Volume 59 — Indiana Appellate Court Reports

<p>Prom Knox Circuit Court; B. M. Willoughby, Judge.</p> <p>Action by Martha M. Young against the Modern Woodmen of America. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Knox Circuit Court; B. M. Willoughby, Judge.</p> <p>Action by James M. House against tbe Vandalia Railroad Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>,Appeal. — Questions Reviewable. — Ruling on Demurrers. — No question is presented on the overruling of demurrers to certain paragraphs of a'nswer, where neither appellant’s brief nor the record discloses that a memorandum of defects was filed with such demurrers, as required by §344 Burns 1914, Acts 1911 p. 415.</p>

<p>From Hamilton Circuit Court; Meade Testal, Judge.</p> <p>Action by The Fisher Gibson Company against Eva Mc-Kinzie and another. Prom a judgment for plaintiff, the defendant named appeals.</p>

From Clark Circuit Court; William, G. Utz, Special Judge. Action by Burdette C. Lutz, administrator of tbe estate of Lydia A. Stierbeim, deceased, against Tbe Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, tbe plaintiff appeals.

From Fulton. Circuit Court; Harry Bernetha, Judge. Action commenced by Frank D. Rader, in which. A. J. Barrett Company and others filed cross-complaints, and from the judgment rendered on such cross-complaints Frank D. Rader and another appeal.

<p>From Putnam Circuit Court; John M. Rawley, Judge.</p> <p>Action by tbe First National Bank of Greeneastle against James E. Vermillion and another. From the judgment rendered, the defendants appeal.</p>

<p>1. Appeal — Jurisdiction.—Briefs.—Record.—Where the facts disclosed by the briefs and record on appeal disclose a question as to the court’s jurisdiction of the appeal, that question must be determined -before the merits can be considered, although not presented by a motion to dismiss, p. 58.</p> <p>2. Judgment.' — Final Judgment. — Appeal.—A final judgment from which an appeal will lie is one that disposes of all the issues, as to all the parties, to the full extent of the power of the court to dispose of the same.- p. 58.</p> <p>3. Appeal — Parties.—Where the jury finds against certain defendants and in favor of others, the latter are neither necessary nor proper parties to an appeal from the judgment on such verdict, p. 58.</p> <p>4. Maucious Fbosecution. — Joint Tortfeasors. — Liability.—The liability of a number of persons in procuring a malicious prosecution is several, without any right of contribution that can be enforced as between them, though they may be sued jointly or separately, and a satisfaction of the claim for damages obtained from one or any number of such persons terminates all liability against the others, p. 59.</p> <p>5. Maiicious Pkosecution. — Joint Tortfeasors. — Liability.—Judgment. — Appeal.—Where a person injured by a malicious prosecution procured by three persons elects to bring his action against the parties jointly, he can obtain no other legal satisfaction for the alleged wrong than that afforded by the judgment he obtains in such action, even though such judgment is based on a verdict against only two of the defendants without a finding for or against the third, and, since in view of the nature of their liability none of the defendants affected by the verdict can complain that it was • not also against their co-defendant, the rule in actions on contract, that a verdict against part of the defendants without a finding either for or against the others is a nullity, does not apply; hence the judgment rendered in such case, like judgments in other cases, is presumptively valid, and is a final judgment from which an appeal will lie. pp. 60,62.</p> <p>6. Trial — Findings.—Verdict.—Venire de Novo. — The rule, where the facts are specially found, that all issues and material facts not found will be adjudged against the party who had the burden of proving them, so as to defeat a motion for venire de novo on the ground of a failure to find some material fact, or a failure to find for or against some of the defendants, has no application in cases where the facts are not specially found, so that in the latter instance a verdict that is not a finding on all the issues to be tried is defective, and subject to a motion for a venire de novo. p. 60.</p> <p>7. Appeal. — Review.—Parties.—Dismissal.—In an action against three defendants for malicious prosecution, where the verdict and judgment were against two of the defendants without a finding either for or against the third, an appeal taken by each of the three must be dismissed as to the third, since there was no judgment from which he could appeal, p. 62,</p> <p>8. Malicious Pkosecution. — Complaint.—Sufficiency.—If a complaint for malicious prosecution shows the institution of the prosecution by the filing of the affidavit or complaint maliciously and without probable cause, it need not allege that defendants maliciously and without probable cause procured a warrant to be issued for plaintiff’s arrest and that they followed up and continued such prosecution, p. 64.</p> <p>&. Malicious Prosecution. — Complaint.—Sufficiency.—A complaint for malicious prosecution alleging facts to show that plaintiff had been prosecuted by defendants, that in so doing they acted maliciously and without probable cause, that the prosecution was terminated by plaintiff’s acquittal and final discharge, and that he had been damaged by such prosecution, states a cause of action, p. 65.</p> <p>10. Malicious Prosecution. — Joint Tortfeasors. — Trial. — Evidence of Other Prosecutions hy One Defendant. — In an action against three defendants for malicious prosecution, evidence that one of the defendants had instituted other prosecutions against the plaintiff was admissible against such defendant as tending to show malice and want of probable cause on his part, and his codefendants were not harmed by the admission of such evidence in view of an instruction to the jury limiting its application to the one defendant, p. 65.</p> <p>11. Malicious Prosecution. — Damages.—Evidence.—Fee Paid, in Defending Prosecution. — In an action for malicious prosecution evidence of the amount of attorney’s fees plaintiff was required to pay in defending against the prosecution is competent as affecting the amount of damages, and its admissibilty is not affected by the question of whether the amount was reasonable or otherwise, though evidence upon that question is also competent. p. 66.</p> <p>12. Appeal.— Review.— Refusal of Instructions.— Where the instructions given covered all questions at issue under every phase of the evidence, there was no error in refusing other instructions. p. 66.</p> <p>13. Appeal. — Review.—Instructions.—Where each of three paragraphs of complaint in an action for malicious prosecution statedi a cause of action against all the defendants, an instruction that if the evidence established all the material allegations of either of such paragraphs the finding should be against all the defendants, was not erroneous, especially since the instructions given are to be considered together, and the court by other instructions advised the jury that it might find against such defendant, or defendants, only as the evidence warranted, p. 66.</p> <p>14. Appeal. — Revieto.—Evidence.—Verdict.—Ewcessive Damages.— Although the evidence in an action for malicious prosecution was sharply conflicting on many issuable facts, the verdict for plaintiff can not be disturbed, either on the evidence or on the ground that the damage awarded was too large, where there was evidence to sustain the verdict, and the amount awarded was not such as to warrant the court in holding that it was excessive, p. 67.</p>

<p>From Superior Court of Marion County (88,341); Charles J. Orbison,-Judge.</p> <p>Action by the New Palestine Bank against the New Amsterdam Casualty Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Unauthorized Change in Record. — Dismissal. —Where appeal was granted upon the filing of an appeal bond within thirty days, but the surety was not named on the record, and appellant attempted to perfect a term time appeal by filing the bond within the required time, and it was made to appear that after the transcript was filed the order book entry and the transcript were each altered, without nune pro tunc proceeding, so as to show the naming of such surety, the appeal was not perfected as a term time appeal, and the time having elapsed for perfecting a vacation appeal, a dismissal was required, pp. 78,79.</p> <p>2. Courts. — Records.—Filling Blanks. — The law provides an adequate way for correcting records, and the mere fact that blank ■ spaces are left in a record does not warrant the changing of ! the record by filling such spaces without authority from the court, p. 79.</p>

<p>Appeal. — Record.—Bill of Exceptions. — Dismissal.—A bill of exceptions, to become a part of the record, must be signed by the trial judge and duly filed with the clerk or in open court, which is a judicial act that can neither be dispensed with nor aided by the certificate of the shorthand reporter; hence where the Dill of exceptions did not appear to have been signed by the trial judge, or filed as required, and the only question sought to be raised related to the admission of evidence, there was nothing before the court for determination and a dismissal of the appeal was required.</p>

<p>Aepeai. — Review.—Bill of Exceptions. — Failure to File in Time.— When time for filing a bill of exceptions is granted it must be filed within that time, so that where it appeared that the bill of exceptions was not presented to the trial judge until after the expiration of the time granted for filing, and no extension of the time originally granted was shown, the bill was not in the record so as to present any question thereon for consideration.</p>

<p>1. Schools and School Districts. — Illegal Transfer of Pupils.— Injunction. — An action by a school township to enjoin the county superintendent from illegally transferring township pupils to the schools of a school city, and to enjoin the latter from accepting such transfers and charging the per capita cost to the township, can not be maintained, since, if the transfers are illegal, such fact would be available as a complete defense in any action against the school township for the cost of educating such pupils in the school city. p. 84.</p> <p>2. Injunction. — Right to Relief. — Legal Remedy. — Where there is a complete and adequate remedy at law, relief will not be granted by injunction, p. 84.</p>

From Morgan Circuit Court; John G. McNutt, Special Judge. Proceeding for the confirmation of a contract of settlement entered into between William Fender, administrator with the will annexed of Caroline A. Miller, deceased, and Walker Miller, guardian of Edward A. Miller. Pending such proceeding Edward A. Miller died, and Stephen D. Phillips was appointed administrator of his estate. From a judgment confirming the contract, this appeal is prosecuted.

<p>From Posey Circuit Court; Herdis F. Clements, Judge.</p> <p>Action commenced by William Kerney against the Citizens National Bank, in which Neal W. Kerney, as administrator of the estate of William Kerney, deceased, was later substituted as plaintiff. From a judgment for plaintiff, the defendant appeals.</p>

<p>Railroads. — Township Aid. — Expense of Election. — Statutes.—The provisions of §548S Burns 1914, Acts 1869 (s. s.) p. 92, providing that should an election to vote aid to a railroad result in favor of the railroad appropriation, the expenses of the election, after being paid by the county or township, as the case may be, shall be charged against the railroad company, etc., govern the payment of the expenses incurred in a. special township election held to vote aid to an interurban railroad, and, when considered in the light of the original act for voting aid to railroads (Acts 1869 [s. s.] p. 92) and the amendments thereto, require that the expenses of such an election, if not held in the entire county, shall be paid by the particular township or townships in which the election is held. {Board, etc. v. Center Tp. [18S6], 107 Ind. 584, distinguished.)</p>

<p>1. Appeal. — Assignment of Errors. — Waiver.—Errors assigned but not presented by appellant’s brief are waived, p. 118.</p> <p>2. Negligence. — Collisions on Streets. — Contributory Negligence.— Complaint.- — A complaint for injuries to a motorcyclist who was struck by an automobile at a street crossing, alleging that xfiaintiff, when fifty feet away, saw the automobile approaching three hundred feet from the crossing, is not objectionable as showing that plaintiff was guilty of contributory negligence, in the absence of anything therein to show tha,t he knew that the automobile was approaching at an excessive speed, p. 118.</p> <p>3. Negligence. — Collisions on Streets. — Last Clear Chance. — Complaint. — A complaint for injuries to a motorcyclist who was struck by an automobile at a street crossing, alleging that though defendant “had ample time and room to drive his automobile to the west and rear of plaintiff, he carelessly and negligently drove the same to the east and right” and carelessly and negligently drove the same over and against plaintiff, and that defendant saw, or by the use of reasonable care could have seen plaintiff and avoided the collision, etc., was sufficient to invoke the application of the doctrine of last clear chance, p. 118.</p> <p>4. Appeal. — Review.—Instructions.—There was no error in instructing on the doctrine of last clear chance where one of the paragraphs of complaint was sufficient to invoke that doctrine, nor in giving ah instruction in language which, though formerly disapproved by the Appellate Court, has since been approved by the Supreme Court, p. 119.</p> <p>5. Appeal. — Review.—Instructions.—Urging Jury to Agree. — The giving of an instruction urging the jury to agree on a verdict, stating that litigation is expensive and “the State expects you to do your duty conscientiously and faithfully”, that tlie court has no right and is not attempting to ask any juror to yield his conscientious and settled convictions as to the evidence, “hut that if this jury is being detained from a verdict by any one man or two men, then it is a matter for those in the minority * * * to seriously consider whether his or their own judgment might not be mistaken”, that all business transactions “are done upon the theory of listening to, and, in proper cases, yielding to, the views of others, if they are sound or reasonably so”, and that “in a civil case a jury should approach the solution of the question in that spirit and not the spirit of controversy”, etc., and should not “allow any outside considerations or motives to have any weight * * * except to be governed by the evidence as it has been detailed to you, and the instructions as the court has given them to you”, and directing the jurors to retire and make an earnest effort to reconcile their views, was reversible error, p. 120.</p>

<p>1. Appeal. — Waiver of Error. — Briefs.—Grounds for a new trial not presented or discussed in appellant’s points and autborities, are waived, p. 124.</p> <p>2. New Trial. — Grounds.—Appeal.—Tbat tbe finding and judgment of tbe court are not sustained by sufficient evidence, and tbat tbe finding and judgment of tbe court are contrary to law, are not authorized by the statute as grounds for a new trial, and are insufficient to present any question on appeal, p. 124.</p> <p>3. Appeal.' — Bicrden to Show Error.- — The burden is on appellant to show the commission of harmful error, p. 125.</p>

<p>Prom Jay Circuit Court; James J. Moran, Judge.</p> <p>Actiou by William W. Macy against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — 'Review. — Briefs. — Sufficiency. — Where appellant’s brief shows a substantial and good-faith effort to comply with the rules of the Supreme and Appellate Courts with reference to presenting rulings on demurrers, the questions presented on such rulings will be considered, p. 154. i</p> <p>2. Railroads. — Use of Street for Right of Way. — Action.—Ansioer. — Sufficiency.—“Grant”.—In an action for mandatory injunction to prevent the occupancy and use of a street for railroad purposes, a paragraph of answer on the theory that the right of way over the land occupied by the street had been obtained by defendant’s predecessors, long before the town came into existence, pursuant to an act of 1832 (Local Laws 1832 p. 173, §15), and an act of 1848 (Local Laws 1848 p. 432, §14), from the original 'owners thereof who “gave and granted” to its predecessors the right to take and occupy the ground, etc., was not open to the objection that it failed to aver that such right of way was obtained in writing, since the word “grant” implies a conveyance in writing, and especially in view of the character of the action and the existence of averments justifying the inference that such land was obtained by an instrument in writing, pp. 155,156.</p> <p>S. Railroads. — Use of Street for Right of Way. — Action.—Answer of Title. — necessity of Setting Out Deed. — In an action for mandatory injunction to prevent the use and occupancy of a street for railroad purposes, an answer by the railroad company averring the acquisition of the right of way by grant long before the establishment of the town was not insufficient for failure to set out the deed or grant relied on, since such deed or grant constituted merely the evidence of title and was not required to be pleaded, p. 156.</p> <p>4. Railroads. — Right of Way. — Statutory Provisions. — Under the acts of 1832 and 1848 (Local Laws 1832 p. 173, §15; Local Laws 1848 p. 432, §14), relating to the acquisition of rights of ways by railroad companies, etc., and providing that all contracts, relinquishments, grants, etc., shall be fully and plainly made in writing, and signgd by the party making the same, did not have the effect of making all such transactions invalid if not made in writing, but merely rendered them unenforceable in actions at law by the railroad company against the landowner, p. 156.</p> <p>5. Railroads. — Use of Street for Right of Way. — Action.—Answer. —In an action for mandatory injunction to prevent the use and - occupancy of a street for railroad purposes, an answer alleging that the land was obtained by defendant’s-predecessors by grant long before the town was established, etc., was not objectionable on the theory that such grant was unenforceable if not in writing, where it appeared that the grant or gift had been executed, p. 157.</p> <p>6. Railroads. — Use of Street for Right of Way. — Action.—Answer, —Sufficiency.—In an action for mandatory injunction to prevent the use and occupancy of a street for railroad purposes, an answer averring facts to show that the original owners of the land occupied by the street had estopped themselves from asserting title against defendant’s predecessors, and that any right acquired by plaintiff town in such right of way as a street was subject to defendant’s right, was not open to the objection that it was insufficient for failure to show that such right of way was obtained from the original owners in writing, p. 157.</p> <p>7. Railroads. — Use of Street for Right of Way. — Action.—Adverse Possession. — License.—Answer.—The objection, in an action for mandatory injunction to prevent the use and .occupancy of a street for railroad purposes that it was not alleged that de- . fendant’s right of way was obtained in writing from the landowners, was not applicable to an answer showing the acquisition of a right of way by adverse possession over the land occupied by the street, nor to a paragraph of answer showing that defendant acquired its right of way by license, p. 157.</p> <p>8. Appeal. — Questions Reviewahle. — Briefs.—No question is presented for review on the overruling of a motion for new trial, where appellant’s brief wholly fails to meet the requirements of the Supreme and Appellate Court rules in such respect, p. 158.</p>

<p>Appeal. — Questions Reviewable. — Briefs.—Where appellants’ brief does not disclose what the judgment or decree was, does not contain separately numbered propositions or points and authorities under each heading of error relied on, and, instead of a condensed recital of the evidence, sets out the conclusions of counsel as to what the evidence shows, there has been no proper compliance with the requirements of Rule 22, and nothing is presented for consideration.</p>

<p>1. Pleading. — General Allegations. — Averment of Specific Facts.— Specific facts do not control the general averments of a pleading unless they are contradictory to or inconsistent with such general allegations, p. 164.</p> <p>2. Railroads. — Grossing Accidents. — Specific Acts of Negligence.— Complaint. — Sufficiency.—In a complaint for injuries caused by being struck at a street crossing by a hand car operated over defendant’s street car track, the general allegation that defendant negligently and carelessly ran and operated said hand car, was not controlled or eliminated by further allegations that defendant negligently and carelessly failed to equip said hand . car with an efficient brake, negligently failed to signal its approach to the crossing, and negligently failed to equip it with any device for signalling its approach to the crossing, but the latter were simply additional charges which in no way contradicted or nullified the general charge of negligent operation, p. 164.</p> <p>8. Railboads. — Crossing Accidents. — Contributory Negligence.— Answers to Interrogatories.- — In an action for injuries sustained at a street crossing by the rider of a bicycle, who was struck by a hand car operated on defendant’s street car track, where the complaint, in addition to averments of specific acts of negligence, averred generally that defendant was negligent in the operation of the hand car, answers by the jury to interrogatories showing that plaintiff, approaching from the west, looked both north and south and saw no car approaching; that he rode between two vehicles which obstructed his view just before he reached the tracks ; that the. car approached from the south on the west track instead of the east track, which was the track customarily used for north bound cars; that after • passing the vehicles plaintiff saw the car for the first time, and he was then on the west track; that the car approached at a dangerous rate of speed and no effort was made to slacken its speed, and that plaintiff used ordinary care, etc.; do not show that plaintiff was guilty of contributory negligence, and they sustain rather than contradict the general verdict for plaintiff, p. 164.</p> <p>4. Railboads. — Street Railroads. — Care in Approaching Crossing.- — ■ The rules applicable to a person crossing over the track of a steam railway do not apply in all their strictness to persons crossing the tracks of a street railway in a city. p. 165.</p> <p>5. Appeal. — Review.—Evidence.—Measure of Damages. — Instructions. — In an action for damages sustained in being struck by a car at a street crossing, where the evidence showed that plaintiff was injured and taken to a hospital and had expended the sum of forty dollars for hospital expenses, the evidence was within the issues and warranted the giving of an instruction advising the jury that it could “take into consideration expenses, if any, actually incurred as a result of his injuries”; and even were the instruction erroneous its giving was harmless in .view of other instructions telling the-jury that its finding must be based on the evidence, and in view of the fact that there is no room for presuming that the jury allowed anything on that feature of the -damages other than the amount proven, p. 166.</p> <p>6. Damages. — P&rsonal Injuries. — Excessive Damages. — Where the evidence in a personal injury ease showed that plaintiff, who was sixty-eight years of age, was a man of business capacity, strong and active prior to the injury, and that the injury had affected his nervous system and was permanent in character, an allowance of damages in the sum of $5,000 was not so great as to warrant the setting aside of the verdict on the ground of excessive damages, p. 168.</p> <p>7. . Appeal. — Review.—Record.—The court on appeal does not search the record for causes on which to base a reversal, p.. 168.</p> <p>8.. Appeal. — Petition for Rehearing. — Briefs.—On a petition for rehearing appellant may not present points not presented in its original brief, and is not entitled) to have its statement of the evidence modified or enlarged to present a point not made in its ■original brief or mentioned in its reply brief, p. 168.</p>

<p>1. Appeal. — Briefs.-—Sufficiency.—Although appellants’ brief may be subject to criticism, it will be treated as sufficient where a good-faith effort to comply with the rules is shown and there is such substantial compliance therewith as to enable' the court to ascertain therefrom the error assigned and relied on for reversal and the proposition on which the error is based, p. 171.</p> <p>2. Wills. — Oonstruetion.—Devise of Life Bstate. — Vesting of Remainder. — Under a will devising certain real estate to testator’s daughter for life and providing that “at her death the same is to descend and vest share and share alike in equal proportions to her children living at the time of her death”, and making similar devises to testator’s other children, and providing that “if at the time of the death of either of my children * * * such child of mine shall not have a child then living the land herein devised to such child of mine shall in that case vest in equal proportions share and share alike in the grandchildren of such child of mine as may die without living children and in such case if there is no grandchildren of such child of mine as may die without living children the tracts of land herein devised to such child of mine shall by my executor be sold”, and providing that the proceeds of such sale be divided equally among testator’s grandchildren, etc., the estate in remainder in the land devised to such daughter vested in her children upon testator’s death, so that on the death of one of her children subsequent tQ the death of testator the interest of such child descended to his legal heirs, pp. 171,174.</p> <p>3. .Wills. — Construction.—Intent of Testator. — Where the language of a will is plain, there is no room for construction and the courts will give effect to the testator’s intention as therein expressed, if such intention is not contrary to law. p. 173.</p> <p>4. Wills. — Construction.—In the absence of a clear expression of an intention to the contrary it will be presumed that words used in a will were used in the light of the settled meaning which the law attaches thereto, p. 173.</p> <p>5.. Wills. — Construction.-—Testing of Estates. — Words of Survivor-ship. — The law favors the vesting of estates at the earliest possible moment, so that words of survivorship in a will are construed as referring to 'the death of the testator, in the absence of language clearly showing that they refer to a subsequent date or event, p. 173.</p> <p>6. Wills. — Construction.—~Wor(ls of Postponement. — It will be presumed that words postponing an estate relate to the beginning of the enjoyment of the remainder, unless the language clearly shows that they were intended to relate to the vesting of the estate, p. 174.</p>

<p>Prom Lake Circuit Court; Willis G. McMahan, Judge.</p> <p>Action by Julius Prankel against Joaebim Yoss and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>From Elkhart Superior Court; J ames L. Harmon, Judge.</p> <p>Action by John I. Plass against Leonard Deal and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Bills and Notes. — Payment.—Recovery of Payment. — Cancellation, of Note. — On a complaint to recover money paid and to cancel a note executed by plaintiffs, alleging that a commission firm had arranged with defendant bank to advance money for live stock purchased for it by the plaintiffs, and in doing the business the bank required plaintiffs to make a draft on the commission firm for the amount advanced by the bank on each purchase, that plaintiffs did not understand that they assumed any liability by so doing, that on dishonor of one of the drafts the bank insisted on payment by plaintiffs and to that end held up the personal funds -of plaintiffs, and that thereupon plaintiffs, under mistake as to their legal rights, paid part of the draft in cash and executed their note for the balance, no such mistake, fraud, duress or coercion was shown as would- entitle plaintiffs to the recovery of the money paid on such draft, or to a cancellation of the note executed for the balance, pp. 192,194.</p> <p>2. Payment. — Recovery of Voluntary Payment. — Payment Under Mistake of Laiv. — A voluntary payment can not be recovered even though the claim or demand paid was unjust or illegal, nor can money paid with full knowledge of all the facts and circumstances upon which it was* demanded, or with the means of such knowledge, be recovered on the ground that it was paid under the payor’s mistaken belief that he was legally bound to pay it. p. 193.</p>

<p>1. Landlord and Tenant. — Lease.—Implied Covenant for Possession. — Breach.—Rights of Lessee.- — Where a lease expressly provided that the term was to commence on a certain day, such provision amounted to an implied covenant of the lessor to put the lessee in possession on such day, and that the premises would not at that time be in the possession of another; so that the fact that a former occupant had not completely vacated the premises by that date, in the absence of anything to show that the lessee had waived his right to possession at that time, would have warranted the lessee’s administrator in treating the lease as abrogated, and in refusing to take possession or to be bound by any of the provisions of the lease, p. 199.</p> <p>2. Landlord and Tenant. — Lease.—Breach of Covenant for Possession. — Waiver of Breach. — Where a lessor’s failure to place the lessee in possession on the date fixed for the commencement of the term was dire to an arrangement between the lessee and the occupant then in possession” made with the knowledge and consent of the lessor, whereby such occupant might hold over if not convenient to surrender possession at the commencement of lessee’s term, the administrator of the lessee’s estate, on the death of lessee prior to the beginning of the term, could not treat the lease as abrogated for failure to be placed in possession at the time therein specified, p. 200.</p> <p>3. Executors and Administrators. — -Privity of Administrator With Deceased Lessee. — Estoppel.—The administrator of the estate of a deceased lessee stands in privity with his decedent and has no greater rights under the lease than decedent could have had, and hence is estopped from treating the lease as abrogated by a breach of the lessor which was induced by decedent, p. 201.</p> <p>4. Contracts. — Death of Party. — Effect.—Ordinarily the death of either party to a contract does not extinguish it, unless it is of a personal character and not susceptible of performance by the personal representative of such deceased party; and in determining whether it may be performed- by such representative regard must be had both to the nature of the transaction and the language in which the contract is couched, p. 201.</p> <p>5. Contracts. — -Termination by Death. — Leases. — An ordinary lease of real estate is not such a personal contract as is annulled or extinguished by the death of either party thereto, p. 202.</p> <p>6. Landlord and Tenant. — Death of Lessee. — Rights and Liabilities of Administrator. — On the death of a lessee the term of the unexpired portion of his lease becomes a personal asset of the estate to be inventoried, appraised and sold as other personal property; and, until in some manner released or discharged, the administrator is bound to perform the covenants of the lease and is liable for the rents to the extent of the assets in his hands. ■ p. 202.</p> <p>7. Landlord and Tenant. — Lease.—Construction.—Personal Contracts. — A lease of real estate does not assume the character of a personal contract so as to terminate on the death of the lessee, by reason of a stipulation therein that the premises are to be occupied by the lessee for a definite purpose and are not to be sublet, or otherwise occupied, or the lease assigned, without the written consent of the lessor, since such covenants though restrictive, are for the benefit of the lessor and may be waived, p. 203.</p> <p>8: Landlord and Tenant. — Lease.—Covenant Against Assignment. ■ — Transfer to Administrator of Deceased Lessee. — On the death of 'a lessee the lease passes into the hands of the administrator as a part of the assets of the estate by operation of law, in the absence of an express stipulation to the contrary, regardless of a covenant against assignment, p. 204.</p> <p>9. Landlord and Tenant. — Lease.—Construction.—Transfer by Operation of Law. — Stipulations in a lease that the premises were to be occupied by the lessee for a specific purpose, and were not to be sublet or otherwise occupied, or the lease assigned, without the written consent of the lessor, can not be construed as to prevent a transfer of the lease by operation of law, so as to relieve the administrator of the deceased lessee’s estate from liability for the rent. pp. 204, 205..</p> <p>10. Landlord and Tenant. — Leases.—Construction.—Restrictive Covenants. — Restrictive covenants in a lease, such as covenants against assignments or subletting, are not favorably regarded and are to be construed so as to prevent the restriction from extending any further than is necessary, p. 205.</p> <p>11. Landlokd and Tenant. — Covenant for Repairs. — Death of Lessee. — Liability of Administrator. — Wliere a lease providing that all inside repairs were to be made by lessee, was repudiated by administrator of lessee’s estate, and, in an action to recover the rents for the time the premises remained unoccupied, together with the expense incurred in again renting them, there was evidence to show that repairs to the interior made by lessor before procuring the new tenant were reasonably necessary, the court did not err in allowing the lessor his reasonable expenses thus incurred, p. 205.</p>

<p>Carriers. — Ejecting Passenger. — Pleading.—Answer.—In a passenger’s action for damages for being ejected from defendant’s car, an answer admitting that plaintiff tendered a proper ticket which defendant accepted, and seeking to justify the ejectment on the ground that plaintiff was a through passenger, who sought to avoid paying the scheduled rate of fare by paying his fare in cash to a certain stop under pretense that such stop was his destination, and that on arrival at such stop he stepped from the car and immediately reentered it, and tendered the ticket which defendant’s conductor accepted, at the same time demanding extra fare which plaintiff refused to pay, amounted to an argumentative denial, and the affirmative matter pleaded was provable under the general denial, so that there was no error in sustaining a demurrer thereto.</p>

<p>1. Railboads. — Injuries to Animals on Tracks. — Negligence.—Witficl Injuries. — Evidence.—Evidence showing that plaintiff’s horses were kept in a field, securely fenced, from whicli they escaped and entered upon defendant’s railroad track at a point where defendant had removed a cattle guard and highway wing fence, that the horses ran along the track in front of an approaching train and were overtaken at a bridge some distance from where they entered on the track, and that the engineer and fireman saw them and could have prevented the injury by stopping the train, but, instead of stopping it or slackening the speed, continued to blow the whistle and pursue the horses until the injuries occurred, not only tended to support a charge of negligence, but also tended to support the theory of wilful injury, pp. 214,215.</p> <p>2. Railroads. — Injuries to Animals on Trades. — Bvidence.—Contributory Negligence. — Where the evidence, in an action against a - railroad company for damages , for killing plaintiff’s horses, showed that the horses were kept in a field surrounded by a substantial fence, and that the horses were not of a character such that contributory negligence could be imputed to plaintiff by reason of pasturing them in the field from which they escaped, liability of the defendant could not be avoided on the ground of contributory negligence, p. 215.</p> <p>3. Animals. — Wilful Injuries. — Pleading.—Complaint.—Contributory Negligence. — A complaint charging wilful injuries to animals need not aver that plaintiff was without fault, but is sufficient on that theory if the language shows that the defendant had an intent, either actual or constructive, to do the injury complained of. p. 215.</p> <p>4. Railroads. — Injuries to Animals on Trades. — Negligence.—Wilful Injuries. — Bvidence.—Where the evidence showed that defendant’s horses were seen on defendant’s tracks by those in charge of its train in time to have slackened the speed, or to have stopped the train, so as to avoid the injuries, hut that they failed to do so, and that such could have been done without peril to persons or property entrusted to defendant for transportation, it was for the jury to determine whether defendant was negligent, or whether it was liable for wilful injuries, so that a verdict for plaintiff was not without evidence to support it on either theory, p. 216.</p> <p>5. Railroads. — Injuries to Animals on Trades. — Liability.—Negligent or Wilful Injuries. — The liability of a railroad company for injuries to animals, alleged to have been either negligently or wilfully inflicted, is not affected by the rule that to recover under the statute the evidence must show actual contact with the animals. p. 216.</p> <p>6. Railroads. — Injuries to Animals on Trades. — Damages.—Interest. — In an action for damages for the loss of plaintiff’s horses killed by defendant’s train, where the evidence showed their value was $650, a verdict for $700 was not excessive in view of the fact that interest on the value of the horses was recoverable from the date of filing the complaint, which in separate paragraphs charged negligence and wilful injuries respectively, and the interest from that date to the returning of the verdict was more than $50. p. 217.</p>

<p>1. Appeal. — Assignment of Errors.- — Questions Presented. — No question is presented for review by an assignment tbat tire court erred in rendering judgment, since ordinarily the rendering of judgment is not in itself a ruling but is dependent on some prior ruling or succession of rulings, and it can not be ascertained from such an assignment what particular ruling it is desired to challenge, p. 220.</p> <p>2. Appeal. — Assignment of Errors. — Sufficiency.—An assignment that “the court erred in awarding judgment to the appellee on the answers to the interrogatories propounded to the jury trying this cause notwithstanding the general verdict”, though irregular in form and not to be commended as a model, referred to a single action of the court and left no doubt as to the identity of the ruling intended to be presented for review, and was therefore sufficient to present the question of error in sustaining the motion for judgment non obstante, pp. 220, 221.</p> <p>3. Appeal. — Assignment of Errors. — Requisites.—An assignment of error to be sufficient should, specify with reasonable certainty the ruling to be reviewed, p. 221.</p> <p>4. Railkoads.— Injuries to Persons on Tracies.— Negligence. — ■ Answers to Interrogatories. — Contributory Negligence. — In an action against an interurban railroad company for injuries sustained by plaintiff, a woman of mature years, while waiting for the car to stop, where the complaint alleged that plaintiff attempted to hail the car at a rural stop before daylight in the morning, and charged negligence in operating the car without a headlight and at an excessive speed, and alleged that it did not stop and that in passing plaintiff’s cloak was caught on the car and she was thrown to the ground, etc., but failed to allege any facts to show that her signals were seen, or to justify her in the belief that the car was going to stop, it must be assumed that the signals were not seen by the motorman and that plaintiff was not warranted in believing that the car would stop; hence on answers by the jury to interrogatories showing that she stood from 18 inches to two feet from the ends of the ties as the car passed, and that there was nothing to prevent her from standing at a safe distance, and that as the car iiassed her coat was caught and she was thrown, etc., plaintiff was chargeable with contributory negligence asa matter of law. pp. 221,222,225.</p> <p>5. Appeal. — Review.—Answers to Interrogatories.- — Complaint.— In determining the sufficiency of the jury’s answers to interrogatories to support a judgment thereon notwithstanding the general verdict, allegations in the complaint not covered by such answers must be considered as established by the proof and arrayed in support of the general verdict, and statements of conclusions therein should be treated as eliminated, p. 222.</p> <p>6. Negligence. — Contributory Negligence. — Knowledge of Danger. —It is a matter of common knowledge that a physical body of considerable magnitude moving rapidly agitates the air and creates in its wake a suction which tends to draw other physical bodies towards it; hence a woman of mature years was chargeable with knowledge of the. fact that if she stood at the side of the track within 18 inches to two feet from the ends of the ties while a rapidly moving interurban car was passing, she was in a place of danger, p. 225.</p>

Prom Hamilton Circuit Court;' Dan Waugh, Special Judge. Action by Yern‘ T. Mundell against John Mundell and others to foreclose a mortgage, in which John H. Little and Hannah E. Little, his wife, and certain attachment creditors of John H. Little filed cross-complaints asserting title in themselves respectively to the land involved. Prom the judgment rendered, Hannah E. Little and others appeal.

<p>Prom Floyd Circuit Court; William C. TJtz, Judge.</p> <p>Action by the City of Jeffersonville against the Louisville and Southern Indiana Traction Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>From Superior Court of Marion County (82,426); Vinson Carter, Judge.</p> <p>Action by Edmon P. Ervin against Benjamin P. Cline. From a judgment for defendant, the plaintiff appeals.</p>

<p>From. Porter Superior Court; Harry B. Tutliill, Judge.</p> <p>Action by Drucilla Carr against Abraham Zimmerman. From a judgment for plaintiff, the defendant appeals.</p>

Prom Superior Court of Vigo County; John E. Cox, Judge. Action on tire petition of The Commercial Travelers Association of Indiana to require the defendants to interplead for the purpose of determining the person entitled to the benefits under a certificate of insurance. Prom the judgment rendered, this appeal is prosecuted.

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by John E. Smith against Cyrus Frantz. From a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Jay Circuit Court; James J. Moran, Judge.</p> <p>Action by Orla P. Boes against the Grand Rapids and Indiana Railroad .Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Railroads. — Relief Associations. — Recovery of Wages Applied to Dues. — A contract of membership in a railroad relief association entered into in 1909 in violation of §5308 Burns 1914, Acts 1907 p. 46, was null and void from its inception, so that the fact that the railroad company had applied wages withheld from plaintiff to the payment of his dues in such association was no bar to an action by plaintiff for the recovery of the wages so withheld; plaintiff having received no benefits from the association and having done nothing to operate as an estoppel.</p>

<p>From Lake Superior Court; Lawrence Becker, Judge.</p> <p>Action by Mary D. Nagle against Bertha TIarvey Hirsch and another. From a judgment for the defendant named, the plaintiff appeals.</p>

<p>1. Insurance. — Fraud in Settlement With Beneficiary. — Action for Damages. — Requisites.—To sustain a judgment for plaintiff in an action against an insurer for damages on account of alleged fraud in making settlement under a policy in which plaintiff was the beneficiary, it must first appear that there was a valid contract of insurance on which defendant was liable, and, second, that the settlement was induced, and procured by fraud to the resulting damage of plaintiff as alleged, p. 294.</p> <p>2. Insurance. — Mutual Benefit Insurance. — Contracts.—Constitution and By-Laws. — Where the constitution and by-laws of a fraternal organization are by the terms of the application made a part of the certificate, they, with the certificate, constitute the contract of insurance, p.295.</p> <p>3. Insurance. — Mutual Benefit Insurance. — Warranties in Application. — Effect of False Statements. — Where the application for insurance provides that the representations and answers therein are warranted to be true, and tbe certificate issued thereon provides that if such representations or answers are in any respect untrue the certificate shall be null and void, it is essential, in order that the contract of insurance may not thereby be rendered voidable, that such representations and answers be true in every respect, regardless of the apparent materiality or immateriality thereof, p. 295.</p> <p>4. Insurance. — Mutual Benefit Insurance. — Warranties in Application. — Breach.-—Where the applicant for insurance in a fraternal society stated in his application that he had never been afflicted with dropsy, scrofula, rheumatism, chronic, catarrh, syphilis or insanity, and by its terats expressly warranted, that he was of sound bodily health and mind, and stated on the certificate over his signature that he had read the certificate and warranted himself to be in good health at the time, answers by the jury to interrogatories showing that insured had had syphilis prior to the application, that at the time he was of unsound mind, etc., being supported by the evidence, showed such a breach of the warranty contained in the application as to render the contract void, in the absence of anything showing a waiver of the breach or an estoppel from asserting it.' p.295.</p> <p>5. Insurance. — Mutual Benefit Insurance. — Warranties in Application. — Breach.—Waiver.—Knowledge of Local Officer. — Where the clerk of the local camp of a fraternal insurance societj1', authorized to solicit and receive applications, was charged by the1 society’s by-laws with the duty of collecting all moneys due the camp and locally due the sovereign camp, etc., evidence showing that on the day of the date appearing on the certificate issued to _ plaintiff’s husband such clerk heard a conversation by decedent in which decedent disclosed exaggerated notions concerning his business, that within a few days thereafter such clerk was informed by decedent’s brother that decedent had been committed to the insane hospital because of paresis which resulted from syphilis which decedent had contracted early in life, and that such clerk then advised the brother that the certificate was valid, and thereafter advised plaintiff that the certificate was valid and would be paid at decedent’s death if the dues were kept paid, etc., together with evidence that the dues were paid, and other evidence sufficient to charge defendant with the duty of inquiry as to decedent’s condition at the time of his application, was sufficient to show a waiver of a breach of the warranty in the application as to decedent’s health, and to estop defendant from asserting the invalidity of the certificate, notwithstanding a provision of its by-laws that no agent or officer had power or authority to waive same. pp. 297,301.</p> <p>6. Insurance. — Mutual Benefit Insurance. — Authority of Local Officers. — Knoioledge.—Presumptions.—An officer of the local camp or lodge of a fraternal insurance society, who is charged with the duty of collecting assessments and remitting them to the supreme organization, is the agent of the latter, and knowledge required by him in the performance of such duty is the knowledge of his principal, since it is conclusively presumed that . knowledge so acquired is communicated by him to the principal, p. 301.</p> <p>7. Insurance. — Mutual Benefit Insurance. — By-laivs.—Waiver.—A provision in the by-laws of a fraternal insurance society that no officer or agent has the power or authority to waive any of the provisions thereof or any of the conditions upon which certificates are issued, may be waived the same as any other provision of the by-laws or condition of the certificate, p. 302.</p> <p>8. Insurance. — Mutual Benefit Insurance. — VaUdnty of Certificate.— Informalities Attending Issue.— Informalities attending the issuance of the certificate sued on, consisting of an omitted signature to a printed statement that the applicant had made required payments and had been introduced as a member, and a failure to introduce or initiate the applicant, even if material to the validity of tlie certificate, must be deemed waived, in view of evidence showing that the certificate was delivered, that all preliminary payments were made, that the dues and assessments were thereafter collected with full knowledge of the facts, that the insured was at all times treated as a member', and that after his death the certificate was taken up by the society for the purpose of making settlement, etc. p. 303.</p> <p>9. Appeal. — Review.—Findings.—Conclusiveness.—Where the evidence, though by no means conclusive, was sufficient to make a case for the jury on the question of alleged fraud in procuring settlement with the beneficiary under a certificate on the life of her deceased husband, the finding of the jury thereon can not be disturbed, p. 305.</p> <p>10. Insurance. — Fraud in Settlement With Beneficiary. — Measure of Damages.- — Instructions.—In an action to recover damages on account of fraud practiced on the beneficiary in making settlement under a certificate issued by defendant, the measure of damages is the difference between the amount received in the settlement and the actual value of the thing surrendered, so that an instruction placing the measure as the difference between the amount paid and the face value of the certificate, to which the jury could not add interest, was erroneous, p. 306.</p> <p>11. Appeal. — Review.—Harmless Error. — Instructions.—Error in giving an erroneous instruction as to the measure of the damages recoverable can not work a reversal, even though the excessiveness of the damages was assigned as cause for a new trial, where appellant has waived such cause for new trial by failure to discuss it in the brief, p. 307.</p> <p>12. New Trial.— Argument in Support of Motion.— Discretion of Court. — The right to be heard in argument in support of a motion for new trial does not exist under the practice, and the question of the necessity or advisability of such argument is for the trial court, p. 308.</p> <p>13. Appeal. — Revieio.—Ruling on Motion for Neto Trial. — Waiver of Objections. — Where it does not in any manner appear that apXiellant objected to the trial court disposing of the motion for new trial without hearing argument thereon, appellant can not be heard to make such objection on appeal, p. 308.</p>

Prom Greene* Circuit Court; Charles E. Henderson, Judge. Action by Joseph Bland, administrator of the estate of Roscoe Spice, deceased, against the Vandalia Coal Company. Prom a judgment for plaintiff, the defendant appeals.

Prom Gibson Circuit Court; Ser Ms F. Clements, Judge. Action by the American National Bank against Abner G. McConnell, administrator o'f the estate of Leslie C. Hunter, 'deceased. Prom a judgment for plaintiff, the defendant appeals.

<p>From Porter Circuit Court; A. D. Bartholomew, Judge.</p> <p>Action by Olive Cunningham against The Intermediate Life Assurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Gibson Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by Ernest P. Welborn against tbe Adams Express Company and another. Prom a judgment for plaintiff, tbe defendant appeals.</p>

Prom Montgomery Circuit Court; Jere West, Judge. Action by tbe State of Indiana, on tbe relation of Lewellyn J. Coppage, against John Reicbard and others. Prom a judgment for relator, the relator appeals.

Prom Knox Circuit Court; Orlando II. Cobb, Judge. Action by James H. Ballard, administrator of the estate of Henry Eowe, deceased, against The Princeton Light and Power Company. Prom a judgment for plaintiff, the defendant appeals.

<p>Prom Delaware Superior Court; James J. Moran, Special Judge.</p> <p>Action by the Muncie Electric Light Company against Joseph C. Joliff. Prom a judgment for defendant, the plaintiff appeals.</p>

From Newton' Circuit Court; Charles W. Hanley, Judge. Action by the State of Indiana, on the relation of Frederick Wein and another, against William T. Beahler and others. From a judgment for relators, the defendant named appeals.

<p>From Cass Circuit Court; J ohn 8. Lavry, Judge'.</p> <p>Action by Daisy Ervington, Administratrix of tbe Estate of "Walter Ervington, deceased, against Tbe Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Superior Court of Marion County (82,554); Willard New, Judge Pro Tem.</p> <p>Action by Hannah. Means against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Insurance. — Action. — Complaint. — Answer in Abatement.— Where a policy of live stock insurance provided that the insurance was to be paid sixty days after proof of loss had been made by the insured and received by the company, and the complaint, in an action on the policy, alleged facts showing a waiver of such provision by a denial of liability, an answer' in abatement on the ground that the action was prematurely brought, because brought before the expiration of such sixty-day period, was insufficient in the absence of any statement either by direct allegation or inference that such sixty-day clause had not been waived, pp. 421, 422.</p> <p>2. Insurance. — Policy.—Provisions Fixing Time for Payment.— Waiver. — A clause in an insurance policy providing that the amount of the policy is to be paid sixty days after proof of loss has been made by the insured and received by the company" may be waived so as to authorize an immediate action on the policy, by the company undertaking an investigation of its liability and then rejecting the claim and denying liability, p. 421.</p> <p>3. Insurance. — Live Stock Insurance. — Action on Policy. — Instructions. — In an action to recover on a policy of live stock insurance, an instruction stating that in order for the defendant to secure an appraisement of the animal insured the burden of proof was on defendant “to prove to your satisfaction” by a fair preponderance of the evidence that it requested plaintiff to consent to an appraisement, that it selected an appraiser and notified plaintiff of that fact, and that it furnished blanks upon which to make the appraisement, and further stating that if defendant had failed to prove such facts by a fair preponderance of the evidence the plaintiff was absolved from taking part in an appraisement, was not objectionable as imposing on defendant by reason of the quoted words a higher duty than that of merely making proof by a preponderance of the evidence, p. 422.</p> <p>4. Appeal.! — Review.—Harmless Error. — Instructions.—An instruction stating that if the jury find “under the instructions given” certain facts to be true, etc., though incorrect in the use of the quoted expression instead of advising that the finding must be from the evidence, was not fatally erroneous in view of other instructions clearly stating that the finding must be upon, a fair preponderance of the evidence, p. 423.</p> <p>5. Insurance. — Live Sioclc Insurance. — Appraisement of Loss.— Instructions. — In an action on a policy of live stock insurance, in which participation by the insured in the appraisement of loss was not made a condition precedent, failure by the insured to participate in such appraisement would not alone defeat his right to recover; hence instructions tolling the jury that it was defendant’s ditty to request plaintiff to consent to an appraisement, and that the refusal of plaintiff to have anything to do with an appraisement was not of itself sufficient to relieve defendant from liability, correctly stated the law and were not conflicting. p. 424.</p> <p>6. Evidence. — Written Instruments. — Admissibility of Evidence of Contents. — Necessity fo-r Notice to Produce Original. — In an action on a policy of live stock insurance, there was no error in admitting in evidence the contents of a letter alleged to have been written to the company pursuant to the terms of the policy, notifying the company of the sickness of the animal insured, though no nqtice to produce the original had been given as required by §502 Burns 1914, §479 E. S. 1SS1, since, in view of testimony of the agent of defendant in charge of its correspondence that no such letter had been received by defendant, notice on defendant to produce it would have been futile, p. 424.</p> <p>7. Triad. — Issues.—Delivery of Letter. — Question for Court or Jury. — That a letter properly addressed and stamped wag mailed makes a prima facie case of delivery in due course of mail, which, if denied, presents a question of fact for determination by the court or jury trying the cause, p. 424.</p> <p>8. Evidence. — Written Instruments. — Notice to Produce. — Statutory Provisions. — The purpose of §502 Burns 1914, §479 E. S. 1881, relative to notice to produce writings before parol proof of their contents can be admitted, is to require the production of the best evidence if possible, p. 424.</p> <p>9. Appeal. — Revieu).—Intervening Error. — Affirmance.—Where it appears from the whole record that the cause was fairly tried and a correct result reached, errors of a technical character and not prejudicial to the substantial rights of appellant can not work a reversal, p. 425.</p>

<p>From Floyd Circuit Court; William C. TJtz, Judge.</p> <p>Action by Henry P. Lottich against the Louisville and Southern Indiana Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action by Harold B. Hibben and others against John H. Smith and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

Prom Montgomery Circuit Court; Jere West, Judge. Action by Clyde D. Burk on a claim against the estate of Elizabeth Deeter, deceased. Prom a judgment for plaintiff, the administrator of said estate appeals.

<p>1. Appeal. — Revi&io.—Refusal *of Instructions. — Where appellant concedes that an instruction given by the court was of the same tenor as one requested by appellant and refused, excepting as to a date set forth therein, and there was no material dispute as to the correctness of the date stated in the court’s instruction, and the latter was neither erroneous nor otherwise complained of, there was no error in refusing the requested instruction, p. 464.</p> <p>2. Appeal. — Refusal of Instructions. — Tender After Commencement of Argument. — Error can not be predicated on the refusal to give an instruction which was not tendered until after the argument began, p. 465.</p> <p>3. Appeal. — Review.—Verdict.—Amount of Recovery. — Reversal can not be predicated on the alleged excessiveness of the verdict, where appellant has neither pointed out in what manner the amount of recovery is too large, nor cited any authorities to sustain his point, and the facts and figures show that the amount of the finding was within the evidence heard by the jury. p. 645.</p>

<p>1. Appeal. — Review.—Pleading.—Presumptions.—Where the record fails to show that any answer was filed to certain paragraphs of the complaint, or that a reply was filed to a special paragraph of answer, it will be presumed on appeal from the judgment that at least a general denial was filed to such pleadings, p. 468.</p> <p>2. Appeal. — Review.—Moot Questions. — In an action for damages and injunctive relief for the violation of an. agreement executed in connection with the assignment of letters patent covering a manufacturing process, where the record disclosed that plaintiff dismissed its demand for damages, and it also appears that such letters patent have expired, the question of whether the denial of the injunctive relief was error need not be determined, since any right or privilege covered by the letters terminated with their expiration, leaving the question merely a moot one. p. 4G9.</p> <p>3. Appeal. — Review.—Affirmance.—Where an agreement unaided by extrinsic evidence was not susceptible of the interpretation placed thereon by plaintiff, and there was practically no evidence to show mutual mistake, the action of the trial court in denying a reformation of the instrument and refusing Injunctive relief against its alleged violation, being in accord with the great weight of the evidence and the law applicable thereto, can not be disturbed. p. 470.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Mary A. Kester against Ella S. Wilson and others. From the judgment rendered, Ella S. Wilson and another appeal.</p>

<p>1. Appeal. — Review.-—Motion to Make Specific. — Record.—No question is presented for review on the overruling of a motion to make the complaint more specific where it can not be determined from the record whether appellant assigning the error, or some other defendant, filed the motion, p.476.</p> <p>2. Appeal. — Assignment of Errors. — Sufficiency of Complaint. — In actions commenced since the enactment of §§344, 348 Burns 1914, Acts 1911 p. 415, no question is presented on appeal by an assignment of error challenging the sufficiency of the complaint, p. 477.</p> <p>3. Negligence. — Trial.-—Instructions.—In an action by the contractor for the construction of'a cement curb and gutter, against the city and a contractor for the construction of a sewer, to recover damages occasioned by alleged negligence in the sewer construction resulting in injuring and impeding the work under construction by plaintiff, an instruction that municipal corporations are within the general rule that the superior or employer must answer civilly for the negligence of an agent or servant in the course of his employment, etc., and that if it was found that a contract was entered into by the city with its codefendant for the construction of a sewer, pursuant to which the sewer was constructed as alleged, and that in such construction the contractor was negligent in any one or more particulars as alleged, both the city and the sewer contractor would be liable to plaintiffs for all damages sustained, if any, which were alleged and were shown by a preponderance of the evidence to have proximately resulted from the acts complained of, was not open to the objection that it made defendants liable for all damages resulting from the work of the construction company if it were found to have been guilty of negligence hi but one alleged particular, and regardless of whether such negligence was a proximate cause of all such damage, p. 477.</p> <p>4. Negligence. — Injury to Property. — Contributory Negligence.— Instructions. — An action for injury to a street improvement in course of construction by plaintiff, caused by alleged negligence of • defendants in the construction of a sewer along the line of such improvement, involved a property, rather than a personal injury, making it the duty of plaintiff to prove the allegation of his complaint thatohe was free from contributory negligence; hence an instruction that if defendant contractor was negligent as alleged, it and the defendant city Avere liable for all damages alleged and shown by a preponderance of the evidence to have proximately resulted from such negligence, was fatally erroneous in ignoring the issue of contributory negligence, in view of evidence tending to show contributory negligence, and the failure of the court to cover the issue in any other instruction, p. 478.</p> <p>5. Municipal Corporations.— Liability for Negligence of Contractor. — Instructions.—In an action against a city and a contractor for the construction of a sewer to recover damages to a street improvement being constructed by plaintiff, alleged to have been caused solely by negligence in the work of constructing the seAver, Avhere it appeared that the sewer contract was let by the city and the work done pursuant to §8722 et seq. Burns 1914, Acts 1905 p. 219, §117, and that by the terms of the contract the defendant contractor was to furnish all labor and material and assume liability for injuries to person or property, the city reserving to itself merely the right of general supervision Avith respect to whether the work and material complied with -specifications, etc., instructions that a city is liable if it undertakes to construct a seAver and causes the work to be done in a negligent manner, and that cities are within the general rule that an employer must ansAver civilly for the negligence of an agent or servant, etc., were erroneously given, since the city’s codefendant was an independent contractor, rather than the agent or servant of the city. pp. 480, 482,4S5,486,487.</p> <p>6. Municipal Corporations. — Incorporation.—Authority to Contract. — Presumptions.—It will be presumed that a city of this State is incorporated under the general laws of the State for the incorporation of cities, so as to be authorized to provide for the construction of sewers under §8961 Burns 1914, Acts 1905 p. 219, §267. p. 482.</p> <p>7. Municipal Corporations. — Negligence of Independent Contractor.— Liability.— A municipal corporation, like other contractees, is not answerable for the acts of an independent contractor, except where the work required to be done is inherently or intrinsically dangerous, or where the necessary consequence of doing the work as specified is injury to another, or where it is unlawful or involves a trespass, or where the subject-matter of the contract involves a duty, the performance of which may not be delegated by the contractee. p. 484.</p> <p>S. Municipal Corporations.— Negligence of Independent Contractor. — Liability.—Defective Plans. — A city is not liable in any case for consequential injury resulting from a fcublie work, unless the plan is defective or the city directs the work to be done in an improper manner and the injury is the necessary consequence, in which event the one performing the work, though an inde^ pendent contractor, will be regarded as the agent of the city in carrying out the defective plan or in doing the work pursuant to improper directions, p. 4S4.</p> <p>9. Municipal Corporations.— Negligence of Independent Contractor. — Liability.—Nondelegable Duties. — In situations involving certain duties resting primarily and absolutely on the city and the performance of which it may not delegate to another to its own exemption, both the city and an independent contractor may be liable for injuries arising from the acts or omissions of the latter, unless the injury results entirely from some collateral act of the latter of which the city has no notice, either express or implied; the liability of the contractor being predicated on his own negligence, while that of the city is upon the fact that in committing to the contractor a nondelegable duty it makes him to that extent its agent for whose negligence it is liable, p. 485.</p> <p>10. Municipal Corporations.— Public Improvements.— Injury to Third Persons. — Duty of City. — The nature of the duty owing from, a municipality to third persons, growing out of the construction of a public improvement, varies somewhat with the class to which the third person belongs, as to whether he is an abutting owner, a traveler on a street, or an employe of the contractor, p. 486.</p> <p>11. Municipal Corporations. — Public Improvements. — Negligence of Contractor. — Liability to Abutters. — A city owes no duty to an abutter to protect adjoining property against the negligence of a ' contractor in constructing a public improvement, where the plan is reasonable and not likely to work injury if properly carried out, though it may be liable if, through the negligence of the contractor, a situation perilous to adjoining, property arises, and, after receiving or being chargeable with notice, it negligently fails to take steps to avert the threatened danger, p.487.</p>

<p>1. Mortgages. — Liens.—Priority.-—The lien of a valid mortgage is superior to a subsequently acquired mechanic’s lien unless the one claiming under the mortgage has acquired the legal title so as to work a merger of the estates represented by the deed and mortgage. p. 492.</p> <p>2. Mortgages. — Acquisition of Legal Title. — Merger.—Equity Buie. ' — While in law there is a technical merger of the estates when the estate in fee and the equitable or mortgage estate meet in one person, a merger will be averted and the lien preserved under the equity rule when necessary to satisfy the ends of justice, as where - one purchases real estate on which there is an encumbrance which he is not obligated to pay, and which he discharges to- protect his title, p. 492.</p> <p>8. Mortgages. — Merger of Legal and Equitable Title. — Discharge of Encumbrance by One Primarily Liable. — The -payment of the debt by a purchaser of real estate who is primarily liable to discharge the encumbrance extinguishes the debt or lien and precludes Mm from invoking the equitable rule against merger for the protection of his property against valid liens thereon of other persons, p. 492.</p> <p>4. Mortgages. — Purchase of Legal Title by Surety. — Release of Principal. — Where the surety on a note given to a bank obtained the legal title to. land covered by a mortgage indemnifying him against loss by reason of his surety-ship, the bank was not bound to release the principal from his obligation on the note, though by the deed the surety made himself principal and became primarily liable to the bank for the debt. p. 493.</p> <p>5. Mortgages. — Acquisition of Legal Title. — Merger.—Intention.— Intention, expressed, or gathered from the facts and circumstances, is an important and often controlling factor in determining whether a merger has taken place where both the equitable and legal title meet in the same person; and a clear intention to do so, will preserve the lien of a mortgage and prevent a merger, where such intention when carried into effect works no injustice and leads to equitable results, p.493.</p> <p>6. Mortgages. — Acquisition of Legal Title. — Merger.—Preservation of Mortgage as Against Subsequent Lien. — Where the surety on a note took an indemnifying mortgage covering the land of the principal, which was of no greater value than the amount of the debt, the security of one claiming under a mechanic’s lien thereafter acquired against the property was not lessened by reason of the subsequent acquisition by such surety for his own protection of the legal title to the land under a deed which, while reciting that the principal was thereby released from personal liability, clearly showed an intention to preserve the mortgage lien, and, no merger of the mortgage lien in the legal title was thereby effected, since under the circumstances the surety was entited to the presi ervation of the mortgage for his protection as against such mechanic’s lien. p. 493.</p>

Prom Hamilton Circuit Court; Meade Vestal, Judge. Suit for specific performance by the Indiana Union Traction Company against Calvin A. Bronnenberg and others. Prom the decree, the defendants Calvin A. and Susan Bronnenberg appeal.

<p>Mines and Minerals.— Oil and Gas Leases.— Construction.— Forfeiture. — Rights to Rentals. — Under an oil and gas lease providing that lessee should commence a well within ninety days, or pay lessor twenty-five cents per acre at the end of each three months thereafter, or forfeit the lease, that completion of the well should liquidiate all rentals for the remainder of the term, and that lessee might at any time reassign to the lessor, paying all rentals to date of reassignment, the forfeiture clause was for the exclusive benefit of the lessor, so that on failure of the lessee to drill a well, or pay the rental, or reassign the lease, the lessor could either declare the lease forfeited or sue for the rentals due thereunder. (Butcher v. Greene [1912], 50 Ind. App. 692, distinguished.)'</p>

<p>1. Appeal. — Review.—Ruling on Demurrer. — Memorandum.—Sufficiency. — In an action for breach of warranty in the sale of a . horse, a memorandum of defects accompanying a demurrer to the complaint, stating that the complaint shows no such warranty as under the facts would make defendant liable, that it "does not show that plaintiff has done the things required of it in the premises, and that it shows no facts disclosing any liability on the part of defendant on account of any alleged warranty, was insufficient to'enlighten the court as to the specific objections urged to the complaint, and hence the overruling of the demurrer was not error, p. 507.</p> <p>2. Appeal. — Review.—Verdict.—Conclusiveness.—A verdict can not be disturbed on the ground of insufficient evidence where it appears that there was evidence to support it upon every material question, p. 509.</p> <p>S'. Appeal.- — Review.—Verdict.—Entry of Remittitur. — Overruling Motion for New Trial. — In an action for breach of warranty in the sale of a horse, where it appeared that the animal was purchased for $147.50, that it was returned as not as represented, and sold for $13, a verdict for $175 was returned for plaintiff on a complaint averring no special damages, whereupon plaintiff remitted $27.50 and judgment was entered for $147.50, and that thereafter the court directed an additional remittitur of $13, with the alternative that plaintiff suffer a new trial, and that the additional remittitur was made, the original judgment set aside, and a new judgment entered for $134.50, there was no error in permitting the first remittitur or in directing the second, since if the cause had come to the court on appeal with an excessive judgment a remittitur could properly have been ordered, p. 509.</p> <p>4. Tkial. — Verdict.—Excessiveness.—Contrary to Laic. — A verdict for an amount in excess of that which may be legally recovered is not contrary to law where a remittitur of the excess may be directed, p. 511.</p> <p>5, Trial. — Excessive Verdict. — Directing Remittitur. — In an action for damages where the jury has returned an excessive verdict and there is no dispute as to what the amount should be,-the liability being fixed, the trial court may direct a remittitur, and such action will not be deemed an invasion of the province of the jury, but will be upheld on the theory that the excess arose either from an error of law or mistake in computation, or from a misapprehension of the facts, and that the error does not permeate the entire verdict, p. 511.</p> <p>O. Sales. — Action for Breach of Warranty.— Instructions.— Assumption of Facts. — In an action for breach of warranty in the sale of a horse, an instruction that if the jury found from a preponderance of the evidence, that plaintiff was entitled to recover, it was then its duty to assess the amount of the damages not exceeding the amount demanded, and that the measure of damages, if it was found that plaintiff was entitled to recover, would be the difference between the fair cash value of the animal at the time and place of sale, if in the condition as warranted, and the fair cash value of the animal as it really existed, was not, when . considered as a whole, fatal on the objection that it assumed the existence of a warranty and was therefore misleading, pp. 511, 512.</p> <p>7. Trial. — Instructions.—Duty of Court and Jury. — The court’s instructions should state the law clearly and the language should be free from doubt and ambiguities so that the jury may be aided in applying the law to the facts, and it is the duty of the jury to accept and apply the law as stated by the court to the facts which it is the duty of the jury to find. p. 512.</p>

<p>1. New Trial. — Grounds.—That the verdict of the jury is contrary to the evidence is not ground for a new trial, p. 515.</p> <p>2. Appeal. — Waiver of Error. — Briefs.—Alleged error in overruling a motion for new trial is waived as to causes therein assigned which are not supported by any point or proposition in appellant’s brief, p. 515.</p> <p>3. Street Railroads. — Grossing Accidents. — Negligence.—Presumptions. — Instructions.—Where a traveler is injured by a car at a public street crossing there is no presumption, in the absence of evidence, either for or against negligence, and the rule applicable to the crossings of steam roads generally is not applicable to an interurban road at a crossing in an incorporated town; hence, in an action against an interurban railroad company, an instruction stating the reverse of such propositions, and susceptible to the interpretation that plaintiff was guilty of contributory negligence as a matter of law if he did not see the ear that struck him in time to avoid the injury, was properly refused, p. 515.</p> <p>4. Street Railroads. — Grossing Accidents. — Instructions.—In an action for injuries sustained in colliding with an interurban car at a street crossing, an Instruction that if it.was found that plaintiff attempted to cross the track in front of defendant’s car, and that prior to such attempt, if any, he saw the car approaching, the mere fact that at the time of his attempt to cross he could see it approaching would not in itself establish contributory negligence, and that in order to establish contributory negligence the ear must have been approaching in such close proximity to plaintiff, that taking into account the rate of speed allowed by ordinance, if there was such ordinance in force, and under the then present condition of the apparent rate of speed, a reasonably prudent man would not attempt to cross the track, was not objectionable on the ground that it in effect states that plaintiff could cross in front of a rapidly approaching ear with impunity disregarding the evidence of his senses that the car was going so rapidly that it would inevitably hit him if he tried to cross, although it is not to be unqualifiedly approved and may be subject to other objections not raised, p. 516.</p>

<p>Prom Spencer Circuit Court; Henry F. Fulling, Special Judge.</p> <p>Action by Martin Maffenbeier against John Koenig and others. Prom a judgment for defendants, the plaintiff appeals.</p>

Prom Clay Circuit Court; John M. Bawley, Judge. Action by Calvin Coombes, administrator of tbe estate of Ellen Coombes, deceased, against tbe Public Savings Insurance Company of America. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal. — Assignment of Errors. — Questions Presented — Scope of Review. — In a suit for injunction, where a demurrer was sustained to the complaint, the temporary restraining order dissolved, and judgment rendered for defendant on plaintiff’s refusal to plead further, no question is presented by an assignment of error on appeal that “the court erred in rendering judgment against the appellants in favor of appellee”, and since, on plaintiff’s refusal to plead further, the dissolution of the restraining order and judgment for appellee followed as a mattei” of course, questions attempted to be raised by the quoted assignment, as well as by alleged error in dissolving the restraining order, are determined by a disposition of the assignment of error in sustaining the demurrer, p. 532.</p> <p>2. Schools and School Districts. — Erection of High School.— Statutes. — Complaint to Enjoin Trustee. — Under §§6584b, 6584c Burns 1914, Acts 1913 p. 331, relating to the erection of township high schools where for two years last past there were eight or more graduates of the elementary grades, the trustee may establish a high school if the township has no township, city or town high school, and the tax valuation is $600,000 or more; and he must establish such school under such conditions if petitioned to do so by a majority of the patrons, or, in the absence of such petition, if there is also no high school within three miles of any boundary of the township; henc-e, a complaint to enjoin the trustee of a township from constructing a high school building under such statute was insufficient in the absence of any averment to show that there was already an established high school in the township, p. 532.</p> <p>3. Pleading. — Complaint.—Theory.-—Sufficiency.—A complaint must be good on the theory on which it proceeds, or it will not be good at all, even though it states facts sufficient to be good on some other theory, p. 535.</p> <p>4. Schools and School Districts. — School Buildings. — Duty of Township Trustee. — Remedy of Patrons.- — A suit to enjoin the erection of a school building on an existing site will not lie against the township trustee, since, under §0410 Burns 1914, Acts 1901 p. 514, it is the duty of such officer to provide necessary school buildings, and the only remedy of one opposed to the erection of a building under such circumstances is by appeal to tlie county superintendent, p. 535.</p> <p>5. Schools and School Districts. — Erection of High School Building. — Compladnt to Enjo-m Trustee. — Averments as to Indebtedness. — In a suit to enjoin a township trustee from erecting a township high school building under §§fi5S4b, 6584c Burns 1914, Acts 1913 p. 331, the averment of the complaint, “that if said defendant is permitted tó construct said school building the cost thereof will far exceed the indebtedness allowed by law,” was merely a conclusion of the xileader, and not equivalent to an. averment of facts showing that the township by building such building would incur an indebtedness in excess of that permitted by the Constitution, p. 536.</p>

<p>1. Judgment. — Quieting Tax Titles. — Oonclusiveness.—Persons Not Parties. — Under §10393 Bums 1914, Acts 1901 p. 336, providing that all persons who have or claim to have an interest in or lien upon property sold for taxes shall be made parties to an action by the holder to quiet title thereto, persons not made parties are not bound by any judgment that may be rendered in such proceeding. p. 540.</p> <p>2. Judgment.— Quieting Tax Titles.— Oonclusiveness.— Parties.— Plaintiff holding a tax title to land which had been quieted in her grantor, could not enjoin the collection, by the divorced wife of the original owner, of a judgment awarded such divorcee for the support of the children prior to the quieting of such title in plaintiff’s grantor, where it appeared that such divorcee had been made a party to the quiet title proceeding in her individual capacity only, since by the divorce decree she was made a trustee for her children, and a judgment against her individually could not disturb the interests of the children, p. 540.</p>

From St. Joseph Superior Court; Archibald G. Graham, Special Judge. Proceeding by Millie Hudson to set aside a judgment by default taken by William J. 0 ’Neil. From an order setting aside the judgment, this appeal is prosecuted.

<p>From Huntington Circuit Court; J. T. Merriman, Judge.</p> <p>Action by George W. Souers against Ephriam Stahl, trustee of Huntington Township of Huntington 'County, and another. From a judgment for defendants, the plaintiff appeals.</p>

Prom Owen Circuit Court; James B. Wilson, Judge. Action by Clara R. Hall, administratrix of the estate of Morton M. Hall, deceased, against W. McMillen & Son, a corporation. Prom a judgment for plaintiff, the defendant appeals.

<p>Prom Lake Circuit Court; Willis-G. McMahan, Judge.</p> <p>Action by John Geisel against tlie City of Gary and another. From a judgment for plaintiff, the defendant city appeals.</p>

Prom Greene Circuit Court; Charles E. Henderson, Judge. Action by Goldie Collins, by her next friend, James S. James, against the Chicago, Terre Haute and Southeastern Railway Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Master aud Servant.— Injw'ies to Servant.— Common-Law Action. — Complaint.—A complaint in. a servant’s action against the master for personal injuries is not good as the statement of a common-law action if it fails to allege that plaintiff did not at and prior to the accident have full knowledge of the conditions complained of, and full appreciation of any danger there might be in working at the place where he sustained the injury complained of. p. 588.</p> <p>2. Master and Servant.— Injuries to Servant.— Statutes.— Complaint. — Sufficiency.—The Employer’s Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914), must be strictly construed, and a complaint drawn under its provisions, to be sufficient, must affirmatively show facts within its provisions, p. 589.</p> <p>3. Master and Servant. — Injuries to Servant. — Action Under Statute. — Complaint.—Sufficiency.—The complaint in an employe’s action for injuries from falling, alleging facts to show that defendant was a corporation engaged in business in this State, employing more than fifty persons, that plaintiff’s injury was sustained while in the employ of defendant, and that the injury was due to the carelessness, negligence, fault or omission of duty of defendant, was properly construed as drawn within the provisions of the Employer’s Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914), and was therefore sufficient without negativing assumption of the risk. p. 589.</p> <p>4. Master and Servant. — Injuries to Servant. — Action Under Statute. — Complaint.—Requisites.—Judicial Notice. — It is not requisite to the sufficiency of a complaint drawn under the Employer’s Liability Act that specific* reference be made to the act itself by title and page, but it is sufficient if the allegations bring it within the terms of the act, since the court takes judicial cognizance of the statutes of the State, p. 590.</p> <p>5. Master and Servant. — Injuries to Servant. — Action Under Statute. — Complaint.—Impairment of Contract. — A complaint for injuries to a servant drawn under the Employer’s Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914), is not insufficient on the ground that, the relation of master and servant having arisen ess contractu prior to the passage of the act, to impose liability on defendant thereunder would be to impair the obligations of a contract, since the right to bring an action in the future in case of a possible tort is no part of the contract of employment and is subject to legislative change at any time, p. 500.</p> <p>O. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency. — A complaint in a servant’s action for personal injuries alleging generally that the injury was due to the fault, negligence and carelessness of the master, is not insufficient as showing that the injury was the result of mere accident, in the absence of specific allegations to overcome the general averment of the master’s negligence, p. 591.</p> <p>7. Master and Servant. — Injuries to Servant. — Verdict.—Answers to Interrogatories. — Where the complaint for personal injuries to a servant by reason of his foot slipping into an aperture near where he was standing while in the discharge of a certain duty, alleged that “as a direct and proximate result of his foot so entering into said aperture, and the negligence of the defendant in so leaving the same open, plaintiff lost his balance and fell with great force .upon said iron grating upon his side and shoulder”, etc., answers by the jury to interrogatories finding that plaintiff’s injury was caused by falling and that the fall was caused by the plaintiff’s foot slipping, but with no reference to the aperture, are in irreconcilable conflict with a general verdict for plaintiff, since reference to such aperture can not be supplied by reference or intendment, non can it be said to be supplied by the general verdict. (King v. Inland Steel Co. [1912], 177 Ind. 201; Evansville Hoop, etc., Co. v. Bailey [1909], 43 Ind. App. 153; Bessier v. Laughlin [1907], 108 Ind. 38; Davis v. Mercer Lumber Co. [1905], 164 Ind. 413; and Cook v. Ormsby [1910], 45 Ind. App. 352, distinguished.) p.592.</p> <p>8. Appeal. — Review.—Instructions.—An instruction in a servant’s action for personal injuries advising the jury that in determining the question of defendant’s negligence it could consider certain things “and all other facts and circumstances which you may determine as bearing upon such question”, was too broad as 'not confining the jury to the facts directly pertaining to that question, and its giving was error in view of the many facts introduced that were not proper to be considered on the question of defendant’s negligence, p. 595.</p> <p>9. Appeal. — Review.—Harmless Error. — Refusal of Instructions.— The refusal of an instruction correctly stating that the jury must take the law as given it by the court, and not from the argument of counsel, was not harmful error, where the court gave an instruction covering the point involved, though not in so comprehensive a manner as in the instruction requested, p. 596.</p> <p>10. Master and Servant. — Injuries to Servant. — Accidental Injury. — Instructions.—Where the defense in a servant’s action for personal injuries was that of purely accidental injury, it was error for the court to refuse an instruction stating that before plaintiff could recover he must show that his injuries were traceable directly and proximately to the negligence of the defendant, and that if plaintiff purposely or carelessly did any act which caused him to fall, or that he accidentally lost his balance and fell, and if the falling was not produced by the existence of the alleged defect, then such defect was not the proximate cause of plaintiff’s injury and he could not recover, p. 597.</p>

From Gibson Circuit Court; Lucius G. Embree, Special Judge. Action by Henry T. Elder, administrator of the estate of John Byers, deceased, against the Erie Canal Coal Com,pany. From a judgment for defendant, the plaintiff appeals.

<p>1. Judges. — Special Judges. — Appointment. — Under §§428-431 Burns 1914, Acts 1903 p. 343, relating to tbe appointment of special judges, and providing that if a special judge appointed by tbe regular judge fails to qualify and assume jurisdiction within twenty days, etc., tbe appointment shall be deemed vacated, and that if another is not appointed in five days, the clerk shall, on request of either party, certify the facts to the Governor, who shall make the appointment, and under §427 Burns 1914, Acts 1907 p. 108, providing for the selection of a special judge by the striking off of names submitted by the regular judge, where the judge appointed on change of venue from the regular judge appointed another on change from himself, and his appointee failed to qualify, the regular judge was without authority to make a further appointment, p. 607.</p> <p>2. Judges. — Special Judges. — Ohjections to Appointment. — Where objection to the appointment of a special judge was made at the time, and exception reserved, tile party objecting was not required to object to him qualifying, or to his several acts during the trial, in order to take advantage of the irregularity on appeal, p. G09.</p> <p>3. Judges. — Special Judges. — Unauthorized Appointment. — Legality of Proceedings. — The proceedings had before a special judge, whose appointment by the regular judge was without statutory authority and over the objections and exceptions properly made and reserved, are illegal, p. 609.</p>

<p>From Pulaski Circuit Court; Francis J. Vurpillat, Judge.</p> <p>Action by Harry W. Bledsoe and another against David C. Ross and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Municipal Corporations. — Personal Injuries. — Defective Sidewalks. — Complaint.—Sufficiency.—A city owes to the public the duty to use reasonable care to keep its streets and sidewalks in a reasonably safe condition for the use of travelers; hence a complaint against a city for personal injuries caused by stepping into a hole in a sidewalk, alleging facts to show that defendant is a municipal corporation duly organized as a city, and that it negligently permitted the sidewalk to become and remain out of repair, is not open to the objection that it fails to show that the defect complained of resulted from the failure of the city to perform any duty incumbent upon it. p. 617.</p> <p>2. Municipal Corporations. — Personal Injuries. — Defective Sidewalks. — Knoicledge.—Complaint.—A complaint against a city for injuries received by reason of the defective condition of a sidewalk, alleging that for more than six months prior to the injury, the sidewalk had been defective in. the particular alleged, and that defendant had full and complete knowledge and notice of said defective condition of said sidewalk for six months prior to the injury, is not open to the objection that it charges knowledge only of the defective condition of the walk, and not knowledge of the hole therein which caused plaintiff’s fall, in view of the fact that the general averment of the defective condition is followed by a particular description thereof including an allegation of the existence of the hole. p. 618.</p> <p>3. Municipal Corporations. — Personal Injuries. — Defective Sidewallcs. — Complaint.—Averments.—Construction.—A complaint for personal injuries caused by stepping into a hole in a sidewalk, charging that defendant city negligently permitted the sidewalk to remain in such defective condition, without any light, barrier, etc., that a person traveling along the sidewalk was unable to see the hole, and that plaintiff was unable to and did not see it on account of the darkness, and “that plaintiff’s injuries were caused solely by the carelessness and negligence of defendant above alleged”, is not to be construed as predicating negligence upon the failure to light the street or to place lights in the vicinity of the defect, but as charging negligence with respect to the defective condition of the sidewalk, in connection with which the absence of light was an incident, p. 619.</p> <p>4. Municipal Corporations. — Personal Injuries. — Defects in Streets and Sidewalks. — Notice of Injury. — Statutes.—Under §8962 Burns 1914, Acts 1907 p. 249, requiring the service of notice of injury caused by the defective condition of a street or sidewalk, the service of a proper notice upon certain designated officers of the city within the time specified is essential in order that an action for the injury may be sustained, p. 619.</p> <p>5. Municipal Corporations. — Personal Injuries. — Defective Sidewalks. — Notice of Injury. — Sufficiency.—A notice served on defendant city pursuant to §8962 Burns 1914, Acts 1907 p. 249, by plaintiff who was injured by stepping into a hole in- a sidewalk, setting forth that the injury occurred while plaintiff was walking-on the east side of a certain street, “in front of lot 29, block 18, * * * a subdivision known as number 3353-3355 Commonwealth Avenue", was sufficient although the evidence showed that the hole was in front of lot 27, in view of the fact that the house numbers 3353-3355 were set apart for lot 27 and a house thereon bore the number 3353, and that there was no such hole in front of lot 29. pp. 619,620,621.</p> <p>6. Municipal Corporations. — Defective Streets and SidewaUcs.— Notice of Injury. — Variance.—Review.—In determining whether there is such a variance as to the place of injury as to preclude the admission in evidence of the notice of injury served by plaintiff on defendant city pursuant to §8962 Burns 1914, Acts 1907 p. 219, requiring notice of injury from defective streets or sidewalks as a condition precedent to maintaining an action therefor, it is proper for the court to resort to the evidence, not for the purpose of supplementing the notice or supplying deficiencies therein, but rather to apply the notice to the situation as it appears on the ground, p. 620.</p> <p>7. Municipal Corporations. — Personal Injuries. — Defective Streets and Sidewalks. — Notice of Injury. — Statutes.—Section 9802 Burns 1914, Acts 1907 p. 249, is mandatory, and makes the giving of the notice therein provided for a condition precedent to a right of action for personal injuries caused by the defective condition of a street or sidewalk, and, while it is to be strictly construed in so far as it concerns tbe giving of the notice within the time specified and to the proper officers, a liberal construction is applied when determining whether a notice given was sufficiently definite as to the time, place, nature, etc., of the injury, p. 621.</p> <p>8. Appeal. — Review.—Questions Not Presented. — When the record, in an action against a city to recover for personal injuries caused by the defective condition of a sidewalk, showed that no objection referring to tbe subject of the injuries was interposed to the reading in evidence of the notice of injury required by §8962 Burns 1914, Acts 1907 p. 249, but that after it was read, appellant moved to strike out all testimony that had been given respecting injuries not covered by tbe notice, and which had been heard without objection, and it further appeared .that the overruling of such motion had not been assigned as error, aud that no instruction had been requested excluding from the consideration of the jury in assessing damages the injuries claimed not to have been covered by the notice, the question of the sufficiency of such notice in its relation to the injury suffered was not presented for review, p. 624.</p> <p>9. Municipal Coepoeations.— Personal Injuries.— Contributory Negligence. — Burden of Proof. — In an action for personal injuries from the defective condition of a sidewalk, defendant city has the burden .of proof on the question of contributory negligence, p. 626.</p> <p>10. Municipal Coepoeations.' — Personal Injuries.- — Defective Sidexoallcs. — Contributory Negligence. — While a sidewalk may be so defective as to preclude recovery by one on the principle of incurred risk if it appears that with knowledge of its condition he ventured thereon and was injured, yet the mere fact that one goes upon a sidewalk with knowledge of a defect therein, and is injured thereby, docs not necessarily prevent a recovery for such injury, p. 626.</p> <p>11. Municipal Coepoeations. — Personal Injuries. — Defective Sidewalks.— Contributory Negligence. — Jury Question. — Where the evidence disclosed that plaintiff, who was injured by reason of a hole in a sidewalk, had some prior knowledge of the existence of such hole, and it further appeared that the hole was only about twenty-two inches long and four inches wide and was situated at one side of the walk which was six feet wide, the element of knowledge was merely for the consideration of the jury on the issue of incurred risk and contributory negligence; and the additional showing that plaintiff," having such" previous knowledge forgot about the existence of such defect, did not conclusively show contributory negligence, pp. 626,628.</p> <p>12. Municipal Coepoeations. — Personal Injuries. — Defective Sidetealks. — Contributory Negligence. — Knowledge of Defect. — Forgetfulness. — Though a defect in a sidewalk may. be so portentous of peril that a person attempting to use it would be chargeable with the responsibility of keeping it in mind or otherwise be found guilty of negligence contributing to an injury received in attempting to use the walk, a defect may be of such character that a momentary forgetfulness of its existence is excusable. p. 626.</p> <p>13. Municipal Coepoeations. — Defective Streets and Sideioalks. — ■ Duty to Repair. — Rights and Duties of Traveler. — The responsibility of keeping in mind a known defect or obstruction in a street or sidewalk does not rest upon the traveler with the same degree of intensity as upon the municipality, and, while it is the duty of the latter to make reasonable inspection, and to repair defects and remove obstructions, so as to render tbe way reasonably safe for travel, tbe former, though bound to use ordinary care, need not make a close inspection, and may presume, in the absence of knowledge or means of knowledge to the contrary, that the municipality has performed such duty. p. 628.</p> <p>14. Appeal. — Review.—Admission of Evidence. — Appellant can not complain of the action of the trial court in permitting certain testimony to be given on reexamination of a witness where it appears that the subject to which the testimony related was introduced by appellant on tbe cross-examination, p. 630.</p> <p>15. Appeal. — Waiver of Error. — Briefs.—Assignments in the motion for new trial respecting the admission and' exclusion of evidence are waived by tbe failure of appellant’s brief to contain any point directed to them. p. 630.</p> <p>16. Appeal. — Review.—Instructions.—There is no error in the giving or refusing of instructions where it appears from the record that the jury was fully and fairly instructed, p. 630.</p> <p>17. D amases. — 'Excessive Verdict —Revietv.— Where lJlaintiff, a married woman fifty-six years of age, was injured by a fall, and it was , shown that, though no hones were broken, she suffered severe pain in her right knee and leg and about her body in the region of the right kidney, that she was thereby confined to her bed for ten dasrs and to tbe house for several months, under the regular care of a physician, that for about six months she was required to use crutches, that while the injury to the kidney did not materially interfere with the functions of the organ, it produced constant pain and a nervous condition, that the percentage of cures of such injuries is small, that the injury to the knee was .probably permanent, and that she had lost weight and was unable to do all her housework, a verdict awarding her damages in the sum of $6,000 was excessive, pp. 630, 631.</p> <p>18. Appeal. — Review.—Excessive Damages. — Disposition of Cause. —Remittitur.—While a determination on appeal that the damages are excessive affords ground for unconditional reversal, it does not necessitate such disposition of the cause, since, even though there is no definite standard for the measurement of the damages, the court may permit a remittitur of such amount as it may deem excessive and affirm the judgment on condition that such remittitur is made. p. 632.</p>

From Lake Superior Court; Charles W. Hanley, Special Judge. Action by the American Maize Products Company against Charles B. Shedd and others, in which Oliver O. Forsyth and others filed petition to intervene. From a judgment denying the right to intervene, petitioners appeal.

<p>.From Delaware Superor Court; Robert M. Van Afta, Judge.</p> <p>Action by Jacob Brumbaugh against The Eock Oil Company and others. From a judgment for plaintiff, the de-" fendants appeal.</p>

<p>1. Venue. — Change of Venue. — Statutes.—The statutory provision for a change of venue in a civil cause upon proper application therefor is imperative, and a denial of a change of venue under such circumstances is reversible error, p. 659.</p> <p>2. Venue. — Refusal of Change. — Presenting Question on Appeal.— In order to predicate error on the ruling on an application fo,r a change of venue, the same must be properly assigned as a ground in the motion for a new trial, p. 660.</p> <p>3. New' Trial. — Grounds.—Refusal of Change of Venue. — Error of Probate Commissioner. — A motion for a new trial alleging that the probate commissioner, to whom the cause had been referred by the circuit court for trial and finding, erred in overruling defendant’s motion for a change of venue, does not present the question of whether the trial court erred in the overruling of such motion, p. 6G0.</p> <p>4. Appeal. — Review.—Overruling Motion for New Trial. — Where the specifications in a motion for new trial were such as to present no questions.for review, there was no error in the overruling of same. p. 660.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by George Lampbier against Fred Karch and another. Prom a judgment for defendants, tbe plaintiff appeals.</p>

<p>1. Appeal. — Finality of Judgment.- — Review.—In an action to quiet title and for possession of real estate where the special findings and conclusions of law covered all the issues between the parties, but the record discloses no judgment against appellants as to the interest which the court found to he held by one who was a defendant to appellant’s cross-complaint, the issue as to such defendant was not adjudicated, and hence the judgment was not a final judgment from which an appeal would lie. p. 676.</p> <p>2. Judgment. — Final Judgment. — A final judgment is one that at once disposes of all 1he issues, as to all the parties involved in the controversy presented by the pleadings, to the full extent of the power of the court to .dispose of same, and puts an end to the particular case as to all of such parties and all of such issues, p. 676.</p>

<p>From Wells Circuit Court; David B. Smith, Special Judge..</p> <p>Action by Prank M. Johnson against Eolancl J. Sidey. Prom a judgment for defendant, the plaintiff appeals.</p>

From Daviess Circuit Court; James W. Ogdon, Judge. Action by William C. Curry, administrator of the estate of Burtis A. Curry, deceased, against the Yincennes Traction Company and another. From a judgment for plaintiff, the defendants appeal.

Prom Fountain Circuit Court; I. F. Schoonover, Judge. Action by Jacob P. Isley against tbe City of Attica for review of tbe question of benefits and damages in a proceeding to open a street. From, a judgment of dismissal, the plaintiff appeals.

<p>Prom Lake Circuit Court; Johannes KopeUce, Judge.</p> <p>Action by Joseph Yonan against the American Sheet and Tin Plate Company. Prom a judgment for plaintiff:, the defendant appeals.</p>