Volume 62 — Indiana Appellate Court Reports

Prom Starke Circuit Court; Francis J. Vurpillat, Judge. Action between Jacob Joseph and another, and Juda Horodesky and others. Prom the judgment rendered Jacob Joseph and another appeal.

<p>From Steuben Circuit Court; John W. Baxter, Special Judge.</p> <p>Action by The Peek-Hammond Company against Millgrove School Township and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Frauds, Statute of. — Guaranty.—Original Promise. — Where it appeared that defendant, contracted to pay for medical services to her son, and that the credit was given to her solely, the agreement was not that of a guarantor but of an original promisor, and was not void under the statute of frauds, though not in writing, p. 5.</p> <p>2. Physicians and Surgeons. — Services.—Reasonable Value.— Evidence. — In the absence of an express agreement a physician may recover the reasonable and customary price for services rendered by him with due care and skill, but such reasonable and customary fee must be shown by competent evidence, and mere proof of the price charged by the claimant is not sufficient, p. 6.</p> <p>3. Pleading.— Verification. — Effect.—In an action to recover for services by a physician, where there was an appearance and answer filed, the burden was upon the plaintiff to prove the value of the services rendered, although defendant introduced no evidence to refute the claim notwithstanding the complaint contained a statement of the account sued on and was verified, since under the circumstances the cause was not within the provisions of §392 Burns 1914, §383 R. S. 1881, applicable to default cases, p. 6.</p> <p>4. Pleading. — Evidence.—Presumptions.—Correctness of Account Pleaded. — There is no presumption that the items of an account which is made a part of a pleading are correct, but they must be proved the same as other facts essential to recovery, p. 6.</p> <p>5. Interest. — Recovery on Account. — What Law Governs. — In a physician’s action for services rendered, although the debt was contracted and the services were rendered in another state, recovery of interest on the amount was allowable in accordance with the law of Indiana, since where the parties fix no place for the payment of the debt the general rule is that the lex fori and not the lex loci contractus will govern in the collection thereof, p. 7.</p> <p>6. Interest. — Recovery as Damages. — In actions where interest has not been contracted for, interest, if allowable, is not upon the theory that it is an incident to the original debt, but because of delinquiney on the part of the debtor and for the reason that without such interest the claimant would not be made whole, p. 8.</p>

<p>From Allen Circuit Court; Carl Yaple, judge.</p> <p>Action by John A. Koehler against Gottlieb Haller and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Insurance. — Live Stock Insurance.- — -Breach of Warranty.— Estoppel. — Where it appeared that plaintiff in an action on a policy of live stock insurance was illiterate; that the application was not read to him; that he truthfully and in good faith answered such questions as were asked by defendant’s agent; and the circumstances were such as to warrant his belief that the agent had recorded the answers correctly, the defendant was estopped to rely upon alleged breaches of the warranty contained in such application, p. 16.</p> <p>2. Insurance. — Live Stock Insurance. — Forfeiture.-—-Notice of Sickness of Animal. — Provisions in live stock policies requiring the insured to forthwith give notice of the sickness of the animal insured are to be construed as requiring notice within a reasonable time, so that where the animal insured became sick at two o’clock in the afternoon and died at midnight, and the owner was so situated that he could neither telegraph nor telephone to defendant company, and he and the .veterinary worked with the animal until it died, and on the next day he notified the defendant and made proof of loss, the notice was timely within the provisions of a policy requiring notice of sickness to be given forthwith either by telephone or telegraph, p. 18.</p>

<p>From Gibson Circuit Court; A. P. Twineham, Special Judge.</p> <p>Action by Gussie Seevers, by his next friend William E. Williams, against Lula Fay Evans and another. From a judgment for plaintiff, the defendant Lula Fay Evans appeals.</p>

<p>1 Master and Servant.- — Injury to Servant.- — -Complaint.—Sufficiency. — The allegation in a complaint for injuries to plaintiff, while operating a pump for defendant, that plaintiff while in the line of his duty and while in the employ of appellant attempted to remove the top of an oil cup for the purpose of refilling same with oil, and that while so doing and while in the exercise of due care and caution plaintiff’s hand was caught in unguarded cogs, etc., together with other allegations with reference to plaintiff’s employment to operate the pump, and that in the operation of such pump it was necessary to remove the top of the oil cup from time to time to refill such cup, sufficiently showed that plaintiff was acting in the line of his duty when injured, pp. 34, 35.</p> <p>2. Pleading. — Complaint.—Test of Sufficiency. — The sufficiency of a complaint is not to be determined by a single isolated allegation, but it must be tested in the light of all the averments that are well pleaded, p. 35.</p> <p>3. Master' and Servant. — Guarding Dangerous Machinery.— Factory Inspector. — The complaint in an action under §8029 Burns 1914, Acts 1899 p. 231, for injuries to a servant by contact with unguarded cogs, was notinsufttcientforfailure to allege thatthe chief factory inspector had ordered a guard to be placed over such cogs, since that portion of the statute having to do with the inspector relates only to belt shifters or any other safe devices .for the purpose of throwing on or off belts and pulleys, p. 35.</p> <p>4. Appeal. — Review.—-Evidence.—Sufficiency.—Where there was some evidence to support the verdict, it could not be disturbed on the ground of insufficient evidence, although the evidence was conflicting in some respects, p. 36.</p>

<p>1. Nuisance. — Action to Enjoin. — Complaint.—Sufficiency.—In view of §343a Bums 1914, Acts 1913 p. 850, providing that where the sufficiency of a pleading is called in question all recitals, statements and conclusions shall be treated as allegations of fact, and §291 Burns 1914, §289 R. S. 1881, providing that whatever is injurious to hoalth or indecent or offensive to the senses, or an obstruction to the free use of property so as to essentially interfere with the comfortable enjoyment of life or property, is an actionable nuisance, and other provisions for the enjoining or abating of nuisances, a complaint alleging that plaintiff was the owner of a dwelling house; that defendant, the owner of an adjoining lot, operated a sawmill thereon, thereby creating a nuisance; that quantities of logs were being continuously hauled to the sawmill; that mud was splashed on plaintiff’s residence; that vulgar language was used in the hearing of plaintiff’s family; that employes of the sawmill habitually gazed into plaintiff’s residence, using vulgar and disgusting language; that smoke, soot and odors were wafted from the sawmill into plaintiff’s residence; that noises lessened plaintiff’s ' enjoyment of his residence; that plaintiff and his family were prevented from peaceably enjoying their home; and that the value of the property was greatly depreciated, was sufficient to state a cause of action for injunctive relief, p. 38.</p> <p>2. Appeal. — Review.—Moot Question. — Where an injunction was sought, but pending an appeal from a judgment for defendant the acts complained of had ceased, the question of whether the injunction should be granted became a moot question, not to be further considered, p. 41.</p> <p>3. Nuisance. — Action for Injunction and Damages. — Appeal.— Moot Question. — Disposition of Cause. — Where plaintiff sued to enjoin the operation of a sawmill as constituting a nuisance and also sought the recovery of damages on account of injury to his property, the fact that pending an appeal from the judgment for defendant the acts sought to be enjoined had ceased, thus rendering the question of whether an injunction should be granted a moot one, did not necessitate a dismissal of the appeal or preclude plaintiff from a consideration of his right to damages, in view of the statutory provisions abolishing distinctions between actions at law and suits in equity, and authorizing the granting of legal or equitable relief, or both, in one and the same suit. p. 42.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Joseph O. Mundell against the Paxton-Eekman Chemical Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Presenting Questions for Review. — Peremptory Instruction. — The giving of a peremptory instruction is not the subject of an independent assignment of error, but is properly assigned as ground for a new trial, p. 58.</p> <p>2. Tkial. — Peremptory Instruction. — The right to direct a verdict for defendant can only be upheld where the evidence is clearly insufficient to establish one or more facts essential to plaintiff’s cause of action, p. 59.</p> <p>3. Deeds. — Construction.—Description.—Judicial Sales. — Evidence of Extrinsic Facts. — Admissibility.—While it is the office of a description in a deed of conveyance to furnish the means of identification rather than to identify the land, and the same is to be liberally construed to effectuate the intent of the parties, and extraneous or parol evidence is competent to apply the terms of a deed to the subject-matter, so as to explain vague or conflicting descriptions and ascertain the intention of the parties, such rules of construction have no application to a conveyance made pursuant to a judicial decree, and may not be resorted to in any ease for the purpose of thwarting the intent of the parties, pp. 60, 61.</p> <p>4. Deeds. — Construction.-—Evidence of Extrinsic Facts. — Admissibility. — Where the description in a deed is not ambiguous, and no issue is tendered directly attacking such descriptions, or making a reformation or correction material, extraneous evidence affecting same is not proper, p. 61.</p> <p>5. Deeds. — Unambiguous Writings. — Construction.—A deed or other writing that is unambiguous is to be so interpreted as to carry into effect the intention of the parties expressed by the language employed, p. 61.</p> <p>6. Deeds. — Description.—Judicial Sales. — Evidence of Extrinsic Facts. — Where plaintiff in an action to quiet title and for possession had an administrator’s deed issued pursuant to a judicial sale for an undivided two-thirds of the land described, and a deed from the widow of decedent conveying the undivided one-third, and no issue was tendered seeking the reformation of the widow’s deed, evidence to show that the land described in the complaint was the only land owned by decedent or his widow and was the land intended to be conveyed, was inadmissible, the descriptions in the deeds being complete and certain, p. 62.</p> <p>7. Judgments. — Order of Sale. — Collateral Attack. — Where plaintiff sought to quiet title to land conveyed by an administrator’s sale, defendant’s claim that the title described in the deed does not'cover the land described in the complaint is not a collateral attack on the court’s order of sale pursuant to which such administrator’s deed was made. p. 63.</p> <p>8. Appeal. — Review.—Peremptory Instruction. — Reasons for Giving. —Where the giving of a peremptory instruction was proper, the reasons of the court for its giving, set forth therein, were immaterial and did not affect it. p. 64.</p>

<p>1. Appeal.-. — Review.—Harmless Error. — Ruling on Demurrer.— Where it appeared that the facts found and conclusions of law stated rested upon a good paragraph of complaint, the action of the trial court in overruling the demurrer to another paragraph was harmless even if' erroneous, p. 66.</p> <p>2. Pleading. — Complaint.—Written Instruments. — Action on Contractor’s Bond. — In an action on the bond of a contractor for the repair of a school house, a paragraph of complaint, embracing a copy of the bond as an exhibit and alleging facts to show that plaintiff had furnished material and was within the class to be protected by the bond, was not insufficient for failure to include a copy of the contract referred to in the bond and to secure the performance of which the bond was executed, since the contract was not the foundation of plaintiff’s action, p. 66.</p> <p>3. Appeal. — Review.—Harmless Error. — Demurrer to Answer.— The sustaining of a demurrer to a third paragraph of answer, which was merely an argumentative denial, was harmless in view of the record showing an answer in general denial, p. 72.</p>

<p>1. Descent and Distribution. — Advancements.—Presumptions.— Courts generally look with favor on an equal distribution of an estate east upon heirs, and when it is disclosed that an heir received from the ancestor money or property during the lifetime of the ancestor, there is a presumption that the same was an advancement. p.78.</p> <p>2. Descent and Distribution. — Rights of Heirs. — Renunciation.— A contract between father and son, whereby the latter agrees in consideration of the transfer of certain property to him at that time to relinquish all claim as heir to the property of which the father might die seized, is founded on a valid consideration, and, in the absence of fraud, is binding on tbe son, though the amount received by him was not equal to his full proportionate share of the estate, p. 78.</p>

<p>1. Judgment. — Parol Evidence. — Unambiguous Transcript of Record. — Where a defendant in a quiet title suit alleged by way of former adjudication that plaintiff, “Drusilla C.”, had been made a party defendant by the name of “Rósela C.”' in a former suit to quiet title to the same land; that summons was issued on the complaint therein and served on “Drusilla C.”, the theory being that “Drusilla C.” had been, sued in her wrong name and served in her true name, a transcript of the record in such former suit, not showing’the summons, but reciting that “Rósela C.” was duly. summoned and defaulted and that judgment was rendered against her, was inadmissible in evidence in the absence of proof showing that the summons was actually served on plaintiff and, since the transcript was unambiguous independent of the summons and the return thereon, parol evidence was incompetent for the purpose of making such proof of service on plaintiff, even on a showing that such summons had been lost. pp. 90, 92.</p> <p>2. Evidence. — Parol Evidence. — Unambiguous Transcript of Record. — An unambiguous transcript of the record in a former suit cannot be affected or modified by parol evidence, p. 91.</p> <p>3. Names. — Idem Sonans. — Issues.—Evidence.—Under an answer of former adjudication alleging that plaintiff, “ Drusilla C. ”, was made a party defendant in the former action by the name of “Rósela C.” but not presenting the issue of idem sonans, a transcript of the record in such former suit was not admissible on the theory that the names were idem sonans. p. 92.</p> <p>4. Names. — Idem Sonans. — The names “Rósela Carr” and “Drusilla Carr” are not in fact idem sonans. p. 92.</p> <p>5. Judgment. — Conclusiveness. — Parties Bound. — Evidence. —A judgment is binding on the parties or their privies, and the effect of a judgment must, be mutual and reciprocal to conclude the parties, and no one can take advantage of a decree if he would not have been prejudiced by it had it been rendered in favor of the adversary of the prevailing party; hence a transcript of the, judgment in a former suit, offered in evidence on behalf of all defendants, including one who was not a party to the former suit, was inadmissible on behalf of such defendant, p. 93.</p> <p>6. Appeal. — Rulings on Evidence. — Objections.-—On the overruling of an objection to evidence by the trial court, only the grounds of objection presented to the trial court will be considered on appeal; but if the objection is sustained, or the evidence excluded, the ruling will be sustained on appeal unless the appellant shows it was wrong on any theory, and the appellee may avail himself of any valid objection to the testimony as offered, p.93.</p> <p>7. Tbial. — Evidence.—Admissibility.—Evidence Not Competent as to all Parties. — There is no reversible error in excluding evidence offered jointly in behalf of several parties where it is incompetent as to some of them, nor in admitting it, if competent as to gome, but in the latter case its application and effect must be limited by the trial court, and failure to do so on request of one against whom it is not competent would be reversible error, p. 94. i</p> <p>8. Tbial. — Evidence.—Admissibility.—Evidence Not Competent as to all Parties. — Where evidence is competent in behalf of some, and incompetent as to other, joint parties, it should be offered in behalf of those in whose favor it is competent, and when so offered should be received and considered so far as competent, p. 94.</p> <p>9. Judgment. — Evidence.—Evidence to Extend. — Admissibility.—The testimony of an abstracter of titles that his company made an abstract for a party to the action; that in preparing abstracts it was the custom of the company for some member of the office force to run the chain of title from their abstraetbooks, and then the records would be examined, notations made of material data, including the substance of a complaint, summons and return thereon when in any suit affecting the property; and that he compared the abstract with the notes, numbered the pages and signed the company’s name to it; and that he thought the abstract was compared with the original summons in a case affecting the property, though he had no special recollection about the matter or that he had ever seen the original summons, and did not make the notes from which the abstract was prepared, did not know who did, and that the notes had not been preserved, was inadmissible to vary or extend the effect of the judgment in such case beyond the scope indicated by the judgment roll itself, p. 94.</p> <p>10. Evidence. — Private Records. — Abstract of Title. — Admissibility. —An abstract of title is not admissible in evidence for the purpose of showing copy of portions of summons and return in a former suit affecting the property abstracted on the theory that the item was a regular entry made by third parties in the due course of business, unless it should appear that the making of the abstract, including the reference to the summons and return, was a part of the res gestae of some transaction between the parties to the action in which it is offered and that the entries were contemporaneous with such transaction and made in the regular course of business, or that they were such entries made in the due course of business in some transaction between the party against whom they are offered and a third party under circumstances that gave them probative value under the issues, p. 96.</p> <p>11. Evidence.- — Private Records. — Abstracts of Title. — An abstract of title prepared by an abstract company is a private record and its admissibility in evidence is not governed by the rules applicable to the admission of public records and documents, p. 96.</p> <p>12. Adverse Possession. — Title.—Evidence.—Sufficiency.—Evidence showing that in 1876, the purchaser of the land in suit looked at it and, being satisfied that it was worthless, told plaintiff that if she would live on it she might have it; that no notary being convenient he wrote off a description and handed his unrecorded deed to plaintiff with a promise to execute a deed to her later; that no deed was ever made, but plaintiff moved on the land, erected buildings at various places thereon and attempted to cultivate it, although it was worthless for cultivation; that she erected a dancing pavilion on the lake front; that her husband used the shore in his fishing business and erected structures necessary in such business; that plaintiff used the land as much as it was possible to do so and from time to time cut and sold small timber growing thereon; that she always asserted ownership to the exclusion of all other claimants and resided thereon for more than twenty years, except for occasional periods of temporary absence, etc., was sufficient to show title by adverse possession to at least a portion of the land in controversy, p. 98.</p> <p>13. Adverse Possession. — Title.—Evidence.—Sufficiency.—Where there was no failure of proof as to any material element to sustain a finding of adverse possession the finding could not be affected on appeal by the fact that some of the evidence as to certain elements was conflicting, p. 103.</p> <p>14. Adverse Possession. — Color of Title. — Void Deed. — A deed void on its face, if containing a description sufficient to identify the land, may give color of title as effectually as though it were regular on its face, but void for reasons dehors the instrument, since the office of “color of title” is merely to define the extent of the land claimed by one asserting title, p. 106.</p> <p>15. Adverse Possession. — “Color of Title.-” — “Claim of Title.”— “Color of title” is that which has the semblance or appearance of title, either legal or equitable, but which is in fact no title, while “claim of title” exists where one enters upon and occupies land with the intent to hold it as his own against the world irrespective of any foundation for such claim, p. 106.</p> <p>16. Adverse Possession. — “Color of Title.”- — “Claim of Title.”— A claim of title, without color of title, may ripen into title to the land actually occupied by the claimant, but with color of title his title may be perfected to the whole tract indicated by that which gives the. color of title, though he be in actual possession of only a part of such tract, if the part possessed is an integral portion of the whole tract, p. 107.</p> <p>17. Adverse Possession. — Color of Title. — Knowledge by Holder of Legal Title. — It is essential to the perfection of title by adverse possession that the holder of the legal title must have actual or constructive notice of the claim of right or title asserted by the one in possession, but it is not essential that he have knowledge of the existence of “color of title” in the latter in order that the latter may have the benefit thereof if it in fact exists, p. 107.</p> <p>18. Adverse Possession. — Color of Title. — Instruments Constituting. — An instrument in writing, or a survey, used by a donor of land or referred to by him in making a parol gift of land, under and in pursuance of which the donee has taken possession, will give color of title, though it does not purport to convey the land to such donee, if it so describes the land as to enable the donee to ascertain therefrom the boundaries and extent thereof, p. 107.</p> <p>19. Adverse Possession. — Color of Title — Party Conferring.— In the absence of a statute requiring it, the grantor or donor of lands, or one from whom it is claimed by descent, may confer color of title without himself having any kind or semblance of title to the property, p. 108.</p> <p>20. Adverse Possession. — Color of Title. — -r Instruments Con-, stituting. — A forged deed, or a lost deed, the contents of which have been proven, may give color of title, p. 108.</p> <p>21. Evidence. — Parol Evidence. — Lost Leeds. — Color of Title. — The contents of an instrument describing land conveyed or given to a claimant, and which has been lost or is beyond the jurisdiction of the court, may be proved by parol for the purpose of showing color of title, p. 108.</p> <p>22. Adverse Possession. — Color of Title. — What Constitutes — While’as a general rule color of title arises only from an instrument in writing describing the land claimed, a state of facts, pursuant to which the claimant is in possession, and which facts of themselves show the character and extent of his entry and claim, may sufficiently perform the office of color of title upon which to base a title by adverse possession, not only to the land actually occupied by the claimant, but to the full extent of the claim as thus shown. p. 108.</p> <p>23. Adverse Possession. — Extent of Possession. — Findings.—Conclusiveness. — Where the question of whether plaintiff was in actual possession of all the land claimed was an issuable fact, a finding for plaintiff on that issue, if warranted by the evidence, is conclusive on appeal, p. 114.</p> <p>24. Adverse Possession. — Evidence.—Acts of Ownership. — Occupancy. — Character of Land. — The character of realestate claimed by adverse possession is of controlling influence in determining what acts of ownership, use and occupancy will suffice to show possession of the whole tract claimed,andifthepossessionandother acts of ownership are such as are reasonably adapted to and in keeping with the beneficial use that may be reasonably made of such lands, and are such as are usually practiced by owners of similar lands in that vicinity and at the time in question, and such possession and acts of ownership are exercised in disregard of all conflicting claims without permission from any one, the inference of actual possession of the whole tract is warranted, p. 114.</p> <p>25. Adverse Possession. — Acts Constituting. — Adverse possession which affects the right of the true owner is that which exists and appears on the land itself, and where the occupancy is such as to indicate ownership and to furnish to the real owner, upon inquiry, information of the occupant’s claim of title, and the character and extent of his possession, it is sufficient, p. 115.</p> <p>26. Adverse Possession. — Evidence.—Sufficiency.—Color of Title.— Evidence showing that in 1876 the owner of land bordering on Lake Michigan, believing that the same was of no value, told plaintiff that if she would live on it she could have it, and gave her the deed held by him with the promise to execute and send her . a deed later; that plaintiff thereafter returned the deed requesting the owner to execute her a deed, but that no deed was ever made; that plaintiff lived on the property from the date of. its presentation to her continuously for more than twenty years, excepting for occasional periods of temporary absence; that she caused buildings to be erected at various places on the land and made attempts to cultivate it, but that it was worthless for cultivation; that she erected a dancing pavilion on the lake front; that her husband used the shore in his fishing business and erected structures necessary in such business; that plaintiff used the land as much as it was possible to do so and from time to time cut and sold small timber growing thereon; that she always asserted ownership to the entire tract to the exclusion of all other claimants, etc., established title by adverse possession in plaintiff to the land in controversy either on the theory that the deed left in her possession by the alleged donor gave her color of title, or that, independent of the question of color of title she had such actual, visible, hostile and uninterrupted possession under claim of ownership as to perfect her title, p. 117.</p> <p>27. Witnesses. — Competency.—Transactions With Deceased Persons. —Statute.—Plaintiff, suing to quiet title to land alleged to have been given to her, was not incompetent under §522 Burns 1914, §499 R. S. 1881, to testify as to the transaction with the donor and' as to the contents of a deed at that time left in her' possession, on the ground that one of the defendants claimed an interest by inheritance from her parents who had died long prior to such transaction, since plaintiff’s claim was not founded on a Contract with or demand against defendant’s ancestor “to obtain title to, ■ or possession of, property * * * of, or in right of such ancestor,” and the phrase “or to affect the same in any manner,” as found in the statute, refers to the property mentioned in the statute and does not bring in a new class of cases not “founded on a contract with or demand against the ancestor.” p. 118.</p> <p>28. Tbial. — Evidence.-—-Admissibility.—Evidence Not Competent as to all Parties.- — Where evidence as to transactions between plaintiff and the donor of land to which plaintiff sought to have title quieted was otherwise admissible, plaintiff was not incompetent to testify under §522 Burns 1914, §499 R. S. 1881, by reason of the mere fact that one of the defendants claimed an undivided interest by inheritance, since, if the testimony of plaintiff was incompetent as to such defendant, it would have been the duty of the court to admit it and limit its application by instructions to the jury. p. 121.</p> <p>29. Evidence. — Declarations.— Res Gestae.— Admissibility. — Evidence given by the claimant of land by adverse possession, and by the members of her family and other witnesses, relating to declarations made and acts performed while in possession of the land, relating to the character and extent of claimant’s possession and the use and control of the land by her and such members of her family under her directions, was competent to qualify, explain and characterize such possession, since such declarations and acts were part of the res gestae of the continuing act of possession. p. 121.</p> <p>30. Pleading. — Complaint.—Amended Complaint. — Change of Venue. — Where, in a suit to quiet title, a verdict was returned containing a correct description of the land in question, the filing of an amended complaint after change of venue was taken to another county, containing a corrected description identical with that contained in such verdict, was unobjectionable, p. 122.</p> <p>31. Pleading. — Complaint.—Amendment.—The amendment of the description in a complaint to quiet title, so as to correctly describe the land involved, is legitimate and is not ground for reversal, especially in the absence of any showing that defendants were prejudiced, misled or deprived of any defense thereby, p. 122.</p> <p>32. Adverse Possession. — Evidence.—Sufficiency.—The evidence was not insufficient to support plaintiff’s claim of ownership and title by adverse possession, on the theory that the possession was in plaintiff’s husband, because of the mere fact that he drove trespassers from the land, where there was evidence tending to prove all the essential elements of adverse possession in plaintiff and to show that the husband drove trespassers off at her direction, p. 123.</p> <p>33. Husband and Wipe. — Acquisition of Title by Wife. — Adverse Possession. — A woman is not precluded from taking and holding the exclusive possession of land by the mere fact that she is married, though her marital relation is proper to be considered along with other evidence bearing on the question of possession in her. p. 124.</p> <p>34. Appeal. — Review.—•Verdict.— Conclusiveness. — Although the evidence is conflicting, if there is no failure of evidence, a verdict based thereon is conclusive, since the court on appeal cannot weigh or ignore evidence, p. 124.</p>

<p>1. Municipal Corporations. — City Clerk. — Duties.—Under the provisions of §§8652, 8653 Burns 1914, setting forth the official duties of a city clerk and providing that he must keep a record of the proceedings of the common council, it is. held that preparing an index: to such record is a duty of the city clerk incidental'to his official duties as set forth in the statute; and this duty must be performed by him without special or extra compensation, p.129.</p> <p>2. Public Policy. — Official Duties. — Public policy requires that courts should not indulge in refinements too nicely drawn in construing statutes prescribing official duties to the end that a particular service may be classed as extraoficial, p. 129,</p> <p>3. Municipal Corporations. — City Clerk. — Duties.—General Ordinance No. 90 of 1911, city of Indianapolis, defining duties of city clerk, construed and held to require the clerk, as an official duty, to keep a record of the proceedings of the common council and to prepare an index to the volumes of such proceedings, for which he is not entitled to special or extra compensation, p. 131.</p>

<p>1. Appeal. — Partition by Parol. — Conflict of Evidence. — Where there is a conflict in the oral evidence as to the effect and extent of a parol agreement for partition the decision of the trial court upon such question is final, and it is not reviewable upon appeal, p. 142.</p> <p>2. Paetition. — Parol.—Effect.—A parol agreement for the partition of lands will be upheld and enforced where such agreement has been executed,by the parties thereto taking possession of their respective severed portions, p. 143.</p> <p>3. Deeds. — Merger of Oral Negotiations. — As a general rule all oral negotiations leading up to the execution of the deed are merged therein, p. 144.</p> <p>4. Deeds. — Merger.—Where it is sought to have an agreement as to partition merged into subsequent deeds, the doctrine of “merger” can have no application where the estates created by the deeds are not equal to, or coextensive with, the estates created by the partition, p. 144.</p> <p>5. Estates. — Merger of Legal and Equitable' Titles. — The intention of the party, expressed or implied, is the true test of whether there has been a merger, and where such merger,-in the light of all the circumstances, would be disadvantageous to him, then the merger of an equitable estate with a legal estate will not be presumed, p. 144.</p> <p>6. Estoppel. — By Deed. — A person can be estopped by deed only when such deed sets forth the precise fact upon which such an estoppel is to operate, p. 145.</p> <p>7. Estoppel. — By Quitclaim Deed, — No estoppel arises either from making or accepting a quitclaim deed, and both the grantor and the grantee may prove that no interest or estate was transmitted thereby, p. 145.</p> <p>8. Estoppel. — By Deed. — Where the defendants derived their title through a deed to their father and where there is no showing of fraud or mistake, they are estopped by that deed from claiming, under a partition proceeding prior thereto, any larger estate or interest than that expressed in their deed. p. 147.</p> <p>9. Estates. — Merger.—Where defendants are claiming under an-alleged partition made prior to the deed under which they derived their title and there was no evidence of a subsequent partition or a ratification of the alleged prior partition, a finding that the defendants take a larger estate than that described in their deed is erroneous, p. 148.</p>

<p>From Lake Circuit Court; W. C. McMahan, Judge.</p> <p>Action by Nathan- Fletcher against Harry Hollander. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Greene Circuit Court, Theodore E. Slinlcard, Judge.</p> <p>Action by Noah Fiscus and others against John H. Smith and others. From a judgment for the plaintiffs, defendants appeal.</p>

<p>1. . Masteb and Sebv ant. — Personal Injuries. — Contracts j'or Belief'.— Under §5308 Burns 1914, Acts 1907, p. 46, relief association contracts which contain a provision whereby claims for personal injuries are waived by one becoming a member of such association, are declared void and an action to collect benefits under such a a contract can not, therefore, be maintained, p. 163.</p> <p>2. Action. — Grounds.—Illegal Contract. — An action can not be predicated upon a contract declared void by statute, p. 164.</p>

Prom Noble Circuit Court; Luke H. Wrigley, Judge. Action by James Graves, administrator of tlie estate of John D. Kelly, deceased, against Emma F. Kelly, administratrix! de bonis non of the estate of John D. Kelly, deceased. From a judgment for defendant, the plaintiff appeals.

<p>From Vanderburgh Superior Court; F. M. Hostetler, Judge.</p> <p>Action by Joseph P. Kaiser and Frank Schmidt, partners, against Adolph Wittekindt & Son, partners. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Appeal. — Scope of Review. — Motion for Judgment on Interrogar tories. — Where, on appeal, the error relied on for reversal is the failure of the trial court to render judgment on the answers to interrogatories, the scope of the review is limited to the complaint, answer, the general verdict, and the interrogatories and the answers thereto, p. 180.</p> <p>2. Tbial. — General Verdict. — Effect.—A general verdict is a finding for the party in whose favor it is rendered on all the material issues involved in the action, p. 180.</p> <p>3. Tbial. — General and Special Verdicts. — The answers to interrogatories control the general verdict only when the conflict upon the face of the record is such as to be beyond the possibility of being removed by any evidence admissible under the issues in the cause. p. 180.</p> <p>4. Municipal Cobpobations. — Use of Streets. — Negligent Driving of Automobiles. — Reckless or careless driving of an automobile on a much-traveled thoroughfare of a city constitutes actionable negligence, p. 181.</p> <p>5. Municipal Cobpobations. — Use of Highways. — Rights of Pedestrians and Automobile Drivers. — Pedestrians and automobile drivers each have the right to pass and repass upon a public highway, but neither can so negligently exercise this right as to injure the other, and each is required to regulate his own use of the highway by the observance of ordinary care to avoid being injured or inflicting injury upon the other, p. 181.</p> <p>6. Municipal Cobpobations. — Useof Streets. — Rightsof Pedestrians. —A pedestrian, crossing a street where automobiles are passing and repassing, is bound to exercise only that degree of care that an ordinarily prudent person would exercise under the circumstances, and whether such degree of care was exercised is a question of fact to be determined by the jury. p. 182,</p> <p>7. MunicipaL'Cobpobations.-— Use of Streets. — Rightsof Pedestrians. —Negligence.—As amatter of law, a pedestrian, who is lawfully using a public thoroughfare need not be constantly looking or listening to ascertain whether automobiles are approaching under the penalty that, if he fails to do so, and is injured, his failure conclusively charges him with negligence, p. 183.</p> <p>8. Municipal Cobpobations. — Useof Streets. — Collisions.—Personal Injuries. — General and Special Verdicts. — In an action to recover damages for personal injuries sustained by a pedestrian who was struck by an automobile, the jury rendered a verdict for the plaintiff, the complaint alleging, in substance, that the automobile was being operated at a dangerous rate of speed in excess of ten miles per hour, in a closely built-up portion of a town, and that the plaintiff was struck without warning by the machine while it was being negligently driven by an inexperienced operator. The jury found, in answer to interrogatories, that the plaintiff had started to cross the street when the automobile was thirty-five feet from her, and that shewas struck when she reached a point in the street nine feet from the sidewalk; that the’street was well lighted and the machine was equipped with lights; that she looked for approaching vehicles before starting to cross the street, but did not stop from the time she started to cross until she was struck by the automobile; that if she had stopped after leaving the sidewalk, she could have seen the automobile at any point between where she left the sidewalk and where she was struck. Held, that there was no such conflict between the answers to the interrogatories and the general verdict as to entitle the defendant to a judgment on the interrogatories, as it was for the jury to determine whether the plaintiff, in attempting to cross the street in the time and manner disclosed, exercised that degree of care that an ordinarily prudent person would have exercised, p. 183.</p>

From Howard Circuit Court; A. B. Kirkpatrick, Special Judge. Action by Abner H. Ratcliff, administrator of the estate of Gilbert Ratcliff, deceased, against George J. Sims, administrator of the estate of Clara F. E. Sims, deceased. From a judgment for plaintiff, the defendant appeals.

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Pearl Pell, by her next friend, Charles Pell, against the City of Indianapolis. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Circuit Court; Charles Bemster, Judge.</p> <p>Action by John Hilborg against the Nordyke & Marmon Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by George D. Milner and Willard E. Milner, partners, against the Toledo, St. Louis & Western Railroad Company. From a judgment for plaintiffs, the defendant appeals.</p>

From the Marion Superior Court (79366); Edward W. Little, Judge pro tem. Action by Fielding A. Conway and others against the Indianapolis Board of Public Works and others, to set aside an assessment roll and to enjoin the collection of assessments on account of the construction of a sewer. Judgment was rendered in favor of Margaret E. Adams and others, and against Lizzetta Alsmeier and others, and Lizzetta Alsmeier and others appeal.

From Yigo Circuit Court; James P. Hughes, special judge. Action by the Terre Haute Paper Company against the Terre Haute Water Works Company. From a judgment for the defendant, the plaintiff appeals.

<p>1. Appeal. — Briefs.—Reference to Assignment of Error. — Specifications. — Where appellant, in his brief, fails to make specific reference to any assigned error and makes no attempt to apply his propositions of law to any assigned error except in one instance, the other assigned errors are waived, p. 277.</p> <p>2. Appeal. — Briefs.—Grounds of Review. — Ruling on Motion for New Trial. — Where the only reference to the ruling on the motion for a new trial in appellant’s points and authorities is a statement that “there were rulings on certain instructions referred to in the new trial as to the time when a sale in the ease was effected and under that head the following authorities are cited”, followed by a statement of two separate propositions of law and citation of authorities in support thereof, presents no question on the ruling on such motion, p. 277.</p> <p>3. Appeal. — Effect of Decision on Prior Appeal. — “Law of the Case.” — Where no substantial changes are made in pleadings by amendment thereto, the only amendment to the complaint being as to the amount of attorney’s fees, the decision in a prior appeal, in so far as the pleadings are concerned, must be considered as the law of the ease, but this is not true, however, if the theory of the pleading or any material averment thereof is changed by amendment so as to present an essentially different question of law. p. 279.</p> <p>4. Appeal. — Effect of Decision in Prior Appeal. — “Law of the Case.” — WThere.on a prior appeal of a cause, the decision of the court determined the construction of a written contract of warranty of a stallion and decided that the remedy provided therein was exclusive and must be so treated in the consideration of any pleading based thereon or involving the construction thereof, such decision is the law of the case in so far as any question concerning the construction of such contract of warranty, or any pleading based thereon, is concerned, p. 282.</p> <p>5. Action. — Joinder of Causes. — While it is a general rule that two separate independent causes of action, one based on tort and the other on contract, can not be joined in the same proceeding, this rule has no application in such a case as the one at bar, wherein a pleading based on a breach of warranty and a pleading based on fraud grew out of the same transaction, and such pleadings may be properly joined in separate paragraphs of the same complaint or answer. Under the provisions of §352 Burns 1914, §347 R. S. 1881, the rule as to joinder of defenses is more liberal and comprehensive, if anything, than as to the joinder of causes of action, p. 283.</p> <p>6. Election op Remedies. — Breach of Warranty. — Fraud.-—• WThere, in an action to enforce collection of notes given in payment of the purchase price of a warranted stallion, defendant elected to rely on a breach of the warranty as a defense, which defense did not exist in fact by reason of the death of the stallion before a certain date in the warranty, he did not thereby estop himself, on a second trial of the cause, under the doctrine of the election of remedies, from pleading and relying on fraud as a defense, for to render such doctrine applicable to any particular case, two things are essential: First, two remedies must be available; and, second, such remedies must be inconsistent, and, if the party, in whose favor the right of election exists, by any decisive act, with knowledge of all the facts and his rights thereto, chooses his remedy, such choice is final and absolute and bars his right to later choose the other remedy. But where, as in the case at bar, the party erroneously thinks he has a remedy that does not in fact exist, a mistaken, selection and prosecution of such remedy will not estop a later election to pursue an appropriate remedy, though it be inconsistent with the one formerly prosecuted, p. 284.</p> <p>7. Sales. — Warranty.—Merger of Misrepresentations. — Pleading.— Sufficiency of. — While it is the law that, where a vendee of property accepts from a vendor a written contract of warranty which contains certain warranties as to the quality of the thing sold and a provision therein for an exclusive remedy for the breach of such warranty, a voluntary election by the vendee to accept and rely on such contract, in the absence of fraud in procuring the execution and acceptance of such warranty, estops the vendee from after-wards pursuing a remedy based on the fraud of the vendor in making the representations intended to be and actually covered by the contract of warranty, since such oral representations are merged in the written contract; yet, if, as in the instant case, the pleadings of the vendee aver that the written warranty was no part of the original contract for the purchase of the horse, but was voluntarily delivered, without consideration, along with the horse, and that the execution of such contract of warranty was a part of the fraud practiced by the vendee, such pleadings are sufficient as against demurrer, and, upon the facts averred therein, the vendee is not estopped from relying on fraud as a remedy, p. 288.</p>

From Clinton Circuit Court; Joseph Combs, Judge. Action by the Merchants National Bank of Massillon, Ohio, against William J. Nees and others. From a judgment for defendants, the plaintiff appeals. Appealed from the Clinton Circuit Court.

<p>From Knox Circuit Court; Benjamin M. Willoughby, Judge.</p> <p>Action by George S. Miller against Swift & Company. From a judgment for plaintiff, the defendant appeals.</p>

From Gibson Circuit Court; Simon L. Yandeveer, Judge. Action by the Town of Fort Branch and others to annex contiguous territory. Opposed by William Patterson and another. From a finding of the board of county commissioners denying annexation, the petitioners appeal to the circuit court, and, from a judgment there granting annexation, the contestants appeal.

From Allen Superior Court; Carl Yaple, Judge. Action by Louis L. Gladieux against Irma Johns and others, in which certain defendants file cross-complaints. From a judgment determining the rights of the several parties in the property involved in the action, plaintiff appeals.

From. Lake Circuit Court; W. C. McMahan, Judge. Action by William G. Windle and others against the City of Valparaiso and another. From a judgment for defendants, the plaintiffs appeal.

<p>From Carroll Circuit Court; James P. Wason, Judge.</p> <p>Action by John C. Lowe against George A. Williams. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Porter Superior Court; Harry B« Tuihill, Judge.</p> <p>Action by Josephine E. Young against Harvey H. Brown and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Vanderburgh Superior Court; F. M. Hostetter, Judge.</p> <p>Action by Philip Kessler and others against the Grocers Chemical Works. From a judgment for defendant, the plaintiff appeals.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by Harry W. Osterhaus against Dena Creviston and others, in which defendants Creviston cross-complained. From a judgment for cross-complainants, the plaintiff appeals.

<p>1. Master and Servant. — Injuries to Servant. — Liability.—Negligence. — Burden of Proof. — To invoke the Employers Liability Act (§8020a et seq. Burns 1914, Acts 1911 p. 145), which, removes the assumption of risk where injury results from obedience to an order of a superior, the injured person must first prove the specific acts of negligence charged, p. 393.</p> <p>2. Master and Servant. — ■Injury to Servant. — Theory of Complaint. — Burden of Proof. — Where the complaint charges that the injury complained of resulted from the incompetency of a fellow servant, the burden is on the plaintiff to support such theory by some competent evidence, since there can be a recovery only on the theory of the complaint, p. 393.</p> <p>3. Master and Servant.' — -Injuries to Servant. — Negligence.— Evidence. — In an action predicated on injury received because of the ineompeteney of a fellow servant, a spiker in a gang of track-layers, the evidence is insufficient to show either that the spiker, who struck plaintiff with a sledge, was negligent, or that he was incompetent, thus charging the employer, where it appears that at the time of the accident plaintiff could have seen the danger of his situation, if any, had he looked, and that the spiker was performing his duties in the usual and proper manner, p. 395.</p> <p>4. Master and Servant. — Injuries to Servant. — Negligence.— Evidence. — There is a failure of evidence to show that a master placed Ms employees, including the complaining servant, in a dangerous place to work where it appeared that the foreman had placed two gangs of railspikers at work at a safe distance apart and that the two gangs had, at the time plaintiff was struck with a sledge, gradually come so close together, without orders so to do and without the knowledge of the master, that it was possible for the accident to occur, p. 395.</p> <p>5. New Trial. — Motion for. — Grounds.—Evidence.—In an action for damages for personal injuries, where the undisputed facts of the ease fail to support the negligence charged, but show that the injury complained of was due solely to an accident, the evidence does not support a verdict for the plaintiff and such verdict is contrary to law, and a motion for a new trial should be sustained, p. 395.</p> <p>6. Trial. — Instructions.—Conformity to Evidence. — Instructions are erroneous wMch authorize a recovery on theories not supported by the evidence, p. 396. ‘</p>

From St. Joseph Superior Court; Vernon Van 'Fleet, Judge. Action by Edward Fites against Nancy Fites. Judgment for plaintiff in part, and from an order overruling his motion to modify the judgment the plaintiff appeals.

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Action by John W. Hunter against tbe Terre •Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review:—Admissibility of Evidence. — Harmless Error. —Where, in an action for goods sold and delivered, there was filed with the complaint, as an exhibit, what purported to be a duplicate of the order for the goods, the error, if any, in admitting the duplicate in evidence without proof, of its execution was cured by the admission in defendant’s deposition that the exhibit was a correct copy of the order and by the introduction of the original order, p. 423.</p> <p>2. Evidence. — Admissions.—Effect.—An admission as to a writing is like an admission as to any other fact, and it justifies the introduction of the writing in evidence. . p. 423.</p> <p>3. Evidence. — Admissibility.—Written Memorandum. — In an action by a vendor against a vendee to collect for goods sold, a memorandum given the vendor by the carrier showing the receipt of the goods, the original bill of lading being unaccounted for, is not admissible in evidence except to refresh the recollection of a witness otherwise competent to testify concerning the shipment or merely to show that a receipt for the goods had been given by the carrier, but such memorandum is not competent primary evidence of its contents, since it is entirely hearsay as to such facts, p. 424.</p> <p>4. Sales. — Remedies of Seller. — Evidence.—Sufficiency.—Where, in an action to collect for goods sold, the contract of sale provided that the buyer was entitled to thirty-five days from the date of shipment in which to test a filter and the evidence merely showed that the filter was shipped sometime after February 6, and returned to the seller on March 24, the evidence is insufficient to hold the buyer hable on the ground that he had retained the filter for a longer time than allowed for the test. p. 425.</p>

<p>• From St. Joseph. Circuit Court; Walter A. Funk, Judge.</p> <p>•Action by Alexis Coquillard against Joseph A. Coquillard and another. From a judgment for# plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Briefs.—Assignment of Errors. — Waiver of Errors.— Such of the assigned errors as are not presented by the appellant’s brief will be deemed to have been waived, p. 449.</p> <p>2. j New Trial. — Motion for New Trial. — Time for Filing. — Statute. —Under the statute (§587 Burns 1914, Acts 1913 p. 848) an application for a new trial must be filed within thirty days from the time when the verdict or decision is rendered, and no question of error as to the overruling of the application is presented where it was filed more than thirty days after the rendition of the verdict. p.449.</p> <p>3. Appeal. — Motion for Judgment on Interrogatories. — General Verdict. — Presumption.—In determining whether error was committed in overruling the motion for judgment on the answers to interrogatories, the court will assume in favor of the general verdict that every supposable fact legally admissible under the issues was proven in, support of such verdict, p. 450.</p> <p>4. Trial. — Verdict.—Effect of. — Where, in an action for damages, the issue was presented by the filing of an affirmative answer to which there was a reply of general denial, the general verdict for the plaintiff is a finding in favor of the averments of the complaint and against those of the affirmative answer that are in conflict with the former, p. 452.</p> <p>5. Trial. — General Verdict. — Answer to Interrogatories. — It is the duty of the court to reconcile the answers to special interrogatories with the general verdict if possible, and the court should consider all of the interrogatories and answers together, in connection with any and all facts favorable to the general verdict that might have been legally proven under the issues, and if, when so considered, there is a reasonable possibility of reconciliation between such answers and the general verdict, the latter must stand, p. 453.</p> <p>6. Carriers. — Actions for ' Injuries. — Answers to Interrogatories.— General Verdict. — Consistency.■—In an action for damages for personal injuries alleged to have been due to the defendant company’s negligence in permitting a freight truck to be left on the platform of its passenger station in such a position as to fall or roll against plaintiff, who was waiting to board a train, the jury answered interrogatories to the-effect that the plaintiff was injured in the place and manner alleged; that the.presence of the truck on the platform was dangerous; that at the time of the injury a person waiting to take passage on a train was leaning against or climbing upon the truck without defendant’s knowledge; and that the immediate and proximate cause of plaintiff’s injury was the act of such other person in getting upon the truck, thus causing it to fall or roll against the plaintiff. Held, that such answers are not necessarily contradictory or inconsistent with the general verdict. p. 454.</p> <p>7. Negligence. — Concurrent Negligence. — Liability.—It is no defense to an action for a negligent injury that the negligence of a third person contributed to cause the injury, if the negligence of the defendant was the efficient cause, as the fact that some other cause operates concurrently with Ms negligence in the production of the injury does not relieve the defendant from liability, p. 455.</p> <p>8. Trial. — Form of Interrogatories. — Conclusion.—In an action against a carrier for injury caused by plaintiff being struck by a freight truck, and an interrogatory requiring the jury to answer as to whether the act of another person in climbing upon a truck, causing it to fall against the plaintiff “was the immediate and proximate cause of the plaintiff’s injury” was improper, since it calls for an answer involving the legal defimtionof the term “proximate cause”, and hence calls for a conclusion, p. 456.</p>

<p>1. Appeal. — Briefs.—Questions Presented. — Where appellant’s brief fails to comply with Rule 22, clause 5, of the Supreme and Appellate Courts requiring “a concise statement of so much of the record as presents every error and exception relied on”, but does set out the motion for a new trial, containing the grounds assigned therefor, and under the “Points' and Authorities” the brief states several abstract propositions of law without attempting to apply them, as the rule of the court provides, to any particular ruling of the trial court, except to state that the decision of the court is not sustained by sufficient evidence, the sufficiency of the evidence is the only question presented for consideration, p. 458.</p> <p>2. Appeal. — Review.—Questions of Fact. — Conflicting Evidence.— While §698 Burns 1914, Acts 1903 p. 341, requires the Supreme and Appellate Courts to consider and weigh the evidence, if required by the assignment of errors, yet, where the evidence is in part oral and there is a conflict therein, it will not be weighed by the reviewing court, p. 459.</p>

<p>1. Wills. — Construction.—Estate Devised. — Words of Inheritance.— A devise of real estate in general terms, unaccompanied by words of inheritance or other language defining the quantity of the estate to be taken by the devisee, creates only a life estate under the rule of the common law which is in force in this state, but any additional language in the will indicating an intention to devise a fee simple will be given'effeet. pp. 466, 473.</p> <p>2. Wills. — Construction.—Bequest of Personalty. — Estate Granted. —A bequest .of personal property in general terms, under both tbe common law and the rule in this state, is sufficient td give an absolute title, pp. 466,473.</p> <p>3. Wills. — Construction.—General Devise of Realty. — Estate Granted. — A general devise of real estate, coupled with a general bequest of personal property, is sufficient to indicate an intention to devise tbe land in fee. pp. 466,474.</p> <p>4. Wills. — Construction.—Rules.—Intention of Testator. — In construing a will, rules of construction, as distinguished from absolute rules of law, must yield to tbe intention of tbe testator when expressed or otherwise ascertained in a proper manner, p. 466.</p> <p>5. Trusts. — Nominal Trusts. — Statute.—Under §4024 Burns 1914, §2981 R. S. 1881, a devise to a trustee, whose title is only nominal and who has no power of disposition or management of tbe lands devised is void as to tbe trustee and is to be deemed a direct conveyance to tbe beneficiary, p. 468.</p> <p>6. Wills. — Construction.—Partial Intestacy. — Tbe fact that a person makes a will is some evidence of. a purpose to dispose of bis entire estate, and, therefore, a construction that will result in partial intestacy is to be avoided, unless tbe language of tbe will compels such construction, p. 469.</p> <p>7. Estates. — Life Estate. — Tenant a Trustee. — A life tenant is a trustee for tbe remainderman in tbe sense that be must exercise reasonable precautions to preserve tbe property intact for transmission to tbe remainderman at tbe termination of tbe life estate, and be may not injure or dispose of it to bis detriment, p. 470.</p> <p>8. Wills. — Construction.—Disinheritance of Heir. — A will should not be so construed as to disinherit an heir unless such be tbe plain intention of tbe testator as gathered therefrom, p. 471.</p> <p>9. Wills. — Construction.—Estates Devised. — Where a will,# after directing that tbe testator’s personal debts, funeral expenses, etc., be paid from personalty, provided that tbe widow take a life estate in tbe residue, both real and personal, and that at her death an equal division be made between a daughter and a son, designating tbe portion of tbe land tbe son should take, and providing that it be held by him not in fee simple, but in trust for tbe heirs of bis body, held that, subject to tbe right of tbe testator’s widow therein, tbe son took a life estate with the remainder to tbe heirs of bis body, or an estate in fee tail, independent of §3994 Bums 1914, §2958 R. S. 1881, abolishing estates tail. p. 471.</p> <p>10. Wills. — Estates Tail. — Statutory Modification to Fee Simple.— Under §3994 Bums 1914, §2958 R. S. 1881, providing that estates tail are abolished, and any estate which, according to tbe common law, would be adjudged a fee tail shall hereafter be adjudged a fee simple, and if no valid remainder be limited thereon shall be a fee simple absolute, where a testator devised an estate in fee tail to a son, tbe estate granted by tbe will, by reason of tbe statute, became an estate in fee simple in such son; p. 472.</p>

<p>1. Appeal. — Perfection of Appeal. — Time.—Statute.—Where appellants filed their transcript on appeal on the sixty-first day after the filing of the appeal bond, the preceding day being Sunday, it was filed in time, since §1350 Bums 1914, §1280 R. S. 1881, concerning the computation of time in such cases, provides that if the last day falls on Sunday it shall be excluded, p. 478.</p> <p>2. Appeal. — Procedure.—Necessary Parties. — In a suit to foreclose a mortgage, even though it appeared that the plaintiffs filed an admission that one of the defendant mortgagors was of unsound mind when the mortgage was executed and not liable, and there was a judgment for costs in favor of defendants, such insane defendant was interested in supporting the judgment within the meaning of §674 Bums 1914, Acts 1899 p. 5, concerning notice Of appeal, and a necessary party to a vacation appeal, and failure to give her notice or mate her a party or to furnish a bond inuring to her benefit necessitates a dismissal of the appeal, p. 479.</p> <p>3. New Tbial. — When Proper. — Parties.—Where, in an action to foreclose a mortgage, plaintiffs filed a written admission that as to one of the defendants there was no liability and there was a judgment for costs in favor of all defendants, no error can be predicated on the trial court’s action in overruling a motion for a new trial directed at the entire judgment, p. 481.</p>

<p>1. New Trial. — Specification of Grounds. — Statute.—That the judgment is clearly against the weight of the evidence is not a statutory ground for a new trial under §585, cl. 6, Bums 1914, §559 R. S. 1881, and such specification, therefore, presents no question for review, p. 483.</p> <p>2. Appeal. — Presenting Grounds of Review. — Specification of Grounds. — In assigning as a ground for a new trial, where the cause has been tried by the court, that the “finding” is not sustained by the evidence, the use of the word “finding” is equivalent to the word “decision” used in the statute (§585, cl. 6, Burns 1914, §559 R. S. 1881), so that such specification of a ground for a new trial properly presents for review the question of the sufficiency of the evidence, p. 483.</p> <p>3. New Tkial. — Specification of Grounds. — Insufficiency of Evidence. —An assignment that the decision “is not sustained by the evidence,” is in effect equivalent to an assignment that the decision “is not sustained by sufficient evidence.” p. 483.</p> <p>4. Sales. — Conditional Sale. — Breach.—Recovery.—Sufficiency of Evidence.■ — Admissibility of Evidence. — In an action in replevin, there was evidence to the effect that the defendant had in her possession certain household furniture which she knew her deceased husband had purchased under a conditional contract retaining title in the vendor and giving him the right of possession on default in the stipulated payments or upon removal of the goods from the then residence of the vendee; that the husband was in default in payments at the time of his death; that none were made by the defendant thereafter; and that she had removed the goods from the original residence of the husband. Held, that the contract of sale was properly received in evidence, and that the evidence was sufficient to sustain the decision of the trial court for the plaintiff, p: 483.</p> <p>5. Replevin. — Right of Action. — Demand.—When Necessary.— Where there has been a default in the provisions of a conditional contract for the sale of personal property and the possession of the goods has thereby become wrongful, no demand for a return of the goods is necessary prior to the institution of an action in replevin, p. 484.</p>

From Marion Superior Court (92306); Edward F. Quigley, Judge Pro tern. Action by Forest L. Garrison against Winifred Miller and another to have a judgment opened. From an adverse judgment, the plaintiff appeals.

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Alexis Coquillard and another against Joseph A. Coquillard. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Tipton Circuit Court; James M. Purvis, Judge.</p> <p>Action by William C. Meneely against the Frankfort Construction Company. From a judgment for plaintiff, tbe defendant appeals.</p>

From Howard Circuit Court; William C. Purdum, Judge. Action by Maude S. Butler and another against the city of Kokomo and others. From a judgment for defendants, the plaintiffs appeal.

<p>From Marion Circuit Court (21,965); Charles Remster, Judge.</p> <p>Action by the Indiana Reduction Company against theGlobe& Rutgers Fire Insurance Company. From a Judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Briefs.—Specification of Errors. — Where appellant’s brief, in its points and authorities, states several propositions of law, none of which are applied to any particular ruling of the trial court or to any assigned error, there is a failure to comply with the rules of the Supreme and Appellate Courts and no question is presented on appeal, p. 547.</p> <p>2. Appeal. — Assignment of Error. — Identifying Questions Presented. —The assignment of error in the appellate court must identify and present for the determination of the court the same question presented and passed upon by the trial court, p. 548.</p> <p>3. New Trial. — Motion.—Grounds.—The overruling of a motion for a new trial as a matter of right is not a proper ground for a new trial for cause, p. 548.</p> <p>4. New Trial. — As of Right. — Waiver of Objections. — A motion to vacate an order granting a new trial as of right is too late, if not filed until after the trial granted by such order, p. 548.</p> <p>5. New Trial. — Striking out Motion to Vacate Order for. — When Harmless. — The action of the trial court in striking out a motion to vacate an order for a new trial was harmless, where such motion was filed too late. p. 549.</p> <p>6. New Trial. — As of Right. — Waiver of Objection. — Where the cause of action is one in which the losing party is entitled to a new trial as of right, and he has fulfilled the statutory requirements incident .to obtaining the same, any irregularity in the granting of the order for the new trial prior to the rendition of the judgment in the first trial will be deemed to have been waived, where the record shows no objection made to such irregularity at the time such new trial was granted and no effort made to set aside the order therefor until after the rendition of the verdict in the second trial of the cause, p. 550.</p>

From Hamilton Circuit Court; James M. Purvis, Special Judge. Action by Horaee W. Johnson and others against Edith M. Walker and others. From a judgment for plaintiffs and cross-complainant James W. Walker, the defendants appeal.

<p>From Jasper Circuit Court; Burton B. Berry, Special Judge.</p> <p>Action by Landy McGee against Jay W. Stockton and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Marion. Probate Court; Mahlon E. Bash, Judge.</p> <p>Action by Frank Ferguson, guardian, against Cassius M. C. Willis, administrator. From a judgmentforplaintiff, tbe defendant appeals.</p>

<p>1. Appeal. — Harmless Error. — Ruling on Pleadings.- — Error, if any, predicated on the action of the trial court in overruling a motion to require plaintiff to elect to go to trial upon either the first and third paragraphs of his complaint, or upon the second paragraph, was rendered harmless by plaintiff’s dismissal of the first and second paragraphs of his complaint before the submission of the ease to the jury.' p. 574.</p> <p>2. Appeal. — Review.-—Errors Assignable on Appeal. — When Waived. — Statute.—Under §§344, 348 Burns 1914, Acts 1911 p. 415, providing that, if the objection that the complaint does not state facts sufficient to constitute a cause of action is not taken by answer or demurrer, such objection shall be deemed to have been waived, the question of the sufficiency of the complaint to state a cause of action cannot be raised for tlie first time on appeal, p. 574.</p> <p>3. Appeal. — Review.•—Verdict.— Evidence. — Sufficiency.—In determining, on appeal, the sufficiency of the evidence to support a general verdict for the plaintiff, the court must look to the evidence most favorable to him. p. 576. j</p> <p>4. Contracts. — Anticipatory Breach. — Actions.—Where a party to a contract containing mutual and interdependent conditions and obligations disables himself from performing, or prevents the other party from performing, or, before the time of performance arrives, repudiates the contract and refuses to be bound thereby, communicating such repudiation to the other party, the latter is not only excused from further performance on his part, but may, at his option, treat the contract as terminated for all purposes of performance and maintain an action at once for all damages occasioned by such repudiation, without awaiting the time fixed by the contract for performance, p. .577.</p> <p>5. Contracts. — Anticipatory Breach. — Actions.—Where an action for damages is predicated on a repudiation of a contract, such repudiation must be positive and absolute and unconditional in order that it may be treated as an anticipatory breach of such contract, p. 578. *</p> <p>6. Insurance. — Anticipatory Breach. — Actions.—Damages.—Where an insurer repudiates its contract and denies liability thereunder and refuses to receive premiums, the assured may elect either to consider the policy at an end and recover the equitable and just value thereof, or he may institute proceedings to have the policy adjudged to be in force in which ease the question of forfeiture may be determined, or he may tender the premiums and, if acceptance is refused, wait until the policy becomes payable and then test the forfeiture in a proper action on the policy, p. 579.</p> <p>7. Insurance. — Repudiation of Contract by Insurer. — Actions by Assured. — Where an insurer repudiates its contract, refuses to accept premiums thereon and denies liability, the assured cannot treat his policy as in force and effect and still preserve his right to sue for damages for its breach, p. 579.</p> <p>8. Insurance. — Anticipatory Breach. — Sufficiency of Evidence. — In an action for damages predicated on an insurer’s alleged repudiation of its policy of insurance contracting to pay a death and a total disability benefit, the evidence is insufficient to show the insurer’s repudiation of the contract where there is an admission by the assured that the defendant insurance company did not controvert its liability under its policy for permanent disability existing at the time it refused to accept further premiums, p. 580.</p> <p>9. Insubance. — Entire or Severable Contract. — A mutual life and disability policy of insurance, providing both a death and a total disability benefit, is not a severable contract where one premium is the consideration for both liabilities, p. 581.</p> <p>10. Estoppel. — Claim under Contract. — Election.—Where, in an action based on a breach of a contract of insurance by the insurer, it appears that the plaintiff, after an alleged repudiation of tho policy by the defendant company, elected to still treat the contract as in force for the recovery of benefits thereunder, he thus kept such contract alive for all purposes both for himself and for the insurer and - he estopped himself from afterwards predicating a suit thereon for damages for its alleged repudiation, pp. 583, 586.</p> <p>11. Appeal. — Verdict.—Evidence.—Sufficiency.—Where, in an action for damages predicated on an alleged repudiation of a contract of insurance by the insurer, the evidence shows that the assured, the plaintiff below, elected, at the time of such alleged repudiation, to treat the contract as still in force for the recovery of benefits thereunder, a verdict for the plaintiff is not sustained by sufficient evidence, p. 585</p>

<p>From DeKalb Circuit Court; Frank _M. Powers, J udge.</p> <p>Action by Peter Shoub against Wells R. Martin. From a judgment for plaintiff, the defendant appeals.</p>

<p>Municipal Corporations. — Contractor’s Bond to City. — Liability of Guarantor to Materialmen. — Where a contract and bond for city work merely stipulated that the contractor was to “furnish and deliver all the material,” the guarantor oh the bond is not liable to a materialman for material furnished in the absence of either a provision binding the contractor to pay a materialman for labor or material, or such language used that without paying for such material the contract could not be complied with.</p>

<p>From Steuben Circuit Court; Publius F. Hoffman, Special Judge.</p> <p>Action by Adda Bolds and others against George W. Gilbert and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Appeal. — Review.—Motion for New Trial. — Transcript of Evidence. — Necessity.—Where consideration of the causes assigned for a new trial, that are properly assignable under the statute, require an examination of the evidence and the evidence is not in the record, no question is presented for review, on appeal, by an assignment of error challenging the action of the trial court in overruling the motion for a new trial, p. 604.</p> <p>2. Appeal. — Review.—Motion for New Trial. — Time for Filing.— Statute. — No question is presented for review by an assignment of error challenging the action of the trial court in overruling a motion for a new trial where the record shows that such motion was not filed within thirty days from the rendition of the verdict as required by §587 Burns 1914, Acts 1913 p. 848. p. 604.</p> <p>3. Appeal. — Review.—Assignment of Error. — Judgment.—An assignment of error that the trial court erred in rendering judgment for or against a party presents no question for review, p. 605.</p> <p>4. Appeal. — Review.—Exception to Judgment. — An exception to a judgment presents no question for review by the appellate tribunal, since, under the proper practice, the exception should be taken to the ruling of the court upon which the judgment is determined. p. 606.</p> <p>5. Appeal. — Review.—Judgment.—Entry.—Exception.-—-Where the record, on appeal, shows an «objection and an exception noted at the conclusion of the trial court’s entry of the judgment, and such entry is preceded by the court’s ruling on the motion for judgment on the interrogatories, the exception so noted is to the judgment and does not apply to the ruling on the motion, p. 607.</p>

<p>1. ■ Master and • Servant. — Duty of Mine Operator. — Statute.— Operator. — Who is. — Where the owner leases a coal mine to another, he is not liable for an injury to lessee’s employe alleged to be due to a violation of the statutes (§8569 et seq. Burns 1914, Acts 1905 p. 65, as amended by Acts 1911, p. 626) touching upon the duties . of coal mine operators and defining who shall be regarded as such, where it affirmatively appears from the complaint, predicating the lessor’s liability on the theory that he is embraced within the meaning of the term operator, that the lessee operates the mine on his own account, since only those who come within the statute (§8569 Burns 1914, supra) as operators are persons or companies actively and directly engaged in operating a mine or persons on whose account a mine is operated, p. 616.</p> <p>2. Master and Servant. — Safe Place to Work. — Delegation of Duty. — The duty resting upon the master, whether obligated by statute or the common law, to provide a safe working place for his servants cannot be delegated to another and the master thereby escape responsibility for results, p. 617.</p> <p>3. Master and Servant. — Safe Place to Work. — Duty of Mine Owner. — Statute.—The various duties of mine operators, as specified by the statutes (§8569 et seq. Bums 1914, Acts 1905, as amended by Acts 1911 p. 626) looking to the safety of employes, rest upon the actual operator and not the owner, where the latter -leases his mine and retains no control over it or where it is not operated on his account, p. 617.</p> <p>4. Master and Servant. — Injuries to Employe. — Pleading.—In an action for injury to a coal mine employe directed against the owner of the mine and the lessee thereof, a complaint based on the theory that the lessee was working the mine is insufficient, in the absence of proper averments, to present the issue that the owner was in fact the operator and that the lease was, merely a subterfuge to relieve the owner from liability for the negligent and unlawful operation of the mine by the lessee, p. 618.</p> <p>5. Master and Servant. — Injuries to Third Persons. — Liability.— Independent Contractor. — Dangerous Industry. — Statute.—As a • general rule the employer is not answerable for the acts of an independent contractor, but, where the work to be done is inherently dangerous, although care be used, or where the necessary consequence of the work is injury to another, such rule has no application; and, while the statute (§8624a Burns 1914, Acts 1911 p. 658) declares coal mining to be a dangerous industry, yet the law recognizes that it may be prosecuted with reasonable safety if care be used. p. 619.</p> <p>6. Master and Servant. — Operation of Mine. — Personal Injuries.- — Liability of Lessor. — In an action for injury to a coal mine employe directed against the owner of the mine and his lessee, the complaint fails to charge the owner with liability where it appears from, the averments that the owner surrendered, under the terms of a lease, possession of the mine and complete control of its operation to the lessee, and that the defective condition alleged to have caused the injury complained of originated, because of the lessee’s negligence, subsequent to the time the mine was placed in his control, p. 620.</p> <p>7. Master and Servant. — Safe Place to Work. — Inspection of Roof of .Mine Room. — Statute.—The duty imposed by the statuto (§8580 Bums 1914, Acts 1905 p. 72) on a mine operator of making a reasonable inspection of the working places in a mine at least every alternate day is not discharged by a mere visual inspection of the roof of a mine room where such an inspection is insufficient and ineffective because of the nature of the material forming such roof, and the operator is chargeable with whatever knowledge of conditions a reasonable inspection would disclose, p. 624.</p> <p>'8. Master and Servant. — Safe Place to Work. — Duty of Mine Operator. — Statute.—Under §8580 Bums 1914, Acts 1905 p. 72, an operator of a mine is charged with the duty of keeping a sufficient quantity of timbers on hand with which to make secure the loose rock and coal discovered in the roof of a mine room or else he must remove the same. p. 625.</p> <p>9. Master and Servant. — -Injuries to Servant. — Negligence.— Verdict. — Evidence.—Sufficiency of. — In an action for the injury and death of a coal mine employe where there was evidence that the decedent at the time of his injury was engaged in a proper exercise of his employment, when a section of rock fell upon him from a mine room roof that had been weakened by the removal of braces and props used to give it support; that a reasonable and proper inspection would have disclosed the dangerous condition which could have been remedied by the use of supports or by the removal of the loosened rock; that when workmen notified the mine boss of the dangerous condition of the roof he failed either to support it-, although it was practicable to have done so, because of a lack of proper timbers, or to remove the coal and rock that had become loosened, such evidence is sufficient to support a general verdict for the plaintiff against the lessee who had entire control and direction of the operation of the mine. p. 625.</p> <p>10. Triad. — Instructions.—Repetition.—It is proper for the trial court to refuse to give tendered instructions when, to the extent that they are correct and applicable to the issues, they are included in substance in those given, p. 625.</p> <p>11. Master and Servant. — Operation of Mine. — Competent Mine Boss. — It cannot be said as a matter of law that an experienced coal miner employed as a mine boss and holding a certificate of service and competency as such, as provided for by §§8591, 8592 Burns 1914, Acts 1905 pp. 78, 79, is a competent mine boss. p. 626.</p> <p>12. Master and Servant. — Operation of Mine. — Examination by Mine Boss. — Statute Construed. — It cannot be said, as a matter of law, that a visit to, and an examination of, the working places of a coal mine by a mine boss every other day will, regardless of the circumstances or the dangers to be anticipated, satisfy the statute (§8580 Burns 1914, Acts 1905 pp. 72, 73) requiring such a visit and examination at least each alternate day, since, under a proper construction of the statute, it is the duty of the mine boss to make the visits and examinations as often as the situation reasonably demands, but under no circumstances with less frequency than the statute requires, p. 626.</p> <p>13. “ Trial. — Deliberation of Jury. — Consideration of Interrogatories.— The jury may properly consider the interrogatories either before or after the general verdict has been agreed on, or diming the deliberations respecting the same, as the jury itself may determine. p. 628.</p> <p>14. Appeal. — Refusal of Instruction. — Harmless Error. — In an action against the lessee of a coal mine for the death of an employe, the error, if any, of the trial court -in refusing to give an instruction that the jury might consider the interrogatories either before or after they had agreed on the general verdict was harmless, where the interrogatories called for facts concerning but a single branch of the case and the answers were substantially in harmony with the facts as claimed by the defendant, p. 628.</p>

<p>From Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action by Daisy Cook against Lucy Helms and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. ' Husband and Wife. — Husband’s Debts. — Liability.—Neither the wife nor her property are liable for the debt of the husband incurred before her decease, and she is under no obligation to make provision that such debt be paid out of her estate, p. 639.</p> <p>2. Wills. — Devise.—Validity.—A wife may validly make such a testamentary disposition of her estate that it cannot be resorted to for the purpose of collecting the debts of the husband incurred before her decease, p. 639.</p> <p>3. Statutes. — Conflicting Provisions. — Repeal by Implication.— Descent. — Wills.—Husband’s Election. — The amendment to §3026 Burns 1914, §2488 R. S. 1881, by the proviso added thereto by the Acts of 1901 p. 118, giving to the surviving husband the property conveyed to him by the wife’s will unless he elects to take under the law, repeals by implication the proviso embodied in §3016 Burns 1914, §2485 R. S. 1881, by the Acts oí 1891 p. 71, giving the surviving husband his rights under the law unless he elects to take under the will. p. 640.</p> <p>4. Wills. — Bights of Devisees and Legatees. — Election.—Statute.— Where a deceased wife has made a testamentary provision for her surviving husband, he has no right to elect to take from, his wife’s estate by the law of descent except as provided in §3046 Burns 1914, Acts 1907 p. 73. p. 642.</p> <p>5. Wills. — Bights of Devisees and Legatees. — Election.—When Necessary. — Statute.—Under §3046 Burns 1914, Acts 1907 p. 73, providing that if by the deceased wife’s will property is devised to the husband or provision is made for him therein, he shall take under the will unless he elects to take in accordance with the laws of descent, the filing of an election to take by the will is of no effect, since the statute does not require such an election in order that a surviving husband may abide by his wife’s will. p. 642.</p> <p>6. Wills. — Rights of Devisees and Legatees. — Election.—Necessity of. — Statute.—Where by the terms of the wife’s will no property is devised to the husband or no pecuniary or other provision is made for him therein, he will take from her estate by the laws of descent irrespective of whether he files an election, since §3046 Burns 1914, Acts 1907 p. 73, requires the filing of an election to take by descent instead of the will only when there is a testamentary profusion made for the surviving husband in the deceased wife’s will. p. 643.</p> <p>7. Wills. — Bights of Devisees. —Election.—'Validity.—Statute.— Under §3046 Burns 1914, Acts 1907 p. 73, providing that whenever any personal or real property is devised to any husband, or pecuniary or other provision is made for him in the will of hia late wife, he shall take thereunder unless he elects to take by descent, any testamentary provision coming within the terms of the statute, no matter how small may be the value of the devise, obligates him to elect if he desires to take by descent, and his action in the premises, regardless of whether it is characterized by business acumen, is conclusive, p. 645.</p> <p>8. Wills. — Rights of Devisees and Legatees. — Provision for Husband. — What is. — Election.—Statute.—Where a deceased wife’s will contains a provision that the husband execute the trust created by the will, with compensation provided for such services, and that he act as executor of the will, .such provision involves enough of value to obligate him, if he desires to take from his wife’s estate by descent, to make the election provided for in §3046 Burns 1914, Acts 1907 p. 73, which requires that the husband must elect to take by descent if the deceased wife has made provision for him in her will. p. 648.</p>

<p>From Wells Circuit Court; William H. Eichhorn, Judge.</p> <p>Action by Annie Hapner against John G. Tieben and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>Action from Greene Circuit Court; Theodore E. Slinkard, Judge.</p> <p>Action by George W. Topping and another against the Vandalia Railroad Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Lake Superior Court; Herbert S. Barr, Special Judge.</p> <p>Action by Frank Spurrier against William E. Vater and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Pulaski Circuit Court; F. J. Vurpillai, Judge.</p> <p>Action by Byron M. Hopkins and others against Thomas H. Matters and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Appeal. — Review.—Conflicting Evidence. — Where the jury’s verdict is supported by some evidence on every material fact involved, tbe appellate tribunal mil not weigh conflicting testimony, p. 682.</p> <p>2. Trial. — Harmless Error. — Inapt Words in Instruction. — Cure by Other Instructions. — While the use of the word “pecuniary” in connection with the words “loss” and “compensation” in an instruction on damages in a personal injury case is inapt and subject to criticism, yet the giving of the instruction so worded, in connection with another instruction accurately stating the elements of damage to be considered without referring to pecuniary loss, is not reversible error, since, viewing the instructions together, the jury could not have been misled as to the elements of damage by the use of the word pecuniary in the instruction complained of. p. 683.</p>

<p>Prom Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Jesse B. Bradford against Thomas P. Keeley. Prom a judgment for plaintiff, the defendant appeals.</p>

From Allen Superior Court; David E. Smith, Special Judge. Action by William W. Rockhill against Andrew J. Moynihan and another. From a judgment for plaintiff on his demurrer to the answer, the defendants appeal.

From Tipton Circuit Court; James M. Purvis, Judge. James H. Leach, guardian of Floyd Webb, minor, filed his final report, to which Floyd Webb filed exceptions. From a judgment for the exceptor, the guardian appeals.

Prom Clay Circuit Court; John M. Rawley, Judge. Action between Curtis Harris and others and Dillon Routt and another. Prom a judgment for the latter, the former appeals.

Prom Clay Circuit Court; John M. Rawley, Judge. Action' between Curtis Harris and others and Ira Rogers and another. Prom a judgment for the latter, the former appeals.

Prom Madison Circuit Court; Charles K. Bagot, Judge. Action between David A. Bryson and others and the Crown Oil Company and others. Prom a judgment for the latter, the former appeals.

<p>From Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>• Action, between Emma McConnell, administratrix, and the Prest-O-Lite Company. From a judgment for the latter, the former appeals.</p>

From Clay Circuit Court; John M. Hawley, Judge. Action between Curtis Harris and others and the Greer-Wilkinson Lumber Company. From a judgment for the latter, the former appeals.