Volume 65 — Indiana Appellate Court Reports

<p>From Union Circuit Court; George L. Gray, Judge.</p> <p>Action by Luther Sherry against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Negligence. — Duty of Exercising Reasonable Care. — A charge of negligence may not be sustained except as based upon a failure to exercise reasonable care. p. 15.</p> <p>2. Master and Servant. — Duty of Master. — Safe Place to Work. —It is the duty of the employer to furnish to the employe a safe place within which to work, and to provide him with proper tools and equipment, a duty which includes that of making reasonable inspection and repairs and of bringing to the knowledge of the employe the existence of defects and dangers of which the employer has knowledge, actual or constructive, -but which are not known to the employe, and with knowledge of which he is not chargeable, and the master’s failure to discharge such duties with reasonable care is negligence. p. 15.</p> <p>3. Master and Servant. — Injuries to Servant. — Negligence.— Place of Work. — Failure to Inspect. — Actionable negligence in an employer cannot be predicated on the mere failure to inspect the place of work, when inspection would disclose only what was fully known and appreciated by the servant, p. 16.</p> <p>4. Master and Servant. — Injuries to Servant. — Safe Place to Work. — Duty of Master. — The duty of a master to furnish a reasonably safe place to work and to use ordinary care to keep it safe, is a qualified one, and does not extend to all the passing risks that may arise from short-lived causes, such as arise in the ever-changing conditions of the safety of the work, or under circumstances imposing on the employe the duty to make the place safe, or where he is engaged in so doing, p. 16.</p> <p>5. Master and Servant. — Injuries to Servant. — Perils Incident to Service. — Liability of Master. — Where a competent person is employed to repair defects, or to demolish structures, and the perils of the service and the injury for which recovery is sought were occasioned by the nature of the work being done and which the servant was employed to do, such perils are deemed incident to the service, and there can be no recovery, since the employe assumes the risk. p. 17.</p> <p>6. Master and Servant. — Injuries to. Servant. — Duty to Warn and Instruct Servant. — A master may be liable to a servant injured while making repairs, demolishing structures, or similar work, under the supervision and direction of a foreman or other person representing the master, or where the master withholds from, the servant information respecting defects and hazards with a knowledge of which the servant is not chargeable. p. 19.</p> <p>7. Master and Servant. — Injuries to Servant. — Master’s Liability. — Where the manager of a telephone company and overseer of its lines engaged in dismantling a telephone line under the company’s orders was injured when a- pole which he had climbed broke off at the ground because of its rotten condition, the company was not liable, since it was the duty of the servant, who was experienced in the work and in full charge thereof, to test any pole before he ascended it and determine its safety for himself, p. 20.</p> <p>8. Master and Servant. — Employer’s Liability Act. — Negligence. — Negligence is the gist of all actions that may be maintained under the Employers’ Liability Act (§8020a et seq. Burns *1914, Acts 1911 p. 145). p. 21.</p>

<p>1. New Teial. — Motion.—Waiver by Filing Motion in Arrest of Judgment. — A motion in arrest of .judgment filed before the motion for a new trial waives the latter, hence a motion for a new trial filed after a motion in arrest of judgment is of no effect and presents no question for consideration on appeal, p. 23.</p> <p>2. Appeal. — Extending Time for Appeal. — Motion for New Trial. — Appellant’s motion for a new trial, waived because filed subsequently to their motion in arrest of judgment, did not extend the time for perfecting the appeal, p. 23.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Walter F. Hulet against Flora M. Tennant. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Waiver of Error. — Where appellant’s briefs set forth a mere abstract proposition of law which is not applied to a question sought to be raised, the question is waived, p. 41.</p> <p>2. Appeal. — Review.—Presumption.—A ruling of the trial court is presumed to be correct until the contrary is affirmatively shown, p. 41.</p> <p>3. Appeal. — Review.—Harmless Error. — Directing Verdict. — In a passenger’s action against a railway company and a sleeping car company for the loss of jewelry through the negligence of the sleeping car company, error, if any, in directing a verdict in favor of the railway company was harmless to plaintiff where the jury by its verdict exonerated the sleeping car company from negligence, since the sleeping car company, the railroad’s servant, being free from negligence, the master could not have been found negligent, p. 43.</p> <p>4. Carriers. — Carriage of Passengers. — Passenger’s Effects. — ■ Conversion. — Sufficiency of Evidence. — Delivery to Carrier. — • Where a passenger on a sleeping car did not part with the possession of a box containing jewelry, but merely placed it, with the knowledge of the carrier’s servants, in an upper berth above the one occupied by herself, the carrier was not liable for conversion for loss of the jewelry, p. 44.</p> <p>5. Carriers. — Carriage of Passengers. — Transportation of Passenger’s Personal Effects. — Duty of Carrier. — Where a passenger’s ordinary personal effects are retained in his possession, the carrier is not an insurer of their safety, but te liable only for loss occasioned by failure to exercise reasonable care and caution to protect the same from loss or injury, p. 46.</p> <p>6. Carriers. — Carriage of Passengers. — Transportation of Passenger’s Personal Effects and Money. — Duty of Carrier. — When a passenger, without the knowledge of the carrier, has in his possession and control large sums of money or other property of exceptional value, the carrier is not liable for loss or injury thereto, as the carrier, under its contract of carriage, assumes no obligation as to articles of property which form no part of the passenger’s ordinary luggage or personal effects, p. 46.</p> <p>7. Appeal.- — Review.—Harmless Error. — Argument of Counsel. —Reading from Document Not in Evidence. — The fact that counsel in argument, over objection, read questions to and answers by the opposing party on cross-examination from an examination taken out of court before trial, and commented upon the same, was not prejudicial error, although the examination itself was not put in evidence, where the identical questions and answers referred to by counsel had gone into the record on cross-examination of the party at the trial. • p. 48.</p> <p>8. Appeal. — Revieiv.—Harmless Error. — Limiting Argument of Counsel. — In a passenger’s action against a carrier to recover for the loss of personal effects, it was not prejudicial to plaintiff to refuse her counsel permission to discuss the law relative to the validity of a provision in a passenger’s check issued by defendant that “property taken into car will be entirely at owner’s risk,” where counsel was informed that he could read the instructions of the court as the law of the case and apply it to the facts, such instructions, although not referring specifically to the check or its contents, having correctly stated defendant’s liability for the loss of the passenger’s effects, p. 48. - .</p>

<p>From Posey Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by the town of Poseyville against Stephen Gatewood. . From a judgment for defendant, the plaintiff appeals.</p>

<p>From Marion Superior Court (90,772); Clarence E. Weir, Judge.</p> <p>Action by Edna Mellette against Edward L. Mayer. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Insurance. — Life Insurance. — Premiums.—Payment by Note. —The payment of an insurance premium by note may be either absolute or conditional, depending on the intention of the parties at the time of the execution of the note, and the intention may be expressed in the policy, or in the note itself, p. 74.</p> <p>2. Insurance. — Life Insurance. — Payment by Note. — Effect.—A nonnegotiable note given for insurance premiums was merely a conditional, and not an absolute, payment, where a-provision in the insurance certificate designated payment by note as an attempted payment, the insurer’s receipt was given for the note and not for the premium, and there was no evidence of an agreement that the note was to be accepted as absolute payment of the premiums for which it was given, pp. 74, 75.</p> <p>3. Bills and Notes. — Negotiability.—Statutes.—A note executed prior to the Negotiable Instruments Act, §9089a et seq. Burns 1914, Acts 1913 p. 120, and not payable in a bank in this state, is nonnegotiable. p. 75.</p> <p>4. Insurance. — Life Insurance. — Premiums.—Payment by Note. —Policy Provisions. — Scope and Effect. — Provisions in a policy of insurance in reference to the payment of premiums by note need not be incorporated in the note to make such provisions effective, p. 77.</p> <p>5. Insurance. — Life Insurance. — Forfeitures.—Payment of Premiums by Notes. — An insurance certificate providing that it shall be incontestable after two years, except for the nonpayment of premiums, may be contested after such period on the ground that a note given for premiums past due was not paid, where the note was not accepted as absolute payment, but merely operated to extend the time for payment, so that failure to pay the note was failure to pay the premiums for which it was given, p. 78.</p> <p>6. Insurance. — Contracts.—Construction.—An insurance certificate should be construed as a whole, and, if possible, every part thereof given effect, p. 79.</p> <p>7. Insurance.— Life Insurance.— Policy.— Construction.— Forfeitures. — A provision in a certificate of insurance that the certificate should be incontestable after two years, except for nonpayment of premiums, is not in conflict with a forfeiture clause providing for the lapsing of a certificate where a note given in payment of a premium is not paid, as the provisions, when construed together, mean that the certificate may be contested after two years for the nonpayment of premiums or notes given therefor, p. 80.</p> <p>8. Insurance. — Life Insurance. — Policy.—By-Laws.—Construction. — Whether an insurance association’s by-law as to the lapsing of an insurance certificate is unenforceable as being too indefinite is immaterial, where the situation is definitely covered by a provision in the certificate itself, p. 80.</p> <p>9. Insurance. — Life Insurance. — Forfeitures.—Retention of Unpaid Premium Note. — An insurance company did not waive a provision forfeiting the policy for nonpayment of premiums by merely retaining an unpaid note given for premiums, where the insurer made no effort to collect the note, or to assert it, as an obligation against the insured or his estate, and refused to accept payment from the beneficiary after the death of the insured, pp. 81, 88.'</p> <p>10. Insurance. — Forfeitures.—Pa/yment of Premiums. — Waiver. —A provision in an insurance certificate for forfeiture for nonpayment of a premium or a premium note, being for the benefit of the insurer, may be waived by it. p. 82.</p> <p>11. Insurance. — Life Insurance. — Forfeitures.—Nonpayment of Premium. — The fact that an insurer sometimes applied commissions due from it to the insured for premiums owed by him is not sufficient evidence that it waived the forfeiture provided ■ by the terms of the policy for nonpayment of premiums as regards premiums due and unpaid at a time when insured had no commissions to his credit, since the insurer was under no obligation to await the accumulation of commissions which could be applied to the payment of delinquent premiums, pp. 84, 86,</p> <p>12. Insurance. — Forfeiture. — Waiver. — Definition. — Waiver is where one in possession of any right, whether conferred by law or by contract, and with full knowledge of material facts, does or forbears the doing of something inconsistent with the existence of the right or his intention to rely upon it. p. 86.</p> <p>18. Insurance. — Life Insurance. — Forfeiture for Nonpayment of Premiums. — Estoppel.—An insurer is not estopped from asserting a forfeiture, as provided in the policy, for nonpayment of premiums because commissions earned by insured in selling insurance had at times been applied on' premiums due from him, and because he had been reinstated on payment of delinquent premiums, where no premiums had been paid in commissions during the last fifteen months preceding the death of the insured, and he had been required to furnish a certificate of good health on several occasions as a condition precedent to reinstatement after failure to pay premiums when due. pp. 88, 91.</p> <p>14. Insurance. — Forfeiture for Nonpayment of Premiums.— Estoppel. — An insurer will be estopped to insist upon a forfeiture, if, by an agreement, either expressed or implied by the course of its conduct, it leads the insured to believe that his premiums will be received after the appointed day. p. 88.</p> <p>15. Insurance. — Life Insurance. — Accepting Delinquent Premiums. — Waiver.—An -insurer’s occasional voluntary indulgence in accepting delinquent premiums, in the absence of an express or implied agreement to waive payment of assessments according to the conditions of the contract, cannot be construed as a permanent waiver, or as depriving the company of the right to insist upon a forfeiture, or to cancel its policy on account of the failure to pay according to the stipulations therein, p. 90.</p> <p>16^ Insurance.— Policy.— Forfeiture Clauses.— Construction.— Though forfeitures are not favored by the law, courts must enforce them when the party by whose fault they are incurred cannot show some good ground in the conduct of the other party on which to base a reasonable excuse for the default, p. 91.</p> <p>17. Insurance. — Life Insurance. — Policy Provisions. — Waiver.— Evidence. — Admissibility.—In an action on a life insurance policy, which required, as a condition precedent to reinstatement when a policy had lapsed for nonpayment of premiums, that insured should furnish a satisfactory certificate of good health, where the jury was required to determine whether the policy had been reinstated by the insurer’s acceptance of a note for delinquent premiums for a period up to a certain date, a postal card from the insurer to the insured notifying him that another premium, payable in advance, was due on such date was admissible on the question of whether the requirement as to the certificate of good health had been waived by the insurer, there being no evidence that such certificate had been furnished, p. 92.</p> <p>18. Insurance. — Life Insurance. — Evidence.—Receipts of Premium Payments. — Admissibility.—In an action to recover on a life insurance policy, receipts executed by the insurer showing the payment of premiums by insured are admissible as tending to show that insured had performed his part of the contract, p. 92.</p> <p>19. Insurance. — Life Insurance. — Action on Policy. — Instructions. — Ignoring Evidence. — Nonpayment of Premiums. — In an action on a certificate of insurance, an instruction that, if insured executed a note in payment of all premiums up to specified date, and the insurer accepted such note as payment, the insured might recover, was erroneous as ignoring the fact that under the provisions of the certificate it might lapse if the note was not paid. p. 92.</p> <p>20. Insurance. — Life Insurance. — Action on Policy. — Instructions. — In an action on an insurance certificate, an instruction that the insured’s acceptance of a note for delinquent premiums kept the certificate in full force up to a specified date, and that insured could keep it alive by paying the premium due immediately after such date, was erroneous as ignoring the possibility that under the provisions of the certificate it might lapse upon nonpayment of the note. p. 93.</p>

<p>From Marshall Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by George Chadwick against the Pere Marquette Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

From Monroe Circuit Court; Robert W. Miers, Judge. Action by the State of Indiana, on the relation of Lucien C. McDaniel, against Samuel M. Kerr and another. From a judgment for relator, the defendants appeal.

<p>From Madison Circuit Court; Charles K. Bagot, Judge.</p> <p>Action by Linies E. ^Bowman against the American Liability Company. From a judgment for plaintiff, the defendant appeals.</p>

From the Industrial Board of Indiana. Proceeding for compensation under the Workmen’s Compensation Act by Rice Miller against C. and W. Kramer Company. From an award for applicant, the defendant appeals.

From the Industrial Board-of Indiana. Certified question of law. Proceedings under the Workmen’s Compensation Act in the matter of one Bowers, one Williams, and one Colan. Questions of law certified by the Industrial Board.

<p>1. Courts. — Jurisdiction of Subject-Matter. — Right to Question. —Jurisdiction of the subject-matter is conferred only by law, and the jurisdiction of the appellate court to decide a case may be questioned even after decision, p. 137.</p> <p>2. Courts. — Jurisdiction. — Judgment. — Where the Appellate Court is without jurisdiction in an appeal, anything it may do will be a nullity, p. 138.</p> <p>3. Courts. — Transfer of Cases. — Effect.—Jurisdiction.—Where a petition to transfer raised the question of the jurisdiction of the Appellate Court to review a case, the action of the court in transferring the case to the Supreme Court was an express holding that jurisdiction was in that court, and assumption of jurisdiction by the Supreme Court was at least an implied holding to the same effect, p. 138.</p> <p>4. Courts. — Supreme Court. — Jurisdiction.—Appeals from Interlocutory Orders. — Statute.—Under §1392d, cl. 16, Burns 1914, Acts 1907 p. 237, providing that appeals from interlocutory orders for the delivery of the possession of real property or the sale thereof shall be taken directly to the Supreme Court, the Supreme Court has exclusive jurisdiction in an appeal from an interlocutory order for the sale of a decedent’s x-eal estate on petition of the executors, p. 139.</p> <p>5. Appeal. — Parties. — Improper Designation. — Statute.—Under §1 of the act of 1917, Acts 1917 p. 523, providing that parties named in an appeal shall be properly before the court for all purposes, whether they are named as appellants, or appellees, and that the improper designation of parties shall not affect the jurisdiction of the court, the Appellate Court would he required, if it had jurisdiction .in an appeal, to set aside at order of dismissal, made because a party appellee had beeii named as an appellant, and decide the case on its merits." p. 140</p>

From St. Joseph Circuit Court; Walter A. Funk, Judge. Action by the Lake Michigan Water Company against the United States Fidelity and Guaranty Company and another. From a judgment for defendant named, the plaintiff appeals, and appellee files motion to dismiss the appeal.

<p>1. Master and Servant. — Workmen’s Compensation Act. — Construction. — Dependents. — Presumptions. — Under §38 of the Workmen’s Compensation Act, Acts 1915 p. 392, providing that a wife living with a husband at the time of his death, and a child under the age of eighteen living with a parent at the time of his or her death, there being no surviving parent, shall be conclusively presumed to be wholly dependent for support upon deceased, but in all other cases dependency shall be a question of fact, a wife or child or both may be conclusively presumed to be wholly dependent, or, on inquiry into the facts, may be found to be either wholly or partially dependent, and where the situation exists that gives rise to the presumption that the wife or child is wholly dependent, there can be no further inquiry, regardless of what the real facts are, but, in order that such situation may arise in favor of a wife, she must be living with her husband at the time of his death, and in order that such conclusive presumption may be indulged in favor of a child, it must be less than eighteen years of age, must be living with the parent at the time of his death, and there must be a surviving parent either conclusively presumed to be wholly dependent or found to be either wholly or partially dependent, p. 151.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Dependency. — Question of Fact and Law. — Appeal.—Questions of dependency, as the term is used in the Workmen’s Compensation Act (Acts 1915 p. 392), are, where no conclusive presumption of dependency arises under the act, mixed questions of law and fact, and it is the exclusive province of the Industrial Board’ to determine the facts and draw legitimate inferences therefrom and to determine in the first instance from the facts and inferences whether dependency exists, but the action of the board in the latter respect is reviewable by the Appellate Court when an appeal is taken under §61 of the act. p. 153.</p> <p>3. Master and Servant. — Workmen’s Compensation Act. — Dependency. — Burden of Proof. — In a proceedings under the Workman’s Compensation Act, Acts 1915 p. 392, by one seeking an award as a dependent, the burden is on the claimant to establish by evidence the facts showing dependency, p. 153.</p> <p>4. Master and Servant. — Workmen's, Compensation Act. — Dependent. — Generally, a dependent, within the meaning of workmen’s compensation acts, is one who looks to another for support, or is in fact dependent, or relies on another for the reasonable necessities of life, and in determining dependency the inquiry should not be confined to the question whether the family of the deceased workman could have supported life without any contributions from him, or whether such contributions were absolutely -necessary to the reasonable maintenance of the family, but rather the inquiry should include the question whether his contributions were looked to, depended and relied on, in whole or in part, by the family for means of reasonable support, p. 153. "</p> <p>5. Master and Servant. — Workmen’s Compensation Act. — Dependency. — Elements.—Among the elements that are indicative of a state of dependency, within the Workmen’s Compensation Act (Acts 1915 p. 392), are an obligation to support, the fact that contributions have been made to that end, that the claimant in any ease is shown to have relied on such contributions and their continuing, and the existence of some reasonable grounds as a basis for a probability of their continuance or a renewal thereof if interrupted, although it is not necessary to a state of dependency that all of such elements must exist, but, as a rule, subject to certain exceptions, the fact that contributions have been made is an essential element of dependency within the meaning of the act. p. 154.</p> <p>6. Master and Servant. — Workmen’s Compensation Act. — Dependency. — Evidence.—Sufficiency.—In a proceedings for an award for the death of a servant under the Workmen’s Compensation Acf, Acts 1915 p. 392, evidence, when aided by proper deductions, showing that decedent’s widow and children did not live with him for a number of years immediately preceding his death, that deceased during such time made contributions to his family, irregular both as to intervals and amounts, and that the wife was furnishing the substantial means of support, is not sufficient to establish, as a matter of law, that either the wife or the children were wholly dependent on decedent for support, p. 154.</p> <p>7. Master and Servant. — Workmen’s Compensation Act. — Partial Dependency. — Evidence.—Question for Industrial Board.— In a proceeding for an award for the death of a servant under the Workmen’s Compensation Act, Acts 1915 p. 392, where the wife had attempted to require her husband to discharge his legal obligation to support his family, which lived apart from him but had been only partially successful, her efforts to some extent indicate a reliance on contributions from him to aid her in supporting herself and children, and where for a number of years immediately preceding the husband’s death his contributions to the family’s maintenance were irregular both as to intervals and amounts, and the wife was furnishing the substantial means of support, such facts are not conclusive that a state of dependency did not exist and are sufficient to present to the Industrial Board for determination as a question of fact whether the wife, or children, or both, were partial dependents, p. 155.</p> <p>8. Husband and Wipe. — Support of Family. — Husband’s Duty. —A husband and father is under both a common-law and a statutory obligation to support his wife and children, p. 156.</p> <p>9. Master and Servant. — Workmen’s Compensation Act. — Determination of Compensation to Partial Dependent. — Under the Workmen’s Compensation Act, Acts 1915 p. 392, in determining the amount of compensation to be paid a partial dependent, the inquiry respecting the amount contributed by the deceased employe to such partial dependent is not limited to the time of the injury, but the entire period during which contributions were made may be considered, pp. 156, 157.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Action by Effie Hunter, administratrix of the estate of Joseph Hunter, deceased, against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Master and Servant. — Workmen’s Compensation Act.- — Dependency of Father on Minor Son. — Question of Fact. — As §38 of the Workmen’s Compensation Act, Acts 1915 p. 392, does not include the father of a minor son in any of the classes in which dependency is conclusively presumed, the question of his dependency on the earnings of the son, and the degree thereof, must be determined in accordance with the existing fact at the time of the injury, p. 177.</p> <p>2. Master and Servant. — Workmen’s Compensation Acts. — Dependency of Parent. — Want or distress need not exist before a condition of dependency arises, and a parent or his family need not reduce their expense of living below a reasonable standard in order to escape dependency and thereby absolve an employer from the payment of compensation for which he would otherwise be liable, p. 177.</p> <p>3. Master and¡ Servant. — Workmen’s Compensation Act. — Dependent Parent. — The word “dependent,” as used in the Workmen’s Compensation Act, Acts 1915 p. 392, should be given a meaning broad enough to include the reasonable needs of a parent in the proper support of himself and dependent family, p. 178.</p> <p>4. Master and Servant. — Workmen’s Compensation Act. — Dependency of Father. — Evidence.—Where weekly contributions from his wages made by a minor son to his father, who earned $15 weekly, were used and required for the support of the family, consisting of the father, mother, and three minor children, and the father owned no property and had no income with which to maintain the family except his own wages and the contributions of the son, such facts are sufficient to warrant the Industrial Board in drawing the inference that the father was dependent on the son within the meaning of the Workmen’s Compensation Act, Acts 1915 p. 392. p. 178.</p> <p>5. Master and Servant. — Workmen’s Compensation Act. — Partial Dependency of Parent. — Where a father, earning $15 weekly, supported' his family from a fund composed of his wages and those of a minor son, who earned $12.75 a week, the father was only partially dependent on the son within the meaning of the Workmen’s Compensation’ Act, Acts 1915 p. 392. p. 179.</p> <p>6. Master and Servant. — Workmen’s Compensation Act. — Dependent Parert. — Amount of Compensation. — Cost of Maintenance of Contributing Child. — Where a father supported his entire family out of a fund composed of the earnings of himself and a minor son, so that the father was a partial dependent, the cost of the maintenance of the contributing son should not be considered in determining the amount of compensation to which the dependent father is entitled under the Workmen’s Compensation Act, Acts 1915 p. 392, for the son’s death, p. 179.</p> <p>7. Master and Servant. — Workmen’s Compensation Act. — Partially Dependent Parent. — Amount of Compensation. — Under §37 of the Workmen’s Compensation Act, Acts 1915 p. 392, providing that the compensation of a partial dependent shall be in the same proportion to the weekly compensation for persons wholly dependent as the amount contributed by the deceased employe to such partial dependent hears to his annual earnings at the time of his injury, where a father, partially dependent on a minor son, received «all his son’s earnings, there is no difference between the amounts of compensation that a total dependent and a partial dependent are entitled to receive under the act. p. 181.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Haughty Buford and another against Kingan and Company, Limited. From an award for applicants, the employer - appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Dora Phillips against the Bloomington-Bedford Stone Company. From an award for applicant, the defendant appeals.

From Marion Circuit Court (21,606); Charles Bem~ ster, Judge. Action by Charles B. Welliver, receiver of the Indiana State Fire Insurance Company, against Alvin T. Coate and others. From a judgment for defendant, the plaintiff appeals.

<p>From Benton Circuit Court; Burton B. Berry, Judge.</p> <p>Action by Etta Graham against the Supreme Lodge Knights of Pythias. From a judgment for plaintiff, the defendant appeals.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by Sarah Dean, administratrix of the estate of William H. Dean, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, the plaintiff appeals.

<p>1. Carriers. — Injuries to Persons at Station. — Duty of Company. — Where an interurban railroad, by its manner of operating its road, extended an invitation to all persons to station themselves near the tracks at a highway crossing, within a reasonable time before the arrival of a local car, if they desired to embark thereon as passengers, and to signal such car to stop by burning a match or scrap of paper, the road was under a duty to exercise reasonable care, in the operation of cars at such point, for the safety of one at the crossing who had given the customary signal to stop the car and was waiting to embark thereon, p. 239.</p> <p>2. Negligence. — Duty to Use Due Carre. — Where a duty to exercise reasonable care is shown to exist, a failure to exercise such care is negligence, p. 241.</p> <p>3. Railroads. — Injuries to Persons at Station. — Complaint.— Negligence. — In an action against a railroad for wrongful death, where the averments of the complaint disclosed the existence of a relation between the road and decedent imposing a duty on defendant to exercise reasonable care, a general charge of negligence is sufficient as against demurrer, p. 241.</p> <p>4. Railroads. — Injuries to Persons at Station. — Action.—Complaint.- — Sufficiency.—Contributory Negligence. — In an action against a railroad for wrongful death, where the complaint contained general averments that decedent was in the exercise of due care and was free from negligence, and the facts specifically averred do not affirmatively show as a matter of law that decedent was guilty of contributory negligence, the complaint is sufficient as against the objection that it affirmatively shows that decedent was guilty of negligence contributing to her death, p. 241.</p> <p>5. Railroads. — Injuries to Persons at Station. — Answers to Interrogatories. — Contributory Negligence. — In an action against an interurban railroad company for wrongful death, the action being predicated on defendant’s failure to stop its car on signal at a certain highway crossing in accordance with an established custom, findings by the jury in answers to interrogatories that defendant had been in the custom of stopping its local cars, when signaled, at a certain highway crossing to take on passengers, that plaintiff’s wife Was killed on the tracks by a limited car running on the schedule of a local car, the limited, when signaled by decedent’s husband, having given two short blasts of the whistle, the usual response, and that decedent tried to cross the track ahead of the approaching car, did not affirmatively show decedent guilty of contributory negligence in attempting to cross the tracks in front of the car, the headlight of which blinded her so that she was unable to comprehend the situation, for the purpose of getting to the right side of the track to board the supposed local car, and such findings are not inconsistent with the general verdict for plaintiff, p. 242.</p> <p>6. Railroads. — Injuries to Persons at Station. — Action.—Contributory Negligence. — Question for Jury. — In an action against an interurban railroad for death at a highway crossing, where the evidence showed that it was the road’s custom to stop its local car for passengers at a highway crossing when signaled to do so, that decedent’s husband signaled an approaching limited car running on the schedule of the local car, that the motorman gave two short blasts of the whistle, the usual response to a signal to stop, and that decedent, blinded by the car’s powerful headlight and hindered thereby from comprehending the situation, was killed while attempting to cross the tracks ahead of the supposed local car in order to get to the proper place to board the same, the question of decedent’s contributory negligence was for the jury. p. 244.</p> <p>7. Railroads. — Injuries to Persons at Station. — Action.—Evidence. — Admissibility.—Prejudicial Error. — In an action against an interurban railroad for wrongful death, where it was charged that decedent was killed on a crossing by failure of defendant to stop its car upon the giving of the customary signal in answer to which the motorman had made the usual response, two short blasts of the whistle, the admission of testimony by a locomotive engineer that, upon such a signal as was given, proper railroading requires that the whistle be sounded two short blasts and that the locomotive be brought to a stop, was prejudicial error, since it was given by a witness not qualified as an expert in the operation of electric interurban cars and the evidence had a tendency to confuse the jury, because foreign to the theory of the complaint, which did not predicate negligence on the mere fact that the car failed to stop on being signaled, but upon the fact that defendant’s motorman, having given the customary response to the signal to stop, thereby led decedent to believe that the car would slow down and stop at the crossing, pp. 246, 247, 248.</p> <p>8. Appeal. — Harmless Error. — Admission of Evidence. — If evidence is clearly immaterial, its erroneous admission is generally held to be harmless, p. 246.</p> <p>9. Appeal. — Review.—Evidence. — Erroneous Admission. — Presumptions. — If testimony is directed to some issue, or to some material question involved in the controversy, and its nature is such that it may have exercised some influence in determining such issue or question, its erroneous admission will be presumed to have been prejudicial, unless it otherwise affirmatively appears from the record, p. '247.</p> <p>10. Evidence. — Opinion Evidence. — Operation of Electric Can.— Competency of Witness. — Experience in operating a locomotive engine does not necessarily or even presumptively qualify a person to operate an interurban electric car, or to speak as an expert with reference to what good railroading requires in operating such cars. p. 248.</p> <p>11. Railroads. — Injuries to Persons at Station. — Action.—Signals from Car. — Evidence. — Admissibility. — In an action against an interurban railroad for wrongful death, plaintiff’s action being predicated on defendant’s failure to stop its car on signal on a highway crossing, where plaintiff introduced evidence that it was the custom of motormen on local cars to give two short blasts of the whistle when they intended to stop in response to signal, it was permissible for defendant to introduce evidence that proper operation required all cars to give such a response to signal, but that only local cars stopped, the response merely indicating that the signal had been observed, as such testimony was pertinent to the question whether deceased was justified in believing that an approaching car, which struck decedent as she was attempting to cross the track, was going to stop. p. 250.</p> <p>12. Appeal. — Briefs.—Sufficiency.—Specification of Errors. — Although points in appellant’s brief are somewhat general, it is the duty of the court on appeal to give them consideration where there is no difficulty in ascertaining the ruling to which they are directed, p. 255.</p>

<p>From Marion Superior Court (89,689); Joseph Collier, Judge.</p> <p>Action by William T. Richart against Frederick L. Carter and another. From a judgment for plaintiff, the defendants appeal.</p>

From Miami Circuit Court; Joseph N. Tillett, Judge. Action by William H. Coughlin, administrator of the estate of Leo Coughlin, deceased, against the Indiana Manufacturing Company, Elbert W. Shirk, receiver. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal. — Questions Reviewable. — Conclusions of Law. — Ruling on Motion for Venire de Novo. — Where the record discloses no special finding of facts, conclusions of law, or motion for a venire de novo, error assigned as to the conclusions of law and in overruling a motion for a venire de novo presents no question for review, p. 288.</p> <p>2. Appeal. — Questions Reviewable. — Ruling on Demurrer. — Statute. — Since the enactment of §348 Burns 1914, Acts 1911 p. 415, an assignment of error that the complaint does not state facts sufficient to constitute a cause of action presents no question for review, p. 288.</p> <p>3. Appeal. — Questions Reviewable. — Ruling on Motion for New Trial. — Grounds of a motion for a new'trial that the verdict is contrary to law, and that the jury erred in the assessment of the amount of recovery, are not available on appeal where the record contains no bill of exceptions, p. 288.</p> <p>4. Appeal. — Review. — Judgment, — Presumption. — Every presumption is indulged in favor of the judgment of the trial court, p. 288.</p> <p>5. Appeal. — Complaint. — Amendments Deemed Made. — In an action on a replevin bond, the mere fact, as shown by the record on appeal, that the penalty stated in the bond was less than the verdict for plaintiff is not of controlling influence, as it will be presumed on appeal that the complaint and exhibit were amended below to correspond with the proof, p. 288.</p> <p>6. New Trial. — Grounds.—Error in Amount of Recovery. — The mere fact that a verdict is for an amount greater than asked in the complaint is not available as a ground for new trial, if in fact the evidence entitles plaintiff to the amount found by the verdict, p. 289.</p> <p>7. Appeal. — Presumptions Favoring Judgment. — Omissions from Record. — Where the evidence is not in the record, it must be assumed on appeal that the judgment below is in accordance with the evidence, so that grounds of a motion for a new trial that the verdict is contrary to law and that the jury erred in the assessment of the amount of recovery, present no question for review, p. 289.</p>

From Hendricks Circuit Court; Thad S. Adams, Special Judge. Controversy between John C. Chitwood and Susan L. Garner originating in appeal to the circuit court from a survey of farm land. From the judgment rendered approving the survey, the former appeals.

<p>Master and Servant. — Workmen’s Compensation Act. — Payment of Compensation in Lump Sum. — Power of Board to Approve.— Under the Workmen’s Compensation Act, Acts 1915 p. 392, the Industrial Board has no power to approve a compensation agreement between the widow and employer awarding the widow a lump sum in place of the award provided in §37 of the act, which authorizes the payment of burial expenses and fifty-five per cent, of decedent’s average weekly wages for a period of 300 weeks, where the facts of the case do not show it to be an unusual one within the terms of §43 of the act, providing for the payment of a lump sum, on the approval of the Industrial Board, in unusual cases where weekly payments have been made for not less than twenty-six weeks.</p>

<p>Master and Servant. — Workmen’s Compensation Act. — Construction. — Partial Disability. — Compensation. — Under §30 of the Workmen’s Compensation Act, Acts 1915 p. 392, providing that where injury causes the employe partial disability for work, he shall be paid during such disability a weekly compensation equal to one-half of the difference between his average weekly wages and the weekly wages at which he is actually employed after the injury, for a period not to exceed 300 weeks, and §40, providing that “in computing compensation under the foregoing sections, the average weekly wages of an employe shall be considered not to be more than twenty-four dollars, nor less than ten dollars,” where a servant, when injured, earned an average weekly wage of $56, and during a period of partial, disability subsequent to the injury earned an average weekly wage of $25, he could be awarded additional compensation, since the act does not authorize payment of compensation for the period of partial disability when the injured employe’s average weekly wages during such time exceeds twenty-four dollars.</p>

<p>From Marion Superior Court (91,960); Joseph Collier, Judge.</p> <p>Action by Kingan and Company against the Maryland Casualty Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Rules of Court. — Appellant’s brief is sufficient as against a motion to dismiss on the ground that it does not comply with Rule 22 of the Appellate Court by properly giving the page and line of the matter referred to in the record, where the brief purports to indicate the page and line of the transcript where the record set out or referred to will be found, and appellees have not pointed out wherein appellants have failed in this respect, p. 325.</p> <p>2. Appeal. — Briefs.—Sufficiency.—Rules of Court. — An appeal will not be dismissed on the ground that appellant’s briefs fail to comply with Rule 25 of the Appellate Court, requiring briefs to be printed or typewritten on paper of a specified size, leaving a margin of at least one inch on the left side, where the briefs, except the covers, are printed, although the pages have little or no margins, the briefs so present at least some of the questions attempted to be raised that they can be determined without reference to the record, p. 326.</p> <p>3. Appeal. — Briefs.—Sufficiency.—Motion to Dismiss. — Whenever briefs are sufficient under the rules of court to present any question, a motion to dismiss the appeal because of the failure of the brief to comply with the rules will be overruled, and the questions presented determined, p. 326.</p> <p>4. Appeal. — Assignment of Error. — Refusal to Strike out Parts of Deposition. — An assignment of error predicated-on the overruling of a motion to strike out certain parts of a deposition presents no question for review, p. 326.</p> <p>5. Appeal. — Review. — Examination of Witnesses. — Refusal to Strike Out Parts of Deposition. — In an action to recover damages for the alleged wrongful removal from plaintiffs’ land of certain buildings erected thereon under a lease and subsequently sold by the lessee to defendants, where the lessee, when asked by questions in his deposition whether he had been engaged in business in a certain city and if he knew the parties to the suit and whether plaintiffs claimed any right to the buildings priqr to their sale, included in his answers statements to the effect that he had a right to sell the buildings, because he only rented the land for the year, that he agreed to, and did, pay one of the plaintiffs thirty dollars and also fifteen dollars to said plaintiff’s wife, who claimed an interest in the land, that he just rented the ground and could do as he pleased with it, that it was customary for him in conducting his business to move his buildings from place to place, that he had a right to sell the buildings to defendants and they had a right to move them, and that it was the understanding between plaintiffs and himself that under the contract he could remove the structures at his pleasure, or allow a purchaser to do so, such statements were not responsive to the questions and involved conclusions of the witness, and it was reversible error, in view of the issues, for the trial court to overrule a motion to strike such answers from the deposition, pp. 328, 330.</p> <p>6. Evidence. — Opinion Evidence. — Construction of Contracts.— In an action to recover damages for the alleged wrongful removal of certain buildings from plaintiffs’ land, where the question at issue and the ultimate fact to be determined by the jury was whether the lessee, who erected the structures and subsequently sold them to defendants, agreed to give the plaintiffs the buildings in controversy as a part consideration for use of the land, the lessee’s testimony that he had a right to sell the buildings or remove them and that thiá was the understanding between himself and the plaintiffs was incompetent-as the expression of an opinion concerning the construction of the lease, p. 328.</p> <p>7. Evidence. — Depositions. — Conclusions. — Striking Out. — The rule making incompetent opinions or legal conclusions applies as well to evidence presented by deposition as to the examination of a witness before the jury. p. 329.</p> <p>8. Appeal. — Review. — Evidence. — Admissibility. — Refusal to Suppress Deposition. — In an action to recover damages for the alleged wrongful removal from plaintiffs’ land of buildings erected thereon under a lease, where plaintiffs testified that they had an agreement with the lessee that they should have the buildings as a part of the rental consideration, and the only contradictory evidence consisted of improper and incompetent answers given by the lessee in his deposition, the trial court’s denial of a motion to strike out such answers was harmful to plaintiffs, p. 329.</p> <p>9. Appeal. — Questions Reviewable. — Admission of Evidence.— Briefs.- — Appellants’ objection to the admission of evidence is not available on appeal, where their briefs do not refer specifically to any evidence, nor disclose that the objection made on appeal was made at the trial, p. 329.</p> <p>10. Appeal. — Harmless Error. — Admission of Evidence. — Cure ' by Instructions. — In an action to recover damages for the alleged wrongful removal of buildings erected by a lessee on plaintiffs’ land, which adjoined a railroad right of way, error, if any, in the admission of testimony that the buildings in controversy were partly on plaintiffs’ land and partly on the railroad’s right of way was harmless, where the court instructed the jury that, if the lessee agreed with the plaintiffs to leave the buildings on their premises as their property, it should find for plaintiffs, p. 329.</p>

From Hendricks Circuit Court; George W. Brill, Judge. Action by the Indiana Reduction Company against the Insurance Company of the State of Pennsylvania and another. From a judgment for plaintiff, the defendants appeal.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Charles Lewis against the Columbia School Supply Company. From an award for applicant, the defendant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the.Workmen’s Compensation Act by Alice Meehan against the Edward Valve and Manufacturing Company. From a judgment denying compensation, the applicant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Mary Riehl against Oscar C. Waterman and others. From an award for applicant, the defendants appeal.

<p>1. Master and Servant. — Injuries to Servant. — Workmen’s Compensation Act. — Medical Expenses. — Employer’s Liability. —Under §25 of the Workmen’s Compensation Act, Acts 1915 p. 392, requiring an employer to furnish a physician for an injured employe only during “the thirty days after an injury,” where an employe received no apparent injury at the time of an accident, but after the expiration of' the thirty-day period an injury developed from such accident which required medical attention, a physician who was called to render the necessary medical services was entitled to have his claim allowed for services rendered within thirty days after the development of the injury, since under the act the date of the injury and not of the accident fixes the time when the employer’s liability for physician’s services begins, p. 351.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Findings by Industrial Board. — The Industrial Board’s determination of a question of fact is conclusive on appeal, where there is any evidence to support it. p. 355.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Amberson Lewis against the United Paperboard Company. From an award for applicant, the defendant appeals.

<p>1. Adverse Possession. — Elements.—Burden of Proof. — To support a claim of title by adverse possession, the possession must be hostile under a claim of right, actual, open and notorious, exclusive and continuous, and, in an action to quiet title predicating ownership on adverse possession, each of the elements necessary to such possession is an independent ultimate fact, the burden of showing which is on the party asserting such a title, p. 368.</p> <p>2. • Tkial. — Special Findings. — Failure to Find. — Effect.—In an action to quiet title predicating ownership on adverse possession, the absence of a finding of any one of the elements of possession necessary to title by adverse possession is fatal to the cause of action, since the failure to find will be construed as an adverse finding, p. 368.</p> <p>3. Appeal. — Review.—Findings of Fact. — Evidence.—Sufficiency. Where there is evidence to support the trial court’s findings of • fact, they will not be disturbed on appeal, p. 368.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Mabel Coleman and others against the Indianapolis Abattoir Company. From an award for applicants, the defendant appeals.

<p>1. Appeal. — Presenting Questions for Revieio. — Objections to Evidence. — The correctness of rulings on objections to the admission of evidence cannot be determined in the absence of the evidence from the record, p. 374.</p> <p>2. Appeal. — Presenting Questions for Review. — Misconduct of Counsel. — Presumptions. — Alleged misconduct of counsel in making statements outside the evidence in the argument to the jury is not available on appeal in the absence of the evidence from the record, and in such case it will be presumed in support of the trial court’s ruling that the argument was confined to the evidence, and that appellant’s objection was properly overruled, especially where the special bill of exceptions fails to disclose the nature of such objection, p. 374.</p> <p>3. Appeal. — Questions Reviewable. — Objections to Instructions. —Record.—No question is presented for review as to alleged error in the giving and refusal of instructions where the instructions and any exceptions thereto are not made a part of the record either by a bill of exceptions or by order of the court, and the record does not show that appellant has complied with either §559 Burns 1914, §534 R. S. 1881, providing for the submission of special instructions before argument, or §561 Burns 1914, Acts 1907 p. 652, relating to the practice in giving instructions and saving exceptions to the giving and refusal thereof, p. 375.</p>

<p>1. Appeal. — Presenting Questions for Review. — Ruling on Demurrer. — Motion for New Trial. — Where the complaint was in a single paragraph, and plaintiff elected to stand thereon after an adverse ruling on demurrer, it was unnecessary for him to move for a new trial, and the ruling on the motion therefor presents no question for review on appeal, p. 378.</p> <p>2. Appeal. — Review.—Ruling on Demurrer. — Scope of Revieiv.— A ruling of the trial court sustaining a demurrer to a complaint will, if correct, be sustained on appeal, regardless of the correctness of the grounds set forth in the memorandum accompanying the demurrer, p. 378.</p> <p>3. Injunction. — Complaint.-—-Right to Relief. — One demanding the aid of a court must have some interest in the matter or controversy which he seeks to have litigated and determined, and, when the appeal is to equity for injunctive relief, facts and circumstances must be alleged showing more than a mere technical and inconsequential wrong or irregularity in the proceedings sought to be enjoined, p. 378.</p> <p>4. Injunction. — Right to Relief. — Remedy at Law. — Statute.— Under §9511 Burns 1914, Acts 1911 p. 185, providing that under the direction of the board of commissioners the county surveyor shall have charge of all county surveying and engineering work, including the preparation of plans and specifications for, and general supervision and construction of, all bridges, provided, that if the county surveyor is not a competent civil engineer, then the board shall appoint one to supervise the work ordered, but in such case the county surveyor shall have the right to a hearing as to his competency before the judge of the circuit or superior court of the county, the board’s appointment of another than the county surveyor to prepare plans and specifications for a bridge and to supervise its construction was, in effect, a finding that the surveyor was incompetent, and his only remedy, in the absence of fraud or corruption, was a hearing as provided by the statute, and he could not enjoin the construction of the bridge on the ground that the proceedings-were rendered void by the employment of another to act as engineer, pp. 379,381.</p> <p>5. Bridges. — Construction.—Discretion of Board, of Commissioners. — Under §§3821, 7687 Burns 1914, §§2885, 5130 R. S. 1881, authorizing the building or repairing of bridges whenever in the opinion of the board of county commissioners such work is required for the convenience of the public, whether a bridge on a county highway shall be built is within the discretion of the board, p. 381.</p> <p>6. Counties. — Appointment of County Engineer. — Powers of Board, of County Commissioners. — Statute.—Section 9511 Burns 1914, Acts 1911 p. 185, providing that if the county surveyor is not a competent civil engineer, the board of commissioners may appoint another to have charge of certain engineering work, but the surveyor may have a hearing as to his competency before the county judge, does not require a formal hearing or finding by the board as to the-competency of the surveyor, and the finding of the board is conclusive unless set aside after the hearing provided by the statute, p. 382.</p>

From Marion Circuit Court (23,557); Louis B. Ewbwrik, Judge. Action by the Indianapolis Mortar and Fuel Company and others against Fred Cline and others. From the judgment rendered, the defendants appeal.

<p>'. Trusts. — Creation.—The word .“trust” is frequently employed to indicate duties, relations and responsibilities which are not strictly and technically trusts, p. 396.</p> <p>2. Trusts. — Express Trust. — Creation. — The term “express trust” signifies a trust created by the direct and positive acts of the parties.as evidenced by some deed, will, or other instrument, wherein the language employed either expressly or by plain implication evinces an intention to create a trust, p. 396.</p> <p>3. Trusts. — Implied Trusts. — Creation. — Implied trusts are those which, without being expressed, are deducible from the relation of the parties and the nature of the transaction as matters of intent, or which by operation of law are deduced from transactions of the parties as a matter of equity independent of the particular intention of the parties, p. 397.</p> <p>4. Trusts. — Creation.—Intent.—The creation of a trust does not depend upon the use of any particular language or form of expression, but upon the meaning of the language employed when fairly construed in the light of the circumstances, relation, and situation of the parties, and, if the intent to create a trust is clear and the essential elements may be fairly deduced from the language used, the trust will not fail for the lack of more adequate expression, p. 397.</p> <p>5. Trusts. — Express Trusts. — Creation.—Requisites.—When the settlor, the trustee, the cestui que trust, the property transferred to the trustee, and the object to be attained, all appear with reasonable certainty from the writing, the requirements of the law are satisfied and an express trust is thereby established which will be recognized and enforced, p. 397.</p> <p>6. Trusts. — Express Trusts. — Creation.—Deed.—A deed for land from a mother to her son whereby he agreed to use the rentals of the property to support the family and to educate the girls, and, if finally sold, to divide the price received therefor equally among the then living heirs or members of the family if of age, otherwise to hold such shares until the minors attained their majority, creates an express trust in the land conveyed, for the purpose designated, p. 398.</p> <p>7. Trusts. — Express Trusts. — Trustee. — Powers. — Violation of Trust. — Where a duly recorded deed of land from a mother to son stipulated that he was to use the rentals of the property to support the family and to educate the girls and, if sold, divide the money received equally among the members of the family, it was in contravention of the trust created by such conveyance for the son to convey the property as an individual and not as trustee, and his deed was void and the grantee did not thereby acquire any title as against the cestui que trusts, in view of §4016 Burns 1914, §2973 R. S. 1881, providing that every sale, conveyance, or other act of a trustee, in contravention of a trust, shall be void, and §4014 Burns 1914, §2971 R. S. 1881, providing that the record of a trust shall be deemed actual notice thereof to every person claiming under a conveyance made after such recording, p. 399,400.</p> <p>8. Trustees. — Powers of Trustee. — Barter or Exchange of Trust Property. — Power to sell trust property does not authorize a trustee to barter or exchange it for other property, and such power can only be exercised in conformity with the requirements of the instrument by which the trust is created and in furtherance of the ends to be attained by the creation of the trust, p. 399.</p> <p>9. Trusts. — Express Trusts. — Validity.—Interest of Trustee.— The fact that the trustee named in a deed creating a trust is also given a personal interest in the real estate will not defeat the trust, p. 400.</p>

<p>From Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by Finis E. Crawford against the Peacock Coal and Mining Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Statutes. — Construction.—Scope and Purpose. — In construing an act of the legislature the courts may take into consideration the general scope and purpose of the act and the condition that prevailed at the time of its passage, p. 410.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Construction. — The Workmen’s Compensation Act, Acts 1915 p. 392. includes. employes' in all industrial pursuits, except those expressly exempted by §9 of the act. p. 411.</p> <p>3. Master and Servant. — Workmen’s Compensation Act. — Construction. — Scope.—Farm or Agricultural Laborers. — One employed as a separator man on a threshing outfit that travels from farm to farm and is owned and operated as a business is not a farm or agricultural laborer within the meaning of §9 of the Employers’ Liability Act, Acts 1915 p. 392, which exempts such laborers from the benefits of the act. p. 411.</p>

<p>From Martin Circuit Court; James W. Ogdon, Judge.</p> <p>Action by Ott Workman against Elvett B. Rhodes. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Principal and Surety. — Suretyship.—Nature of Obligation. —A surety is one who becomes bound simply for the accommodation of his principal and- receives no consideration for the favor he bestows, the test of suretyship being the receipt of the consideration, p. 422.</p> <p>2. Husband and Wife. — Loans.—Wife as Principal. — In an action against husband and wife to recover on a promissory note and to foreclose a mortgage, if the money was paid to her and her husband, and was use’d by them to purchase real estate held by them jointly as tenants by the entireties, she is not a surety but a principal, p.422.</p> <p>3. Husband and Wife. — Liability on Notes. — Judgment.—Where a husband and wife received the consideration for their promissory note jointly, and applied it on the purchase price of realty held by them by the entireties, the lender is entitled, in an action on the note and to foreclose a mortgage, to a judgment against both husband and wife and to a decree of foreclosure against the real estate, p. 422.</p> <p>4. Pleading. — General Denial, — Evidence Admissible. — In an action to recover on a promissory note, all the facts pleaded in plaintiff’s reply tending to contradict defendant’s claim that she is surety for her husband were admissible under the general denial, p. 423.</p> <p>5. Appeal. — Review. — Ruling on Demurrer. — Where a paragraph of reply, to which a demurrer was overruled, pleaded facts admissible under the general denial, and also invoked the principle of estoppel, and the theory of the court’s general finding for plaintiff cannot be ascertained, the court on appeal must determine the sufficiency of the reply on the theory of estoppel before it can say whether the ruling on defendant’s demurrer was harmless, p. 423.</p> <p>6. Estoppel. — Pleading Specially. — Matters in estoppel must be pleaded specially, p.423.</p> <p>7. Husband and Wife. — Notes.—Wife as Surety. — Liability.—■ Generally, an obligor cannot plead suretyship as against the obligee unless the latter had notice of the fact of suretyship at the time of entering into the contract, but where the obligor is a married woman, one who contemplates loaning money to her is bound to make inquiry concerning the facts bearing on the question of suretyship, p. 423.-</p> <p>8. Husband and Wife. — Loan to Wife. — Suretyship.—Duty of Obligee to Make Inquiry. — Where one contemplating loaning money to a married woman makes due inquiry, in good faith, to ascertain whether the money is to be for her use and benefit, he may rely on her representations that she is not a surety, p. 424.</p> <p>9. Husband and Wife. — Loans to Wife. — Statute.—Scope and Applicability. — Section 7856 Burns 1914, Acts 1903 p. 394, providing that a married woman who executes and delivers her promissory note or other evidence of indebtedness for the purpose of securing a loan, and states under oath that the money is to be for her own separate use or the betterment of her property or separate business, shall not be permitted thereafter . to claim that such loan was made for the use and benefit of any person other than herself, has no application to transactions wherein the proceeds of a loan to a married worn an are not paid in cash, or by check or draft payable to her order, p. 425.</p> <p>10. Husband and Wife. — Loan to Wife. — Statute.—Construction. — Section 7856 Burns 1914, Acts 1903 p. 394, providing that when a married woman shall borrow money on her note and the proceeds of the loan shall be paid to her in cash, or by check or draft payable to her order, and she makes affidavit that the money is for her own use, she shall not be permitted to thereafter claim that the loan was made for the use and benefit of any person other than herself, is, ydthin its scope, merely declaratory of the common law, and does not abrogate the prior statute (§7853 Burns 1914, §5117 R. S. 1881), providing that a married woman shall be bound by an estoppel in pais like any other person, p.425.</p> <p>11. Husband and Wife. — Loan to Both. — Wife’s Liability.— Wife’s Representations. — Estoppel.—Where a married woman, for the purpose of inducing another to grant her a loan, makes representations in an affidavit to the effect that the money is for her own use and benefit and that she is not a surety, and her representations are acted upon in good faith, she is estopped thereafter from setting up that she is surety and therefore not liable, even though the transaction does not come within the provisions of §7856 Burns 1-914, Acts 1903 p. 394, relating to loans to married women, p.425.</p>

<p>From the Industrial Board of Indiana.</p> <p>Proceedings under the Workmen’s Compensation Act in the matter of one- Denton and one Good. Certified questions of law by the Industrial Board.</p>

From Vanderburgh Circuit Court; Edwin Taylor, Special Judge. Petition by Edward J. Hayward for the distribution of the estate of Sarah M. Drew, deceased, opposed by Charles W. Hayward, administrator, and others. From the judgment rendered, the petitioner appeals.

From Madison Circuit Court; Willis S. Ellis, Special Judge. Action by the State of Indiana, on the relation of Anna Smith, against Earl Smith and others. From a judgment for defendants, the relator appeals.

<p>From DeKalb Circuit Court; Dan M. Link, Judge.</p> <p>Action by Anthony D. Schweitzer against Ida A. Boren. From a judgment for plaintiff, the defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Ida M. Loper against the Bimel Spoke and Wheel Company. From an award for applicant, the defendant appeals.

<p>1. Statutes. — Construction.—A statute is to be construed as a whole and that construction adopted which will carry out the intent of the legislature, p. 491.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Corustruction. — Loss of Fingers. — Award.—Section 31 of the Workmen’s Compensation Act, Acts 1915 p. 392, prescribing a schedule of compensation for the loss of a finger, thumb and other specific injuries, and providing that in all other cases of permanent partial disability compensation shall be paid in the amount determined by the Industrial Board, not to exceed fifty-five per cent, of the average weekly wages for 200 weeks, was intended to apply to all cases of permanent partial disability and is mandatory as to the injuries specified, but where an employe in one accident loses two or more fingers the amount of compensation will not be determined by multiplying the allowance for one finger by the number lost, since otherwise compensation for the loss of a thumb and four fingers could exceed that for a whole hand, a result not intended by the legislature, but in such a case the award will be fixed by the board under the general clause for a period not to exceed 200 weeks, except that an allowance for a less injury cannot, unless the circumstances are extraordinary, be made for more than provided in the specific schedule for a greater injury, p. 491.</p>

<p>1. Appeal. — Sufficiency of Evidence. — Scope of Review. — Presumptions. — On appeal every presumption lies in favor of the successful party, and in determining the sufficiency of the evidence to support the judgment, the court will look only to the evidence most favorable to appellee, p. 497.</p> <p>2. ■ Trover and Conversion. — Burden of Proof. — The vendor in an action for the conversion of certain remains of a dismantled building claimed to have been reserved orally, has the burden of proving his allegations by proper evidence, p. 497.</p> <p>3. Trover and Conversion. — Judgment.- — Evidence. — Sufficiency. — Where a vendor of realty, alleging that he orally reserved a dismantled building located thereon, sued the vendee for the conversion of loose and detached parts of the building and of parts remaining affixed to the land, but failed to prove the value of the loose materials, a judgment in his favor for such detached parts could not be sustained, p. 497.</p> <p>4. Frauds, Statute of. — Conveyance of Land. — Parol Reservcotion. — As between grantor and grantee, the grantor cannot enforce a parol reservation of any part of the realty conveyed in his deed. p. 498.</p> <p>5. Fixtures. — Nature of. — Manner of Annexation. — Adaptability. — Intention of Party Making Annexation. — In determining whether property annexed to the freehold is personal or real property, the real or constructive annexation of the article, its adaptability to the use of the land to which it is attached, and the intention of the party making the annexation, are considerations of controlling influence, p. 498.</p> <p>6. Fixtures. — Building..—Intention of Party Annexing to Land. —Where an abandoned glass factory was intended at the time of its erection as a permanent building, and its physical connection with the land remained the same as when originally built, it became á part of the realty, pp. 499, 500.</p> <p>7. Fixtures. — Between Vendor and Purchaser. — Separate Ownership of Building and Land. — -Knowledge of Purchaser.- — Annexation. — Where a vendor of realty had subsequently to acquiring his title, purchased from a third person an abandoned glass factory located on the land, the fact that-a separate ownership of building and land had existed and that part of the building had been removed by its former owner, was not controlling in determining, as between the vendor and his grantee, whether the building, which was annexed to the land, was real or personal property, especially where the grantee had no knowledge of the separate ownership, p. 499.</p> <p>8. Fixtures. — Permanent Building. — Pa/rol Reservation by Vendor. — Effect.—A parol agreement between grantor and grantee, prior to, or contemporaneous with, a conveyance, to the effect that a part of a permanent building which is attached to and part of the freehold conveyed by the grantor is personal property will not make such property personalty which may be reserved orally, notwithstanding the vendor’s written warranty of the freehold to the contrary, p. 500.</p>

<p>1. Appeal. — Briefs.—Waiver of Error. — Assignments of error are waived where appellant’s brief fails to present any points or propositions relating thereto, p. 507.</p> <p>2. Insurance. — Fire Insurance. — Action on Policy. — Necessary Parties. — Plaintiffs.—Statutes.—Under §§251, 263 Burns 1914, §§251, 262 R. S. 1881, all who join as plaintiffs must have an interest in the subject of the action, and be united in such interest, although the interest of the several parties joined need not be equal and may be severable, provided all have some common interest in the subject-matter of the action, and this rule applies in cases involving loss by fire where the owner of the property insured and the holder of an encumbrance thereon are joined in a suit against the insurance company on the policy, it appearing that the total loss exceeds the amount of the encumbrance, p. 510.</p> <p>3. Pleading.— Complaint.— Requisites.— Avoiding Defense.— Where the facts pleaded show a cause of action, and also a defense thereto, the complaint is insufficient unless it also contains other averments which avoid such defense, p. 511.</p> <p>4. Insurance.— Fire Insurance.— Indorsement of Policy.— Equitable Relief. — Where the holder of a fire insurance policy notified the insurer of the execution of a mortgage on the premises insured and obtained the insurer’s agreement to indorse the interests of the mortgagees upon the policy, as required by its provisions, on the insurer’s failure to comply with its agreement equity will regard that as done which in good conscience ought to have been done. - p. 512.</p> <p>5. Insurance. — Fir.e Policy. — Action.—Complaint.—Sufficiency. —Proof of Loss. — In an action on a policy of fire insurance, a complaint alleging that due proof of loss was furnished the insurer within thirty-nine days of the fire and within sixty days allowed by §4622g Burns 1914, Acts 1911 p. 525, and the provisions of the policy, sufficiently shows as against demurrer that the proof of loss was made as required by the policy and statute, p. 514.</p> <p>6. Insurance.— Fire Insurance.— Action on Policy.— Mortgagees. — Insurable Interest. — Where the interest of mortgagees in a house covered by a fire insurance policy, although not in fact indorsed on the policy, was regarded by equity as having been so indorsed, the mortgagees had an insurable interest in the insured premises and could maintain an action against the insurer to recover for loss by fire. p. 515.</p> <p>7. Insurance.— Fire Insurance Policy.— Construction.— Condition against Encumbrances. — A provision in a fire’ insurance policy that it shall be null and void if the property should become mortgaged or encumbered, relates to liens voluntarily placed on the property by the insured, and does not apply to judgments thereafter obtained against him or other liens created by law, such as a money judgment in a suit for divorce. p. 516.</p> <p>8. Appeal. — Answers to Interrogatories. — Scope of Review. — In reviewing the ruling on a motion for judgment on the jury’s answers to interrogatories the court on appeal can consider only the general verdict, the interrogatories and answers thereto, and the issues formed by the pleadings, p. 520.</p> <p>9. Appeal.-— Review.— Answers to Interrogatories.— General Verdict. — Presumptions.—In passing on a motion for judgment on the jury’s answers to interrogatories, every reasonable presumption is indulged in favor of the general verdict, and the answers will not overcome it if it can be sustained by any facts provable under the issues, p. 520.</p> <p>10. Insurance. — Fire Insurance.- — Contract.—Proof of Loss.— Necessity.- — -Statute.—Under §4622g Burns 1914, Acts 1911 p. 525, providing that, when a policy of fire insurance requires preliminary proofs of loss, they shall be furnished by the insured within sixty days, and, if objected to by the insurer as defective, they shall be returned, together with a specification of defects, within ten days, in which case the insured is allowed ten days to remedy the objections or make affidavit that he is. unable to do so, where the proofs of loss submitted by insured could not be made more definite and specific, and where before the expiration of the ten-day period following their return to insured with objections thereto, and before service of formal notice of' rescission, the insurer informed the insured that it denied all liability under the policy, and also stated that its position as regards liability could not be changed by any modification of proofs, insured was not required to make any further proofs, p. 520.</p> <p>11. Insurance. — Fire Insurance. — Proofs of Loss. — Sufficiency. —Statute.—Proofs of loss furnished within sixty days after the fire showing that the house insured was totally destroyed on a certain date, that the loss amounted to a sum named, that insured owned the property in fee simple, and that it was encumbered by a mortgage, the name of each mortgagee and the amount of their respective claims being set out, furnished a detailed schedule of the claim, stated the character and extent of the interest of other parties, gave full information as to the encumbrance, thereby substantially complying with the terms of the policy and the requirements of §4622g Burns 1914, Acts 1911 p. 525, as to proofs of loss. p. 520.</p> <p>12. Insurance. — Fire Insurance. — Proofs of Loss. — Objections. —Sufficiency.—Statute.—Section 4622g Burns 1914, Acts 1911 p. 525, providing that, when a fire insurance policy requires the making of a preliminary proof of loss, the insured shall furnish such proofs within sixty days, and, if the proofs furnished are objected to by the insurer 'as being defective, they shall be returned to insured with a specification of defects claimed, in which case he shall remedy the objections by amendment or make affidavit that he is unable to do so, contemplates a good-faith claim that the preliminary proofs are defective and a definite statement of omitted facts in the notice of defects in such proof, which requirements are not met by objections to proofs of loss that they are defective because failing to furnish a'detailed schedule of claim, to state if any other person had any interest in the property, to state knowledge and belief as to the time and origin of the fire, and because encumbrances had been placed on the property without the insurer’s knowledge and consent, where insured had given the insurer notice of the encumbrance on the property, and, within sixty days after a fire, had made proof that the house insured had been totally destroyed on a certain date, that .the damage amounted to a sum named, that he owned the property in fee simple encumbered by a mortgage, and stating the name of each mortgagee and. the amount of their respective claims, p. 521.</p> <p>13. Insurance. — Fire Insurance. — Insufficient Proofs of Loss.— Failure to Furnish Affidavit. — Under §4622g Burns 1914, Acts 1911 p. 525, relating to proofs of loss by fire, the failure of insured to submit an affidavit showing that proofs of loss returned as defective could not be made more specific, within ten days from the receipt of the insurer’s objection thereto, was the omission of only a technical detail, where the proofs furnished, fairly construed, supplied all the information called for, and were not subject to the objections made. p. 521.</p> <p>14. Insurance. — Fire Insurance.- — -Authority of Agent. — Scope. —Indorsement of Mortgage. — The written authority of the local agent of a fire insurance company empowering him to effect insurance, to countersign, issue, and renew policies, to consent in writing to their assignment and transfer, and to collect premiums, authorized him to consent to the encumbrance by mortgage of insured property, and to indorse the consent of the insurer thereto on the policy, so that the agent’s agreement to make such indorsement was binding on the insurer. • pp. 522, 523, 530.</p> <p>15. Insurance.— Fire Insurance.— Mortgage.— Indorsement of Policy. — The authorization of payment of a fire insurance policy to a mortgagee is a conditional assignment or transfer to the mortgagee of an interest in the policy, p. 523.</p> <p>16. Insurance. — Authority of Agent. — Construction.—-The written authority of an insurance agent is to be liberally and fairly construed, and a narrow and limited meaning is not to be given to it, unless the language employed clearly indicates that such was the intention of the parties, p. 523.</p> <p>17. Insurance. — Provisions of Policy. — Waiver.—A stipulation in an insurance policy that none of its provisions can be waived by an agent except by the consent of the company indorsed on the policy may itself be waived either by express agreement or by conduct, p. 525.</p> <p>18. Insurance. — Provision of Policy. — Waiver.—Indorsement of Mortgage. — Where a fire insurance company, through its authorized agent, obtained knowledge of a mortgage on insured premises and agreed to place on the policy the requisite clause to make it payable to the mortgagee, but failed for seven months to so indorse the policy, the insurer waived the condition requiring its consent to be indicated in writing upon the policy, p. 525.</p> <p>19. Evidence. — Inferences from Facts Proved. — Sufficiency.—It is not essential that facts be established by direct and positive testimony, and it is sufficient on appeal if from the facts and circumstances proved the jury may reasonably have inferred the ultimate and essential facts necessary to sustain the verdict. p. 526.</p> <p>20. Insurance. — Fire Insurance. — Policy.—Construction.—Where a policy of fire insurance was written by a local agent, and by special arrangement was kept in the agent’s office and was not seen by insured until after loss by fire, the contract was not to be construed with the same strictness generally obtaining in the interpretation of written instruments where the parties have like opportunity to be advised as to their provisions. p. 527.</p> <p>21. Insurance. — Fire Insurance Policy. — Presumption Against Forfeiture. — Where the premium has been paid on a policy of fire insurance and the risk has attached, every presumption will be indulged in favor of the good faith of the parties and to avoid a forfeiture, p. 527.</p> <p>22. Witnesses. — Corroboration.—Impeachment.—Where a witness has been impeached by the testimony of another witness that he had made statements out of court inconsistent with his testimony, it is proper to corroborate such witness by proving that he had also made previous, statements in harmony with his testimony at the trial, but the rule does not permit the introduction of corroborating testimony to support the testimony of a witness in chief on the ground that his evidence on cross-examination tends to contradict or weaken his testimony in chief, p. 527.</p> <p>23. Trial. — Instructions.—Construction.—Instructions should be considered together, p. 528.</p> <p>24. Insurance.— Fire Insurance.— Provisions of Policy-Waiver. — Provisions of a fire insurance policy rendering it void if the property insured should be encumbered without the written consent of the company indorsed on the policy, that no agent has authority to waive any condition of the policy except as therein stated, and that no waiver is binding on the company unless written upon, or attached to, the policy, are stipulations in favor of the company, which it could waive by express agreement or by conduct, p. 531.</p> <p>25. Insurance.— Fire Insurance.— Provisions of Policy.— Waiver — Indorsement of Mortgage.- — Provisions in a policy of fire insurance rendering it void if the property insured should be encumbered without the written consent of the company indorsed on the policy, and that no stipulation of the policy can be waived except by written indorsement thereon, are waived where the company’s agent, acting within the scope of his authority, agreed to indorse on the policy the insurer’s consent to a mortgage of the insured property.' p. 532,</p>

<p>1. Deeds. — Foreign Deeds. — Sufficiency.—A deed for real estate in Indiana executed in another state, though differing in form 'from that authorized by statute in this state, may nevertheless convey title, p. 537.</p> <p>2. Acknowledgment: — Deeds.—Sufficiency.—Certificate of Foreign Notary. — A deed executed in another state conveying land in this state acknowledged by each of the grantors before a notary public with indications that a seal was attached and that the acknowledgment of the grantors’ wives were taken out of the hearing and presence of their husbands sufficiently complied with §§476, 3965, 3982 Burns 1914, §§460, 2933, 2947 R. S. 1881, as to notary’s certificates and acknowledgment of instruments, to entitle the instrument to be recorded, and such deed was admissible in evidence as against the objection that it was not properly acknowledged, p. 537.</p> <p>3. Evidence. — Deeds.—Admissibility.—In an action in trespass by one claiming ownership of certain lands, where a deed for the land to A was admitted in evidence, a later deed to plaintiff purporting to have been executed by the heirs of A and the trustee under his will shows sufficient connection between the grantee of the first deed and the grantors of the second to warrant the latter’s admission in evidence as tending to show title in plaintiff, p. 538.</p> <p>4. Trespass. — Extent of Possession. — Evidence.—Deeds.—In an action in trespass where plaintiff alleged that she was in possession of the land involved and that she was wrongfully excluded therefrom, a deed to plaintiff sufficient to give color of title authorized her to claim possession of all the land described therein, though actual possession may have extended only to a portion thereof, and such deed was admissible in evidence to show the extent and character of plaintiff’s possession, p. 538.</p> <p>5. Trespass. — Damages.—Elements.—Under a complaint alleging both title and possession of real estate in plaintiff, there may be a recovery of damages against a wrongdoer for trespass upon the realty resulting in injury thereto and an interference with the possessory rights of plaintiff therein, p. 538.</p> <p>6. Trespass. — Right to Sue. — Character of Possession. — Rightful possession at the time of the trespass is sufficient to warrant an action therefor, though the party injured, because of the wrongful conduct of the trespasser or for other reasons, may be out of possession when the action is begun, p. 539.</p> <p>7. Trespass. — Complaint.—Issues.—Proof.—In an action in trespass, under a complaint alleging ownership of land and possession at the time of the trespass, plaintiff is entitled to prove possession, the trespass and injury to the property interfering with the right of possession, and the damages sustained without first proving a record title to the realty involved, p. 539.</p> <p>8. Trespass. — Complaint.—Legal Title. — Proof.—In an action in trespass, where plaintiff merely alleged that she held the legal title to the land involved, she was entitled to prove any pertinent facts tending to show legal title, which includes title by adverse possession, and it was error for the trial court to require that she show record title, p. 540.</p>

<p>From Putnam Circuit Court; James P. Hughes, Judge.</p> <p>Action by Fay S. Hamilton against the Globe and Rutgers Fire Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Workmen’s Compensation Act. — Construction. — Prosecutions.—Venue.—Section 69 of the Workmen’s Compensation Act, Acts 1915, p. 392, making it a misdemeanor for an employer accepting the compensation provisions of the law to fail to file with the Industrial Board, from time to time, evidence of his compliance with certain requirements of the act, requires that such evidence be deposited with the Industrial Board, the offices of which are, under §54, in Indianapolis, Marion county, and. the venue of all prosecutions to impose the fine provided in §69 is in such county, since an offense involving an act of omission is committed where the act should have been done. pp. 551, 552.</p> <p>2. Evidence. — Judicial Knowledge. — Location of City. — The Appellate Court judicially knows that the city of Indianapolis • is in Marion county, Indiana, p. 552.</p>

From Huntington Circuit Court; David E. Smith, Special Judge. Action by John L. Priddy and others against the Chicago, Indianapolis and Louisville Railway Company and others. From a judgment for plaintiffs the defendants, except the Louisville and Nashville Railroad Company, appeal. Appeal of Wabash Railroad Company dismissed.

<p>1. Appeal. — Review.—Assignment of Errors. — Insufficiency of Complaint. — Statiite.—Since the enactment of §348 Burns 1914, Acts 1911 p. 415, the sufficiency of a complaint for want of facts cannot be assailed for the first time by assignment of error on appeal, p. 578.</p> <p>2. Appeal. — Review.—Striking Out Motion for New Trial.— Where defendants filed their application for a new trial with the clerk within thirty, days from the date of judgment, but the- record does not disclose that the trial court was in vacation at such time, so that the application could properly be filed with the clerk under the provisions of §587 Burns 1914, Acts 1913 p. 848, and it appears from §1461 Burns 1914, Acts 1913 p. 62, relating to the terms of the -several circuit courts, that the application was filed on a date when the trial court might have been in regular session, the court on appeal cannot say that the trial court erred in sustaining plaintiff’s motion to strike out the application for a new trial because not filed in open court, such motion containing a statement, which was uncontroverted by defendants, that the trial court was in session on the date the application was filed, pp. 579,580.</p> <p>3. Evidence. — Judicial Notice. — Sessions of Court. — Records.— In passing on a motion to strike out an application for new trial, because not filed in open court, the trial court was required to take judicial knowledge of its terms, the dates when in session, and of its own records, regardless of . the affidavits of the parties, and was bound by such knowledge, p. 580.</p> <p>4. Appeal. — Review.—Ruling on Motion to Modify Judgment.— Failure to Save Exception. — An assignment of error predicated on the action of the trial court in sustaining plaintiff’s motion to amend and modify the judgment presents no question for review, where the record fails to set out the motion, and does not show that any objections were made, or exceptions taken, to the court’s ruling on such motion, p. 580.</p> <p>5. Appeal. — Waiver of Error. — Briefs.—Assigned error not presented in appellant’s brief is deemed waived, p. 581.</p>

<p>1. Appeal. — Review. — Directed Verdict. — ■ Conclusiveness.— Where both parties moved for a peremptory instruction, and defendant after its motion had been denied and plaintiff’s motion had been granted, made no request for submission to the jury, the request for a directed verdict amounted to an admission that there was no conflict in the testimony and a request that the facts be determined by the court, and the finding made is conclusive on appeal if there is any evidence to support it. p. 582.</p> <p>2. Street Railroads. — Collision in Streets. — Action.—Evidence. —Sufficiency.—Negligence.—Contributory Negligence. — In an action against a street railroad company for injuries sustained in a_ collision with a street car, evidence tending to show that plaintiff, as he was about to drive a team and wagon over the car tracks at a street intersection, looked for approaching cars but saw none, that when he got upon the tracks he was struck by a car that did not sound the gong or give other signal of its approach, that the headlight was insufficient for cars running in the locality where the accident occurred, and that the car was traveling at such a high rate of speed that plaintiff was thrown fifty feet when struck and the car ran 100 feet after the accident before it was brought to a stop, is sufficient to warrant the conclusion that plaintiff was free from contributory negligence and that defendant was negligent, p. 583.</p> <p>3. Appeal.— Review.— Directed Verdict.— Damages.— Submission to Jury. — Failure to Object. — In an action for personal injuries, where the trial court, after directing a verdict for plaintiff, submitted to the jury the question of damages, and defendant made no objection before the verdict was returned and no claim that the practice was erroneous until filing its motion for a new trial, it could not complain on appeal, p. 585.</p> <p>4. Appeal.— Review.— Evidence.• — • Sufficiency.— Where inferences may be drawn from the evidence which will support the decision of the trial court, the judgment will not be reversed on the ground of insufficiency of evidence, p. 585.</p>

<p>1. Judgment. — Joint.—Conclusiveness.—Parties to Note. — In a suit on a note against several defendants alleged to be liable to plaintiff, in the absence of issues formed between such defendants, a joint judgment in favor of the plaintiff against all defendants is conclusive only as to their joint liability to plaintiff, and leaves unadjudicated their rights as between themselves. p. 594.</p> <p>2. Pleading. — Answer.—Cross-complaint.—What Constitutes.— In an action on a note against several defendants, a pleading-filed by part of the defendants setting up facts to show that they indorsed the note In due course of business after negotiation, and that another defendant was the original maker, and which sought to have her property first exhausted to satisfy any judgment that might be rendered on the note, is a cross-complaint, though denominated an answer, p. 594.</p> <p>3. Process. — Service.—Necessity.—Cross-Complaint.—In an action against several defendants on a note, where the question of suretyship is presented by several defendants by cross-corn-plaint, such issue may be determined at the trial of the principal cause, as to all parties in court on the complaint, without hew process issued on the cross-complaint, it being the duty of such parties to take notice thereof without summons, and where they actually participate in the trial of the case, either with or without answer to the cross-complaint, they are bound by the judgment thereon, p. 595. !</p> <p>4. Appeal. — Review.—Theory of Case. — The court on appeal will look to the whole record to determine the theory upon which a case was tried and disposed of in the lower court, p. 597.</p> <p>Pleading. — Cross-Complaint.—Failure to Answer. — Waiver. —In an action against several defendants on a note, where defendant indorsers sought by cross-complaint, to which no answer was filed, to charge the remaining defendant with being-primarily liable, and the trial court and the parties proceeded on the theory of determining the rights of the defendants as between themselves as well as their liability to the holder, the indorsers by so proceeding waived answer to their cross-complaint, and it will be regarded on appeal as having been put at issue by an answer of general denial, p. 597.</p> <p>6. Bills and Notes. — Actions.—Judgment.—Liability of Defendants. — Presumption.—Until the question of suretyship is judicially determined all defendants to a judgment on a note are deemed primarily liable, and cannot claim the statutory rights of sureties, p. 598.</p> <p>7. J udgment. — Issues.—Conclusiveness.—Presumptions.—Everything which might have been determined under the issues in a case will be presumed to have been adjudicated, p. 598.</p> <p>8. Judgment. — Erroneous Judgment. — Collateral Attack. — Where a question is once litigated by the parties, the judgment rendered, though erroneous, cannot be amended or impaired in a collateral attack, p. 599.</p> <p>9. Bills and Notes. — Rights of Sureties. — Statute.—Construction. — Although §1269 Burns 1914, §1212 B. S. 1881, providing for the determination of issues between sureties joined as defendants speaks of sureties only, the statute is remedial in character and should receive a liberal construction, p. 599.</p> <p>10. Judgment. — Conclusiveness.—Collateral Attack. — Where the holder of a note brought action thereon in which an indorser primarily liable as surety and indorsers in due course of business after negotiation were made defendants, and, the issue of suretyship having been presented by cross-complaint filed by the indorsers in due course of business, the trial proceeded on the theory of determining the rights of the defendants as between themselves, and a judgment, from which no appeal was taken, was rendered against all of them without distinction, the indorsers secondarily liable could not, in a subsequent action by the indorser as surety to enforce contribution after she had paid the judgment, deny liability, p. 600.</p>

<p>From Johnson Circuit Court; William, E. Deupree, Judge.</p> <p>Action by Malvina Powell against Oscar N. Allen and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by William J. Looney against the Prest-O-Lite Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Dismissal and Nonsuit. — Dismissed of Action. — Reinstatement. — Proceedings.—Pleading.—Notice to Defendant. — Statute. — Under §405 Burns 1914, §396 R. S. 1881, providing that the court shall relieve a party from any judgment taken against him through his mistake, inadvertance, surprise, or excusable neglect, on complaint or motion filed within two years, the application to be relieved from a judgment, if made at a subsequent term, is in the nature of a new proceeding, and the party in default must proceed by a pleading in the nature of a complaint, and, in the absence of an appearance by the opposing party, notice is required; hence, where an action was dismissed for want of prosecution, it was error for the trial court at a subsequent term to restore the cause to the docket on the verbal application of plaintiff, without notice to, or appearance by, the defendant, p. 632.</p> <p>2. Appeal.- — Reserving ■ Questions for Review. — Exceptions.— When Taken. — Statute.—Scope and Application. — Section 656 Burns 1914, §626 R. S. 1881, providing that a party objecting to any decision of the court must except at the time the decision is made, did not require defendant to except at the time to an order restoring to the docket an action dismissed at a previous term for want of prosecution, where the order was made on the verbal motion of plaintiff, without notice to or appearance by defendant, since the court did not have jurisdiction over his person, so that the ruling on the motion to redocket was not binding on him. p. 633.</p> <p>3. Appeal. — Review.—Waiver of Error. — Necessity of Timely Exception. — Where defendant, knowing that the case had been dismissed and restored to the docket at a subsequent term without notice to or appearance by him, and that a default judgment was rendered in plaintiff’s favor, moved to set aside the default and proceeded to defend without complaining of any irregularities in the prior proceedings, he waived any error in the trial court’s action on plaintiff’s motion to redocket the cause, and the ruling on such motion could not be challenged by defendant for the first time by an assignment of error on appeal, p. 634.</p>

<p>1. Master and Servant. — Workmen’s Compensation Act.— Right to Compensation. — Sisters and Nieces. — Proof of Dependency. — As §38 of the Workmen’s Compensation Act, Acts 1915 p. 392, does not include sisters and nieces in any of the classes in which dependency is conclusively presumed, the dependency of a sister and a niece must be determined in accordance with the fact at the time of the death of the employe. p. 640.</p> <p>2. Master and Servant. — Workmen’s Compensation Act.— Right of Sister to Compensation. — Depindency.—Where a sister of a deceased employe lived in his home for a number of years preceding his death with the understanding that deceased was to furnish the home and provide for her, and that she was to act as his housekeeper, and during such period deceased gave to the sister, who had no independent means of her own, all his earnings, with which the expenses of the home, including her entire support, were paid, the agreement does not show such a contractual relation as to deprive her of compensation as a dependent under the Workmen’s Compensation Act, Acts 1915 p. 392, but rather the support was furnished in recognition of a moral obligation, and she was entitled to compensation as a total dependent, even though she may have been able to work for others and support herself, p. 640.</p> <p>3. Master and Servant. — Workmen’s Compensation Act.— Right to Compensation. — Niece.—Where a deceased employe’s niece, who was a minor and whose home was with her parents, stayed with deceased the greater portion of each week for several years when school was in session as a matter of convenience, the mere fact that during such time deceased gratuitously furnished her board, some of her clothes and some of her school supplies did not make her a dependent on him within the meaning of the Workmen’s Compensation Act, Acts 1915 p. 392. p. 643.</p>

<p>From the Industrial Board of Indiana.</p> <p>Action for compensation under the Workmen’s Compensation Act by J. O. Smock against H. F. Zeitlow. From an award, the defendant appeals.</p>

<p>1. Wills. — Construction.—Intention of Testator. — The purpose of construing a will is to give effect to the intention of the testator as expressed by the language employed, if not inconsistent with established principles of law, but where the intention is plain there is no construction required, p. 664.</p> <p>2. Wills . — Construction.—Ambiguity.—Application of Rules of Construction. — A will devising certain real estate to testator’s son for life and providing that “at his death the same shall vest in and equally belong to his lawful children, who may survive him,” and, if such son should die, “leaving no children alive at such time, then I will and direct that such real estate shall revert to my estate,” to be disposed of as directed in a subsequent item, providing for the distribution of property not specifically disposed of by the will, and that the realty devised to the son, in ease he died without children, should “descend and pass” in the manner set forth in such item, is ambiguous as to when the title vests in the life tenant’s children so as to require the court to determine its construction from a consideration of all its provisions to ascertain the testator’s intention, pp. 665, 669.</p> <p>3. Wills. — Construction.—“Vest.”—The word “vest” may denote either a vesting in interest, or a vesting in possession. p. 668.</p> <p>4. Wills. — Construction.—“Revert.”—The word “revert” may be used in the sense of “go” or “pass.” p. 669.</p> <p>5. Wills. — Construction.—Descend.—The word “descend” may be used in the sense of “go” and will be so construed where that meaning more effectually carries out the intention of the testator, p. 669.</p> <p>6. Wills.— Construction.— Vesting of Estates.— The law so favors the vesting of estates at the earliest opportunity and is so averse to a postponement thereof that they will be deemed as vesting at the earliest possible period in the absence of a clear manifestation of the contrary intention, p. 670.</p> <p>7. Wills. — Construction.—Words of Postponement. — Words of Survivorship. — Words of postponement in a will are presumed to relate to the beginning of the enjoyment of the estate, rather than to its vesting, and words of survivorship are presumed to relate to the death of the testator, rather than to that of the . first taker, if they are fairly capable of such interpretation, p. 671.</p> <p>8. Wills.— Construction.— Limitations.— Remainders. — A limitation in a will will not be construed as an executory devise when it can take effect as a remainder, nor a remainder to be contingent where it can be taken as vested, p. 671.</p> <p>9. Wills. — Construction.—Life Estate with Limitation Over.— Vesting of Estate. — An item of a will devising a life estate in certain lands to testator’s son and providing that at his death the “same shall vest in and equally belong to his lawful children, who may survive him” and that the land devised shall revert to the estate if the life tenant die leaving no children, creates a life estate, with the remainder in fee to the life tenant’s children living at the time of the testator’s death, subject to a diminution of their shares to let in children subsequently born during the life tenancy, and on the death of such children before their parents, the latter acquired the fee-simple title to the realty devised, p. 675.</p> <p>10. Trial. — Dismissal as to Certain Parties. — Findings and Conclusions of Law. — Where an action to quiet title was dismissed as to certain defendants, findings of fact and conclusions of law as to such parties are outside the issues and unwarranted, p. 675. '</p> <p>11. Judgment. — Conclusiveness.—In an action to quiet title to lands devised by will, plaintiffs were bound neither by a decree in an action to construe certain items of the will, where the decree stipulated that it should not be conclusive, nor by the judgment in a proceeding to construe another item wherein certain defendants, although parties in interest to such proceedings, were not made parties thereto, p. 676.</p>

<p>1. Appeal. — Bight of Appeal. — Jurisdiction over Necessary Parties. — Before an appellate tribunal can proceed to review questions going to the merits of the judgment from which the appeal is prosecuted, it must first appear that such court has jurisdiction of the parties whose rights and interests are affected by the judgment, p. 684.</p> <p>2. Appeal. — Death of Defendant after Judgment. — Necessary Parties. — Personal Bepresentative. — Heirs.—Where defendant in an action to quiet title died after judgment in his favor and before an appeal was perfected, and his widow was appointed executrix of his estate, she was a necessary party to the appeal both in her representative capacity and as an heir. p. 684.</p> <p>3. Appeal. — Assignment of Errors. — Amendment.—Time.—An assignment of error cannot after the time for perfecting an appeal has expired be amended by adding a party, even though the omission is due to appellant’s excusable neglect, p. 685.</p> <p>4. Appeal. — Parties.—Substitution on Death of Party. — Notice. —Where parties are substituted as appellees in case of the death of a party after judgment and before appeal, they should have notice either of the application to substitute, or should be served with notice after they have been named as appellees. p. 686.</p> <p>5. Appeal. — Parties.—Substitution on Death of Party. — Notice. • — Time for Serving. — Where a party died after judgment and before appeal and no attempt was made to serve substituted appellees with notice of substitution until more than ninety days after the filing of the transcript and the assignment of errors, it was too late. p. 686.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Daisy Townsend and others against the Bucyrus Company. From an award for applicant, the defendant appeals.

<p>1. Appeal. — Briefs.—Sufficiency.—The rules of the Supreme and Appellate Courts relating to the preparation of briefs are not complied with by a mere statement in appellant’s points and authorities of general propositions of law which neither by wording nor direct reference are applied to any particular ruling of the trial court relied on for reversal, p. 693.</p> <p>2. Contracts.- — Parol Contracts. — Parol Evidence. — A contract partly in writing and partly in parol becomes a mere verbal contract, and, where it is necessary to resort to oral evidence to establish the terms of a contract, then the whole contract is regarded as being verbal, p. 695.</p> <p>3. Appeal. — Review.—Harmless Error.- — -Instructions.—Although a contract to furnish board and lodging was in writing, except that the method of ascertaining the amount of compensation required oral evidence, and was, technically, an oral contract, yet an instruction in an action on a note that defendant, who pleaded such contract by way of set-off and alleged it to be written, had the burden of proving that the contract was written was not prejudicial to her, where the evidence showed only that the contract was written and the instruction expressly authorized a recovery for the value of the service shown by the evidence independent of the contract, p. 696.</p> <p>4. Appeal. — Review.—Verdict.—Excessive Recovery. — Where, in an action on two notes, one for $700 and the other for $500, defendant counterclaimed for maintenance and support burnished plaintiff, and plaintiff’s recovery was for less than the amount due on the $700 note, the court .on appeal cannot sustain defendant’s contention that, because the undisputed evidence showed that the value of her services was approximately $1,600, the jury must have found for her on her counterclaim and that the recovery was too large, since the jury may have found against defendant’s counterclaim and against plaintiff on the $500 note, in which case the verdict was too small, p. 698.</p> <p>5. Appeal. — Briefs.—Sufficiency.—Alleged error in the refusal of instructions is not presented for review, where appellant’s points and authorities do not refer to the instructions or to any error predicated on their refusal, p. 699.</p> <p>6. Appeal. — Briefs.—Argument.—An argument is not a necessary part of a brief, and any question attempted to be presented thereby will not be considered where 'not presented in appellant’s points and authorities, p. 699.</p>

<p>Appeal.— Assignment of Errors.— Parties.— Defective Assignment. — Dismissal.—Where plaintiff sued in his capacity as trustee and recovered judgment, and by the assignment of errors was made a party on defendant’s appeal in his individual capacity,. the transcript being filed before the act of 1917, Acts 1917 p. 523, concerning civil procedure became effective, the appeal will be dismissed on motion filed after the expiration of time for perfecting the appeal.</p>

<p>From Marion Superior Court (92,817); V. G. Clifford, Judge.</p> <p>Action by Edward LeRoy Mitten against Frederic A. Delano and others, receivers. From a judgment for defendants, the plaintiff appeals.</p>