Volume 57 — Indiana Appellate Court Reports

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Ezra C. Voris against William H. Ferrell and others. From a judgment rendered, the plaintiff appeals.</p>

<p>1. Bills and Notes. — Consideration.—Gifts.—A promissory note executed solely as a gift or donation can not be enforced by the payee against the maker or his estate, but until actually paid is regarded merely as a promise to give, even though made payable at a bank. p. 20.</p> <p>2. Evidence. — Sufficiency.—Appeal.—Where the evidence supplies reasonable grounds for inferring facts essential to a recovery or defense, it is sufficient, and the findings based thereon are conclusive on appeal, p. 21.</p> <p>3. Appeal.. — -Review. — Findings. — Conclusiveness.—Where there was undisputed evidence to justify an inference that notes sued on were executed without any consideration, a finding to that effect was conclusive upon the issue presented by an answer of no consideration, p. 21.</p> <p>4. Bills and Notes. — Review. — Sufficiency of Evidence. — Inferences. — Where there was evidence to support a finding that the presumption of delivery raised by possession of the notes sued on was overcome by the evidence, and that the notes were not executed, such finding is conclusive as against alleged insufficiency of the evidence, p. 23.</p> <p>5. Appeal. — Review.—Answers to Interrogatories. — Clerical Mistake. — An answer to an interrogatory stating that a note in suit was not executed on or about “Nov. 2, 1909”, will be treated as a finding that the note was not executed on “Nov. 2, 1907”, where it appears from a consideration of the other interrogatories and- of the record that the latter date was intended, and that “1909” was a clerical error, p. 23.</p> <p>6. Executors and Administrators. — Pleading.—Special Pleas.— An administrator by filing special pleas not required by the statute limits his defenses to those pleaded, p. 24.</p> <p>7. Bills and Notes. — Ron Est Factum. — Burden of Proof. — The burden of proof as to the execution of notes sued on is not shifted by the filing of a plea of non est factum, p. 24.</p> <p>S. Appeal. — Review.—Evidence.—Sufficiency.—The objection that there was no evidence to disprove the execution of notes sued on, or at least not more than a scintilla of evidence tending to disprove their execution, can not prevail in view of evidence shown by the record warranting an inference that they were not executed, p. 24.</p> <p>9. Appeal. — Presenting Questions for Review. — Motion for New Trial. — Grounds.—Insufficiency of Evidence. — Where the jury’s answers to interrogatories are in harmony with the general verdict, no question is presented by an assignment as cause for new trial that such answers are not sustained by sufficient evidence, but the insufficiency of the evidence is presented by assigning that the verdict is not sustained by sufficient evidence, p. 25.</p> <p>10. Appeal. — Review.—Hamless Error. — Instructions.—In an action on notes, the execution of which was denied, where the jury’s answers to interrogatories showed that it did not find or intend to find that the alleged maker was of unsound mind, but that the verdict for defendant was based upon something else, error in the giving or refusing of instructions relating to unsoundness of mind was harmless, p. 27.</p> <p>11. Appeal. —■ Review. — Harmless Error. — Instructions. — Alleged error in the giving of instructions on the subject of fraud in procuring the execution of notes sued on is harmless where it affirmatively appears from the record that the jury found for appellee upon the issue of non est factum and of no consideration, p. 28.</p> <p>12. Appeal. — Review.—Harmless Error. — Incomplete Instruction.— In an action on notes, where the jury found that plaintiff had been paid all that was owed him, and that the notes did not represent any bona fide debt, and it did not appear that they were given for any inconvenience, damage or detriment to plaintiff, an instruction indicating that there could be no consideration for the notes unless plaintiff gave something for them, though giving too narrow a definition of a good consideration, was not harmful or misleading, p. 30.</p> <p>13. Bills and Notes. — Consideration.—Any damage, inconvenience or detriment to the promisee, is a sufficient consideration for the execution of a promissory note, though no actual benefit accrues to the maker, p.30.</p> <p>14. Appeal. — Review.—Refusal of Instructions. — There was no error in the giving or refusal of instructions, where those given were correct and fully covered such of the requested instructions as were not erroneous, p. 31.</p> <p>15. Witnesses. — Impeachment.—Immaterial Matters. — Where the testimony of a witness was offered to identify a contract, and thereafter the court excluded the instrument, the testimony of the witness became immaterial and it was not proper to contradict or impeach him. p. 31.</p> <p>16. Evidence. — Presumptions.—Failure to Produce. — Where a party has competent evidence readily obtainable by him to prove or disprove any material fact, and fails to produce it, the presumption is that the evidence if produced would be unfavorable to his contention. p. 32.</p> <p>17. Appeal. — Review.—Misconduct of Jury. — Alleged misconduct of the jury is not available where it does not appear that the verdict was in any way influenced thereby, or that there was even a remote possibility of its being so influenced, p. 32.</p>

<p>Prom Elkhart Circuit Court; James Story Drake, Judge.</p> <p>Action by George A. Larimer and another against William P. Krau, Treasurer of Elkhart County. Prom a judgment for defendant, the plaintiffs appeal.</p>

<p>From Clay Circuit Court; Paul N. Bogart, Special Judge.</p> <p>Action by Harry C. Wetnight against Sarab J. McBetb and another. From a judgment for plaintiff, the defendants appeal.</p>

Prom Huntington Circuit Court; Samuel E. Cook, Judge. Action by Roseoe A. Kaufman and another against John W. Weaver and another as the Auditor and Treasurer, respectively, of Huntington County. Prom a judgment for plaintiffs, the defendants appeal.

<p>1. New Teial. — Motion for New Trial.- — Affidavit.—Quotient Verdict. — An affidavit in support of a motion for a new trial on the ground that the verdict returned was a quotient verdict, alleging that the information as to the manner in which the amount of the verdict was arrived at was learned from a certain person named, without any further statement as to the source of information, and unsupported by the affidavit of affiant’s alleged informant, was insufficient to impeach the verdict, and especially in view of counter-affidavits by two of the jurors showing that the verdict was not reached in the manner alleged, pp. 63, 64.</p> <p>2. New Teial. — Motion for New Trial. — Affidavits and Testimony of Jurors. — The affidavit of a juror may be received to sustain the verdict, but not to impeach it; hence where a motion for new trial alleges irregularity of the jury in arriving at its verdict, without disclosing the source of information, it will be held insufficient on the presumption that the information came from one or more of the jurors, p. 64.</p>

Prom Hancock Circuit Court; Robert L. Mason, Judge. Action by Charles Reed against the Lake Erie and Western Railroad Company and another. Prom a judgment for plaintiff, the defendant named appeals.

<p>1. Master and Servant. — Injuries to Servant. — General Verdict.— Effect. — In a servant’s action against the master for personal injuries, a general verdict for the plaintiff was a finding that defendant was negligent in the manner charged, that such negligence was the proximate cause of the injury, and that plaintiff did not assume the risk and was without contributory negligence, p. 85.</p> <p>2. Trial. — Verdict.—Ansioers to Interrogatories. — A general verdict will stand as against the jury’s answers to interrogatories unless the latter are inconsistent with it. p. 85.</p> <p>3. Master and Servant. — Injuries to Servant. — Trial.—Ansioers to Inteirogatories. — Conclusions of Law. — In a servant’s action against the master for personal injuries, answers of the jury to interrogatories that the injury to plaintiff was purely accidental, that plaintiff and another were fellow servants, and that they were performing a duty which they owed as fellow servants, were conclusions of law, and hence could not be considered in determining whether the answers were sufficient to overcome the general verdict for plaintiff, p. 85.</p> <p>4. Master and Servant. — Injuries to Servant. — Assumption of Rislc. — Answers to Interrogatories. — In an action for injuries to a servant by falling from a building on which he was employed, where the complaint alleged on the subject of nonassumption of risk that plaintiff, by reason of his youth and inexperience, did not understand the danger and hazard of working high above the ground without proper scaffolding, and that he had not been told of same, neither the presumption arising from a failure to aver the contrary, that plaintiff knew the physical surroundings, nor the answers by the jury to interrogatories that plaintiff knew of the existence of an open court, and that if he fell he would fall to the bottom of it, were sufficient to overcome the general verdict for plaintiff in so far as the element of the assumption of risk was concerned, since a knowledge of physical conditions does not necessarily compel a presumption of knowledge of results that flow from such conditions, pp. 86, 87.</p> <p>5. Master and Servant. — Assumption of Rislc. — Minor Employe.— Ordinarily a servant not only assumes all the hazards necessarily incident to the service, but also those that are open and obvious, or to be discovered by the use of reasonable care, whether necessarily incident to the service or not, and the rule is applicable notwithstanding such servant is a minor, if he is of sufficient age and discretion to comprehend the dangers of his employment, p. 87.</p> <p>6. Master and Servant. — Injuries to Servant. — Complaint.—Negligence of Fellow Senant. — In an employe’s action for injuries in falling from a scaffold, where the complaint expressly charged that defendant negligently constructed and maintained the scaffold in the manner set out, but not disclosing what relation another who was working with plaintiff bore to plaintiff, was broad enough to sustain proof that plaintiff’s colaborer was a vice principal, and it was not necessary to allege that the injury was not the result of the negligence of a fellow servant, p. 88.</p> <p>7. Master and Servant. — Fellow Servant. — Answers to Interrogatories. — In an action for injuries to an employe by falling from a scaffold while at work on the skylight of a building, answers to interrogatories showing that plaintiff and another were working alone at the time, that the latter was doing a part of the manual labor and detail work, that both were in the employ of defendant, that both participated in placing the plank from which plaintiff fell, and that defendant was not present and did not direct the placing of such plank, but that it was placed in a manner chosen by plaintiff and his colaborer, were sufficient to show plaintiff and his colaborer were fellow servants, p. 89.</p> <p>8. Master and Servant. — Master's Duty. — Safe Place of Worlc.— While it is the master’s duty to furnish the servant a reasonably safe place in which to work and to exercise reasonable care in maintaining it in such condition, where he has used reasonable care in the selection of materials from which to erect a structure, with the design and purpose that the servants shall build it for their own use, and the servants, with knowledge of such design and purpose, erect such structure from such material in accordance with their own judgment, the master can not be held liable for injuries sustained by one of such servants by reason of defects in such structure growing out of the manner of the construction thereof, p. 89.</p> <p>9. Master and Servant. — Negligence of Fellow Servant. — Where a coservant handles or places a safe instrumentality so carelessly as to convert it, for the time being, into a dangerous agency, the master, if free from fault, is not liable for a consequent injury to a servant, p. 90.</p> <p>10. Master and Servant. — Injuries to Servant. — Contributory Negligence. — When a servant suffers an injury by his knowingly applying a reasonably sufficient appliance to an improper use, or by his misuse of it, without the knowledge or acquiescence of the master, the master is not liable, p. 91.</p> <p>11. Master and Servant. — Injuries to Servant. — Liability.—Concurrent Negligence. — Where an employer was negligent in furnishing a scaffold insufficient in width, and such negligence was a proximate or concurring cause in producing injury to plaintiff, he would be liable, though the dangerous manner in which the scaffold was placed was the act of an employe, p. 91.</p> <p>12. Master and Servant. — Injuries to Servant. — Verdict. — Answers to Interrogatories. — Where answers to interrogatories showed that the injuries received by plaintiff in falling from a scaffold on which he was employed resulted from the act of plaintiff and another in placing the scaffold in such manner that it could slip and fall, a general verdict for plaintiff could not stand, p. 92.</p>

<p>1. Telegraphs and Telephones. — Liability for Penalties. — Stipulation for Notice of Claim. — Validity.—A stipulation printed on the back of a blank on which a telegraph message is written, providing that the company will not be liable for statutory penalties in any case where a claim is not presented to the company in writing within sixty days after the message is filed for transmission, is valid, p. 96.</p> <p>2. Telegraphs and Telephones. — Failure to Deliver Message.— Liability. — Notice of Claim. — Sufficiency.—Under a stipulation printed on the forms used by patrons of a telegraph company in sending messages, providing that the company will not be liable for statutory penalties in any case where a claim is not presented to the company in writing within sixty days after the message is filed, but not providing to whom the claim shall be presented, the delivery of notice of a claim for failure to deliver a message, to a person in charge of the company’s telegraph office under circumstances justifying the belief that he is the company’s agent, is sufficient, p. 96.</p> <p>3. Telegraphs and Telephones. — Failure to Deliver Message.— Action to Recover Penalty. — Notice of Claim. — Burden of Proof. — In an action against a telegraph, company to recover a statutory penalty for failure to deliver a message, where defendant relied upon a contract requiring notice to the company of an intention to claim the penalty before it should be liable, the burden was on the defendant to prove such contract, and that notice was not delivered to it. p. 97.</p> <p>4. Telegraphs and Telephones. — Failure to Deliver Message.— Action to Recover Penalty. — Prepayment of Charges. — Evidence. —Evidence showing that, though the sender of a telegraph message did not personally prepay the charges, the agent of the telegraph company prepaid the charges as a favor to the sender and personally credited the sender, as he was accustomed to do in many instances for his friends and acquaintances, sufficiently showed that the message was paid in advance and was received by the company “upon the usual terms”, so as to render it liable under §§5780, 5781 Burns 1914, Acts 1885 p. 151, for failure to deliver the message, p. 97.</p> <p>5. Telegraphs and Telephones. — Failure to Deliver Message.— Action to Recover Penalty. — Evidence.—Evidence showing that a telegraph message filed in the office of the company at Shoals between 11 and 12 p. m. for transmission to Evansville, and that it did not arrive at Evansville until after 8 a. m. of the next day, after the addressee, who had repeatedly inquired for it, had left the city, and showing that the company accepted a message at Evansville for transmission to Shoals, shortly after accepting the message filed at Shoals, which was delivered at Shoals at about 3 or 4 a. m., was sufficient to warrant an inference of bad faith, partiality and delay on the part of the company in the transmission of the first message, p. 98.</p> <p>6. Telegraphs and Telephones. — Failure to Deliver Message.— Liability. — Failure to transmit and deliver a message to the addressee in good faith and in the order of time in which it is received, or any unreasonable delay m transmission or delivery, subjects the company to the penalty provided by §§5780, 5781 Burns 1914, Acts 1885 p. 151, regardless of whether there was partiality or discrimination, p. 98.</p> <p>7. Telegraphs and Telephones. — Regulation.—Scope and Effect of Statute. — The statute (§§5780, 5781 Burns 1914, Acts 1885 p. 151) relating to the receipt and transmission of telegraph messages and providing for the recovery of penalties for failure to deliver messages, has no extraterritorial effect, but applies only where the fault of the company occurs within the State, p. 98.</p> <p>8. Teleoraphs and Telephones. — Transmission of Messages. — Interstate Commerce. — The mere fact that a message filed at Shoals in this State for transmission to Evansville, a distance of approximately 75 miles, was sent to Cincinnati, Ohio, and thence to Evansville, did not constitute the message a subject of interstate commerce, pp. 98,99.</p> <p>9. Appeax,. — Presenting Questions for Review. — Jurisdictional Questions. — Where there is jurisdiction of the general subject-matter, any specific objection to the jurisdiction must be opportunely made and brought into the record, and should be raised on appeal by assignment of error, p. 99.</p>

<p>1. New Teial. — New Trial as of‘ Right. — In an action prosecuted primarily to ascertain and define the rights of defendant under a lease of a Chautauqua park, and to protect such rights by injunction, and involving only incidentally the rights of the parties to a road which the defendant sought to have the plaintiff enjoined from obstructing, there was no such interest in land involved as to entitle the losing party to a new trial as of right, and especially where the judgment with respect to the road accorded with the contention of the losing party, p. 109.</p> <p>2. Evidence. — Written Contract. — Lease.—Parol Evidence. — Where a lease to a Chautauqua corporation leased the land in controversy for a term of years to be used for Chautauqua purposes during July and August of each year, and “the free use of such buildings as the hotel, auditorium, and water tower and waterworks system, with the permission to lease to private parties ground rent for cottages”, etc., the quoted language had to do with the use of the structures in. connection with the land leased, rather than their ownership, and in the absence of a statement in the lease showing that the lessor was the owner of the buildings, the presumption of ownership was not conclusive; hence parol testimony showing that lessee owned the buildings was not objectionable on the theory that it contradicted the terms of the lease on that subject, p. 110.</p> <p>3. Evidence. — Written Contract. — Lease.—Parol Evidence. — Under a lease of land to a Chautauqua corporation, where there was no express statement showing the ownership of the buildings used by the corporation, a grant of “the free use of such buildings as the hotel, auditorium, and the water tower and waterworks system”, was sufficiently ambiguous to warrant the admission of parol testimony as to the construction placed thereon by the parties, and as to the relation the parties bore to each other and to the subject-matter of the language quoted, p. 110.</p> <p>4. Appeal. — Findings.-—Conclusiveness.—The findings of the trial court, if sustained by some evidence, are conclusive on appeal. p. 112.</p>

<p>Prom Lake Superior Court; D. J. Moran, Special Judge.</p> <p>Action by Otilia Rasher against Peter Rasher. Prom a judgment for defendant, the plaintiff appeals. Affirmed.</p>

<p>From Fountain Circuit Court; I. E. Schoonover, Judge.</p> <p>Action by Elsie A. Drollinger against Frederick D. Drollinger. From the judgment rendered, the defendant appeals.</p>

<p>1. Appeal. — Time for Perfeotinff. — Dismissal.—Under §§670, 672 Burns 1914, §§631, 633 R. S. 1881, an appeal must be taken within one year from the time judgment was rendered, and where it appears that a greater period has elapsed, a dismissal of the appeal is required, p. 117.</p> <p>2. Appeal. — Time for Perfeotinff. — Moot Question. — Where a final judgment was rendered following the refusal of parties to plead over, the subsequent trial and determination of certain questions, which at most the appellate tribunal must regard as merely moot, can not have the effect of prolonging the statutory period for appeal, p. 119.</p>

<p>1. Statutes. — Construction.—Legislative Intent. — Tbe legislative intent in the enactment of a statute is to be ascertained and enforced whenever possible to do so without doing violence to the language of the act, and in ascertaining such intent consideration should be given to the whole act as well as to its separate parts, p. 123.</p> <p>2. Statutes. — Construction.-—Legislative Intent. — The legislative intent, when ascertained, will control the strict letter oí the statute, or literal meaning of words and phrases, where to adhere to the strict letter or literal meaning would lead to injustice, absurdity or the contradiction of one provision of the act by another, p. 123.</p> <p>3. Statutes. — Construction.—Where two constructions of a statute are possible, the one should be adopted which effectuates rather than the one which defeats its purpose, p. 123.</p> <p>4. Statutes. — Construction.—In construing a statute the court may look to the history of the times on the subject of the legislation with a view to carrying out the legislative purpose, p. 123.</p> <p>5. Municipal Corporations. — Public Improvements. — Assessments. —Statutes.—The provisions of the cities and towns act of 1905, and the amendments thereto relating to the assessment of property for public improvements, gives a lien upon each particular lot or tract for the amount of the assessment against same, and the remedy of the lienholder is purely in rem, unless the property owner exercises his right to sign a waiver and pay in installments, in which event he becomes personally liable if the property assessed is not of sufficient value to discharge the lien, p. 123.</p> <p>6. Municipal Corporations. — Public Improvements. — Assessments. —Right to Pay in Installments. — Statutes.—In view of the attendant inconveniences in the payment of small improvement assessments in installments and the history of the legislation, it was the legislative intent by the act of 1909 (Acts 1909 p. 412, §8721 Burns 1914), relating to the payment of assessments in installments, to so limit such privilege as not to apply “to assessments less than ten dollars”, and to exclude such assessments from the installment privilege even though the aggregate of the assessment against separate lots or tracts of an individual property owner exceeded ten dollars, p. 124.</p>

<p>1. Appeai. — Questions BeviewaMe. — Demurrer to Answers. — Exceptions to Conclusions of Law. — Where all the material facts of appellant’s second and third paragraphs of answer are included in the court’s special finding, the exceptions to the conclusions of law present for review the question arising on the sustaining of demurrers to the paragraphs of answer, p. 131.</p> <p>2. Patents. — Sale of Patent. — Statutes.—One who enters into a contract for the sale of a patent right, or the right to manufacture, use or sell a patented article, without first complying with the provisions of §§9720, 9721 Burns 1914, Acts 1899 p. 112, can not recover on such contract, p. 131.</p> <p>3. Patents. — “Invention”.—Bight to Sell.- — Where one succeeds in practically applying some principle to a machine or apparatus, resulting in usefulness, novelty, etc., the fact as well as the result of such application is known as an “invention”, which may become a patent by recourse to the specified procedure, and constitutes property which he may sell independent of the statutory requirements relative to the sale of patent rights, p. 132.</p> <p>4. Patents. — Letters Patent. — Patented Article. — Letters patent is a written or printed instrument granted by the sovereign power granting to one the exclusive right to make, use and sell an invention, and the actual issuance of such letters makes the invention a patented article, p. 132,</p> <p>5. Patents. — Application for Letters Patent. — Rights of Applicant Pending Issuance of Letters. — Statutes.—Section 9720 Burns 1914, Acts 1899 p. 112, requiring the filing of a copy of letters patent together with a prescribed affidavit in the office of the clerk of the county as a condition precedent to the right to sell a patent right, or the right to manufacture, use or sell a patented article, etc., has no application to the right of an inventor to enter into a contract selling to another the right to manufacture and sell an article on which he has been granted a patent, but for which letters patent have not actually been issued, since until the actual issuance of letters the invention is not a “patented article”, and until their issuance there can be no compliance with the statute, p. 133.</p> <p>6. Patents. — Contracts.—Statutory Requirements. — A contract by the inventors of a fence brace granting the right to sell same, reciting that a patent had been granted, but that letters patent had not been issued thereon, and stating that the grantors were to receive as compensation a certain royalty on each brace manufactured, etc., sufficiently complied with §9721 Burns 1914, Acts 1899 p. 112, requiring written obligations for which any patent right, or right to manufacture, use or sell a patented article, shall form the whole or any part of the consideration, to contain the words, “given for the right to manufacture a patented article”, or “words which clearly state the consideration for which the note was given”, p. 134.</p> <p>7. Appeal. — Review.—Harmless Error. — Refusal to Btrilce Out Defective Demurrer. — Error, if any, in overruling appellant’s motion to strike out the demurrer to a paragraph of his answer, on the ground that such demurrer did not comply with §344 Burns 1914, Acts 1911 p. 415, requiring a memorandum showing wherein the pleading demurred to is insufficient, was harmless, where the facts were specially found and the finding included all the material facts alleged in such paragraph of answer, p. 135.</p> <p>8. Statutes. — Amendment. —Construction. — When a statute is amended, it is thereafter, and as to all acts subsequently done, to be construed as if the amendment had always been there, p. 136.</p>

<p>1. Pleading. — Complaint.—Sufficiency.—Exhibits.—A complaint to recover on a contract entered into with a manufacturing corporation to procure for it a suitable factory location and franchise for an electric light and power plant, was not insufficient because the copy of such contract filed as an exhibit did not also show the contract and proposal between defendant and a certain commercial club, which, though mentioned in the contract with plaintiff, formed no part of plaintiff’s contract, p. 139.</p> <p>2. Pleading. — Complaint.—Sufficiency.—A complaint on contract against a corporation is not insufficient on the ground that the contract sued on is ultra vires, where such objection does not appear on the face of the complaint or the exhibit filed therewith, p. 140.-</p> <p>3. Corporations.- — Contracts.;—Ultra Vires Contracts. — In determining whether the contract of a corporation is ultra vires, the court must look to the articles of incorporation and. to the law of the State under which the corporation was created, p. 141.</p> <p>4. Corporations. — Powers.—Limitation of Power. — A corporation has no greater authority or power than that granted by the sovereign power of the State, and while it may not exceed such power, it may on the other hand by its articles of incorporation so limit its purpose and scope as to deprive itself of the full measure of right and power given to it by statute, p. 141.</p> <p>5. Corporations.' — Foreign Corporations. — Powers.- — -Contracts.— Where the statute under which a foreign corporation was created expressly authorized the acquisition of real estate and personal property and the transaction of business by such corporation in other states, and there were no express restrictions on its power to contract in its articles of incorporation, its contract for the procurement of a factory site and franchise in this State was not ultra vires, p. 141.</p> <p>6. Corporations. — Foreign Corporations. — Power to Contract.— Articles of Incorporation. — Articles of incorporation of a foreign corporation designating its location and place of business in the state where it was incorporated and defining its purpose as that of manufacturing gas and electricity to be used by it in manufacturing and selling at wholesale and retail articles of pressed steel and other materials to the business world, and to be used in procuring, furnishing and selling gas and electric power, etc., to the community of its designated place of business, were not expressly restrictive of the corporation's power to purchase real estate for an electric light or power plant in this State, or to procure a franchise for such plant, p. 142.</p> <p>7. Corporations. — Contracts.—Ultra Vires Contracts. — The courts look with disfavor on the defense of ultra vires interposed by a corporation to avoid an obligation otherwise legal and equitable; hence where a foreign corporation contracted with plaintiff to procure for it a factory site and franchise in this State, and accepted and retained the fruit of plaintiff’s labor, it could not avoid payment for plaintiff’s services on the ground that the contract was ultra vires, in the absence of any express restrictions on its power to contract, or of any conditions of public policy requiring the court to look with favor on such defense, p. 143.</p>

<p>Prom Superior Court of Marion County (83,234); Charles J. Orbison, Judge.</p> <p>Action by Ronald R. Cbriss against the Lake Erie and "Western Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

From Tippecanoe Circuit Court; Bichará P. DeHart, Judge. Action by Rachael Dunk on a claim for services against the estate of David Yost, deceased. From a judgment for claimant, Charles W. Yost, administrator, appeals. Affirmed.

<p>Prom Pike Circuit Court; John L. Bretz, Judge.</p> <p>Aetiou by George English against Alice English. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Fountain Circuit Court; I. E. Schoonover, Judge.</p> <p>Action by Edna M. Ristine against Alice Teegarden and another. Prom a judgment for plaintiff, the defendants appeal.</p>

Prom Jay Circuit Court; Charles E. Sturgis, Judge. Action by the Indianapolis Mortar and Puel Company against the Ames Iron Works and others. Prom a judgment for plaintiff, the defendant City of Portland appeals.

<p>1. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency.- — -Assumption of Risk. — A complaint by a railroad switch-man for injuries sustained while in the performance of his duties, alleging that it was the custom of defendant to block the frogs in its switch yard, which was known to plaintiff and relied upon by him, that in obedience to an order of the yard foreman to close the knuckle on a standing car, plaintiff stepped upon the track at the end of said car, which was the usual and customary way in proceeding to obey such order, and that in so doing he stepped into a frog which defendant had negligently failed to block, whereby his foot was caught and held until he was struck and injured by approaching cars, ánd that plaintiff had no knowledge that such frog was not blocked, nor of its defective and dangerous condition, was not insufficient as showing that the cáuse of the injury was one of the ordinary risks incident to plaintiff’s employment, and assumed by him, or as showing that plaintiff was guilty of contributory negligence, p. 178.</p> <p>2. Trial. — Verdict.—Answers to Interrogatories. — In determining the sufficiency of the jury’s answers to interrogatories to overcome the general verdict, the court will consider only the general verdict, the interrogatories and answers and the pleadings, p. 181.</p> <p>3. Trial. — Verdict.—Answers to Interrogatories. — All reasonable presumptions are indulged in favor of a general verdict, which finds every material fact in favor of the prevailing party, and nothing is presumed in favor of the jury’s answers to interrogatories, though they are to be reasonably construed, p. 181.</p> <p>4. Trial. — Verdict.—Answers to Interrogatories. — Where the apparent conflict between the general verdict and the answers to interrogatories may be explained and removed by any possible evidence admissible under the issues, or the answers are contradictory of each other, a motion for judgment on the answers should be overruled; but if such answers show a failure to prove a fact essential to the verdict, or establish a fact which as a matter of law defeats recovery by the one for whom the general verdict was rendered, an irreconcilable conflict is shown which requires a judgment on the answers notwithstanding the verdict, p. 181.</p> <p>5. Master and Servant. — Injuries to Servant. — Assumption of Rislc. — Answers to Interrogatories. — Where the complaint alleged that it was defendant’s custom to block the frogs in its switch yard, and that, unaware of defendant’s negligence in failing to block the particular frog plaintiff, a switchman, pursuant to an order to close the knuckle on a standing car, and in accordance with the usual and necessary practice in carrying out such an order, stepped upon the track at the end of the car, and that in so doing his foot was caught and held in the frog, whereby he was struck by approaching cars, answers by the jury to interrogatories showing that an order was given plaintiff to arrange the coupling apparatus so that it would not couple when the car was “bumped” by some approaching cars, that there was an arrangement whereby the coupling pin could have been raised so the car would not have coupled when bumped, which could have been operated without going upon the track, and that plaintiff could have seen the frog and its condition, had he looked, and that about one-half the frogs in defendant’s yards were blocked, while the others were not, etc., were not sufficient to overcome a general verdict for plaintiff, as showing that plaintiff assumed the risk which caused his injury, p. 181.</p> <p>6. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Ansioers to Interrogatories. — In an action by a railroad switchman for injuries caused by his foot being caught in a frog, whereby he was struck by approaching cars, where the complaint alleged that plaintiff went upon the track pursuant to an order to close the knuckle on a standing car so that it would not couple when bumped by the approaching cars, the fact that the jury’s answers to interrogatories showed the existence of a device whereby the coupling pin could have been raised without going upon the track, so that the car would not couple when bumped, does not show that plaintiff was guilty of contributory negligence in not using such device, in the absence of a showing that it was not necessary to go on the track t'o close the knuckle as alleged, and in view of the fact that evidence was admissible to show that there was some practical reason for closing the knuckle rather than raising the coupling pin, and to show that the location and speed of the approaching ears were such as to make the way chosen reasonably safe and proper, but for the unblocked condition of the frog. p. 184.</p> <p>7. Master and Servant. — Railroads. — Negligence. —Failure to Bloch Frogs. — While railroad companies are not in all cases guilty of actionable negligence in failing to block frogs, there are cases in which they may be liable for such failure, p. 186.</p> <p>8. Master and Servant. — Injuries to Servant. — Assumption of Rish. —Contributory Negligence. — Evidence. — Jury Question. — Where the evidence is susceptible to different reasonable inferences as to whether there was an assumption of risk or contributory negligence, the question is for the jury under proper instructions; hence, where the evidence was sufficient to warrant the inference that a railroad switchman, who was injured by his foot being caught in an unblocked frog, had not assumed the risk and was free from contributory negligence, the verdict of the jury was conclusive, p. 186.</p> <p>9i Master and Servant. — Injuries to Servant. — Railroad Employe. —Evidence.—Communication to Railroad Surgeon. — Admissibility. —In a railroad switchman’s action for personal injuries, a statement relative to the time, place and manner of the injury, signed by plaintiff and certified by the attending surgeons, who were in the employ of the railroad company, and whose report to the company was attached thereto, was properly excluded on the objection of plaintiff that it was a confidential communication. p. 188.</p> <p>10. Master and Servant. — Injuries to Servant. — Railroad Employe. —Communication to Railroad Surgeon. — Admissibility. — While some latitude must necessarily be given to a trial court in determining whether the statement of one injured by a railroad accident, made under circumstances rendering it a statement by both the injured party and the attending surgeon, comes within the class of privileged communications, such statements, made to or by physicians employed by a railroad company while attending an injured party shortly after his injury, are to be closely scrutinized in determining the question of their admissibility. p. 189.</p>

<p>1. Master and Servant. — Injuries to Servant. — Complaint.—General and Specific Allegations. — A complaint in a servant’s action for injuries caused by a pneumatic riveter starting up after the air had been cut off at the valve, alleging that plaintiff was inexperienced, that defendant did not instruct him that after the air had been shut off at the valve it was necessary to exhaust the compressed air remaining in the hose between the valve and the machine, and that after the valve had been shut off the machine was suddenly put in motion, causing plaintiff’s injury, and also alleging generally that the negligence charged was the proximate cause of the injury, was not insufficient on demurrer as showing that the negligence charged was not the proximate cause, since the specific charges were not inconsistent with the general allegation that the negligence charged was the proximate cause, even though they showed that the machine was put in motion by an intervening agency, in view of the fact that it did not appear to have been an independent intervening agency, or that it was one which, in the exercise of reasonable foresight and prudence, was not to be expected to intervene, pp. 192,195, 196.</p> <p>2. Pleading. — General and Special Averments. — The general averments in a pleading are superseded by the special averments therein in so far as the latter are inconsistent with the former, p. 195.</p> <p>3. Negligence. — Interveiving Agency. — Liability of Original Tortfeasor. — An independent intervening agency does not break the chain of causation between the negligence charged and the injury claimed to have resulted therefrom, if the intervention of some such agency so as to produce injury ought to have been expected in the light of ordinary experiences, and will not relieve the original wrongdoer from the consequences directly resulting from his original negligence operating in connection with such intervening agency, even though the original negligence could not of itself have caused the injury, p. 195.</p> <p>4. Master and Servant. — Injuries to Servant. — Proximate Cause. —Verdict.—Answers to Interrogatories. — Where plaintiff alleged that he was injured by the sudden starting of a pneumatic riveting machine after the compressed air valve had been closed, that the machine was caused to start by reason of the air remaining in the tube between the valve and the machine, and charging that because of his inexperience, and defendant’s failure to instruct him, he did not know that it was necessary to exhaust the air remaining in the tube after the valve was closed, and that the negligence charged was the proximate cause of the injury, answers to interrogatories showing that the machine would not operate unless the lever was moved, that it was moved on the occasion of the injury, but not by defendant, etc., could not overcome the general verdict as showing the chain of causation was broken by an intervening agency which became the sole proximate cause, since the evidence may have disclosed the agency which moved the lever and that it was of such character as not to constitute an independent intervening cause, p. 196.</p> <p>5. Trial. — Verdict.—Answers to Interrogatories. — Answers to interrogatories will not overthrow the general verdict if reconcilable therewith by any evidence admissible under the issues, p. 197.</p> <p>6. Master and Servant. — Injuries to Servant. — Verdict.—Answers to Interrogatories. — In an action for injuries to an employe caused by a pneumatic riveter being started by the unexhausted air remaining in the hose after the valve«had been closed, where a verdict for plaintiff amounted to a finding that plaintiff did not assume the risk incident to the air remaining in the tube, and that the master owed him a duty to warn him of the danger, which it negligently failed to do, the jury’s answer to an interrogatory, made under circumstances making it a finding of an ultimate fact and not a conclusion of law, to the effect that if plaintiff had exercised the care for his own safety reasonably to be expected from one of his age and experience, he could have discovered before the injury that the air remaining in the tube when the valve was closed had force enough to injure him, showed that plaintiff assumed the risk and that defendant was not negligent in failing to warn him, and hence was in irreconcilable conflict with the general verdict, pp. 197,201.</p> <p>7. Master and Servant. — Assumption of Bislo. — A servant assumes the risk of all dangerous conditions which arise in the course of his employment and of which he has notice, even though such conditions are the result of the master’s negligence, and he will be deemed to have constructive notice of all such conditions as are discoverable by him in the exercise of ordinary care. p. 197.</p> <p>8. Master and Servant. — Injuries to Servant. — Answers to Interrogatories. — In an action for injuries to a servant by the sudden starting of a pneumatic riveter, due to compressed air remaining in the tube after the valve was closed, the jury’s answer to an interrogatory that if plaintiff had exercised the care for his own safety reasonably to be expected from one of his age and experience, he could have discovered before the injury that the air remaining in the tube when the valve was closed had force enough to injure him, accompanied by other answers showing facts justifying such inference, was the finding of an ultimate fact as distinguished from a conclusion of law. p. 198.</p> <p>9. TitrAi. — Answers to Interrogatories. — Inference of Ultimate Foots. — A jury may find an. ultimate fact as the result of an inference from other facts, provided the primary facts are stated in the findings and are such that minds of equal intelligence and fairness might honestly differ as to the inference, and such ultimate fact is one that can be inferred without applying legal principles to the primary facts or measuring them by any legal standard, but if such primary facts are susceptible of but one inference, it is the duty of the court to draw such inference, p. 198.</p>

<p>1. Statutes. — Construction.—Intent.—In construing a statute, the court will seek to discover and carry out the legislative intent, and in so doing will look to each and every part of the statute, to the circumstances under which it was enacted, to the old law, if any, upon the subject, to other statutes upon the same or relative subjects, whether in force or repealed, to contemporaneous legislative history, and to the evils to be remedied, p. 215.</p> <p>2. Master and Servant. — Employers Liability Act. — Construction. —Interurban Railroads. — Since the Employers Liability Act (§8017 Burns 1914, Acts 1893 p. 294) declaring that every railroad or other corporation shall be liable for personal injuries suffered by any employe in specified cases, is unconstitutional in so far as it is intended to apply to corporations other than railroad companies, and since, in view of the distinction maintained between railroads and street or interurban railroads throughout legislative and judicial history on the subject, as well as the physical differences in the construction and operation of such roads, street and interurban roads can not be held to be “railroads” within the meaning of the term as used in said act, there can be no liability thereunder against an interurban railroad company, p. 215.</p>

<p>Prom Marion Circuit Court (19,337); Charles Remster, Judge.</p> <p>Action by Emma J. Swailes against Charles L. Henry, receiver for the Indianapolis and Cincinnati Traction Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Owen Circuit Court; James B. Wilson, Judge.</p> <p>Action bj John W. Zenor against James W. Pryor. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Pleading. — Demurrer.—Grounds.—Waiver.—Under §344 Burns 1914, Acts 1911 p. 415, objections to the sufficiency of a complaint are waived, if not pointed out in the memorandum accompanying the demurrer, p. 231.</p> <p>2. Landlobd and Tenant. — Lease.—A lease of real estate is a contract by which, ordinarily the owner divests himself of the possession and use of his property, in favor of the lessee, upon a valid consideration, for a definite term, p.234.</p> <p>3. Pbopektt. — -Personal Property. — Lease.—A lease of real estate for years is personal estate, and passes to the personal representative of the lessee, upon his death intestate, and not to his heirs, p. 234.</p> <p>4. Husband and Wife. — Conveyance Toy Wife. — “IncumbranceA—■ “Conveyance”. — Power to Lease. — A lease is not an “incumbrance” or “conveyance” within §7852 Burns 1914, §5116 R. S. 1881, providing that a married woman shall have no power to incumber or convey her lands, except by deed in which her husband shall join; hence a married woman may execute a valid lease for a greater period than three years without her husband joining therein, p. 235.</p>

<p>1. Principal and Agent. — Contract of Employment. — Amount of Compensation. — Debits and Credits. — Under a contract whereby plaintiff was employed as manager of one of defendant’s chain of stores for one year at a compensation of twenty per cent of the net profits, obtained by deducting the total debits from the total credits, certain discounts to which defendant would have been entitled had it paid for goods within certain times, can not be considered as a part of the total credits in determining the amount due plaintiff, in the absence of evidence to show that the payments were so made or that the discounts were so received. p.244.</p> <p>2. Principal and Agent. — Contract of Employment. — Amount of Compensation. — Debits and Credits. — Under a contract whereby plaintiff was employed as manager of one of defendant’s chain of stores for one year at a compensation of twenty per cent of the net profits, obtained by deducting the total debits from the total credits, defendant was entitled to have one-sixth of a $3,000 bonus paid by defendant to a previous tenant for a six-year lease on the premises occupied by it, as well as a proportionate part of its general office expense, included as debits, in determining the amount of compensation due plaintiff, p. 244.</p> <p>3. Appeal. — Review.—Presumptions in Support of Verdict. — In an action by the manager of one of defendant’s chain of stores to recover his compensation under a contract providing that he should be paid twenty per cent of the net profits, where there was evidence to warrant the jury in excluding certain commission charges, and in deducting certain profits, in arriving at the sum total of expenses of defendant’s general office, the court on appeal will assume, in so far as it is necessary in order that the verdict may be sustained, that such items were so excluded and deducted, p. 246.</p> <p>4. Interest. — Recovery on Contract. — Delay in Payment. — Where there has been long and unreasonable delay in the payment of compensation due for services rendered under a contract, interest may be added thereto at the rate of six per cent per anuum from the time that it was due. p. 246.</p> <p>5. Interest. — Jury Question. — Unreasonable Delay in Payment of Debt. — The determination of what constitutes unreasonable and vexatious delay in the payment of a debt, so as to entitle plaintiff to interest, depends to some extent upon the circumstances of the particular case, and is generally a question of fact for the jury. p. 247.</p> <p>6. Interest. — Unreasonable Delay. — Evidence.—In an action for compensation for services under a contract providing that plaintiff was to have twenty per cent of the net profits of his employer’s business for the year, where there was evidence showing that plaintiff made frequent requests for a statement of the business, which defendant failed to furnish, and that defendant shortly before the action was commenced denied that anything was due plaintiff, an instruction authorizing the jury to award interest, if it found that there was unreasonable delay in the payment of any amount due, was warranted, p. 247.</p> <p>7. Work and Labor. — Action on Quantum Meruit. — Recovery of Interest. — In an employe’s action to recover compensation for services rendered in the management of a store, the fact that the action was in part based on the quantum meruit did not exclude his right to recover interest on the amount found due. p. 247.</p>

<p>1. Parent and Child. — Torts of Child. — Liability of Parent.— Knotoledge of Fact. — Where minor children who were under the custody and control of their father, stretched a rope across a public highway with his knowledge and consent to be used as a swing, he was liable to a traveler who rode a bicycle against such rope and was thereby thrown to the ground and injured, but his liability was upon the ground of his own negligence in permitting the children to do an act to the damage of the plaintiff, rather than upon the ground that the relation of parent and child existed, p. 250.</p> <p>2. Highways. — Adverse User. — Consent of Adjoining Owner.— Under §7663 Burns 1914, Acts 1905 p. 521, twenty years’ continuous use by the general public will make a road a highway, regardless of whether such use is with the consent or over the objection of the adjoining landowner, or whether such owner intended to dedicate it to the public as a highway, p. 252.</p> <p>8. Highways. — Existence.—Extent of Use. — Failure of Officials to Improve. — A way may be a public highway, although it is not of great length and terminates on private property, and its status as a public highway is affected neither by the fact that it is rarely used, nor by the failure of the highway officials to work or improve it. p. 252.</p> <p>4. Highways.- — Existence.—Evidence.—In an action for injuries caused by coming in contact with a rope that had been stretched across a way by defendant’s minor children, where there was evidence from which the jury could have found either that the way was a public highway, or that it was not, the evidence was sufficient to support a verdict for plaintiff as against defendant’s contention that it was merely a private way. p. 252.</p> <p>5. Appeal. — Review.—Instructions.—Determination of Damages.— Where facts are allowed to go in evidence which furnish an incorrect basis for the assessment of damages, an instruction which directs the jury to determine the amount of recovery from all the facts or from all the evidence is erroneous; so that in a personal injury case, where evidence was admitted showing that plaintiff was deaf and dumb, that his mother was a widow living on rented property, that defendant owned a farm, that he had known of the condition which produced the injury for more than two weeks prior thereto, that he had failed to call on plaintiff or his mother after the injury, and that he had not given them any money, such an instruction constituted reversible error in the absence of an affirmative showing that it was harmless, although the amount of the verdict was such that, in the absence of such instruction, the court could not have said that it was excessive, p. 253.</p> <p>6. Appeal. — Review.—Refusal of Instructions. — In an action for personal injuries caused by coming in contact with a rope stretched across a way, where the question of whether such way was a public highway was involved, a requested instruction that a place used by the public over which to travel at will, but by the mere license or permission of the owner of the land for his own convenience or the convenience and accommodation of others, is not a public highway, etc., was properly refused, since it was erroneous in failing to include any limitation upon the indiscriminate use of the way by the public, p. 255.</p>

<p>1. Trial. — Findings.—Effect.—Where the facts are specially found, a failure to find a fact essential to plaintiff’s right of recovery is equivalent to a finding against the existence of such fact. p. 258.</p> <p>2. Insurance. — Theft Insurance. — Liability.—“Robbery".—“Theft”. —“Pilferage”.—Under a policy of insurance on an automobile against loss or damage by “theft, robbery or pilferage”, plaintiff can not recover on a finding of facts showing that his automobile was wrongfully taken for the purpose of a “joy-ride”, but not disclosing any intention to steal it, since an intent to steal is a requisite element of either a “theft”, “robbery” or “pilferage”, and such words in an insurance policy are to be given their ordinary significance, p. 258.</p>

Prom Porter Circuit Court; William Johnson, Special Judge. Action by Jobn Wesley Reed and another against the Adams Steel and Wire Works and another. Prom a judgment for defendants, the plaintiffs appeal.

<p>1. Railroads. — Discharge of Employes. — Action for Wages. — Recovery of Penalty. — In an action for wages due a railroad employe, a recovery of a penalty and attorney fees can not be had, since there is no valid statute authorizing such recovery, and the same may not be had at common law.</p>

<p>Prom Superior Court o£ Allen County; James H. Bose, Special Judge.</p> <p>Action by Charles Lochner and another against Egbert C. Olds and another. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>From Superior Court'of Marion County (82,877); Clarence E. Weir, Judge.</p> <p>Action by Prank N. Caine against Robert N. Buchanan. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by Richard L. Bailey against the Board of Commissioners of the County of Sullivan. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Marion Circuit Court (19,915) ; Charles Remster, Judge.</p> <p>Action by Philip Plummer against the Belt Railroad and Stock Yards Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by John C. Miller against David A. Coulter and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Appeal. — Record. — Instructions.—Failure to Show Filing.— Section 561 Burns 1914, Acts 1907 p. 652, relating to making instructions a part of the record without a bill of exceptions, is strictly construed, and requires that all instructions, whether given or refused, shall be filed with the clerk of the court at the close of the instruction of the jury; hence, where the order book entry shows that the minutes made on the instructions by the trial court were filed and ordered made a part of the record, but does not disclose that the instructions themselves were filed, the instructions are not in the record and no question thereon is presented, p. 303.</p> <p>2. Appeal. — Record.—Failure to Show Filing of Instructions.— Correction Nunc Pro Tunc. — Where the record on appeal fails to disclose that instructions were filed so as to be made a part thereof without a bill of exceptions, and such failure is merely the result of mistake or inadvertence of the clerk in making the order book entry, the record may be corrected nunc pro tunc. P- 304.</p>

<p>1. Appeal. — Review. — Verdict. — Answers to Interrogatories. — Where the jury’s answers to interrogatories conform to the evidence and are not in conflict with the general verdict, such verdict, if sustained by some evidence is conclusive, p. 307.</p> <p>2. Railroads. — Crossing Accidents. — Yerdict.—Answers to Interrogatories. — Where, in an action for injuries sustained in a railroad crossing accident, a verdict for plaintiff included a finding that defendant’s car was run at a dangerous and unusual rate of speed, and that plaintiff was in the exercise of due care, and the evidence upon the questions of negligence and contributory negligence was of such character that reasonable men might differ as to the inferences to be drawn therefrom, the question was for the jury, and its verdict, not being overcome by anything contained in the answers to interrogatories, must stand, p. 307.</p> <p>3. Negligence. — Contributory NegUgence. — Instructions.—An instruction telling each juror to picture himself in the place of plaintiff, under the circumstances disclosed by the evidence, himself using the care which the evidence showed the plaintiff to have used, and then determine whether such conduct was the conduct of a reasonably prudent man, gave to the jury an erroneous standard of comparison, since the proper method of determining the question of contributory negligence is to consider what a reasonably prudent man would have done under the circumstances, and not what individual jurors might themselves have done. pp. 309, 310.</p> <p>4. Trial. — Instructions.—'Weight of Evidence. — A trial court may not instruct the jury as to the manner in which it shall consider the evidence, or what weight it shall give to it, or in any manner invade the jury’s province in the consideration of the facts before it. p. 310.</p>

From Gibson Circuit Court; Herdis F. Clements, Judge. Action by Landon Kell, as administrator of the estate of Pernal Kell, deceased, against the Southern Railway Company and another. From a judgment for defendant, the plaintiff appeals.

<p>1. Contracts. — Receipts.—Deposits of Money for Safe-lceepmg.— A receipt for money left with another for safe-keeping imports an obligation to pay on reasonable demand, and is a written agreement enforceable at law. p. 322.</p> <p>2. Pleading. — Complaint.—Exhibits.—Where a complaint is based upon a written instrument filed as an exhibit or set out in the complaint, the terms of such instrument will control any averment of the complaint in conflict therewith, p. 323.</p> <p>3. Banks and Banking.— Deposits.— Recovery.— Action.— Complamt. — Where the complaint in an action against a bank to recover money left with an employe of the bank, proceeded on the theory that the money was deposited with the bank and sought recovery upon an implied agreement to return the money on demand, the general averment that the money was deposited in defendant bank was sufficient and was not overcome by the terms of a receipt set out stating that the money was received by defendant’s employe personally for safe-keeping, when considered with other allegations showing the manner and circumstances of its execution, that plaintiff was unable to speak or read English and that he was informed by defendant’s employe that the receipt was that of the bank. p. 323.</p> <p>4. Pleading. — Complaint.—General and Specific Allegations. — The general allegations of a complaint will control unless they are shown to be untrue by the specific allegations, p. 324.</p> <p>5. Evidence. — Parol Evidence. — Varying Written Contracts. — The rule that a written contract can not be varied by parol evidence applies- only to the parties to the contract and does not preclude parol proof that money belonging to plaintiff was deposited by him in defendant bank through one of its employes as its agent, notwithstanding the receipt executed to plaintiff was the personal receipt of such employe, p. 324.</p> <p>6. Banks and Banking. — Deposits.—Action to Recover. — Evidence. —Sufficiency.—In an action against a bank to recover money deposited. by plaintiff, evidence showing that plaintiff could neither speak nor read English, .that he took the money to defendant’s banking room during banking hours and delivered it to defendant’s employe who was sitting at a desk near a window inside that part of the bank which is screened from the public, that such employe was engaged as interpreter and had charge of the foreign exchange department of the bank, that he informed plaintiff that his money was safe and that the bank was good for it, was sufficient to sustain a finding for plaintiff although the receipt given plaintiff was the personal receipt of such employe as for money left with him for safe-keeping, p.326.</p> <p>7. Banks and Banking. — Deposits.—Acts of Agents. — Any agent of a bank who receives a deposit from a customer within the bank during banking hours, binds the bank, unless the depositor had notice of his lack of power, and the deposit is completed when it passes from the possession of the depositor into the possession of the agent, p. 327.</p> <p>8. Banks and Banking. — Deposits.—Acts of Agents. — Liability.— A bank, by placing an employe in a position of apparent or ostensible authority, accredits him to the public, and if he violates his instructions and loss ensues to a customer who deals with him in ignorance of his real authority, it must be borne by the bank, even though the bank was without fault, p. 327.</p> <p>9. Estoppel. — Money Wrongfully Obtained. — Liability. — ’Where one of two innocent parties must suffer loss through the wrongful act of a third person in misappropriating money, the loss must fall upon the one who placed such third party in a position by means of which he was enabled to commit the wrong which occasioned the loss. p. 328.</p> <p>10. Banks and Banking. — Deposits.—Liability.—Negligence of Depositor. — In an action against a bank to recover money deposited with an employe of the bank who receipted personally for same, where it appeared that neither plaintiff nor any member of his family could read English, that the position of such employe was such as to inspire confidence on the part of plaintiff, and that his statements to plaintiff were such as to relieve all anxiety on the part of the latter, it can not be said that plaintiff was negligent in failing to have such receipt read and interpreted by some other person, so as to preclude recovery, p. 328.</p> <p>11* Appeal — Review.—Harmless Error. — Order of Proof. — Error in admitting in evidence the declarations of an agent without proof' of the agency is harmless where the existence of the agency is established afterwards, p. 328.</p>

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by The Mutual Trust and Deposit Company, as guardian of Carl F. Martin, against the Travelers Protective Association of America. From a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Huntington Circuit Court; William D. Earner, Special Judge.</p> <p>Action by Albert B. Johnson against the Citizens State Bank and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>1. Husband and Wipe. — Transactions Betioeen. — Separate Property of Wife. — Presumptions.—Transactions between husband and wife are presumably influenced by the peculiar relations of trust and confidence existing between them, and where the husband has taken possession and has assumed the management and control of the money and other property of the wife, it will be presumed that the same continues to be her separate property and that his holding is that of a trustee for her use and benefit, requiring him to account unless he is able to overcome such presumption by proof showing a gift to him or that ho acquired the property through some transaction which was in all respects fair and equitable, p. 355.</p> <p>2. Husband and Wipe. —■ Transactions Between. — Investment of Wife’s Money. — Liability of Husband. — Evidence.—In an administrator’s action against the husband of the decedent to recover money alleged to have been obtained from decedent under circumstances making him liable as a trustee, evidence showing that such money was invested by defendant, together with money of his own, in a home for himself and decedent, and that the title to the same was taken in himself and decedent as tenants by entireties with the consent of decedent after having had the effect of such title explained to her, can not be said to show a liability against defendant, and was sufficient to sustain a finding in his favor, p. 355.</p> <p>3. Appeal. — Revieio.—Admission of Evidence. — In an administrator’s action against the husband of decedent to recover money alleged to have been obtained from decedent and invested in real estate under circumstances making him liable as a trustee, the court did not err in admitting the testimony of the agent of certain heirs from whom the land was purchased, to the effect that decedent fully understood the transaction and was not overreached, since no question of the contract with such heirs was involved so as to render the witness incompetent under §523 Burns 1914, §500 B. S. 1881. p. 356.</p>

Prom Superior Court of Marion County (86,335) ; Charles J. Orbison, Judge. Action by Kaestner and Hecbt Company against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company and others. Prom the judgment against it on the issues tendered by its cross-complaint for the foreclosure of a mechanic’s lien, the Carson Payson Company appeals.

<p>1. Accokd and Satisfaction. — Compromise and Settlement. — Part Payment Co?iditioned on Acceptance as Payment in Pull. — Whore there was a balance of $27.50 due as rent from the lessee of an engine, and the lessor claimed an additional sum of $112.50 for repairs to the engine, and the lessee denying liability for such repairs, and in good faith asserting a set-off against the balance due for rent because of delays and loss occasioned by the defective condition of the engine, wrote to the lessor, enclosing a check for $25 “to settle and compromise any and all differences”, which he asked to be returned unless accepted in full settlement of lessor’s claim, the retention of the check and collection of the proceeds constituted an accord and satisfaction, pp. 3G3, 365, 366.</p> <p>2. Accokd and Satisfaction. — Compromise and Settlement. — Part Payment. — Disputed or Unliquidated Claims. — The fact that one claiming that a part payment constituted a full satisfaction of a disputed claim was in error in his construction of the contract out of which the dispute arose could have no bearing on the question of whether there was an accord and satisfaction, unless it appears that he was not acting in good faith, pp. 365, 366.</p> <p>3. Accokd and Satisfaction. — Part Payment.- — -Liquidated Demands. — Ordinarily a certain or liquidated demand can not be satisfied by the payment of a sum of money smaller than its amount, p. 365.</p> <p>4. Accokd and Satisfaction. — Compromise and Settlement. — Part Payment. — Disputed or Unliquidated Claims. — Where one asserts an unliquidated claim, or claim which the other disputes, or where each asserts against the other unliquidated or disputed claims,.the demand of the one may be satisfied by his acceptance, in full payment and compromise, of an amount smaller than that claimed by him to be due. p. 365.</p> <p>5. Accokd and Satisfaction. — Part Payment. — Liquidated Demands. — Where a check for a less amount than the claim is given and accepted as payment of a liquidated claim, there is an accord and satisfaction of the whole claim, p. 367.</p>

<p>Prom Hamilton Circuit Court, James M. Purvis, Special Judge.</p> <p>Action between The Noblesville Business Men’s Assoeiatipn and The Capital Furniture Manufacturing Company. Prom a judgment for the latter, the former appeals.</p>

<p>1. Appeal. — Verdict.—Conclusiveness.—The trial court has some discretion to overrule a verdict because it is contrary to the weight of the evidence, but the court on apipeal can only determine if there is sufficient evidence to support the verdict, and is not permitted to weigh it. p. 374.</p> <p>2. Fraud. — Fraudulent Representations. — Evidence.—Sufficiency.— In an action for fraudulent representations as to certain hogs sold at public sale, evidence that defendant represented the hogs to be sound and all right, together with' evidence showing that many of the hogs showed signs of sickness on the day of sale and died of cholera so soon after being removed by the purchasers as to give rise to the conclusion that they were infected with cholera the day of the sale, and showing that plaintiff purchased relying upon the positive representations of defendant, was sufficient, in view of all the facts and circumstances shown, to sustain the verdict for plaintiff as against the contention that fraud had not been proved, although such verdict was against the weight of the evidence, p. 375.</p> <p>3. Fraud. — Actionable Fraud. — What Constitutes. — It is not always essential in proving fraud to show that a party making false representations knew that they were false when made, but it is sufficient if it is shown that he made the representations as being true of his own knowledge, in the nature of warranties of material facts, about which actual knowledge was obtainable in the exercise of reasonable care, and not as a mere expression of opinion or belief, and that such representations were in fact false, p. 377.</p> <p>4. Fraud. — Punitive Damages. — Fraudulent Representations.— Where representations, which were in fact false, were made with such disregard of facts ascertainable in the use of due care as to amount to fraudulent intent in law, punitive damages could be assessed, though actual intent to deceive was not shown, p. 377.</p> <p>5. Appeal. — Review.—Instructions.—In an action for fraudulent representations inducing a purchase of hogs infected with cholera, instructions withdrawing from the jury evidence that other hogs not sold by defendant became sick shortly after being with or in close proximity to hogs sold by defendant at the same time plaintiff purchased the hogs involved, and defining the measure of damages if the jury found for plaintiff upon a paragraph of complaint declaring for hogs infected by those purchased from defendant, were not confusing, in view of all the instructions given, p. 378.</p> <p>6. Fkacjd. — Fraudulent Representations. — Damages.—In an action for fraudulent representations inducing a purchase of hogs infected with cholera, and to recover for the loss of other hogs infected by coming in close proximity to the hogs iiurchased, where the amount paid for the hogs purchased was $107.80, and the value of the other hogs was $85, a verdict awarding $120 was not excessive, especially in view of the fact that punitive damages were authorized, p. 378.</p> <p>7. Evidence.- — Value.—Relevancy.—Loss of Personal Property.— Evidence of plaintiff as to the value of hogs lost because of cholera infection was not objectionable because the questions propounded to him did not specifically mention the time and place of the value, where the answers could only be understood as meaning the value at the time and place that they became sick, p. 379.</p> <p>8. Evidence.- — Opinion Evidence. — Competency of Witnesses. — A witness need not be an expert in order to express an opinion about matters with which he is familiar; hence witnesses shown to have been farmers of lopg experience in raising hogs, and to be familiar with the symptoms of cholera, were sufficiently qualified to state that in their opinion certain hogs were afflicted with cholera, and the fact that they were not veterinary surgeons would go only to the weight of their evidence, p. 379.</p> <p>9. Evidence. — Opinion Evidence. — Hypothetical Questions. — A hypothetical question may include facts of which there is some evidence, or which may fairly be inferred from the evidence, p. 379.</p> <p>10. Fkatid. — Fraudulent Representations. — Evidence.—Admissibility. — In an action for fraudulent representations inducing a purchase of hogs at a public sale, evidence that defendant did not demand payment from, or sue, another purchaser of hogs at such sale who refused to take them away because they would not eat, was admissible, though of slight probative value, p. 379.</p> <p>11. ITkaud. — Fraudulent Representations. — Evidence.—Admissibility. — In an action for fraudulent representations inducing the purchase of hogs infected with cholera, the admission of the testimony of a witness that he had seen two dead hogs on defendant’s farm abou.t two months before the sale was not erroneous, p. 380.</p> <p>12. Appeal. — Review.—Harmless Error. — Admission of Evidence. —In an action for fraudulent representations inducing a purchase ■of hogs infected with cholera, the erroneous admission of evidence as to hogs purchased by third persons was harmless, where there was proper evidence to support the verdict and the damages awarded were well within such proper evidence, and the court had instructed the jury that such erroneous evidence was not to-be considered, p. 380.</p> <p>13. Fbaud. — Fraudulent Representations. — Evidence.—Admissibility. — In an action for fraudulent representations inducing a purchase at public sale of hogs infected with cholera, sufficient similarity of conditions was shown to warrant the admission of evidence that hogs bought by several witnesses became sick and died shortly after being removed from defendant’s farm, where it appeared that the purchases were made on the same farm at the same sale, and that the hogs were at the time of the sale penned near together, and became sick so soon after the sale as to indicate that they were infected at the time of the sale, p-. 380.</p>

<p>1. Appeal. — Time for Perfecting. — Judgment Preceding Ruling on Motion for New Trial. — Where the entry of judgment precedes the ruling on the motion for new trial, the latter action of the court marks the beginning of the time limited for appeal, p. 383.</p> <p>2. Appeal. — Term Time Appeal. — Approval of Bond. — Where a term time appeal was attempted under §679 Burns 1914, §637 R. S. 1881, but it appears that the court did not approve the bond, or name or approve the surety thereon, either at the time of overruling the motion for new trial, or at any time within the term at which, such action was had, such appeal was not properly perfected as a term time appeal, p. 383.</p> <p>3. Appeax. — Failure to Perfect. — Notice.—Dismissal.—Where an appeal, not properly perfected as a term time appeal, has been on the docket for more than ninety days, without any appearance by appellee, and without the giving of notice so as to perfect it as a vacation appeal under §681 Bums 1914, §640 R. S. 1881, a dismissal thereof is required, p. 383.</p>

From Franklin Circuit Court; N. S. Givan, Special Judge. Proceedings in the matter of tke receivership of the Brookville Carriage Company, in which Abe Bossert filed exceptions to the partial report of George A. Geis, Receiver. From a judgment against him on demurrer to the exceptions, the exceptor appeals.

<p>1. Appeal. — Sufficiency of Complaint. — Assignment of Errors.— Where the sufficiency of a complaint is attacked for the first time on appeal, the assignment of error must be predicated on the complaint as an entirety, and, if any paragraph is good, the assignment must fail; hence no question is presented by assignments questioning the sufficiency of each paragraph of a conrplaint separately, p. 399.</p> <p>2. Pleading. — Complaint.—Sufficiency.—Initial Attach on Appeal. —If a complaint states facts sufficient to bar another action for the same cause, it is sufficient as against an attack made for the first time on appeal, p. 399.</p> <p>3. Appeal. — Assignment of Errors. — Waiver.—Briefs.—No question is presented by assignment of error that is not urged in appellant’s brief, p. 400.</p> <p>4. Appeal. — Review.—Record.—The court must assume, as against all claims or statements outside thereof that the record itself speaks the truth, and will look to the entire record to ascertain the facts, p. 401.</p> <p>5. Appeal. — Record.—Theory of Trial. — Invited Error. — Although the record' contains an entry of the withdrawal of a certain paragraph of complaint, there can be no reversal on the theory that the verdict, being based thereon, was not founded upon any pleading in the case, where it appears from the whole record that the defendant filed an answer to such paragraph, that the cause was tried upon the theory that such paragraph had never been withdrawn, and that defendant never attempted to correct the assumption, if erroneous, that the same had not been withdrawn, p. 402.</p> <p>6. Master and Servant. — Employment.—Contract for Year. — Implied Continuance. — Where, after the expiration of a definite contract of employment for one year, the employe continues in the service without any new arrangement or contract, it is presumed that the employment is for another year under the terms of the original contract, p. 404.</p> <p>7. Master and Servant. — Contract of Employment. — Reneioal.— Discharge. — Grounds.—Where during the term of a contract of employment, the employer discovered acts of duplicity on the part of the employe, he was not required to inform the employe thereof, but, having permitted a continuation of employment after the term, so as to operate as a renewal of the contract, the employer could not terminate the renewal 'term by discharging the employe because of such duplicity, although the same would have justified the employer’s refusal to renew the contract, p. 406.</p>

Prom Marion Circuit Court (18,010) ; Charles Bemster, Judge. Action by William D. Huber and others, as Trustees of the United Brotherhood of Carpenters and Joiners of America, against the Illinois Surety Company and another. Prom a judgment for plaintiffs, the defendant named appeals.

From Johnson Circuit Court; Wm. E. Deupree, Judge. Action between John W. Henderson and others and the Country Publishing Company and another. From a judgment for the latter, the former appeal.

From Posey Circuit Court; Serdis F. Clements, Judge. Action by George Vanada and others against the Evansville and Eastern Electric Railway and others. From a judgment for plaintiffs, the defendants appeal.

<p>1. Fraud. — What Constitutes. — Proof.—Fraud must be predicated on material existing facts and be alleged and proven, but it need not be established by any particular hind or class of evidence, p. 427.</p> <p>2. Fraud.— D etermimng Existence.— Conduct.— Words.— Conduct as well as words, and the particular facts and circumstances of each ease, must be carefully weighed and considered along with the relation and situation of the parties to a transaction in determining whether fraud was perpetrated, p. 427.</p> <p>3. Exchange of Property. — Fraud.—Duty to Disclose Information. — Where the parties to an alleged fraudulent exchange of property had been close personal friends for many years, under circumstances inspiring great confidence on the part of plaintiff, who was a widow, and she was not in the same relative position in the transaction with defendants, who were aware of her situation and the confidence imposed in them by her, defendants were under a duty to act in the utmost good faith and to give to plaintiff all the information possessed by them which might in any material way influence her in the transaction, p. 428.</p> <p>4. Exchange of Pkoeektt. — Fraud.—Matter of Opinion. — Representations made by defendants in an exchange of property with plaintiff were not mere trade talk, but constituted actionable fraud, where defendants, knowing of plaintiff’s confidence in them and that she had a general knowledge of and was favorably impressed with an addition to a distant city, procured certain lots therein which were undesirable and could be purchased at a low price, and then informed the plaintiff that the lots were desirable and that they were worth $3,100, which sum defendants claimed to have paid for them, thereby inducing plaintiff to exchange her property for such lots. p. 428.</p> <p>5. Husband and Wife. — Fraud.—Liability of Husband. — Where a husband aided his wife in arranging a fraudulent exchange of property with plaintiff, and participated in the profits of the transaction, so as to make it legally impossible to separate either from the essential and controlling facts of the case, the court was warranted in rendering judgment for damages against both, p. 430.</p>

<p>Prom ’Wayne Circuit Court; Henry G. Fox, Judge.</p> <p>Action by Otto E. Hoffman against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

From Olay •Circuit Court; John M. Bawley, Judge. Action by George Frischman, administrator of the estate of Mary Frischman, deceased, against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Nuisance. — Private Nuisance. — Presumptions. — Damages.— Where a nuisance is of such a nature as to be abatable when declared unlawful, the court will not presume its continuance, and will award only such damages as accrued prior to the bringing of the action, p. 461.</p> <p>2. Nuisance. — Private Nuisance. — Damages.—Where the complaint charged a nuisance in the maintenance of certain stockyards, and the defendant was enjoined from continuing its pens in the unsanitary condition described in the complaint, but was not ordered to remove such pens, the awarding of damages as for a permanent nuisance was justified, in view of conditions described in the complaint which could not be abated except by removal of the pens. p. 461.</p> <p>8. Appeal. — Review.—Theory.—Where a complaint was sufficient to authorize a recovery of damages as for a nuisance of a permanent character, and was tried on that theory, such theory will be adhered to on appeal, p. 461.</p> <p>4. Equity. — Jury Trial. — YerMct.—In causes of equitable jurisdiction, questions of fact may be submitted to a jury for determination under §418 Burns 1914, §409 R. S. 1881, but since such causes are for the court to try, the jury can act only in an advisory capacity, and should not be instructed to return a general verdict ; the proper method being to state the questions of fact to be determined by the jury by way of interrogatories, p. 462.</p> <p>5. Tbial. — By Court. — Findings of Fact. — Necessity.—In a suit to enjoin a nuisance and for damages, where a timely request for a special finding of facts by the court is made, it is the duty of the court to make a special finding, notwithstanding the issues of faot are also submitted to a jury. p. 463.</p> <p>6. Tbxaj.. — Request for Special Findings. — Waiver.—Where a request for a special finding of the facts is made within the time and in the manner required by the rules of court, and exception is reserved to the overruling of the request, the error is not . waived by failure to object to a general finding, p. 463.</p>

<p>1. Master and Servant. — Injuries to Servant. — Trial.—Answers to Interrogatories. — In an action by a stone mill enrploye for injuries received while moving stone, answers to interrogatories showing that plaintiff, who was a man of experience, was told to move a smaller stone which lay partially under a larger one, without specific direction as to the manner of proceeding, that it was his duty in such case to determine for himself the manner of doing the work, that though the position of the stones could readily have been seen in time to have avoided the injury, plaintiff, knowing that the safer way was to move the top stone first, attempted to move the lower stone and was injured by the falling of the upper one, and also showing that plaintiff did not know that there was danger in moving the lower stone without first moving the upper one, and could not have seen the danger of the traveler hooks attached to the lower stone striking the upper one-so as to knock it over on him in time to have avoided the injury, etc., were not conflicting with each other, but when construed together show that, though he had no actual knowledge, he had constructive knowledge of the danger, p. 467.</p> <p>2. Master and Servant. — Injuries to Servant. — Assumption of Risk. — A servant is held to assume the risk of injury from dangers of which he has knowledge, and also the risk from dangers which he might have discovered by the exercise of reasonable care. p. 469.</p> <p>S. Master and Servant. — Injuries to Servant. — Ver Mot. — Answers to Interrogatories. — In an action by a stone mill employe for injuries incurred while moving stone, where the negligence charged was the conduct of defendant’s manager in placing a large stone so as to partially rest upon a smaller one so that it was likely to be turned or thrown over when jarred or struck in the moving of other stones, and in directing plaintiff to move the lower stone without warning him of the danger, a verdict for plaintiff was overcome by the jury’s answers to interrogatories showing that the danger was open, obvious and appreciable by a person of ordinary intelligence, and that plaintiff was a man of such intelligence and of long experience in and about stone mills and quarries, p. 469.</p> <p>4. Master and Servant. — Injuries to Servant. — Trial.—Answers to Interrogatories. — -Construction.—In a stone mill employe’s action for injuries, sustained while moving stone, where the particular danger which plaintiff charged as due to the defendant’s negligence was the unstable position of a large stone which rested upon a smaller one, and the danger of attempting to lift the smaller stone while the larger was in such position, the jury’s answer to an interrogatory to the effect that plaintiff, if he had looked, could have seen that it was dangerous to move the smaller stone before moving the top stone, can not be held to refer to the general danger incident to the risk, but amounts to a finding that plaintiff could have seen the particular danger which caused his injury if he had looked, p. 470.</p> <p>5. Teiai. — Ver Met. — Answers to Interrogatories. — Construction.— In case of reasonable doubt as to the meaning of answers 'to interrogatories, the same should be given a fair and reasonable construction so as to resolve the doubt in such way as to reconcile them with the general verdict, but the court is not required to give to them a strained or unreasonable construction, p. 470.</p> <p>6. Master and Servant. — Injuries to Servant. — VerMct.—Answers to Interrogatories. — Knoioledge of Danger. — In a stone mill employe’s action for injuries sustained while moving a stone upon which, a larger stone was partially resting, a verdict for plaintiff was overcome by the jury’s answer to an interrogatory merely stating that plaintiff could have seen the danger if he had looked, where other facts found by the answers were such as to warrant the court in saying as a matter of law that he was not excusable for failure to look. p. 471.</p> <p>7. Master and Servant. — Injuries to Servant. — Assumption of Risk. — ■Contributory Negligence. — The doctrine of assumed risk does not apply where the negligence charged consists in the violation of a statutory duty, and in such cases contributory negligence is usually a question for the jury, except where it can clearly be said to exist as a matter of law, but a servant is precluded from recovery on the ground of assumed risk in all cases where the doctrine is applicable, if the danger was known and appreciated and was voluntarily encountered by him. p. 472.</p>

Prom Henry Circuit Court; Ed Jackson, Judge. Action by Andrew H. Ward and others against the Newcastle Theatre Company. Prom a judgment for plaintiffs, and against certain interveners on their separate cross-complaints, this appeal is prosecuted.

From Newton Circuit Court; Charles W. Hanley, Judge. Action by William Darroch, as guardian of Clara C. Jensen, and another, against Bernard A. Gillispie and others. From a judgment for plaintiffs, the defendants appeal.

<p>From Superior Court of Marion County (85,403) ; Joseph Collier, Judge.</p> <p>Action by Henry Maag against the City of Indianapolis and others. From a judgment for plaintiff, the defendant named appeals.</p>

<p>Prom Elkhart Superior Court; William B. Hile, Special Judge.</p> <p>Action hy the Quality Clothes Shop against William H. Keeney. Prom the judgment rendered, the plaintiff appeals.</p>

<p>1. Taxation. — Action to Enjoin Increased Assessments. — Complaint. — Sufficiency.—A complaint to enjoin the placing upon the county tax duplicates of an increase in the assessment made by the State Board of Tax Commissioners on all personal property in the county, and to enjoin the collection of the taxes on such increased assessment, was sufficient to withstand a demurrer where, in addition to all other necessary averments, it showed that notice to the taxpayers of the county had not been given in compliance with §§10295, 10296 Burns 1914, Acts 1905 p. 105. p. 510.</p> <p>2. Taxation. — Action to Enjoin Increased Assessments. — Answer. —Sufficiency.—In an action to enjoin the placing upon the tax duplicates of a county an increase in the assessment made by the State Board of Tax Commissioners on all personal property in the county, and to enjoin the collection of the taxes on such increased assessment, on the ground that the order of the state board was void for lack of notice to taxpayers in compliance with §§10295, 10296 Burns 1914, Acts 1905 p. 105, an answer which failed to allege that the board of county commissioners was in session after the auditor had been notified of the intention of the state board, was insufficient, p. 510.</p> <p>3. Taxation. — Increase of Assessments. — Validity.—Notice.—Jurisdiction of State Board of Taa> Commissioners. — An increase made by the State Board of Tax -Commissioners on all the personal property in a certain county is invalid,, where the only notice given by the auditor of the county was the posting and publication of notice to the taxpayers, since a taxpayer has the right to presume the board of county commissioners will perform its duty and take all steps necessary to protect the rights of taxpayers of the county, thus making the provision of §10296 Burns 1914, Acts 1905 p. 105, relating to notifying and calling in session the board of county commissioners, as essential to the jurisdiction of the State Board of Tax Commissioners in such matter as is the requirement for the posting and publishing of notice to the taxpayers, p. 513.</p>

<p>Prom Superior Court of Marion County (79,650); Charles J. Orbison, Judge.</p> <p>Action by Norman E. Jobes against tbe City of Indianapolis. Prom a judgment for plaintiff, the defendant appeals.</p>

From Grant Circuit Court; H. J. Paulus, Judge. Proceedings on the disallowance by Frank C. Lenfesty, Receiver of the O. TI. Kellar Chair Company, of the claim of John B. McGuffin. From the judgment against him, the % claimant appeals.

<p>Prom Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action by the State of Indiana, on the relation of Eulah Pearson, against Sanford Michael. Prom a judgment for relatrix, the defendant appeals.</p>

<p>1. Receiveks. — Bonds.—Release of Surety. — Power of Court. — Tbe court bas no power to release tbe surety on tbe bond of a receiver or other fiduciary after tbe same bas been accepted and approved in tbe absence of a statute conferring same; and where such statute exists its provisions must be complied with in order to render tbe release effective; hence where tbe court ordered the receivers of a bank to file separate bonds in lieu of a joint bond theretofore approved by it, its order purporting to release tbe surety on tbe joint bond from further liability, not made pursuant to §5733 Burns 1914, Acts 1897 p. 192, §6, providing for the release of sureties, was ineffective as such and constituted no bar to an action by tbe surety for tbe recovery of premiums thereafter accruing, p.525.</p>

<p>Prom Superior Court of Marion County (85,542); Charles J. Orbison, Judge.</p> <p>Action by Benedict Beck against the Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Superior Court of Marion County (82,227) ; Clarence E. Weir, Judge. Action by Olive J. Davy, administratrix of the estate of Josiab C. Davy, deceased, against tbe Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, the defendant appeals.

<p>From Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Florence M. Hay against the Meridian Life and Trust Company. From a judgment for the defendant, the plaintiff appeals.</p>

From Hendricks Circuit Court; George W. Brill, Judge. Action between Laura Black King and another and Charles B. Hoover and others. From a judgment for the latter, the former appeal.

<p>1. Appeal. — Review.—Evidence.—Sufficiency.—In a servant’s action for injuries received while operating a ripsaw, where there was evidence to warrant a finding either way upon the question of failing to properly guard the saw, and upon the question of contributory negligence, the court properly refused to direct a verdict for defendants and the verdict for plaintiff can not be disturbed on the ground of insufficient evidence, p. 569.</p> <p>2. Master and Servant. — Dangerous Machinery. — Duty to Gum'd. —Factory Act. — Under §8029 Burns 1914, Acts 1899 p. 231, §9, relating to the guarding of saws and other dangerous machinery and appliances, it is the absolute duty of the master to properly guard such saws or machinery, if the same may be guarded without materially affecting their usefulness, and to use reasonable care to keep such guards effective and in their place, p. 570.</p> <p>3. Master and Servant. — Dangerous Machinery. — Failure to Guard. — Liability of Master. — Where a master has discharged the absolute duty imposed on him by §8029 Burns 1914, Acts 1899 p. 231, §9, to properly guard dangerous machinery, the subsequent defective condition or removal of such guard will not render him liable unless it is shown that with knowledge of such facts, either actual or constructive, he permitted the machine to be operated without proper guards, p. 571.</p> <p>4. Master and Servant. — Dangerous Machinery. — Removal of Guards. — Liability of Master. — Where the removal of a guard is expressly or impliedly authorized by the master for the purpose of repairs or changes in the machine, an absolute duty, which can not be delegated so as to relieve the master from liability, devolves upon him to replace the guard when the purpose of its removal is accomplished; and where the discharge of such duty is entrusted to a servant, his negligence with reference thereto is that of the master, p. 571.</p> <p>5. Master and Servant. — Dangerous Machinery. — Operating Without Guard. — NegUgence Per Se. — The act of a master in knowingly permitting a saw to be operated after the guard had been removed, in violation of the duty imposed by §8029 Burns 1914, Acts 1899 p. 231, §9, constitutes negligence per se. p. 571.</p> <p>6. Master and Servant. — Dangerous Machinery. — Operating Without Guard. — Liability of Master. — Contributory Negligence. — The master is not- relieved from liability for failure in his duty to see that guards, when rightfully removed, are replaced, and not to permit a machine to be operated knowing it 'to be unguarded after such guard has been wrongfully removed by reason of the act of the servant himself in wrongfully removing the guard or in negligently failing to replace it after being rightfully removed; but denial of recovery in such case must be solely on the ground of contributory negligence, p. 571.</p> <p>7. Master and Servant. — Dangerous Machinery. — Operating Without Guard. — Consent of Master. — Liability.—Where a master has provided a proper guard, and the servant thereafter removes the guard and operates the machine in its unguarded condition with the knowledge of the master, there is such a violation of the statutory duty owing by the master as to render him liable for any resulting injury to the servant, regardless of the question of the master’s consent, either actual or implied, p. 572.</p> <p>8. Master and Servant. — Dangerous Machinery. — Removal of Guards. — Contributory Negligence. —■ Instructions. —* A guard placed upon a dangerous machine, as required by §8029 Burns 1914, Acts 1899 p. 231, §9, may be rightfully removed for the purpose of repairing the machine, or when the use of such guard materially interferes with its usefulness; hence an instruction requested by defendant to the effect that the removal of the guard was negligence per se, and that if plaintiff removed it his act constituted contributory negligence, was properly refused, especially in view of evidence showing that the guard was not a proper one and that the use of the machine with the guard attached was impracticable, p. 573.</p> <p>9. Master and Sekvant. — Dmgerous Machinery. — Operation Without Guard. — Contributory Negligence. — Instructions.—A servant does not assume the risk in operating a dangerous machine without a guard, as required by the statute, and the question of whether plaintiff was guilty of contributory negligence in thus encountering a known danger, when a safer one was known to him, was for the jury, where the evidence was such that the court could not say as a matter of law that the danger was so apparent and imminent as to render his act one of contributory negligence, p. 574.</p> <p>10. Appeal. — Review.-—Harmless Error. — Admission of Evidence. —Error, if any, in permitting plaintiff to testify that if a guard such as he described had been 'in proper place on the saw he was operating, he would not have been injured, and that it would not have been necessary to reach over as he did, was harmless, where it was not seriously controverted that the proximate cause of the injury was the absence of a guard, and there was other evidence to show that a proper guard rightly adjusted would have protected the saw so that no one could have injured his hand unless he pushed it under the guard, p. 575.</p>

<p>From Warrick Circuit Court; Ralph E. Roberts, Judge.</p> <p>Action by Karl Freeman, by his next friend Robert Freeman, against the Evansville Furniture Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Jay Circuit Court; James J. Moran, Judge.</p> <p>Action by Harry Antles against Silas II. Adams. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Complaint.—A complaint charging that plaintiff was employed to perform a service that was not dangerous and was shortly after placed at dangerous work which was not embraced in his contract of employment, that he was inexperienced and had no notice or knowledge of the danger of such work and had no opportunity to inform himself of such danger, and that defendant had knowledge, etc., sufficiently stated a cause of action, p. 606.</p> <p>2. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Complaint.—Want of Knowledge. — In the absence of complaint made and a promise to repair, an employe accepting a working place provided for him must use his senses to ascertain the condition of the place and the dangers resulting therefrom, and assumes all the ordinary risks which are known to him and which are discoverable in the exercise of ordinary skill; but as a matter of pleading the allegation that the danger was unknown to plaintiff is sufficient to rebut the presumption of knowledge, both actual and constructive, p. 606.</p> <p>3. Master and Servant.' — Injuries to Servant. — Trial.—Verdict.— Answers to Interrogatories. — Where the complaint charged that the proximate cause of plaintiff’s injuries was the negligence of defendant in changing plaintiff’s employment from a safe and simple work to a difficult and dangerous one not embraced in Ms contract of employment, and in furnishing Mm an unsafe place to work, a verdict for plaintiff was overcome by the jury’s answers to interrogatories showing that plaintiff was employed to do general excavating, and that the breaking of cement in a cistern, which he was doing when injured, was a part of that employment, p. 608.</p> <p>4. Master and Servant. — Injuries to Servant. — Complaint.— Theory. — Answers to Interrogatories. — Where the jury’s answers to interrogatories are in conflict with the verdict for plaintiff upon the theory of defendant’s negligence as charged in the complaint, the verdict can not be permitted to stand merely because answers relating to a fragment of such theory nullify each other or are such that they might be reconciled with the verdict. p. 608.</p> <p>5. Master and Servant. — Injuries to Servant. — Evidence.—A verdict for plaintiff on a complaint charging negligence in transferring plaintiff from a safe to a dangerous employment and in not providing sufficient light for his place of work, is not sustained by the evidence which clearly shows that the work plaintiff was doing at the time of Ms injury was within the scope of his original employment, and does not show that the place was insufficiently lighted, and from which it appears that the injury was solely the result of a misunderstanding between plaintiff and a fellow servant, p. 609.</p> <p>6. Master and Servant. — Injuries to Servant. — Assumption of Bish. — Change of Employment.' — Where an employe is directed to work at a new, different and hazardous employment temporarily he is not charged with assumption of the risk during the time requisite to understand the hazards of such new employment, p. 609.</p> <p>7. Master and Servant. — Change of Employment. — Duty to Warn Servant. — Assumption of BisJc. — Where a servant is directed to work at a more hazardous employment than that embraced in Ms usual duties, it is the master’s duty to warn him of the dangers and give Mm such instructions as will enable him to avoid injury, unless the peril and the means of avoiding it are apparent to the servant while performing the required service, in which event the servant assumes the risk. p. 609.</p>

Prom Howard Circuit Court; William, C. Purdum, Judge. Action by Mary L. Vernon, by her next friend Addie Vernon, against Thomas W. Longfellow and another. Prom a judgment for plaintiff, the defendants appeal.

From Monroe Circuit Court; J ames B. Wilson, Judge. Action, by James L. Dillman and others against Oscar Fulwider and another. From a judgment for defendants, the plaintiffs appeal.

Prom Tippecanoe Circuit Court; Henry H. Vinton, Judge. Action by tbe Tippecanoe Loan and Trust Company, administrator of the estate of George - Arbegust, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for defendant, the plaintiff appeals.

<p>Prom Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Robert Bowen, by bis next friend Albert D. Bowen, against tbe Union Traction Company of Indiana. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>Prom Marion Circuit Court (17,951); Charles Bemsier, Judge.</p> <p>Action by Harmon A. Hageman against tbe Indiana Veneer and Lumber Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. —■ Questions Reviewable. — Assignment of Errors. — Waiver. — Error, if any, in the trial court's ruling on a demurrer is not available where such ruling is not assigned as error; and such an error, if assigned, is waived by appellant’s failure to discuss same in the briefs, p. 683.</p> <p>2. Appeal. — Questions Reviewable. — Errors Predicated on Erroneous View of Issues. — Where a paragraph of answer was held insufficient on demurrer, appellant’s contentions in support of alleged errors grounded on an erroneous assumption that such demurrer had been overruled must fail. p. 684.</p> <p>3. Insurance. — Fire Insurance. — Defenses.—Exceptions m Policy. —Pleading.—Facts bringing an insurer within the exceptions to its liability on a fire policy providing for its invalidity if the interest of the insured be other than unconditional or sole ownership, or if additional insurance is procured without the company’s consent, must be specially pleaded, p. 686.</p> <p>4. Insurance. — Fire Insurance. — Exceptions to Liability. — Additional Insurance. — Notice to Insurer. — Knowledge of other insurance coming to the agent of a company in the course of his employment as such is chargeable to the company, so that in an action on a fire policy the defense that plaintiff had procured other insurance in violation of a provision, of the policy, was avoided by evidence establishing plaintiff’s reply to the effect that application for insurance in a certain amount had been made to defendant’s agents, and that such agents, without any request of plaintiff and without calling her attention to the terms of the policy, issued the policy of defendant for one-half the amount applied for, and at the same time issued the policy of another company, for whom they were also agents, for the other half, p. 6S6.</p> <p>5. Appeal. — Questions Reviewable. — Objections to Evidence. — Briefs.- — No question is presented on specifications of error in the admission and exclusion of evidence, where appellant has failed to make any reference to the transcript where a record of the court’s action may be found, and has failed to set forth a sufficient abstract of the evidence or to discuss the alleged errors under points and authorities, p. 688.</p> <p>6. Insurance. — Action on Fire Policy. — Verdict.—Where plaintiff’s property was insured under the policies of two different companies for $2,500 each, and the undisputed evidence showed a total loss of $4,500, a verdict for plaintiff for $2,250 on the policy issued by defemtasnt was not (áEeessive. p. 689.</p>

<p>1. Municipal Cokpoeations. — Defective Streets. — Liability for Iwjuries. — The liability of a city for damages on account of personal injuries resulting from defects in streets arises by implication from the statutory duty to keep its streets in repair, p. 691.</p> <p>2. Municipal Cokpoeations. — Defective Streets. — Limitation of Liability. — The legislature may impose such conditions and limitations as it may see fit on the right to recover damages from a city for personal injuries caused by the defective condition of its streets, and one seeking to enforce such, a liability must bring himself within the provisions of the statute relating thereto, p. 691.</p> <p>3. Municipal Corporations. — Defective Streets. — Conditions Precedent to Liability. — Notice.—The giving of the statutory notice of the time, place and cause of injury is a condition precedent to the liability of a city for a personal injury caused by the defective condition of a street, p. 691.</p> <p>4. Municipal Corporations. — Defective Streets. — Notice of Injury. —Sufficiency.—Statutes.'—Section 8962 Burns 1914, Acts 1907 p. 249, providing for written notice to a city of the time, place, cause and nature of injury caused by a defective street before bringing an action therefor, is to be strictly construed, and, while its terms require but a general description, reasonable certainty in the statement of the facts is required, and such certainty as to date of the injury demands that the month, day of the month, and the year should be stated; hence a complaint for an injury which occurred on the 28th day of a given month is not sustained by a notice stating that it occurred on the 18th day. pp. 691, 694.</p> <p>5. Municipal Corporations. — Defective Streets. — Notice of Injury. —Sufficiency.—Where the time of an injury caused by the defective condition of a street is shown by the undisputed evidence to be different from the time stated in the notice required by §8962 Burns 1914, Acts 1907 p. 249, the question as to whether such difference is substantial or material is one of law to be determined by the court solely from a consideration of such difference. p. 694.</p>

<p>Prom Superior Court of Allen County; Carl Tapie, Judge.</p> <p>Action by William A. Zonker against The German Pire Insurance Company and others. Prom the judgment rendered, the defendant named appeals.</p>

<p>Prom Howard Circuit Court; Lex J. Kirkpatrick, Judge.</p> <p>Action by Jesse Elliott against the Indiana Natural Gas and Oil Company of New Yorlr. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Knox Circuit Court; Benjamin Willoughby, Judge.</p> <p>Action by tbe Citizens Trust Company, Guardian of Guy C. Fisher, against John T. Scott, as Auditor of Knox County, and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>From Jay Circuit Court; James J. Moran, Judge.</p> <p>Action by Leander G. Holmes against tbe City of Portland. From a judgment for plaintiff the defendant appeals.</p>