Volume 58 — Indiana Appellate Court Reports

<p>1. Railroads. — Injury to Animals on Tracks. — Complaint.—A complaint in an action against a railroad company under §5436 Burns 1914, §4025 R. S. 1881, for injuries to a horse which strayed through an opening in the fence along defendant’s right of way, alleging that defendant at the time of the injury owned, managed and operated a certain railroad locomotive and cars in the county in which the action was filed, and that at the said time, at a certain place on its right of way in such county where defendant was required to maintain a proper fence, defendant neglected and failed to maintain such fence, etc., and that plaintiff’s horse strayed upon defendant’s track “at the place aforesaid”, etc., was sufficient as against a demurrer questioning the sufficiency of the averments to show jurisdiction of the subject-matter, and that the horse went upon the track at a point where the defendant was required to maintain a fence, p. 2.</p> <p>2. Appeal. — Review.—Harmless Error. — Instructions.—In an action for injuries to a horse that strayed upon defendant’s railroad track at a point where defendant was required to maintain a fence, an instruction which authorized a recovery for the loss of service resulting from the injury in addition to the difference in the value of the horse before and after the injury was harmless, where the verdict awarded plaintiff only the amount of the difference in value shown by undisputed evidence, p. 3.</p> <p>3. Railroads.- — Injury to Animals on Tracks. — Action.—Evidence. —Sufficiency.—In an action for injuries to a horse that strayed upon defendant’s right of way at a point where defendant was required to maintain a fence, evidence showing an opening in the fence through whidh the plaintiff’s horse strayed, though probably sufficient to justify an inference that the horse was upon the track at some time during the night, was insufficient to sustain a verdict for plaintiff in the absence of any evidence whatever to show that such horse was upon the track when a train passed, or that the injury was the result of any cause for which defendant would be liable, pp. 4,6.</p> <p>4. Railroads. — Injury to Animals on Trades. — Action.—Burden of Proof. — In an action based on §5436 Burns 1914, §4025 R. S. 1881, to recover for injury to a horse alleged to have strayed upon defendant’s railroad track, the plaintiff must allege and prove that the injury was caused by the horse being struck by one of defendant’s locomotives, ears, or other carriages, p. 6.</p>

<p>Prom Vigo Circuit Court; Charles M. Fortune, Judge.</p> <p>Action by Pauline Kohl against H. P. Lenhart Furniture Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Miami Circuit Court; J. T. Cox, Special Judge.</p> <p>Action by Nathaniel English against Mary A. Nesbit and others. Prom the judgment rendered, the defendants appeal.</p>

From Starke Circuit Court; Francis J. Vurpillat, Judge. Action by Clarence H. Beard against Isaiah Hosier and another. From the judgment rendered, the plaintiff and the assignee of his rights thereunder appeal.

From Wayne Circuit Court; Henry C. Fox, Judge. Proceedings on the petition of Helen M. Miller for the vacation of an alley in the City of Richmond. From a judgment ordering the vacation, the city and others appeal.

<p>1. Insurance. — Life Insurance. — Election to Avoid Policy. — Return of Premiums. — To avoid liability on a life policy on account of an alleged breach of warranty, -or fraud in its x>rocurement, the company must elect to rescind the contract, and tender back the premiums paid thereon, within a reasonable time after discovering facts warranting such rescission, or receiving notice sufficient to put it on inquiry as to such facts; hence, in an action on a policy, answers setting up misrepresentations amounting to fraud, and alleging a tender of the premiums paid, were not sufficient on demurrer, where it appeared that proof of death was accepted without objection, that thereafter, and some time before suit, the company notified plaintiff of its election to avoid the x>oliey, but that it made no effort to tender back or repay the money received as premiums until long after commencement of the action, which was approximately seven months after the proof of death was furnished, p. 29.</p> <p>2. Appeai. — Waiver of Error. — Briefs.—Alleged error in the ruling on a demurrer is waived by the appellant’s failure to set forth in its brief any point or proposition in relation thereto, p. 31.</p> <p>3. Appeai. — Questions Reviewable.— Briefs. — Abstract Propositions. — Mere abstract statements of law or fact, or both, though contained .under the statements of points or propositions in appellant’s brief, are insufficient to present any question, unless applied specifically to some particular ruling or action of the court, p. 31.</p>

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by Louis E. Strack against the City of New Albany. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Right of Appeal. — The right of appeal is purely statutory, and one who asks the remedy must comply with the</p> <p>' statute under which he seeks it, and perfect his appeal within the time prescribed, p. 37.</p> <p>2. Appeal.' — Time for Perfecting. — Motion for New Trial. — A motion for new trial, timely filed, holds the judgment in abeyance so that the time for perfecting an appeal is to be reckoned from the date of the ruling on such motion, p. 37.</p> <p>3. Appeal. — Questions Reviewable. — Motion for N.ew Trial. — A motion for new trial not filed within the time prescribed by §587 Burns 1914, Acts 1913 p. 848, comes. too late, and presents no question on appeal, p. 37</p> <p>4. Appeal.- — Perm Time Appeal. — Piling and Approval of Bond.— Under §679 Burns 1914, §638 R. S. 1881, relating to term time appeals, the penalty of the appeal bond must be fixed and the surety named and approved by the court during the term at which final judgment is rendered; hence,, where such steps were not taken until the following term on the overruling of a motion for a new trial that was filed too late to hold the judgment in abeyance, the appeal was not perfected as a term time appeal, p. 37.</p> <p>5. Appeal. — Extending Time for Appeal. — Motion for Neto Trial. —Questions Revieimhle. — The filing of a motion for a new trial too late to present any question thereon on appeal, will not extend the time for perfecting the appeal so as to present other questions not presented by the motion, p. 38.</p> <p>O. Appeal. — Perfecting Appeal. — Vacation Appeal. — An attempted term time appeal can not be perfected as a vacation appeal where the transcript has remained on file for more than ninety days without any effort to perfect a vacation, appeal, p. 38.</p>

<p>1. Appeal.- — ■Waiver of Error. — Briefs.-—Errors assigned, but not considered in appellant’s brief, are waived, p. 41. '</p> <p>2. Appeal. — Review.—Ruling on Motion to Malee Specific. — Where the complaint in a passenger’s action against a street car company for personal injuries fully advised defendant as to the case it was called upon to meet, a motion to make the complaint more specific by calling for details of evidence, and for information on points fully and clearly covered by the averments of the complaint and more fully in the knowledge of defendants was properly overruled, p. 41.</p> <p>3. Appeal. — Review.—Grounds for New Trial. — Waiver.—Specifications in the motion for new trial are waived by failure to present them in the brief on appeal. p.42.</p> <p>4. Witnesses. — Credibility.—Instructions.—An instruction that in case of any apparent contradiction in the testimony of different witnesses, the jury should harmonize such contradictions so as to give full weight and credit to all the witnesses, but that if it were impossible to reconcile same so as to believe all the witnesses, the jury should determine for itself which witnesses it Would believe, was substantially correct, and not harmful, when considered with other instructions on the credibility of witnesses and the weight of testimony, p. 42.</p> <p>5. Cakkleks. — Injuries to Passengers. — Negligence.—Collision of Trains. — Instructions.—An instruction that where a collision between two passenger cars of defendant is caused by the negligence of defendant’s servants in charge of such cars, while operating same, defendant can not say, in defense to a passenger’s action for injuries resulting from the collision, that it could not anticipate that its servants would be negligent, and stating that under such circumstances the negligence of the servants is that of the defendant itself, for which it must respond in damages to any of its passengers who without fault are injured thereby, was not argumentative, and correctly stated the law applicable, to the circumstances therein enumerated, p. 43.</p> <p>6. Appeal. — Iievieio.—Pleading.—Proof.—Variance.—Under a complaint to recover for personal injuries, which alleged that plaintiff had expended large sums of money for medical, surgical and nurse hire, the admission of evidence as to the value of services of plaintiff’s sister in nursing plaintiff was not erroneous on the ground that no contract to pay for such services was shown, and that the complaint did not warrant the admission of such evidence where it appeared the parties lived together as a common family, since, if the complaint was not broad enough to admit such evidence it could have been amended under the provisions of §§400, 401 Burns 1914, §§391, 392 R. S. 1881, and, under §700 Burns 1914, §658 R. S. 1881, it must be regarded on appeal as having been so amended, p. 44.</p> <p>7. Trial. — Objections to Evidence. — Variance.—Objection to the introduction of evidence on the ground of variance between the proof and the allegations, to be sufficient must be that the party is not ready to meet the evidence, p. 46.</p> <p>8. Appeal.— Review.— Evidence-.— Instructions.— Where evidence was properly admitted on the value of the services of plaintiff’s sister in nursing plaintiff, instructions on the measure of damages properly included such element p. 46.</p> <p>9. Appeal. — Review.—Harmless Error.- — Refusal of Instruction.- — ■ The refusal of a requested instruction is not error, where its subject-matter was fully covered by the instructions given, p. 46.</p>

<p>1. Contracts. — Performance.—Contracts for Services of Personal Nature. — Death or Sickness of Party. — A contract for services of a personal nature, that can not be performed by deputy, successor or representative, within the meaning thereof, is ended by the death, serious sickness or insanity of either party, and an action will not thereafter lie for specific performance, nor for damages for the breach thereof, p. 54.</p> <p>2. Contracts. — :Part Performance. — Death or Sickness of Party.'— Liability on Quantum Meruit. — Where an entire special contract for a stipulated compensation is partly performed and before completion one of the parties dies, or without his fault, performance is rendered impossible, there is no liability on the contract; but where one of the parties acting thereunder has done for or delivered to the other something of value, which has been accepted, the party so benefited is responsible on an implied promise, arising from the circumstances, under the quantum meruit, to the extent of the net value received by him, not exceeding the price or compensation fixed by the contract, p. 55.</p> <p>3. Contracts. — Part Performance. — Death or Sickness of Parly.— Liability on Quantum Meruit. — Under a special contract of hiring for a particular service or definite term, the sickness of the employe incapacitating him for the contemplated service relieves both parties from the contract; but, unless a clear and definite intention is evidenced to deny any compensation except upon full and strict performance, the employe may recover on the quantum meruit for the value of the services rendered, p. 56.</p> <p>4. Contracts.. — Mutual Mistake. — Mutual mistake of the parties as to some material fact which entered into their agreement is generally made ground for reforming the contract, but rarely affords a cause for rescission, p. 56.</p> <p>5. Contracts. — Contract for Services of Personal Nature — failure of Consideration. — Rescission.—Under a contract for the performance of services of a personal nature, a failure to ren-. der all the services contemplated, resulting from subsequent mental or physical incapacity, is not ordinarily ground for the rescission of the contract; but where both parties can be placed in statu quo, a party not in default, who has returned or tendered to the other whatever value he has received under the contract, may in certain instances enforce rescission or abandonment of the contract for failure of consideration resulting from a failure to perform, p. 57.</p> <p>6. Contracts. — Construction.—Entire or Severable Contracts. — A contract between the president of a trust company in his individual capacity and an experienced, trust officer for the employment of the latter in the business of the company at a specified salary, and for the sale to him of a certain amount of stock in the company at less than its value, with the object in view of building up the company’s business, was not severable as between the parties themselves, and having become an executed or consummated arrangement as between parties thereto, and the company affected thereby, the question of whether it was severable as between such parties and the company was of no controlling effect in determining the rights of the parties as between themselves, p. 57.</p> <p>7. Contracts. — Contract for Services.^Subsequent Inability to Perform. — Recovery on Quantum Meruit. — Where full performance of an entire contract for personal services and the sale to the employe of stock at less than its true value, was rendered impossible by the subsequent insanity of the employe, the other party was not entitled to recover on the quantum meruit the amount of the benefits received by the employe under the contract in the sale of the stock to him, less the value of the benefits conferred by him, where it appeared that the employment was for an indefinite period, pp. 58,60.</p> <p>8. Contracts. — Contract for Personal Services. — Inability to Perform. — Presumptions.—In the absence of anything appearing to the contrary, the parties to a contract for personal services will be presumed to have taken their chances on the results that may flow from an act of God, and the party suffering loss thereby is without a remedy, p.60.</p> <p>9. Contracts. — Contract for Personal Services.■ — Subsequent Inability to Perform. — Rescission.—Where full performance of an entire contract for personal services and the sale to the employe of stock at less than its true value, had been performed to the extent that the sale of the stock had been consummated and the employe had performed the duties of his employment for some time, and further performance was rendered impossible by the insanity of such employe, the other party to the contract was not entitled to a rescission of the contract either upon the ground of mutual mistake of the parties as to the health of such employe, or for failure of consideration by reason of his inability to perform, in the absence of anything in the contract providing for such contingencies, p. 61.</p>

<p>1. Easements: — Severance of Ownership. — Continuance of Use by Operation of Law. — Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of the ownership, a grant or reservation to continue the use arises by implication of law. p. 69.</p> <p>2. Easements. — Creation.—Lease.—Continuance by Operation of Law. — Where an easement over land for a right of way for the construction of a switch to a stone quarry was provided for in a lease of the quarry, the nature, extent and duration of such easement as originally created, and the question of whether the switch could be maintained after the expiration of the lease and after severance in the ownership of the land, must be determined from a consideration of the provisions of the lease, p. 71.</p> <p>3. Easements. — ■Lease.— Construction.— “Premises”.— Under the lease of a stone quarry on land subsequently conveyed to others, for the term of twenty-five years granting to the lessee'the exclusive right to quarry stone and to maintain a switch, beginning at a specified point on a certain railroad “on said premises”, and running thence into the quarry opening “on said premises” and providing that on termination of the lease lessee could remove “from said premises” all buildings, side tracks, switches, and property of every kind which had been placed thereon by it, the word “premises” is to be given its ordinary meaning and includes not only the property rented for the quarry, but also that subject to the easement for the switch; and hence the lease as a whole is inconsistent with any intention that the easement should continue after the expiration of the term, so that the land of plaintiff, who acquired that portion occupied by the switch, could not be burdened with the further maintenance of same on the theory that the right to do so arose by implication of law. pp. 71,78.</p> <p>4. Words • and Phrases. — “Premises”.—“Appurt&nwnces”.—“Tenement”. — The word “premises” as used in a lease or instrument of conveyance ordinarily means “lands and tenements” and includes lands and everything appurtenant thereto, and may apply to an easement as well as to the land conveyed, since the term “appurtenances” includes a right of way incident to land or an estate, ancl “tenement” is anything-which, may be holden, that is, anything subject to tenure, p. 77.</p> <p>5. Lease.- — Records—Effect.—Where a lease has been duly recorded, the various assignees thereof and the subsequent owners of the land affected thereby take with at least constructive notice of its contents, and are bound by its terms, p. 78.</p> <p>6. Appeal.— Review.— Evidence.— Findings.-— Harmless Error.— Where there was sufficient evidence to sustain the finding of facts, and the latter would not have been changed had excluded evidence been admitted, error, if any, in the exclusion of such evidence was harmless, p. 79.</p> <p>7. Easements. — Lease.—Rights of Third Persons. — Where, under a lease to a stone quarry together with right of way to build a switch connecting with a railroad, the railroad company could acquire no right to the use of such switch except the right to transport stone from the quarry as the agent of the operator thereof, the authority of the railroad company over such switch terminated with the expiration of the lease, p. 79.</p>

<p>Appeal. — Briefs.—Dismissal.—Where the omissions and infirmities of appellant’s brief make it impossible for the court- to determine from it alone whether any question has been properly saved and presented, and are such that the court can neither safely nor intelligently determine questions, even, if properly saved and presented, without an examination of the record, a dismissal of the appeal is required.</p>

From Adams Circuit Court; Charles E. Sturgis, Judge. Action between Rhoda E. Book and others and The Strauss Brothers Company. From a judgment for the latter, the former appeal and subsequently present motion for leave to amend their assignment of errors.

Prom Huntington Circuit Court; Samuel E. Cook, Judge. Action by Henry Walters against George Keefer and others, in which Albert G. Johnson was later substituted as plaintiff. Prom the judgment rendered, Albert G. Johnson appeals.

<p>1. Carbiers. — Injuries to Passengers. — Complaint.—A complaint, in a passenger’s action for injuries in alighting from an interurban car, which proceeded on the theory that the negligence consisted in suddenly starting the car "while the plaintiff was alighting, and alleged facts showing that defendant stopped its car at a regular stopping place to allow passengers to alight, that plaintiff while attempting to leave the car was given insufficient time to do so, and that while in the act of alighting, without warning to him the car was started with a quick jerk whereby lie was thrown to the ground and injured, was sufficient on demurrer, p. 94.</p> <p>2. Carbieks. — Injuries to Passengers. — Trial.—Instructions.-—In a passenger’s action for injuries sustained in alighting from an interurban car, the court erred in giving an instruction on the duty owing to passengers alighting from cars, which in effect, made the defendant an insurer of the passenger’s safety instead of requiring the highest degree of care practicable, p. 95.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Cassius M. Bottema against Lewis F. Tracy and others. From the judgment rendered, the plaintiff appeals.</p>

<p>1. IiAkceny. — Prosecution. — Jurisdiction. — City Court. — Under §SS42 Burns 1914, Acts 1905 p. 236, §216, the city court has jurisdiction to try and determine a prosecution for petit larceny. p. 98.</p> <p>2. Action. — Prosecution as Poor Person. — Nonresident.-—-Under §§261, 616 Burns 1914, §§260, 589 R. S. 1881, one may be permitted to prosecute an action as a poor person, even though not a resident of the State, p. 98.</p>

<p>1. Pleading. — Answer.—Reply.—Sufficiency.—A bad reply is good enough for a bad answer, so that the overruling of a demurrer thereto is not error, p. 105.</p> <p>2. Insurance. — Life Insurance. — Action on Policy. — Complaint.— Where the complaint in an action on a life policy proceeded on the theory that plaintiff and the assured had performed all conditions of the contract, except such as had been specifically waived by defendant, and that by reason of such waivers and defendant’s course of conduct relative to extending the time of payment of premiums plaintiff and the insured were led to believe that defendant had waived its right to declare a forfeiture of the policy, etc., it was not open to the objection that it proceeded on two inconsistent theories, p.106.</p> <p>3. Insurance. — Life Insurance. — Action on Policij. — Verdict.—Ansioers to Interrogatories. — In an action'on a life policy, grounded on the theory that defendant had waived its right to declare a forfeiture of the policy for delay in payment of the premiums as therein provided, answers by the jury to interrogatories were not inconsistent with the general verdict for the plaintiff, where it appeared therefrom that defendant’s agent and bookkeeper in its home office looked after the particular policy and the payment of the premiums thereon by authority of defendant, that he had often extended the time of premiums and notes, and accepted payment of overdue premiums and notes, all of which was approved by defendant, and that by its conduct defendant held out that such agent had authority to make the extensions, p. 107.</p> <p>4. Trial.. — Verdict.—Scope and Effect. — A general verdict for plaintiff is a finding in his favor on every material issue, and all reasonablei inferences will be indulged in its support, p. 107.</p> <p>5. Insurance. — Life Insurance. — Forfeiture.—Waiver.—The provisions of a life policy for its forfeiture for nonpayment of premiums, as well as a condition that no agent has authority to waive the requirement that premiums and premium notes must be paid at maturity, may be waived by the company; and it may be estopped to insist upon a forfeiture, if by its course of conduct’ the insured has been honestly led to believe that the premiums will be accepted after the appointed time. p. 108.</p> <p>6. Insurance. — Forfeiture.—Waiver.—Forfeitures are not favored, hence circumstances which indicate an agreement on the part of an insurer to waive strict compliance with the terms of its policy, and which were acted upon in good faith, will constitute a waiver of the right to forfeit the policy, as where the insurer, knowing that there has been a default in the payment of premiums which would terminate the contract, enters into such negotiations with the insured as to indicate an intention to treat the contract as being in force and binding, p. 108.</p> <p>7. Insurance. — Premiums. — Extension of Time. — Consideration. —Estoppel.—Even if an agreement, made after the maturity of notes given from time to time for unpaid premiums, for extension of the time of payment of the notes was without consideration, defendant insurance company would be estopped from insisting on a forfeiture of the policy, where it failed to give the insured any notice of its intention to declare a forfeiture, p. 109.</p> <p>8. Insurance. — Prcmwms.—Extension of Time. — An extension of the time for payment of a past due premium note to “corn gathering time”, was for a time sufficiently certain, p. 110.</p> <p>9. Insurance. — Acts of Agent. — Ratification.—The finding of the jury, based on evidence showing such facts, that defendant insurance company ratified the acts of its agent in extending the time of payment of premiums on the policy in suit and in accepting payment of past due premiums, precludes defendant from asserting that the acts of the agent were unauthorized, p. 111.</p> <p>10. Appeal. — Review.—Instructions.—Where an instruction was not mandatory and it appears that the court did not intend therein to instruct upon all matters of law involved, and it correctly stated the law upon the matters referred to, it was not erroneous, especially in view of another instruction covering the matter complained of as having been omitted, p. 111.</p>

<p>1. Afpeai. — Review.—Complaint.—Ruling on Demurrer. — The sustaining of a demurrer to a complaint can not be deemed erroneous on appeal, where, from the statement of its averments as set out in' appellant’s brief, the court on appeal can not say that the complaint contained all averments essential to the statement of a cause of action, p. 133.</p> <p>2. Appeal. — Burden to Show Mrror. — Presumptions.—The burden of showing error rests on appellant, and in the absence of such showing, the ruling of the trial court is presumed to be correct, p. 114.</p> <p>3. Master and Servant. — Injuries to Servant. — Negligence of Vice Principal. — Complaint.—A complaint for personal injuries based on the theory that the negligence charged was that of a vice principal, was insufficient where the allegations show that in the performance of the particular act, the alleged vice principal was in fact performing the work of a coemploye, p-. 114.</p>

<p>From Superior Court of Marion County (79,158); Charles J. Orbison, Judge.</p> <p>Action by Meyer Frankel against the Metropolitan Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Mary B. McGinnis against Howard C. Jones and others. Prom a judgment for plaintiff, certain defendants appeal.</p>

<p>1. Appeal. — Failure to File Briefs. — Mffect.—While appellee’s failure to file a brief in support of the judgment below is sometimes justification for a reversal on the theory of confessed error, a reversal on that ground should not be ordered except where appellant’s brief shows that reversible error was in fact committed, p. 130.</p> <p>2. Municipal Corporations. — PubKe Improvements. — Appeal from Assessments. — Gonvplaint—Bufficiency.—Under §8716 Burns 1914, Acts 1899 p. 412, relating to assessments for municipal improvements and providing for appeal from any such assessment, a complaint alleging all the facts required to be shown thereunder,</p> <p>' is not insufficient for failure to. allege that the complainant appeared at the time and place fixed by the statute and objected to or remonstrated against the amount of his assessment, since such allegation is not required by the statute. (City of Huntington v. Bucher [1910], 46 Ind. App. 208 distinguished.) p. 131.</p> <p>3. Municipal Corporations. — Appeal from Improvement Assessments. — Right of Appeal. — The right of appeal being purely statutory, the legislature has power to provide the manner and method of appeal from an assessment made by a city on account of public improvements, p. 131.</p>

<p>Fr.om Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by the Central Indiana Railway Company against Harry McMains. From a judgment for defendant, the plaintiff appeals.</p>

From Superior Court of Marion County (87,480) Joseph Collier, Judge. Proceedings on the petition of the receiver of the Mais Motor Truck Company to determine the priorities of creditors, in which William H. Roberts and others, as stockholders of the insolvent corporation, and Franklin Vonnegut and others, as creditors, intervened. Prom the judgment rendered, William H. Roberts and others appeal.

Prom Clark Circuit Court; Harry C. Montgomery, Judge. Action by Robert M. Wyatt, by bis next friend John Prinz, against the American Car and Foundry Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Bailment.- — Duty of Bailee. — Degree of Oare. — A complaint to recover for a team of mules lost by fire, alleging that plaintiff placed his team in defendant’s stable to be kept over night for a consideration shows the relation of bailor and bailee, out of which arose a duty on defendant to exercise ordinary care for the safety and protection of plaintiff’s team. p. 174.</p> <p>2. Bailment. — Duty of Bailee.- — Ordinary Oare. — The owner of a stable, in which plaintiff’s team was kept under circumstances making him a bailee, was required to foresee every danger to such property which a person of ordinary prudence would have foreseen under the circumstances, and to use such care to guard against such dangers as a person of ordinary care, under the circumstances, would have used. p. 174.</p> <p>3. Bailment.— Loss of Property.— Complaint.— Negligence.— A complaint by the owner of a team lost in a fire which destroyed defendant’s stable, alleging that the team had been placed in the stable to be kept over night for a consideration, and that defendant negligently locked the door and negligently failed to leave any one in charge of same, or to give notice in case of fire, and that after discovery of the fire, plaintiff arrived in time to have saved his team, but could not because of negligence charged, etc., proceeded on the theory that defendant did not use ordinary care for the prompt discovery of fire, and the rescue and preservation of property in such event, and sufficiently charged negligence in that respect, p. 175.</p> <p>4. Negligence. — Ordinary Oare. — Pleading.—The charge that a defendant negligently did, or omitted to do, an act, amounts to a charge that the defendant failed to use ordinary care.in that particular, and it is not necessary to state all the conditions and circumstances which may be taken into consideration in determining whether ordinary care was or was not used. p. 175.</p> <p>5. Bailment. — Loss of Property. — Negligence.—Proximate Oause. —Complaint.—A complaint for the loss of plaintiff’s team by a fire which destroyed defendant’s barn in which the team was kept, charging negligence in locking the barn and in failing to keep a watchman in charge of same, or to give alarm in case of fire, was not open to the objection that it showed upon its face that the direct and proximate cause of plaintiff’s loss was the fire, and not the negligence charged, p. 177.</p> <p>6. Negligence. — Proximate Cause. — Intervening Cause. — The intervention of an independent agency does not. break the chain of causation so as to relieve the original wrongdoer, if by the exercise of ordinary prudence he should have foreseen such intervening cause and guarded against the danger likely to result therefrom, p. 177.</p> <p>7. Negligence. — Liability.—Concurring NegUgenca — Where two causes combine and proximately concur in producing an injury, the party at fault for one of such causes will be liable if the injury would not have occurred in the absence of such fault, p. 177.</p> <p>8. Bailment. — Loss of Property. — Evidence.—Sufficiency.—Evidence showing the relation of bailor and bailee, and that the bailee had failed to return the property, though sufficient to make a prima facie case in an action to recover for its loss, is insufficient to sustain a judgment for plaintiff, where the destruction of the property' by fire is shown, in the absence of evidence to show that the fire was due to some want of care on the part of defendant, or that some negligence on his part cooperated with the fire to produce the loss. p. 178.</p> <p>9. Negligence. — Trial.-—Burden of Proof. — The burden of showing negligence is on plaintiff and it never shifts, though the duty of proceeding with the evidence may shift from side to side as one or the other of the parties makes out a prima facie case, p. 178.</p> <p>10. Bailment. — Loss of Property. — Evidence.—Sufficiency.—Under a complaint for the loss of plaintiff’s team by fire, alleging facts showing the duty of a bailee owing from defendant to plaintiff, and charging negligence in locking the barn so that plaintiff could not rescue his property, plaintiff was required to prove that ordinary care required that the door should not be locked, and that it was locked by defendant or its servants, and, in the absence of a showing of any conditions or circumstances from which the jury could have been justified in finding that ordinary care required that the door should have been left unlocked, the evidence was not sufficient to sustain a verdict for plaintiff in that respect, p. 178.</p> <p>11. Bailment. — Loss of Property. — Evidence.—Sufficiency.—Ordivm'y Care. — In an action for the loss- of plaintiff’s team by fire which destroyed the barn in which it was kept, where the complaint showed that defendant was a bailee of plaintiff’s property, and charged negligence in failing to leave anyone to unlock the barn or to give warning in case of fire, a failure of the proof to show conditions and circumstances justifying a finding that keeping a watchman was such a precaution as was reasonably to be required in the exercise of ordinary prudence, rendered the evidence insufficient to establish such negligence, since as a rule ordinary care does not require that a watchman be kept constantly in and about every building during the hours of darkness to protect property against fire, thieves, or other dangers, p, 179.</p> <p>12. Negligence. — Action.—Ordinary Gave. — Evidence. — Evidence in a negligence case, that defendant kept a watchman at night whose duty it was to visit defendant’s barn once each hour, even if conceded as showing that ordinary care required the keeping of a watchman to look after the stable, also shows that this precaution was taken in so far as it was regarded as necessary in the exercise of ordinary care. p. 180.</p> <p>13. ’ Negligence.- — Trial.—Evidence.—A charge of negligence against defendant in failing to keep a watchman about its barn, in which plaintiff’s property was lost by fire, is not supported by evidence showing that defendant kept a watchman and that the loss was due to the latter’s negligence, p. 181.</p>

<p>Prom Howard Circuit Court; William C. Pwrdum, Judge.</p> <p>Action by Anna T. Walsb against the Kokomo, Marion and Western Traction Company. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>Husband and Wive. — Wife’s Interest in Realty of Deceased Susband. — Childless Second Wife. — Administrator's Sale to Fay Debts. — Conelusiveness of Order. — Where decedent, who died in 1879, left surviving him a childless second wife and minor children by his former marriage, an order of court made in a proceeding to which the children were 'parties, on the petition of the widow as administratrix for the sale of the realty for the payment of decedent’s debts, directing a sale subject to a life estate in one-third thereof in favor of the widow, as prayed in such petition, not having been set aside or appealed from, was conclusive ; hence no interest in such realty descended to such children on the death of the widow, and they were not entitled to'a decree quieting the title in them to an undivided one-third thereof.</p>

Prom Sullivan Circuit Court; W. E. Bridwell, Judge. Action between John Roark and another and Thomas S. Voshell and others. Prom a judgment for the latter, the former appeal.

<p>Prom Superior Court of Marion County (81,123); Pliny W. Bartholomew, Judge.</p> <p>Action by Carrie Holland against John "Wocher and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Trial. — Directing Verdict. — As against a motion to direct a verdict, the court must accept as true all facts that the evidence tends to prove and all inferences deducihle therefrom, p. 217.</p> <p>2. Negligence. — Contributory Negligence. — Question for Court.— Where the evidence relating to contributory negligence is undisputed and susceptible to but one reasonable inference, the question of whether contributory negligence is shown is a question of law for the court, p. 217.</p> <p>3. .Negligence. — Injury to Property. — Oontributory Negligence.— Burden of Proof. — In an action for injury to personal property through alleged negligence of defendant, the fact that defendant’s negligence is shown does not of itself entitle plaintiff to recover, but plaintiff must show freedom from contributory negligence, and that the negligence charged was the piroximate cause of the injury, p. 21S.</p> <p>4. Negligence. — Duty to Use Care. — A person placed in a dangerous position must exercise his reasoning faculties and do all that a careful, prudent man would do under the circumstances to avoid injury, and the greater the danger, the greater the precaution that should be used. p. 218.</p> <p>5. Railroads. — Crossing Accidents. — Notice of Danger. — Railroad crossings are in themselves warnings of danger, and all persons approaching the same must act upon that assumption, p. 218.</p> <p>6. Railroads. — Crossing Accidents. — Injury to Property. — Bvir. dence. — Sufficiency.—Plaintiff’s servant engaged in the operation of a road roller on a highway crossed by defendant’s railroad, was charged with tire exercise of ordinary care, and though the evidence showed negligence in the operation of the train over the crossing, and that plaintiff’s road roller was struck and demolished thereby, plaintiff was not entitled to recover where undisputed evidence showed that such servant acted on the assumption that the train had passed, that he took no precaution after reaching a point within fifty feet of the crossing, and that he could have seen the train approaching- had he looked, and the court properly directed a verdict for defendant. j>. 218.</p>

From Clark Circuit Court; Harry C. Montgomery, Judge. Action between Edgar A. Perkins and others and the Indiana Manufacturing Company and another. From a judgment for the latter, the former appeal, and the appellee named moves for a dismissal of the appeal.

<p>From Porter Superior Court; Harry B. TuThill, Judge.</p> <p>Action by Henry RatHman against Clayton A. Wood, Sheriff of Porter County. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Probate Court of Marion County (687); Frank B. Ross, Judge.</p> <p>Action by Horace H. Fletcher against Daniel Barton. Prom an order dissolving a temporary restraining order, the plaintiff appeals.</p>

<p>1. Insurance. — Default in Assessment. — Computation of Time.— “After Thirty Days”. — “From”.—Under a policy of live stock insurance providing that the members of the company should not be liable to insured for any loss “after thirty days from notice of each and all assessments, when assessments are unpaid,” the company was liable where plaintiff received notice of his assessment at 8 o’clock a. m. on April 4th, mailed the amount due at 5 o’clock p. m. on May 4th, and suffered a loss at 10 o’clock p. m. of the same day, since the general rule of computation from a given day excludes that day, and the words “after thirty days from notice” clearly meant thirty days after the day on which the notice was received, and especially in view of the fact that “from” in its ordinary acceptation is a term of exclusion. (Broten v. Buean [1865], 24 Ind. 194, criticised and distinguished. ) pp. 241, 246.</p> <p>2. Insurance. — Construction of Policy. — Forfeiture.—An’ insurance contract will be so construed as to avoid a suspension of liability or a forfeiture, and to sustain rather than defeat the purpose of the contract, where that may be done without doing violence to the language employed, p. 246.</p>

Prom Starke Circuit Court; Francis J. Vurpillat, Judge. Action by the State of Indiana, on the relation of Mary Edith Thomas, by her next friend, against Sidney J. Childs and another. Prom a judgment for defendants, the relatrix appeals.

From Lake Circuit Court; Willis C. McMahan, Judge. Application of Josephine E. Young and others to open a judgment against them in favor of Hannah M. Foster. From a judgment denying the relief, the applicants appeal.

<p>1. Appeal. — Record.—Questions,Review able. — Where the only error assigned was in sustaining a demurrer to appellant’s amended complaint, and the precipe for a transcript called for “the amended complaint filed September 21, 1911, and order book entry of filing same”, etc., and tbe order book entry appearing in the record on return to a writ of certiorari showed the filing of an amended complaint on September 14, 1911, while the amended complaint appearing in the record bears the date of September 12, 1911, there is such confusion as to preclude a consideration of the error assigned, pp. 257,259.</p> <p>2. Appeal. — Precipe.—Record.—Questions Reviewable. — A. complete transcript of the record may be ordered orally, but, if a party desired only parts of the record, the parts desired must be designated in the precipe, and the papers not so designated will not be considered in determining the matters presented for appeal, p. 258.</p>

Prom Hamilton Circuit Court; Meade Vestal, Judge. Action by Daisy Cook against Lucy Helms and others. From a judgment for plaintiff, the defendants appeal, and plaintiff moves to dismiss the appeal.

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Martin Pence against Rebecca Rhonemus. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Taxation. — Municipal Tamos. — State and County Tames.- — Superiority of Liens. — Taxes levied for municipal ^purposes are not inferior in rank to those levied for State and county purposes, so that the question of the superiority of the liens of rival claimants is not affected by the fact that the lien of one rests upon a purchase at,a sale for delinquent city taxes while that of the other is based upon a sale for delinquency in taxes levied for county and State purposes, p. 283.</p> <p>2. Taxation. — ‘Lien for Tamos.- — -Statutes. — Municipal Tames.— State and County Tames. — The language of §10843 Burns 1914, Acts 1909 p. 158, relative to the lien of the State for taxes merely declares the lien to be perpetual, without any reference whatever to priority, and is to be understood as providing that when the lien for taxes once attaches to the lands sold, it follows the land although the title to the land is subsequently alienated by the owner thereof; and the rule announced by, the courts in construing the statute, that where property is not of sufficient value to pay both city and county taxes, the sale first rightfully made divests the lien of the other governmental corporation refers to sales for taxes levied by the two distinct governmental corporations for the same given year or years and not to sales of different years for taxes of different years, p. 284.</p> <p>3, Taxation. — Sales Ineffectual to Convey Title. — Liens for Taxes. —Priority.—Under §§10393, 10394 Burns 1914, Acts 1901 p. 336, where' a sale for delinquent taxes is ineffectual to convey title, the court in an action by the purchaser to quiet title will not dismiss, but will order the land sold to pay the amount due the plaintiff for taxes, interest and penalties; hence in view of the fact' that there is no legislative provision for priority of one tax lien over another, equitable principles must. be applied in determining the rights of purchasers at two different tax sales, neither of which was effectual to convey title, and since taxes though levied by different governmental subdivisions are of equal ranis and the taxes for any one year can not be said to have precedence over the taxes for any subsequent or former year, the liens of the respective claimants should be declared equal in priority and the land should be ordered sold, and the proceeds divided in the ratio and proportion of the specific .amounts found to be due to each claimant, p. 285.</p> <p>4. Taxation. — Liens for Taxes. — Legislative Power. — The legislature has the power to declare a lien for taxes to be a perpetual lien on the property sold to obtain the necessary revenues, and to declare what taxes shall constitute a paramount lien, p. 287.</p>

<p>1. Appeal. — Review».—Weight of Conflicting Evidence. — The court on appeal will not weigh conflicting oral testimony, either in a suit in equity or an action at law, and the finding of the trial court thereon is conclusive on appeal, p. 292.</p> <p>2. Deeds. — Undue Influence and Fraud. — Evidence.—Review.—A deed can not be set aside on the ground that its execution was procured by undue influence and fraud, where all the evidence bearing upon that subject merely disclosed that the grantee and her family had been kind to the grantor during the years of his adversity, and that he had a desire ,to reward her when property should come into his hands, and finally did so by the execution of the deed, in suit. p. 292.</p> <p>3. Divorce. — Decree.—Collateral Attach. — A decree of divorce that is absolutely void, may be challenged collaterally; but if it is merely voidable, the attack must be by direct proceeding, p. 294.</p> <p>4. Divorce. — Decree.—Collateral Attach. — Want of Jurisdiction.— A judgment or decree entered of record in a court of general jurisdiction is not void for want of jurisdiction merely from the fact that the couft did not have jurisdiction to render it, but, to render it void, such want of jurisdiction must appear upon the face of the record; hence, the fact that summons in a divorce action was not served on defendant, who was a resident of the State, and that the decree was granted on default after publication of notice on the affidavit of plaintiff that the defendant was a nonresident, did not render the decree void for want of jurisdiction, and subject to collateral attack, where there was nothing on the face of the record affirmatively showing that defendant had no notice^ of the action, p. 294.</p> <p>5. Divorce. — Vacation of Decree. — Effect.—A valid judgment vacating a decree of divorce renders the decree void ab initio and restores the parties to their previous marital rights, p. 298. Divorce. — Vacation of Decree. — Collateral Attach. — Where the plaintiff’s right to property involved in the action is-based upon a judgment vacating a decree of divorce, the contention that plaintiff should be denied relief because she waited three years after learning of the divorce decree, and until her husband had become possessed of property, before commencing proceedings to vacate the decree, can not be inquired into, since the court rendering the judgment was one of generad jurisdiction, and the infirmity does not appear upon the face of the record, p-. 299.</p> <p>7. Divorce. — Vacation of Decree. — Death of Party. — On the death of a party who has obtained a divorce, either before or after a suit is brought to set aside the decree, the court is without jurisdiction to determine the question and set aside the decree, independent of any other question; and if property rights are involved in such suit, the issues should be reformed and all persons interested should be made parties; hence a judgment-rendered after the death of the party who had obtained a divorce, on the substitution of his administrator only as a party, was ineffective to vacate the decree, p. 299.</p>

From Lake Superior Court; Virgil S. Reiter, Judge. Action by Oscar Holmstrom, as administrator of the estate of Gotfried Wickstrom, deceased, against the Standard Forgings Company. From a judgment for plaintiff, tbe defendant appeals.

From Floyd Circuit Court; William C. Utz, Judge. Action by the City of New Albany against The Kentucky and Indiana Bridge and Railroad Company and others. From a judgment for defendants, the plaintiff appeals.

From Rush Circuit Court; John D. Magee, Judge. Action by Sarah E. Barrett against the Terre Haute, Indianapolis and Eastern Traction Company. Following judgment for plaintiff, the plaintiff died and the defendant prosecutes this appeal against Robert Reeves, administrator of the estate of plaintiff.

<p>From Superior Court of Madison County; H. Clarence Austill, Judge.</p> <p>Action by the De La Vergne Machine Company against the Penn American Plate Glass Company., From a judgment for plaintiff, the defendant appeals.</p>

From Ripley Circuit Court; F. M. Thompson, Judge. Action by Mary A. Starks, administratrix of tbe estate of Francis Starks, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Fraudulent Conveyances. — Conveyance in Furtherance of Trust. — Rights of Parties. — Where a conveyance by a daughter to her mother, though made by a deed of general warranty, was pursuant to an agreement that the mother should hold the property in trust for the daughter and reconvey same to her upon demand, a conveyance to the daughter after the land had been levied upon under an execution against the mother can not be assailed as fraudulent by those claiming under the execution, p. 374.</p> <p>2. Execution. —- Conveyance of Property. — Rights of Parrtles.— Where a conveyance passes both the legal and equitable title to the grantee, the lien of an execution against the grantee levied upon the land prior to a reconveyance to the grantor is a valid and subsisting lien, regardless of whether the reconveyance was fraudulent. p. 374.</p> <p>3. Fraud..— Instructions. — Burden of Proof. — Instructions that fraud is never presumed are not open to the objection that they inform the jury that fraud can not be inferred, there being a clear distinction between presumptions of law and inferences from facts proved, p. 374.</p> <p>4. Fraud. — Burden of Proof. — Fraud is never presumed, and, since it is criminal in its nature, the party charging fraud has the burden of clearly proving same. p. 375.</p> <p>5. Fraud. — Burden of Proof. — Although under §1101 Burns 1914, §1055 R. S. 1881, fraud as a defense may be shown under the general denial, the rule that where the evidence under the issue formed by the general denial is equally balanced the plaintiff must fail, does not apply, but, owing to the peculiar nature of the defense, the defendant must establish the fraud by a fair preponderance of the evidence, p. 375.</p> <p>6. Appeal. — Review.—Instructions.—Where the jury was fully and fairly instructed on the preponderance of the evidence by the first instruction given, other instructions were not objectionable because they did not repeat that plaintiff was required to^prove the facts set forth therein by a preponderance of the evidence, p. 376.</p> <p>7. Fraudulent Conveyances. — Instructions. — Burden of Proof.— Where defendant, claiming under an execution against plaintiff’s mother levied on- land subsequently reconveyed to plaintiff by her mother, assailed the reconveyance as fraudulent, an instruction that defendant must establish the alleged fraud by a preponderance of the evidence before the jury could find for it on that branch of the case, that unless satisfied from the preponderance that defendant had clearly proved the existence of fraud,"the jury could not find for defendant, provided plaintiff had established her title by the preponderance of the evidence, that fraud is never presumed and would not be presumed from the acts of plaintiff and her mother which might be accounted for under the evidence on the basis of honesty and good faith, was not erroneous as requiring proof of fraud though there was no consideration paid by plaintiff for the reconveyance, or as assuming that the acts of plaintiff and her mother could be accounted for on the basis of honesty and good faith, p. 376.</p> <p>8. Appeal. — Review.—Verdict.—The court on appeal can not disturb a verdict on the weight of the evidence, p. 378.</p>

<p>1. Dismissal. — Grounds.—Want of Prosecution. — Pending Demur-re»'. — Under a rule of the trial court providing that causes that have stood for two previous terms without having been advanced will be dismissed for want of prosecution, the court had authority to dismiss a cause that had stood for four previous terms without having been advanced, notwithstanding a demurrer filed to the comxilaint was pending and undisposed of, since it was the duty of plaintiff to see that same was disposed of and his cause advanced. p. 379.</p> <p>2. Appeal. — Review.—Discretion.—Dismissal.—The dismissal of a cause for want of prosecution is largely within the discretion of the trial court, and the exercise of such discretion will not be reviewed on appeal unless a clear abuse is shown, and where there is evidence tending to support the court’s action, such abuse is not shown, p. 380.</p>

<p>From Orange Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by John Gorman against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Marion County (85,655); Charles J. Orbison, Judge.</p> <p>Action by Bernard W. Helman against the C. F. Adams Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Tipton Circuit Court; Leroy B. Nash, Judge.</p> <p>Action by Charles W. Winfield against the Majestic Life Assurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Vendor and Purchaser. — Contract to Pay Mortgage Debt.-— Nonperformance. — Action.—Necessity for Demand. — The promise of a vendor at the time of delivering a deed purporting to convey the property described free and clear of all encumbrances, to pay an existing mortgage debt on the premises, implied that payment should be made when the debt matured, and his failure to so pay and permitting a suit to foreclose long after maturity amounted to a renunciation of the promise and waived the necessity of demand for performance as prerequisite to an action by the purchaser. p. 415.</p> <p>2. Evidence. — Parol Evidence. — Consideration for Deed. — Notwithstanding the general rule that all preliminary negotiations and agreements are merged in a deed, where the consideration is stated in general terms, that is, when it is not contractual, the true consideration may be shown by parol evidence for any purpose except to defeat the operation of the deed as a valid grant, p. 416.</p> <p>3. Vendor and Purchaser. — Parol Agreement to Pay Mortgage Debt.- — Enforcement.—A parol agreement by a vendor, who had contracted to convey free of encumbrances, to pay off a mortgage debt found to exist at the time he tendered a warranty deed to the purchaser, became a part of the consideration for the purchaser’s subsequent acceptance of the deed and the transfer of the consideration therefor, and on failure of the vendor to perform, the purchaser may sue for the breach. • p. 417.</p> <p>4. Pleadins. — Complaint.—Sufficiency against Demurrer. — Where a complaint states facts entitling plaintiff to some relief, it is good against demurrer although the nature of the action and the relief demanded are not as definitely pleaded as might be desired, p. 417.</p> <p>5. Action.— Pleading.— Theory.— Determination.— The character and theory of an action are determined by the facts stated in the complaint and not by the prayer for relief, p. 417.</p> <p>6. Deeds. — Contracts.—Merger.—Acceptance of Conveyance. — Effect. — In the absence of fraud or mistake, all prior or c'ontemporaneous negotiations or executory agreements, written or verbal, leading up to the execution of a deed are merged therein by the grantee’s acceptance of the conveyance, even though the grantor is a third person, not a party to such negotiations or agreements, if the deed is made in compliance therewith, p. 418.</p> <p>7. Vendor and Purchaser. — Contracts.—Action for Nonperformance.- — Accord and Satisfaction. — Sufficiency of Answer. — In an action to recover for a vendor’s failure to perform an oral agreement to pay off a mortgage debt made at the time of delivering to plaintiff a deed executed by a third person and purporting to convey the land free from all encumbrances, an answer averring the acceptance of the deed as. a merger of all agreements between the vendor and plaintiff and a consequent release of the vendor from his obligation to furnish a title free from encumbrances, or as an accord and satisfaction, was not good as an answer of accord and satisfaction, since it simply averred a satisfaction without an accord; but if construed as simply affirmatively pleading a merger, the answer was not insufficient for failure to plead a consideration, since a merger is not a new or additional contract, but is the effect of the acceptance of a contract upon prior or contemporaneous negotiations terminating in its execution, p. 418.</p> <p>8. Vendor and Purchaser. — Contracts.-—Action.—Issues.—In an action to recover for a vendor’s failure to perform an oral agreement made at the time of delivering a deed to plaintiff, to pay óff a mortgage debt against the land, where the principal questions of fact involved were whether there was such a parol understanding or agreement, or whether plaintiff’s acceptance of the deed, which was executed by one who was not a party thereto merged the parol agreement and released the vendor from his obligation, the latter had a right to have the question of merger submitted to the jury under- the answer of general denial, p. 419.</p> <p>9. Vendor and Purchaser. — Contracts.—Action.—Instructions.— In an action for breach of a contract to sell real estate free from encumbrances, where there was evidence that the vendor promised to pay off a mortgage debt against the land, and that a third person executed a deed to the purchaser, instructions that if the purchaser agreed to accept the deed in satisfaction of the vendor’s obligation to convey free from encumbrances,. the agreement would not be binding unless it was upon some consideration other than that named in the original contract, were confusing and misleading, and irreconcilable with another instruction telling the jury that if plaintiff accepted the deed in compliance with and fulfillment of the original contract, the defendant’s obligation under the original contract was merged in the deed and plaintiff could not recover, p. 420.</p>

<p>1. Malpractice. — Nature of Action. — Complaint.—While' one injured by the malpractice of a physician may declare upon the facts, either in contract or in tort, the action will not be treated as ew contractu, unless the complaint sets forth a promise to enter, - instead of a mere entrance upon, the employment, p. 523.</p> <p>2. Malpractice. — Nature of Action. — Complaint—A complaint for malpractice, though alleging that defendant was employed as a physician and surgeon and was paid a reward to attend and care for plaintiff’s wife, must be treated as an action in tort in the absence of any allegation that the employment of defendant was by the plaintiff, p. 424.</p> <p>3. Bankruptcy. — “Provable Debt". — Right of Action in Tort.— Where a party has a cause of action, which, at his election, he may maintain either upon contract or in tort, the claim or cause of action is a provable debt under the bankruptcy act. p. 424.</p> <p>4. Bankruptcy. — Discharge.—Pleading Action for Malpractice.— Bankruptcy of. Physician. — Notwithstanding a wife may by special contract become individually liable for the services of a physician, the liability for such services is ordinarily against the husband as for necessaries furnished to the wife; hence, so far as disclosed by a complaint for malpractice by a physician in the treatment of plaintiff’s wife, alleging the employment of the physician, but not averring by whom he was employed, the plaintiff might have maintained an action against the physician for breach of contract, by reason of which the claim must be deemed a provable claim under the bankruptcy act, and the discharge of the physician in a bankruptcy proceeding was properly pleaded as a defense to the action, p. 425.</p> <p>5. Bankruptcy. — Discharge.—Pleading.—Notice to Creditors. — la an action against a physician for malpractice, where defendant pleaded a discharge in bankruptcy, alleging that though he had not scheduled the plaintiff’s claim in the bankruptcy proceeding for the reason that he did not regard himself as owing anything to plaintiff, the plaintiff had actual knowledge of such bankruptcy proceeding and failed to prove his claim, the averment of notice was sufficient to withstand a demurrer to the answer as not stating a defense, p. 425.</p>

Proceedings in the Appellate Court on the petition of John W. Talbot for readmission to practice law in the courts of Indiana, under the provisions of §1012a Burns 1914, Acts 1913 p. 318, to which objections were filed by a committee of the St. Joseph County Bar Association.

Prom Perry Circuit Court; William, Ridley, Judge. Action by Ben Kessans against Thekla Kessans and another. Prom a judgment against them on the issues presented by a cross-complaint, the defendants appeal.

<p>From Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action by Charles G-. Williams against James McCarty. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Verdict.—Complaint.—Where a paragraph of complaint, held good on demurrer by the trial court, is found insufficient on appeal, and the verdict does not disclose on which paragraph of the complaint it rests, the sufficiency of other paragraphs is immaterial, since the verdict can not stand, p. 452.</p> <p>2. Municipal Corporations. — Public Works. — Liability for Injuries. —A city is not liable for consequential injuries that result from the construction of public works, in the absence of negligence or want of due care or skill, and this includes the construction, maintenance and operation of sewers and streets, p.452.</p> <p>3. Municipal Corporations. — Covei'nmental Functions. — Liability for Injuries. — A city is not liable for injuries that flow from its failure to perform a governmental function, or from its discretionary acts. p-. 452.</p> <p>4. Municipal Corporations. — Streets.—Duty as to Condition. — A city is required to keep its streets and thoroughfares in a reasonably safe condition for travel in the ordinary manner or mode of travel, and is not required to guard against possible danger, tout only such as might reasonably be anticipated, p. 453.</p> <p>5. Negligence. — Attractive Nuisance. — Municipal Corporations.— The doctrine of “attractive nuisance”, under which an individual or corporation is liable for injuries to a child non sui juris caused by leaving unguarded and exposed machinery or surroundings of such nature and character as to naturally tempt and allure children to play with or otherwise use the same, applies to citi,es. p. 453.</p> <p>6. Negligence. — Attractive Nuisance. — Municipal Corporations.— Liability. — Where the complaint against a city for the death of a boy, drowned while wading in a stream by stepping into a hole therein formed by a sewer emptying there, alleged that the boy, eleven years old, was without knowledge of the existence of the hole, that the city negligently constructed the sewer so as to cause a depression or hole in the bed of the stream and permitted it to remain after it had knowledge thereof, and that, with knowledge that children were attracted thereto, it negligently failed to guard the same, a liability under the doctrine of attractive nuisance was shown, pp. 454, 457.</p> <p>7. Municipal Cobpobations. — Negligence.—Attractive Nuisance.— Liability. — The liability of a city for the death of a child, that was drowned while wading'in a stream by stepping into a hole formed therein by a sewer emptying there, is not affected by the fact that the sewer emptied into the stream on private grounds, nor by the method by which the right to turn the sewer into the stream at such point was obtained, p.456.</p> <p>8. Negligence. — Contributory Negligence. — Infants.—The court can not say as a matter of law that a child eleven years old, who was drowned while wading in a stream by stepping into a hole formed therein by a city sewer emptying there, and of which he had no knowledge, was guilty of contributory negligence, p. 456.</p> <p>9. Appeal. — Review.—Evidence.—Verdict.—Where the facts established by the evidence follow the allegations of the complaint which sufficiently states a cause of action, a verdict based thereon is sustained by sufficient evidence and is not contrary to law. p.457.</p> <p>10. Appeal. — Review.—Harmless Error. — Exclusion of Evidence.— The exclusion of evidence to show a fact which the jury specially found in appellant’s favor, was harmless, p.458.'</p> <p>11. Appeal. — Review.-—Harmless Error. — Instructions.—The giving of instructions as to a city’s duty to keep its streets safe, though not applicable to the evidence, was harmless in view of the jury’s special finding that the place in question was not open for public travel, p. 459.</p> <p>12. Appeal. — Review.—Refusal of Instructions. — Requested instructions not conforming to the thebry of the case properly adopted by the trial court, were correctly refused, p. 459.</p> <p>13. Appeal. — Review.—Harmless Error. — Interrogatories to Party. —The action of the trial court in requiring the appellant to answer certain interrogatories during the process of making the issues, if error, was not harmful where it does not appear that the interrogatories were put in evidence. p>. 469.</p> <p>14. Death. — Death of Child:- — Excessive Damages. — A verdict for $2,250 for the death of a boy eleven years old is not so^ large that the court on appeal can say therefrom that the jury disregarded the instructions of the court and acted with prejudice or partiality, and can not be disturbed on the ground that the amount is excessive, p. 460.</p>

Prom Superior Court of Marion County (84,365); Pliny W. Bartholomew, Judge. Action by Glen Sample, by his next friend Harry E. Sample, against the Indianapolis Union Railway Company and others. From a judgment against it, the defendant named appeals.

<p>1. Appeal. — Presenting Questions for Review. — Ruling on Motion to Make Specific. — Briefs.—On alleged error in the overruling of a motion to make a complaint more specific, no. question is presented on specifications therein as to which appellant’s brief does not indicate that the ruling was in any way harmful, p. 483.</p> <p>2. Municipal Corporations. — Injuries from, Defective Streets.— Complaint. — Motion to Make Specific.- — Where the complaint in an action aganst a city for injuries by falling into a hole in a street alleged that on- the day of the injury, and for more, than two months prior thereto, the defendant negligently permitted a hole about four inches deep, fourteen inches wide and two feet long, to exist in its street about eight feet east of the west curb line and about twenty-five feet south of a certain cross street, and on the west side of the railway track located therein, there was no reversible error in overruling a motion to make the complaint more specific by more definite allegations as to the shape, form and contour of such hole. p. 483.</p> <p>3. Municipal Corporations. — Injuries from Defective Streets.— ■' Complaint. — Motion to Make Specific. — A complaint for injuries caused by a defective street, alleging that on a dark evening when the streets were covered with water, plaintiff, while walking with due care from one street car to another, “stepped, slipped and fell’ into a certain described hole in the street, sufficiently alleged the manner in which the injury was received, as against a motion to make it more specific in that respect, p. 484.</p> <p>4. Municipal Corporations. — Imjw-ies from Defective Streets.— ’ Complaint. — Sufficiency.—Where a complaint against a city for injuries from falling into a hole in a street, alleged the existence of a hole, which was specifically described, for a period of more than two months prior to the injury, and alleged facts showing the manner in which plaintiff was injured thereby, it was sufficient as against the objection that no actionable negligence was shown and that it did not show that the alleged defect caused the injury, p. 485.</p> <p>5. Pleading. — Complaint.—Sufficiency on Appeal. — Where a complaint is sufficient to withstand a demurrer it is sufficient as against an attack on appeal by independent assignment of error, p. 485.</p> <p>6. Appeal. — Review.—Harmless Error. — Instructions,—Alleged error in the giving of an instruction relating only to the amount of damages will be treated as harmless, where appellant fails to present any question relating to excessive damages, p. 485.</p> <p>7. Appeal.- — Review.—Refusal of Instructions. — In an action for injuries by falling into- a hole in a street, at a time when the street was covered with water from a heavy rain, a requested instruction stating that if parts of the street were covered with water and plaintiff failed to use due care by stepping on places that were not covered with water, she assumed the risk of any injury that might occur by stepping on places covered by water, etc., was erroneous and properly refused, p.486.</p> <p>8. Municipal Corporations. — Streets.-—Duty to Keep Safe for Travel. — A city is charged -with the duty of keeping its streets reasonably safe for travel both in the daytime and nighttime, p. 486.</p> <p>9. Municipal Corporations. — Injuries from. Defective Streets.— Trial. — Verdict. — Ansioers to Interrogatories. — In an action against a city for injuries sustained by falling into a hole in a street, a verdict for plaintiff is not overcome by the jury’s answers to interrogatories specially finding the character and nature of the alleged defect, in the absence of a further finding that such defect did not render the street dangerous, or that The street was reasonably safe for travel at the time and place of .the injury, p. 486.</p> <p>10. Appeal.— Review.— Verdict.— Answers to Interrogatories.— A verdict for plaintiff for injuries sustained in stepping into a hole in a street is not open to attack on the ground that the jury’s answers to interrogatories show that plaintiff was guilty of contributory negligence in stepping into water which covered the hole without first ascertaining the depth of the water, in view of evidence showing not only the character of the alleged defect, but also showing that the injury was received after dark, that it was raining and that the street was covered with water at the time. p. 487.</p>

<p>From Superior Court of Marion County (20,353); E. W. Little, Special Judge.</p> <p>Action by George W. Paul against the State Exchange Bank. From a judgment for plaintiff, the defendant appeals.</p>

From White Circuit Court; James P. Wason,• Judge. Action by William N. Garrett and others against James O. Shaw and others. From the judgment rendered, James O. Shaw and certain of the defendants appeal.

<p>1. Appeal. — Record.—Presumptions.—No presumption can be im dulged that a pleading copied into the record, but not properly identified, is the pleading upon which the case was tried, p. 501.</p> <p>2. Appeal.. — Records—Identity of Oomplamt. — To sustain appellant’s burden to point out error, the complaint on which the cause was tried must be a part of the record and properly identified, and, while the use of the word “complaint” for “amended complaint”, or other variation of terms, will be held immaterial if the identity of the pleading can be ascertained from the record, the identity must be so definite and certain as to leave no reasonable ground for doubt or speculation, or the appeal must fail. p. 501.</p> <p>3. Appeal.. — ■Dill of Exceptions. — Failure to Show Fili/ng. — Where the bill of exceptions containing the evidence is not shown to have been filed with the clerk below, it can not be considered a part of the record on appeal, and questions arising on the evidence can not be considered, p. 502.</p>

Prom Porter Superior Court; Harry B. Tuthill, Judge. Action by Aramanis P. Knotts against Lena Mayer and others, in which. Eugene H. Zeigler was later made a party defendant. Prom a judgment for the last named defendant, the plaintiff appeals.

<p>From Pulton Circuit Court; Harry Bernetha, Judge.</p> <p>Action by John Seisler against the Indiana Union Traction Company and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Verdict.—Answers to Interrogatories. — Scope of Remeto. — In determining on appeal whether there was error in overruling a motion for judgment on the general verdict and in sustaining a motion for judgment on the jury’s answers to interrogatories, only the pleadings, the interrogatories and answers, and the general veirdict, are to be considered, p'. 518.</p> <p>2. Railroads. — Interurban.— Crossing Accidents.■— Complaint.— Last Clear Chance. — A complaint for injuries by being struck by an interurban car at a street crossing, alleging that when plaintiff saw the car approaching it was so near that he could not stop his automobile, that the motorman in charge of the car could and did see plaintiff’s danger and saw him try to avoid collision, and saw and knevv that a collision would occur if he did not stop the car, but that he made no effort to stop the car and negligently ran the car on and over the crossing and against plaintiff, although by the exercise of ordinary care he could have stopped it, etc., invokes the doctrine of last clear chance and is sufficient on that theory. p>. 518.</p> <p>3. Railroads. — Interurban.—Crossing ' Accidents. — Trial.—Verdict. —Answers to Interrogatories. — In an action for injuries sustained in collision with an interurban car at a street crossing, where under one paragraph of complaint, the general verdict amounted to a finding that notwithstanding plaintiff’s negligence in approaching the crossing, there came a time when his negligence ceased and he did all that he could to avoid injury, and that defendant’s motorman saw his danger and that unless he stopped the'car a collision would result, and that he could have applied the brakes and prevented a collision, answers by the jury to interrogatories were not in conflict with the general verdict where it appeared therefrom that the motorman could have shipped his car and avoided the collision, but that he did not apply the brakes or make any effort to stop it, notwithstanding other answers showing that plaintiff was negligent in approaching the crossing and tending to show that the motorman may not have had sufficient time in -which to stop the car. pp. 520, 523.</p> <p>4. Tkial. — Verdict. — Answers to Interrogatories. — Inconsistent Ansioers. — Answers 'to interrogatories by th,e jury furnish no ground for judgment thereon as against the general verdict, where they are contradictory or inconsistent with each other, p. 523.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by Emma Fort against Stephen G. White, executor with the will annexed of Stephen G. Scott, deceased, and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Deains. — Establishment.—Benefits.—Assessment Against Township. — The statutory rule since the enactment of the drainage act of 1885 (Acts 1885 p. 129, §9), has been to assess the benefits accruing to a public highway on account of the establishment of public drainage against the proper township, so that it must be . presumed that any expense based on benefits to a public highway resulting from the construction of a drain,' and an arch, and retaining wall as a part thereof, was incurred and paid by the township, and hence the county wouid have no right to recover damages to the highway based upon the payment of such benefits. P". 533.</p> <p>2. Bridges. — Ownership.—Property Loss. — Strictly speaking, local political corporations do not have a proprietary interest in public roads or in a bridge while performing its functions as such as a part of a public highway over a watercourse not forming a part of either a township or county line, but such ownership is in the State; hence the injury resulting to a township or county from the destruction of an arch and retaining wall, which performed the functions of a highway bridge, was not a property loss upon which a recovery by either could be predicated, p.534.</p> <p>3. Highways. — Ownership.—Duty to Repair. — The law contemplates that all public highways be kept in repair for public use, and, while they are not owned locally, the State has in each instance charged some governmental subdivision with the duty of making repairs; and, since the duty to repair is coextensive with the injury, the State as technical owner incurs no loss, so that right of recovery for such injury would seem to be, prima facie at least, in the political corporation charged with the duty of making repairs, p. 534.</p> <p>4. Bridges. — Destruction.—Action.•—Right to Sue. — In .view of the statutory provisions relating to the repair of highways and bridges, where a bridge is damaged or destroyed so as to render necessary its repair or restoration the duty'to that end rests prima facie upon the authorities of the township in which the bridge is located; but when the estimated expense exceeds the available means of the township authorities the duty to make the repairs rests upon the county, p. 535.</p> <p>5. Highways. — Damages.—Right to Recover. — In case of damage to an ordinary highway, the township is the proper party to recover therefor, while the cause of action is in the county where the injury is to a free gravel, macadam or turnpike road. p. 538.</p> <p>6.. Bridges. — Destruction.—Injury.—Right of Action. — Where there has been a negligent injury to or destruction of a bridge, the township may at once maintain an action to recover damages therefor, provided there has been no prior determination that the duty to repair or restore rests upon the county, p. 539.</p> <p>7. Bridges. — Destruction.—Injury.—Right of Action. — Where a bridge was injured, and the township took no steps to repair it, and the county commissioners assumed charge of the work, and caused repairs to be made and paid the expense out of the county funds, the county alone could sue for the damages, p. 539.</p>

<p>From Perry Circuit Court; William Ridley, Judge.</p> <p>Action by Mary E. Irvin against William D. Crammond. From a judgment for defendant, the plaintiff appeals.</p>

From Marion Circuit Court (19,317); Charles Remster, Judge. Action by Jacob L. Bieler,. executor of the last will of Louis Thieme, deceased, against the Supreme Lodge Knights of Honor. From a judgment for plaintiff, the defendant appeals.

<p>Prom Wells Circuit Court; H. J. Paulus, Special Judge.</p> <p>Action by William A. Curry and others against Charles Curry and others. Prom an adverse judgment, William A. Curry and others appeal.</p>

<p>Prom Vigo Circuit Court; Charles M. Fortune, Judge.</p> <p>Action by Coxe Brothers & Company against Peter M. Foley. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Record.—Bill of Exceptions. — Where the bill of exceptions containing the evidence was not presented to the trial judge within the time allowed for the presentation of a bill of exceptions, the same was not properly a part of the record on appeal, p. 590.</p> <p>2. Contracts. — Commissions.—Sales of Real Estate. — Statutes.— There can be no recovery on an oral contract of employment to act as agent for the sale of real estate, but where services have been rendered under such an agreement, the equitable consideration arising out of the transaction is sufficient to support a written contract thereafter executed to pay for such services, p. 590.</p> <p>8. Contracts. — Commissions.-—Sales of Real Estate. — Where a landowner agreed to pay a real estate agent his commission as soon as the sale was completed, and executed a writing to that effect the day after he and the prospective purchaser had entered into a binding agreement for the sale of the property, the broker could then have recovered his commission, though the conveyance had not been made or the purchase price paid; but on the subsequent modification of the contract between the owner and the prospective purchaser, made at the solicitation of the agent, whereby the purchaser was given a mere option which was never exercised, the agent could recover nothing on his commission contract, p. 590.</p>

<p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Hamlin S.. Headley and others against The Indianapolis Southern Railway Company. From a judgment for defendant, the plaintiffs appeal.</p>

Prom Pulaski Circuit Court; George A. Williams, Special Judge. Action by Bertha Blumenthal, administratrix of the estate of Morris Blumenthal, deceased, and othsrs, against Ralpha L. Laramore. Prom a judgment for plaintiffs, the defendant appeals.

<p>1. Evidence. — Parol Evidence. — Judgment.—Questions Concluded. —Where the record, including the pleadings, is clear and unambiguous, it is the best evidence of what was adjudicated and is conclusive, but where it is ambiguous, parol proof may be heard to determine what was actually tried and determined, p. 611.</p> <p>2. Injunction. — Temporary Restraining Order. — Dissolution.— Costs. — Where a temporary order restraining the payed of certain notes not due from transferring the same to an innocent holder before maturity was issued on a complaint seeking injunctive relief and the cancellation of the notes, and prior to submission of the cause on the question of injunction the notes had matured, a dissolution of the restraining order was required at the cost of defendant, if it appeared that at the time the suit was filed, he was in fact about to transfer such notes to cut off a meritorious defense thereto, otherwise at plaintiff’s costs, p. 612.</p> <p>3. Appeal. — Retiñen?.—Presumptions.—Where the evidence is not in the record, the court on appeal may assume any possible evidence within the issues consistent with the judgment, p. 612.</p> <p>4. Appeal. — Record.—Matters Adjudicated. — Evidence.—Where the record as to what was determined in a suit is ambiguous, the question must be determined in the light of the facts shown by the record supplemented by any competent evidence, p. 613.</p> <p>5. Bills and Notes. — Action to Cancel and Enjoin Transfer.— —Trial.—Issues.—Question Adjudicated. — Where plaintiffs sought the cancellation of notes and to have defendant enjoined from transferring them to innocent holders before maturity, and defendant answered in general denial, and filed a cross-complaint seeking recovery on the notes, to which cross-complaint plaintiffs answered by setting up substantially the same facts as alleged in the complaint, the court could properly try and determine the right to injunctive relief without determining the merits of the case; and since a trial of plaintiff’s right to a cancellation involved a consideration of all the questions pertaining to the merits of the case, the failure of the court to require a trial of the issues presented on the cross-complaint, together with the fact that a change of venue was granted after judgment dissolving the temporary restraining order, makes clear that the court’s finding that the restraining order should be dissolved embraced the only question determined, although the record of submission showed that the cause was submitted on questions of injunction and’ cancellation of notes, pp. 613, 614.</p> <p>6. Judgment. — Qonelusiveness. — Matters Concluded. — The judgment of a court is only presumptively conclusive as a former adjudication when it appears that the action and issues were of such character that the judgment could not have been rendered without deciding the particular questions again presented, p. 614.</p>

Prom Superior Court of Vigo County; John E. Cox, Judge. Actions by Wilber A. Anderson and by others against William A. McClure, and subsequently consolidated. Prom the judgments rendered, the defendant appeals.

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Albert Hacker against the Gary and Interurban Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Posey Circuit Court; Alexander Gilchrist, Special Judge.</p> <p>Action by George S. French and others against William H. French and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Appeal. — Assignment of Errors.- — Amendment.—The assignment of errors is the complaint on appeal, and its filing is an essential element to perfecting the appeal, so that the court can not permit an amendment after the time for appeal has expired, p. 634.</p> <p>2. Appeal. — Briefs.—Amendment.—An appellant has the right to file amended briefs at any time within the time allowed for filing of briefs by appellant, and the court, on proper showing, will permit such amendment after such time has expired, if the ap plication is made before the expiration of the time for perfecting the appeal; but such application will be refused if made after such time, unless the necessity for the amendment resulted from the acts or conduct of the appellee, or from some cause for which appellant was blameless, p. 635.</p> <p>3. Appeal.- — -Questions Reviewdble. — Briefs.—No question is presented on alleged error in the ruling on a demurrer, where the pleading to which the demurrer was addressed is not set out in appellant’s brief p. 636.</p> <p>4. Appeal. — Questions Reviewdble. — Conclusions of Law. — Briefs. —An assignment of error challenging the conclusions of law is not available either where the findings are not set out in appellant’s brief, or where the challenge is to the conclusions in gross and one of the conclusions is favorable to appellant and not questioned, p. 636.</p> <p>5. Appeal. — Assignment of Errors. — Motion to Modify Conclusions. —Assignments of error in the overruling of a motion, to modify and restate conclusions of law are not available because such motion is not recognized in the practice, p. 636.</p> <p>6. Appeal. — Questions Revieiodble. — Overmling Motion for New Trial. — Record.—Briefs.—Alleged error in overruling a motion for new trial is not available where the evidence is not in the record and appellant’s brief does not contain enough of the record to enable the court to determine any questions presented by the motion, p. 636.</p> <p>T. Appeal.- — Motion for New Trial. — Questions Presented. — The question of whether the trial court erred in a certain conclusion of law, and in rendering so much of the judgment as is founded thereon, is not presented by a motion for new trial, p. 636.</p> <p>8. Appeal. — Assignment of Errors. — Overruling Motion to Modify Judgment. — Error can not be predicated on the overruling of a motion to modify the judgment, where the judgment follows and conforms to the court’s conclusions of law. p. 637.</p>

<p>From Warren. Circuit Court; Burton B. Berry, Judge.</p> <p>Action by The Cable Company against Harry McElhoe. From a judgment for defendant, the plaintiff appeals.</p>

Prom Perry Circuit Court; William Ridley, Judge. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Perry, against Henry Heim and another. Prom a judgment for defendants, the relator appeals.

<p>Prom Sullivan Circuit Court; Allison G. McNabb, Special Judge.</p> <p>Action by Noah. O. Robbins against Ed. H. Reed. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeai. — Record.—Ruling on Demurrer.< — Waiver of Objections. —Where the record on appeal discloses the filing of an amended complaint several weeks after the act requiring a demurrer for want of facts to be accompanied by a memorandum of defects (§344 Burns 1914, Acts 1911 p. 415) went into effect, and does not disclose anything as to the filing of the original complaint, the court can not infer that such original complaint was filed prior to the taking effect of such act, and hence must treat objections to the sufficiency of the amended complaint as waived, in the absence of a memorandum accompanying the demurrer thereto, p. 671.</p> <p>2. Witnesses. — Privileged Communications. — Husband and Wife.— A communication made by a husband to his wife, and not shown to have been made out of the presence of third parties under such circumstances as to bring it within the prohibition of subd. 6, §520 Burns 1914, §497 R. S. 1881, is not inadmissible as being a privileged commtmication. p. 672.</p> <p>3. Witnesses. — Privileged Communications. — Husband and Wife.— A communication made by a husband to his wife relating to a business transaction, and which has no necessary relation to or dependence upon the mutual trust and confidence of husband and wife, is not inadmissible in evidence under subd. 6, §520 Burns 1914, §497 R. S. 1881, excluding communications between husband and wife. p. 672.</p> <p>4. Evidence. — Self-Serving Declarations. — Dcoplanation of Possession. — In an action to recover for services of a decedent and expenditures made by him while in the possession of land, where the fact of possession was not in dispute, and the only' controversy relating thereto was whether the possession, was that of a tenant or pursuant to a contract by which decedent was to receive land for his services and expenditures, the declarations of decedent made while in possession, and explanatory thereof, were not admissible as tending to prove the contract under which the services were rendered and expenditures made, since, the fact of possession being immaterial and incompetent, such declarations were not within the exception to the rule excluding self-serving declarations making them admissible to explain possession, pp. 673, 675.</p> <p>5. Evidence. — Bes Gestae. — Declarations of Party in Possession.— Where the facts and circumstances of a case are such as to render . the nature and character of possession equivocal, and possession is material to any issue involved, the declarations or statements, of the party in possession, which immediately accompany and characterize such possession, are competent as part of the res gestae, p. 674.</p> <p>6. Evidence.— Declarations.— Admissibility.— Self-Serving Declarations. — The declarations of a party are admissible only when the acts or transactions which they accompany or characterize are competent and material evidence under the issues, and in such case they will be admitted even though they ■ are self-serving declarations made out of the presence of the adverse party, p. 674.</p> <p>7. Husband and Wife. — Gontracts.—Joint Liability. — Declarations of Husband. — Admissibility in Action-Against Wife. — A complaint in an action against a widow alleging that defendant' and her deceased husband were the owners by entirety of certain land and that they jointly and severally agreed with plaintiff’s decedent, in consideration of services to be rendered and money to be expended by the latter for their benefit and the protection of their joint property, to devise to him a certain portion of such land, shows a contract which a married woman could make, and by which she would be bound primarily and jointly as principal with her husband, thus making, on prima facie proof of such contract, the declarations of defendant’s husband relative thereto, and tending to prove some fact in issue, admissible, though made out of her presence, p. 677.</p> <p>8. Evidence. — Admissions.—Parties Jointly Interested or Liable.— Where parties are jointly interested, or have a privity of design, and act together in a transaction for their benefit or the accomplishment of some purpose, or where they are jointly liable on some contract or obligation, the declarations or admissions of one of such parties relating to such transaction or obligation, made out of the presence of the other, are competent against all the parties so interested or obligated, but a mere community of interest is insufficient to make such admissions admissible against all. p. 678.</p> <p>9. Evidence. — Admissions.—■Preliminary Hvidmce. — -Where it is sought to bind one party to a joint contract or arrangement by the declarations of another party thereto, who is not a party to the suit, there must be prima facie proof that a joint contract or arrangement was entered into, and such declarations must be pertinent to some issue other than the existence of such joint contract or interest, p. 679.</p> <p>10. Evidence. — ■Admissions.— Effect of Proof.— Admissions by a party jointly bound with another, which are admissible as tending to prove some other fact in issue, should not be excluded because they also tend to prove the joint contract or interest, p. 679.</p> <p>11. Evidence.— Joint Contract.— Admissions.■ — In an administrator’s action for services rendered and money expended by decedent while in possession of his parents’ farm, evidence showing that before the farm was purchased the parents had him look at it, and would not buy until he ’was satisfied and willing to live on it; that title was taken by the parents jointly; that decedent with his family and parents soon moved on the farm, but resided in separate houses until his father’s death; that he and his family rendered services not usually rendered by tenants; that both parents accepted the services and executed wills of a part of the farm to him; that the mother said he could make repairs as he pleased, for the farm was to be his anyway; that he would be well paid for his work some day; that when her attention was called to his services to his father during sickness, she stated that was provided for in the will; that she continued to accept the benefits of the arrangement after her husband’s death, and that the son expended money before and afterwards with her knowledge and approval; warranted the inference of a joint contract or interest on the part of the parents so as to render competent against the mother declarations by the father in favor of decedent, made out of her presence, to the effect that he had his business fixed up and that decedent was to get a part of the land, etc., as tending to prove the contract had been recognized and executed, in part at least, by decedent’s rendition of services, and by the father fixing his business so that decedent was to get the land for caring for his parents, though such declarations were not competent for the purpose of proving the contract, p. 679.</p> <p>12. Appeal. — Review.—Sufficiency of Evidence. — The sufficiency of evidence is for the court or jury trying the ease and the verdict or decision will not be disturbed on appeal on the ground of insufficient evidence, if there is any evidence to support it. p. 682.</p>

<p>From Fulton Circuit Court; Harry Bernetha, Judge.</p> <p>Action by Albert Toner against Frank McCarter as treasurer of Fulton County, and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>Prom White Circuit Court; James P. Wason, Judge.</p> <p>Action by Gilbert Gates against Harry Sweet. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Railroads. — Destruction of Private Crossing. — Action for Damages. — Complaint.—A complaint for damages for the destruction of a private farm crossing, alleging a covenant in a deed of the right of way to defendant’s predecessor to make and maintain a farm crossing, which was performed up to a certain date when the crossing was destroyed, that such crossing has not since been replaced or rebuilt, that defendant’s tracks and roadbed so divide plaintiffs’ farm that one part of the same is not accessible from the other and plaintiff is unable to cultivate one portion of his farm, and that with a crossing the land would be worth $150 per acre, and without it only $50 per acre, was sufficient as against demurrer to show plaintiff’s right to a crossing through his lands, and that on account of defendant’s acts he had been damaged, p. 697.</p> <p>2. Appeal.— Review.— Harmless Brror.— Demurrer to Answer.— Error, if any, in sustaining a demurrer to a special paragraph of answer in an action for damages for the destruction of a private railroad crossing was harmless, where all the facts pleaded therein were shown in evidence under the general denial, p. 698.</p> <p>3. Easements.- — Railroad Right of Way. — Private Crossing. — Way of Necessity. — Where the original line of railway across plaintiff’s farm by defendant’s predecessor left no practical way of travel from one part of.the farm to another, excexit over the railroad right of way, the law implies a reservation in the owner of a way of necessity over such right of way irrespective of any covenant in the deed granting the right of way; and irrespective of any covenant, or common-law right, the owner is given the right to a crossing under such circumstances by virtue-of §5444 Burns 1914; Acts 1899 p. 485, which right can not be destroyed by condemnation proceedings. p. 699.</p> <p>4. Eminent Domain. — Condemnation for Railroad Right of Way.— Damages.- — Scope.—-Damages in a condemnation proceeding are assessed once for all, and include all present and prospective damages that are the natural and reasonable incidents of the appropriation, but do not include damages to the owner of the land for the permanent loss of a private railroad crossing, though he may recover in such proceeding the damages arising from the temporary interference with his right of free access to all his lands during the period of construction of the railroad track and grades; hence in a subsequent action for damages for the destruction of the crossing no recovery can be had of damages for the temporary loss for the reason that such damages are presumed to have been included in the award in the condemnation iiroceeding. p. 699.</p> <p>5. Railroads. — Right of Way. — Covenants.—Maintenance of Private Crossing. — The conveyance of a railroad right of way through a farm containing the covenant “grantee also to make and maintain a farm crossing”, duly recorded, -and acted upon by grantee and its successor, the defendant, so as- to warrant a presumption of acceptance, bound the defendant to make and maintain such farm crossing, in the absence of any showing that defendant or its predecessor had in any other manner acquired the right to cross plaintiff’s land. p. 700;</p> <p>O. Railroads. — Covenants Running With Land. — Fann Crossings.— Under a deed t’o a right of way through a farm, containing a covenant binding the railroad company to make and maintain a farm crossing, the right to a crossing runs with the land and enures to covenantee’s successor, p. 700.</p> <p>7. Railroads. — Right of Way. — Effect of Covenant. — The right of a landowner under a covenant in a deed for a railroad right of way across his land to make and maintain a farm crossing, is a contract right which can not be destroyed bjr the subsequent condemnation of .additional land for. the right of way, or from the performance of which the railroad company'can not release itself without the consent of the owner, and the acceptance of the damages awarded in such subsequent condemnation would not operate as an agreement to abandon such covenant, p. 700.</p> <p>S. Railroads. — Destruction of Private Crossing. — Damages.—The proper measure of damages for the failure of a railroad company to perform a covenant, requiring it to make and maintain a farm crossing, is the cost of the construction of a crossing together with such amount as will compensate plaintiff for the loss of the use and enjoyment of his farm by the destruction of the crossing from the expiration of a reasonable time for the completion of the reconstruction work on the road, which was the occasion for the destruction, to the time of trial, and where judgment is had for plaintiff, the defendant should be permitted a reasonable time in which to construct the crossing should it prefer to do so rather .than pay the costs of construction p. 702.</p> <p>O. Railroads.— Destruction of Private Crossing.— Damages.— Instructions.' — In an action for damages from the destruction of a private crossing over defendant’s railroad, an instruction that the measure of damages was the difference between the value of the lands with a crossing, and the value of same without a crossing, was erroneous, p. 702.</p>

<p>From Marion Circuit Court (15,192) ; Charles Remster, Judge.</p> <p>Action by Matilda Stough against The Equitable Life Assurance Society of the United States. From a judgment for plaintiff, the defendant appeals.</p>