, p. 643.</p> <p>16. Appeal. — Beview.—Harmless Enror. — Appellant can not complain on appeal that the court permitted a certain question to be propounded to a witness, where it appears that the court did not permit the witness to testify, and that appellant objected to a proposed instruction that the jury should not consider such question or allow it to affect the verdict in any manner, p. 644,</p> <p>17. Witnesses. — Examination as to Interest. — An adversary witness may be interrogated as to his interest in the result of a cause in which he is testifying, p. 644.</p>

<p>From Cass Circuit Court; James P. Wason, Special Judge.</p> <p>Action by Jobn C. Nelson, as trustee for Dennis Uhl, against Herbert A. Dunn and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Replevin. — Right of Possession.- — Wrongful Detention. — Demand. — Necessity.—While the possession oí goods by virtue of a purchase is not wrongful in the first instance within the meaning of §1330 Burns 1914, §1266 R. S. 1881, authorizing an action in replevin, the contract by which the property was obtained is voidable at the seller’s option if tainted with the fraud of the purchaser, and the latter’s detention of the property may be rendered unlawful so as to sustain an action of replevin by the seller’s offer to restore the consideration and a demand for the return of the property, p. 651.</p> <p>2. Replevin. — Right of Possession. — Proof.—Replevin is a possessory action in which plaintiff must show a right to the possesion of the property sued for at the time the action was commenced, p. 651.</p> <p>3. Replevin. — Rescission.—Restoration.—Where property was obtained from plaintiff in exchange for other property that was worthless and of no value to either party, or if defendant in some way rendered restoration impossible, the plaintiff need not offer to restore in order to render the detention unlawful within §1330 Burns 1914, §1266 R. S. 1881, authorizing actions in replevin. pp. 652, 653.</p> <p>4. Fkaud. — Evidence.—Sufficiency.—Fraud assumes many shapes, disguises and subterfuges, and is sometimes so secretly perpetrated that it- can only be detected by facts and circumstances that are trivial, and for this reason a wide scope is given to the evidence; hence where the evidence clearly showed fraud on the part of one defendant to a replevin suit in obtaining the property, and there were facts and circumstances indicating codefendant’s knowledge of and connection therewith, the evidence was sufficient to warrant an inference of fraud against the latter and to sustain the finding for plaintiff, p. 653.</p>

<p>From Superior Court of Marion County (83,288); Pliny W. Bartholomew, Judge.</p> <p>Action by Roscoe Barnett against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Knox Circuit Court; Orlando E. Coll, Judge.</p> <p>Action by Albert Combs against Asa Combs and others. Prom the judgment rendered, the defendant named appeals,</p>

<p>Prom Probate Court of Marion County; Franh B. Ross, Judge.</p> <p>Action by Wilson S. Doan against William Pirtle Herod, as administrator of the estate of Edward C. Dickman, deceased. Prom a judgment for defendant, the plaintiff appeals.</p>

Prom Orange Circuit Court; Thomas B. Busfdrh, Judge. Action by James E. Mines and another against Leona Pritchard and another. Prom an order correcting the judgment for plaintiffs, nunc pro tunc, the defendants appeal.

<p>Prom Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Sarah A. Zink against Edward Zink. Prom a judgment for defendant upon his eross-eomplaint, the plaintiff appeals.</p>

<p>Prom Superior Court of Allen County; Carl Yaple, Judge.</p> <p>Action by Prank Drage against P. Nort Whitesides and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Wills.— Construction.— Estates Devised.— Under a will bequeathing testator’s personalty to his wife with the provision that, should her death occur before his, the same should be equally divided among all his children living at his death, and devising the realty to his wife for life, with the provision that at her death the same should descend in certain described portions to each of his children excepting A. and P., and declaring that the devise to his daughters S. and H. should be for life only and that on the death of both, the same should descend to testator’s children “living at their death and the descendants of such as are dead, per stirpes”, and directing that on the death of his wife the expenses of her sickness and funeral should be paid by the “above named devisees” and A. and P. in proportion to the value of each devise, and explaining that no provision in the will was made to A. .and P. on account of advancements made to them, the intention of the testator is obvious to include A. and P. in the clause disposing of the remainder in the realty devised to the two daughters, and they were entitled to share with the other children of testator and the descendants of such as were dead, pp. 689, 691.</p> <p>2. Wills. — Construction.—Intention of Testator. — The primary object in construing a will is to ascertain the intent and meaning of the testator, p. 691.</p> <p>3. Wills.— Construction. — Meaning of Clauses. — In construing a particular clause of a will, the court should look to the whole will as well as to the circumstances and conditions surrounding the testator at the time of its execution, p. 691.</p> <p>4. Wills. — Construction.—Disposition of Property. — A will should be construed so as to give effect to all its provisions, if possible, and when the intention of the testator is doubtful the instrument will be given that construction which casts the property as nearly as possible where the law would cast it if the will were silent, p. 691.</p> <p>5. Wills. — Construction.—Estate Devised. — A devise of real estate to testator’s two unmarried daughters “for and during their natural lives and during the life of the survivor of them”, and after the death of both, the fee simple to testator’s children, “living at their death, and the descendants of such as are dead, per stirpes”, a life estate was given to the unmarried daughters and at their death their shares were to revert to and be divided equally among all their brothers and sisters then living, and the heirs of such as were dead. p. 691.</p> <p>6. Wills. — Construction.—Receipts for Advancements. — A receipt taken by testator for an advancement made to one of his daughters prior to the execution of the will, as well as the fact that he had, shortly after the execution of the will, surrendered and cancelled notes executed by a son for a conveyance theretofore made by him to the son, may be considered as items of evidence tending to show the true condition and circumstances surrounding the testator at the time the will was executed, for the purpose of aiding the court in construing the will, but they may not be given any additional force as showing a surrender of any rights to share in the remainder of a life estate created by the will. p. 693.</p>

<p>1. Husband and Wife. — Action on Note. — Sufficiency of Evidence. —Consideration.—In an action by a bank on a note executed by a married woman, evidence showing that defendant had been indebted to the bank for money used in real estate investments, that she always depended upon her husband, who was president of the bank, from time to time to bring her renewal notes to be signed in renewal of her loan, that the note in suit was signed by her at her husband’s request shortly after signing some renewal notes and that she signed it believing that it was for some portion of the loan theretofore made by her, that she also executed a mortgage describing such note and the renewal notes, that at the time of executing such mortgage, and subsequently on the failure of the bank, in conversation with persons representing the bank, she admitted that the note was for a part of said loan, and that thereafter she discovered it was not for a part of such loan and that she had never received anything from the bank on account of said note, and that a thorough examination of the books and records of the bank failed to disclose how the note came into the bank’s possession, or that any money had been paid to her or the existence of any debt on account of which the note was given, but disclosed circumstances indicating that its presence in the bank was irregular, was insufficient to show that defendant had received any consideration therefor, but on the contrary was consistent with the theory that the same was executed by her as surety for her husband, pp. 697, 702,706.</p> <p>2. Husband and Wife. — Liability of Wife. — Principal and Surety. —Where a wife alone signs a note secured by mortgage on her separate real estate, and her husband receives the entire consideration, her liability is not that of principal, but her position is that of surety for her husband and no recovery can be had against her. p. 701.</p> <p>3. Husband and Wife. — Bills and Notes. — Suretyship of Wife.— Evidence. — The mere fact that a wife’s name alone appears upon a note will not defeat her plea of suretyship, if the evidence discloses that she was in fact a surety, as the law looks through the form to the substance, p. 701.</p> <p>4. Husband and Wife. — Action on Note. — Burden of Proof.— Where a married woman alone signed a note secured by her mortgage on her separate real estate, the burden was upon her to prove that she received no consideration therefor, p. 701.</p> <p>5. Appeal. — Review.-—Consideration of Evidence. — While the court on appeal can not weigh conflicting evidence, and must uphold the finding if there is any evidence to support it, the conflict which will preclude the setting aside of the finding must amount to more than a mere scintilla and must be composed of legal evidence, otherwise it is the court’s duty to dispose of the evidence, and if there is not sufficient to sustain the finding, the judgment should be reversed, p. 701.</p> <p>6. Banks and Banking. — Officers and Agents. — Representations of Third Persons in Transactions with Bank. — Where a bank official, authorized by a person to transact business on his behalf with the bank, in the transaction of such business and while acting within the scope of his general authority as an officer of the bank, perpetrates a wrongful act whereby either the bank or such person must suffer, the loss must fall upon the bank, and this is true notwithstanding such official sustains the relation of husband to the person by whom the transaction was authorized, p. 704.</p>

<p>From Jay Circuit Court; Daniel IF. Comstock, Special Judge.</p> <p>Action by Lawrence Hayes, Sr., and others against Benjamin Johnson. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Grant Circuit Court; Lemuel W. Royse, Special Judge.</p> <p>Action by Henry Mills and others against Carey E. Cowgill and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>From Superior Court of Marion County (82,779) ; Charles J. Orbison, Judge.</p> <p>Action between Carey L. Smith and Lydia E. Finney. From a judgment for the latter, the former appeals.</p>

From Monroe Circuit Court; James B. Wilson, Judge. Action between Lizzie White and others and Walter S. Bradfute and others. From a judgment for the latter, the former appeal.

From Monroe Circuit Court; James B. Wilson, Judge. Action between Lizzie White and others and the First National Bank and others. From a judgment for the latter, the former appeals.