Volume 60 — Indiana Appellate Court Reports

<p>From Superior Court of Madison County; H. Clarence Austill, Judge.</p> <p>Action by William R. Perry against Louisa G. Ward and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Marshall Circuit Court; Harry Bernetha, Judge.</p> <p>Action by Elijah Ball and another against William Everly and another. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Evidence. — Judicial Knowledge. — Days and Dates. — The court judicially knows that neither March 1 nor May 15 fell on Sunday in either of the years from 1905 to 1908, both inclusive, and that the number of days from March 1 to May 15, inclusive, in each of said years, exclusive of Sundays, Was sixty-five. p. 18.</p> <p>2. Appeal. — Review.—Evidence.—Presumptions.—Where plaintiff, sueing to recover a balance claimed to be due for services performed on Sundays in the assessment of property for taxation, testified that he had been paid for sixty days’ work, while he was in fact paid in full for sixty-five working days intervening from March 1 to May 15, inclusive, it will be presumed in considering Ms testimony that he erroneously said sixty instead of sixty-five. p. 19.</p> <p>3. Sunday. — Statutory Provisions. — “Common Labor”. — The phrase “common labor” as used in §2364 Burns 1908, Acts 1905 p. 584, §467, proMbiting one from engaging in common labor or in his usual avocation on Sunday, includes the transaction of the ordinary business affairs of life. p. 19.</p> <p>4. Taxation. — Assessment of Property. — Work Performed on Sunday. — One employed to assess property for taxation, who devoted the Sundays embraced in the period from March 1 to May 15 in checking up and arranging Ms lists, was on such days engaged in a work incident to the work of assessing and hence engaged in his usual avocation witMn the meamng of §2364 Bums 1908, Acts 1905 p. 584, §467, proMbiting work on Sunday, and, in view of the fact that the public interests would not have suffered substantially had such work not been performed on Sunday, the work was not one of necessity, nor was it a work of charity, witMn the exceptions provided by the statute, pp. 20, 21.</p> <p>5. Evidence. — Judicial Knowledge. — The court judicially knows that in each of the years from 1905 to 1908 inclusive, Wayne TownsMp in Allen County had a population of more than 20,000 and not more than 75,000, according to the last preceding UMted States census, p. 21.</p> <p>6. Taxation. — Assessment of Property. — Work Performed on Sunday. — Compensation.—One engaged in the assessing of property for taxation can not recover for incidental work performed by him on Sunday in violation of §2364 Burns 1908, Acts 1905 p. 584, §467. p. 22.</p> <p>7. Taxation. — Assessment of Property. — Work Performed on Sunday. ■ — Statutes.—Although there are seventy-five days including Sundays in the time allotted for the assessment of personal property as fixed by the act of 1903 (Acts 1903 p. 49, §10157 Burns 1908), and that act limited the time for which townsMp assessors might receive pay to seventy-five days, while subsequent amendments provide that assessors should be paid for a time not exceeding such limits as may be fixed by law in any year, it can not be presumed that the legislature intended to authorize township assessors and their deputies to prosecute their work on Sundays, especially in view of §10272 Bums 1908, Acts 1903 p. 49, providing for the assessment of property after the time limited, p. 23.</p> <p>8. Appeal. — Review.—Findings.—Conclusiveness.—la support of the finding of the trial court, attacked on the ground of insufficient evidence, only the evidence, and inferences therefrom, tending to support the finding can be considered, and the finding thus warranted is conclusive, p. 24.</p> <p>9. Appeal. — Right of Action. — Acceptance of Allowance of Board of Commissioners. — Where the board of commissioners allowed the claim of an assessor each year for the full number of secular days devoted to the work during the period from March 1 to May 16, and disallowed the claim for extra days and work performed on Sundays, and the record discloses that the claim sued on was filed and disallowed in its entirety, the objection that plaintiff, having accepted and retained the allowances for each year, is precluded from maintaining any action for the disallowed portions, is inapplicable. p. 24.</p>

From Marion Circuit Court (20,678); Charles Remster, Judge. Action by Anna Maley and others against Ellen Donlon to declare a trust and for an accounting. From the judgment rendered, the defendant appeals.

<p>1. Husband and Wife. — Conveyances.—Estates Granted. — Deed to ' Husband and Wife. — Statutes.—Under the provisions of §§3953, 3954 Burns 1914, §§2922, 2923 R. S. 1881, relative to the estates created by conveyances made to two or more persons, a deed.of lands to a husband and wife, containing no qualifying words, conveys an estate to them as tenants by the entirety, even though the grantees are not therein described as being husband and wife. p. 38.</p> <p>2. Husband and Wife. — Conveyances.—Construction.—Deed to Husband and Wife. — Where a deed of conveyance to a husband and wife contains words which so qualify or define the estate conveyed as to make it apparent that the parties intended the grantees to hold as tenants in common, such intention wall prevail and be given effect, p. 38.</p> <p>3. Deeds. — Construction.—Granting and Habendum Clauses. — A deed is to be construed as a whole and effect is to be given to each and every part if possible, and the intention of the parties as to the kind of estate conveyed, if clearly expressed, will be given effect regardless of the technical rule that the granting clause will prevail over the habendum or other parts of the deed tending to curtail or modify the estate conveyed, unless there is irreconcilable conflict, in which event the granting clause will prevail, p. 39.</p> <p>4. Husband and Wife. — Deed to Husband and Wife. — Construction. —-The provisions of a deed of land made to a husband and wife, that if the land was not sold by grantees, then at the death of the husband his half of said land should go equally to all his children, and that if the wife had not sold her part at her death, one-half should be divided equally between her children and her husband’s children by his first wife, were not repugnant to the granting clause in the sense that they detracted from or lessened the title conveyed to grantees, but showed an intention that the title was to be taken and held by them in common, and not by the entirety, which must prevail as against the granting clause, though the latter, standing alone, would have conveyed an estate by the entirety, p. 39.</p>

<p>From Lake Superior Court; Johannes Kopelke, Judge.</p> <p>Action by William Liddington against John Peterson. From a judgment for plaintiff, the defendant appeals.</p>

From Superior Court of Allen County; John Morris, Special Judge. Action by Samuel S. Messing against the Fort Wayne National Furniture Company for the appointment of a receiver, in which, subsequent to the distribution made by the receiver therein appointed, Hannah Pottlitzer and others sought to file intervening petitions. From the judgment rendered, the petitioners appeal.

<p>From Miami Circuit Court; Joseph N. Tilletb, Judge.</p> <p>Action by Henry Williams against Edward F. Wood and others. From a judgment for defendants, the plaintiff appeals.</p>

From Superior Court of Vanderburgh County; F. M. Hostetler, Judge. Action by The Pillsbury Flour Mills Company against William P. Walsh and another. Verdict for plaintiff, and from an order in arrest of the judgment, the plaintiff appeals.

From Clinton Circuit Court; Joseph Combs, Judge. Action by Rebecca Vail and others against Elwood Avery and others. From the judgment ren- dered, Elwood Avery and others appeal.

<p>Mechanics’ Liens. — Materialmen.—Submaterialmen.—Right to Lien-—One who contracted with an owner to furnish complete two flights of stairs according to specifications for the particular house to be constructed, but not to affix the stairs to the house, was not a contractor within the terms of the mechanic’s lien stattíte, but a materialman only; hence a third person to whom he sublet the contract, and who talked with the owner about it, and was given specifications by him, and delivered the stabs on the owner’s premises, stood in the position of a materialman furnishing material to a materialman and was not entitled to a lien.</p>

<p>1. Insurance. — Live Stock Insurance. — Expediting Death of AwL mal. — Liability.—Where plaintiff’s mare in the foaling of a colt was so badly torn and mangled that she suffered great pain and was in a dying condition, and there was no possibility of recovery, the act of the veterinary surgeon in expediting her death by a blow on the head did not relieve defendant from liability under a policy covering loss by death from foaling, p. 114.</p> <p>2. Insurance. — Live Stock Insurance. — Death of Animal. — Official Acts. — Liability.—Defendant was liable for the death of a mare covered by a policy providing that no liability should attach for death caused by the authority or direction of an officer or person claiming to act under and by virtue of any law, where, on finding the mare to be suffering and in a dying condition beyond the possibility of recovery, the veterinary in charge, who was also an officer of the law, expedited her death by a blow on the head, in the absence of anything to show that he was acting in his official capacity rather than in the performance of his duty as a veterinary, p. 116.</p> <p>3. Insurance. — Live Stock Insurance. — Action on Policy. — Interrogation of Party Before Trial.- — -Conclusiveness of Answer. — In an action on a policy of live stock insurance exempting the company from liability for death of an animal pursuant to official authority or direction, plaintiff’s answer to an interrogatory propounded before trial, that the animal was killed by an officer of the law, was not conclusive and was subject to contradiction by evidence showing that the officer did not act in an official capacity and that what he did was merely to expedite the death of the animal whose condition was already beyond the possibility of recovery, p. 116.</p> <p>4. Insurance. — Live Stock Insurance. — Notice of Illness. — Under a policy of live stock insurance requiring notice to the company in • ease of illness of the animal insured, the owner of the animal has a reasonable time within which to give such notice, and where the facts are disputed the question of what constitutes a reasonable time is for the jury; hence where plaintiff’s mare in foaling was so badly torn and mangled that she was beyond the possibility of recovery and was suffering intensely, so that humane treatment required the immediate expediting of death, the court can not say that the failure to notify the company of the animal’s illness was unreasonable. p. 116.</p> <p>5. Insurance. — Live Stock Insurance.- — -Defenses.-—Waiver.—Where a live stock insurance company, with knowledge of all the facts respecting the death of the animal insured, rejected the claim after proof of loss solely upon the ground that the animal had been killed by an officer of the law, it thereby waived all other grounds of defense, including the plaintiff’s failure tó give notice of the animal’s illness, p. 117.</p>

<p>From Superior Court of Marion County (83, 672); Joseph Collier, Judge.</p> <p>Action by Louie Yeager and others against the Vandalia Railroad Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Evidence. — Admissibility.—Opinions.—Where a witness, in an action for fraud in the sale of a horse, had testified to facts showing that he possessed some information and skill in relation to the disease with which the horse was alleged to be afflicted, not within the common knowledge and experience of ordinary men generally the admission of his testimony to the effect that the horse had “summer sores” was not reversible error; and, even were the witness not qualified as an expert, the admission of the testimony was not error, in view of the fact that it was based on observations of the witness and on facts within his personal knowledge related to the jury. p. 137.</p> <p>2. Appeal. — Review.—Evidence.—Admissibility.—In an action for fraud in the sale of a stallion, where a witness was asked if he could state why mares were not bred, after a certain time, to which appellant ’objected on the ground that the question called for a conclusion and was hearsay, and the corut, before the witness answered, cautioned him that he might state why they were not bred, but not what was said, the admission of the answer of the witness that the horse “was sore and they could not breed to him,” was not error, since, in the absence of any objection on the ground that he had not stated any facts or observations on which to base an opinion, or from which he might draw a conclusion, it must be assumed that the witness had stated some facts as a basis for the answer given, p. 138.</p> <p>3. Appeal. — Review.—Objections to Evidence. — Waiver.—Where the amount of the damages was not questioned by the motion for a new trial, questions presented on the admission and exclusion of evidence relating solely to the question of damages were waived, p. 139.</p> <p>4. Fbaud. — False Representations. — Instructions.—Instructions in an action for fraud in the sale of a stallion afflicted with “summer sores,” stating that if the stallion was in fact afflicted at the time of its purchase by plaintiff, with summer sores which rendered it unsound at the time, and defendant, not knowing whether it was afflicted or unsound, represented to plaintiff for the purpose of inducing him to purchase, that such stallion was not so afflicted, or that it was sound, and such statement or statements were believed and relied upon by plaintiff, he was entitled, if they were untrue, to recover; and that if a party makes material representations to induce another to purchase what he offers for sale, and the purchaser relies upon and in good faith believes same without knowing the.contrary, and thereon purchases the property, which is in fact defective and not as represented, by reason of which he is damaged, a liability arises against the party making the representations regardless of whether he at the time knew that they were false; correctly stated the law applicable to the issues and evidence of the ease, regardless of the fact that the complaint alleged that defendant at the time of making the representations knew that they were false, pp. 139, 141.</p> <p>5. Action. — Pleading.—Averments.—Proof.—A party may, in the same paragraph, aver more facts than are necessary to state a cause of action and recover on proof of such of the facts so alleged as constitute a cause of action, even though some of the facts averred are not proven,- and, under such circumstances the ease proven is within the issues and there is neither a change of theory nor variance, p. 141.</p> <p>6. Appeal. — Review.—Instructions.—In an action for fraud in the sale of a horse, an instruction that if appellant’s agent who made the sale to appellee represented the horse to be sound, such statement “would imply that said agent knew that said horse at said time, and that he was speaking from his own knowledge”, etc., was not indefinite or uncertain and did not invade the province of the jury, though omitting the words “was sound” or words of like import after the words “at said time”, where the rest of the instruction made its meaning clear, and, when considered with the other instructions, substantially stated the law correctly, p. 141.</p> <p>7. Feattd. — False Representations. — Liability.—Where one makes an unqualified statement of a fact as of his own knowledge and induces another to act upon it, and the fact does not exist, the law will impute to him a fraudulent purpose, p. 142.</p> <p>8. Appeal. — Review.—Refusal of Peremptory Instruction. — In an action for fraud in the sale of a horse the court properly refused to direct a verdict for defendant, in view of the admission of defendant’s agent that he made the statement attributed to him without personal knowledge of its truth, and of other evidence of similar import, p. 143.</p> <p>9. Appeal. — Review.—Refusal of Instructions. — In an action for fraud in the sale of a horse, the refusal of an instruction to the effect that a mere expression of opinion does not amount to a representation was not error, where the court stated in another instruction that a representation to be fraudulent must not be a mere expression of opinion or relate to facts “open to plaintiff as well as to defendant.” p. 143.</p> <p>10. Appeal. — Review.—Refusal of Instructions. — In an action for fraud in the sale of a horse,' where there was evidence to show that the one who made the alleged false representations was in the employ of defendant and had authority to make the sale, and the representations related to matters peculiarly within the knowledge of defendant and its agent, and of which the plaintiff could not know and concerning which he made inquiry, the court properly refused an instruction requested by defendant on the theory that a purchaser has no right to rely upon representations where he has reasonable opportunity of examining the property and judging for himself as to its qualities, p.-144.</p> <p>11. Appeal. — Review.—Refusal of Instructions. — There is no error in the refusal of instructions where those given fully and correctly state the law applicable to the issues and facts of the ease. p. 145.</p>

<p>1. Easements. — Establishment and Protection. — Injunctive Belief.— Complaint. — An indefinite easement or right of way which is not specifically located and described can not be established and protected and described; hence a complaint to enjoin encroachments upon or interference with an easement or right of way, which does not furnish the means or data for entering a definite decree, including a definite description as to dimensions and location, is insufficient, p. 154.</p> <p>2. Easements. — Location.—Persons Entitled to Locate Way.— When an unlocated right of way is granted, or reserved, the owner of the servient estáte may, in the first instance, designate a reasonable way, and if he fails to do so, when requested, the owner of the dominant estate may designate it. p. 154.</p> <p>3. Easements. — Location.—Selection by Owner of Dominant Estate. — When the owner of the dominant estate or easement designates the location of the easement, he is required to select a route that is reasonable as to both parties in view of all the circumstances and that will not unreasonably interfere with the grantor, or owner of the servient estate, in the enjoyment of his property, p. 155.</p> <p>4. Easements. — Location.—Change of Location. — When an easement or right of way has once been selected and located, it can not be changed by either party without the consent of the other, p. 155.</p> <p>5. Easements. — Interference.—Suit for Injunctive Relief. — Complaint. — A complaint to enjoin defendants from interfering with the construction of a pipe line across defendants’ land pursuant to the grant of an easement for same so as to connect plaintiff’s premises with a lake, was insufficient, where it did not describe the real estate over which the easement was granted, and did not allege that the way over which the pipe line was to be extended into the lake had been located by any one, or that plaintiff had requested defendants to select the location and that they had failed and refused to do so, or that they had selected an unreasonable location, or that plaintiff had itself chosen the route, p. 155.</p> <p>6. Navigable Waters. — Riparian Rights. — Right of Owner of Easement. — An easement in land bordering on navigable waters carries such riparian rights in the submerged lands between the shore and the navigable portion of such body of water as are appropriate and necessary to give effect to the easement, p. 156.</p> <p>7. Easements. — Location.—Riparian Rights. — Where defendants granted to plaintiff an easement for a pipe line through the land of defendants and into a lake on which such land fronted, and plaintiff had constructed the pipe line to a point near the shore of the lake, the location of the pipe-line from that point into the lake was governed by the rules for the location of any easement granted, and the general rule for the determination of that portion of submerged lands over which riparian rights may be asserted, as between adjoining property owners, by extending lines from the water’s edge at right angles to the prevailing shore line was inapplicable. p. 156,</p> <p>8. Easements. — Location.—Selection of Route. — Under a grant of an easement for a pipe line across defendants’ land and into a lake the interested parties could make any reasonable location of the easement on the property over which it extended, so long as they did not encroach upon or interfere with other property, p. 158.</p> <p>9. Pleading. — Demurrer.—Scope of Inquiry. — A pleading tested by a demurrer must stand or fall by its own averments alone, though the omission from a complaint may be cured or rendered harmless by an admission of the adverse party in his answer, p. 158.</p> <p>10. —Appeal.—Exceptions to Conclusions of Law. — Admissions.— Sufficiency of Complaint. — While an exception to conclusions of law admits for the purpose of the exception that the facts within the issues have been fully and correctly found, it does not always render a consideration of the complaint unnecessary, and it is only where the facts are fully and correctly found within the issues that an exception to the conclusions of law presents the same question as a demurrer to the complaint for want of facts, p. 159.</p> <p>11. Appeal. — Review.—Amendments Regarded Made. — Where a complaint to enjoin interference with an easement for a pipe line over the land of defendants and into a lake failed to describe the shape, dimensions or position of the easement, or a request by plaintiff for the location of the way and a refusal by defendants to grant it, and defendants by both their answer and cross-complaint alleged ownership of the real estate between the lake shore and plaintiff’s premises, specifically describing same, and further alleged that defendants indicated and pointed out the site, place and location for the proposed easement and right of way for such pipe line, that the same was in a convenient place, extending in a straight line from plaintiff’s plant in a northerly direction to the lake, at a point and position west and westerly from certain piers, docks and harbor, that the location pointed out was reasonable, and that plaintiff had no rights at the place where it was attempting to construct its line, etc., and it appears that the question of the location of the easement was tried on evidence introduced by both parties without objection, and that the issue was fully tried and determined, the defects in the complaint, being such as could have been amended at any time under §405 Burns 1914, §396 R. S. 1881, will be deemed, under §700 Burns 1914, §658 R. S. 1881, to have been amended so as to preclude a reversal, p. 160.</p> <p>12. Trial. — Findings.—Sufficiency.—Findings can not be aided by the conclusions of law, and to warrant a recovery by plaintiff every fact material to the cause must be found and stated, or must necessarily and clearly arise by inference from the facts found and stated, p. 163.</p> <p>13. Trial. — Findings.—Failure to Find Material Fact. — The failure to find a material fact is the equivalent of a finding against the party upon whom rests the burden of proving such fact. p. 163.</p> <p>14. Easements. — Deed.—Variation by Parol. — Findings.—While a deed granting an easement, like other written contracts, is the repository of the entire agreement, and, in the absence of fraud, can not be varied by parol evidence, the actual consideration may be shown by parol to have been different from that expressed in the deed; hence in an action to enjoin interference with plaintiff’s easement for a pipe line over the land of defendants, where the deed did not definitely locate the line of the easement, findings on parol evidence showing that grantor pointed out the way for the pipe line as an inducement to the purchase of the land to which the easement was appurtenant, and that this entered into the consideration for the purchase, were not objectionable as being outside the issues or as tending to vary the terms of the deed. p. 172.</p> <p>16. Easements. — Interference.—Suit for Injunctive Relief. — Find ings. — In a suit to enjoin interference with the construction of a pipe line across defendants’ land and into a lake pursuant to the</p> <p>' grant of an easement therefor, findings showing that during the negotiations for the sale to plaintiff of the land to which the easement was appurtenant defendants pointed out the line of the</p> <p>■ proposed easement, and again pointed it out after the sale was consummated, in each instance locating it east of as certain pier, and that plaintiff in extending the pipe line from a point where prior work of construction had ceased changed to a more easterly course than that indicated by extending the line in the direction pursued in such prior construction, so as to extend into the lake east of the pier, instead of west thereof as would otherwise have been the case, do not show that the course of the easement was changed from the line originally pointed out, nor are findings showing that plaintiff did not demand or request defendants to locate the remaining portion of the easement either before or after entering into the contract for such extension, in conflict therewith in the absence of a finding that there was an agreement to change the location as originally pointed out; and hence such findings supported the conclusions of law in favor of plaintiff, p. 174.</p> <p>16. Easements. — Suit to Enjoin Interference. — Defenses.—Creation of Nuisance. — Where plaintiff sought to enjoin interference with the laying of a pipe line across the land of defendants and into a lake pursuant to the grant of an easement for such purpose, the relief sought could not be denied on the ground that the findings showed that the establishment of such pipe line would be a nuisance by reason of the pollution of water by the outfall discharged therefrom, where it appeared from other findings that defendant had selected the location for such easement, and that for two years prior to the alleged interference the discharge from plaintiff’s partially constructed pipe line had polluted the water, of which fact defendants had knowledge and of which they had made neither complaint nor objection, and in the absence of a showing that the completion of such pipe line would in any way increase the pollution, p. 176.</p> <p>17. Easements. — Interference.—Suit for Injunctive Belief. — Parlies. —A decree enjoining defendants from interfering with the construction of a pipe line across their land, pursuant to the grant of an easement therefor, so as to connect plaintiff’s premises with a lake at a point in a harbor maintained at the mouth of a stream emptying therein, was not contrary to law on the ground that third persons claiming an interest in such harbor had not been permitted to intervene, since, in view of findings showing that the interests of such third persons consisted merely in a right equal with that of defendants to dredge the harbor and make it suitable for general use, that the same had not been made suitable for lake vessels, that plaintiff’s pipes had been laid below the bed of such harbor and could be lowered by defendants at any time at a small cost to be borne by them, and from which it does not appear that the pipes will ever become an obstruction or interfere with any right of such third persons, the latter were not necessary parties to the suit. p. 179.</p> <p>18. Injunction. — Bight to Belief. — Remedy at Law. — A party is not necessarily precluded from injunctive relief by the fact that he has a remedy at law, since the court may grant such relief where it appears that the legal remedy is not as prompt, practical, efficient and adequate as that afforded by equity, p. 182.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Edsell Howell against Sarab Dunton: From a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Street Railroads. — Injuries to Persons on Streets. — Duty of Motorman. — Instructions.—In an action for injuries sustained in a collision with an interurban car upon a public street, an instruction that “a motorman operating an interurban car upon a city street, and seeing a person driving * * * parallel to the track * * * and not within dangerous proximity thereto, has a right to presume that such person will exercise reasonable and ordinary care and will not drive upon the track when said car is in dangerous proximity”, and that “it is the duty of such motorman, if he sees such person approaching the track in a vehicle, to give warning of the approach of his car, if he has the time and opportunity in the exercise of ordinary care, and he may proceed without stopping the same upon the presumption that such person will not drive upon the track in front of his ear when it is in dangerous proximity to said person and vehicle”, though incomplete and not strictly accurate, was not fatally erroneous in view of other instructions given. p. 188. ...</p> <p>2. Appeal. — Review.—Consideration of Instructions. — The instructions given by a trial court are to be construed in their entirety, and, when thus’ considered, if it appears that the- jury was fully instructed on the issues, errors appearing on a consideration of the instructions in detached portions will be disregarded, p. 190.</p> <p>3. Trial. — Instructions.—Incomplete Instructions. — Duty to Request Proper Instruction. — Where it occurs to a party at the time of trial that an instruction omits certain matters that might properly be included therein, it is his duty to request a complete instruction. p. 191.</p> <p>4. Appeal. — Review.—Harmless Error.- — -Incomplete Instruction.— The omission of proper matter from an instruction given is harmless where other instructions cover the matter alleged to be omitted, p. 191.</p>

From Steuben Circuit Court; Frank M. Powers, Judge. Action by tbe W. H. McIntyre Company against the Lake Shore and Michigan Southern Railway Company and another. From a judgment for plaintiff, the defendants appeal.

<p>Prom Delaware Superior Court; Robert M. Van Atta, (Judge.</p> <p>Action by Lloyd Beall and others against George W. Palmer. Prom a judgment for plaintiffs, the de-</p> <p>fendant appeals.^</p>

<p>From Delaware Circuit Court; William A. Thompson, Judge Pro Tern.</p> <p>Action by Carrie McDermott against the Board of Commissioners of the County of Delaware and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>Appeal. — Review.—Ruling on Demurrer. — Constitutional Questions.— Transfer. — Where charges instituted to revoke a druggist’s lieénse were demurred to for want of sufficient facts and also upon the ground that the statute under which the proceeding was instituted was unconstitutional and void, the error assigned on the sustaining of such demurrer necessitated the transfer of the appeal tó the Supreme Court on the theory that a constitutional question was involved, although the latter ground stated is not recognized as ground for demurrer, since the trial court may have treated it as a part of the memorandum pointing out wherein the charges were insufficient for want of facts, and especially in view of the rule that the court on appeal will search the record to uphold the sustaining of the demurrer on any sufficient ground though not contained in the memorandum of defects.</p>

<p>1. Physicians and Surgeons. — Liability for Services. — Persons Liable. — Ordinarily a person who summons medical aid for another is not Mable for the value of such services unless he stands in some. relationship creating an obligation to furnish such aid, nor is a corporation generally liable for the employment, by one of its officers, of .physicians and surgeons to attend upon sick and injured employes, unless it gave special authority for such employment. p. 227.</p> <p>2. Railroads. — Employment of Surgeon. — Liability for Services.— Although on ordinary occasions a station master may not bind the railroad company for medical services, where an employe is injured so that immediate attention is demanded in order to save life, or prevent great injury, authority arises in the highest officer of the company present, by reason of the emergency, to bind the company for such medical or surgical aid as the emergency demands; hence, where a trespasser was struck by a train, and by order of the company’s superintendent was sent to a station where a surgeon rendered what assistance was possible, and, in the absence of hospital facilities, the man was then removed to another station where the necessary aid could be procured, the station master at the latter place had authority, in the absence of a higher official, to bind the company for such medical aid as the emergency demanded. p. 227.</p> <p>3. Railroads. — Employment of Surgeon. — Liability for Services.— Calling in Other Surgeons. — Where there was authority for the employment of a surgeon by a railroad station master so as to bind the company, and the emergency of the ease made additional surgical and medical aid absolutely necessary, the surgeon thus employed was justified in calling the necessary additional aid and could recover for their services as well as for his own. p. 228.</p> <p>4. Physicians and Surgeons. — Liability for Services. — Persons Liable. — Where, pursuant to authority arising from the emergency, a railroad station master employed a surgeon to attend a person struck by a train, and afterwards notified him that the company would not be liable for any further services or attention rendered the injured person, the surgeon could not recover from the company for any services rendered after such notice beyond what was absolutely demanded by the emergency, p. 229.</p> <p>5. Railroads. — Employment of Surgeon. — Liability for Services.— Where a surgeon was employed by a railroad station master, pursuant to authority arising from the emergency, to attend a man who had been injured by a train, the right of recovery for the services of such surgeon and of assistants called in by him was limited to emergency or first aid services, and when such services as were necessary to relieve the suffering of the injured party or preserve his life had been rendered, the emergency ceased to exist, and the company was not-liable for subsequent medical services, unless by reason of some additional contractual relation, p. 231.</p> <p>6. Railroads. — Employment of Surgeon. — Action for Services. — - Jury Question. — The question of what constituted first aid emergency services to a person struck by a train, in an action against the railroad company to recover therefor, was a question of fact for the jury. p. 232.</p>

<p>From Pike Circuit Court; John L. Brets, Judge.</p> <p>Action by Claude Bartlow against the National Live Stock Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Perfection of Appeal. — Filing Transcript. — An attempted term time appeal is not perfected as such where the transcript is not filed in the court on appeal within the time allowed by §679 Burns 1914, §638 R. S. 1881. p. 243.</p> <p>2. Appeal. — Imperfect Term Time Appeal. — Vacation Appeal.— Parties. — An attempted term time appeal, not perfected as such, could not be treated as a vacation appeal where there was no judgment below in favor of one of the parties named as an appellee, p. 244.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Leslie B. Alter against Paul L. Schultz and others. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Allen County; Carl Yaple, Judge.</p> <p>Action by William D.' Irick and another against the Kansas City Oil and Development Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. .Carriers. — Injuries to Passengers. — Complaint.—Knowledge of Passenger’s Position. — A cotmplaint by a passenger for injuries by being thrown from the platform of a street car, alleging that plaintiff, when near his point of destination, informed the conductor that he desired to alight, that the conductor signalled the motorman to stop the ear, that the speed was thereupon reduced, that plaintiff, believing that the cár would stop at his point of destination, stepped upon the platform preparatory to alighting, and that defendant’s servants had full knowledge of his position, but negligently failed to stop the car and negligently 'increased its speed and caused the ear to be jerked suddenly, whereby plaintiff was thrown, etc., sufficiently charged defendant’s servants with knowledge of plaintiff’s position upon the platform, p. 254.</p> <p>2. Carriers. — Carriage of Passengers. — Duty of Carrier. — Laibility. • —A carrier, while not an insurer of the safety of its passengers, must exercise the highest degree of care practicable for their safety, ' and is responsible for injuries through its negligence, growing out of the condition of its road, character of its equipment, and the conduct of its servants; the passenger himself being without fault, p. 255.</p> <p>3. Carriers. — Injuries to Passengers. — Contributory Negligence.— It is not negligence per se for a passenger to go upon the platform of a moving ear preparatory to alighting therefrom; hence the court can not say that plaintiff was guilty of contributory negligence on the allegations of a complaint showing that after making known to the conductor of the street car he was on that he desired to alight, that on nearing the point of his destination the speed of the car was reduced, whereupon plaintiff .took his position on the rear platform preparatory to alighting, and that while in such position defendant’s servants negligently failed to stop the car and negligently increased its speed and caused the ear to be jerked suddenly, whereby plaintiff was thrown and injured, p. 256.</p> <p>4. Carriers. — Injuries to Passengers. — Complaint.—Negligence.— A complaint by a passenger against a street car company for injuries by being thrown from the platform of the ear, alleging that plaintiff notified the conductor of his desire to alight, that the signal to the motorman was given and the speed of the ear slackened, whereupon plaintiff went to the rear platform preparatory to alighting, and that defendant’s servants, with full knowledge of plaintiff’s position, negligently failed to stop the ear and negligently increased its speed and caused it to give a sudden jerk, whereby plaintiff was thrown and injured, sufficiently charged negligence on the part of defendant, p. 257.</p> <p>5. Appeal. — Questions Presented. — Evidence.—Weight and Sufficiency. — Alleged error based on the insufficiency of the evidence presents the question of whether there is any evidence to support the verdict in every essential, and, though the evidence may be unsatisfactory, it presents no question of law calling for a reversal, p. 258.</p> <p>6. Appeal. — Review.—Verdict.—Evidence.—The verdict for plaintiff was conclusive on evidence which followed the allegations of the complaint, notwithstanding such evidence was conflicting or confusing in some respects, since the court on appeal can not weigh the evidence, p. 258.</p> <p>7. Carriers. — Injuries to Passengers. — Burden of Proof. — Contributory Negligence. — Instructions.—An instruction in a passenger’s action for personal injuries informing the jury that the burden was on plaintiff to prove the material allegations of the complaint and that on making such proof he would be entitled to recover, providing it was not shown by defendant that he was guilty of contributory negligence, though incomplete when standing alone in that it confined the establishing of contributory negligence to defendant, was not ground for reversal in view of the fact that the court by another instruction told the jury that it was for the jury to say from all the facts and circumstances of the cause whether or not the plaintiff’s own act and conduct constituted contributory negligence, p. 258.</p>

From Knox Circuit Court; Ben. M. Willoughby, Judge. Proceedings in the matter of the estate of Catherine Ansel, deceased. From an order on exceptions filed by the guardian of Omar Kyger to an inventory of the estate returned by Henry D. Ansel, administrator, the latter appeals.

From Howard Circuit Court; Warren R. Voorhis, Special Judge. Action between Myrtle M. Smith and James G. Smith. From the judgment rendered, the former appealed. The appeal was dismissed on motion of appellant, who subsequently moved to retax the costs.

<p>From Owen Circuit Court; James B. Wilson, J udge.</p> <p>Action by The Chatfield & Woods Company against Winfield Jones and others. From a judgment for plaintiff, certain defendants appeal.</p>

<p>1. Contracts. — Power to Contract. — Enforcement.—All persons who are competent may contract with each other as they please and the courts will enforce their agreements if the same are legal and not against public policy, p. 271.</p> <p>2. Insurance. — Warranties.—Breach.—Where it is agreed that the application for insurance shall be a part of the policy, and the statements in such application are warranted to be true, such statements. will be deemed to be material, and if they are false there can be no recovery oh the policy, regardless of whether they were innocently made or otherwise; and, even where such statements are construed merely as representations, there can be no recovery if they were material to the risk and were untrue, p. 271.</p> <p>3. Insurance. — Warranties.—Breach.—Evidence.—Where the applicant for a benefit certificate stated in his application that he had never received sick benefits, that he had never been rejected as an applicant for insurance, that there was nothing in his physical condition or personal history tending to impair or shorten his life, • that he had suffered no illness net specifically inquired about, and had never had any disease of the abdominal viscera or chronic ulcers, and that he had never consulted a physician, such statements were material to the risk, so that on uncontradieted proof that the statements regarding sick benefits and other insurance were not true a rescission of the contract was warranted, in the absence of a waiver, regardless of whether they be considered as warranties or as representations, p. 2,72,</p> <p>4. Insurance. — Action on Policy. — Evidence.—Verdict.—Where the uncontradieted evidence showed that statements in the application material to the risk were untrue, and that the insurer immediately rescinded the contract upon, learning of their falsity, and tendered back the premiums received, a verdict for plaintiff in an action on the policy was in Conflict with the evidence and not in accord with the principles of law controlling such eases, p. 274.</p> <p>5. Appeal. — Review.—Instructions.—In an action on a policy of insurance where the question of the construction of the contract was solely for the court, as was also the.question of whether defendant had made a timely rescission of the contract, the court erred in instructing the jury that it should determine the facts and say whether such facts showed a disaffirmance within a reasonable time, as well as in giving instructions that were outside the issues and misleading, p. 274.</p>

<p>1. Appeal. — Bight of Appeal. — Amount in Controversy. — An appeal does not lie from the judgment against plaintiff in an action originally filed before a justice of the peace for the recovery of a sum' less than fifty dollars, and in which no question is involved to bring the case within the exceptions provided-by §§671,1391 Burns 1914, §632 R. S. 1881, Acts 1901 p. 565. p. 276.</p> <p>2. Appeal. — Bight of Appeal. — Amount in Controversy. — Where the circuit court sustains a demurrer to the complaint and, on refusal to amend, renders judgment for the defendant, in an action commenced before a justice of the peace, the amount in eon-, troversy as affecting the right to appeal is to be determined from the complaint, p. 276.</p>

<p>1 Appeal. — Review.—Instructions.—Reccird.—Notwithstanding the memorandum placed by the trial court at the close of the instructions was dated April 9, and the record entry showed that on April 10 the instructions were read to the jury to the reading of which oral exceptions were at the time reserved, that all the instructions were signed by the court, filed with the clerk and ordered made a part of the record, etc., the instructions were a part of the record under §561 Burns 1914, Acts 1907 p. 652; the fact that they were signed by the court before they were read to the jury being immaterial. p. 279.</p> <p>2. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Contributory Negligence. — Burden of Proof. — Statutes.—• Under the act of March 2, 1911 (Acts 1911 p. 145,' §§8020a-8020k Burns 1914), where negligence of the employer is- shown,, the defense of assumption of risk and of contributory negligence, because of dangers and hazards inherent in the employment, are removed, and the burden of proving that the employer did not know of the defect alleged to constitute negligence, or was not chargeable with knowledge, is placed on the employer, p. 280.</p> <p>3. Master and Servant. — Injuries to Servant. — Assumption of . Risk. — Contributory Negligence. — Statutes.—Under §8020e Burns 1914, Acts 1911 p. 145, §3, where plaintiff employe has proved the defect alleged he has made a prima fade ease of negligence against the employer, and can not be charged with assumption of the risk in the absence of proof that the employer did not know of the defect, or was not chargeable with constructive knowledge thereof; .nor is the employe chargeable with contributory negligence because of a risk inherent in the employment, even though having knowledge thereof; hence in an action under the statute, the court erred in instructing the jury that plaintiff assumed the ordinary risks of the employment and that he could not recover if he knew or could have known of the defect complained of. p. 281.</p> <p>4. Negligence. — Ordinary Care. — Ordinary care is the care of an ordinarily prudent person and not that of a prudent person, p. 283.</p> <p>5. Master and Servant. — Injuries to Servant. — Defective Conditions. — Inspection by Servant. — Instructions.—In an action under the statute, an instruction that plaintiff could not recover if the dangerous condition could have been seen by decedent, and stating that defendant was under no greater obligation to use care for the safety of decedent than he was to care for himself, was erroneous, since even at common law a servant is not bound to make a critical examination of a tool or applieance, or of his working place, before using it, and there is a duty of inspection devolving upon the master that is not required of the servant, p. 283.</p> <p>6. Evidence. — Admissibility.—Mortality Tables. — Mortality tables are admissible in evidence upon the question of the life expectancy 'of decedent in an action for his wrongful death, without regard to whether evidence has been introduced as to decedent’s manner of life or physical condition prior to and at the time of the injury, since such tables afford some evidence which the jury may consider along with other pertinent evidence in ascertaining the probable duration of the life in question, and are not admitted as fixing the expectancy of such life, or as forming a legal basis for a calculation. p. 284.</p>

<p>1. Pleading. — Complaint.—Cross-Complaint.—Sufficiency on Motion in Arrest of Judgment. — A complaint or’ cross-complaint challenged for the first time by a motion in arrest of judgment, will be treated as sufficient unless some material averment essential to the cause of action has been entirely omitted therefrom, p. 288.</p> <p>2. Appeal. — Questions Presented. — Findings and Conclusions of Law. — Sufficiency of Pleading. — The sufficiency of pleadings assailed will not be given independent consideration on appeal where the same questions must be determined on consideration of the special finding of facts and conclusions of law. p. ,288.</p> <p>3. Trial. — Exceptions to Conclusions of Law. — Admissions.—Exceptions to conclusions of law admit for the purpose of such exceptions that the facts were correctly found, p. 291.</p> <p>4. Husband and Wipe. — -.Contracts of Wife. — Action.—Findings.-.— Review. — In an action by a married woman to recover possession of certain real estate and to quiet heir title thereto, where it appeared from the findings that an agreement had1 234been entered into by plaintiff to furnish defendants money with which to purchase the real estate, the title to which was to be in defendants, in consideration that defendants dispose of their property in Illinois and move to Indiana, that defendants performed their part of the agreement and ■ were put in possession of the lands in dispute, which were purchased with the money furnished by plaintiff under such agree- . ment together with money furnished by defendants, and that plaintiff without defendant’s knowledge caused the conveyance to be ' made to her instead of to defendants, the defendants were the holders of the equitable title and entitled to a decree directing a conveyance to them, notwithstanding plaintiff’s contention that the contract was the parol contract of a married woman and therefore incapable of enforcement, since the agreement did not relate to the conveyance of real estate but to plaintiff’s furnishing of money, . and under §7853 Burns 1914, §5717 R. S. 1881, the contracts of a married woman with reference to her personal property are binding on her. p. 291.</p> <p>5. Quieting Title. — Action, Against Occupant. — Defenses.—Right to Dispute Plaintiff’s Title. — Where defendants in a suit for possession and to quiet title entered on the land in dispute under a claim of ownership and under the belief that the title was in themselves, the general rule, that a tenant is estopped while in possession to deny the landlord’s title, could not be invoked against them, p. 292.</p> <p>6. New Tbial. — New Trial as of Right. — In ah action for possession and to quiet title, in which the occupants of the land also sought specific performance of a contract entered into between the parties, a new trial as of right was properly denied, p. 293.</p>

<p>Prom Clay Circuit Court; John M. Rawley, Judge.</p> <p>Action by Martha Darby against the Vandalia Railroad Company. Prom a judgment for plaintiff the defendant appeals.</p>

<p>From Superior Court of Marion County (82,300); Charles J. Orbison, Judge.</p> <p>Action by the Buckeye Window Glass Company against tbe Stewart-Carey Glass Company. From a judgment for defendant, tbe plaintiff appeals.</p>

<p>1. Sales. — Failure to Deliver. — Action.—Sufficiency of Complaint.— Paragraphs of complaint in a seller’s action to recover on a contract of sale, from which it affirmatively appeared that no shipments were made by plaintiff during the period of time specified in the contract, and in which no legal excuse for such failure was shown, were insufficient, p. 320.</p> <p>2. Sales. — Failure to Deliver. — Modification of Contract. — Complaint. — -Where the contract for the sale of a large quantity of iron was in writing, and was within the class of contracts which are required to be in writing by §7469 Burns 1914, §4910 R. S. 1881, there could be no subsequent modification thereof by parol; hence in an action by the seller based thereon, paragraphs of complaint on the theory that plaintiff’s failure to deliver as provided by the contract was obviated by a subsequent oral agerement were insufficient. p. 320.</p> <p>3. Sales. — Contracts.—Agreement for Extension. — Consideration.— Where a quantity of iron sold under a written contract to be delivered within a specified period, was not delivered and the title and possession thereof remained in the seller relieved from any of the agreements contained in the contract, an agreement for extension of time of delivery, to be valid and bring the sale within the provisions of the original contract, required a new consideration, p. 322.</p> <p>4. Sales. — Contracts.—Customs and Usages. — Where a contract of sale is neither ambiguous nor uncertain, and clearly shows the time and manner of shipment, trade usages and customs are not to be considered in its construction, p. 322.</p> <p>5. Contracts. — Oral Modification. — Fraud.—A person can not rely upon a mere verbal change of a written contract, and where there is no right to rely on such verbal modification there can be no fraud, p. 322.</p> <p>6. Sales. — Breach of Contract. — Resale.—Notice.—A complaint for damages for the purchaser’s breach of a contract of sale, grounded upon the theory of resale after the purchaser’s refusal to accept, must aver notice to the purchaser of the intention to resell, p. 322.</p>

From Probate Court of Marion County (9,446); Frank B ‘. Ross, Judge. Claim by Edwin A. Hendrickson, as executor of the will of Augustus M. DeSouchet, deceased, against the estate of Julius A. Lemcke, deceased. From a judgment for claimant, Ralph A. Lemcke, executor, appeals.

<p>1. Railroads. — Injury to Trespassing Animals. — Liability:—At common law it is the owner’s duty to keep his animals confined to his own premises, and if, notwithstanding his exercise of reasonable care to prevent it they escape to the right of way of a railroad company they are trespassers thereon, and the railroad company, being without fault respecting their escape, owes the owner no duty of seeing them, and, having no knowledge of their presence, ' would not be liable for injury or death caused by its train striking them; but where a company has knowledge of the presence on its tracks of animals that have escaped thereon without contributory negligence of their owner, a liability predicated on negligence may arise, dependent on the facts in each ease, because of injury or death resulting from the operation of its train, regardless of whether the company had properly guarded and fenced its tracks; liability in such case being on the principle that a duty may arise from the knowledge of a situation, the violation of which constitutes negligence, p. 339.</p> <p>2. Railroads. — Injury to Trespassing Animals. — Reasonable Care. —Jury Questions. — Where defendant’s engineer had information that animals had escaped upon defendant’s tracks and that he would probably encounter them, a duty arose to use reasonable care to discover them, and, after their discovery, to avoid injuring them; and the question of whether such care was exercised was one of fact for the jury, in view of the fact that defendant also owed a duty .to carry and deliver safely, its' passengers, and to the public and itself in the preservation of property, p. 346.</p> <p>3 Appeal. — Review.—Presumptions.—Where the instructions are not before the court on appeal, it will be presumed that the trial • court performed its duty in that respect, p. 347.</p> <p>4. Appeal. — Review.—Verdict,—Conclusiveness.—Where the issue of negligence in the killing of certain animals while the same were trespassing upon defendant’s railroad tracks was properly raised, and there was evidence to show knowledge ■ by defendant’s engineer of their presence upon the tracks, together with other evidence making the question of negligence properly one of fact for the jury, its verdict for plaintiff was sustained by sufficient evidence. p. 347.</p> <p>5. Negligence. — Railroads.—Injury to Animals. — Last Clear Chance. — The doctrine of last clear chance may be applied in eases involving negligent injury to of the killing of animals, and also in cases involving inanimate property,?- p. 348.</p> <p>6. Evidence. — Experiments.—Admissibility.—Similarity of Conditions. — To render testimony admissible respecting experiments made subsequently to the killing of certain animals by defendant’s train, to ascertain the distance at which objects could be seen in the light of the train’s headlight, it was not essential that the conditions should have been exactly reproduced in all details, but it was sufficient if the conditions were shown to have been substantially the same as when the animals were killed, and any departure, in such matter goes to the weight rather than to the admissibility of the evidence, p. 348.</p> <p>7. Evidence. — Experiments.—Similarity of Conditions. — Discretion ' of Court. — The determination of whether conditions under which an experiment is made were substantially the same as those existing at the time of the occurrence under investigation, so as to render evidence of such experiments admissible, necessarily requires the exercise of some discretionary power by the trial court, p. 348.</p>

<p>1. Conteacts. — Construction.—Waiver of Mechanic’s Lien. — A contract for the construction of a house providing that the contractor is to “transfer same to first party clear of all claims or incumbrances”, is not to be construed as an agreement to transfer clear only of the claims and encumbrances of third persons, so that the contractor was thereby precluded from enforcing a mechanic’s lien. p. 350.</p> <p>2. Appeal. — Review.—Conclusiveness of Decision. — Though the evidence is conflicting, the decision of the trial court can not be disturbed if there was some evidence to support it. p. 351.</p>

<p>From Superior Court of Mar on County (82,965); Joseph Collier, Judge.</p> <p>Action by Edgar Underwood against the Cincinnati Gas, Coke Coal and Mining Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Judgment. — Collateral Attack. — United States Courts. — Jurisdiction. — Where the United States Circuit Court disregarded an intervening petition in a reeeivérship proceeding, setting up a claim to certain funds derived from property sold, and ordered the receiver to forthwith pay such funds to a creditor, the State court can not entertain a proceeding to declare that such intervening petitioner has a superior lien on the fund in the hands of such creditor, since such proceeding is a collateral attaek'on the‘judgment of the federal court, p. 363.</p> <p>2. Judgment. — Belief.—Forum.—One who seeks relief from a judg- . ment alleged to have been procured by fraud, mistake or collusion, must seek it by proper proceeding in the court where rendered, or by appeal, p. 365.</p> <p>3. Judgment. — Conclusiveness.—United States Courts. — Judgments and decrees of the Circuit Court of the United States, sitting in a particular state, are to be accorded such effect in the courts of that state, as would be accorded in similar circumstances to the judgments and decrees of state tribunals of equal authority, p. 365.</p>

<p>From Superior Court of Marión County (84,-350); Joseph Collier, Judge.</p> <p>Action by Andrew G. Pake against the National Motor Vehicle Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Apparent Hazards. — Statutes.—The Employer’s Lability Act of 1911 (Acts 1911 p. 145, §§8020b, 8020c Burns 1914), applies to any person, firm or corporation employing five or more persons, and under its provisions an employe may not be charged with contributory negligence which will defeat his recovery, by reason of dangers or hazards inherent or apparent in his employment. p. 376.</p> <p>2. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Statutes.—Instructions.—In a servant’s action for personal injuries, controlled by the Employer’s Liability Act (Acts 1911 p. 145, §§8020b, 8020c Burns 1914), an instruction stating the master’s duty to furnish proper appliances, etc., and that plaintiff was not chargeable with contributory negligence to the degree that a recovery on his part would be defeated, because he used a defective appliance furnished, even though the dangers and hazards incident to the use of such appliance were inherent and apparent to him, correctly stated the law, apd its refusal was reversible error in the absence of any other instruction covering the subject-matter. p. 376.</p> <p>3. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Choice of Unsafe Way. — The doctrine of assumed risk does not obtain in an action brought under the statute for injuries to a ' servant, so that a plaintiff is not necessarily precluded frpm recovery merely because he knowingly and voluntarily chose the more unsafe of two ways in doing his work, but it is for the jury to determine whether the danger wás such that a person of ordinary prudence might reasonably have believed that it could be safely encountered by the exercise of proper caution, p. 378.</p> <p>4. Master and Servant. — Safety of Appliances. — --Duty of Inspection. — Statutes.—While certain provisions of the Employer’s Liability Act 1911 impose' specific duties on persons engaged in the construction of buildings, to provide specific appliances for the protection of employes, §4 of the act (Acts 1911 p. 597, §3862d Burns 1914) requiring employers to see and require that all metal, wqod, machinery, appliances, etc., are carefully selected, inspected 'and tested, so as to detect and exclude defects pnd dangerous conditions, does not make the employer an insurer of the, workman’s safety or require that he shall furnish tools and appliances free from defects, but imposes merely the generalduty of selection,inspection and testing, which is no more thanhis common-law duty. pp. 379,380.-</p> <p>5. Master and Servant. — Negligence.—Statutory Duties. — Where the statute imposes a specific duty on the employer,, his breach-thereof constitutes negligence, but a somewhat different rule applies where duty imposed is merely general. • p. 380.</p> <p>6.. Master and Servant. — Liability for Injuries. — Statutes.— Neither, §8020b Burns 1914, Acts 1911 p. 145, nor §3862d Burná 1914, Acts 1911 p. 597, as applicable to an action for injuries to a servant by reason of the defective condition of an appliance furnished by the master, changes the common law with reference to the employer’s liability, except that where negligence of the em- ' ployer has been shown the defenses of assumption of risk, and of contributory -negligence because of dangers and hazards' inherent in the employment, are removed, and the burden of showing that the .employer did not know of -the defect, or was not chargeable with knowledge, and of proving contributory negligence, is placed on the employer, p. 381.</p>

From Adams Circuit Court; Charles E. Sturgis, Special Judge. Action between the Straus Brothers Company and Rhoda C. Rook' and others. From a judgment for the former, the latter, appeal.

<p>From Superior Court of Marion County (91,-707); Clarence E. Weir, Judge.</p> <p>Action by Carrie E. Watkins against the Supreme Lodge of the Modern American Fraternal Order. From a judgment for plaintiff, the defendant appeals.</p>

<p>Appeal. — Review.—Evidence.—Weight and Sufficiency'. — The court can not weigh the evidence on appeal, so that where the evidence is conflicting and susceptible to more than one inference the. judgment of the trial court will not be disturbed.</p>

From Pike Circuit Court; John L. Brets, Judge, Action by Henry H. Hawkins, administrator of the estate of Lafayette Spade, deceased, against Martha Spade and others. From the judgment rendered, the defendant named appeals.

<p>. From Parke Circuit Court; Barton S. Aikman, Judge.</p> <p>Action by Emma J. York against tbe Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Tipton Circuit Court; James M. Purvis, Judge.</p> <p>Action by Teresa M. Meldon against Elias Cox. From a judgment for defendant, the plaintiff appeals.</p>

From Miami Circuit Court; Joseph N. Tillett, Judge. Action by Willis C. Lamm against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals, and asks leave to amend the assignment of errors to present for review- the ruling on a motion for a nunc pro tunc entry filed subsequent to the perfection of the appeal.

<p>1. • Nuisance. — Complaint.—Notice.—Demand.—A complaint which, when considered as a whole, clearly proceeded on the theory that defendant by the acts complained of knowingly created a nuisance on plaintiff’s land to her damage, and contained all the averments necessary to make it sufficient on that theory, was not objectionable for failure to aver notice or demand for the abatement of the nuisance, or because some of the averments tended to obscure rather than elucidate its theory, p. 413.</p> <p>2. Nuisance. — Action.—Necessity for Notice or Demand for Abatement. — Where a nuisance was created by defendant in collecting oil and salt water from its wells and emptying same on plaintiff’s ' land, no notice or demand on it for abatement of the nuisance was necessary as a condition precedent to an action for damages, p. 414.</p> <p>3. Appeal. — Record.—Bill of Exceptions. — Questions Reviewable.— Under §661 Burns 1914, Acts 1911 p. 193, application for reextension of the time for filing a bill of exceptions shall be made on the day prior to the day the time first given expires, and there is no other authority by which a reextension of time beyond the term may be granted; hence an application made on the day on which the time first given expired came too late, and though granted, did not operate to make the bill of exceptions thereafter filed a part of the record, and consequently no question arising on the evidence was presented, p. 415.</p>

<p>1. Carriers. — Carriage of Dive Stock. — Negligence.—Pleading.— In an action by a railroad company to recover freight charges for the transportation of a car of horses, an answer alleging that plaintiff in consideration of a promise to pay the sum claimed received the ear of horses from defendant and undertook and agreed to carry them safely, that plaintiff negligently failed in the performance of the undertaking in that it negligently crowded the horses into a ear too small in capacity, and negligently failed to supply them with bedding, whereby and by reason of which they were injured, etc., was not open to the objection that the injury was not traced to the negligence charged by any proper averments, p. 420.</p> <p>2. Carriers. — Carriage of Dive Stock. — Negligence.—Pleading.—In an action by a railroad company to recover freight charges for the transportation of a car of horses, defendant’s counterclaim for damages, alleging delivery to an initial carrier who received and loaded the horses into the ear and undertook to deliver them safely at the place to which they were consigned, that said horses were transported and delivered by the initial carrier to another carrier who received and reloaded them and undertook to deliver them safely to the end of its line, and that the latter carrier delivered them to plaintiff who received them and undertook to carry and. deliver them safely to defendant at the place to which they were consigned, and charging plaintiff and each of the carriers with negligence in loading the horses into a car of insufficient capacity, in failing to supply them with bedding, and in operating the car in a violent manner, whereby some of the horses were killed and others injured, to defendant’s damage, was not open to the objection that it did not charge plaintiff with negligence in loading or transporting the horses, p. 421.</p> <p>3. Appeal. — Review.—Harmless Error. — Ruling on Demurrers. — ■ Error, if any, in sustaining a- demurrer to a paragraph of reply, and the demurrer to plaintiff’s answer to defendant’s counterclaim, was harmless, where the facts pleaded were in each ease provable under the general denial, p. 422.</p> <p>4. Carriers. — Carriage of Live Stock. — Action.—Issues.—Instruo tions. — In an action by a railroad company, which was the terminal carrier, to recover on a cheek given to it for the freight charges due on a shipment of horses, where defendant answered oh the theory that-plaintiff to the exclusion of the initial and connecting carriers negligently injured the horses in transporting them, whereby defendant suffered damages in excess of the amount of the check, an instruction stating that if defendant proved by a fair preponderance of the evidence “that the plaintiff or its connecting lines injured or damaged his horses more than the amountof such cheek”, etc., was erroneous in that it predicated a defense in part on an injury that may have been inflicted by the other carriers, but the error was harmless in view of the fact that the evidence showed without contradiction that the horses were injured while in plaintiff’s possession, pp. 423, 425.</p> <p>5. Carriers. — Carriage of Live Stock. — Connecting Carriers. — • Negligence. — Presumptions.—Where freight, including live stock, is received by the initial carrier in good condition, and is delivered by the terminal carrier in a damaged condition, the latter has the burden of showing that the freight was not injured while in its possession, and in the absence of such showing it will be presumed that the injury occurred on the line of the terminal carrier, p. 424.</p> <p>6. Carriers. — Carriage of Live Stock. — Connecting Carriers.— Negligence. — Inability of Terminal Carrier. — Where live stock was taken from the car of the initial carrier and reloaded into a car of insufficient capacity by the connecting carrier, who delivered the car without change in its condition to the terminal carrier, the latter by accepting the car and undertaking to transport the horses ' therein made such instrumentality its own, and could not avoid liability for injuries resulting from the condition of the car and not shown to have occurred on the line of the connecting carrier, p. 427.</p> <p>7. Appeal. — Review.—Harmless Error. — Instructions.—Error in instructions which predicated liability against a terminal carrier for damage to a shipment of horses in part on injuries that may have been inflicted by the initial or connecting carriers, was harmless in view of evidence showing without contradiction that the horses were injured while in possession of the terminal carrier, p. 428.</p> <p>8 Cabkibbs. — Carriage of Live Stock. — Negligence.—Liability.— Instructions. — Barring certain exceptions resulting from an act of God, or of the public enemy, or arising from the negligence of the shipper or from the inherent nature of the goods shipped, the common-law liability of a earner makes it an insurer of the safety of a shipment intrusted to it, in tlm absence of a contract limiting its liability; hence, in a carrier’s action for freight charges due on a car of horses, where defendant filed a counterclaim declaring on plaintiff’s common-law liability for damages by reason of injury to the horses in transportation, and there was nothing to show the application of any exception to the rule, an instruction that railroad companies are liable as common carriers and are insurers of the safe delivery of property entrusted to them for transportation and that they will not be excused for failure to make a safe delivery, was not erroneous. (Cleveland, etc., R. Co. v. Rudy [1909], 173 Ind. 181, distinguished.) pp. 428, 430.</p> <p>9. Oakbiebs. — Carriage of Freight.- — Exemption from Commorv-Law Liability. — Burden of Proof. — Where the property carried was committed exclusively to the carrier, and the carrier’s common-law liability is relied on for injury thereto, the carrier has the burden of alleging and proving that the shipment was within an exception to such rule of liability, p. 430.</p> <p>10. Appeal. — Review.—Misconduct.—Surprise.—Variance.—In an action by a terminal carrier to recover freight charges on a car of horses, where defendant filed a counterclaim for damages counting on plaintiff’s common-law liability, and in which no reference was made t.o any special contract of shipment, the statement Of defendant in response to a question from his counsel on cross-examination that the initial carrier gave him a way-bill or shipping •contract, that the shipment was billed through to final destination, and that the wayrbill or contract was at his home, did not constitute either misconduct, surprise, or variance that would entitle plaintiff to .a new trial, in view of the fact that no such contract was introduced or offered in evidence, and that there was nothing to show that plaintiff was a party to such contract or in any way entitled to the benefit of any of its provisions, p. 431.</p> <p>11. Carriers. — Carriage of Live Stock. — Injuries.—Damages.—In an action by a railroad company to recover freight charges for the transportation of a car of horses, in which defendant filed a counterclaim in two paragraphs, in the first praying damages in the sum of $1,200, and in the second declaring on the same transaction and alleging damages in the sum of $1,500 by reason of the injuries alleged and in the sum of $100 for expense in an effort to cure the horses, with prayer for, judgment in the sum of $1,400, the amount that defendant could recover must be judged from the facts pleaded rather than from the prayer, so that, there being no evidence to sustain the alleged item of expenditure in an effort to cure the horses, the limit of recovery on such counterclaim was $1,500, less the sum of $433.20 which the uneontradicted evidence showed plaintiff entitled to recover; hence a verdict awarding defendant $1,200 was excessive, p. 432.</p> <p>12. ' Appeal. — Review. — Evidence. — Verdict. — Where defendant’s counterclaim proceeded on the theory of damages to ‘his horses while being transported by the plaintiff railroad company, and the evidence was directed to that end, without any evidence on the subject of damages to any other horses, the verdict is not open to the objection that it includes damages for the loss of two other horses, p. 434.</p> <p>13. Appeal. — Briefs on Petition for Rehearing. — Consideration.— Extracts of testimony set out in appellant’s brief on petition for a rehearing, not set out or referred to in appellant’s original brief, will not be considered, p. 434.</p>

<p>1. Negligence. — Essential Elements. — To constitute actionable negligence, there must have been a duty owing from defendant to the plaintiff to protect him from the injury of which he complains, a failure by defendant to perform that duty, and an injury to plaintiff resulting from such failure, p. 442.</p> <p>2. Master and Servant. — -Inexperienced ' Servant. — Masterial Duty. — -It is the duty of the master, before exposing an inexperi-i enced servant to the hazards of a dangerous service, to warn him and give him such instructions as will enable him to avoid irijury, unless both the danger and the means of avoiding it are apparent, p: 442.</p> <p>3. Master and Servant. — Temporary Change of Employment.— Assumption of Risk. — Masterial Duty. — Liability.—Where the master orders a servant temporarily to do other work, involving different or greater dangers than those incident to the work'within the scope of his employment, the servant does not by reason of the implication arising from the contract of employment assume the risk incident to such temporary work, and on assuming the latter duties the master must, if the servant is inexperienced, warn and instruct him, and the master’s failure in this respect, if resulting in injury to the servant, renders him liable, p. 443.</p> <p>4. Master and Servant. — Injuries to Servant. — Inexperienced Servant. — Temporary Change of Employment. — Complaint.—Where it was reasonably clear that each paragraph of complaint, when considered in its entirety, proceeded on the theory that plaintiff was taken from his regular employment and required to perform work in the performance of which he had no previous experience, and which exposed him to dangers of which he was wholly ignorant; and that defendant failed to warn or instruct Mm as to such new dangers, etc., neither paragraph was objectionable on the theory that the allegation that plaintiff was “transferred” to such new employment means that the change was permanent and contradicts the idea that plaintiff was injured while temporarily performing work not connected with Ms regular employment, and especially was the objection untenable in view of other allegations showing that by such transfer plaintiff was exposed to unusual dangers not ordinarily incident to such new work. pp. 443, 446.</p> <p>5. Master and Servant. — Change of Employment. — Hidden Dangers. — Masterial Duty. — Assumption of Risk. — Where a servant is transferred from his regular employment and required to perform work involving risks not ordinarily incident to the employment, of wMch he has no knowledge, and wMch would not have been contemplated or assumed by one originally employed at such work, it is the duty of the master, having knowledge of such dangers, to disclose them to the servant, and the latter will not be held to have assumed the risk of dangers unknown to Mm and not discoverable by Mm in the exercise of ordinary care. p. 444.</p> <p>6. Master and Servant. — Injuries to Servant. — Knowledge of Defect. — Assumption of Risk. — A servant is not necessarily to be charged with assumption of the risks growing out of a defect of wMch he had knowledge, or of wMch by the exercise of ordinary care he could have known, since, by reason of ignorance or want of experience, the risks and hazards may not have been so open and .apparent as to be appreciated by Mm. p. 446.</p> <p>7. Master and Servant. — Injuries to Servant. — Verdict.—Answers to Interrogatories. — Where the issues tendered by the complaint in a servant’s action for injuries sustained while woriring in a glass factory were such that a general verdict thereon amounted to a finding that the glass plaintiff was required to handle was extremely rotten and brittle, wMch was a condition not ordinarily incident thereto, and that he was required to handle it under conditions of temperature that made it unusually liable to break, answers to interrogatories returned by the jury showing that plaintiff was of mar ture age and had ordinary intelligence and knew that glass would break and that its edges would cut,.etc., but from wMch it appeared that plaintiff lacked knowledge and experience with respect to handling glass and the dangers incident thereto, -were not inconsistent with such general verdict, p. 446.</p> <p>8. Master and Servant. — Injuries to Servant. — Harmless Error.— Instructions. — In a servant’s action for personal injuries sustained in handling glass, an instruction that plaintiff was entitled to recover if the injuries were directly or proximately caused by the negligence complained of, unless it was found that he was gMlty of contributory negligence, though failing to mention assumption of risk, was harmless, in view of the findings of the jury in answer to interrogatories, and in view of the fact that the negligence charged was such, that to make proof thereof plaintiff was required to show a state of facts necessarily relieving him from assumption of risk. p. 447.</p> <p>9. Master and Servant. — Injuries to Servant. — Assumption of Risk.- — -Instructions.—An instruction stating that generally a servant assumes all the ordinary risks incident to his employment, and those which are open and obvious and can be seen and appreciated by a person of ordinary intelligence, but that he does not assume the extraordinary risks of which he is ignorant and which are not obvious and open to the observation and which can not be readily seen and appreciated by a person of ordinary intelligence, and that if it was found that the danger encountered by the plaintiff in his work of carrying and handling glass was extraordinary and not open and obvious and could not have been readily seen and appreciated by a person of ordinary intelligence the plaintiff did not assume the risk so as to preclude recovery, was not misleading, and though omitting the question of actual knowledge, was harmless in view of express findings that plaintiff did not know of the dangers of handling glass and that such ignorance was due to lack of experience, p. 448.</p> <p>10. Master and Servant. — Injuries to Servant. — Change of Employment. — Assumption of Risk. — Instructions.—In an action for injuries to a servant who had been taken from his regular employment and directed to assist in carrying and handling glass, an instruction stating that if it was found that plaintiff was directed by defendant to carry and handle glass and that such glass was rotten, defective and unusually brittle, dangerous and liable to break in handling, of which facts the defendant knew or should have known, and that the plaintiff was ignorant thereof and had no notice or warning, and that while plaintiff was carrying and handling said glass and using due care said glass broke on account of its rotten, defective and unusually brittle condition, and injured plaintiff as alleged, the defendant would be liable, was not objectionable in omitting the question of defendant’s knowledge of plaintiff’s alleged ignorance, p. 449.</p> <p>11. Master and Servant. — Injuries to Servant. — Obedience to Specific Command. — Assumption of Risk. — A servant may obey a specific command of the master and go into a dangerous place and perform a dangerous task without assuming the risk, unless the apparent danger is such as to deter a man of ordinary prudence from encountering it. p. 450.</p> <p>12. Appeal. — Review.—Harmless Error. — Instructions.—Error, if any, in an instruction relating to the furnishing of appliances to a servant for handling glass, was harmless in view of the jury’s an-, swers to interrogatories showing that it was not the duty of the employer to furnish such appliances, p. 450.</p> <p>13. Master and Servant. — Specific Directions. — Presumptions as to Risks. — Instructions.—An instruction that it is the servant’s duty to obey the orders and directions of the master, and that in the absence of notice or knowledge to tbe contrary be bas tbe right to presume and to act upon tbe presumption that tbe master will not order him into a place of danger, or to perform dangerous work, without notifying him of such danger, and if tbe master does order him to do specified work, be bas tbe right to presume, in tbe absence of knowledge or notice to tbe contrary, that it is reasonably safe for him to obey such orders and perform such work and that be is encountering no unusual dangers by doing, so, was a correct expression of tbe law and applicable to tbe issues in an action for injuries to a servant, who, without experience or warning, was temporarily directed to assist in handling glass under circumstances involving extraordinary and unsual risks, p. 451.</p> <p>14. Appeal. — Review.—Refusal of Instructions. — There is no error in tbe refusal of instructions shown to have been covered by tbe instructions given, p. 451.</p> <p>15. Appeal. — Review.—Verdict.—Conclusiveness.—Where there is some evidence to support each of tbe material facts on which tbe verdict rests, tbe verdict will not be disturbed on tbe ground of insufficiency of evidence, p. 452.</p> <p>16. ' Appeal. — Questions Reviewable. — Objections to Evidence.- — No question is presented for review on alleged erroneous admission of evidence where it appears that no objection was interposed to tbe question put to tbe witness until after tbe answer was begun, that none was made after tbe answer was completed, and that there was no motion to strike out tbe answer or any part of it. p. 452.</p> <p>17. Master and Servant. — Injuries to Servant. — Damages.—Evidence. — Earning Capacity. — In a servant’s action for personal injuries proof of plaintiff’s ability to earn money before bis injury need not be confined to tbe particular work be was doing when injured. p. 453.</p>

<p>From Lake Superior Court; Johannes Kopelke, Judge.</p> <p>Action by Jonathan Bliss against William S. Gallagher and others. From a judgment for defendants, the plaintiff appeals.</p>

From Gibson Circuit Court; Simon L. Vandeveer, Judge. Proceedings on the petition of Sardius Boger and others for an election on whether the sale of intoxicating liquor should be prohibited. On appeal of Joseph Hussey and another from an order of the board of county commissioners dismissing the petition, the circuit court rendered judgment directing the board to hold an election, from which judgment this appeal is prosecuted. Motion by appellees to dismiss the appeal.

<p>From Clark Circuit Court; William C. Uts, Special Judge.</p> <p>Action by Dorsey D. Hinton and others against the Falls City Savings and Loan Association. From the judgment rendered, this appeal is prosecuted.</p>

<p>From Bartholomew Circuit Court; Hugh Wickens, Judge.</p> <p>Action by the Keokuk Savings Bank against J. George Schaefer. From a.judgment for plaintiff, the defendant appeals.</p>

<p>1. Railroads. — Animals on Tracks. — Liability for Injuries.— Statutes. — In order to render a railroad company liable under §§5436-5442 Burns 1914, §§4025-4031 R. S. 1881, authorizing recovery for stock killed or injured on any railroad at any place where the same is not securely fenced, it must appear that the railroad was not securely fenced at the place where the stock entered thereon, and that such stock was injured or killed by some locomotive, car or other carriage operated on such railroad, p. 477.</p> <p>2. Railroads. — Animals on Tracks. — Statutory Liability. — Fences. : — Burden of Proof. — To escape liability for animals killed or injured upon its tracks imposed by §§5436-5442 Burns 1914, §§4025-4031 R. S. 1881, a railroad company has the duty to show affirmatively that the place where the animals entered upon its tracks was one which it was not bound to fence, p. 478.</p> <p>3. Railroads. — Animals on Tracks. — Injury.—Duty to Fence.— Question for Court or Jury. — In an action under the statute against a railroad company to recover for stock injured or killed upon its tracks, where the facts as to the place where the stock entered, and the character of the place, are undisputed, the question of whether the place was one which the statute requires the company to fence is a question of law for the court; but where the evidence is conflicting as to the character of the place, the question is for the jury, pp. 479, 480.</p> <p>4. Railroads. — Statutory Provisions. — Duty to Fence. — Under §§5436-5442 Bums 1914, §§4025-4031 R. S. 1881, a railroad company is not required to fence its road at stations, though the same are not frequently used, nor at places where fencing would interfere with the business and operations of the company and the safety of its employes, or where it would interfere with the public convenience, p. 480.</p> <p>5. Railroads. — Animals on Tracks. — Action for Injuries. — Evidence. — In an action against a railroad company under § §5436-5442 Burns 1914, §§4025-4031 R. S. 1881, to recover for the death of a horse, evidence showing that the horse while hitched to a buggy strayed from the place where left by plaintiff, that at a point where the tracks crossed a highway it turned east along the tracks leaving tracks of the buggy wheels between the rails, that the buggy was completely demolished, and that the horse was standing near the place of collision and was so injured that it died within ten minutes after the collision, warranted an inference that the horse was either on the track or so close thereto as to have been struck by the train, and was sufficient to sustain the verdict for plaintiff on that issue, pp. 480, 483.</p> <p>6. Railroads. — Animals on Tracks. — Liability for Injuries. — Statutes. — Section 5436 Burns 1914, §4025 R. S. 1881, imposing liability on railroad companies for stock killed upon their tracks by “locomotives, cars or other carriages”, etc., is not to be interpreted as meaning that in every ease there must have been an actual contact or touching of the injured animal by the company’s locomotive, ear or other carriage in order to create liability, p. 482.</p>

<p>1. Appeal. — Questions Reviewable. — Sufficiency of Complaint.— Under §§344', 348 Burns 1914, Acts 1911 p. 415, relating to procedure in civil cases, no question can be presented on appeal with reference to the sufficiency of a complaint, where the demurrer thereto is not accompanied by a memorandum of defects, p. 487.</p> <p>2. Action.- — Commencement.—“Pending Litigation”. — Where a complaint was filed in April, 1910, and on the tenth day thereafter defendant entered appearance, and in December, following withdrew such appearance, no other steps having been taken, and then in October, 1911, alias summons was issued on motion of plaintiff, there was, until such summons was issued, no “litigation pending” within the meaning of §4 of the act of 1911 (Acts 1911 p.415), relating to procedure in civil cases and providing that nothing therein'should apply to litigation pending at the time the act went into effect, since under §317 Burns 1914, §314 R. S. 1881, an action is commenced by the filing of a complaint, the issuance of the summons and the placing of same in the hands of the sheriff, and any effect which defendant’s appearance may otherwise have had was necessarily obviated by the withdrawal of such appearance, p. 487.</p> <p>3. Master and Servant. — Injuries to Servant. — Change of Envployment.- — Verdict.—Answers to Interrogatories. — Where plaintiff, originally employed to operate a power-driven chipping machine in a steel mill, sought recovery for injury to his eye received while temporarily assisting at the work of “flogging” castings, on the theory that the latter work involved greater hazards and that he was inexperienced therewith, answers by the jury to interrogatories showing that in a general way “flogging” was quite similar to “chipping”, except that “flogging” a casting was performed by two men instead of one and that the pieces cut or knocked off the easting were heaviér and more liable to fly off, that though plaintiff was familiar with the duties of a “flogger” he had no practical knowledge of the work, and that he was temporarily performing work as a “flogger” at the time of his injury pursuant to an order to do so, accompanied by a threat of discharge for refusal to obey, did not show conclusively that plaintiff knew and appreciated the dangers of the work of “flogging”, and were not in irreconcilable conflict with the general verdict, pp. 489, 491.</p> <p>4. Appeal. — Review.—Answers to Interrogatories. — In passing upon the sufficiency of the jury’s answers to interrogatories to overcome the general verdict, the court will indulge all presumptions in favor of the general verdict and bring to its aid any evidence that could have been properly admitted under the issues, p. 491.</p> <p>5. Master and Servant. — Injuries to Servant. — Change of Errvployment. — Assumption of Risk. — A servant, though assuming the risks ordinarily incident to the work for which he was employed, on being temporarily transferred to work involving different or greater dangers than those incident to the work covered by his employment, does not necessarily assume the risks incident to such other work. p. 492.</p> <p>6. Master and Servant. — Injuries to Servant. — Change of Enuployment. — Assumption of Risk. — Contributory Negligence. — Where a servant is ordered to do work not contemplated by his employment, and which involves hazards equally apparent to the master and the servant, he is not necessarily barred from recovering for injuries resulting from such hazards while obeying such order, either' on the theory of assumed risk or of contributory negligence. ,p. 492.</p> <p>7. Master and Servant. — Injuries to Servant. — Change of Employment. — Assumption of Risk. — Contributory Negligence. — Jury Questions. — Where a servant is directed to perform work not contemplated by his employment and not usually performed by him, it is a question of fact for the jury to determine from the evidence whether, in obeying such direction he assumed the risks incident, or whether he was guilty of contributory negligence, p. 495.</p> <p>8. Appeal. — Review.—Evidence.—Verdict.—Where there-was some evidence to support the verdict and to warrant the inference of every ultimate fact essential to support the verdict, the verdict can not be disturbed on the ground that the evidence is insufficient, or-that the verdict is contrary to law. p. 495.</p>

<p>1. Appeal. — Briefs.—Waiver of Error. — Error, if any, in the overruling of a motion for a new trial is waived as to ohe of the defendants in whose favor the judgment was rendered, where appellant’s brief, under “points and authorities” presents no question as to the decision of the trial court in favor of such defendant, p. 500.</p> <p>2. Estoppel. — Estoppel in Pais. — Pleading.—Where a party relies upon estoppel in pais to avoid a defense set up in the special answer, he must plead it. p. 501.</p> <p>3. Appeal. — Review.—Evidence.—Conclusiveness of Decision.— Where the evidence relied on by plaintiff as constituting an estoppel in pais against one of the defendants was conflicting, the decision of the trial court thereon was conclusive, p. 502.</p> <p>4. Husband and Wipe. — Contracts.—Suretyship of Wife. — The test of the relationship sustained by a married woman who has joined her husband in the execution of' a note is to inquire whether she received in person or in benefit to her property the consideration for which the note was executed, p. 503.</p> <p>5. Husband and Wipe. — Bills and Notes. — Suretyship of Wife.— Evidence. — Presumptions.—In an action against a husband and wife on promissory notes, defended by the wife on the ground .of suretyship, evidence, though conflicting, showing that she received none of the consideration for which the notes were given, that the loan was negotiated by the husband and that she knew nothing of it until called on to sign the notes, was sufficient to overcome the presumption arising from the face of the notes that they were the joint obligations of defendants, and rendered conclusive the finding that she was surety for her husband, p. 503.</p>

<p>From Wabash. Circuit Court; A. H. Plummer, Judge.</p> <p>Action by Alvah N. Harrold and another against Emma E. Whistler and another. From a judgment for defendants, the plaintiffs appeal.</p>

From Morgan Circuit Court; Nathan A. Whitaker, Judge. Action by the State of Indiana, on the relation of James Truax and another, against Milton T. Smiley and others. From a judgment for relators, the defendants appeal.

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Christ L. Borg against Charles Larson and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Hancock Circuit Court; Robert Williamson, Special Judge.</p> <p>Action by Orange S. Julian against Mary M. Julian. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Wells Circuit Court; Wm. H. Eichhorn, Judge.</p> <p>Action by Nancy Rickets against Samuel H. Huffman, guardian of Cyrus F. Rickets, and another. From a judgment for plaintiff, this appeal is prosecuted.</p>

<p>From Superior Court of Marion County (90,954); Charles J. Orbison, Judge.</p> <p>Action by the Cumberland Bank against William J. Roach and others. From a judgment for plaintiff the defendant named appeals.</p>

<p>From Superior Court of Marion County (90,528); Pliny W. Bartholomew, Judge.</p> <p>Action by Edward S. McClure and others against the Continental National Bank of Indianapolis. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Appeal. — Questions Renewable. — Motion for New Trial. — Affidavits. — No question is presented on the ground of a motion for new trial challenging the competency of a juror, where neither the affidavits supporting such challenge, nor their substance, is set out in appellant’s brief, p. 558.</p> <p>2. Appeal. — Briefs.—Sufficiency.—Though appellant’s brief does not set out the evidence in narrative form in strict compliance with Rule 22, clause 5, it will be sufficient to present the question of the sufficiency of the evidence, where it appears that there is a substantial compliance and a good-faith effort at full compliance with such rule. p. 558.</p> <p>3. Malicious Prosecution. — Action.—Essential Elements. — Prosecution by Indictment. — To entitle plaintiff to recover in an action for malicious prosecution, where the prosecution complained of was commenced by indictment,- the return of the indictment- must be shown and it must he made to appear that defendant instigated or procured and caused the return of the indictment, and that the prosecution was without probable cause, was malicious, and was terminated by the discharge of plaintiff, p. 559.</p> <p>4. Malicious Prosecution. — Action for Prosecution by Indictment. — Evidence.—Sufficiency.—In an action for malicious prosecution commenced against the plaintiff by grand jury indictment, evidence showing a dispute involving the ownership of corn fodder and that at the time of such dispute defendant threatened to submit the matter to the grand jury, that almost a year thereafter a grand jury investigation was begun which resulted in the indictment of plaintiff for grand larceny, but not showing that defendant had anything to do with actually instituting or beginning the prosecution, or that he had any knowledge that it was to be begun, or that he was in any way voluntarily connected therewith, was insufficient to support a verdict for plaintiff, pp. 559, 564.</p> <p>5. Malicious Prosecution.' — Parties.—Joint and Several Liability. —All persons concerned in originating and carrying on a malicious prosecution are jointly and severally liable in an action to recover damages therefor, p. 564</p> <p>6. Malicious Prosecution. — Liability.—Procuring Indictment.— While defendant in an action for malicious prosecution may be hable, though he was not the originator of the proceedings complained of, if he voluntarily participated in and countenanced and approved the prosecution, his mere acquiescence would not make him hable, and it must be shown that he did some affirmative act in connection with such prosecution, p. 564.</p> <p>7. Appeal. — Verdict.—Evidence to Support. — A verdict will not be upheld which must rest on mere conjecture or speculation, p. 566,</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by The Moore-Mansfield Construction Company against The Bluffton and Marion Construction Company. From a judgment for plaintiff on the issue tendered by answer in abatement, the defendant appeals.

<p>1. Exceptions, Bill of. — Contents.—Objections to Pleading. — An original bill of exceptions provided for by §657 Burns 1908, Acts 1897 p. 244, should contain nothing but the evidence and matters incident thereto, so that no question is presented on an objection to the filing of a supplemental complaint set out in the original bill of exceptions, p. 579.</p> <p>2. Ejectment. — Burden of Proof. — In an action for possession of real estate the burden is on the plaintiff to establish by affirma<tive proof his title and right to possession, p. 580.</p> <p>3. Ejectment. — Title to Support.- — Plaintiff in an action for possession of real estate must recover on the strength of his own title and not on the weakness of that of his adversary, p. 580.</p> <p>4. Dedication. — Streets.—Ownership of Fee. — One having a perfect title to the lots abutting on each side of a street theretofore laid out and dedicated for a street, has title of equal strength <and validity to the strip included in the street, p. 581.</p> <p>5. Ejectment. — Evidence.—Erroneous Description in Deed. — Where plaintiff sought the recovery of a strip of land on which his lots abutted and which had formerly been a public street, a deed to plaintiff’s predecessor in title, showing that the strip had been laid out as a street, was not inadmissible in evidence simply because of an error in the description of the land conveyed and apparent on the face of the deed. p. 581.</p> <p>6. Ejectment. — Evidence.—Deeds.—Where plaintiff, who owned the lots abutting on each side of a vacated street, sought to recover possession of the strip formerly included in the street, all the conveyances showing plaintiff’s chain of title to the lots back to the original owner who dedicated the strip, as well as any evidence showing or tending to show that the strip was laid out or dedicated for a street, was admissible, p. 582.</p> <p>7. Dedication. — Vacation.—Reversion to Abutting Owner. — In order that land embraced in a street which has been vacated may revert to the abutting owners, such land must have been originally laid off or dedicated for a street by those who at the time owned the land abutting on each side thereof, p. 583.</p> <p>8. Ejectment. — Occupying Claimants. — Evidence.—Admissibility.— Where defendant in an action for possession of real estate sought by cross-complaint to recover for improvements under the occupying claimant’s statute, testimony of defendant offered in support of the cross-complaint to the effect that a certain lawyer advised him that he could obtain complete title by bringing suit, and that he did take the action he was advised to take, was not within the rule that where a state or condition of mind becomes material in giving character to an act, the advice of counsel undér the influence of which the act was done is controlling, since it did not relate to the state or condition of defendant’s mind at the time he made the improvements, and was properly excluded not only on that ground but also on the ground that it involved the conclusion of the witness. p. 584.</p> <p>9. Trial. — Objections to Evidence. — Evidence Admissible in Part.— Where competent and incompetent evidence is blended together and offered as a whole, it is not error to sustain an objection to the whole, p. 586.</p> <p>10. Ejectment. — Occupying Claimants. — Recovery for Improvements. — Good Faith. — Presumption and Burden of Proof. — Under §1121 Burns 1908, §1074 R. S. 1881, providing for the recovery by an occupying claimant for taxes and for improvements when made in good faith, under color of title, the occupying claimant has the burden of proof on the question of good faith, and is aided by the presumption of good faith in so far only that such presumption will determine the question in his favor in the absence of evidence to the contrary sufficient at least to weigh equally with it. p. 586.</p> <p>11. Ejectment. — Occupying Claimants. — Recovery for Improvements. — Color of Title. — Good Faith. — Where the findings show color of title in an occupying claimant, such finding, in the absence of anything to the contrary, would give rise to the presumption of good faith in the making of the improvements for which recovery is sought, but a further finding that the improvements were made with full knowledge of the rights of plaintiff is inconsistent with the theory that they were made in good faith, p. 588.</p> <p>12. Ejectment. — Findings.—Right to Possession. — In an action in ejectment, a conclusion of law that plaintiffs are the owners in fee simple and are entitled to possession, can not stand where there was no finding that plaintiffs were entitled to the possession of the real estate in controversy, and the omission is not cured by a finding that title “rested” in plaintiffs, pp. 588, 58,9.</p>

<p>From Vigo Circuit Court; George A. Scott, Special Judge.</p> <p>Action by Mollie Wentworth against Richard H. Van Sant, administrator of the estate of Samuel H. Van Sant, deceased. From a judgment of dismissal, the defendant appeals.</p>

From Rush Circuit Court; Wallace Morgan, Special Judge. Action by Cary Jackson, as special administrator of the estate of Amelia J. Powell, deceased, against Robert F. Powell. From a judgment for plaintiff, the defendant appeals.

<p>1. Master and Servant. — Masterial Duty. — Safe Place to Work.— The master must use ordinary care in providing his employes with a reasonably safe place in which to work. p. 610.</p> <p>2. Master and Servant. — Injuries to Servant. — Assumption of - Risk. — Knowledge of Servant. — Under a complaint disclosing that plaintiff, who was employed as a lineman to repair defective and damaged wires along defendant’s electric railroad, had been in defendant’s employ some time before the accident in that line of work, and that he understood the particular work, and had full knowledge of the situation and condition of the car from the top of which he did his work, the plaintiff must be deemed to have assumed the risk from the uneven roof of the ear. p. 610.</p> <p>3. Master and Servant. — Assumption of Risk. — Inspection.— Lineman. — While the rule of safe place applies in favor, of one employed as a lineman, the general rule that the employe assumes the incidental and obvious risks of the service also applies, so that where the employer has no independent system of inspection, and the lineman is not so inexperienced as to be entitled to instruction, and has no reason to believe that an inspection has been made, the latter must make such tests himself as may be necessary to ascertain whether it is safe to proceed with his work, and can not hold the employer liable unless his injuries result from a defect existing in the poles, cross-arms, etc., when they were originally placed in position, or unless the employer had some knowledge of the defect which was not communicated to him. p. 611.</p> <p>4. Master and Servant. — Assumption of Risk. — Inspection.— Lineman. — Where the employer has provided an independent system of inspection, one employed as a lineman does not assume the risks that are not obvious to the ordinary use of the senses, and that could have been discovered by reasonable inspection, nor does he, in the absence of duty to inspect devolving on him, assume risks of which he has no actual or constructive knowledge, p. 612.</p> <p>5. Master and Servant. — Assumption of Risk. — Inspection.— Contract. — Where one employed as a lineman is required by Ms contract to make an inspection of the poles, etc., he can not recover for injuries resulting from Ms failure to properly inspect, p. 613.</p> <p>6. Master and Servant. — Injuries to Servant. — Lineman.—Complaint. — Defects in Ways and Works. — In an action for injuries to one employed as a lineman to repair defective and damaged wires, etc., along defendant’s electric railway, a complaint alleging that, plaintiff’s injuries resulted from the breaking of a hanger which caused Mm to fall from the ear on wMch he was standing, and alleging that the hanger was bent and defective, that it broke by reason of long use, defective condition and failure to inspect, that defendant knew of the defective and worn hangers along its line, but that plaintiff was ignorant of such defects and was not warned, and that he had notMng to do with the construction, placement and maintenance of hangers, and had no cause or reason to apprehend the breaMng of the particular hanger, etc., and disclosing nothing to show a duty on plaintiff’s part to inspect, was sufficient on demurrer, p. 613.</p>

<p>From Allen Circuit Court; J. W. Eggeman, Judge.</p> <p>Action by the Fort Wayne Builders Supply Company against Henry Pfeiffer and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Superior Court of Allen County; Carl Yaffle, Judge.</p> <p>Action by Clarise J. Bucbanan against tbe P. B. Arnold Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Gibson Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by G. F. Reesor, Administrator of the estate of A. F. Reesor, deceased, against The Pennsylvania Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Physicians and Suegeons. — Care and Skill Required. — General Rule. — In the absence of a special agreement a physician or surgeon is deemed to impliedly contract that he possesses the reasonable and ordinary qualifications of his profession and that he will at least exercise reasonable skill, diligence and care, but a promise to effect a cure will not be implied, p. 659.</p> <p>2. Physicians and Suegeons. — Care and Skill Required. — In determining whether a physician or surgeon has exercised the degree of care and skill which the law requires, regard must be had. to the advanced state of the profession at the time and in the locality in which he practices, p. 660.</p> <p>3. Physicians and Suegeons. — Care and Skill Required. — Specialists. — A physician or surgeon employed as a specialist is bound to use the degree of skill and knowledge which is ordinarily possessed by physicians who devdte special attention and study to the disease, its diagnosis and treatment, having regard to the present state of scientific knowledge, p. 660.</p> <p>4. Physicians and Surgeons. — Malpractice.—Evidence.-—In an action for malpractice in the treatment of a fractured arm, evidence merely showing the acts of defendants as the same were observed by plaintiff and his wife, and that defendants stated that in their belief the arm would be restored to its usefulness, while in fact it was not thus restored, was not sufficient to make a ease for plaintiff, since there was no evidence to give the jury a standard by which to determine whether there was a neglect of duty on the part of defendants. p. 661.</p>

<p>1. Negligence. — Collision on Streets. — Action.—Evidence.—Sufficiency. — In an action for damages for injuries received by an infant, six years old who was run down by defendant’s motor ear while he was on that portion of the sidewalk composing a private driveway, evidence showing that the driver saw the child in company with its uncle approaching the driveway, and disclosing the method in which the motor car approached, and that neither the bhild nor its uncle saw the motor car until it struck them, was sufficient to warrant the submission of the question of negligence to the jury, and its verdict for plaintiff can not be disturbed on appeal, pp. 665, 666.</p> <p>2. Appeal. — Review.—Evidence.—Weight.—The court on appeal will not weigh the evidence for the purpose of determining upon which side of a case the greater weight lies. p. 666.</p> <p>3. Negligence. — Infants. — Contributory Negligence. — Review.— Where the injured person was an infant who had not reached the age of accountability, the court on appeal will not consider, the question of whether the child was guilty of contributory negligence, since such a child is non sui juris, p. 666.</p> <p>4. Negligence. — Automobiles.—Duty of Driver. — One driving a motor car from the street onto a private driveway across a sidewalk is charged with the duty to use the precautions which the circumstances require to inform persons on the sidewalk of his approach. p. 666.</p> <p>5. Damages. — Personal Injuries. — Excessive Damages. — A verdict for $600 for injuries to a six-year-old boy who was struck by an automobile was not excessive in view of evidence showing that the collision rendered him unconscious and resulted in a severe shock to his nervous system and caused his eyes to become crossed, p. 667.</p> <p>6. Appeal. — Review.—Refusal of Instructions. — Where the court gave an instruction in lieu of and which fully covered a requested instruction upon the subject of plaintiff’s burden to prove the mar terial allegations of the complaint by a preponderance of the evidence, there was no error, although the instruction given had coupled with it a definition of preponderance of evidence, and a statement as to where the burden lies. p. 668.</p> <p>7. Negligence. — Action.—Instructions.—“Non Sui Juris”. — An instruction in an action for personal injuries to a child six years of age, giving the essential definition of “non sui juris” in which accountability and appreciation of danger were clearly defined, was not defective for failure to use the technical words “non sui juris”, p. 668.</p> <p>8. Appeal. — Review.—Refusal of Instructions. — The refusal of requested instructions was not error where they were fully covered by instructions given, p. 668.</p> <p>9. Negligence. — Imputed Negligence. — Contributory Negligence. — ■ Where an infant six years of age was walking on the sidewalk aacompanied by his uncle, negligence of the latter could not be imputed to the infant so as to render him guilty of contributory negligence, p. 669.</p> <p>10. Negligence. — Collision on Street. — Injury to Infant. — -Trial.— Argument. — Where an infant non sui juris, when struck by a motor ear, was proceeding over a private driveway across a sidewalk, accompanied by his uncle, and the court fully instructed the jury as to the degree of care required of defendant under such circumstances, the contention that since the child was so accompanied the same degree of care was not required of defendant as would have been required if he were not so accompanied was a matter for argument to the jury rather than for an instruction by the court, p. 669.</p> <p>11. Evidence. — Hearsay.—Admissibility.-—The voluntary, statement of a physician who examined an injured person, made while the latter was unconscious, is inadmissible as being purely hearsay. p. 670.</p>

<p>From St. Joseph Superior Court; Fred Woodward, Judge Pro Tem.</p> <p>Action by Robert Bauer against William Goodman. From a judgment for plaintiff, the defendant appeals.</p>

From Putnam Circuit Court; James P. Hughes, Judge. Action by James L. Underwood and another against the Vandalia Coal Company and another. From a judgment for plaintiffs, the defendants appeal.

<p>1. Easements. — Conveyances.—Effect.—Where a deed conveying land to be used for a factory site by its terms also granted a right of way over a strip lying between the land conveyed and the right of way of a railroad company, the right acquired was in the nature of an easement appurtenant to the lands conveyed and passed by successive mesne conveyances of the land. p. 691.</p> <p>2. Easements. — Construction.—Construction by Parties. — Where the grantor of land for a factory site, together with a right of way over a strip still retained by grantor, silently acquiesced in the acts of the grantee and another in procuring a side track to be constructed over such strip and used for shipping purposes of the factory erected on the land conveyed, the facts were sufficient to characterize the easement granted as being broad enough in the’ contemplation of the parties to include the right to cause the side track to be laid and used as indicated, p. 692.</p> <p>3. Easements. — Change in Easement. — Easement Appurtenant.— An easement appurtenant is a burden upon the servient estate which can not be used for a purpose beyond that which was in contemplation of the parties at the time of its creation, nor for the benefit of lands other than those to which it adheres, except by consent of the owner of the servient estate, p. 692.</p> <p>4. Easements. — Easement Appurtenant. — Severance.—Change.—An easement appurtenant can not be severed from the estate to which it is attached and be made the subject of an independent conveyance, nor can it be changed to an easement in gross by any act of the owner of the dominant estate, p. 693.</p> <p>5. Estoppel. — Equitable Estoppel. — Use of Easement. — Where the owner of land conveyed a portion thereof to be used for a factory site, and also granted a right of way over an adjoining strip between the land conveyed and the right of way of a railroad company, on which strip a side track was subsequently built, and after the building of such side track grantor sold the remaining land to plaintiff, including the strip on which the side track was located, and plaintiff platted the land so purchased by him for factory sites, and after a conveyance by the grantee of tbe right of way to the railroad company, the latter extended the side track on a way laid out by plaintiff, to which plaintiff made no objection, plaintiff was estopped from contesting the right to use the strip of ground over which the side track was laid by the railroad company for the benefit of a manufacturing corporation located on land laid out by him, and which was inaccessible butf or such side track, pp. 693,696.</p> <p>6. Appeal. — ■Review.—Decision.-—Inferences.—In support of the findings, it is the duty of the court on appeal to indulge all inferences that may be reasonably deduced from the evidence, p. 695.</p> <p>7. Easements. — Occupancy.—Right to. — Where a manufacturing company is entitled to use a strip of ground for a right of way, its occupancy by a railroad company as agent for its benefit is not unlawful, p. 696.</p>

<p>From Daviess Circuit Court; James W. Ogdon, Judge.</p> <p>Action by the Henderson Elevator Company against Ziba F. Graham. From a judgment for plaintiff, defendant appeals.</p>

From Marion Circuit Court (20,672); Charles Remster, Judge. Proceeding by the Indiana Board of Pharmacy against Louis E. Haag for the revocation of his license as a registered pharmacist. Prom a judgment for defendant, the plaintiff appeals. Transferred to Supreme Court.