Volume 71 — Indiana Appellate Court Reports

From Ripley Circuit Court; Robert A.. Creigmile, Judge. . Action by Grace M. King against Theophilus ft. Hartley, who filed a cross-complaint. From a judgment for defendant on his cross-complaint, the plaintiff appeals.

From Hendricks Circuit Court;. George W. Brill, Judge. Action by Nettie Senour, administratrix of tbe estate of Alfred Senour, deceased, against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.

From Adams Circuit Court; Dore B. Erwin, Special Judge. Action by tbe State of Indiana, on the relation of John Mock and another, against Ferdinand Bleeke and others. From a judgment for defendants, the relators appeal.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Harry C. Brbwn. From an order made by part of the Industrial Board, fixing the amount of attorney’s fees due applicant’s attorney, George W. Galvin, the latter appeals.

<p>1. Pleading. — Complaint.—Amending to Conform to Evidence.— The fact that.the issues are changed by an amendment of the complaint to make it conform to the evidence is no reason why the amendment should not be permitted, p. 39.</p> <p>2. Continuance. — Grounds.—Amendment to Complaint. — In a passenger’s action against a railroad company for injuries sustained by the derailment of a train, where the complaint charged that the engine and -cars were defective and insufficient in certain particulars unknown to plaintiff, so that they were liable to derailment, an amendment to the complaint, made to make it conform to the evidence, alleging that one car was of unusual height and size, and was stiff and new, and was thereby liable, to derailment, did not bring a new charge of negligence, its only effect being to make the complaint more specific, so that it was not error to overrule a motion for a continuance on account of the amendment, p. 39.</p> <p>3. Appeal. — Review.—Harmless Error. — Misconduct of Counsel.— In an action for personal injuries, statements by plaintiff’s counsel, in his argument to the jury, that plaintiff should not be given a low verdict, less than he was entitled to, with the idea that defendant would not appeal, as the case would be appealed anyhow, whatever the verdict might b.e, were improper, and it was error for the trial court to overrule an .objection thereto, but, as the effect of such statements was to increase the amount of damages assessed, and appellant, although specifying excessive damages as a ground for new trial, failed to present that question in his brief, indicating that it had no objection to the amount of the award, the error will be deemed harmless, p. 40.</p>

<p>1. Husband and Wife. — Action Against Wife. — Defense.—Coverture. — Pleading.—The defense arising from coverture is a personal defense, and, when pleaded to an action on contract against a married woman, the plaintiff must reply facts which show that the contract sued on is one on which she is hound, p. 51.</p> <p>2.. Husband and Wife. — Joint Obligations. — Action.—Plea of Suretyship by Wife. — Reply.—Sufficiency.—In an action against husband and wife to recover on notes executed by them inpayment of the purchase price' of a store, and to foreclose a mortgage securing the payment of the notes, paragraphs of plaintiff’s reply to paragraphs of answer filed by the wife pleading surety-ship, held to show sufficiently that she acquired a beneficial interest in the store by purchase, so that she would be a principal and not a surety on the notes, p. 52.</p> <p>3. Appeal. — Review.—Harmless Error. — Overruling. Demurrer.— Error, if any, in overruling demurrer to a reply seeking to estop defendants from asserting that the wife was a surety on the notes in suit is harmless, the court having determined that the wife was in fact a principal, p. 53.</p> <p>4. Appeal. — Briefs.—Sufficiency.—Rules of Court. — Where appellant’s brief states a number of abstract propositions of law without any specific application of the same, the brief fails to comply with the rules of court governing the preparation of briefs, p. 53.</p> <p>5. Husband and Wife. — Joint Obligations. — Wife as Surety. — Burden of Proof. — Where the obligation sued upon is that of husband and wife, and is secured by mortagage on real estate held by them as tenants by entireties, there is no presumption that the wife is surety, or that the consideration obtained was not used for the benefit of her joint estate, and the burden is upon her to allege and prove that she executed such obligation as surety and not as principal, p. 53.</p> <p>6. Husband and Wine. — Joint Obligations. — Relation of Wife.~Presumption. — That the notes sued on were the joint obligations of defendants, husband and wife, and that the title to the real estate involved was held by them as tenants by entireties at the time they executed the mortgage in suit to secure the notes, would, standing alone, create a presumption that the wife was a principal on the notes, and not a surety, and, where the other facts found by the court tend to support this presumption rather than to rebut it, the presumption stands, p. 5.4.</p> <p>7. Sales. — Executory Contract. — Title.—Intention of Parties. — In an executory "contract of sale the goods remain the property of the seller until the contract has been executed, and whether, in a particular case, there is an actual sale, or only an executory 'contract of sale, depends upon the intention of the parties, p. 55.</p> <p>8. Sales. — Executory Contract.- — Evidence.—In an action to recover on notes given for the purchase price of a store and to foreclose a mortgage given to secure the payment of the notes, evidence held to warrant the inference that the contract of sale remained executory until the execution of the bill of sale. p. 55.</p> <p>9. Appeal. — Review.—Findings.—Sufficiency of Evidence. — In determining whether the finding of facts is sustained by sufficient evidence, the court on appeal must not only consider the direct evidence most favorable to appellee, but also all reasonable inferences that the trial court was warranted in drawing therefrom, and this is true, although other and contrary inferences may be reasonably drawn from sucli evidence, p. 56.</p> <p>10. Appeal. — -Briefs.—Questions Presented. — Rulings on Evidence. —Where appellant’s brief fails to show that any exceptions were reserved to the rulings of the trial court with reference to the admission and rejection of evidence, no question in that regard is presented for the determination of the court on appeal, p. 56.</p> <p>11. Trial. — Venire de Novo. — Where there was a special finding of facts and conclusions of law thereon, and the facts found are sufficient to sustain the conclusions of law in favor of plaintiff, the motion for a venire de novo was properly overruled, p. 57.</p> <p>12. Appeal. — Briefs.—Waiver of Error. — Assigned errors are waived by a failure of appellants to make any specific reference thereto in the propositions or points in their brief, p. 57.</p>

<p>From Howard Circuit Court; A. B. Kirkpatrick, Special Judge.</p> <p>Action by Wiley S. Felter against John A. Ross. From a judgment for plaintiff, ■ the defendant appeals.</p>

From Hendricks Circuit Court; George W. Brill, Judge. Action by the Isgrigg Lumber Company’and others-against John J. Wood and wife and Harvey E. Cox.From the judgment rendered, defendants John J. Wood and wife appeal.

From Laporte Circuit Court; James F. Gallaher, Judge. Action by Emma Logermann, administratrix of the estate of John Logermann, deceased, against the Haskell and Barker Car Company. From a judgment for plaintiff, the defendant appeals.

From the Industrial Board of Indiana. Proceedings fo,r compensation under the Workmen’s Compensation Act by H. Claire Gibson and others against the Root Dry Goods Company. From an award for applicant, the defendant appeals.

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by the First National Bank of South Bend against Frank Mayr, Junior, and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Grant Superior Court; Robert M. Vcm Atta, Judge.</p> <p>Action by Clifford C. Boys against tbe Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff; the defendant appeals.</p>

<p>Wills. — Bights of Devisées and Legatees. — Median by Husband.— Necessity of. — Statutes.—Where a wife’s will devised her estate to her children and provided that they should support her husband, who was made executor, there was such a provision for him that he took under the will, without election, as provided by §3046 Burns 1914, Acts 1907 p. 73, and therefore he had no interest in her real estate under §3016 Burns 1914, Acts 1891 P. 71.</p>

<p>1. Carriers. — Carriage of Freight. — Schedule of Rates. — Notice.— Statute. — A schedule of freight rates filed with the Public Ser-' vice Commission, as required by §5540 Burns 1914, Acts 1911 p. 545, is binding both on the carrier and the shipper, and both ■ are chargeable with notice thereof, p. 121.</p> <p>2. Carriers. — Carriage of Freight. — Mistake in Rates. — Action for Balance. — Statute.—In view of §5540 et seq. Burns 1914, Acts 1911 p. 545, providing for uniform freight rates and requiring a schedule thereof to be filed with the Public Service Commission, where the rate for transporting coal, as filed with the commission, was sixty-five cents per ton,- but the carrier’s agent through mistake collected only sixty cents, it was not only the carrier’s right, but also its .duty to collect the difference between the amount charged by the agent and the rate filed: p. 121.</p>

<p>1. Sales. — Conditional Sales. — Rights of Parties. — Where the owner of personal property sells and delivers it to a purchaser, not for the purpose of consumption or resale, at an agreed price payable at a future day, upon the express condition and agreement that the title to the property shall remain in the vendor until the purchase price is fully paid, the vendee, prior to payment, can neither sell nor incumber the property so as to defeat the vendor’s title, p. 126.</p> <p>2. Evidence. — Pleadings.—In an action to replevin an automobile truck wherein defendant in his cross-complaint claimed a lien for repairs and supplies under §8294d et seq. Burns’ Supp. 1918, Acts 1915 p. 621, a fact alleged in the cross-complaint may properly be considered in connection with the evidence in determining the character of supplies furnished by defendant for the truck and entering into the amount of his alleged lien. p. 128.</p> <p>3. AREEAn. — Review.—Judgment.—Item of Recovery Erroneously Allowed. — Reversal.—In an- action against a garage keeper to replevin a motor truck left in his possession by a conditional vendee wherein defendant by cross-complaint set up a statutory lien for repairs, storage and supplies, including gasoline furnished at the request of such vendee, in the absence of any ' evidence showing that the conditional vendee had any authority, either . express or implied, from the vendor to purchase gasoline, judgment for defendant on his cross-complaint must be reversed, regardless of his right to a lien for the other items claimed, where there was no evidence of the amount and value of the gasoline so purchased, p. 128.</p>

<p>Prom Delaware Circuit Court; Frank Ellis, Judge.</p> <p>Action by Alvab C. Brazington against tbe Travelers Protective Association. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Orland M. Arthur against the .Farmers Mutual Insurance Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Insurance. — Life insurance.- — Forfeiture.-—Self-Executing ByLaws. — Where a beneficial association’s constitution is in such terms as to render it self-executing, the society need not take affirmative action against a member in order to declare a forfeiture, but the right to .benefits is lost immediately upon the default which by the constitution forfeits rights to benefits, p. 140.</p> <p>2. Insurance. — Life Insurance. — Society’s Constitution. — Construction. — The terms “those left behind” and “the family,” as used in a provision of a beneficial association’s constitution that suicide of a member deprives such groups of death benefits, are broad enough to include the wife of a member, p. 140.</p> <p>3. Appeal. — Review.—Instructions.—Failure to Include Evidence in Record. — Where the evidence is not in the record, none of the instruction's given will be held erroneous if correct under any evidence admissible under the issues, p. 141.</p>

<p>1. Sales. — Action for Purchase Price. — Complaint.—Sufficiency.— In an action to recover the value of an ice box, complaint alleging that defendant purchased the box from plaintiff at an agreed price, and that said sum was due and unpaid, held sufficient as against the objection that it failed to allege that title passed to defendant, p. 144.</p> <p>2. Appeal. — Review¿—Harmless Error. — Overruling Demurrer to Reply. — Where the special finding of facts shows that the judgment is-not based on a certain paragraph of reply, the action of the court in overruling a demurrer to such paragraph was harmless, p. 144.</p> <p>3. Appeal. — Presenting Questions for Review. — Correctness of Conclusions of Law: — Necessity of Talcing Exceptions. — Where no exceptions were taken below to the conclusions of law, no question as to their correctness is presented for review on appeal, p. 145.</p> <p>4. Appeal. — Presenting Questions for Review. — Rulings on Evidence. — Necessity of Talcing Exceptions. — Where no exceptions were taken to the action of the trial court in admitting or excluding evidence, .no question relating- thereto can be reviewed, p. 145.</p>

<p>1. Trial. — General Verdict. — Scope and Effect. — A general verdict for plaintiff is a finding in plaintiff’s favor of every material fact legitimately provable under the issues, p. 149.</p> <p>2. Insurance. — Life' Insurance. — Action on Policy. — Representations T)y Insured on Application. — Insurer’s Knowledge. — Evidence. — In an action on a policy of life insurance, defended on tbe ground that insured was a habitual drunkard at the time he applied for the insurance, evidence held to warrant the jury in finding that the insurer had knowledge of insured’s condition, p. 149.</p> <p>3. Insurance. — Life Insurance. — Action on Policy. — Representations in Application. — When Fraudulent.- — Evidence.—In an action on a life insurance policy, defended on the ground that insured was a habitual drunkard, evidence that insured was drunk when solicited for the insurance and that the soliciting agent filled out the application and the check in payment of the premium, when considered in connection with undisputed facts relative to insured’s habits as to the use of intoxicants, held sufficient to justify the jury’s finding that insured’s conduct in making false answers in his application as to the use of intoxicants and the condition of his health was not fraudulent.' p. 150.</p> <p>4. Insurance. — Life Insurance. — Avoidance of Policy. — Representations in Application. — Where the acts of insured, a habitual drunkard, in obtaining a policy of insurance were not fraudulent, and the insurer’s agent had knowledge of the facts that otherwise would have avoided the policy, the representations of insured that he did not use alcoholic beverages to excess and had not been treated for illness in any hospital, etc., did not invalidate it. p.'150.</p> <p>5. Appeal. — Review.—Harmless Error. — Refusal of Instructions.— The refusal of tendered instructions relating to issues not involved in the cause was harmless, p. 150.</p> <p>6. Trial. — Refusal of Instructions Covered hy Other Instructions. —It is not error to refuse requested instructions, even though correct, where they are covered by others given, p. 150.</p>

<p>From Marion Superior Court (94,967); Vincent G. Clifford, Judge.</p> <p>Action by Tbomas G. Hammond against tbe Belt Railroad and Stock Yards Company. From' a judgment for plaintiff, tbe defendant appeals.</p>

<p>Appeal. — Review.—Verdict.—Conclusweness.—Conflicting Evidence. —A judgment based on conflicting evidence is conclusive on appeal.</p>

<p>■ From Spencer Circuit Court; Emory L. Boyd, Special Judge.</p> <p>Action by Grace L. Gillett against the Citizens •National Bank. From a judgment for plaintiff, the defendant appeals.</p>

From Porter. Circuit Court; H. H. Loring, Judge. Actions by Hugh E. Whitney and another against C. H. Maloney and Company. From a judgment for plaintiffs in one action, the defendant appeals.

From Fulton Circuit Court; Smith N. Stevens, Judge. Action by tbe State of Indiana, on. the relation of A. Clinton Davidso.n, construction commissioner, and others, against Charles C.- Allen and others. From a judgment for defendants, the relators appeal.

<p>Appeal. — Vacation Appeal. — Failure to Perfect. — Dismissal.—Where, in an attempted vacation appeal from a judgment in favor of a foreign corporation, notice of the appeal was served only on the keeper of a livery stable in which a horse and wagon belonging to appellee were kept, though appellee had- filed with the secretary of state its certificate appointing an agent for service of process, and the steps required by the statute to perfect a vacation appeal, where no statutory notice is given below, not having been taken, the court on appeal is without jurisdiction over appellee and its motion to dismiss must be sustained.</p>

From Benton Circuit Court; Burton B. Berry, Judge. Action by Theodore 0. Loveland and another against James McCormick and another in which defendants filed, counterclaim. From a judgment against plaintiffs and in favor of defendants on their counterclaim, the plaintiffs appeal.

Prom the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Grace E. Swift and-others against the Nordyke and Marmon Company and another. Prom an award for applicant, the defendants appeal.

<p>1. ' Appeal. — Questions Presented. — Ruling on Motion for New Trial. — Failure to Filé Bill of Fasceptions in Time Allowed.— Where defendant’s motion for a new trial was overruled and it failed to file its bill of exceptions in the time fixed by. the court, no available error is presented by the motion for new trial, p. 188.</p> <p>2. Appeal. — -Review.—Ruling on Motion to Malee Complaint More Specific.- — Discretion of Trial Court. — The granting or refusing of a motion to make the complaint more specific is not wholly within the discretion of the trial court, but, unless it clearly appears that the complaining party has suffered by the court’s refusal to sustain such a motion, the cause will not be reversed. p. 188.</p> <p>3. Appeal. — Review.—Ruling on Motion to Malee Complaint More Specific. — In an action to recover for automobile hire, which was shown by bill of particulars filed with the complaint to have consisted of twenty separate items, the date of each being given, the denial of defendant’s motion to make the complaint more specific held not seriously prejudicial to defendant, so as to justify a reversal, p. 188.</p> <p>4. Agriculture. — Incorporated Agricultural Societies. — Powers.— Contracting for Automobile Hire. — Statutes.—An agricultural society organized under §3195 et seq. Burns 1914, §2629 R. S. 1881, has implied power to contract for anything, such as the hiring. ->f automobiles, that will further the purposes of the organization, p. 189.</p> <p>5. Agbictjetube. — Count-" Agricultural Societies. — Actions Against. —Defenses.—Vltra Vires Acts. — ~When Estopped to Plead. — An incorporated county agricultural society which has received the benefit of automobile hire for which it has contracted, cannot be permitted to set up the defense, in an action for such services, that it had no power to make the contract, p. 189.</p>

From Orange Circuit Court; William H. Paynter, Judge. Action between William E. McCool and others and Sylvester Mickler and another. From the judgment rendered, McCool and others appeal.

<p>From Allen Circuit Court; J. W. Eggeman, Judge.</p> <p>Action by Lucretia Lopshire against James R. Sturgeon. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Knox Circuit Court; Sherman G. Davenport', Special Judge.</p> <p>Action by James P. Witherspoon against Willis G. Stiefel and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>From Marion Superior Court (103,249); W. W. Thornton, Judge.</p> <p>Action by David R. Forgan and others against the Meeker Hotel Company. From a judgment for plaintiffs, the defendant appeals.</p>

From Marion Superior Court (104*686); John J. Rochford, Judge. Action by tbe F. and B. Livery Company against the ■ Indianapolis Traction and Terminal Company. From tbe judgment rendered, plaintiff appeals. Tbe appellant instituted tbis action against tbe appellee to recover damages.

<p>Municipal Corporations. — City Treasurer.- — -Collection of Delinquent Assessments. — Fees.—Under §1 of the act of March 9, 1909 (Acts 1909 p. 454), providing that in cities of the fifth class, where the county treasurer acts as city treasurer he shall receive, in addition to his salary, five per cent, of the amount of all delinquent city taxes collected by him for the city, and §2 of the act of March 12, 1907 (Acts 1907 p. 550, §8720 Burns 1914), providing that all other provisions of the law relating to • the collecting and accounting for state, county, township, road, city school, and other taxes, shall, so far as the same are applicable, apply with like force and effect in the case of municipal assessments in cities of the class referred to in the act, which embraces cities of the fifth class, a county treasurer who was acting treasurer of a city of the fifth class was entitled to receive, for services rendered by him in collecting delinquent assessments for public improvements, a sum equal to five per cent, of the amount so collected.</p>

<p>From Bush Circuit Court; Will M. Sparks, Judge.</p> <p>Action by the Baldwin Piano Company against Samuel W. Nicholas. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Superior Court (101,877); Vincent G. Clifford, Judge. Action between Sarah Davidson and others and Fannie Lemontree and others. From the judgment rendered, the former appeal.

From Hamilton Circuit Court; Ernest E. Cloe, Judge. Action by the State of Indiana, on the relation of Dale J. Crittenberger, auditor, against the Farmers and Merchants Bank of Cicero, in which John C. Craig, was appointed receiver for the bank. The receiver filed a petition to have the court determine what claims against the bank were preferred, and in what manner they should be paid, and Elmer E. Applegate intervened.

<p>From Wabash Circuit Court; Nelson G. Hunter, Judge.</p> <p>Action by Martha Reese against the Marion and Bluffton Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Vermillion Circuit Court; Barton 8. Aikman, Judge.</p> <p>Action by tbe State of Indiana, on tbe relation of Rosa L. Hunter, against Norbert C. Kintz. From a judgment, for relator, tbe 'defendant appeals.</p>

<p>From Clark Circuit Court; James W. Fortune, ■ Judge.</p> <p>Action by Amelia Stallings, against tbe city of New Albany. From a judgment for plaintiff, tbe defendant appeals.</p>

From Wabash Circuit Court; Nelson G. Hunter, Judge. Action by Elizabeth Weesner on a claim against the estate of Allen Weesner, deceased, opposed by D. E. Weesner, administrator. From a judgment for plaintiff, the administrator appeals.

Prom Marion Superior Court (95,937); V. G. Clifford, Judge. Action by Joseph Byrne against the city of Indianapolis and another. Prom a judgment in favor of the plaintiff against the city, the defendant city appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by William Cahill against the Home Packing and Ice Company and its insurer. From a ruling by the Industrial Board, denying the petition of the Home Packing and Ice Company to set aside an agreement for compensation and ordering a resumption of payments thereunder, the petitioner appeals.

<p>From Warrick Circuit Court; Ralph Roberts, Judge.</p> <p>Action by Margaret Adams against Jacob U. Schneider and others. From a judgment for the defendants, the plaintiff appeals.</p>

<p>From Marion Superior Court (103,769); W. W. Thornton, Judge.</p> <p>Action by Anna Henrietta Barner against the International Cigar Makers ’ Union of America, Local No. 33, and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Wabash, Circuit Court; John R. Browne, Special Judge.</p> <p>Action by David C. Ridenour against the Fort Wayne and Northern Indiana Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Allen Superior Court; Carl Tapie, Judge.</p> <p>Action by John E. Scott against the Fort Wayne Mercantile Accident Association. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Carrier. — -Street Railways. — Actions.—Defenses.—Last Clear Chance. — One who, knowing the east to be the proper side therefor, attempts to board the west side of a moving, northbound car arranged with railing to prevent boarding on that side, and at a place away from a regular stopping place, and knowing that there were double tracks there and northwardly whereon a southbound car might be met at' any time, negligently and knowingly placed himself in danger, and for an injury received from a passing southbound car cannot recover unless its motorman had a last clear chance to protect him and failed to use such chance, p. 273.</p> <p>2. Carriers. — Boarding Street Car on Wrong Side. — Last Clear Chance. — Knoioledge of Peril. — In the absence of knowledge by the motorman of an approaching southbound street car, moving along the west rails of double tracks, of the peril of one attempting to board from the' west side a street car moving to the north on the east rails of such double tracks, the doctrine of last clear chance does not apply, p. 274.</p> <p>3. Trial. — Instructions.—Directing Verdict. — Carriers.—Last Clear Chance. — In an action for an injury to the plaintiff while negligently upon the running board of a moving street car on the side next to a contrary-bound street car approaching on the other of double tracks, a verdict for the defendant was properly directed by the court where the evidence failed to show that the motorman of the approaching ear had any knowledge of the peril of plaintiff, or that he had any appreciable time within which he could have stopped his car before the injury, or that after knowledge of such peril he could have stopped his car before the injury, or that had he stopped his car the injury would have been avoided by the stopping of the car upon which plaintiff was riding, p. 274.</p>

<p>From Marion Superior Court (102,632); V. G. Clifford, Judge.</p> <p>Action by Mary A. Free against the Massachusetts Bonding and Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Superior Court (105,523); Theophilus J. Moll, Judge. Action by Irene Kemp, Administratrix of the estate of Nathaniel Kemp, against Harry W. Brown and another. From a judgment for plaintiff against the named defendant, said defendant appeals.

<p>Appeal. — Evidence Conflicting. — Review.-—Where the only questions presented under the rules of the Appellate Court require for determination a review of conflicting evidence, the judgment of the trial court is conclusive and will be affirmed.</p>

From Clark Circuit Court; James W. Fortune, Judge. . • The bond of tbe First National Bank of Jefferson-ville, tendered to tbe board of finance of tbe school town of Port Fulton to qualify sucb bank to become a depository of public funds, not having been approved, was presented, with a petition for its approval, to tbe judge of tbe Clark Circuit Court in vacation, and by him beard and approved, and said bank declared a depository.

From .Marion Superior Court (100,527); V. G. Clifford, Judge. - Action- by Harper J. Ransburg against the United States Fidelity and Guaranty Company, and others. From a judgment for the defendant named,-the plaintiff -appeals.

<p>1. Water and Watercourses. — What Constitutes. — Action for Obstruction. — In an action for. damages and to enjoin the further obstruction of a watercourse, evidence that twenty-eight years ago the alleged watercourse was a creek eighteen inches to three feet wide and too deep to cross with a team, and had a regular channel, and, while it had been straightened and the banks worn down until a team could cross in places, there were still banks four feet deep where the stream was two or three feet wide, constitutes some evidence of a watercourse, p. 313.</p> <p>2. Appeal. — Review.—Evidence.—Conflict.—A finding based on contradictory evidence will not be disturbed on appeal, p. 313.</p>

<p>From Pike Circuit Court; John L. Brets, Judge.</p> <p>Action by Seth Burch and Laura Burch against the Ohio Oil Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Equity. — Principles.—Disregarding Form F&'r Substance.— Equity will disregard mere forms, and will not permit a substantial right to be defeated by the interposition of merely nominal or technical distinctions, p. 324.</p> <p>2. Husband and Wife. — Entirety, Estate By. — Purchase-Money Mortgage During Coverture. — Divorce.—Suretyship.—A divorced wife cannot successfully plead suretyship under §7855 Burns 1914, §5119 R. S. 1881, in an action on a bond and mortgage executed by herself and husband during coverture to obtain money to pay and used to pay a note given by the husband alone for money used to pay in part for the land involved, the title to which had been taken in the husband and wife, although the wife had contributed nothing to the payment of the price thereof, p. 325.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by E. C. DeWitt and Company against Morris D. Lieberman. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Lake Circuit Court; W. G. McMahan, Judge.</p> <p>Action by Fred Kasper against the Hammond, Whiting and East Chicago Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Trial. — Direction of Verdict. — Sales.—Contract.—Action .for Breach. — Failure to Establish Contract. — In an action for the breach of an alleged contract of sale, where, under the evidence no contract of sale had been entered into between the parties, a verdict for the defendant was properly directed, p. 332.</p> <p>2. Appeal. — Evidence.—Exclusion.—Harmless Error. — Contracts.— Where a verdict was properly directed in an action for breach of contract, on the ground that the evidence showed that no such contract had been entered into, errors, if any, against the plaintiff, in excluding offered testimony, became harmless, p. 332.</p> <p>3. Sales. — Contract.—Correspondence.—Meeting of Mmds. — Acceptance Deviating from Offer. — No contract was formed by an order of goods to be delivered prior to June 1 “as ordered out by me,” accepted “for scattered shipment February to May, inclusive,” for want of meeting of the minds of the parties, since the order called for delivery when ordered out and in quantities ordered out by its maker prior to June 1, while the acceptance intended that a certain amount should be shipped out each month, p 332.</p>

<p>Trial. — Instructions.—Applicability to Evidence.- — Tendered instructions are properly refused where there is no evidence to which they are applicable.</p>

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Sallie A. Meadows against Oscar Gr. Miller. 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 Sam J. Eoss against the Centlivre Beverage Company. From an award for applicant, the defendant appeals.

<p>Prom Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by Peter Hand Brewing Company against Martin Stamper. Prom a judgment for tbe defendant, plaintiff appeals.</p>

<p>From Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action by the Bank of Redkey, Indiana, against Welcome J. Dull. From a judgment for the plaintiff, defendant appeals.</p>

From Marion Superior Court (100,789); W. W. Thornton, Judge. Action by Pearl Petrovitzky against tlie Sargent Paint Company and another. From a judgment for the plaintiff against the named defendant only, such defendant appeals.

<p>1. Submission of Controversy.- — Presumptions on Appeal. — In a proceeding under §§579, 580 Burns 1914, §§553, 554 R. S. 1881, by-agreed statement of fact, no presumption can be indulged in favor of the judgment of the trial court, p. 372.</p> <p>2. Submission of- Controversy. — Language Used. — Construction.— The language used by the parties in an agreed statement of fact will be given its common, ordinary meaning, p. 374.</p> <p>3. Landlord and Tenant. — Lease.—Rent.—An agreement whereby a life tenant was to receive as rent a fixed share of' the crop raised, such rental to be harvested and delivered to her by the tenants at gathering time, was -a.lease and the relation between the parties was that of landlord and tenant, p. 374.</p> <p>4. Life Estates. — Death of Life Tenant. — Rents Ñot Due. — Remainder. — Rent stipulated in favor of a life tenant, in the form of a fixed share of crop growing at her death, and not to* be delivered until some months thereafter, is annexed to the real estate and goes to the remainderman, p. 374.</p>

From Clark Circuit Court; James W. Fortune, Judge. Action by Eobert Grayson and another against Allie Prinz. From a judgment that the parties each take nothing, the defendant appeals.

<p>1. Appeal. — Complaint.—Motion to Malee More Specific. — Harmless„ Error. — Where the averments of plaintiff’s injuries were such that the motion to make them more specific might properly have been in part sustained, but where from the whole record it is apparent that no rights of the defendant were prejudiced thereby, the overruling of the motion is not reversible error, p. 378.</p> <p>2. Pleading. — Street Railroads. — Negligence.—General Allegation.. —When'Sufficient.—The general averment that defendant “then and there by its agents and servants carelessly and negligently ran said electric car upon and against plaintiff” will withstand demurrer for want of facts in the absence of contradictory specific allegations, p. 379.</p> <p>3. Street Railroads. — Operation Outside Oity Limits. — Grossings. —Signals.—A street railway company when operating its cars across public highways outside the corporate limits of a city must do so with due'regard for the safety of travelers upon such highways, and while there is no statutory requirement of crossing signals agáinst such a company, the circumstances may be such as to require some warning of the approach of cars to be given, p. 379.</p> <p>4. Trial. — Instructions.—Street Railroads. — Crossings.—Signals.—■ Where the evidence showed that the crossing on which plaintiff was alleged to have been injured outside the city limits, was, as defendant well knew, much used by pedestrians and vehicles, both day and night, and was located near a curve in appellant’s tracks, an instruction that there should have been some warning of the approach of the car was not erroneous, p. 379.</p> <p>5. Street Railroads. — Grossings.—Intoxicated Persons. — Known Peril. — A street railway company owes the same duty to avoid injuring an intoxicated person seen by the motorman upon the track in a position of peril as if such person were sober, p. 381.</p> <p>6. Trial. — Instructions.—Street Railroads. — Grossing Accidents.-— Location of Plaintiff. — Question for the Jury. — Where the evidence was conflicting as to whether the plaintiff was, when struck, standing on the highway crossing or was. a trespasser on the right of way of the street railway company some distance from the crossing, his location was a question of fact for the jury, and an instruction assuming that he was upon the crossing was erroneous. p. 381.</p> <p>7. Trial. — Instructions.—Measure of Damages. — Items Not Pleaded in Evidence. — Instruction Not Limited. — An instruction is erroneous that authorizes the jury to assess all damages “as shown by the evidence,” where evidence was heard of an item of damages not averred in the complaint, p. 381.</p> <p>8. Appeal. — Error. — Harmlessness Not Apparent. — Reversal.— Where, after a careful examination of the entire record, the Appellate Court is unable to say that the correct result was reached, or that the errors noted in instructions given were harmless, a reversal will follow, p. 382.</p>

<p>1. Appeal. — Right of — Statutes.—Compliance.—The right of appeal is purely statutory, and a party seeking to avail himself thereof must comply with the statute providing therefor, p. 385.</p> <p>2. Appeal. — Term Time. — Bond.—Approval.—Equivalent Methods. —To perfect a term-time appeal, §679 Burns 1914, §638 R. S. 1881, requires that the bond be filed and approved at the term at which the appeal is granted, or else that the court fix the amount of bond and name and approve the sureties at such term and that the bond be filed in accordance therewith and within the time granted therefor by the court as shown by the record, p. 385.</p> <p>3. Appeal.- — Bond.—Entry.— Construction.— General Rules. — The rule that every clause and word of a written instrument should, when possible, be given some meaning, and a harmonious whole be made to appear, applies to the construction of an entry granting an appeal and fixing bond therefor, p. 387.</p> <p>4. Appeal. — Final Judgment. — Motion for New Trial Filed After Judgment. — Ruling Thereon. — The ruling on the motion for new trial, made after the entry of judgment, is taken as the final judgment within the meaning of the statute governing term-time appeals in civil cases, p. 387.</p> <p>5. Appeal. — Term Time. — Bofid.—Sureties.—Approval After Term. —Where the court, during the term in which final judgment is rendered, fails to approve either the appeal bond or surety, such failure cannot be cured by an approval made at a subsequent term. {Perm., etc., Plate Glass Co. v. Poling [1913], 52 Ind. App. 492, 100 N. E. 83, and Ashley v. Henderson [1904], 32 Ind. App. 242, 69 N. E. 469, in part disapproved.) p. 387.-</p> <p>6. Appeal. — Term Time. — Bond.—Sureties.—Approval.—Record.— Where an entry shows appeal granted, bond fixed and surety named “subject to the approval of the court,” neither the bond nor surety is shown to have been approved, p. 387.</p> <p>7. Appeal. — Perfecting.—Jurisdiction.—Joinder in Error. — Dismissal. — Wher e an ineffectual attempt has been made to perfect a term-time appeal and no effort has been made to perfect the same as a vacation appeal, and appellees have not joined in error, a motion to dismiss for want of jurisdiction will be sustained. p. 389.</p>

<p>1. New Trial.- — Interrogatories to Jury. — Untrue Answers. — Not “Miscon&uet of Jury.” — An allegation in a motion for new trial that a jury made incorrect or untrue answers to certain interrogatories returned with the general verdict, will not constitute a charge of misconduct of the jury within the meaning of the statute authorizing new trials upon such'ground, p. 393.</p> <p>2. Damages. — Threshing Machine. — Loss of Use. — In an action against a railroad for damage to a separator at a crossing, the fair rental value of the machine was a proper element of damages, where it was damaged in threshing season, and there was evidence of the number of days’ work ahead of it and of the fair rental value per day. p. 393.</p> <p>3. Evidence. — (Circumstances.—Consideration.-—It is the duty as well as the right of the jury, in rendering a verdict and in answering interrogatories, to take into consideration not only the testimony of the witnesses but also the facts and circumstances proved by the evidence and that surround the ease, together with reasonable inferences that can be drawn therefrom, p. 394.</p> <p>4. Railroads. — Accidents at Crossings. — Contributory Negligence. —Evidence.—Where there was evidence that a railroad crossing was too narrow to permit the passage of a separator, and that the stalling of the separator on the track was not due to the condition of the lugs on its drive wheels, the jury was justified in finding the plaintiff not guilty of contributory negligence in stalling upon the track, p. 394.</p> <p>5. Railroads. — Accidents at Crossings. — Negligence.—Evidence.— Evidence held to justify a finding that the employes in charge of the approaching train negligently failed to observe the obstruction of the crossing by plaintiff’s separator being stalled thereon, and to stop the tráin in time to prevent the injury, p. 395.</p> <p>6. Trial. — Instructions.—Omissions.—When Element Not in Case. —Covered by Instructions Given. — An instruction given in an action for damages to a separator at a railroad crossing which omits the element of contributory negligence is not harmful where undet the evidence the plaintiff was not guilty of contributory negligence, and where by another instruction the jury was fully instructed as to that element, p. 396.</p> <p>7. Trial. — Damages.—General Instruction. — Duty to Tender Destruction More Specific. — Appellant cannot complain of a correct instruction on damages, on the ground that it is too general, having failed to tender a correct instruction that was more specific.* p. 396.</p> <p>8. Appeal. — Admission of Evidence. — Harmless Error. — Railroads. Grossing Accidents. — In an action for damages to a separator struck by a train while stalled at a crossing, defendant could not be harmed by permitting plaintiff to show the amount of travel on the road involved, p. 398.</p>

<p>From LaPorte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Martin R. Glinski against tbe Grand Trunk and Western Railroad. From a judgment for plaintiff, tbe defendant appeals.</p>

From Marion Superior Court (93,610); W. W. Thornton, Judge. Action by tbe J. P. Smith Shoe Company against the Curme-Feltman Shoe Company, wherein defendant filed a counterclaim. From a judgment for defendant, the plaintiff appeals.

<p>Appeal. — Ooniinuanoe.—Dervial.—Harmless Error. — Error, if any, in denying a continuance to a party prayed for on the ground of inability to attend the trial- on account of sickness, is harmless where the party appears and testifies oh the second day of the trial and three of her witnesses appear the same day, . though two of her witnesses had been examined the day previous, where it does not appear that her cause suffered because of her absence.</p>

From Huntington Circuit Court; Nelson G. Hunter, Special Judge. Action by La Fontaine Lodge No. 42, I. O. O. F., against Ovid E. Eviston and Abner H. Shafer, auditor and treasurer respectively, of Huntington county. From a judgment for defendants, tbe plaintiff appeals. '

<p>1. Negligence. — Fire from Threshing Engine. — Evidence.—In an action for loss of a barn by fire alleged to have been communicated by a threshing engine operated without a spark-arrester, evidence that the engine was equipped with one of approved type, of common use; in proper place on the engine, and in good condition before and after the fire, together with evidence that the fire broke out inside the barn, 200 feet from the engine, and that one of plaintiff's employes was seen smoking in the barn not long before, is sufficient to support a finding that the fire was not caused by sparks from the engine, although there be other evidence conflicting therewith, p. 453.</p> <p>2. Appeal. — Conflicting Evidence. — Review.—A verdict rendered upon conflicting evidence finally determines the issues of fact involved, p. 453.</p> <p>3. Negligence. — Contracts.—Provision Against Extra Hazard.— A contract between the owner of a threshing outfit and another for the use of the outfit, may lawfully contain a stipulation against liability arising from 'the increased hazard in the use of wood instead of coal in the engine for fuel, since such a • provision did not lessen the responsibility of the thresher for the results of actual negligence in the use of such fuel. p. 453.</p>

<p>From Noble Circuit- Court; Luke H. Wrigley, Judge.</p> <p>' Action by John E. Rarick against Lena Kinnison. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Corporations.- — Foreign Corporations.- — -Admission.—Statutes.— Construction.' — When statutes governing the admission into the state of foreign corporations do not specify what shall constitute “doing business” or “transacting business,” such question is ordinarily a matter for judicial determination, p. 464.</p> <p>2. Corporations. — Foreign Corporations. — Transacting Business— . • Isolated Acts. — Construction.—Where a foreign corporation enters into a single contract or engages in some other isolated business act within a particular state, with no intention to repeat the same therein or make such state a base for the conduct of any part of its corporate business, the courts as a rule have held that such corporation cannot be said to be “doing business” or “transacting businesss” within the meaning of the usual statutory provisions regulating the admission of foreign corporations, p. 464.</p> <p>3. Corporations. — Foreign Corporations. — Admission.—Purchasing and Using Site. — Where a foreign corporation purchases real estate for use as a coal yard and so uses the same in conducting a retail coal business within this state, such purchase is not an isolated transaction, and the act of acquiring such site fell within the inhibition against doing business provided in §4085 Burns 1914, Acts 1907 p. 286, §1. p. 464.</p> <p>4. Corporations.' — Foreign Corporations. — Admission.-—-Comity.— Limitation hy Statute. — The doctrine of state comity cannot prevail in the judicial construction of the nature of acts performed by a foreign corporation within this state, under §§4085 et seq. Burns 1914, Acts 1907 p. 286, since §8 of the statute, §4093 Burns 1914, expressly states that the statute is a limitation upon interstate comity, p. 464.</p> <p>5. Corporations. — Foreign Corporations. — Admission.—Noncompliance with Statute. — Resort to Courts. — Inhibition Unlimited.— The resort by a foreign corporation to the courts of this state without first having complied with the requirements of §§4085 et seq. Burns 1914, Acts T907 p. 286, is inhibited by §9 of the statute, §4094 Burns 1914, equally against a claim arising out of an isolated or preliminary transaction as against one arising out of the usual business conducted by the corporation, p. 465.</p> <p>6. Corporations. — Foreign Corporations. — Contracts.—Assignees.— Noncompliance With Statutes. — Resort to Courts. — The assignee of the contract of a foreign corporation cannot assert any rights thereunder which could not have been asserted by the foreign corporation through which he claims by assignment from its trustee in bankruptcy and an intervening third person, where the corporation has failed to comply with a statute giving it a right to transact business in the state, notwithstanding that the assignee took the contract before breach thereof, p. 466.</p> <p>7. Corporations. — Foreign Corporations. — Admission.—Noncompliance With Statutes.- — Stockholders.—Fstoppel.—A stockholder in a foreign corporation which has not complied with the statute regulating its admission to do business in the state is not estopped in an action brought against him upon a contract between him and the corporation from asserting such failure to comply as a defense to such action, p. 467.</p>

From LaPorto Circuit Court;'James F. Gallaher, Judge. Proceeding by the State of Indiana against the First Calumet Trust and Savings Bank of East Chicago, Indiana, executor of the estate of Charles W. Hotchkiss, deceased. From a judgment assessing inheritance tax, the state appeals.

<p>• 1. Pleading. — Conclusions.—Legal Effect of Eacts Pleaded. — A conclusion of the pleader as to the legal effect of transactions before stated adds nothing to the pleading, p. 475.</p> <p>2. Railroads. — Street Railroads. — Crossings.-—Maintenance Contracts. — Privity.—Consideration.—Statutory Rights and Duties.— A contract between a railroad and a street railroad for a crossing in a city street, whereby the owner of the street railroad agreed to maintain such crossing at its own expense and to the approval of the railroad, is not enforceable when pleaded in an action between successors in ownership of the two roads to recover the cost of repairs made by the railroad to the street crossing involved unless facts be pleaded showing, privity of contract or. of estate on the part of the defendant with the contracting owner of the street railroad company, nor where the facts pleaded show that the promise Of maintenance in the contract was without any sufficient consideration and, under such circumstances §§5676, 5677 Burns 1914, Acts 1901 p. 461, fixed the rights and duties of the parties, p. 475.</p> <p>3. Railroads. — Street Railroads. — Crossings.—Maintenance.—Conclusions of Law. — A conclusion of law awarding to a railroad the full amount of its expense in repairing a street railroad . crossing is erroneous, in view of the provisions ■ of §§5676, 5677 Burns 1914, Acts 1901 p. 461. p. 477.</p>

<p>1. Arbitration and Award. — Dispute.—Sufficiency.—It is not ground for objection to an award that the arbitration is comprised wholly of matters adjudicated by the final settlements in certain estates, since a legal cause of action is not necessary to authorize a submission, a dispute, controversy, or honest difference of opinion, either, as to liability or amount, being sufficient, p.' 480.</p> <p>2. Husband and Wife. — Agency.—Rules.—The relation of agency between husband and wife is governed by the same rules which apply to other agencies, p. 481.</p> <p>8. Husband and Wipe. — Agency.—Creation.—Evidence.—Evidence held sufficient to sustain a finding that the husband of one of defendants had authority from such defendant to enter into agreement to arbitrate, p. 481.</p> <p>4. Arbitration and Award. — Action on Award. — Admissibility of Award. — In an action on an award, the award is admissible in evidence, p. 484.</p> <p>5. Arbitration and Award. — Facts of Arbitration. — Evidence.— Admissibility. — In an action on an award, testimony by arbitrator of what was said and done at the hearing of the amount of his charges, held unobjectionable. p. 484.</p>

From Posey Circuit Court; Herdis Clements, Judge. Action by Matilda J. Reader, administratrix of tbe estate of Henry Reader, deceased, against the Public Utilities Company. From a judgment for plaintiff, the defendant appeals.

From Marion Superior Court (97,552); V. G. Clifford, Judge. Action by Herman J. Pfafflin against Charles L. Schmidt. On defendant’s death Adolph Schmidt was substituted as his administrator. From a judgment for defendant, the plaintiff appeals.

<p>From Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action by Aaron W. Perry against tbe Chesapeake and Ohio Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

From Greene Circuit Court; Theo E. Slinkard, Judge. Application Tby the Hartford Fire Insurance Company of Hartford, Connecticut, against Phillip Applebaum for relief from a judgment by default. From a judgment for defendant, the applicant appeals.

<p>From Henry Circuit Court; Fred G. Gause, Judge.</p> <p>Action by the Daniels and' Pickering Company against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

From Jay Circuit Court;. Emerson E. McGriff, Judge. Proceeding to enforce claim by Charles G. Polcar against Charles 0. Spahr, administrator of the estate of Caddie E. Spahr, deceased. From a judgment for claimant, the defendant appeals.

<p>From Warrick Circuit Court; Union W. Young-blood, Special Judge.</p> <p>Action by Samuel Schumacher against the Commercial Union Assurance Company, Limited, of London, England. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Vacation Appeals. — Submission.—Date.—Under §693 Burns 1914, Acts -1885 p. 219, an appeal in vacation is submitted as of course at the expiration of thirty days from the date of service of notice on the appellee of the taking of' the appeal, except (1) where otherwise ordered by the court, and (2) •where the notice is waived and the appellee has entered a general appearance, p. 550.</p> <p>2. Appeal. — Submisssion.—Rot-ice by Olerh to Attorneys. — Rules. • — Bule 18 of the Supreme Court, by implication makes it the duty of the clerk to enter an order of submission at the expiration of thirty days after service of notice on the appellee in every civil cause which does not come, within either exception contained in §693 Burns 1914, Acts 1885 p. 219, and to mail a notice of such submission to at least one of the attorneys whose names are appended to the assignment of errors, but the mailing of the notice satisfies that duty. p. 550.</p> <p>3. Appeal. — Bub-nviss-ion.—Appellant’s Brief. — Rules.—Dismissal.— The rule requiring appellant’s brief to be filed within sixty days after submission is strictly enforced by dismissal, p. 550.</p>

<p>From DeKalb Circuit Court; Bom M. Link, Judge.</p> <p>Action by Phoebe Treesh Wagner against Lewis E. Treesh. From a judgment for defendant, the plaintiff appeals.</p>

<p>Certified question from the Industrial Board of Indiana in proceedings under the Workmen’s- Compensation Act by the widow of John B. Howard, deceased.</p>

<p>From St. Joseph. Circuit Court; Walter A. Funic, Judge.</p> <p>In the matter of the estate of Julia S. K. Meyer, of which John Seibert was administrator. Petition by Lydia C. Martin, claiming certain money as trustee.. From a judgment for the administrator, the petitioner appeals.</p>

<p>1. Railroads. — Grossing Accident. — Smolce and Noise. — Pleading.— In an action for damages for injury by collision, a paragraph of complaint examined and held to state a cause of action on the theory that owing to smoke and noise produced by a passing train, the statutory signals, if given, of the approach of the colliding train, were imperceptible, and for failure to give other warning of the approach of the train and approaching at an excessive rate of speed under such circumstances, p. 574.</p> <p>2. Railroads. — Grossing Accident. — Last Olear Chance. — Paragraph of complaint held good on the theory of last clear chance owing to the allegations of the surroundings of the parties, their being unconsciously in danger and of the knowledge of that fact by the engineer running the colliding passenger train, p. 575.</p> <p>3. Trial. — Verdict.—Effect.—A general verdict for plaintiff finds in her favor every material allegation in the complaint, p. 576.</p> <p>4. Trial. — Interrogatories to Jury.- — Answers.—Motion for Judg~ ment on Answers. — A motion for judgment on answers to intérrogatories returned with a verdict is properly overruled when the answers and the verdict are not in irreconcilable conflict, p. 576.</p> <p>5. Trial. — Instructions.—Explanatory Instructions. — Construction. —An instruction intended as explanatory of another requires that the two should be read and considered together as virtually one instruction, p. 579.</p> <p>6. Trial. — Instructions.—Bu/rden of Proof. — Crossing Accident.— In an action against a railroad for injuries at a crossing, an instruction that in effect told the jury that the railroad had the burden of showing freedom from negligence and that a showing that it had given the statutory signals under the circumstances did not relieve it of such burden, invaded the province of the jury and was erroneous, p. 579.</p> <p>7. Negligence. — Common Law. — Jury Question. — Common-law negligence is always a failure to use due care, of which the jury are the judges, and therefore always a question of fact for the jury, p. 579.</p> <p>8. Railroads. — Crossing Accidents. — Obstructions to View. — Instructions.- — In an action for injuries át a railroad crossing, evidence of things obscuring the view of approaching trains was proper to be considered by the jury in determining whether the plaintiff had exercised reasonable care for her own safety, and an instruction advising the jury that such evidence was to aid them in determining the degree of care and caution necessary on the part of the defendant should' have been so limited, p. 586.</p> <p>9. Railroads. — Crossing Accident. — Contributory Negligence. — Evidence. — Instructions.—An instruction on the subject of contribu-' tory negligence, in a railroad crossing accident case that directs the jury to consider all facts and circumstances in evidence, should have been limited to the facts and circumstances existing or occurring prior to the time of the collision, p.- 586.</p> <p>16. Trial. — Instructions.—Repetition.—Inapplicable.—-Instructions tendered but which are erroneous or inapplicable to the evidence, or covered by other instructions so far as correct, are properly refused, p. 581.</p>

<p>1. Carriers. — Carriage of Passengers. — Assault Upon Passenger.— Action. — Complaint.—Sufficiency.—In an action against a railroad company for damages for an assault and battery claimed to have been inflicted upon plaintiff while he was a passenger on defendant’s train, a complaint alleging that defendant’s bralreman could easily have prevented the assault, but wrongfully, negligently and unlawfully, and in disregard of his duty, stood by and permitted the assault to be committed upon plaintiff and made no effort or attempt to prevent the same, states a cause of action, p. 584.</p> <p>2. Appeal. — Briefs.—Statement of Evidence. — Sufficiency.—Waiver of Error. — Where, though a large number of witnesses testified, appellant merely set out in its brief its conclusion of what the evidence showed together with only a part of the testimony of one witness, there was not a sufficient compliance with Rule 22, cl. 5, of the Appellate Court, requiring a condensed recital of the evidence in narrative form, and all questions depending on the evidence are waived, p. 585.</p> <p>3. Evidence. — Admissibility.—Passenger’s Action for Assault.— Where the first paragraph of complaint alleged that plaintiff, while a passenger on defendant railroad company’s train, was assaulted by an employe of defendant, and the second paragraph alleged that defendant’s brakeman could easily have prevented the assault, but negligently failed to do so, evidence by plaintiff’s witnesses as to the facts concerning the assault was admissible without first showing that plaintiff’s assailant was a servant of the company, p. 585.</p> <p>4. Timal. — Evidence to be Made Competent by Connecting Evidence. — Admission.—Failure to Introduce Connecting Evidence.— Necessity of Motion to Strike Out. — Where the court permits the introduction of evidence on the undertaking of counsel that other evidence will be introduced to make it competent, and such connecting evidence is not produced, the proper practice is to call the court’s attention to the matter and move to strike out the evidence claimed to have been erroneously admitted, p. 586.</p> <p>5. Appeal. — Questions Reviewable. — Exclusion of Evidence. — Necessity of Offer to Prove. — No error is shown in the refusal to allow a witness to answer a question in the absence of an offer of proof as to the testimony which would have been elicited, p. 586.</p> <p>6. Appeal. — Review.—Refusal of Instructions. — The court on appeal cannot determine whether the refusal of a requested instruction, which was a correct statement of law, was reversible error in the absence of the evidence from the record, p. 586.</p>

From Rush Circuit Court; Will M. Sparks, Judge. Action by Margaret. Campbell against Camie Campbell and another. From a judgment in favor of the plaintiff and defendant Farris Carroll, the defendant Camie Campbell appeals.

From Putnam Circuit Court; John H. James, Special Judge. Proceeding by Ida Cullen Boyd and Jackson Boyd for a writ of. assistance'on tbe petition of the latter, against Daniel C. Braekney and another. From a judgment for the petitioner, ;the defendants appeal.

<p>1. Insurance. — Life Insurance. — Action on Policy. — Instructions.— Right of Forfeiture. — Waiver.—Where a fraternal society’s bylaws provided for a forfeiture of a policy if a member should become intemperate in the use of intoxicating liquors, or if his death should result directly or indirectly from his use thereof, an instruction, in an action on an insurance contract issued by such society that, if insured died from the intemperate use of intoxicating liquors, and if defendant, knowing of such use, continued to accept the assessments stipulated in the policy, defendant was iiable, was erroneous, since the acceptance of such assessments with knowledge of insured’s use of intoxicating liquors did not constitute a waiver of the right to defend on the ground that insured’s death resulted from the intemperate use of intoxicants, p. 603.</p> <p>2. Appeal. — Presenting Questions for Review. — Instructions.—Setting Out in Brief. — It is not necessary that the brief of appellant should contain all of- the instructions given in order to have the action of the court in giving and refusing certain instructions considered, p. 606.</p>

From Pike Circuit Court; John L. Brets, Judge. Action by Eva Sumner and others against John N. Murray and others. From a judgment for the plaintiffs, the defendants appeal.

<p>From Cass Circuit Court J. P. Wason, Special Judge.</p> <p>Action by Roxie E. Barnett, administratrix of the estate of George E. Barnett, deceased, against the Federal Life Insurance Company. ■ From a judgment for plaintiff, the defendant appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by State of Indiana on tbe relation of Henry C. Hale against the United States Fidelity and Guaranty Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Orange Circuit Court; William E. Paynter, Judge.</p> <p>Action by Margaret E. Dalton against John M. Catbcart and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Right of Review. — Objections in Court Below. — Coappellee's Motion for New Trial. — Where three defendants appealed, one of them who filed no motion for new trial is in no position to complain of the ruling on the motion made by the other two defendants and, no other error being assigned, the judgment must for that reason be affirmed as to him. p. 659.</p> <p>2. Appeal. — Joint Assignment of Error. — Effect Under Statute.— Under §4, Acts 1917 p. 523, §691d Burns’ Supp. 1918, an assignment of error joint as to three appellants, will be-treated as ' separate as to each. p. 660.</p> <p>3. Appeal. — Evidence.—Fraud.—Review.—Whether certain false representations were known to be such by their makers, and whether they acted in good or bad faith in making them, being questions of fact for the jury in an action founded thereon, the verdict must stand if there be any evidence to support it, and the Appellate Court will not weigh the evidence in view of the superior opportunities for observation enjoyed by the trial court and jury. p. 660.</p> <p>4. Trial. — Evidence.—Exclusion of Immaterial Uncontradicted Testimony.- — Where all three defendants had testified uncontradictedly to an immaterial circumstance, it was not improper to refuse to allow another witness for defendants to testify again to such circumstance, p. 661.</p> <p>5. Appeal. — Bond.—Liability.•—Affirmance as to . Coappellant. — In a term-time appeal by three defendants, where the judgment must be affirmed against one, there is a liability on.the appeal bond therefor, even though there were reversible error aS ’to the other two defendants, p. 662.</p>

<p>Appeal. — Evidence Conflicting. — Review.—Where all questions involved in an appeal require a review of conflicting evidence, the judgment of the trial court is conclusive.</p>

<p>1. Negligence. — Automobiles.—Liability of One Not Present.— There can be no recovery for negligent operation of an automobile against one not present, and having nothing to do with the operation of the automobile, except on the theory that the operator was his servant, p. 664.</p> <p>2. Master and Servant. — Relationship.—Evidence—Where the only evidence of relationship between defendants is that one had sold the other an automobile, retaining title and the right to retake possession until the price was fully paid, there is not a particle of evidence to show that the buyer was the servant of the seller in the operation of the machine in a separate taxi business of his own, over which the séller had no control, p. 665.</p>

<p>From Alien Superior Court; Carl Yaple, Judge.</p> <p>Action by Floyd M. Worman against William J. Steckbeck. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Adverse Possession. — Elements.—There are five indispensable elements in “adverse possession,” namely, it must be hostile and under claim of right, actual, open and notorious, exclusive, and continuous, p. 671.</p> <p>2. Husband and Wipe. — Adverse Possession. — Joint Possession.— Neither husband nor wife can acquire title by adverse possession to land owned by the other by joint occupation during coverture', p. 672.</p> <p>3. Husband and Wipe. — Adverse Possession. — Joint Possession.— Effect. — Joint possession by husband and wife of the land of the husband is in law the possession of the husband, p. 674.</p> <p>4. Boundaries. — Adverse ■ Possession. — Husband and Wife. — Acquiescence.- — In an action by the wife after divorce to quiet title to part of an adjoining tract owned by the husband, the fact that for more than twenty years he had acquiesced in the location of a fence which included part of his land with the wife’s property, does not establish the fence as the real boundary line, where husband and wife occupied both tracts jointly, since a contrary claim is in reality a claim by adverse possession, p. 674.</p> <p>5. Adverse .Possession. — Boundaries.—Deeds.—Admissibility.—In an action to quiet title, under a claim of adverse possession to a certain fence, deeds that in no manner refer to the fence or division line held properly excluded, p., 674.</p>

From Marion Superior Court (103,458); Theophilus J. Moll, Judge. Proceeding upon petition by W. P. Nelson Company in tbe matter of tbe receivership of the Strand Theater Company (of Indiana), Carl L. Weyl, receiver. From the judgment rendered, the petitioner appeals.

<p>1. Appeal. — Pleadmg.—Admission by Demurrer. — Judgment on Failure to Plead. — Review—Tbe judgment must be affirmed- If ■ either paragraph of the complaint states a cause of action, where the defendant has demurred to each paragraph and has elected to abide the ruling of the court thereon and refused to plead further, since by the demurrer he admits the facts well pleaded, p. 684.</p> <p>2. Marriage. — Fraud, Voidable. — Equity.-—Jurisdiction. — A marriage procured by fraud is voidable at the suit of the injured party, and courts having the jurisdiction of courts of equity have jurisdiction to annul a marriage on account of fraud under their general powers to annul fraudulent contracts, p. 685.</p> <p>3. Marriage. — Age.—Consent of Parents. — Fraud.—The mere fact that a girl was but sixteen years old and was married without the consent of her parents would not render the marriage void, notwithstanding the statute requiring parental consent, but such youthfulness is an important allegation in support of the charge of fraud, p. 686.</p> <p>4. Marriage. — Annulments—Fraud.—PubUe Policy. — Pleading. — > Where the complaint averred that the marriage sought to be annulled had never been consummated by cohabitation, the rule against considering the alleged misrepresentations to a girl sixteen years old, as to character, previous marriage, children, etc., as such fraud as goes to the fundamentals or essentials of the marital relation, does not apply, but public policy would seem to require an annulment of the marriage, and all such allegations, taken together, state a cause of action for fraud and authorize •the annulment of the marriage, p. 687.</p> <p>5. Marriage. — Annulment.-—Conflict of Laws. — The fact that the parties were married in Michigan can be no defense to a suit for annulment for fraud, brought in Indiana, p. 688.</p>

<p>1. Winns. — Construction.—Intention of Testator.- — In construing the provisions of a will, the court must be guided by the intention of the testator, p. 691.</p> <p>2. - Wills. — Construction.—All Words and Clauses Considered. — In searching a will for the testator’s intention, every word and clause must be considered, and, if possible, given effect, p. 691.</p> <p>8. Wills. — Construction.—Partial Intestacy.-^Unless compelled by the language used, a construction of a will resulting in partial intestacy will be avoided, p. 691.</p> <p>4. Wills. — Construction.—Remainders—Contingent or Vested.- — A remainder will not be construed to be contingent, if it can be construed to be vested. ,p. 691.</p> <p>5. Wills. — Construction.—Vested Remainder. — Under a will giving life estates in certain land to the husband and brother of testatrix, and, subject thereto, devising said land and all real estate owned at her death to a niece for life, or in case of her death prior to death of testatrix, or the death of the husband and brother, then at the niece’s death, or the death of the husband and brother, the fee simple of all said real estate to vest absolutely in two daughters of the niece, as tenants by entirety, the survivor to take the whole, and where the husband and brother died before the death of the testatrix, the daughters took a vested remainder in fee at the death of the testatrix, p. 691.</p> <p>6. Wirns. — Construction.—-“Or” Construed “And.” — When from the wording of a will it is obviously necessary in order to carry out the intention of- the testator, the word “or” will be construed as “and.” p. 692.</p>

From Jackson Circuit Court; Oren 0. Swails, Judge. Action by Alexander T. Griffith, against Fred G. Donner. From a judgment for plaintiff, the defendant appeals. This action was instituted by appellee to enjoin appellant from erecting a permanent obstruction in and across a strip of ground ten feet wide and located between buildings owned by the parties, respectively, in the city of Columbus.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Hans Lohse against the H. Lohse Company. From an award for applicant, the defendant appeals.

<p>From Posey Circuit Court; Berdis Clements, Judge.</p> <p>Action between "William Hazelrigg and Mary Hicks. From the judgment rendered, the former appeals.</p>

<p>From -Marion Superior Court (100,898); Theophilus 3. .Moll, Judge.</p> <p>Action between Arthur C. Sanders and the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment in favor of the former, the latter appeals.</p>

Prom Marion Superior Court (100,505) ; Linn D. Hay, Judge. Action by the State of Indiana on the relation of the National Bridge Company against the Equitable Surety Company and another. Prom a judgment for plaintiff, the defendants appeal.

<p>Prom Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by William H. Miller against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>