Volume 66 — Indiana Appellate Court Reports

<p>1. Master and Servant. — Worlmien’s Compensation Act. — Injury to Servant. — Loss of Part of Foot. — Compensation.—Where an injury to a servant results in the separation of less than the entire foot at the ankle joint and involves the loss of all the toes of the foot, the period of compensation must be determined under that part of §31 of the Workmen’s Compensation Act, Acts 1915 p. 392, providing that in cases of permanent partial disability for which compensation is not fixed, including any disfigurement which may impair'the future usefulness or opportunities of the injured employe, compensation in lieu of all other compensation shall be paid when and in the amount determined by the Industrial Board, not to exceed fifty-five per cent, of the average weekly wages per week for a period of 200 weeks, but compensation should not ■ be awarded for a longer period than that provided in § 31, cl. e, fixing the period of compensation for the loss of one foot at or above the ankle joint at 125 weeks, unless the facts warrant the Industrial Board in finding that such injury and consequent disability were greater than that occasioned by the loss of a foot at or above the ankle joint, pp. 3, 4.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Oonstruction. — In construing that part of §31 of the Workmen’s Compensation Act, Acts 1915 p. 392, governing compensation for permanent partial disability resulting from injuries ojther than those mentioned in the specific schedule contained in such see- . lion, it should be considered in connection with the other parts of the section, and given a construction consistent therewith, if reasonably possible p. 4.</p>

From Shelby Circuit Court; Alonso Blair, Judge. Exceptions by Thomas E. Trackwell, administrator of the estate-of Samantha J. Shoup, deceased, to the report filed by Maggie M. Irvin, as surviving partner of the firm of Shoup and Heck. From a finding approving the report and dismissing the exceptions, the administrator appeals.

From White Circuit Court; James P. Was on, Judge. Action by William Burget against Otto C. Middlestadt, treasurer of White county, in which Morgan Burget, administrator of the estate of William Bur-get, deceased, was substituted as plaintiff. From a judgment for defendant, the plaintiff appeals.

<p>1. Landlord and Tenant. — Leases.—Extension and Renewals.— Necessity of Eleetion.-r-Where a lease provides for an extension for a specific time after the expiration of the agreed term, the mere holding over will constitute an election to hold for the additional term, but where the lease gives a privilege for a renewal, the tenant, by some affirmative act, must indicate his election to avail himself thereof prior to the expiration of the current term, p. 31.</p> <p>2. Landlord and Tenant. — Lease with Privilege of Renewal.— Election of Renewal.- — Row Indicated. — New Lease. — Where a tenant occupies premises under a lease giving the privilege of renewal, it is unnecessary that a new lease be executed in order that the tenant may exercise such privilege, unless the original lease so stipulates, and a letter from the tenant notifying the landlord of “our acceptance of the renewal” of the lease was sufficient, p. 32.</p> <p>3. ' Landlord and Tenant. — Leases.—Renewal.—Under a lease not containing a covenant of the landlord to renew, but stipulating that the lessee “shall have the privilege of renewing” the lease, an election by the tenant is the only thing required to give him the additional term, and no further agreement on the landlord’s part is necessary, pp. 34, 35.</p> <p>4. Frauds, Statute oe. — Leases.—Renewals.—A lease for five years, giving the privilege of a renewal for a like term at the lessee’s .election, is not unenforceable in the absence of a new lease for the renewal period as being in violation of the statute of frauds, since on the tenant’s election to be bound for the additional term, the original lease fixed the rights of the parties and satisfied the requirements of such statute, p. 36.</p>

<p>From Decatur Circuit Court; Hugh Wickens, Judge.</p> <p>Action, by James M. Burke against Barthenia Bnrke. From tbe judgment rendered, tbe plaintiff appeals.</p>

<p>From the Industrial Board of Indiana.</p> <p>Certified question of law.</p> <p>Proceedings under the Workmen’s' Compensation Act in the matter of one John Stone. Certified question of law by the Industrial Board.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation by Albert F. Underhill against the Central Hospital for the Insane. From an award, the applicant appeals.

<p>1. Appeal. — Presenting Questions for Review. — Motion for New Trial.- — Grounds.—Sufficiency.—Assigning as grounds for a new trial that “the decision is contrary to the evidence,” presents no question- for review on appeal, p. 53.</p> <p>2. Appeal. — Review.—Evidence.—Weight and Sufficiency. — Where questions raised by a motion for a new trial require a consideration of the evidence, it will not be weighed by the court on appeal to determine its preponderance, p. 53.</p> <p>3. Counties. — Claims.—Partial Allowance. — Acceptance.—Effect.— Where, after the acceptance of a bridge, the board of county commissioners allowed less than the amount of the contract price «in full settlement of the contractor’s claim and he accepted a warrant for the amount allowed, but stated at the time that he accepted it as partial payment only, which fact the auditor agreed' to have the record show, the contractor waived his right to recover the balance of his claim, since where a board of county commissioners allows part of a claim filed before it and disallows the balance thereof, the claimant, in accepting the amount allowed, thereby waives his right to litigate in relation to the balance rejected; nor did the auditor have any authority to bind the board of commissioners by any agreement as to the legal effect of the acceptance of the warrant, his sole duty being to deliver it in pursuance of the allowance made. pp. 63, 65.</p> <p>4. Estoppel. — Acceptance of Benefits.- — A party cannot accept a benefit based on the legality of an adjudication and thereafter complain that it is erroneous, p. 55.</p> <p>5. Counties. — Claims.—Partial Allowance. — Acceptance.—Bffect.— Where plaintiff, after completing the construction of a county bridge pursuant to contract, filed his claim for the full amount of the contract price and the board of county commissioners refused to accept the bridge as not being properly constructed, but, on the parties entering into a supplemental agreement changing the plans and specifications, the board allowed a part of the claim and disallowed the remainder, and plaintiff accepted a warrant for that part of the claim so allowed, receipting therefor as part payment, and thereafter completed the bridge and, the work being accepted, filed his elaim for the remainder of the contract price, but was allowed only part thereof, which he refused to accept, he was not precluded from maintaining an action for the balance due by reason of his acceptance of the original allowance, since the action of the county commissioners in making such allowance was not a final adjudication of the amount due plaintiff for constructing the bridge, but was merely a partial payment, pp. 56, 59.</p> <p>6. Counties. — Board of Comity Commissioners. — Allowance of Clams. — Power to Reconsider. — When a board of county commissioners acts on a claim by allowing part thereof and rejecting the remainder, it thereby exhausts its powers with reference thereto, and thereafter has no jurisdiction to consider such claim, in whole or in part, as originally filed or refiled, p. 58.</p>

<p>1. Malicious Prosecution. — Action. — Grounds. — Proceeding to Determine Sanity. — A proceeding alleged to have been maliciously instituted and prosecuted by defendant against plaintiff under §3691 et seq. Burns 1914, §2842 et seq. R. S. 1881, to determine whether plaintiff was a person of unsound mind and entitled, to treatment in a state hospital for the insane, was not a special proceeding, extra judicial in character, but a civil action affording grounds for an action for malicious prosecution, if maliciously ' begun without probable cause and terminating in a finding and judgment in favor of plaintiff, p. 64.</p> <p>2. Malicious Prosecution. — Action.—Grounds.—The gist of the action for malicious prosecution is that the plaintiff has been improperly made the subject of legal process to his damage, the essential elements being a malicious prosecution of some legal proceeding without probable cause before some judicial officer or tribunal resulting in humiliation, vexation and expense to the person wrongfully prosecuted, p. 67.</p> <p>3. Malicious Prosecution. — Judicial Proceeding. — A judicial proceeding means any proceeding for the purpose of obtaining such remedy as the law allows, and when a regular constituted court of justice is authorized to hear and determine a question of 'fact or a mixed question of law and fact, upon evidence to be produced before it, and thereupon to render a decision affecting the material rights or interests of one or more persons, the proceeding must be regarded as judicial, p. 68.</p> <p>4. Malicious Prosecution. — Action.•—Complaint.—Sufficiency.—In an action for malicious prosecution, a complaint alleging that defendant maliciously and without probable cause brought an action before a justice of the peace falsely charging that plaintiff was insane and that defendant had observed the first signs of insanity about four years previous to the filing of such proceeding, specific acts being set forth, that judgment was rendered declaring plaintiff to be of sound mind, and that he was imprisoned for several days prior to his acquittal, is sufficient as against demurrer, though upon motion the pleader might properly have been required to state specifically upon what section of the statute the original proceedings to determine plaintiff’s sanity was based, p. 69.</p> <p>5. Appeal. — Waiver of Error. — Briefs.—Grounds of a motion for a new trial are waived by appellant’s failure to present them in his points and authorities, p. 69.</p> <p>6. Malicious Prosecution. — Instructions.—Probable Cause. — In an action for malicious prosecution of a proceeding to have plaintiff declared insane, an instruction that unless defendant had an honest and strong suspicion that plaintiff was insane there was no probable cause, was not erroneous, p. 70.</p> <p>7. Malicious Prosecution. — Instructions.■—Probable Cause. — In an action for damages resulting from the alleged malicious prosecution of a proceeding to have plaintiff declared insane, an instruction requiring that defendants have an “honest and strong belief” in plaintiff’s insanity to show probable cause, was technically erroneous, p. 70.</p> <p>8. Malicious Prosecution. — Probable Cause. — Honest Belief. — A suspicion strong enough to create an honest belief that one is insane is sufficient to show probable cause for the prosecution of a proceeding to have such person declared insane, p. 70.</p> <p>9. Malicious Prosecution. — Instructions.—Harmless Erron Assumption of Facts. — In an action for malicious prosecution, an instruction that the suing out of a writ of insanity against one alleged to be insane, “as was done by the defendant in this case,” when the person charged is not insane, is a wrongful act, and if done without lawful justification or excuse it is malicious, is not prejudicial to defendant because assuming, as proved, material facts, where defendant did not dispute the filing of the affidavit required in such cases by §3692 Burns 1914, §2843 R. S. 1881. p. 70. '</p> <p>10. Malicious Prosecution. — Instructions.—Probable Cause. — In an action for malicious prosecution of a proceeding to have plaintiff: declared insane, a requested instruction purporting to enumerate the facts which would authorize a verdict for defendant was defective and properly refused, where it made defendant’s honest belief of plaintiff’s insanity based on defendant’s knowledge of plaintiff’s acts and conduct, possessed at the time of the institution of the sanity inquest, alone sufficient to show probable cause, p. 71.</p> <p>11. Malicious Prosecution. — Probable Cause. — To show probable cause for the prosecution of a proceeding to have a person declared of unsound mind it must appear that the prosecutor made such inquiry as the case rendered convenient and proper, and which a man of caution would make under like circumstances, but, where the personal knowledge of the prosecutor is such that it induces in him an honest belief of the probable guilt of the accused and would induce that belief in the mind of a man of ordinary prudence and caution, further inquiry'is unnecessary. p. 71.</p> <p>12. Appeal. — Harmless Error.- — Instruction.—In an action for malicious prosecution of a proceeding to have plaintiff declared a person of unsound mind, an instruction, upon condition that the jury find the other facts made necessary by it, making defendant’s belief as to plaintiff’s insanity the only other essential element of probable cause and omitting any requirement that the facts enumerated should be such as would create a belief of guilt in a man of ordinary prudence and caution, was not prejudicial to defendant where the other findings made necessary by such instruction were such as to necessitate the inference in the minds' of men of ordinary intelligence and prudence that plaintiff was of unsound mind. p. 72.</p> <p>13. Malicious Prosecution. — Instruction.—Probable Cause. — In an action for malicious- prosecution of a proceeding to determine plaintiff’s sanity, an instruction on the subject of probable cause, which affirmatively did no more than infoim the jury that the ■finding of the facts hypothetically stated therein would require it to find that defendant had probable cause, and left the jury to understand that only a finding of all of such facts would authorize a finding of probable cause, was prejudicial to defendant and cause for reversal, where the facts stated in such instruction were so numerous and of such a character that several combinations or groups thereof less than the whole number would have justified a man of ordinary intelligence, prudence and caution in believing that plaintiff was of unsound mind. p. 77.</p> <p>14. Malicious Prosecution. — Probable Cause.- — Advice of Counsel. ■ — Where the person charged as instituting a malicious prosecution honestly sought the advice of counsel and disclosed to him all the material facts relating to the case, ascertained or ascertainable by the exercise of due diligence, and the counsel advised prosecution which was then instituted, there was probable cause, p. 77.</p> <p>15. Evidence. — Presumptions.—Knowledge of Law. — One instituting a proceedings under §3691 et seq. Burns 1914, §2842 et seq. R. S. 1881, to determine whether another is insane and entitled to treatment in a state hospital for the insane, is chargeable with knowledge of the provisions and purposes of the statute, p. 79.</p> <p>16. Malicious Prosecution. — Probable Cause. — Charge of Insanity. —In an action for malicious prosecution of a proceedings predicated on §3691 et seq.' Burns 1914, §2842 et seq. R. S'. 1881, to determine whether plaintiff was insane and entitled to treatment in the state insane hospital the inquiry as regards the question of probable cause was whether defendant, at the time he instituted the original proceeding, t.had such knowledge and information as,, would have created in the mind of a person of ordinary prudence and caution a strong suspicion that plaintiff was of unsound mind to such a degree that he was a proper subject to be admitted as a patient in the state hospital for the insane, and whether defendant entertained an honest belief that plaintiff was of unsound mind. p. 79.</p> <p>17. Malicious Prosecution. — Probable Cause. — Jury Questions.— In an action for a malicious prosecution of a proceeding based on §3691 et seq. Burns 1914, §2842 R. S. 1881, to determine plaintiff’s sanity, whether the evidence shows that defendant, at the time he filed the proceeding, honestly believed plaintiff to be insane, and whether-the facts would induce in the mind of a man of ordinary ' intelligence and prudence an honest belief that plaintiff was insane, are questions of fact for the jury. p. 81.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Proceedings on the final report of Mary E. Drake, administratrix of the estate of Henry Johnson, deceased. From a judgment denying her application for an allowance of compensation, she appeals.

<p>From Adams Circuit Court; David E. Smith, Judge.</p> <p>Action by Charles A. Elmore against the Union •Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by the State of Indiana, on the relation of James M. Barton, against Elijah Huffman. From a judgment for relator, the defendant appeals.</p>

<p>From Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by Samuel A. Jordan and others against Mary Louise Johnson and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>From Delaware Superior Court; Robert M. VanAtta, Judge. ,</p> <p>Action by Alonzo L. Jaqua against tbe Grand Rapids and Indiana Railway Company. From a judgment for plaintiff, tbe defendant appeals.</p>

From Porter Circuit Court; II. H. Loring, Judge.' Action by Edna Brown, by her next friend, Frank Brown, against tbe Chicago, Lake Shore and South Bend Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>From Marion Circuit Court (24,475); Louis B. Ewbanh, Judge.</p> <p>Action by the Grand Lodge, Knights of Pythias of Indiana, against the State Exchange Bank. From a judgment. for1 plaintiff, the defendant appeals.</p>

From tlie Industrial Board of Indiana. Certified questions of law. Proceedings under the Workmen’s Compensation Act in the matter of one Lnna Ale and others. Certified questions of law by the Industrial Board.

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation 'by Ellen Drake against the Sugar Valley Coal Company. From an award for applicant, the defendant appeals.

<p>1. Sales. — Conditional Sales.- — Contracts.—Validity.—Law Controlling. — The construction and validity of a conditional sale contract, executed in Kentucky by persons domiciled there, and by its terms to be performed there, and covering property situated in such state, should be determined by the law of Kentucky, if properly brought to the court’s attention, though the action involving the construction of the contract is brought in Indiana. p. 161, .</p> <p>2. Statutes. — Foreign Laws. — necessity of Pleading. — In an action in this state involving the rights of the parties under/a conditional sale contract executed in Kentucky and to be performed there, in order that the laws of Kentucky might be applied, they should have been pleaded and proved as facts, and, on failure to do so, the common law, as interpreted in Indiana, governed. ' p. 161.</p> <p>3. Sales. — Conditional Sales. — Contracts.—Validity.—Under the common law, as interpreted and applied in this state, a sale of personal property on condition that the title shall remain in the seller until the purchase price is paid, is valid, and the seller retains ownership though he delivers possession to the purchaser. p. 161.</p> <p>4. Sales.- — Conditional Sales. — Violation of Contract. — Remedies of Vendor.- — Where, under a conditional sale contract, the purchaser defaults in payment, or violates the conditions of the contract, the seller may enforce payment in full, or at his election peaceably repossess himself of the property, and apply the payments made as rent for the use of the property, p. 162.</p> <p>5. Sales. — Conditional Sales. — Violation of Contract. — Waimer.— Even though removal of a piano by the purchaser to another state constituted a breach of a conditional sale contract, the vendor waived it by afterwards recognizing the contract as in force. p. 162.</p> <p>6. Sales. — Conditional Sales. — Breach of Condition. — Waiver.— Where, under a contract of conditional sale, the seller, after the buyer had defaulted in payments, wrote to him that payment would be accepted at any time up to a certain date, the buyer, even though this did not amount to a valid extension of the time of payment, was led to believe that possession of the property would not be taken on default in payment prior to the time named in the letter, and the seller thereby waived all right to forfeit the buyer’s rights for nonpayment until the expiration of the time so named, p. 162.</p> <p>7. Sales. — Conditional Sales. — Breach of Condition. — Right to Retake Possession. — Under a contract of conditional sale of a piano providing that, if the buyer should sell or remove the instrument from his residence, or should attempt to sell or dispose Of it, or attempt to remove it, without the written consent of the seller, or if the seller should feel unsecure or unsafe, he should have the right, without notice or demand, to take' immediate possession, and that the buyer insure the instrument against loss by fire, where the buyer removed his residence to another part of the city in which he was then living, delivered the piano to a neighbor under an arrangement by which the neighbor expected to trade for it, and the seller by mere accident located the piano in the neighbor’s possession and feared that the insurance, because' of the arrangement with the neighbor, had become voidable, he was justified in taking possession, p. 163.</p> <p>8. Sales. — Conditional Sales. — Breach of Condition. — Seizure of Property ty 'Seller. — Right of Buyer to Recover Possession.— Where a piano was sold under a conditional sale contract, even though the seller, after waiving the buyer’s default in payment by notifying the buyer that payment would be accepted up to a certain date, had no right to take possession, or, having taken possession and notified the buyer that the time for completing his payments had been extended for a specified period, it had no right to hold such possession, the buyer could not recover possession of the piano after the time limit for completing payments, as well as extensions thereof, had expired, without showing payment or tender of the amount due under the terms of the contract/ p. 164.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation by Sarah Walker against the Chicago, Indianapolis and Louisville, Railway Company. From a finding for defendant, the applicant appeals.

From Wells Circuit Court; C. W. Watkins, Special Judge. Petition by David D. Studabaker to be appointed executor of tbe will of Catherine Faylor, deceased, and Peter Faylor and others file objections. From the judgment rendered, the petitioner appeals.

<p>1. Wills. — Construction.—Intention.—A will should be so construed as to give effect to the testator’s intention, if this can be done without contravening some principle of public policy or some inflexible rule of law. p. 191.</p> <p>2. Wills. —• Construction. — Intention. — Circumstances Attending Execution. — In ascertaining a testator’s intention as expressed in his will, all the parts of the instrument must be construed together, and the court should consider the circumstances under which it was executed, and, so far as possible, place itself in the position of the testator at the time he executed the will. p. 191.</p> <p>3. Wills. — Construction.—Unambiguous Will. — Testator’s Intention. — Where the language used in a will is free from doubt, it needs no construction, and the court will give effect to the expressed intention of the testator, p. 191.</p> <p>4. Wills. — Construction.—Use of Words. — Presumption.—In the absence of a clear expression to the contrary, it must be presumed that the words used by a testator in expressing his intention were employed in the sense that the law ordinarily attached to them, p. 192.</p> <p>5. Wills. — Construction.—Devise to Bmviving Wife. — Under an item of a will devising to testator’s son a life estate in certain realty, with the fee therein to the children of such son, the fee being subject, however, to a life estate of the “surviving wife or widow” of the son, “if any such surviving wife or widow there be,” a life estate is given, not to the woman who was the son's wife at the time the will was executed and who was divorced from him subsequently to testator’s death, but to the surviving wife of the son by a later marriage; and such item is free from ambiguity, so that the rules of construction need not be applied to determine its meaning, pp. 192, 194, 197.</p> <p>6. Wills. — Construction.—Designation of Devisee. — “Wife.”—A devise to the wife of a certain man is generally held to be a gift to the wife of such man at the time of the execution of the will, but, where the term “surviving wife or widow” of a man is used to designate a devisee, it will be construed to mean his widow, p. 194.</p> <p>7. Wills.- — Construction.—Vesting of Remainders. — Although the law favors the vesting of remainders at the earliest possible period, the rule cannot be invoked to defeat the clear intent of the testator, p. 196.</p> <p>8. Wills. — Construction.—Words of Survivorship. — Words of survivorship in a will are construed as referring to the death of the testator, unless the words of the instrument clearly show that they refer to a later date. p. 197.</p> <p>9. Wells. — Construction.—Survivorship.—Under an item of a will devising to the testator’s son a life estate in certain lands, with the fee therein to the children of such son, the fee being subject, however, to a life estate of the “surviving wife or widow” of the son, “if any such surviving wife or widow there be,” the date of survivorship relates to the death of testator’s son, and not t® that of the testator, pp. 197, 198.</p> <p>10. Wills.- — Construction.—Testator’s Intention. — That the meaning of a will may be clear, it is not necessary for it to be so worded as to exclude every other possible meaning which might be suggested as a matter of speculation or conjecture, but its meaning may be said to be clear when the instrument fairly expresses an intention on a reasonable interpretation of the language used, regardless of other possible intentions not apparent, but which must be reached through a forced construction or circuitous reasoning, p, 197.</p>

<p>From Marshall Circuit Court; Harry Bernetha, Judge.</p> <p>Action by Samuel Scblosser against tbe Federal Union Surety Company and another. From a judgment for plaintiff, the defendants appeal.</p>

From Marion Probate Court (742); Mahlon E. Bash, Judge. Action by James H. McKernan, administrator of tbe estate of Gamaliel Scott, deceased, .against Gay R. Estabrook, administrator of tbe estate of Ada M. Scott, deceased. ' From a judgment for defendant, tbe plaintiff appeals.

<p>1. Appeal. — Review.—Scope.—Evidence.—Verdict.—The court on appeal will not disturb the verdict of the jury on the weight of the evidence, p. 224.</p> <p>2. Husband and Wipe. — Notes.-—Suretyship of Wife. — Estoppel to Deny Liability. — Evidence.—In an action on a note executed by husband and wife, evidence that plaintiff had made a' previous loan to the wife, taking her note with the husband as surety, and that such loan had been paid by the wife without objection, that the husband, acting as agent for his wife, first negotiated with plaintiff for the loan in suit, and, on its being declined, plaintiff then loaned the wife the money on her personal solicitation that it was to be used in making improvements on the wife’s property, and that the wife thereafter on several occasions acknowledged that the loan was her debt, was sufficient to warrant the finding of the jury that the wife executed the note as principal and that she was estopped to set up that she signed the note as surety for her husband, p. 226.</p> <p>3. Appeal. — Briefs.—Sufficiency.—Scope of Review. — Alleged errors in the admission of evidence are not presented for review, where appellant’s brief does not set out the grounds of objection, or where the questions discussed in the brief were not presented by the motion for a new trial, p. 226.</p> <p>4. Appeal. — Review.—Harmless Error. — Admission of Evidence.— —Statute.—Under §407 Burns 1914, §398 R. S. 1881, providing that a judgment shall not be reversed for technical errors, the erroneous admission of evidence is not ground for reversal where the evidence was such that it did not affect the substantial rights of appellant, p. 226.</p>

<p>From Marion Superior Court (96,318); Theophilus J. Moll, Judge.</p> <p>Action by Howard C. Cooper against Michael J. Mannix and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Assignment of Error. — Conclusions of Law. — Exceptions. — Questions Presented. — Where appellant excepted both jointly and severally to the conclusions of law, any error in either of two conclusions assigned as error is available, unless it affirmatively appears from the record to have been harmless, though error was not assigned to a third conclusion to which an exception was reserved, p. 234.</p> <p>2. Motes and Minerals. — Oil and Gas Lease. — Construction.—Consideration. — Under an ordinary oil and gas lease on shares, exploration and development constitute the paramount or controlling consideration, p. 236.</p> <p>3. Appeal. — Review.—Injunctions.—Judicial Discretion. — In acting upon applications for injunctive relief the courts exercise a sound judicial discretion, and, unless there has been an abuse of such discretion, judgment will not be reversed on appeal, p. 236.</p> <p>4. Injunction. — Violation of Oil and Gas Lease. — An injunction may issue in a proper case to prevent the violation of an oil and gas lease, where the remedy at law is not as plain, practical and efficient as the equitable remedy, p. 237.</p> <p>5. Injunction. — Restraining Breach of Contract. — Jurisdiction of equity to grant an injunction restraining a breach of a contract is substantially coincident with its jurisdiction to compel its specific performance, p. 237.</p> <p>6. Injunction. — 'Contract Rights. — Injunction to'Protect.-^Denial. —Effect.—The fact that one is denied injunctive relief to protect his rights under a contract does not necessarily indicate that he has violated his contract or that he may not be entitled to redress in an action at law. p. 237.</p> <p>7. Injunction. — Nature of Remedy. — Inadequate Relief at Law.— Although injunction is an extraordinary remedy, equitable relief may be granted, even where there is a legal remedy, on a showing that the remedy at law is inadequate, p. 238.</p> <p>8. Injunction. — Right to Equitable Relief. — Necessity of Showing Substantial Loss. — Equitable relief will not be granted to protect a naked right where there is no showing that the complaining party has suffered or is about to suffer substantial loss or damage, p. 238.</p> <p>9. Injunction. — Invasion of Contract- Rights. — Right to Equitable Relief. — Irreparable Damages. — Injunction will not be granted to prevent the invasion of a contract right which would only entitle the injured party to nominal damages, or where it is doubtful or a matter of speculation whether any damages will result to complainant, hence, where a lessee of land under an oil and gas lease ceased operations and removed its tools and' equipment after drilling one well, injunctive relief will hot be granted the lessee to restrain others from drilling for oil and gas under a second lease, where the original lessee makes no showing that it proposed to drill other wells within its term, but is seeking merely to protect its bare contract right, p. 238.</p> <p>10. Injunction. — Invasion of Contract Rights. — Right to Equitable Relief. — Contract Wanting in Mutuality.- — -A lease giving the lessee the right at any time on payment of one dollar to surrender the lease for cancellation, after which all payments and liabilities thereafter to accrue shall cease and determine, is wanting in mutuality, and injunction will not issue to protect the lessee’s rights under such contract, since equitable relief will be denied1 where, if granted, one of the parties may nullify the action so taken by the exercise of a discretionary right conferred either by law or the contract, p. 238.</p>

<p>From Marion Superior Court (94,964); William W. Thornton, Judge.</p> <p>Action by Ruth Woodruff, by her next friend, Carrie Woodruff, against Omer T. Churchill and William Otto Jones, partners doing business under the firm name of Geneva Laundry. From a judgment for plaintiff, the defendants appeal.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation by Harold B. Lambert against the Inland Steel 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 John Leppert against the Carl Hagenbeck and Great Wallace Shows Company. Prom an award for applicant, the defendant appeals.

<p>From Marion Superior Court (91,732); Clarence E. Weir, Judge.</p> <p>Action by Phineas H. York, receiver of tbe Mahogany Interior Trim Company, a corporation, against the Sun Insurance Company. From a judgment for defendant, the plaintiff appeals.</p>

From Marion Superior Court (91,739); Charles J. Orbison, Judge. Action by Mabel I. Bnrnett and others against the Mutual Life Insurance Company and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Pleading. — Complaint.—Waiver of • Objections. — Failure to Demur. — Under §§344, 348 Burns 1914, Acts 1911 p. 415, failure of defendants to demur to the complaint waived all defects or insufficiency appearing on the face thereof, no jurisdictional question being involved, p. 294.</p> <p>2. Appeal. — Waiver of Error. — Failure to Present. — Appellants’ failure to include rulings on demurrers and to dismiss them in their briefs waives all errors predicated thereon, p. 294.</p> <p>3. Appeal. — Briefs.—Waiver of Error. — Where neither the motion for a new trial nor the substance thereof is set out in appellant’s briefs, errors set out in the briefs as relied on for reversal which might have been properly assigned as grounds for a new trial cannot be considered on appeal, even if assigned in the motion, p. 295.</p> <p>4. Appeal. — Harmless. Error. — Sustaining Demurrer to Answer.— Where a general denial is pleaded, no available error is committed by sustaining a demurrer to another answer which sets up only such facts as are admissible in evidence under the general denial, p. 297. •</p>

<p>From the Industrial Board of Indiana.</p> <p>Certified question of law.</p> <p>Proceedings under the Workmen’s Compensation Act in the matter of one Charles Harraden. Certified question of law by the Industrial Board.</p>

From Warrick Circuit Court; Fred M. Hostetter, Special Judge. Action by Josie Hawkins, administratrix of the estate of Ted Hawkins, deceased, against the Illinois Central Railroad Company and another. From a judgment for plaintiff, the defendants appeal.

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

<p>Master and Servant. — Workmen’s Compensation Act. — Accident Arising Out of Employment. — Injury to a car inspector while taking a short cut to report for work to a railroad with which his employer exchanged the services of workmen under certain conditions was an accident arising out of the employment within the meaning of the Workmen’s Compensation Act, Acts 1915 p. 392, the injured servant being at the time of the accident considered as being on duty and on pay under the agreement between his employer and such other railroad as to the exchange of employes.</p>

From the Industrial Board of Indiana. ' Proceedings under the Workmen’s Compensation Act for compensation by Ella Croke against the People’s Hardware Company. From an award for applicant, the defendant appeals.

<p>1. Appeal. — Briefs.—Questions Presented. — Propositions.—Abstract Statements of Law. — Propositions in appellant’s brief containing mere abstract statements of law or fact, and not applied to any particular ruling or action of the court upon either of the causes assigned for new trial, present no question for review, p. 347.</p> <p>2. Appeal. — Questions Presented,. — Assignment of Error. — Exhibit. —An assignment of error predicated on the admission in evidence of an exhibit, which sets out neither the exhibit nor the nature of the objection, presents no question for review, p. 348. ■</p> <p>3. Sales. — Breach of Warranty. — Action.—Complaint.—Theory.— In an action for damages a complaint, containing general averments that there was a warranty accompanying the sale of goods to plaintiff, a breach of the warranty, describing the character thereof, and that damage resulted therefrom, shows that the theory of the action was recovery for a breach of the warranty, and allegations as to items of damages inconsistent with that theory and not sustained by the evidence do not change the theory of the complaint, but may be disregarded as surplusage, p. 348.</p> <p>4. Sales. — Breach of Warranty. — Instructions as to Use of Goods. —Evidence.—Sufficiency,—In an action for breach of the warranty, where instruction as to the installation of magnetos sold under a guaranty provided that they were for use on a particular' engine and that they should preferably be mounted on either brass or aluminum brackets, but that if iron brackets were used brass bolts should be employed to secure the magnetos, evidence that cast-iron brackets were attached to the engine specified with the seller's knowledge and that steel screws were being used in mounting the magnetos and that, upon discovering that the magnetos would not perform the service as guaranteed, brass screws were substituted for those of steel, but the trouble was not removed, sufficiently shows that the magnetos were installed in compliance with the instructions given by the seller, p. 349.</p> <p>5. Sales. — Breach of Warranty. — Seller’s Liability. — Resale by Buyer. — Measure of Damages. — The buyer can maintain an action for a breach of a warranty of magnetos though it has resold them without a warranty for a sum equal to the purchase price and under a contract relieving it of all legal liability for defects therein, and the measure of damages is the difference between the value of the magnetos as they were on the date of sale and their value had they been as- warranted, p. 351.</p>

<p>From Marion Superior Court; W. W. Thornton, Judge.</p> <p>Action by William C. Haueisen against the International Harvester Company of America. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom. Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action by Beecher Adams against William L. Milhollin. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Lake Superior Court; Walter Hardy, Judge.</p> <p>Action by Kashmir Waznitski against Geqrge B. Limbert and Company. From a judgment for defendant, tbe plaintiff appeals.</p>

<p>From Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action by William H. Hershman and another against Thomas A. Suit. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Marion Superior Court (96,324); W. W. Thornton, Judge.</p> <p>Action by Mary B. Daily against Alvie O. Smith. From a judgment for plaintiff, the defendant a;peals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by John M. Stewart against the Hornbrook-Price 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 Yirgie Coffee against the Muncie Foundry and Machine Company. From an award for applicant, the defendant appeals.

<p>From Huntington. Circuit Court; Samuel E. Cook, Judge.</p> <p>. Action by Neil Sangster against Benjamin F. Bricker. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Record.—The court on appeal will not search the record to find cause for reversal, though it may do so to affirm, and it is the duty of an appellant to clearly present the facts from the record which show that the trial court committed harmful error, p. 422.</p> <p>2. Dismissal and Nonsuit. — Finding of Court. — What Constitutes. —Dismissal.—Statute.—Remarks of the court made at the close of trial when it took the case under advisement, though indicating its intention as to judgment, were not such an announcement of the court’s findings within the meaning of §338 Burns 1914, §333 R. S. 1881, as to preclude a proper motion by a party to dismiss without prejudice, p. 423.' ‘ '</p> <p>3. Dismissal and Nonsuit. — Right to Dismiss. — Voluntary Appearance.-^-Diseretion of Court. — Where appellant, who was substituted by agreement as a party defendant in place of an original defendant, intervened and also filed an answer in general denial to the complaint, his motion to withdraw his intervention and pleadings and take nonsuit without prejudice, filed after the cause had been taken under advisement, was properly denied, notwithstanding §338 Burn's 1914, §333 R. S. 1881, permitting a plaintiff to take a nonsuit without prejudice at any time before judgment, since he had no absolute right to withdraw as a party defendant to the original suit, the court having at least discretionary power to refuse such motion on the part of appellant as he had voluntarily appeared, submitted to the jurisdiction of the court, filed his answers and tried the case. p. 423.</p> <p>4. Appeal.- — Review.—Overruling Motion for Nonsuit.- — It is not error tó overrule a motion which is not well taken as a whole and which asks relief to which the moving party is not entitled, p. 424.</p>

<p>1. Master and Servant. — Injuries to Servant. — Action.—Complaint. — Sufficiency.—In a servant’s action against the employer for personal injuries sustained while he and other workmen were installing an electric motor, a complaint alleging that the bulb of a drop-light, placed near the motor to furnish light for the work, was not protected in any manner so as to prevent it from being broken by an outside blow, although it could have.been so protected and made safe at a small expense, that a steel punch, which under the foreman’s orders was being driven with a hammer by another of defendant’s workmen, slipped from his hand and struck the bulb, causing it to burst with a loud noise near plaintiffs ear, resulting in his becoming deaf, and that defendant was negligent in not providing some cover for the light, which would protect those working near it, sufficiently charges negligence on the part of the employer in failing to guard and protect the bulb, so that it would not be broken by some object striking against it, and that such negligence was the proximate cause of the injury, pp. 426, 429.</p> <p>2. Appeal. — Answers to Interrogatories. — Scope of Review. — In reviewing the trial court’s ruling on a motion for judgment on the interrogatories, the court on appeal is limited to a consideration of the pleadings, the interrogatories and answers and the general verdict, p. 428. '</p> <p>3. Trial. — General Verdict. — Scope and, Bffect. — In an employe’s action against the master for injuries resulting from the bursting of an electric light bulb, which he alleged the employer negligently failed to guard, the general verdict for plaintiff was a finding that defendant was guilty of the negligence charged and that it was the proximate cause of plaintiff’s injury and that plaintiff did not know the danger surrounding him while engaged in his work on account of such negligence, p. 429.</p> <p>4. Master and Servant. — Injuries to Servant. — negligence of Fellow-Servant. — liability of Master. — Although a servant assumes the risk of injury resulting from the negligence of a fellow-servant, the master is not relieved unless the negligence of the fellow-servant was the sole cause of the injury, and did not imite to any extent with the negligence of the master, p. 430.</p> <p>5. Master and Servant. — Injuries to Servant. — Proximate Cause. —Where the master is negligent in providing an unguarded electric light globe to be used by his employes in the performance of their labors and at a place where it may be accidentally Struck, and an explosion caused by reason of its unguarded condition, thereby endangering the workmen, such negligence is the proximate cause of an injury occasioned by the explosion, though it was caused by an accidental striking of the globe, p. 430.</p> <p>6. Master and Servant. — Injuries to Servant. — Action.—Verdict. —Answers to Interrogatories. — In a servant’s action against the master for injuries resulting from the explosion of an electric light bulb when struck by a metal punch, negligence being predicated on the master’s failure to protect the bulb from being struck and broken, tbe jury’s answers to interrogatories that a eoemploye of plaintiff was marking the location of holes to be drilled in the base of a motor, that the light bulb was being held in such position that he could see to do the work, that the sharp point of the punch was placed against the metal and the other end hit with a hammer, that it was necessary to do the work in this way and that the punch slipped from the hands of the man doing the marking and struck the electric light globe, are not in such irreconcilable conflict with the general verdict for plaintiff as to overrule it, since such answers do not show that the coemploye was negligent, nor show a state of facts which require the court on appeal to hold, as a matter of law, that he was negligent, nor do they show an intervening responsible cause breaking the line of causation from defendant’s negligent act. p. 431.</p>

From Monroe Circuit Court; Robert L. Miller, Special Judge. Action by tbe State of Indiana, on the relation of Lucian C. McDaniel against William J. Finn and the Federal Union Surety Company. From a judgment for relator, the defendants appeal.

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

From Warren Circuit Court; B. B. Berry, Judge. Action by Mabel Briles, by her next friend, Thomas Vice, against Cyrus A. Briles, Senior, and others. From a judgment for plaintiff, the- defendants appeal.

<p>From St. Joseph Superior Court; George Ford, Judge.</p> <p>Action by Barry Scanlon against Fred L. Dennis. From the judgment rendered, the defendant appeals.</p>

<p>From the Industrial Board of Indiana.</p> <p>Certified question of law.</p> <p>Proceedings under the -Workmen’s Compensation Act in the matter of one Omer Ayers. Certified question of law by the Industrial Board.</p>

<p>1. Action. — Misjoinder of Actions — Amendment of Complaint.— Alleging New Cause of Action. — An employe suing for personal injuries cannot amend his complaint to allege a cause of action for fraud in inducing him to release his claim for personal injuries, as the amended complaint states a new cause of action for property damage, which cannnot be joined with the original action, since §279 Burns 1914, §278 R. S. 1881, providing that plaintiff may unite several causes of action in the same complaint when they are included in any of the classes specified therein, places injuries to property in one class and injuries to person or character in another class, p. 473.</p> <p>2. Limitation of Actions. — Amendment of Pleadings. — Alleging New Cause of Action. — While the courts should be liberal in allowing amendments to avoid the running of the statute of limitations, yet they should be confined to a restatement of the original cause of action, and not extended to a new cause of action, p. 474.</p> <p>3. Pleading. — Complaint.—Anticipating Defenses. — Striking Out Matter. — Discretion of Court. — Although the practice of anticipating a defense is permissible and proper in some eases, it is not ordinarily commendable, and. the trial court, in the exercise of its discretionary powers, would have been justified in striking out that part of a paragraph of complaint in an action for personal injuries, which attempted to anticipate and avoid a defense predicated on a written release; especially 'where, on a prior appeal of the case, the court determined that plaintiff could not avoid the release without returning the money received thereunder. p. 474.</p> <p>4. Appeal. — Review.—Harmless Error. — Striking Out Amended, Complaint. — In an action for personal injuries, the striking out of a paragraph of complaint, which attempted to anticipate a defense predicated on a written release, was harmless, even if technically erroneous, where plaintiff was permitted to file an amended reply setting out substantially the same facts, by way of avoiding the effect of the release, thereby tendering issues which would permit him to introduce all of the evidence which might properly have been introduced under the pleading stricken out. p. 476.</p> <p>'5. Appeal. — Subsequent Appeal. — Law of Case. — A holding, on an appeal in an action for personal injuries, that under the issues as then presented plaintiff could not avoid a release set up by defendant without returning the money paid thereunder was the law of the ease by which the trial court and the court on appeal was bound in all subsequent proceedings, where the amendments or changes in the pleádings were not material, p. 480.</p> <p>6. Release. — Avoidance.—Return of Consideration. — Necessity.—. Where, -in a servant’s action for personal injuries, defendant pleaded a written release reciting that it was in full settlement of all claims or demands on account of plaintiff’s injuries and that the release was read by plaintiff and understood by him, and plaintiff replied that the principal inducement to the signing of the release was a promise of employment which had not been kept, that the employer recognized his duty and liability for the injuries by continuing to pay plaintiff his weekly wage, that plaintiff was under the care of defendant’s physician, who, together with defendant, represented to him that his condition was favorable, and that within two months he would be able to return to his work, that defendant represented that, because of business engagements, it was necessary to adjust plaintiff’s pay in a gross sum, and proposed to pay plaintiff $200 instead of his weekly wages, which would more than cover his wages for the time specified wherein he would make a complete recovery, that, to accommodate defendant, he accepted such sum as wages, without any consideration other than the promise of employment and believing the release to be a receipt for wages covering the period of his indisposition, and not understanding that he was parting with any right of action, or receiving the money for any different purpose, that the representations made by the physician as to the condition of his injured leg were false, and that it was necessary to have the leg amputated, the averments of such reply, when considered in connection with the answer, are insufficient to bring the case within the rule that, when the party executing a release is fraudulently led to believe that the payment made to him thereunder is something other than the settlement of the ease in which the release is given, a return of the money received is not necessary in order to recover in the original action, p. 481.</p> <p>7. Release. — Avoidance.—Necessity of Restoring Consideration.— Where a servant was induced to sign a release of his claim for injuries by the employer’s promise of future employment and in consideration of a specified sum of money, the employer’s failure to provide such employment was insufficient to avoid the release in the absence of a showing that the money received had bepn returned, p. 482.</p> <p>8. Release. — Avoidance.-—Necessity of Restoring Consideration.— The mere voluntary use by an injured employe -of the money paid in consideration of his execution of a release of his claim for injuries and his resulting inability to return the money, did hot relieve him of the duty to restore it before suing to recover damages for the original injury, on the theory that the release had been obtained through fraud in the absence of a showing that such use and inability to restore resulted from the employer’s conduct, or from some cause over which the employe had no control, p. 482.</p> <p>9. Release. — Avoidance.—Pleading Fraud. — Sufficiency of Pacts.— Where, in a servant’s action for personal injuries, defendants pleaded a written release of all claims which the servant had or might thereafter have on account of the accident causing the injury, and plaintiff replied that the principal inducement to his execution of the release was a promise of future employment, that after a number of weeks he was induced by defendant’s physician to attempt labor, and was provided with work, but found that he was unable to perform it, that he then visited a surgeon and, for the first time, learned that there had been no union of the broken bones of his leg, and that it would have to be amputated, that such an operation was performed, that just prior to the execution of the release defendant’s physician, who attended plaintiff and treated him for his injuries, falsely represented to plaintiff that his condition was favorable and that the fractured bones of his leg were united, and that, had he contemplated the result of his injury or known that he would lose his leg by amputation, he would not have accepted the money paid him under the release or considered the promise of future employment, the averments of such reply, when considered in connection with the answer, are insufficient to bring the case within the rule that where parties to a settlement have in mind and contemplation at the time of the settlement the particular injuries then known to exist, which the settlement is intended to cover, a release given under such circumstances will be limited in scope and effect to a settlement for the injuries so,contemplated, p. 483.</p>

From the Industrial Board of Indiana. Certified question of law. Proceedings under the Workmen’s Compensation Act in the matter of one Myrtle Betts and others. Certified question of law by the Industrial Board.

From Laporte Circuit Court; James F. Gallaher, Judge. Actiou by Christian P. Gish against John L. Gisb. On tbe death of the former, the St. Joseph Loan & Trust Company, trustee under his will, was substituted as plaintiff. From a judgment for plaintiff, the defendant appeals.

' From DeKalb Circuit Court; Frank M. Powers, Judge. Action by tbe Savings Loan and Trust Company against tbe Auburn Creamery Company in wbicb a receiver was appointed for defendant company. Tbe receiver petitioned to sue or defend against W. W. Spangler, who asserted ownership of lands claimed by defendant company, and Spangler intervened. From the judgment rendered, Spangler appeals.

From Hamilton Circuit Court; James M. Purvis, Special Judge. Action by William V. Hooker and others against the Lake Erie and Western Railroad Company and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Railroads. — Crossing Accidents. — Evidence.—Contributory Negligence. — Proximate Cause. — Jury Question. — In an action for injuries to plaintiff sustained while attempting to drive a horse and buggy over defendant’s' tracks at a highway crossing, where evidence shows that plaintiff, traveling toward the crossing at a reasonable rate of speed, looked and listened carefully for the approach of a train from either direction, ■ but did not discover the train which injured- her until the horse was entering the main track, when she made an ineffectual effort to avoid the accident, that trees and buildings obstructed her view, that an electric bell, designed to ring automatically when trains were approaching the crossing, failed to operate, and that the train was running at a speed of fifty miles an hour, the question of whether plaintiff was guilty of contributory negligence was one of fact for the jury. p. 534.</p> <p>2. Trial. — Instructions.—Issues.—In an action for injuries sustained in a crossing accident, an instruction tendered by defendant, that the fact that certain trees were growing on defendant’s right of way, and might have obstructed the view of the railroad tracks, was not negligence in and of itself, was properly refused as being outside the issues, where the complaint was construed by both the court and defendant as not containing a charge of negligence based on the existence of the trees, p. 536.</p> <p>3. Railroads. — Crossing Accidents. — Contributory Negligence.— Care Required of Traveler on Highway. — A traveler on a highway is required, on approaching a railroad' crossing, to use only reasonable care, rather than all necessary care. p. 537.</p> <p>4. Trial. — Instructions.—Refusal.—In an action for personal injuries, it was not error to refuse instructions on contributory negligence tendered by defendant, where they were substantially covered by the instructions given, p. 537. •</p> <p>5. Damages. — Personal Injuries. — Issues.—Proof.—In an action for personal injuries sustained in a crossing accident, where the complaint specifically described certain injuries for which plaintiff sought recovery, among others, concussion, contusion and laceration of the brain, and that her left ear was injured and the hearing permanently impaired, but not alleging injury to an eye, or impairment of the function thereof, although plaintiff could not recover for impairment of sight as a distinct injury because not so alleged, she had a right to recover for brain laceration, if proved, and, having established that such an injury manifests itself only by symptoms, one of which is sometimes impairment of sight, she was entitled' to prove that such a symptom existed in her ease as a circumstance tending to show brain laceration covered by the instructions given, p. 538.</p> <p>6. Appeal.- — Briefs.—Waiver of Assigivment. — Where appellant’s brief fails to direct a point to the assignment in its motion for new trial-that the amount of recovery was excessive, such assignment is waived, p. 541.</p> <p>7. Appeal. — Revieio.—Harmless Error.- — Admission of Evidence.— In an action for personal injuries, error, if any, in admitting evidence bearing only on- the nature and extent of the injury, and consequently on the measure of recovery, was harmless, where defendant on appeal waived its assignment that the amount of recovery was excessive, p. 541.</p>

<p>From Steuben Circuit Court; Dan M. Link, Judge.</p> <p>Action by Sarah Wareham against the Indiana Utilities Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Monroe Circuit Court; John F. Begester, Special Judge.</p> <p>Action by Wade Langford against Joseph H. Campbell, administrator of the estate of Mary E. Spaulding, deceased. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Railroads. — Crossing Accidents. — Instructions.—Negligence.—■ • Contribtvtory Negligence. — Duty to Stop, Looh.and Listen — In an action against a railroad company for damages to an automobile in a crossing accident, where the complaint alleged that defendant kept a watchman at the crossing, but that he gave plaintiff no . warning of an approaching train, an instruction that, while a traveler in crossing a railroad is bound to look and listen for approaching trains, it is his duty to stop to look and listen only when circumstances require it, and that “it was the duty of plaintiff under the law to look and listen for the approach of the train before going upon the track where he was injured, and if by reason” of certain obstructions “looking and listening was thereby rendered difficult and a reasonably prudent man under the circumstances would have stopped to look and listen, it was his duty under the law to do só, and in such case, if he failed to stop to look and listen, his failure to do so was negligence under the law” and he could not recover, would have been misleading and was properly refused, since the instruction made no reference to the situation as affected by the presence of the watchman and his conduct, pp. 560¡ 561. *</p> <p>2. Railroads. — Crossing Accidents. — Collision with Automobile.— Contributory Negligence. — In an action for damages to an automobile resulting from a collision with defendant’s train, if plaintiff’s failure to stop his automobile before proceeding across the railroad crossing did not proximately contribute to the collision, it would not bar recovery, p. 561.</p> <p>3. Railroads. — Crossing Accidents. — Burden of Proof. — Negligence. —Contributory Negligence. — Instruction.—In an action for damages to an automobile sustained in a collision with a railroad train on a highway crossing, an instruction that the burden was on plaintiff to prove some act of negligence charged in the complaint, that the same was the proximate cause of the injury alleged, and that plaintiff was free from contributory negligence contributing to the injury, stated a correct proposition of law. p. 562.</p> <p>4. Appeal. — Review.—Refusal of Instruction. — It is not error to refuse a requested instruction, though it states a correct proposition of law, where its substance and meaning is embodied in other instructions given, p. 562.</p>

From, the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by William. F. Stanley' against the Kenwood Bridge Company. From an award for applicant, the defendant appeals.

<p>1. Appeal. — Review.—Question of Fact. — On an appeal from a judgment for plaintiff on a life insurance policy, the judgment cannot, regardless of the disposition of questions presented by appellant relating to breaches of warranties or representations, be affirmed on the ground that defendant, by unreasonable delay in tendering back premiums paid, waived any right to avoid the * policy because of such breaches, where the issue of waiver was one of fact and the reward does not affirmatively show that the verdict was based thereon, or that the undisputed evidence admits of but the single inference that after defendant learned the facts, or had sufficient notice to put it on inquiry concerning the facts upon which its rescission was based, it did not with reasonable promptness' rescind and tender back the premiums received, p. 575.</p> <p>2. Insurance.- — Life Insurance.- — Action on Policy. — Answers to Interrogatories. — Scope.—In an action on a life insurance policy, - , the jury’s answer, “Yes, for dyspepsia,” to a special interrogatory, “Did insured within five years before application consult any physician for any bodily ailment?” is not the equivalent to a finding that the answer, “None,” to a question, in the application for life insurance, “Give name of any physician consulted in last five years,” was false, p. 582.</p> <p>3. Appeal. — Answers to Interrogatories. — Scope of Review.— Although, in reviewing the ruling on a motion for judgment on the jury’s answérs to interrogatories, the court on appeal is confined to a consideration of the pleadings, the answers to the interrogatories and the general verdict, it will be assumed in favor of the general verdict that every supposable fact, properly provable under the issues, that would in any way tend to support it, was in fact proved, p. 583.</p> <p>4. Insurance. — Life Insurance. — Action on Policy. — Verdict.— Answers to Interrogatories. — In an action against an insurance company on a life policy, the jury’s answers to special interrogatories, even though showing a breach of the representation or warranty of insured that he had not in five years consulted a physician for any bodily ailment, are insufficient to overcome the general verdict for plaintiff in the absence of further answers showing an election by defendant to rescind, and an offer to place the insured in statu quo within a reasonable time after learning the facts concerning the misrepresentation upon which the forfeiture was claimed, p. 583.</p> <p>5. Insurance. — Life Insurance. — Action on Policy. — Verdict.— Answers to Interrogatories. — In an action against an insurance company on a life policy, answers to interrogatories showing any breach of representation or warranty as to insured having other insurance are insufficient to overcome a general verdict for plaintiff, in the absence of a finding that the insurer máde a seasonable offer to rescind and tender back premiums paid. p. 584.</p> <p>6. Insurance. — Life Insurance. — Application.—Representation.— Where answers and declaration^ in an application for life insurance are merely representations, they need only be substantially true, so far as material to the risk, but when they are to be, construed as warranties they cannot he deviated from and must be strictly true. p. 585.</p> <p>7. Insurance. — Life Insurance. — Representations in Application. — ■ Incorporation in Policy. — The mere incorporation of an application for life insurance into the policy does' not convert into warranties answers and declarations in the application which purport to be representations only, in the absence of language in the policy itself sufficient for that purpose, pp. 585, 587.</p> <p>8. Insurance.- — Life Insurance. — Representations.-—Warranties.— A warranty is in the nature of a condition precedent and should be a part of a contract of insurance conditioned upon, so as to appear on the face of the policy itself, and any merely collateral instrument which was the inducement to, but no part of, such contract, even though its words clearly import a warranty of the answers or declarations made therein, will nevertheless be construed as representations only, p: 586.</p> <p>9. Insurance. — Life Insurance. — Action on Policy.- — Representation6) in Application. — Good Health. — Evidence.—Where a policy of life insurance was issued in July, 1912, and a surgical operation performed on insured in the following January disclosed a cancer of the stomach, which subsequently caused death, so far developed that its removal could not be attempted, evidence, in an action on the policy, showing that, although deceased had visited a physician and got medicine for indigestion probably twice in June and once or twice in July, 1912, and continued to be treated for the same ailment until the following December, dyspepsia is not regarded as a disease, but as a symptom only, that good health within the meaning of insurance risks is- affected only by a disease or affliction which is acute or which will probably shorten life, that there was no diagnosis of cancer until after the operation, and that it was impossible to determine how long the cancer had been developing, was sufficient to warrant the finding that the insured’s statement in his insurance applieation, which was made three days before the issuance of the policy, that he was in good health, was substantially true. p. 589.</p> <p>10. Insurance.- — Life Insurance. — Application.—Declarations as to Health. — Knowledge of Medical Ewamvner. — Insured’s answer in an application for life insurance that he had not consulted any physician in five years is, at least so far as material, substantially true, where written down by the insurer’s medical examiner, after the applicant had informed him that he had -a short time before, obtained some medicine for dyspepsia from a doctor, and the examiner told him that “that did not amount to anything.” p. 592.</p> <p>11. - Insurance. — Life Insurance. — Application.—Raise Statements. —Other Insurance. — Insured’s answer in an application for life insurance, such answer constituting a representation only, that he carried life insurance in another company, was, so far as material to the risk, substantially true .and not fraudulently made, though the insurance named had, in fact, lapsed a few days before for nonpayment of dues. p. 592.</p>

<p>From Randolph. Circnit Court; Theodore Shocknpy, Judge.</p> <p>Action by Chaney F. Meeks against Martin F. "Wood. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Waiver of Error. — Assigned errors are waived by appellant’s failure to present them in its briefs, p. 600.</p> <p>2. Appeal. —Review.—Evidence.—Sufficiency.—Gonclusiveness. of Verdict. — Where the evidence is not conclusive, but is susceptible of the construction placed upon it by the jury, though different inferences might reasonably be drawn by persons equally fail* and reasonable, the court on appeal will not disturb the judgment for insufficiency of evidence to sustain the verdict, p. 601.</p>

<p>Prom Knox Circuit Court; Benjamin M. Willoughby, Judge.</p> <p>Action by Belle Giitberidge against tbe city of Princeton. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. _ Fbaud. — Representations of Value. — Mere representations as to value, standing alone, are ordinarily regarded as opinions and not as affirmations of existing facts -to. be relied on as to the basis of a contract, p. 615.</p> <p>2. Fbaud— Contracts. — Representations of Facts. — A contracting party may rely on the express statement by the seller of an existing fact, where he does not know the statement to be untrue and it is not obviously false, p. 615.</p> <p>3. FraUd. — Representations of Value. — Action.-—Representations of value may, under certain .circumstances, amount to affirmations of facts and afford the basis of an action for damages for fraud and deceit, p. 615.</p> <p>4. Fraud. — -Actions.—Jury Question. — Representations of Value.— Whether a seller’s representations as to value are mere expressions of opinion or affirmations of fact to be relied on is a question of fact for the jury, and cannot be determined as a matter of law, unless the evidence authorizes but a single inference, p. 616.</p> <p>5. Fraud. — Actions.—Representations of Value. — -Where a seller making representations as to value assumes to have special knowledge of the value of the property and the vendee is ignorant of its value, and such fact is known to the seller, who also knows the vendee relies upon his judgment and good faith, the representations, if falsely made, may furnish the basis . of an action for fraud, p. 616.</p> <p>6. Fraud. — Actions.—Representations of Value. — Where representations of value are fraudulently made by the seller, and the buyer is in ignorance of the truth, and is induced to forbear inquiries which he otherwise would have made, and damages ensue, the seller may be held liable therefor, p. 616.</p> <p>7. Appeal. — Review.—Evidence.—Sufficiency.-—The question of the sufficiency of the evidence to sustain the verdict cannot be considered further, if there is some evidence tending to support every material fact upon 'which it must rest. p. 616.</p> <p>-8. Kbaud. — Actions.—False Representationsi of Value. — Evidence.— Sufficiency. — In an action for fraud in the sale and exchange of certain corporate stocks, evidence showing that defendant falsely represented that certain shares of stocks which he offered in trade were preferred stock bearing seven per cent, interest semiannually and was “worth dollar for dollar” and would be redeemed by the company at any time, that the company was very prosperous and its product in widespread and general use, and that plaintiff, having no knowledge as to the value of the stock, relied on such false representation, is sufficient to support a verdict for plaintiff, p. 617.</p> <p>9. Kbaud. — Actions.—Instructions.—Representations.—In an action for fraud in the sale and exchange of corporate stock, where plaintiff had no knowledge of the value of the stock offered in exchange by defendant, and the latter made representations as to its value as a matter of fact, an instruction that every contracting party has a right to rely upon the representations of the other party, as a basis of the contract, as to the value and condition of the property, provided that such other person does not know through other sources the true value of the property and the representations are not obviously false, was not, in view of the issues and evidence, misleading or harmful, p. 618,</p> <p>10. Tbial. — Instruction.—Necessity of Requesting. — If a party desires a more complete instruction on a subject, he must tender one covering the point, or he cannot complain on appeal, p. 618.</p> <p>11. Appeal. — Review.—Instructions.—Invited Error. — Defendant cannot coihplain of alleged error in an instruction where it was based on the same theory as his own counterclaim and his own instructions, since the error, if any, was invited, p. 618.</p> <p>12. Kbaud. — Actions.—Punitive Damages.- — Fraudulent Representations. — In an action for fraud in the sale and exchange of corporate stock, an instruction authorizing the jury to assess punitive damages was proper, where it appeared that defendant’s misrepresentations were wantonly and maliciously made and that the alleged fraud was intentionally committed, p. 618.</p> <p>13. Evidence. — Value of Corporate Stock. — Taw Assessment of Corporation. — In an action for fraud predicated "on misrepresentation of the value of corporate stock disposed of to plaintiff, the record of the county board of review relating to its action in assessing the corporation whose stock was disposed of is admissible, p. 619.</p>

<p>Health. — Comity Health Commissioners. — Contagious Diseases.— Indigent Parsons. — Employment of Physician. — Liability of County. — Statutes.—Under §7605 et seq. Burns 1914, Acts 1909 p. 342, relating to tbe appointment, powers and duties of county health commissioners, the act of a county health commissioner in appointing a physician to care for and treat persons afflicted with smallpox and quarantined, is, in the absence of connivance or fraud, binding on the county and it may be held liable for services rendered, and the fact that the patients are indigent, or that there is a township physician, is immaterial, and the county’s liability is not affected by §9746 Burns 1914, Acts 1901 p. 233, providing that township trustees shall promptly provide medical and surgical attendance for the poor.</p>

<p>From Henry Circuit Court; Fred G. Gause, Judge.</p> <p>Action by James B. Wallace against tbe Central Trust and Savings Company, receiver, Cbalmers H. Browne and Albert- D. Ogborn. From a judgment for plaintiff, Ogborn appeals.</p>

<p>1. Appeal. — Briefs.—Sufflaieney.—Where appellant’s brief, under its points and authorities, challenges the ruling on the demurrer to each paragraph of the complaint and predicates error on this ruling only, all its propositions will be regarded as referring to the error, and the brief is sufficient, p. 637.</p> <p>2. Appeal. — Review.—RuWng on Demurrer. — A ruling on a demurrer to the complaint will not authorize a reversal if the ruling can be upheld on any ground, p. 641.</p> <p>3. Negligence. — Personal Injuries. — Action. — Complaint. — Sufficiency. — In an action by a workman against the owner for personal injuries sustained in the collapse of a concrete building in the process of construction, a complaint alleging that defendant company engaged contractors to erect a two-story concrete building of a style known as beam and girder construction, that after obtaining a city permit, it “carelessly, negligently and unlawfully” changed the method of construction to a patented new method, inherently dangerous to the workmen, and prosecuted the work carelessly and negligently, so that as a result thereof plaintiff was injured by the collapse of .the structure, contains each of the elements essential to an action for personal injury predicated on negligence, p. 641.</p> <p>4. Appeal. — Subsequent Appeals. — Law of Ihe Case. — The decision as to questions presented on a former appeal remain the law of the case through all its subsequent stages, and the effect of this rule cannot be evaded by amendments to the pleadings which do not substantially change the character of the action, p. 641.</p> <p>5. Appeal. — Subsequent Appeals. — Law of the Case. — Scope and Applicability. — Where, on a former appeal from a judgment for . plaintiff in a personal injury case, there was a reversal on the ■ ground that the evidence showed certain facts barring a recovery, but there was no holding that the complaint was insufficient, that decision is not conclusive of the sufficiency of an amended complaint subsequently filed, even though its averments do not differ materially from those of the original complaint, p. 642.</p> <p>6. Master and Servant. — Injuries to Servant. — Action.—Complaint. — Sufficiency.—In an action by a workman against the owner for personal injuries sustained in the collapse of a building in process of construction, a complaint alleging that' defendant was engaged in the erection of a building which was being constructed by a firm of contractors, which employed plaintiff, and that defendant negligently, carelessly and unlawfully changed the method of construction to one that was new and inherently dangerous, which method was pursued in a negligent manner under the control of defendant, does not show that the contractors were independent contractors so as to rebut liability of defendant for the servant’s injuries, pp. 643, 644.</p> <p>7. Master and Servant. — Injuries to Servant of Independent Contractor. — Liability.—In an action for personal injuries, even though the complaint showed that the owner engaged an independent contractor to erect a concrete building, the existence of an independent contract was no defense to an action against the owner for injuries to an employe of the contractor, where the method of construction adopted was one that was inherently dangerous, p. 643.</p>

From Marion Superior Court (96,936); John J. Rockford, Judge. Action by Allen W. Hewitt against the Browns-town Water and Light Company and others. From a judgment for plaintiff, the defendants appeal.

<p>1. Appeal. — Review.—Evidence. — Weight and, Sufficiency. — In determining the sufficiency of the evidence to sustain a verdict, the court on appeal cannot weigh conflicting evidence to determine its preponderance, and where there is some evidence to sustain the verdict it will not be disturbed, p. 652.</p> <p>2. Evidence. — Witnesses.—Conclusions.—Strildng Out. — In an action on a contract of guaranty, where defendant guarantors filed answers of non est factum, where a witness, in response to</p> <p>■ a question whether one of the defendants had, on a certain occasion, denied his signature to the contract, or stated that it had been altered or changed in any way since he signed it, answered, “No, he did not, although I do not remember that he expressly admitted signing it, he in no way signified that it was not his contract,” that part of the answer following the negation was properly stricken out as being a conclusion, and not responsive to the question, p. 652.</p> <p>3. Guakanty. — Action.—Plea of Ron Est Factum. — Witnesses.— Cross-Examination.- — Scope.—In an action on a contract of guaranty, where defendant guarantors filed answers of non estjaotiwn, cross-examination of the principal, who had testified that defendants signed the contract, as to his knowledge of its contents was permissible in order to enable the jury to determine whether the instrument appearing in evidence was th.e instrument which the, witness claimed defendants signed, since a change in the contract after it had been signed would uphold the answers, p. 653.</p> <p>4. Evidence. — Admissibilty.—Res Gestae. — In an action on a contract of guaranty in which defendant guarantors filed pleas of non est factum, where the principal had testified that the contract was signed by one of the defendants, testimony by such defendant that the principal, on the occasion mentioned, had-presented tó him for his signature a paper which he represented to bo a recommendation, was properly admitted as a part of the res gestae of the transaction involved as bearing on the identity of the contract in suit. p. 654.</p> <p>5. Evidence. — Admissions.—Explanations.—In an action on a contract of guaranty, where, after defendant denied executing the instrument, plaintiff, for the purpose ' of showing an implied admission, introduced in evidence its letter to him, containing' a statement that the principal on whose contract he was a guarantor was accomplishing little in the way of sales, and defendant’s reply to such letter, which did not deny that he was a guarantor, defendant was entitled to testify as to his understanding of the word “guarantor” as used in the letter, p. 655.</p> <p>6. Evidence. — Admissions.—Explanation.—In an action on a contract of guaranty, where it appeared from the evidence that defendant guarantor’s attorney had written a letter to plaintiff’s attorney, which might have been construed as an admission against defendants, as to the execution of the instrument, testimony by such attorney that he informed the manager of a collection bureau which had the claim for adjustment that the guarantors denied execution of the contract was admissible to explain the implied admission, p. 656.</p> <p>7. Appeal. — Briefs.—Waiver of Error. — Alleged errors not presented in appellant’s brief are waived, p. 656.</p>

<p>From Tipton Circuit Court; James M. Purvis, Judge.</p> <p>Action by Thomas B. Bartholomew against the city of Tipton. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Action.—Complaint. — Negativing Contributory Negligence. — Employers’ Liability Act. — In an action by a servant against the master for personal injuries, allegations in the complaint showing that defendant operated a factory employing more than five workmen, that the accident occurred while plaintiff was working as directed by the master, and that the fellow servant whose negligence is alleged to have caused the accident undertook to hold the ladder on which plaintiff was standing when injured, bring the case within the Employers’ Liability Act, Acts 1911 p. 115, 8020a et seq. Burns 1914, and the complaint is good without an averment that plaintiff was free from contributory negligence, p. 667.</p> <p>2. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency. — Assumption of Risk. — Negligence of FeTloio Servant.— In an action by a servant against the master for injuries sustained when a ladder upon which he was standing slipped and fell, a paragraph of complaint alleging that the ladder was a defective and unsafe appliance furnished by the master, who knew that it was defective, that there were no devices to keep the ladder from slipping, or to make it an appliance which could be used with Safety, and that plaintiffs injuries were caused by such unsafe ladder, and by the carelessness and negligence of a fellow servant in failing to hold it while plaintiff was standing thereon, was sufficient to state a cause of action under §S020a Burns 1914, authorizing a recovery for injuries due to the negligence of a fellow servant, and §S020c Burns 1914, Acts 1911 p. 145,' providing that the employe shall not be held to have assumed the risk of any defect in the place of work, or in the tool, etc., which defect was known to the employer or might have been known to him in time to repair or discontinue its use, and placing the burden of proof as to such knowledge on the employer. • p. 607.</p> <p>3. Master and Servant. — Injury to Servant. — Negligence of Fellow Servant. — Defective Appliances. — Master’s Liability. — In a servant’s action against the master for personal injuries under the Employers’ Liability Act, Acts 1911 p. 145, §S020a ct seq. Burns 1914, where one paragraph of the complaint alleged that plaintiff sustained his injuries when a ladder upon which ho was standing slipped and fell because it had no spikes or other devices at the bottom of the side pieces to prevent it from slipping and by reason of the carelessness and negligence of a fellow employe in failing to hold the ladder in place, a motion for judgment on the jury’s answers to special interrogatories was properly overruled where such answers showed that the ladder “fell from not being held” by the fellow employe “or provided with spikes.” pp. 669, 670.</p> <p>4. Trial. — Verdict.—Scope.—A general verdict for plaintiff is a finding in his favor on every issuable fact. p. 070.</p> <p>5. Appeal. — Briefs.—Sufficiency.—Abstract Propositions of Laio.— The statement in appellant’s brief, under its points and authorities, of abstract propositions of law without in any way applying them to any specific point or proposition involved in any ruling of the court arising under the motion for a new trial, present no questions for review, p. 070.</p> <p>6. Master and Servant. — Injuries to Servant. — Action.—Instructions. — Assumption of Bisk. — In a servant’s action against the master, under §8020a et seg. Burns 1914, Acts 1911 p. 145, for injuries sustained when a ladder upon which he was standing slipped and fell, an instruction that, if the ladder was defective and such condition was known to the master, or had existed for such length of time that it might have been known by the exercise of ordinary care, plaintiff did not assume the risk, and the burden was on the master to prove that it did not know, and could not have known, of the defects in time to have remedied them or discontinued the use of the ladder before the injury, was substantially correct under §8020e Burns 1914, providing that the employe shall not be held to have assumed the risk of any defect in the place of work, tools, etc., known to the employer, or which might have been known to him in time to repair or discontinue its use, and such instruction was not objectionable for failure to state that the master must have had a reasonable time in which to make repairs, p. 671.</p>

<p>From Lake Superior Court; Johannes Kopelke, Judge.</p> <p>.Action by Mike Martinecz against the Standard Steel Car Company. 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 Herbert Griffith against the Calora Coal Company. From an award for applicant, the defendant appeals. (Transferred to the Supreme Court Under §1392, subd. 1, Burns 1914, Acts 19Q1 p. 565.)

<p>From Marion Circuit Court (21,967) ; Louis B. Ewbanlc, Judge.</p> <p>Action by the Indiana Reduction Company against the New Brunswick Fire Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>