Volume 69 — Indiana Appellate Court Reports

<p>1. Adverse Possession.—Evidence.—Sufficiency.—In a suit to quiet title, where plaintiff in his complaint based his claim to title on adverse possession, evidence consisting of a deed purporting to convey to plaintiff grantor’s interest in the land Involved, but with nothing in evidence to show that such grantor had any title or that he was in possession at the time of the conveyance or at any time previous thereto, and a judgment rendered against such grantor’s guardian in an action against plaintiff to have such deed set aside on the ground of fraud, is insufficient to prove the cause of action stated in the complaint, id. 3.</p> <p>2. Quieting Title.—Derivation of Title from Common Grantor.— Proof of Grantor’s Title.-—The rule that, where parties to an action to quiet title claim through a common source of title, it is prima facie sufficient to prove the derivation of title from the common grantor without proving the latter’s title, has no appli-</p> <p>■ cation where defendants tender no pleading In which they claim title, filing merely an answer of general denial to a complaint based on the theory of adverse possession, and no evidence was received from them affecting title or possession, p. 5.</p> <p>3. Quieting Title.—Burden of Proving Title.—Statute.—In an action to quiet title, the failure of defendants to show title did not relieve plaintiff of the burden of proving his own title, which he assumed under §1103 Burns 1914, §1057 R. S. 1881, when he brought defendants into court to defend against his claim of title, p. 5,</p> <p>4. Appeal—Reservation of Grownds of Review.-—Exclusion of Evidence.—Offer to Prove.—No question is presented for review on appeal by grounds in a motion for new trial predicating error on the exclusion of evidence, where defendants made no offer to prove, p. 6.</p>

<p>From Clay Circuit Court; John M. Ratvley, Judge.</p> <p>Action by Robert M. Burns against tbe city of Terre Haute. From a judgment for plaintiff, tbe defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Catherine Pietzvak against the Northern Indiana Gas and Electrical Company. From an award for applicant, the defendant appeals.

From Pike Circuit Court; John L. Brets, Judge. Action by the Ohio State Life Insurance Company against Lawrence A. Ebner, administrator of the estate of Jacob L. Ebner, deceased. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal.—Review.—Refusal of Instructions.—It is not error for tbe trial court to refuse tendered instructions which, as far 'as correct and applicable, were covered by others given, p. 60.</p> <p>2. Deeds.—Possession of Recorded Deed by Grantee.—Presumption of Delivery.—The presumption that a duly recorded deed found in the possession of the grantee was delivered is not conclusively overcome by proof that the grantors retained possession of the deed after it has been recorded, although such fact may be considered in determining the question of delivery, p. 60,</p> <p>3. Trial.—Instructions.—Invading Province of Jury.—In an action to quiet title and to set aside a deed, instructions on presumption of delivery of a duly recorded deed found in grantee’s possession, leaving to the jury the determination of all questions of fact, held not to invade the province of the jury. p. 63.</p> <p>4. Deeds.—Delivery.—Evidence.—Recording.—Where a grantor causes a deed to be duly recorded in the proper official records, it affords prima facie evidence of a delivery, and is sufficient to complete the execution of the instrument, unless overcome by evidence to the contrary, p. 63.</p> <p>5. Deeds.—Delivery.—Evidence.—Retention ly Grantor After Recording.—Where the statute makes the record admissible as original evidence of a conveyance, the fact that grantor retains possession of a deed after it has been duly recorded may be considered in determining the ultimate question of delivery, but it is not necessarily controlling, p. 63:</p> <p>6. Deeds.—Delivery.—Evidence.—Possession hy Grantee.—Possession of a deed by the grantee is prima facie evidence of delivery and is sufficient against one who seeks to set it aside until overcome by sufficient proof to the contrary, p. 64.</p> <p>7. Deeds.—Delivery.—Grantor’s Intention.—The intention of the grantor is the controlling fact to be considered in determining whether there has been a delivery of a deed otherwise executed, p. 64.</p> <p>8. Deeds —Delivery.—Words.-—Actions.—A delivery of a deed may be made effective by words without action, and likewise actions without words, or by a combination of both words and conduct, p. 64.</p> <p>9. Deeds.—Delivery.—Evidence.—The question of the delivery of a deed is one of ultimate fact to be determined from all the evidentiary facts and circumstances shown by the evidence which have any probative value bearing upon such ultimate fact, p. 64.</p> <p>10. Infants.—Deeds of Conveyance.—Acceptance.—Presumption. —Where the conveyance is a gift, and the grantors are minors, the law presumes their acceptance based upon the facts of their minority and legal disability to contract, and the beneficial character of the conveyance, p. 64.</p> <p>11. Deeds.—Delivery.—Evidence.—In an action to set aside a deed, evidence held sufficient to warrant the jury in drawing the inference that the grantors had in fact caused the deed to be placed of record, intending thereby to deliver the same to the grantees, p. 66.</p> <p>12. Deeds.—Acceptance.—Evidence.—Where a duly recorded deed conveying a life estate to plaintiff grantee, with the fee to his minor children, was held by him for ten years during ,all o£ wliicli time he used the land conveyed, and the law conclusively presumed acceptance by the minor grantees, the jury in amaction to set aside the deed was warranted in finding the facts of its delivery to, and acceptance by, plaintiff, p. 66.</p>

<p>From Hancock Circuit Court; Earl Sample, Judge.</p> <p>Action by Mollie M. Cbatman against tbe Federal Casualty Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Greene Circuit Court; Theodore E. Blinkard, Judge.</p> <p>Action by Nancy Hadley against the Western Union Telegraph Company. From a judgment for plaintiff, the- defendant appeals.</p>

From Hamilton Circnit Court; Ernest E. Cloe, Judge. Action by Martha A. Kinder against the 'Wainwright Trust Company, administrator of the estate of Benjamin F. Kinder, deceased. From a judgment for plaintiff, the defendant appeals.

<p>Prom Randolph Circuit Court; Benj. F. Marsh, Special Judge.</p> <p>Action by Mm Jacob Turner against the Grand Rapids and Indiana Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Action by Amsa Leedy and others against Talmon H.-Idle, trustee, and others. From a judgment for defendants, the plaintiffs appeal. Affirmed.,

Prom Vigo Superior Court; Josiah P. Walhei, Special Judge. Proceedings on an appeal by Wilbur E. Davis from the action of the Indiana State Board of Dental Examiners and others denying him a license to practice dentistry. Prom a judgment for plaintiff, this appeal is prosecuted.

From Owen Circuit Court; Robert W. Miers, Judge. Action by the State of Indiana, on relation of Salt Creek Civil Township and Salt Creek School Township of the county of Monroe, against William F. Stevens and others. From a judgment for defendants, the relators appeal.

<p>From Parke Circuit Court; George D. Sunlcel, Judge.</p> <p>Action by Victor Van Hentenryek, by Ms next friend, Isidore Van Hentenryek, ag'ainst tbe Jackson Hill Coal Company. From a judgment for plaintiff, the defendant appeals.</p>

Proceeding by Omer Ayres for compensation, under the Workmen’s Compensation Act, against the Ansted Spring and Axle Company, employer. Prom an award in the applicant’s favor, the employer appeals.

<p>From Dearborn Circuit Court; Warren N. Hauch, Judge.</p> <p>Action by Slierman Marshall against Ellsworth Wymond and another. From a judgment for the defendants, the plaintiff appeals.</p>

<p>From Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by Benjamin J. Mattingly and another against the Illinois Central Railroad Company. From a judgment for the plaintiffs, the defendant appeals.</p>

<p>Insurance.—Payment of Premiums.—Time.—Forfeiture.—Though the by-laws of the insurer, a mutual benefit association, provided that all rights of the insured should become forfeited on the failure of the latter to pay monthly assessments on or before the last day of the month, where the last day of a month was Sunday, a ji&yment of the assessment therefor on the. first day of the succeeding month was “in time” within the meaning of the policy and the by-laws; and especially is this true where there is no showing that the insured made provision for the payment of assessments on Sunday, or that time was made by the bylaws “of the essence of the contract” of insurance.</p>

From, the Industrial Board of Indiana. Proceeding by Iva Bowman against John Essington and others for compensation under the Workmen’s Compensation Act. Prom an award in favor of the applicant, the defendants appeal.

From the Industrial Board. Proceedings by Charles E. Thomas for compensation against John Essington and others. From an award for applicant, the defendants appeal.

<p>1. Venue.—Actions.—Possession of Real instate.—Where a tract of real estate involved in an action for possession lay in two counties, the circuit court of one of such counties had jurisdiction over the real estate in both counties, in view of §309 Burns 1914, §307 K. S. 1881. p. 189.</p> <p>2. Pieadins.—Uernwrer.—Want of Facts.—A demurrer for want of facts raises no question as to jurisdiction, p. 189.</p>

From Wells Circuit Court; William II. Eichhorn, . Judge. Action by Carrie Rudig and others against Frank H. Brock and others, wherein Forest W. Kelsey was appointed receiver. From'a judgment in favor of the receiver against defendants, for items claimed in his report, the defendants appeal.

From Posey Circuit Court; Herdis F. Clements, Judge. Action by John P. Downey, administrator of the estate of Morris Mack, deceased, against the Prudential Life Insurance Company of America. From a judgment for defendant, the plaintiff appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Viola E. Marr and others against the National Car Coupler- Company. From an award for applicants, the defendant appeals.

<p>From Marion Superior Court (95,953); Theophilus J. Moll, Judge.</p> <p>Action by Bessie M. Corwine against Martha N. McKay and others. From a judgment for plaintiff the defendant named appeals.</p>

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Florence M. Hay against the Meridian Life and Trust Company of Indiana. From á judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal.—Sufficiency of Evidence.—Scope of Review.—In determining the sufficiency of the evidence to sustain the judgment the court on appeal must consider only the evidence most favorable to appellee and the inferences to be drawn therefrom in appellee’s favor, p. 240.</p> <p>2. Husband and Wife.—Wife as Surety.—Determination of Relation.—Statute.—Whether a married woman is surety within the ■ meaning of §7855 Burns 1914, §5119 R. S. 1881, is not to be determined by the form of the contract, nor from the basis from which the contract was had, but from whether she is to receive in person, or in benefit to her estate, the consideration upon which the contract rests, and to the extent to which she receives the benefit of a contract she is not a surety, but a principal, p. 246.</p> <p>3. Principal and Agent.—Agent’s Embezzlement of Principal’s Funds.—Remedies of Principal.—Where an agent, in violation of his trust, uses the money of his principal, the law implies a trust in favor of the principal, and to enforce it equity will subject the property purchased to the claims of the principal, as against either a volunteer or a fraudulent grantee, p. 246.</p> <p>4. Husband and Wife.—Joint Obligations.—Wife as Susband’s Surety.—Where a husband acted as agent- in ■ handling trust funds, making investments, etc., for a period of years, and he and his wife maintained a joint bank account in which money received in the course of business was commingled with their personal funds, and real estate was purchased, in their joint names with funds taken from such account, the wife received a benefit to her. estate by a settlement agreement of a client, who forebore to sue for an accounting, or to follow the joint property of the husband and wife, to satisfy her claim, so that the wife was a principal, and not her husband’s surety, on a note and mortgage executed by both in full release of all claims against the husband, p. 246.</p> <p>5. Husband and Wife.—Mortgages.—Wife as Signer.—Relation-Evidence.—In an action against a .widow to foreclose a mortgage on property which she had held jointly with her husband, the mortgage, which was executed by the husband and wife, having been given in satisfaction of a claim of the mortgagee against the husband, it was not error to refuse to allow defend- . ant to testify whether she received any money, property or thing of value for the execution of the mortgage, where there was sufficient consideration therefor in the mortgagee’s forbearance to sue for an accounting, or to follow the joint property of the husband and wife. p. 247. ;</p>

<p>1. Judgment.—Vacating.—Notice by Publication.-—Statutes.—Under §627 Burns 1914, §600 R. S. 1881, providing that, except in cases of divorce, parties against whom a judgment has been rendered on notice by publication may, at any time within five years, have the judgment opened and be permitted to defend, and §628 Burns 1914, §601 R. S. 1881, providing that, before any judgment shall be opened, such parties shall file an affidavit stating that during the pendency of the action they had received no actual notice thereof in time to appear in court and object to the judgment, one not served with notice otherwise than by publication, and who had no actual notice of the pendency of the action in time to appear and object to the judgment is entitled to have it opened as against the judgment plaintiffs and others not bona fide purchasers for value who are protected by §629 Burns 1914, §602 R. S. 1881. p. 252.</p> <p>2. Judgment.—Vacation.—Notice by Publication.—Statutes.—Sections 627, 628 Burns 1914, §§600, 601 R. S. 1881, providing for vacation of a judgment rendered on notice by publication, where the party -against whom it was rendered did not have actual notice in time to appear and defend, are remedial and should be liberally construed to the end that party litigants may have an opportunity actually to be heard, it being the policy of the law to dispose of causes on their merits, p. 253.</p> <p>3. Appeat,.—Review.—Default Judgment.—Setting Aside.—Decision on Merits.—Appellate courts are very reluctant to disturb the trial court’s action in setting aside a default and permitting a trial on the merits, p. 253.</p> <p>4. Judgment.—Default.-—Vacation. — Verified Application. — Sufficiency.—Under §§627, 628 Burns 1914, §§600, 601 R. S. 1881, providing that a party against whom judgment has been rendered, on notice by publication, may at any time within five years have it opened, and be permitted to defend, but requiring that he shall first file an affidavit stating that, during the pendency of the action, he received no actual notice thereof in time to appear in court and object to the judgment, a verified application made by one of a number of defendants served only by publication that he had the authority to, and made the samé in behalf of himself and each codefendant, that he knew the facts in relation to each codefendant, that during the pendency of the action neither he nor any defendant received any actual knowledge of the action in time to appear in court and object to the judgment, and that neither he nor any other defendant had any knowledge, direct or indirect, of the pendency of the suit, or of any action taken therein until long after the judgment was rendered, was sufficient to warrant the court in vacating the judgment as to all defendants where such application was in no way challenged, though ordinarily, as regards the knowledge of affiant’s codefendants, it would be regarded as hearsay, p. 253.</p> <p>5. Quieting Title.—Parties.—Joinder.-—Application. — Statute.— Under §273 Burns 1914, §272 R. S. 1881, providing that when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be joined as proper parties, and that when, in an action for the recovery of real property, a person not a party, but having an interest in the subject of the action, makes application to the court to be made a party, it may order him to be made a party by the proper amendment, where, on the trial of an action to quiet title, it appeared that defendant had conveyed to a railroad company, it was proper for the court to grant such company’s application to become a party, p. 256.</p> <p>6. Taxation.—Tax Deeds.—Prima Facie Evidence.—Title.—Regularity of Proceedings.—Statute.—A tax deed in the- form prescribed by the statute (§10380 Burns 1914, Acts 1891 p. 199) is prima facie evidence of the regularity of the sale and all prior proceedings, and also of a valid title in fee simple in the grantee, p. 256.</p> <p>7. Taxation.—Tax Deeds.—Presumption as to Title.—Rebuttal.— In an action to quiet title, where plaintiff introduced in evidence a tax deed in the form prescribed by §10380 Burns 1914, Acts 1891 p. 199, under which he claimed 'title, it was incumbent on defendants to rebut the presumption of title raised by such deed, p. 257.</p> <p>8. Taxation.—Tax Title.—Validity.—Defective Description.—Under §10387 Burns 1914, Acts 1891 p. 199, providing that no sale or conveyance of land shall 'be valid if the description is so imperfect as to fail to describe the land with reasonable certainty, a tax deed describing the land conveyed as two acres in the form of a square in the northwest corner of the north 30.60 acres, except six acres in the form of a square in the northwest corner thereof, of the northeast quarter, etc., is, without the aid of extrinsic evidence to show which corner was the northwest corner after the removal of the six-acre tract, too indefinite to pass title, notwithstanding §10360 Burns 1914, Acts 1891 p. 199, providing that, when less than'the whole of any tract of land shall be sold, the quantity sold shall be in a square form as nearly as practicable at the most northwesterly corner of the tract, since a section in the form of a square having been carved from the northwest corner of the parcel, it cannot be determined without evidence what then was the northwest corner, p. 258.</p> <p>9. Taxation.—Ta® Title.—Validity.—Failure to Comply with Statutes.-—Feeds.—The failure of the the county auditor to comply with any material provision of §§10354, 10355 Burns 1914, Acts 1891 p. 199, requiring the making and recording of a delinquent list at the end of each year and the posting of a copy of such list on the door of the courthouse' and in a public and conspicuous place in each township, etc., is sufficient to overcome the prima facie title made out by a tax deed. p. 259.</p> <p>10. Taxation.—Ta®. Title. — Validity. — Evidence. — Documentary Evidence.—Admissibility.—Statutes.—Under §478 Burns 1914, §462 R. S. 1881, providing that exemplifications or copies of records and records of deeds shall be proved by the attestation of the keepers of such records that the same are true and complete copies of the records, etc., certified copies of the certificates contemplated by §§10354, 10355 Burns 1914, Acts 1891 p. 199, providing that at the end of each year the auditor shall make out and record in a designated book a delinquent list, and sign on the record that the list is correct, and that at least three weeks before a sale shall post a copy of the list on the door of the courthouse, etc., which do not purport to be copies of the record, or to be true and complete copies, are inadmissible to show the invalidity of a tax deed, regardless of whether they are considered as copies of records, or of files in the auditor’s office, p. 260.</p>

From Boone Circuit Court; Willett PL. Parr, Judge. Action by Joel T. Deer ag’ainst Benjamin Easley and another, in which George W. Deer, executor, was substituted for plaintiff, who died before the trial. From a judgment for plaintiff, the defendant named appeals.

From DeKalb Circuit Court; Alphonso G. Wood, Special Judge. Action by Union Products Company against George J. Spindler, who counterclaimed. From a judgment against plaintiff and in favor of defendant on his counterclaim, plaintiff appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation'Act by Adra M. Tompkins and others against Hege and Company and another. From an award for applicants, the defendant appeals.

<p>From Noble Circuit Court; L. K. Wrigley, Judge.</p> <p>Action by John P. Smith against Dorliska A. Devoe and others. From a judgment for defendants, the plaintiff appeals.</p>

From Clinton Circuit Court; Henry II. Vinton, Special Judge. Action between Wiley S. Felter and Walter Stigleman and others. From an order overruling a motion of the latter parties to correct nunc pro tunc the record of a judgment in the cause, they appeal.

<p>From Marion Superior Court (98,287); Vincent G. Clifford, Judge.</p> <p>Action . by Otto Haywood against Joseph Guy Haugh. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (97,778); Theophilus J. Moll, Judge.</p> <p>Action by J.'C. Ertel and Company against John Stewart and another. From a judgment for plaintiff, the defendant named appeals.</p>

<p>Basements.—Drainage.—Division of Land.—Continuance of Right hy Operation of Law.—Where the owner of a tract of land divided it into parcels after constructing a drainage ditch, and then sold servient land to plaintiff, and later sold dominant land to defendants, all of whom purchased with full knowledge of the ditch and in reliance upon the right to continue its use, the right to use the drain continued in favor of the dominant owners, since, where the owner of an estate imposes upon one part an apparent and obvious servitude in favor of another, and at the time of the severance the servitude is in use and is reasonably necessary for the fair enjoyment of the other, then, whether the severance is by voluntary alienation or by judicial proceedings, the use is continued by operation of law.</p>

From White Circuit Court; James P. Was on, Judge. Proceedings on the petition of Jeremiah Gochenour, administrator de bonis non of the estate of Theodore Scott, deceased, against Bertha M.Eldredge and others to’sell real estate of decedent to pay debts, to which Jacob D. Timmons was made a party. From a judgment denying the petition, Timmons appeals.

<p>1. Master and Servant.—Workmen’s Compensation Act.—Injuries Arising Out of Employment.—In a proceeding under the Workmen’s Compensation Act, Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918, to recover for the death of a servant who was struck by a locomotive engine while proceeding to his work through the yards of a steel company for which his employer was doing certain construction work, the facts found by the board held to warrant the conclusion that the workmen’s injuries resulting in his death arose out of his employment, p. 308. .</p> <p>2. Evidence.—Undisputed Evidence.—Weight and Sufficiency.—A fact cannot be taken as established by undisputed evidence merely because the testimony of a witness in relation thereto is not directly controverted, where such testimony is so inconsistent with other facts and circumstances shown by the evidence as to have little or no weight, or so inherently improbable that it amount to mere conjecture, p. 308.</p> <p>3. Master, and Servant.—Worlcmen’s Compensation Act.—Proceedings for Atoará.—Weight of Evidence.—Province of Industrial Board.—In a proceeding for compensation under the Workmen’s Compensation Act, Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918, it is the exclusive province of the Industrial Board to consider testimony and give it such weight as in the judgment of the board is proper, and its conclusion in this respect is conclusive, p. 809.</p> <p>4. Master and Servant.—Workmen’s Compensation Act.—Injuries Arising Out of and in Course of Employment.—In a proceeding under the Workmen’s Compensation Act, Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918, the question whether the injury or death arises out of and in the course of the employment within the meaning of the act does not depend on the minute details of what the workman was doing at the time of the accident, or how he was doing it, or whether he was in any manner at fault, but rather upon whether the injury or death was due to a hazard to which the workman would not have been exposed apart from the business in which he was employed, p. 309.</p> <p>5. Master and Servant.—Workmen’s Compensation Act.—Injuries Arising Out of and in Course of Employment.—Personal injury arising out of and in the course of employment within the meaning of the Workmen’s Compensation Act, Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918, includes injuries to employes whose services are being performed about the premises occupied, used or controlled by the employer, and at places where their employer’s business requires their presence and subjects them to dangers incident to the business, p. 309.</p> <p>6. Master and Servant.—Workmen’s Compensation Act.—Injury Due to Intoxication.—Though a workman’s injury arose out of his employment, there can he no award of compensation in a proceeding under the Workmen’s Compensation Act, Acts 1915 p. 392. §80201 et seq. Burns’ Supp. 1918, where the injury was due to the employe’s intoxication, in view of §8 of the act. p. 310.</p>

<p>1. Master and Servant.—Injuries to Servant.—Action.—Complaint.—Sufficiency.—Violation of Statutory Duty.—In a servant’s action for personal injuries, a complaint alleging that the master knew that cogwheels upon a pump, operated by the injured servant, were unguarded and dangerous, and that it was practicable to have maintained a shield or guard around such cogs, showed a violation of §8029 Burns 1914, Acts 1899 p. 231, requiring dangerous machinery to be guarded, and such violation constitutes negligence per se. p. 316.</p> <p>.. Master and Servant.—Injuries to Servant.-—Safe Place to Work.—Delegation of Duty.—The master cannot relieve itself of the responsibility to maintain guards about dangerous machinery, as required by §8029 Burns 1914, Acts 1899 p. 231, by delegating the duty to another, not even to the injured servant, p. 316.</p> <p>3. Master and Servant.—Injuries to Servant.—Dangerous Machín- . cry.—Operating Without a Guard.—-Liability of Master.—Contributory Negligence.—Where a servant continues to operate a machine upon which the cogwheels are not guarded, as required by §8029 Burns 1914, Acts 1899 p. 231, and is injured, recovery cannot be denied upon the ground that he failed to guard the cogs after the master had delegated that duty to him, but only on the ground that he is guilty of contributory negligence, p. 317.</p> <p>4. Master and Servant.—Injuries to Servant.—Action.—Complaint. —Sufficiency.—Proximate Cause.—In a servant’s action against the master for personal injuries resulting from, improperly guarded machinery, a complaint alleging that as a result of plaintiff’s feet slipping on a greasy platform “he lost his balance and his body suddenly and involuntarily swayed,” causing his hand to be caught in a cogwheel not guarded, as required by §8029 Burns 1914, Acts 1899 p. 231, is not defective because showing that the proximate cause of the injury was the fact that plaintiff “lost his balance,” etc., rather than the negligence of the master in not properly guarding the cogs. p. 317.</p> <p>5. Trial.—Instructions.—Including Pleadings.—It is not error to embrace pleadings in instructions, p. 318.</p> <p>6. Trial.—-Instructions.—Inferences from Evidence.—It. is not error to instruct.the jury that it may draw reasonable and natural inferences from the facts proved to its satisfaction, p. 318.</p> <p>7. Trial.—Instruction.—Including Statutes.—It is proper to copy into an instruction selections from the statutes, or other authorities, and read them as part of the written instructions, p. 318.</p> <p>8. Master and Servant.—Injuries to Servant.—Action'.—Instructions.—Proximate Cause.—Concurrent Causes.—In an action for personal injuries, an instruction that the negligence charged as the proximate cause of the injury need not be the only cause is correct, p. 318.</p> <p>9. Master and Servant.—Injuries to Servant.—Unguarded Machinery.—Def0nse$.—Hazar-d ¡of Employment.—dn a servant’s action against the master brought under the Employers’ Liability Act, Acts 1911 p. 145, §8020a Burns 1914, for injuries resulting from the master’s failure to guard cogs on a pump, as required by §8029 Burns 1914, Acts 1899 p. 231, it is no defense that the ■dangers or hazards inherent or apparent of the employment contributed to the injury, since in such a case the employe cannot be charged with contributory negligence, and does not assume the risk of his employment, p. 319.</p> <p>10. Appeal.—Review.—Harmless Error.—Instructions.—In a servant’s action against the master resulting from improperly guarded machinery, even though an instruction was erroneous in making the negligence of the servant unconditionally the negligence of the master, such error is harmless where the uncontradicted evidence shows that the master was negligent per se because violating a statutory duty in not keeping dangerous machinery guarded, p. 319.</p> <p>11. Appeal. — Review. — Harmless Error. — Instructions. — In an action for personal injuries, an instruction erroneously stating that defendant was a corporation was harmless, since §371 Burns 1914, §365 B. S. 1881, requires no proof as to the capacity in which a party sues or is sued, unless such capacity is denied by a pleading under oath or affidavit filed therewith, p. 320.</p>

<p>Attachment.—Creditors.—Filing Claims.—Laches.—Statute.—Under §978 Burns 1914, §943 R. S. 1881, providing that any creditor of defendant, upon filing his affidavit and written undertaking, as required by the attaching creditor, may, at any time before final judgment, make himself a party and file his claim, judgment creditors of defendant had the right to come in, and file under an attachment suit, where final judgment had not been rendered, though they delayed filing under the attachment proceedings until after plaintiff had appealed from the original judgment therein, obtained a reversal and the cause was redocketed in the lower court.</p>

From Jasper Circuit Court; Charles W. Hanley, Judge. Action, by Albertus M. Yeoman, administrator of the estate of Isaac N. Makeever, deceased, against Francis M. Makeever and others. From a judgment for plaintiff, the defendant named appeals.

From the Industrial Board of Indiana. Proceeding’s for compensation under the Workmen’s Compensation Act by Joe Ceislik against the Consumers Company. From an-award for applicant, tbe defendant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Giovanni Celotto against the Indiana Car and Equipment Company. From an award for applicant, the defendant appeals.

<p>From' Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by the Ontcanlt Advertising Company against Ernest K. Marker. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Bills and Notes.—Promissory Note.—Signing Corporate Name and Official Name.—Liability.—Where a note, joint and several in form, reading “We or either of us promise to pay,” and “the drawers * * * severally waive presentment,” was signed by a company and by defendant, with the word “president” immediately following his signature, such note, though given in renewal of a prior note of the company, was the obligation of defendant, as well as of the company, there being nothing in the language of the instrument itself to show whose obligation it was intended to be. pp. 350, 352.</p> <p>2. Evidence. — Signature as Agent. — Presumption. — Where one signs an instrument as the agent of another, the prima facie presumption is that the words are merely descriptio personae, so that the person signing is personally bound, although in an action between the original parties, under proper pleadings, the real intention may be shown, p. 352.</p>

<p>1. Deeds.—Delivery.—A deed, though duly signed, sealed and acknowledged, is not effectual to convey title until it has been either actually or constructively delivered, p. 359.</p> <p>2. Deeds.—Delivery.—Intent of Grantor.-—In determining whether there has been a delivery of a deed so as to pass title, the intention of the grantor is the controlling element, and it may be manifested by words, acts, or conduct, p. 359.</p> <p>3. Deeds.—Delivery.—Intent of Grantor.-—To constitute a delivery of a deed so as to pass title, it is necessary that the grantor should intend to give present effect to the instrument, p. 359.</p> <p>4. Deeds.—Delivery.—Escroio.—An unconditional delivery of a deed to a third person for the use and benefit of the grantee, where the grantor intends to divest his title and to part with all control of the instrument, is a sufficient delivery, but, if the grant-- or reserves to himself any right to recall or withdraw such deed while in the hands of a third person, or by any act or volition he can recall it, such delivery will not be effective to convey title, p. 360.</p> <p>5. Deeds.—Delivery.—Return to Grantor.—Retention.—If a deed is once delivered with intent to invest the grantee with title, the fact that it is returned to the grantor and kept by him will not divest the title, and the grantor’s retention of the deed is not inconsistent with its contemporaneous delivery, when a life estate in the property is reserved to the grantor, p. 360.</p> <p>6. Deeds.—Reserving Life Estate—Time of TaMng Effect.—Presumption.—The reservation of a life estate in the grantor creates a presumption that the deed was intended to take effect immediately as a conveyance of an estate, p. 360.</p> <p>7. Deeds.—Delivery ím Escrow,—Grantor's Right to• Recall.— Effect.—Where a deed, reserving a life estate to grantors, was placed in the hands of a third person to be delivered at the grantors’ death, but was subject to recall by the grantors and grantee jointly, the instrument was ineffectual for want of delivery, since it had not passed beyond the control and dominion of the grantors. p. 361.</p> <p>8. Deeds.—Delivery.—Evidence.—In an action to quiet title, evidence showing that grantor, at the time he executed a deed to his daughter, stated that he knew that a delivery of the instrument was necessary to make it effectual to pass title, but made inquiry whether he could deliver it to the grantee and then have her return it to him to be retained during his lifetime, and was informed by the scrivener that he could, that he placed the instrument in the hands of the grantee, stating that it was the deed to her property and that after his death he wanted her to have it recorded, but that he wanted to keep the deed in his possession ahd to collect the rents and profits from the property as long as he lived, and that grantee held the deed only for a moment before handing it back to grantor, is sufficient to show a present intention of grantor to deliver the deed to grantee so as to pass title, p. 362.</p>

From. Hamilton Circuit Court; Ernest E. Gloe, Judge. Action by tbe Reserve Loan Life Insurance Company against Horace Gr. Brown and another, in which John L. .Dulin, receiver of the Hamilton Trust Company, was admitted on his petition as a party defendant. From a judgment for the receiver, the plaintiff appeals.

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation for the death of Frederick Schwartz. From a finding by the Industrial Board that Jessie Schwartz, widow of deceased, was entitled to the full award, Marietta Mabel Schwartz, by her next friend, Lizzie James, appeals.

<p>From Randolph. Circuit Court; Theodore Shochney, Judge.</p> <p>Action by Nancy E. Huffman against Seth G. Wells and others. From the judgment rendered, the defendant named appeals.</p>

<p>From Delaware Superior Court; Robert M. VanAtta, Judge.</p> <p>Action by Elwood Bales against the Indiana Union Traction Company. From a judgment for plaintiff, the defendant appeals.'</p>

<p>From Jay Circuit Court; Jacob F. Denney, Judge.</p> <p>Action by Elmer Slieffer, by Ms next friend, against tbe Muncie and Portland Traction Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Vanderburgh Circuit Court; F. M. Hostetter, Judge.</p> <p>Action by Lewis McDonald against the Public Utilities Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal.—Briefs.—Waiver of Error.—Error assigned on the overruling of a demurrer to the complaint is waived by appellant’s failure to set out in his brief the substance of the demurrer, or the memorandum filed therewith, p. 406.</p> <p>2. Bills and Notes.—Place of Execution.—Presumption.—In an action on notes’ dated at a city in another state, it will be presumed, in the absence of an allegation to the contrary, that the notes were executed in that state, p. 407.</p> <p>3. Bills and Notes.—Note Payable in Another State.—Negotiability.—What Law Governs.—Where notes are payable in another state, their negotiability must be determined by the laws of that state, p. 407.</p> <p>4. Evidence.—Judicial Notice.—Foreign Statutes.—Presumption.— Pleading and Proof.—The courts of Indiana cannot take judicial notice of the statutory laws of another state, and parties desiring to assert any rights thereunder must plead and prove.such laws, since where that is not done the presumption is that the common law prevails in the foreign state, p. 407.</p> <p>6. ■ Bills and Notes.—Note Payable in Another State.—Negotiability.—Presumption.—In an action on promissory notes payable in another state, where the complaint is silent as to any law relating to the negotiability of promissory notes in that state, it will be presumed that the law merchant, unmodified by statute, prevails, p. 408.</p> <p>6. Bills and Notes.—Note Payable in Another State.—Negotiability.—Under the law merchant, unmodified by statute, promissory notes are nonnegotiable. p. 408.</p> <p>7. Bills and Notes.—Promissory Note.—Action.—Answer of Want of Consideration.—Sufficiency.—In an indorsee’s action on nonnegotiable promissory notes, an answer averring that the contracts sued on were executed and given without any consideration whatever is sufficient, as against demurrer, as a plea of want of consideration, p. 408.</p> <p>8. Pleading.—Complaint.—Allegations.—Performance of Conditions.—Where suit is brought to recover money payable on the happening of a certain contingency, the complaint must show that the contingency has happened, p. 410.</p> <p>9. Pleading.—Matter in Abatement.—Performance of Conditions.— Where suit is brought to recover money payable on a contingency, but such fact is not disclosed by the complaint, and the contingency has not happened, the facts must be set up by way of answer in order to be available, and would constitute matter in abatement, p. 410.</p> <p>10. Pleading.—Mutter in Abatement.—Waiver.—In an action on notes, matter in abatement that the contingency on which the notes were payable had not happened was waived where pleaded along with matter in bar. p. 410.</p> <p>11. Appeal.—Revieiv'.—Harmless Error.—Ruling on Demurrer.— Error, if any, in sustaining a demurrer to a paragraph of answer is harmless, where all the evidence admissible thereunder was • admissible under another paragraph, p. 411.</p> <p>12. Pledges.—Collateral Security.—Collection.—Diligence Required of Pledgee.—The holder of collateral security is answerable for reasonable, but not extraordinary, diligence in its collection, p. 411.</p> <p>13. Pledges.—Defenses.—Collateral Security.—Collection. ■— Want of Diligence.—In an action on notes, an answer setting up the loss of collateral security delivered with the notes, but not alleging that there has been a failure on the part of the holders'to use reasonable diligence to collect the collateral, is insufficient as against demurrer, p. 411.</p> <p>14. Appeal.—Review.—Harmless Error.—Ruling on Demurrer.— Where, in an action on notes, plaintiff filed a reply in general denial to a plea of payment, evidence to show loss of collateral delivered with the notes is admissible under such pleadings, so that error, if any, in sustaining a demurrer to an answer setting up facts to show such loss was harmless, p. 412.</p>

<p>1. Appeal.—Waiver of Error.—Briefs.—Error assigned on the overruling of a motion for new trial is waived by appellant’s failure to state any proposition or point in its brief in reference thereto, p. 422. • . .</p> <p>2. Appeal.—Revieio.—Harmless Error.—Ruling on Demurrer.—■ Error, if any, in sustaining a demurrer to a paragraph of answer was harmless where the facts alleged therein were provable under another paragraph of answer, p. 422.</p> <p>3. Insurance.—Life Insurance.—Waiver of Conditions.—Acceptance of Premiums.—Where an insurer accepted the first annual premium on a life policy with knowledge that the insured was not in good health at the time, it waived a provision in the policy providing that the policy should not be binding until the first annual premium- is paid during the good health of the insured, p. 423.</p> <p>4. Insurance.—Life Insurance.—Affirmance of Policy.—Where insured was not in good health at the time the first annual premium on a^life policy was paid, and- the insurer, subsequently learning such fact, failed to take the necessary steps with reasonable promptness to avoid the policy under a stipulation thereof providing that the policy should not become binding until payment of the first annual premium during the good health of insured, the insurer will be held to have affirmed the policy, p. 423.</p> <p>5. Insurance.—Life Insurance.—Avoidance of Policy.—Return of Premiums.—Where insured was in poor health at the time of the payment of the first annual premium, it was necessary for the insurer, to avoid the policy because of a breach of a provision therein stipulating that the policy should not be binding until the payment of the first annual premium during the good health of the insured, to notify insured of its election to avoid the policy, its reasons therefor, and to tender back the premium paid. p. 423. ‘</p> <p>6. Insurance. — Life Insurance. — Prepayment of Premium.— Waiver.—A provision, in a life policy that it should not be binding until the first annual premium was paid while insured was in good health was inserted in the policy for the benefit of the insured, and could be waived by it. p. 425.</p> <p>7. Insurance. — Life Insurance. — Prepayment of Premium.— Waiver.—Evidence.—Where the insurer delivered a life policy, dated May 3, 1913, to insured in the spring of that year, with knowledge that insured had not paid the first annual premium, ■ and in the fall of the same year insured, through an arrangement with the insurer’s secretary, paid the net amount of the first annual premium, which was retained by the company continuously "until the day of trial of the action on the policy before it was tendered back, and in April, 1914, the insurer sent to insured a notice that the second annual premium would become due in the following May, the insured waived a condition of the policy stipulating that it should not become binding until the first annual premium had actually been paid. p. 425.</p> <p>8. Insurance. — Life Insurance. — Prepayment of Premium.— Waiver.—Effect.—Where the insurer waived the prepayment of the first annual premium on a life policy, as required by a provision thereof, it in effect extended credit to insured for such premium, and insured’s failure to pay the premium would not work a forfeiture of the policy under such circumstances in the absence of a provision to that effect, p. 426.</p> <p>9. Appeal.—Review.—Search of Record.—The court on appeal will not search the record for errors on which to base a reversal, p. 427.</p> <p>10. Insurance.—Life Insurance.—Payment of Premium,.—Waiver. —Effect.—Where an insurer waived its right to Squire the payment of the first annual premium before a policy became effective, such right cannot be reclaimed by the insurer and a defense predicated thereon in an action to recover on the policy, p. 427.</p> <p>11. Appeal.—Review.—Harmless Error.—Erroneous Conclusions of Law.—In an action on a life insurance policy, any statement in the conclusions of law as to the right of recovery, notwithstanding insured’s failure to pay the first annual premium and a provision in the policy requiring such payment, was harmless, even though unauthorized, where the right of recovery did not depend on the actual payment of such premium, p. 427.</p> <p>12. Appeal.—Review.—Harmless Error.—Defective Conclusions of Law.—Where the conclusions of law, properly stated on the facts found, justify the judgment, the statement of other erroneous conclusions of law is not reversible error, p. 427.</p>

From Vanderburgh Circuit Court; Duncan C. Givens, Judge. • • Proceedings by James' M. House, administrator with the will annexed of the estate of Helena Combs, deceased, to sell real estate to pay debts, opposed by Prank Cardinal and Edward Combs. Prom an adverse judgment, the administrator appeals.

From Adams Circuit Court; David E. Smith, Judge. Alexander J. Wiley, executor, filed his final report, to which exceptions were filed by Oliver P. Wiley and another. From a judgment approving a corrected final report, the executor appeals.

From Hamilton Circuit Court; Fred E. Hines, Special Judge. Proceedings on the petition of John W. Holtzman and another for an allowance of attorney’s fees in the matter of the estate of John W. Jessup, an insolvent, Samuel M. Smith, assignee, and another filing objections. From an adverse judgment, the petitioners appeal.

<p>From Starke Circuit Court; W. C. Pentecost, Judge.</p> <p>Action by Robert D. Peters against Michael E. Martin and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Martin Circuit Court; James W. Ogdon, Judge.</p> <p>Action by Halic Davisson against Harley Dustin and others. From the judgment rendered, the plaintiff appeals.</p>

<p>1. Appeal.—Assignment of Errors.-—Matters Assignable.—Grounds for new trial cannot be independently assigned as error on appeal, p. 448.</p> <p>2. Appeal.—Questions Presented.—Ruling on Demurrer.—Briefs.— No question is presented fox review by an assignment of error in overruling a demurrer to a complaint, where appellant fails to set out in its brief, as required by the rules of the Appellate Court, the demurrer with the memorandum required to be filed therewith, p. 448.</p> <p>3. Appeal.—Questions Presented.—Refusal of Instruction.—The trial court’s refusal to give defendant’s requested instruction will not be reviewed on appeal where defendant fails to set out the instruction in its brief as required by the rules of the Appellate Court, p. 448.</p> <p>4. Dbuggists.—Contributory Negligence.—Use of Drug.—Jury Questions.-—In an action against the vendor for damages to horses resulting from the use of a “dip” preparation, where the complaint averred that plaintiff informed defendant’s agent, at the time the preparation was purchased, that he wanted to use it as a stock “dip,” that it was sold for that purpose, and that the agent instructed plaintiff as to the use of the “dip,” telling him at the time that it was not dangerous or poisonous, and such averments were supported by the evidence, the question whether plaintiff was eontributorily negligent in using the preparation was for the jury. p. 448.</p>

From Clinton Circuit Court; Joseph Combs, Judge. Action by tbe State of Indiana, on tbe relation of tbe A. and C. Stone and Lime Company, against tbe Illinois Surety Company and another. From a judgment for relator, tbe defendant named appeals.

From Marion Circuit Court (24,925); Louis B. Ewbank, Judge. Action by Mary I. Hollowell against James I. Leary. A cross-complaint was filed making Amos K. Hollowell a party defendant. From tbe judgment rendered, the defendants appeal.

<p>From Floyd Circuit Court; J ohn M. Paris, Judge.</p> <p>Action between William F. Ruoff and Susie B. Dowerman and others. From the judgment rendered, the former appeals.</p>

<p>Insurance.—Eire Insurance.—Unconditional and Bole Ownership of Property Insured.—Where, prior to the issuance of a Are insurance policy, insured entered into a written agreement whereby another was “to be and become a partner,” upon payment of $2,500, and was to have an interest in the store and business covered by tbe policy “when be had paid tbe full amount agreed upon,” but tbe prospective partner, after making a payment of §800, abandoned tbe agreement, insured, on destruction of tbe property, may recover on tbe policy, notwithstanding a stipulation providing that tbe policy should be void unless at tbe time it was issued insured was the sole and unconditional owner of tbe property insured, .since tbe agreement was in tbe nature of an option to tbe prospective partner which was unenforceable by insured, so that insured was tbe sole owner of tbe property within tbe meaning of tbe policy.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Yingenza Buanno and others against the Fort Wayne Rolling Mill Corporation. From an award for applicant, the defendant appeals.

<p>From Orange Oircnit .Court; William E. Paynter, Judge.</p> <p>Action oy Oscar F. Short against the McCowen, Prohst, Menaugh Company and another. From a judgment for plaintiff, the defendants appeal.</p>

From Scott Circuit Court;' Robert A, Creigmile, Judge. Action by Mollie Lyons, administratrix of the estate of Harry Lyons, deceased, against the city of New Albany. From a judgment for plaintiff, the defendant appeals.

<p>1. Contracts.—Letters Evidencing.—A valid contract may be made by correspondence, provided such correspondence contains a specific offer which is unconditionally accepted, p. 497.</p> <p>2. Contracts.—Elements.—Meeting of the Minds.—Before there can be an agreement, there must be a meeting of the minds of the parties on the matter attempted to be agreed on, and no contract can be said to have been created where their minds have not agreed on one and the same thing, p. 497.</p> <p>3. Sales.—Contracts.—Evidence.—Correspondence.—In an action for breach of contract, evidence consisting of correspondence covering the purchase and sale of flour held not to show a complete contract, in the absence of an unqualified acceptance by either party, p. 499.</p>

<p>1. Attorney and Client.—Money Withheld from Clients.—Jurisdiction of Courts.—Courts have summary jurisdiction over attorneys to order tlae payment of. money wrongfully withheld from clients, p. 505.</p> <p>2. Executors and Administrators.—Action for Wrongful Death.— Right of Administratrix to Proceeds of Judgment.—Tbe proceeds of a judgment recovered by an administratrix for tbe wrongful ~atb of ber decedent and paid to tbe clerk of tbe trial court was trust fund wbicb should be paid to tbe administratrix for disibution according to law. p. 505.</p> <p>Executors and Administrators.—Olaim for Attorney’s Fees.—■ Enforcement.—Under §2901 Rurns 1914, §2378 R. S. 1881, giving tbe expenses of administration, including attorney’s fees, priority over other claims against decedent’s estates, an attorney employed to prosecute a claim for tbe wrongful death of an administratrix’s decedent, bad ample legal remedy for tbe collection of any claim be may have had against tbe estate, and could-not maintain an action in equity to enforce an equitable lien on half of tbe proceeds of tbe judgment in tbe bands of tbe administratrix, tbe other half having been paid to other attorneys in tbe case. p. 505.</p>

<p>1. Appeal..—Assignment of Errors.—Matters Assignable.—That the court erred in overruling defendant’s motion for a continuance, that the judgment appealed from is not fairly supported by the evidence, that the judgment appealed from is clearly against the weight of the evidence, arid that the verdict of the jury and the judgment entered thereon are not supported by sufficient evidence and are contrary to law, are not proper assignments of error on appeal, p. 507.</p> <p>2. Continuance.-—Affidavit.—Sufficiency.—Diligence.—-Defendant’s affidavit for a continuance which fails to state when his cause was assigned for trial, when he learned thereof, when he caused the subpoena to be issued for the absent witness, when the subpoena was served, when he first learned of the absence of the witness, and when he went to the place where the witness had been employed and learned that he had not been at work for some time and that his whereabouts were unknown, is sufficient as not showing diligence, and the motion for a continuance was property overruled, p. 508.</p> <p>3. Appeal.—Assignment of Error.—Matters Assignable.—The fact that the hypotheses upon which certain questions were based .were shown by the evidence to be untrue, is not ground for an independent assignment of error on appeal, p. 509.</p> <p>4. Appeal.—Presenting Questions for Review.—Admission of Evidence.—Eypothetical Questions.—Even though the hypotheses, which were the bases of certain questions allowed over defendant’s objection, were shown by subsequent evidence to be untrue, the error, if any, in' permitting the answers to remain in the record is not available to appellant where he failed, after appellee rested her case, to make a motion to strike out the answers to such questions, p. 509.</p> <p>5. Appeal. — Review. — Evidence. — Weight and Sufficiency.—The court on appeal will' not weigh conflicting evidence, p. 509.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Charles W. Kuntz against the Peru Basket Company. From an award for-applicant, the defendant appeals.

<p>1. Pleading.—Oross-Oomplaint.—Legal Effect.—In an action to quiet title, the filing of a cross-complaint ashing for affirmative relief as to the real estate described in the complaint is substantially the institution of a reservation to enforce a separate and distinct right, p. 517.</p> <p>2. Appeal.—Moot Question.—Dismissal.—In an action to quiet title, where final judgment for defendants on their cross-complaint quieting their title to the realty involved was unappealed from and unappealable, an appeal prosecuted by plaintiffs only on alleged errors in forming issues upon the complaint involves moot propositions of law, since appellants would be without further remedy if their appeal were sustained, and the appeal must be dismissed, p. 517.</p>

From Laporte Circuit Court; James F. Gallaher, Judge. Action by the State of Indiana, on the relation of Hollis H. Heeter and another against L. Albert Eaton and another. From a judgment for defendants, the plaintiffs appeal.

<p>From Howard Circuit Court; J. F. Morrison, Special Judge.</p> <p>Action by Theodore C. Carson, by next friend, Lane Carson, against the Kokomo Steel and Wire Company. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Superior Court (95,291); John J. Rochford, Judge. Action by Samuel S. Rhodes and others against Grace K. Selvage and Joseph W. Selvage and others to foreclose a mechanic’s lien, in which others claiming liens were made parties defendant. From a judgment for defendants named, plaintiffs and the other lien claimant's appeal.

<p>From Lake Superior Court; Virgil E. Reiter, Judge.</p> <p>Action by John Seek against tke American Steel Foundries. From a judgment for plaintiff, tke defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Lena Kay against the Haskell and Barker Car Company. From an award for applicant', the defendant appeals.

<p>From Morgan Circuit Court; Nathan'A. Whittaker, Judge.</p> <p>Action by Ellen Spoon against tbe town of Mooresville. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Dekalb Circuit Court; Dan M. Link, Judge.</p> <p>Action by Otis E. Gundrum against Monroe W. Fitch and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Floyd Circuit Court; John M. Paris, Judge.</p> <p>Action by Herbert Smith against the Southern Express 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 Bertha Borchardt against the General American Tank Car Corporation. From an award for applicant, the defendant appeals.

<p>From Knox Circuit Court; B. M. Willoughby, Judge.</p> <p>Action by Joseph W. Smithmeier against the Western Construction Company. From a judgment for plaintiff against the defendant named, it appeals.</p>

<p>From Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by Eva J. Bilskie against Leo Bilskie and another.. From the judgment rendered, the defendant named appeals.</p>

<p>1. Pleading.—Complaint.—Proof.—Variances.—Statutes.—Although courts recognize the rule that plaintiff must recover on his allegations and proof or not at all, the application of the rule does not preclude them from giving effect to §§400, 700 Burns 1914, §§391,-658 B. S. 1S81, relating to variances, p. 608.</p> <p>2. Appeal.—Review.—Issues.-—Variance.— Presumptions. — Amendments to Complaint.—Where, in an action for the purchase price of corn, the complaint sought to recover for corn sold in January, but evidence was introduced without objection which would sustain a recovery for corn delivered in April, and defendants do not claim to have been misled by the variance, the court on appeal, if necessary, will deem the complaint to have been amended to conform to the proof, p. 609.</p> <p>3. Evidence.—Market Value of Gr'ain.-—In an action to recover the purchase price of a quantity of corn, evidence as to the value during the month of January and the first half of February, and that after that time and before the corn was delivered in April the market price dropped from five to ten cents a bushel, is sufficient to afford a basis for inference as to the value of the corn at the time of the April delivery, p. 609.</p> <p>4. Appeal.—Review.—Instructions.—Consideration as a Whole.— All instructions given should be construed as a whole, and if, when so considered, they fairly and accurately state the law of the case, it is sufficient, p. 610.</p>

<p>From Pike Circuit Court; John L. Brete, Judge.</p> <p>Action by Paul Plost against the Winslow Gas Company and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Pleading.—Amended Complaint.—Motion to Strilce Out.—Statute.—In view of §403 Burns 1914, §394 R. S. 1881, providing that a complaint may be amended without leave at any time before answer, it is not error to overrule a motion to strike out an amendment to a complaint, where defendant fails to aver in its motion that the amendment was made after the answer was filed. p. 620.</p> <p>2. Motions.—Construction on Appeal.—As against the action of the trial court, motions and pleadings must on appeal be construed most strongly against the proposers thereof, p. 620.</p> <p>3. Appeal.-—Review.—Ruling on Motion to Strilce Out—Findings of Fact.—Conclusiveness.—Even though a motion to strike out an amendment to a complaint and the affidavit in support of such motion show that the amendment was made after answer, and without leave, where the affidavit and plaintiff’s counter affidavit present an issue of fact for the trial court, its decision thereon is not subject to review on appeal, p. 620.</p> <p>4. New Trial.—(grounds.—Failure to Object.—Defendant’s motion for new trial on the ground that it was deceived and misled by alleged misconduct of plaintiff’s counsel in failing to mail its attorneys a correct copy of the amended complaint was properly overruled, where, upon learning of such deception before verdict, defendant failed to move to discharge the jury and for a continuance. p. 620.</p> <p>5. Trial.—Separation of Witnesses.—Discretion of Court.—A separation of witnesses at the trial of a cause is required neither by statute nor by common law, but is a matter within the sound discretion of the court, p. 621.</p> <p>6. Trial.—Separation of Witnesses.—Discretion of Court.—In an action for personal injuries, the court did not abuse its discretion in denying a motion to separate the witnesses, where the trial occurred in midwinter, and the court’s action was based on the fact that no room or place was provided for witnesses, p. 621.</p> <p>7. iSviDENCE.-—Judicial Notice.—Rising and Setting of Sun.—Almanac.-—Competency.—In an action for personal injuries the admission in evidence of an almanac to show the time the sun set on the day plaintiff was injured was not error, since the courts take , judicial notice of the time of the rising and setting of the sun on a given day, and an almanac may be used for the purpose of refreshing the memory of the court and jury. p. 621.</p> <p>8. Appeal.—Review.—Harmless Error.-—Admission of Evidence.— In an action for personal injuries error, if any, in the admission in evidence of an almanac to show the time of sunset on the day plaintiff was injured in order to prove that it was dark when the accident occurred, was harmless where there was no contradiction of that fact. p. 622.</p> <p>9. Master and Servant.—Injuries to Servant.—Evidence.—Custom of Master in Doing Work.—Admissibility.—In a servant’s action against the master for personal injuries sustained in falling upon a cake of ice, it was proper for the trial court to exclude evidence (that the master’s custom in the harvesting of ice in former years was the same as at the time of injury, since such custom may always have been improper, p. 622.</p> <p>10. Appeal. — Review. — Verdict. — Answers to Interrogatories.— Where the jury’s answers to interrogatories are consistent with the general verdict, it will be upheld if sustained by the evidence, even though the answers are contrary to uncontradicted evidence. p. 622.</p>

<p>1. Street Railroads.—Collisions.-—Action.—Complaint.—Contributory Negligence.—In an action for personal injuries sustained by plaintiff in a collision between his automobile and a street ear, the complaint is not bad as showing contributory negligence, because alleging, in charging defendant’s negligence, that the street was straight and unobstructed for a quarter of a mile from the scene of the accident, where it also averred facts showing that the street car approached plaintiff from the rear so that he did not have the same opportunity as the motorman of seeing the impending danger, p. 624.</p> <p>2. Appeal.-—Review.—Verdict.—Conflicting Evidence.—A. verdict based on conflicting evidence cannot be disturbed on appeal on the weight of the evidence, p. 626.</p> <p>3. Street Railroads.—Collisions.—Injuries to Driver of Automobile.—Last Clear Chance.—Instructions.—In an action for personal injuries sustained by plaintiff in a collision between his automobile and a street car, instructions relating to the doctrine of last clear chance, held, when taken as a whole, to state the law ■ correctly, p. 626.</p> <p>4. Street Railroads.—Collisions.-—Injuries to Driver of Automobile.—Last Clear Chance.—Instructions.—In an action for personal injuries sustained by the driver of an automobile in a collision with a street car the giving of an instruction that, if plaintiff was negligent in going into a place of danger on defendant’s track, and the motorman saw him there, and could have avoided the danger by the use of reasonable means at his command, but ■ did not do so, defendant would be liable even though plaintiff’s negligence continued to the instant of his injury, was reversible error, p. 627.</p> <p>5. Street Railroads.—Trades.—Use by Public.—Rights.—In view of the fact that street cars run on k fixed track, are operated for the convenience of the public, a street railroad company has a paramount or superior right of way over its tracks between street crossings, whenever Its rights conflict with those of a traveler in the street, to the extent that he must reasonably give way to a car which he knows is approaching and desires to pass him. p. 628.</p>

<p>1. Appeal.—Review.—Verdict.—Sufficiency of Complaint to Sustain Verdict.—In a servant’s action against the master for.personal injuries, a paragraph of complaint stating a cause of action under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914) is sufficient to sustain a verdict for plaintiff, where he brought himself within the terms of the statute, as required by the court’s instructions, and it is immaterial that other paragraphs of the complaint based upon common-law liability are subject to the fellow-servant defense, p. 635.</p> <p>2. Appeal.—Review.—Instructions.—Consideration as a Whole.— Presumptions.—Instructions should be considered as a whole, and not in detached fragments, and when so considered, if the law has been presented to the jury with reasonable clearness, it will be presumed that the jury was not misled, even though an instruction taken alone might be erroneous, p. 635.</p> <p>3. Master and Servant.—Injuries to Servant.—Questions for Jury. —Instructions.—Proximate Cause.—negligence.—In a servant’s action against a street ear company for injuries sustained by plaintiff when struck by a street car alleged to have been negligently operated, an instruction embodying the idea that the men in charge of the ear were in the exercise of due care, and that the accident and injury were caused by other employes, not charged with negligence, who ordered the car moved to the place where the accident occurred, was properly refused as assuming a fact which was disputed, where there was no evidence indicating that the employes giving the order were authorized to do so, since it was for the jury to determine whether the motorman in obeying such direction was in the exercise of due care, or whether the injury was the result of the combined negligence of the motorman and the employes giving the order, p. 636.</p> <p>4. Master and Servant.—Injuries to Servant.—Scope of Employment.—negligence.—Burden of Proof.—Statute.—Where defendant street car company, by its agent, announced that its employes would be paid at the car barns, the jury had the right to infer that such announcement amounted to an order to go to the barn to be paid, and that employes were in the line of their duty in so doing, and, in an action by a servant who was there struck by a ear, the burden of proving that the duty was performed in a negligent manner was upon the master under §8020b Burns 1914, Acts 1911 p. 145. p. 637.</p> <p>5. Negligence.—Contributory Negligence.—Sudden Peril.-—One acting under an impulse or upon the belief created by sudden danger by reason of another's negligence is not to be regarded as guilty of contributory fault, even though the act would be regarded as negligent under circumstances not indicating sudden peril, p. 637.</p>

From Monroe Circuit Court; Harry A. Lee, Special Judge. Action by the State of Indiana, on the relation of Mary R. Finley, guardian, against the United States Fidelity and Guaranty Company and another. From a judgment for relator, the defendant named appeals.

<p>From Johnson Circuit Court; W. E. Deupree, Judge.</p> <p>Action by Nora Peeler against the Indianapolis Traction and Terminal Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleadins.—Alternative Allegations.—At common law a pleading ■ is bad when it states material facts in -the alternative, and thereby makes it impossible to determine on which of several equally substantive averments the pleader relies for the maintenance of his action, p. 658.</p> <p>2. Pleading.—Complaint.—Construction as a Whole.—Sufficiency. —A complaint is to be construed, as a whole, and, if it contains facts sufficient to authorize any relief, it will be held good as against demurrer, p. 659.</p> <p>3. Pleading.—Complaint.—Sufficiency.—Alternative Allegations.— In an action by a livery stable keeper against an express company, a complaint charging that defendant brought an infected horse to plaintiff’s stable, when it knew, or could have known by the exercise of reasonable care, of the diseased condition of the horse, is not demurrable on account of such alternative pleading, p. 659.</p> <p>4. Animals.—Placing Infected Horse in Livery Stable.—Action.— Burden of Proof.—In an action by a livery stable keeper against an express company for placing a diseased horse in his stable, the burden was on plaintiff to show that defendant knew, or could have known of the diseased condition of -the horse, and that such disease was contagious, p. 661.</p> <p>5. Animals.—Infected Horse.—Knowledge of Disease.—Evidence. —Sufficiency.—In a livery stable keeper’s, action against an express company for placing an infected horse in his stable, evidence held insufficient to show that defendant had knowledge, either actual or imputed, of the diseased condition of the horse, p. 661.</p> <p>6. Animals.—Infected Horse.—Plachig in Livery Stable.—Reasonable Care.—Evidence.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, evidence, when properly presented, that catarrhal fever, with which the horse was afflicted, is not subject to quarantine in Indiana, should be admitted as going to the question of 'reasonr able care. p. 661.</p> <p>7. Animals.—Infected Horse.—Placing in Livery Stable.—Liability. Where an express company placed a horse infected with catarrhal fever in a livery stable, it was not liable to respond in damages to the stable keeper, unless it had either actual or imputed notice that the horse was afflicted with such disease, and that it was contagious and infectious at the time. p. 662.</p> <p>8. Animals.-—Contributory Negligence.—Receiving Infected Horse. —If a livery stable keeper, either personally or by agent, accepted from an express company a diseased horse with knowledge of its condition, and took no steps to prevent the communication of the disease, he was negligent in receiving the horse and keeping it, and could not recover, in an action agdinst the express company, for loss of business through infection of horses belonging to other customers, p. 662.</p> <p>9. Evidence.—Opinion.—Expert Witness.—Lack of Qualification.— In an action by a livery stable keeper against an express company for placing a diseased horse in his stable, it was improper to permit witness who had never visited the Chicago stockyards, and was unacquainted with their condition, to testify as to the probability of a horse shipped from there being infected with a particular disease, pp. 603, 664.</p> <p>10. Evidence.—Condition of Diseased Horse.—Testimony by Owner. —In an action by a livery stable keeper against an express company for placing an infected horse in his barn, it was proper for the trial court, in its discretion, to permit a witness, whose horse was infected with the disease, to testify as to its condition, p. 663.</p> <p>11. Evidence.—Opinion.—Physical Condition of Horse.—Expert Witness.—Qualification.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, it was proper for the trial court, in its discretion, to permit a witness, who was a liveryman with seven years’ experience, to testify as to the physical condition of the' horse involved, it not being always necessary that such a witness be a veterinarian with a technical education, p. 664.</p> <p>12. Evidence.—Opinion.—Condition of Horse.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, the trial court properly permitted a witness who had been a farmer all of his life to testify as to the condition of his horse, one of those infected by the disease, p. 664.</p> <p>13. Evidence.—Opinion.—Condition of Horses.—Expert Witness.— Qualification.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, it was proper to permit a witness, who had twenty or thirty years’ experience in handling horses, to testify as an expert.. p. 664.</p> <p>14. Witnesses.—Impeachment.—Inconsistent Statements.—In a livery stable keeper’s action for damages, where plaintiff testified that at the time of closing his business he had about $1,000 in his pocket, it was error to exclude testimony by the owner of the ' stable that plaintiff owed him rent, and, on request for payment, had said that he had no money, p. 664.</p> <p>15. Animals.—Infected Horse.—Placing in Livery Stable.—Instruction.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, an instruction undertaking to state the substance of the complaint and informing the jury that, if plaintiff proved all the material averments thereof, the verdict should be for him, but failing to state that the damages incurred must have been without any fault or negligence on plaintiff’s part, was misleading and reversible error, p. 664</p> <p>16. Animals.—Infected Horse.—Placing in Livery Stable.—Instruction.—Imputed Knowledge.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, an instruction that if defendant, by the exercise of reasonable care and precaution, could have known that the horse was diseased, knowledge 'of the fact must be imputed to it, was correct, p. 665.</p> <p>17. Animals.—Infected Horse.—Placing in Livery Stable.—Instruction.—Inapplicability to Evidence.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, an instruction that, if defendant placed the horse in the barn during plaintiff’s absence, etc., was erroneous as being misleading, where the uncontradicted evidence showed that at the time the barn was in charge of plaintiff’s agent, and that he accepted the horse and placed it in a stall, p. 665.</p> <p>18. Animals.—Infected Horse.—Placing in Stable.—Instructions.— Contributory Negligence.—In an action by a livery stable keeper against an express company for placing an infected horse in his stable, an instruction based upon the theory that defendant put the horse in plaintiff’s stable in his absence, when he was present by his agent, and omitting the element of contributory negligence, was erroneous, p. 665.</p> <p>19. Animals.—Infected Horse.—Placing in Stable.—Instructions.— Omissions.—In an action by a livery stable keeper against an express company for placing an infected horse in his barn, as a result of which the disease was communicated to other horses, an instruction omitting the element of knowledge on the part of defendant whether the disease of the horse involved was contagious and infectious, was erroneous, p. 666.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Julia Schneidt against Hattie Schneidt and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge:</p> <p>Action by Charles A. Butler against John W. Culp. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (97,108); Theophilus J. Moll, Judge.</p> <p>Action by John H. Boyer and others against William F. Sclieigert and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Appeal.—Briefs.—Questions Beviewable.—No question is presented for review on appeal by an assignment of error predicated on the ruling of tbe court in sustaining appellee’s motion to strike out part of a paragraph of tbe appellant’s answer, where tbe motion or tbe substance thereof is not set out in tbe brief, p. 693.</p> <p>2. Appeal.—Briefs.—Questions Reviewahle.—No question is presented for review on appeal by an assignment of error predicated on the sustaining of appellee’s motion to strike out appellant’s counterclaim, where neither the motion, nor the substance thereof, is set out in the brief, p. 693.</p> <p>3. Appeal.'—Briefs.—Waiver of Error.—An assignment of error is waived by failing to present or discuss it in the briefs, p. 693.</p> <p>4. Exceptions, Bills of.—Time for Filing.—Extensions.—Sow Bhown.—Extensions of time for the filing of bills of exceptions, when in vacation, can only be shown by a recital in the bill. p. 693.</p> <p>5. Appeal.—Record.—Bills of Exceptions.-^-A bill of exceptions, not filed within the timé allowed by the court, and failing to show an extension of time granted in vacation, is not in the record, p. 694.</p> <p>6. Appeal.'—Review.—Evidence.—Bills of Exceptions.—Failure to Malee Part of Record.-—Evidence cannot be considered on appeal in the absence of a bill of exceptions containing the evidence, p. 694.</p> <p>7. Appeal.—Review.—Ruling on Motion for New Trial.—Presumptions.—Where’ nothing appears to the contrary, it will be presumed on appeal that the motion for new trial was properly overruled, p. 694.</p>

<p>1. Criminal Law. — Evidence. — Birth Record. — Admissibility. — Statute.—Under §478 Burns 1914, §462 R. S. 1881, relating to the use as evidence of copies of records, etc., in public offices, a birth record of the city board of health and charities produced by the custodian thereof, is admissible in evidence as against the objection that it was merely a copy of the original, though the original report, containing the data for the record, which was made by the physician attending at the birth, was transcribed into the record by some person other than the attending physician, p. 695.</p> <p>2. Criminal Law.—Evidence.—Record.—Admissibility.—In a prosecution for contributing to the delinquency of a female person under the age of eighteen years, the history record of the Juvenile Detention Home, in which the age of the person is set forth at the time of the offense charged, is inadmissible in evidence, where it had not been shown that the information from which the record was made up was obtained from any one having knowledge of the matters- contained therein, p. 696.</p> <p>3. Criminal Law.—Appeal.—Revieiv.—Harmless Error.—Admission of Evidence.—In a prosecution for contributing to the delinquency of a female person under the age of eighteen years, though it was error to admit in evidence the history record of the Juvenile Detention Home, setting forth the age of such person as being sixteen years at tbe time of tbe offense charged, where it had not been shown that the information from which the record had been made up was obtained from any one having knowledge of the matters contained therein, the error was harmless in view of the testimony of the female person that, at the time of her arrest and detention in the home, she gave to those in charge the information that she was sixteen years of age. p. 696.</p> <p>4. Criminal Law.—Appeal.—Review.—Admission of Evidence.— Scope of Review.—Only such reasons as are assigned in the trial court as objections to the admission of evidence will be considered on appeal in reviewing alleged error in the admission of such evidence, p. 697.</p> <p>5. Criminal Law.— Appeal.— Review.— Evidence.— Sufficiency.— The sufficiency of the evidence to support the finding of the trial court in a criminal case can be reviewed only where there is no evidence to support the decision, p. 697.</p>

<p>From Posey Circuit Court; Herdis Clements, Judge.</p> <p>Action by Callie Clark against the Southern Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Pike Circuit Court; John L. Brete, Judge.</p> <p>Action between Western Reserve Life Insurance Company and Lawrence A. Ebner, administrator of the estate of Joseph L. Ebner, deceased. From the judgment rendered, Ebner appeals.</p>

<p>From Warrick Circuit Court; Ralph B. Roberts, Judge.</p> <p>Action by Anna Fellman against Benjamin C. Schmidt, executor. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Huntington Circuit Court; Samuel B. Cook, Judge.</p> <p>Action between John W. Culp and Charles W. Watkins. From the judgment rendered, the former appeals.</p>

<p>From Marion Superior Court (98,708) ; Theophilus J. Moll, Judge.</p> <p>Action l)y Cicero School Board of Finance, Hamilton county, against the Equitable Surety Company. From a -judgment for plaintiff, the defendant appeals.</p>