Volume 74 — Indiana Appellate Court Reports

<p>Mines and Minerals. — Oil and Gas Lands. — Joint Lease. — Lease 'of Separate Tracts Owned Severally by Lessors. — An oil and gas lease made by husband and wife, who were designated therein as the first party, describing the land by boundaries and as containing a certain number of acres, and making no reference to separate ownership of the several tracts leased, and providing as consideration one dollar and delivery to the first party of a stipulated share of all oil produced; and requiring the second party to complete a well “on said lands” within a certain time, is a joint lease which is satisfied by.the completion of a single well, though the lease covered three tracts of land, two of which belonged to the husband and one to ■ the wife. . .</p>

<p>1. Railroads. — Crossing Accidents.- — -Damage to Property.— Complaint. — Sufficiency.—Contributory Negligence. — In an action against an interurban railroad company for damages to plaintiff’s traction engine, which was struck by defendant’s -interurban car when it became stalled on a highway crossing, complaint held not demurrable as showing .plaintiff’s contributory negligence in failing to give warning to the motorman of the situation of the engine, p. 10.</p> <p>2. Set-Off and Counterclaim.- — Torts.—Counterclaim.—In an action against an interurban railroad company to recover for damages to plaintiff’s traction engine when it was struck by defendant’s interurban ear on a highway crossing, defendant could not counterclaim for damage to its car in the same collision resulting from plaintiff’s alleged negligence, p. 11.</p> <p>3. Appeal.— Review.— Verdict.— Answers to Interrogatories.— Contributory Negligence. — Last Clem Chance. — In an action to recover damages to plaintiff’s traction engine which was struck on a highway crossing by defendant’s interurban car when it-became stalled on a highway crossing, held that defendant’s motion for judgment on the jury’s answers to the interrogatories notwithstanding the general verdict for plaintiff was properly overruled, even though the answers show that plaintiff was negligent in not giving notice to those operating the car that the engine was stalled, where other facts were found permitting a recovery on the theory of last clear chance, p. 11.</p>

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by the Martinsville Harness Company against ' the Newark Fire Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (Al,070); Linn D. Hay, Judge.</p> <p>Action by Zadoc J. Fort against George Cummins and another. From a judgment for defendants, the plaintiff appeals.</p>

From Lake Circuit Court; E. Miles Norton, Judge. Action by the Indiana Truck Farm Company against the town of Schneider and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Appeal. — Review.—Overruling Motion to Modify Judgment.— The trial court properly overruled a motion to modify the judgment, where it did not seek a correction of an erroneous entry of what the court had in fact adjudged, but rather another and entirely different judgment, p. 84.</p> <p>2. Guardian and Ward. — Filing > New Bond. — Release of Sureties. — The filing of a new or additional bond by a guardian does not release the sureties on the original bond, where no application for release has been made, but the new bond is cumulative in its legal character, and the sureties are to be deemed cosureties, bound as such to the ward, in the proportion of the amounts of their bonds, p. 34. ■</p>

<p>1. Insurance. — Life Insurance. — Death From Excepted Cause. —Rescission.—Return of Premiums. — Under a policy of life insurance providing that if insured commits suicide within one year, the policy shall be void, .that the quarterly premium in a stipulated amount shall be payable in advance, and that from the amount to be paid the beneficiary shall be deducted any unpaid premium for the current policy year, insured having paid the premium one year in advance and committed suicide during the first quarter, the insurer was not required to return any portion of the premium paid to avail itself of the defense of suicide, since, the policy becoming void not ab initio but only upon insured’s death, and being issued on an annual premium basis, though with the privilege of payment in quarterly installments, the entire premium was earned by carrying the risk a part of the first quarter, pp. 40, 42, 44.</p> <p>2. Insurance. — Life Insurance.- — Death From Excepted Cause. —Rescission.—Return of Premiums. — Where a life insurance -company actually carries a risk, and death occurs from an excepted cause, it need not tender back the premiums for former periods, or for the current period during which such death occurs, in order to defend, since the premiums paid have been earned, p. 41.</p> <p>3. Insurance. — Life Insurance. — Policy.—Construction.—In construing a policy of life insurance, every clause and every word should, when possible, have assigned to it some meaning, and a harmonious whole made to appear, since it will not be presumed that the parties intended any provision to be meaningless. p. 43.</p>

<p>1. Judgment. — Default Judgment. — Absence of Attorney. — Liou bility of Party. — The negligence of an attorney employed by a party is the negligence of the party himself, p. 49.</p> <p>2. Judgment. — Default Judgment. — Absence of Attorney. — Belief. — Relief -will not be given to defendant, under §405 Burns 1914, §396 R. S. 1881, from a judgment taken against him by default, in the absence of his attorney, on the ground of excusable neglect, whefie such absence was caused by the attorney relying on information that the case would not be tried at the time fixed, given by a member of the bar of the court, but unconnected with the cause, p. 49.</p> <p>3. Judgment. — Default Judgment. — Relief.—Discretion of Court. —Trial courts, independently of §405 Burns 1914, §396 R. S. 1881, possess and exercise a very large discretion in vacating judgments taken by default, p. 50.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by the Conrad Seipp Brewing Company against Louis Marks and another. From á judgment for plaintiff, the defendants appeal.</p>

<p>From Fayette Circuit Court; Raymond S. Springer, Judge.</p> <p>Objections by James Seal as a taxpayer, to the claim of Phil Wilk and Company for payment for highway construction, appealed to the circuit court from a determination .of the board of commissioners of Union county in favor of the claimant. From a judgment for claimant in the circuit court, the taxpayer appeals'.</p>

<p>1. Appeal. — Briefs. — Ruling on Demurrer. — No Exception Saved. — Review.—Where it does not appear by appellant’s brief that an exception was saved to a ruling on demurrer, assigned as error, the Appellate Court is not required to consider the question, p. 64.</p> <p>2. Insurance. — Policy Conditions. — Waiver.—Retention of Premium. — A condition of unconditional ownership in insured is waived if at the time of issuance of the policy insurer is informed to the contrary and thereafter fails for an unreasonable time to rescind and retains the premium, p. 64.</p> <p>3. Insurance. — Actions on Policies. — Defenses.—Rejection of Claim on One Ground Waiver of Others. — Where the insured rejected a claim for loss upon the sole ground that insured was not the sole and unconditional owner of the property destroyed, all other defenses were thereby waived, p. 64.</p> <p>4. Trial. — Direction of Verdict. — Insurance.—Where the undisputed evidence shows that the insurer knew of the character of insured’s title when the policy was issued, and again when proof of loss was made, and delayed to tender back the premium until two months after suit was brought and four months after proof of loss, defense based on a condition of the policy that it should be void if the insured’s interest in the property was other than conditional and sole ownership, was waived, and all other defenses having been waived by the rejection of the claim upon the sole ground of breach of such condition, the court did not err in directing a verdict for insured, p. 64.</p> <p>5. Trial. — Verbal Direction of Verdict. — Instructions.—It was not harmful error to verbally direct the jury to return a verdict for plaintiff, where the undisputed evidence required it, though there was a request that the jury be instructed in writing, as such direction was not a general instruction within the meaning of §558 Burns 1914, §533 R. S. 1881. p. 64.</p> <p>6. Appeal.— Review.— Instructions Refused.— Record.— Where instructions refused are not made part of the record, they will not be considered on appeal, p. 65.</p>

<p>From Hamilton Circuit Court; Ernest M. Cloe, Judge.</p> <p>Action by Anna B. Woods against Aaron D. Booth and others. From the judgment rendered the defendant named appeals.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Bernard King and another, trading as the King Coal Company, against James S. Randolph. From a judgment for plaintiffs, the defendant appeals.</p>

From Morgan Circuit Court; Nathan A. Whitaker, Judge. Action by Ernest H. Craft against Charles S. Stone. From a judgment for defendant on the jury’s answers to interrogatories notwithstanding the general verdict for plaintiff, the plaintiff appeals.

<p>From Marion Circuit Court (28,029); Louis B. Ewbank, Judge.</p> <p>Action by Joseph W. Thompson and another against Leo K. Fesler and another. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Landlord and Tenant. — Lease for 10 Years Invalid. — Tenr ancy from Year to Year. — Under §8054 Burns 1914, §5208 R. S. 1881, if irregularities in the execution and record of the lease under which the tenants were placed in possession rendered the same invalid for the term of ten years provided for thereby, only a tenancy from year to year was created, p. 103.</p> <p>2. Landlord and Tenant. — Leases.—Construction Where One Named Tenant Fails to Sign. — Where a lease to four was prepared, but was signed by only three, who were put in possession thereunder, the appearance in the body of the lease of the name of the one not signing did not make him a party thereto, and the contract as finally completed was only the contract of the landlord and the three persons placed in possession, and the failure of the one to sign did not change the character of the lease from being one for a term of ten years to that of a general tenancy, p. 103.</p> <p>3. Landlord and Tenant. — Lease for More Than Three Years. —Scope of Validity When Unacknowledged. — Construction of Statutes. — Sections 3947, 3957, 3965, 3985, 3987, 3962, 3963 Burns 1914 (§§2919, 2926, 2933, 2950, 2952 R. S. 1881, Acts 1913 p. 233, Acts 1897 p. 162) must be construed in pari materia, and when so construed it is apparent that an unacknowledged and unrecorded lease for a longer term than three years is valid as between the parties and as against persons having' notice thereof, p. 104.</p> <p>4. Landlord and Tenant.— Leases.— Assignment.— Substitution of Tenant, — Where an assignment of lease provided that the assignee assumed all obligations of the lease and agreed to hold the assignor lessees harmless, to which the lessor indorsed his consent and acceptance, the assignee was placed in the position of the original lessees, with the burden of all obligations assumed by them, including the payment of the stipulated rent. p. 105.</p> <p>5. Appeal. — Newly-Discovered Evidence. — Evidence Not in Record. — Review.—Where the evidence given on the trial is not in the record, the refusal to grant a new trial on the ground of newly-discovered evidence cannot he considered, p. 105.</p>

<p>1. Appeal.— Review.— Injunction.— Dissolving Restraining Order Pending Applications for Change of Venue amd Judge.— Motion for New Trial. — Action of the court dissolving a restraining order pending plaintiff’s applications for a change of venue and for a change of judge, if erroneous,. cannot be presented except as a cause for a new trial, p. 108.</p> <p>2. Drains. — Proceedings in Circuit Court. — Relief to Landowners. — Contempt.—The contractors constructing a catch-basin in a ditch proceeding in the circuit court were under the direction and control of that court, and any landowner who felt aggrieved might there apply for relief, and as §6147 Burns 1914, Acts 1907 p. 508, provides that the commissioner appointed to construct a drain shall be under the control and direction of the court and shall obey such directions, a remonstrant could have had the contractors and commissioner cited for contempt for disobeying the order of the court for the construction of the ditch, p. 110.</p> <p>3. Courts. — Jurisdiction.—Drains.—Injunction.—Where proceedings to which plaintiff was a party, were pending in the circuit court, wherein a drain and terminus had been established and ordered constructed, under the supervision of a drainage commissioner, and a contract awarded therefor, courts of equal rank have no jurisdiction to enjoin such construction where the court in which the drainage proceeding was pending had ample power to afford all the relief to which plaintiff was entitled, p. 110.</p>

<p>From Montgomery Circuit Court; I. E. Schoonover, Special Judge.</p> <p>Action between John M. Wilson and another and Edgar A. Sentman and another. From the judgment rendered, the former appeal.</p>

From Vigo Circuit Court; Abraham L. Miller, Judge pro tern. Action by the Fidelity and Deposit Company of Maryland against Orph M. Hall, as administrator de bonis non of the estate of Charles L. Markin, deceased. From a judgment for defendant, the plaintiff appeals.

<p>1. Appeal. — Questions Presented. — Puling on Demurrer. — Assignment of Error. — Where appellant filed a separate demurrer to each paragraph of the complaint, but only claims that the trial court erred in overruling the demurrer to the first paragraph and admits that the others are sufficient to withstand demurrer, no question is presented for review by an assignment that the court erred in overruling the demurrer to the complaint, p. 120.</p> <p>2. Appeal. — Review.—Admission of Evidence. — In an action for personal injuries, where a witness was asked as to a conversation with defendant’s foreman concerning the necessity of repairs at the place where plaintiff was injured, and defendant objected on the ground that there was no showing or allegation that plaintiff had relied on any promise of the foreman, and, after the question had been answered further objected that the statement of the foreman was made after the accident, there being nothing in the record to indicate when the statement was made at the time the question was asked and answered, but it was afterwards disclosed by the evidence that it was several hours after the injury, there was no reversible error in the absence of a motion to strike out or withdraw the answer to the question, p. 121.</p>

<p>1. Appeal.— Review.— Overruling Motion to Make Complaint More Specific. — Discretion of Trial Court. — The overruling of a motion to make a complaint more specific is so largely a matter of discretion with the trial court that, to render its action reversible error, the mover must show that he was in some way injured by the ruling, p. 126.</p> <p>2. Appeal. — Review.—Overruling Motion to Make Complaint More Specific. — When Harmless. — In an action against an insurance company to recover premiums paid to it by plaintiff, it was not reversible error to overrule a motion to make the first paragraph of complaint more specific, even though the ruling was technically erroneous, where defendant fails to show that it was misled as to the nature of the demand in suit, or that it was prevented from making full preparation for its defense, and the record fails to disclose that any substantial rights of defendant were probably affected by such ruling, p. 126.</p> <p>3. Pleading. — Complaint.—Construction.—Inferences.—In determining the sufficiency of a complaint as against demurrer, the court must consider, in connection with the facts expressly alleged, such further facts as can be implied therefrom by fair and reasonable intendment, and to give such facts so impliedly averred the same force and effect as if directly'stated, p. 127.</p> <p>4. Insurance. — Action to Recover Premiums. — Complaint.—Sufficiency. — In an action against an insurance company to recover insurance premiums paid, a complaint alleging that the original policy was for unlimited liability, but that the liability of successors to the original insurer was limited, and that such limitation was fraudulently concealed from insured for the purpose of collecting premiums from him, held good as against demurrer, p. 127.</p> <p>5. Appeal.— Review.— Ruling on Demurrer.— Objections Considered. — Objections to the sufficiency of a complaint which are not so specifically stated in the memorandum filed with the demurrer as to show that the trial court’s attention was directed thereto, are not available on appeal, p. 127.</p> <p>8. Insurance.— Action to Recover Premiums.— Fraud.— Evidence. — Sufficiency.—Insured cannot recover premiums paid by him to the successor of the original insurer on the ground that under the contract of reinsurance the liability was limited, and his policy was of less value than the original policy, which fact was fraudulently concealed from insured for the purpose of inducing him to pay the premiums, in the absence of proof that defendant company knew that insured, when he paid the premiums, was ignorant of the limited liability and fraudulently concealed such fact from him. p. 128.</p>

From Shelby Circuit Court; Alonzo Blair, Judge. Action by George B. Moss, administrator of the estate of Effie Moss, deceased, against the city of Indianapolis. From a judgment for plaintiff, the defendant appeals.

<p>From the Industrial Board of Indiana.</p> <p>Proceedings under the Workmen’s Compensation Act by Lucile Wehr and others aganist the Indian Creek Coal and Mining Company. From an award in favor of claimants, the named company appeals.</p>

From Howard Circuit Court; William C. Overton, Judge. Action by Daisy Bennett and another against the Lake Erie and Western Railroad Company and another. From the judgment rendered, the plaintiffs appeal. Defendants assign cross-error.

<p>From Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by Francis M. Ellsbury against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by the United Brethren Publishing Establishment against Abner H. Shaffer, as treasurer of Huntington county and another. From a judgment for defendants, the plaintiff appeals.

From Lake Superior Court; Virgil S. Reiter, Judge. Action by Harry R. Newbert and others against George Gardner and others. From a judgment for the plaintiffs, the defendants appeal.

<p>1. Insurance. — Actions on Policies. — Defenses.—Notice of Assessment. — Pleading.—An answer that the policy was not in force because of the failure of insured to pay an assessment, which omits any averment that notice of such assessment was actually received by insured, is insufficient, p. 195.</p> <p>2. Appeal.— Harmless Error.— Departure.— Pleading.— Where matter used as a basis of recovery in one paragraph of complaint is set up by reply as a waiver of a defense pleaded to another paragraph of the complaint, the departure, if any, is harmless, p. 197.</p> <p>'3. Pleading. — Reply. — Departure. — Insurance. — Where one paragraph of a complaint in an action on a policy set up as a separate cause of action an agreement by insurer to pay insured if he would forbear enforcement of his claim for sixty days, the use of such facts by reply as a waiver to a defense set up by answer to another paragraph of the complaint is not a departure, p. 197.</p>

From Monroe Circuit Court; Robert W. Miers, Judge. Action by the board of commissioners of Owen county, Indiana, against the Spencer Light, Heat and Power Company. From a judgment for plaintiff, the defendant appeals.

<p>From Laporte Superior Court; Hurry L. Crumpacker, Judge.</p> <p>Action by the Michigan City Car Company against George Estfam. From a judgment for defendant, the plaintiff appeals.</p>

<p>Appeal.— Review.— Evidence.— Weight and Sufficiency. — Where the trial court’s finding is supported by some evidence, although in part conflicting, it is conclusive on appeal, the appellate court not being required to weigh conflicting evidence.</p>

<p>From Dubois Circuit Court; John L. Bretz, Judge.</p> <p>Action by John C. Kinney against the Southern Surety Company and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Carriers. — Carriage of Goods, — Loss in- Transit. — “Act of God,”. — An act of God is the manifestation of a superhuman power which breaks the chain of causation in the realm of human activity, p. 230.</p> <p>2. Carriers.— Carriage of Goods.— Loss in Transit.— Act of God. — Proximate Cause. — Where plaintiff shipped a piano to a point 163 miles distant, and fifteen days later, while the car in which it was being transported was standing in a freight yard in an intermediate city, it was damaged by a flood, the carrier was not liable, since the delay in shipping was not the proximate cause of the damage, it being a mere accidental coincidence that the piano arrived at such freight yard at the same time as the flood, p. 230.</p>

<p>From Marshall Circuit Court; Smith N. Stevens, Judge. , .</p> <p>Action by Schlosser Brothers against George W. Huff, treasurer of the county of Marshall. From a judgment for defendant, the plaintiff appeals.</p>

<p>Appeal. — Briefs.—Sufficiency.—Where the only error relied on for reversal is the overruling of the motion for new trial, and appellants’ brief fails to set out the motion or the substance thereof, the brief is insufficient to present any question for consideration.</p>

<p>From Marion Superior Court (A842); Vincent G. Clifford, Judge.</p> <p>Action by the Glencoe Cotton Mills against the Capital Paper Company. From a judgment for defendant, the plaintiff appeals.</p>

From Grant Circuit Court; James F. Charles, Judge. Actions by Vennie Burden and Marsha Burden against L. Chochos and another which were consolidated for the purpose of trial and appeal. From a judgment for plaintiff in each action, the defendants appeal.

<p>From Warren Circuit Court; Burton B. Berry, Judge.</p> <p>Action by George L. Cronkhite and others against John Sexton. From a judgment for plaintiffs, the defendant appeals.</p>

From Lake Circuit Court; W. C. McMahan, Judge. Action by Oliver O. Forsyth and others against the board of commissioners of the county of Lake. From a judgment for defendant, the plaintiffs appeal.

<p>From Henry Circuit Court; Fred C. Game, Judge.</p> <p>Action by Lafayette Glascock against Elizabeth Wilson. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Pulaski Circuit Court; W. C. Pentecost, Judge.</p> <p>Action by Leo M. Kuhn against Bernard Shank. 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 Esther Kleinknight against Hilda Garton and another. From an award for applicant, the defendants appeal.

<p>From Marion-Superior Court (102,212); Vincent G. Clifford, Judge.</p> <p>Action by the Maryland Casualty Company of Baltimore, Maryland, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal. — Decision on Prior Appeal. — Law of the Case.— Where, on subsequent appeal, the issues remain the same and there is no material change in the evidence, the former decision stands as the law of the case. p. 278.</p> <p>2. Insurance.— Fraternal Benefit Certificates.— Warranties.— Breach. — Where the parties to a fraternal benefit certificate have fixed the character of insured’s answers in his application as warranties, and not representations, the exact truth of each and every answer as given is material, and each of such answers must be the exact truth or there is a breach of warranty. p. 280.</p>

<p>From Hancock Circuit Court; Earl Sample, Judge.</p> <p>Action by Thomas B. Leary against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Glen Ivey against the Outing Kumfy-Kab Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marshall Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by John H. Doering against John Schneider. From a judgment for defendant, the plaintiff appeals.</p>

From Madison Superior Court; Willis S. Ellis, Judge. Action between Willis G. Simmerman and others, and Stuart A. Greene and others. From a judgment for the latter, the former appeals.

<p>From Jasper Circuit Court; Charles W. Handley, Judge.</p> <p>Action by Harvey Davisson against James Porter and others. From a judgment for plaintiff, the defendant, First National Bank of Martinsville, Illinois, appeals.</p>

From Delaware Superior Court; Robert M. Van Atta, Judge. Action by Anthony ShocKey, continued after his death by the administrator of his estate, Ora Caldwell, against Elijah A. Henby and others. From a judg- ment for plaintiff, the named defendant appeals.

From Warrick Circuit Court; Marshall R. Tweedy, Judge. Action by Ernest Alldridge, by his next friend, Edith Alldridge, against the city of Mount Vernon. From a judgment for plaintiff, the defendant appeals.

From Marion Superior Court (A995) ; Linn D. Hay, Judge. Action by Arthur Jordan and others against William B. Flick and others. From a judgment for plaintiff, the defendant named and another appeal.

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by Mary E. Ballew against Leven Arnett and another. From a judgment for defendants, the plaintiff appeals.</p>

From the Industrial Board of Indiana. Certified Questions of Law. Proceeding by Robert Stoner under the Workmen’s Compensation Act, for compensation by the American Zinc Products Company, employer, opposed by the London Guarantee & Accident Company, insurer. Certified questions by the Industrial Board.

<p>1. Insurance.— Fraud.— Forfeiture. — Waiver. — Retention of Premiums. — Where an insurance policy is procured by fraud, the contract is voidable at the option of the insurer, and, in such a case, the retention of the premium paid after discovery of the fraud may be sufficient to show a waiver of the fraud and election to stand by the contract, p. 332.</p> <p>2. Insurance. — Life Policy. — Execution After Death of Applicant. — Validity of Contract. — Where an application for a life insurance policy and the policy itself stipulated that the policy should not become effective unless applicant was alive and in good health at the time it was delivered, a policy which was approved by the company and mailed to its agent after insured had died, of which fact the company was ignorant, was void, regardless of the fact that the company retained the premium paid. p. 332.</p>

<p>Appeal. — Briefs.—Appellee’s Failure to File. — Confession of Error. — Where appellant shows prima fade error, the failure of appellee to file a brief may be treated as a confession of error and the judgment reversed.</p>

From Marshall Circuit Court; Smith N. Stevens, Judge. Action by Ben Zehner, trustee for Reo Zehner and others, on a claim against the estate of Michael Zehner, deceased. From a judgment for the estate, the claimant appeals.

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Orlando B. Smith against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for planitiff, the defendant appeals, and from an order correcting the record nunc pro tune, the plaintiff appeals.</p>

<p>1. Railroads. — Injuries to Persons on Tracks.. — Intending Passenger Struck by Ca/r. — Action.—Complaint.—Sufficiency.—In an action against an interurban traction company for personal injuries sustained when plaintiff was struck by -a car' which he intended to board as a passenger, a complaint alleging that plaintiff presented himself at a station which was a flag stop and was struck by a car which he signaled to stop because of the failure of defendant to maintain headlights upon the, car, etc., held good as against demurrer, p. 348.</p> <p>2. Railroads. — Injuries to Persons on Tracks. — Intending Passenger Struck by Car.— Contributory Negligence.— Where plaintiff, who attempted to signal an approaching interurban car after night to stop at a flag station in order that he might board it as a passenger, stood so near the tracks that the car, which failed to stop, struck and injured him, he was guilty of contributory negligence barring a recovery for his injuries, even though the car was being operated without a headlight, and the motorman saw him when he was between 200 and 300 feet away. p. 348.</p> <p>3. Rairroads. — Injuries to Persons on Tracks. — Negligence.— Contributory Negligence. — Last Clear Chance. — Where plaintiff, desiring to board an approaching interurban car as a passenger at a flag station, took a position so near the track from which to signal the car that he was liable to be injured, and, notwithstanding his knowledge that the car was moving at a speed of forty or fifty miles an hour, failed to retire from his dangerous position, although he could have done so at .any time before the car reached the spot where he was standing, and was struck and injured, he could not recover for his injuries under the doctrine of last clear chance, since the opportunity of the motorman to prevent the accident was not later in point of time than that of plaintiff, p. 350.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Action by the Indiana Trust Company, as trustee under the will of Peter Lieber, deceased, against Charles M. Kline and another. From a judgment for the plaintiff, the defendants appeal.

<p>From Marion Superior Court (A4,989); W. W. Thornton, Judge.</p> <p>Action by Fred Rau against the Goodyear Tire and Rubber Company and another. From á judgment for plaintiff, the defendants appeal.</p>

<p>. From Howard Circuit Court; William C. Overton, Judge.</p> <p>Action by the city of Kokomo against George W. Sipe. From a judgment for the plaintiff, the defendant appeals.</p>

<p>From Perry Circuit Court; Fred A. Retiring, Judge.</p> <p>Action between the Interstate Business Men’s Accident Association of Des Moines, Iowa, and William G. Minor. From the judgment rendered, the former appeals.</p>

<p>1. Appeal.— Standing on Demurrer.— Pending Issue.— Where plaintiff’s demurrers to four of the five paragraphs of answer were overruled, it can stand on the demurrers and appeal from the judgment rendered against it for refusal to plead further, notwithstanding the issue pending on the paragraph of answer not demurred to. p. 370.</p> <p>2. Bills and Notes. — Negotiability.—Consent by Surety, Endorser or Guarantor to Extension. — A provision in a promissory note that any person signing or writing his name thereon as surety, endorser or guarantor by so doing expressly consents that the time of payment may be extended from time to time without any rights being released or waived, does not render the same nonnegotiable under the law in force prior to the enactment of the Negotiable Instruments Act (§9089a Burns 1914, Acts 1913 p. 120). p. 370.</p> <p>3. Bills and Notes. — Actions.—Complaint Showing Plaintiff Bona Fide Purchaser. — Failure to Deny by Answer. — It is permissible in an action on a promissory note for plaintiff by his complaint to assume the burden of showing that it was a bona fide purchaser for value before maturity and, where this has been done, answers of failure of consideration that do not contain a denial of such averments in the complaint are insufficient. p. 372.</p> <p>4. Appeal. — Briefs.—Points.—Review.—Where appellant failed to present any point in his brief on the court’s ruling on his demurrer to one paragraph of answer, such ruling will not be considered, p. 373.</p>

<p>1. Appeal. — Waiver of Error. — Demurrer.. — Memoranda.— Pleading. — Objections to the complaint not presented to the trial court by memoranda filed with the demurrer, are waived on appeal, p. 376.</p> <p>2. Appeal. — Waiver of Error. — Briefs.—Assignment of Error ■ Not Mentioned in Errors Belied on. — An assignment of error not mentioned in appellant’s brief as one of the errors relied on for reversal, is waived, p. 376.</p> <p>3. Appeal. — Briefs.—Recital of Evidence by Appellant. — Presumption in Absence of Corrections by Appellee. — The recital of the evidence in appellant’s brief will be assumed to be accurate where appellee has made no correction thereof as provided by the rules of court, p. 379.</p> <p>4. Appeal. — Waiver of Error. — Theory of Contributory Negligence.' — Briefs.—Railroads.—Any question of a showing as matter of law of contributory negligence based on facts found by the jury taken in connection with the undisputed evidence given by appellee in a railroad crossing accident case, upon a theory not presented by appellant’s brief, is waived, p. 380.</p> <p>5. Appeal.— Review.— Evidence.— Sufficiency. — Answers to Interrogatories to be Considered. — On appeal the facts found by the jury in answer to interrogatories must be considered on the question whether the verdict is sustained by the evidence, p. 381.</p> <p>6. Railroads. — Crossing Accidents. — Contributory Negligence.— Approaching Tracks in Closed Car, etc. — Automobiles.—Where the statutory signals were not given, it cannot be said as matter of law that the approach of plaintiff, on a cold day, wrapped in a robe and enclosed in an automobile provided with transparent curtains, constituted contributory negligence, though such condition might have prevented his hearing such signals had they been given, p. 381.</p> <p>7. Railroads.— Crossing Accidents.— Instructions.— Temporary Obstructions to View. — Duty of Traveler to Stop. — In a railroad crossing case, held that the jury should have been instructed as to the duty resting upon a traveler upon a public highway, being in a place of safety and about to enter upon a railroad crossing where a temporary obstruction to his view is present, to wait in such place of safety until such obstruction is so far removed that he can ascertain with reasonable certainty that it is safe to proceed over such crossing, p. 381.</p>

From Marion Superior Court (81,971) ; John J. Rochford, Judge. Action by Frank M. Fauvre against Harry B. Gates. From a judgment for plaintiff, the defendant appeals. Defendant having died pending appeal, Alfred Bennett Gates, administrator of his estate, has been substituted as appellant.

From Lake Superior Court; Walter T. Hardy, Judge. Action by Elizabeth Hale against the Northwestern Mutual Life Insurance Company and others in which Mary Louise Hale was interpleaded and filed a cross-complaint. From a judgment for Mary Louise Hale upon her cross-complaint, plaintiff appeals.

<p>1. Indemnity. — Bond for Extension of Credit under Separate Contract. — Liability of Sureties. — Construction.—Principal and Surety. — The liability of sureties upon a bond given to indemnify against loss by extension of credit under a separate contract, depends upon the undertaking and conditions stated in the bond, and in that respect is to be strictly construed; but, where they are asking-to be discharged from liability because of some, violation of or departure from the terms of the particular contract, they must, to succeed, show that they have sustained some damage, p. 429.</p> <p>2. Indemnity.— Bond and Contract Separate.— Unauthorized and Immaterial Memorandum Placed on Contract. — Sureties to ■ Bond Not Discharged. — Principal and Sureties. — The placing of an unauthorized and immaterial memorandum upon the contract after the execution of the bond and without the knowledge or consent of the sureties, does not constitute a material change and alteration of the bond so as to release the sureties from liability thereon, p. 430.</p>

<p>From Jay Circuit Court; E. E. McGriff, Judge.</p> <p>Action by Chalmer Schlegel by next friend against Ferdinand Stauffer. From a judgment for plaintiff, ■ the defendant appeals.</p>

From Wabash. Circuit Court; Charles A. Cole, Special Judge. Action, by Mary L. Clark, administratrix of the estate of Dora Clark, deceased, against the city of Huntington and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Insurance. — Fire Policy. — Transfer of Interest. — Under a fire policy stipulating against sale, conveyance or change in the interest of the parties therein in any manner, where under a contract of sale the agreed consideration and a deed to the property had been deposited with a third person, and at the time of the fire nothing remained to do but to make delivery thereof to the parties, and the purchaser had taken and was in possession, there had been such a change not only of the interest but of the title and possession of the real estate, including the dwelling house involved, as invalidated the policy, p. 456.</p> <p>2. Escrows — Full Performance of Conditions. — Depositary as Agent of Grantee. — Where a deed is in escrow and the conditions authorizing its delivery to the grantee are fully performed, the depositary then becomes agent for the grantee for whom he thereafter holds the deed. p. 457. '</p> <p>3. Insurance. — Transfer of Equitable Interest and Possession. —Invalidation of Policy. — When a fire policy stipulates against change in interest, and a third person becomes the owner of the equitable interest in the real estate and takes possession, the policy is invalidated though legal title has not passed, p. 457.</p> <p>4. Insurance. — Fire Policy. — Change of Interest in Real Estate. — Effect on Personalty Covered by Same Policy. — Where real property and personal property therein were so situated that the risk upon the-building could not be affected without affecting the risk upon the personalty, a fire policy on both was entire and indivisible, and a breach of its condition by effecting a change in interest as to the real property invalidated the policy not only as to the house but as to the personal-property situated therein. p.457.</p> <p>5. New Trial. — Answers to Interrogatories. — Inconsistency with Verdict Not Ground for New Trial. — The inconsistency with the verdict of answers to interrogatories is not a ground for new trial, p. 458.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Condemnation proceedings by a railroad company and payment of award into court. Adverse petitions by William F. Schick and Malora Dye as to distribution of the award. From the judgment rendered, the latter appeals.

<p>1. Master and Servant. — Action for Bonus. — Complaint.—Sufficiency. — In an employer’s action against the master to re7 cover a.bonus, a complaint"alleging that plaintiff entered defendant’s employment, with an agreement that he was to receive $2 per day, and that he should participate in the distribution of a bonus, the amount of which was to be determined from the net earnings of the company and apportioned among its employes in proportion to the wages received by each, and which further averred the total wages drawn by plaintiff, and the percentage of the wages of each employe distributed as a bonus, alleges the amount of bonus to which plaintiff was entitled with sufficient certainty to make it good as against demurrer. p. 463.</p> <p>2. Appeal. — Review.—Harmless Error. — Overruling Demurrer to Complaint. — In an employe’s action against the master to recover a bonus, error, if any, in overruling a demurrer to the complaint on the ground that the amount of the bonus was not alleged with sufficient certainty was harmless; where the special findings show a clear right of recovery, and that the conclusions of law are correct, p. 464.</p> <p>S. Master and Servant. — Master’s Voluntary Sharing of Profits with Employes. — Employe’s Right to Recover. — Where a company posted a notice in its factory that it would share its profits with its employes, one who entered the company’s employment after its superintendent had informed him of the company’s plan of distributing profits to employes, and who accepted a daily wage much less than the average wage for similar work in the community in anticipation of sharing in the profits, was entitled to recover his proportionate share of the bonus under the method of computation set forth in the posted notice, p. 468.</p> <p>4. Master and Servant,.— Payment of Bonus.— Conditions.— Compliance by Employe. — In an action against the master by an employe to recover his share of a bonus, held that the employe had substantially performed the conditions that placed him in the class of employes who were entitled to share in the bonus, p. 469.</p>

<p>1. Evidence. — Opinion Evidence of Physician.- — -Competency.— Questions Based on Facts Testified To. — In an action for personal injuries, questions to plaintiff’s physician calling for his opinion as to her condition and the possible permanency of her injuries held not objectionable as being based on undisclosed facts not testified to by the witness, p. 472.</p> <p>2. Appeal. — Review.—Harmless Error. — Admission of Evidence. —In an action for personal injuries, even though the opinion of a physician as to plaintiff’s condition was based on facts not testified to by him, the admission of his opinion was harmless where the undisclosed fact was that plaintiff had only informed him she felt well, but did not complain of any illness, pain or suffering, p. 473.</p> <p>3. Appeal. — Review.—Harmless Error. — Admission of Evidence. —In an action for personal injuries, error, if any, in permitting plaintiff to testify as to what her attending physician told her in reference to her injuries was harmless, where he also testified as to her physical condition, p. 473.</p> <p>4. Damages. — Special Damages. — Necessity of Pleading. — Special damages cannot be recovered in the absence of proper averments in the complaint, so that where the complaint, in an action for personal injuries alleged special damages in the loss of plaintiff’s vocation as school teacher, it was error to admit testimony that plaintiff was prevented from earning money as a singer, p. 474.</p> <p>5. Appeal. — Review.—Harmless Error. — Admission of Evidence. —Error in the admission of improper evidence was harmless, where such evidence was stricken out and the jury instructed to disregard it. p. 474.</p> <p>6. Witnesses.— Privileged Communications.— Waiver. — -In an action for personal injuries, where prior to trial plaintiff’s oral examination as a party was taken in which she testified as to the medical treatment she had received she thereby waived the privilege and could not thereafter recall it. p. 474.</p> <p>7. Appeal. — Review.—Harmless Error. — Exclusion of Evidence. —Error, if any, in excluding as privileged plaintiff’s testimony as to the medical treatment she had received was harmless, where she subsequently testified in full as 'to such matter, p. 474.</p> <p>8. Evidence.— Rebuttal.— Stenographer’s Notes.— In a second trial of an action, where the court reporter who had taken the evidence at the first trial was called as a witness in an attempt to rebut defendant’s testimony, and''she stated that she had no memory or recollection of the evidence sought to be adduced independent of her notes, defendant was entitled to have read her full notes covering such subject-matter, p. 475.</p> <p>9. Appeal.— Questions Presented.— Admission of Evidence.— Failure to Except. — Where the record showed an objection to the admission of evidence, but no exception to the overruling thereof was saved, no questions presented to such ruling, p. 475.</p> <p>10. Appeal.— Review.— Admission of Evidence.— Waiver of Error. — In an -action for personal injuries, where the court reporter taking the evidence at a prior trial of the ease was called as a witness in an attempt to rebut defendant’s testimony, and she stated that her recollection of the evidence sought to be adduced was so vague that she could not recall it without reference to .her notes, defendant cannot on appeal complain of the trial court’s refusal of his request to have the reporter’s full notes read as the best evidence, where subsequently to such refusal plaintiff expressly waived all objection to such reading, but defendant failed to take advantage of the opportunity to introduce the full notes in evidence, p. 475.</p>

<p>1. Pleading. — Demurrer to Complaint. — Limitation of Actions. —R&view.—Scope.—Mechanics’ Hens. — In an action to foreclose a mechanic’s lien the court will not look beyond the complaint to the record of its filing, the issuance of summons and its return, the affidavit of nonresidence of defendant and the order and proof of notice by publication, to determine whether the cause of action is barred by the statute, p. 478.</p> <p>2. Mechanics’ Liens. — Leasehold Estates. — Voluntary Surrender of Estate. — Lien Not Destroyed. — The voluntary surrender of the lease creating an estate for years, does not destroy a mechanic’s lien which attached before such surrender, p. 479.</p>

<p>From Wells Circuit Court; Frank W. Gordon, Judge.</p> <p>Action by Homer A. Andrews against Walter L. Ross as receiver of the Toledo, St. Louis and Western Railroad Company. From a judgment for plaintiff, the de-</p> <p>fendant appeals.</p>

<p>1. Divorce.— Judgment.— Collateral Attack.— A decree of divorce rendered with jurisdiction of the parties is not subject to collateral attack, p. 487.</p> <p>2. Judgment. — Collateral Attack. — Fraud.—Party’s Own Act in Applying for Change of Venue. — Courts.—Fraud in bringing about a change of venue cannot be inferred from the fact that the complaining party did not fully comprehend the meaning and legal effect of the motion for such change prepared by her attorneys and signed by her. p. 487.</p> <p>3. Attorney and Client.— Associate Counsel.— Acts Bind Party. — A party is bound by the acts of an attorney not employed by her but employed by her attorney as his associate counsel, p. 487.</p> <p>4. Process.— Amended Complaint.— New Summons Not Required. — Courts.—Divorce.—The filing of an amended complaint charging an additional ground of divorce does not render a new summons necessary when the court has jurisdiction of the cause and of defendant who is represented by counsel, and jurisdiction is not lost by reason of such amendment, p. 488.</p> <p>5. Divorce. — Time of Trial. — Statute Forbidding Trial Within Sixty Days of Filing Held Void. — Section 1072 Burns 1914, Acts 1913 p. 76, providing that the trial of no suit for divorce shall be heard within sixty days of the filing of the suit, is invalid because it seeks to amend a section of statute which had theretofore been repealed by implication, p. 488.</p>

<p>From Tippecanoe Circuit Court; Henry H. Vinton, Judge.</p> <p>Action by the Farmers and Traders Bank of Lafayette, Indiana, against Orlando Fidler and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>Mortgages. — Foreclosure.—Joinder of Plaintiffs. — An owner of all the bonds of a corporation secured by a mortgage on its property may properly join with the trustee in an action to foreclose, under §§251, 252 Burns 1914, §§251, 252 R. S. 1881, nothwithstanding §249 Burns 1914, §249 R. S. 1881.</p>

<p>From Marion Superior Court (A-894) ; W. W. Thornton, Judge.</p> <p>Action by Ruth Hook against Robert D. Glazer. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Harmless Error. — Matter of Law. — Submitted to Jury. — Correct Result Reached. — No harm is done when a matter of law is erroneously submitted to the jury for decision, where by their verdict they arrive at the same conclusion that would have been required of the court under the facts proved, p. 506.</p> <p>2. Insurance. — Agent.—Authority* to Deliver Policy. — Collection of Premiums. — Waiver of Contrary Policy Provisions.— An agent of an insurance company, with the fire policy in his hands for delivery, is fully authorized by law to receive the premium, thereby waiving any provision of the policy to the contrary, p. 506.</p> <p>3. Insurance. — Premium Paid to Agent. — Statute.—Compliance. —Payment of premium to an agent of the company at the time of delivery by such agent of a fire policy, is a sufficient compliance with §4789i, cl. 3, Burns’ Supp. 1918, Acts 1915 p. 571, §9, providing that a premium upon each application shall be collected in cash. p. 506.</p> <p>4. Insurance. — Extent of Loss. — Actions on Policies.- — Amount of Recovery. — Damages.—In an action on a fire policy, a verdict for the full amount thereof was not too large in a case of total loss, where the property was insured for less than its value, p. 507.</p>

<p>From Marion Superior Court (A4,543); Theophilus J. Moll, Judge.</p> <p>Action by Maria Pettiford against the Rex Health and Accident Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Witnesses. — Confidential Relations and Privileged Communications.— Third Person Present.— Husband and Wife.— Evidence. — Statements or declarations made by one spouse to the other in the presence and hearing of third persons are not privileged, p. 513.</p> <p>2. Witnesses. — Suits By or Against Heirs. — Widow Without Interest in Controversy. — Declarations of Ancestor. — Evidence. —A widow, though party to the record, is not made incompetent by §522 Burns 1914, §499 R. S. 1881, to testify concerning statements made to her by her husband tending to prove an advancement to one of his children, in a suit for partition among his heirs involving that issue, where she has no interest in such issue, although she as such widow has inherited one-third of the lands in question, p. 513.</p>

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by the State of Indiana, on the relation of James F. Kelly, against Balsar T. Crane. From a judgment for defendant, the relator appeals.</p>

<p>1. Names. — Assumed Business Name. — Failure to File Certificate. — Effect.—Statute.—Even though the act (Acts 1909 p. 358, §9711a et seq. Burns 1914), requiring a person conducting a business in this state under an assumed or trade name to file a certificate with the county clerk showing his real name and residence, applies to a trader operating under an assumed name, he is, at most, precluded from transacting business in the state until he has complied with the statute, and is not thereby barred from bringing tort action in replevin. (Homing v. McGill [1917], 189 Ind. 882, distinguished.) p. 520.</p> <p>2. Replevin. — Evidence.—Sufficiency.—Purchase of Goods From Unauthorized Agent. — In an action to replevin merchandise alleged to have been wrongfully sold by plaintiff’s agent, a verdict for plaintiff is warranted by evidence showing that plaintiff’s special agent from whom the goods were purchased by defendant had no authority to make the sale. p. 521.</p> <p>3. Principal and Agent. — Contract with Special Agent. — One dealing with a special agent is bound to know that the agent was acting within the scope of his employment and instruction, p. 521.</p> <p>4. Evidence. — Principal and Agent. — Scope of Agent’s Authority. — In an action in replevin to recover goods alleged by plaintiff to have been sold by his special agent without authority, the admission in evidence of a report of the agent and another made to plaintiff showing the amount of goods on hand and daily disposition of goods, etc., although in the nature of self-serving declarations, was properly admitted to show the extent of the special agent’s authority, p. 521.</p> <p>5. Appeal. — Review.—Harmless Error. — Admission of Evidence. —In an action to replevin a stock of goods alleged to have been wrongfully sold by plaintiff’s special agent, where an inventory made by the agent showing the amount of goods on hand, cost prices, etc., was admissible to show the extent of the agent’s authority, its admission was harmless, though statements therein as to the quantity or value were in the nature of self-serving declarations, where the inventory was in that respect merely cumulative of ample evidence to show the value of the goods in controversy, p. 522.</p>

From Putnam Circuit Court; James P. Hughes, Judge. Exceptions by Jessie M. Taylor to the final report of Zimri E. Dougan, as administrator of the estate of Francis M. Cravens, deceased. From a judgment overruling the exceptions, said Taylor appeals.

<p>From Whitley Circuit Court; Luke H. Wrigley, Judge.</p> <p>Action by Ross O. Kaylor against Margaret Dannhauer. From a judgment for' plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (104,574); IF. W. Thornton, Judge.</p> <p>Action by the Merchants National Bank, of Indianapolis, against John A. Lapp. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Fraud. — Elements.—Knowledge that Representations Are False. — A seller of corporate stock who, without actual knowledge of the corporation’s financial condition, states as a fact that the stock is gilt edge and worth par, when that is not the fact, is liable for fraud to a buyer who relies upon such statement as true, and is thereby induced to buy, even though the seller believed the statement to be true. p. 542.</p> <p>2. Principal and Agent. — False Statement of Agent. — Liability of Principal. — A principal is liable for the false statements of his agent within the scope of his employment, even though the statements were made without the knowledge and consent of the principal, p. 543.</p> <p>3. Fraud. — False Representations as to Value of Corporate Stock. — Duty to Investigate. — In an action for fraud in the sale of stock in a mercantile corporation insolvent at the time of sale, where buyer was without experience in such business, and whose only opportunity for investigation of the company’s affairs was on the occasion of a brief visit to its store, at which time the company’s financial condition was not discussed, nor its books shown to him, held that the buyer had a right to rely on the seller’s representations as to value of stock, etc. p. 544.</p> <p>4. Appeal. — Questions Presented. — Admission of Evidence. — In the absence of proper objection to the admission of evidence, no question thereon is presented for review on appeal, p. 545.</p> <p>5. Evidence. — Competency.—Cross-examination.—Question Calling for Conclusion. — In an action for fraud in a trade of corporate stock for land, in which plaintiff claimed that the deal was hurried through, an objection was properly sustained, on cross-examination of one of the defendants, to a question, “So that deal was made in a hurry there, without any examination of the abstract of title, was it?” since the question was not in proper form, although the facts sought to be elicited were competent upon the question whether the deal was closed hurriedly. p. 545.</p> <p>6. Witnesses. — Repetition of Question Previously Answered.— It is not error to sustain an objection to a question which a witness has previously been asked and answered, p. 545.</p> <p>7. Appeal. — Review.—Refusal of Instructions. — Invading Province of Jury. — In an action for fraud in the sale of stock in a corporation insolvent at the time of sale, an instruction that corporate stocks might have considerable value even if the corporation is heavily in debt or is insolvent under the laws of the state in which it is located, was erroneous as invading the province of the jury, since it' assumed a fact as to the value of the specific stock involved, which question was for the jury. p. 546.</p>

From Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Wyatt M. Mauck against the Indiana Window Glass Company. From the award made, the employer appeals.

<p>Master and Servant.. — Workmen’s Compensation. — Appeal.—Review.- — -Evidence.—A finding that the injury arose out of and in the course of the employment will not be disturbed on appeal if there be evidence to support it, the question of the sufficiency of the evidence being for the Industrial JBoard.</p>

<p>1. Appeal. — Special Findings. — Included Conclusions of Law Disregarded. — When No Reversal. — While a conclusion of law erroneously included in a special finding of facts will be disregarded on appeal, a judgment rendered upon such finding will not be reversed, where, disregarding the conclusion, enough facts remain to support the judgment, p; 550.</p> <p>2. Corporations. — Partnership.—Éstoppel.—Though a corporation may not enter into a contract of partnership unless by its charter expressly authorized so to do, yet, if it has dealt as a partner it is estopped to deny its liability as such, in an action against it by a third person on a contract made in furtherance of the objects for which the corporation was created, p. 550.</p>

<p>From Clinton Circuit Court; James P. Wason, Special Judge.</p> <p>Action by the City of Frankfort against Milton T. McCarty and wife. From a judgment for plaintiff, the defendants appeal.</p>

From Marion Superior Court (al,746); Linn D. Hay, Judge. Action for the appointment of a receiver by Roy Tuttle and others against the Standard Electric Manufacturing Company. From an order appointing a receiver, the defendant appeals.

<p>From Harrison Circuit Court; William Ridley, Judge.</p> <p>Action by Emma Knight against Jacob Henry. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Courts. — Jurisdiction.—Elements.—The word “jurisdiction” is sometimes used in a general sense, in which it signifies the abstract right of a tribunal to exercise its power in causes of a certain class, and is sometimes used in the particular sense, in which it relates to the right of the tribunal to exercise its power with respect to a particular matter, general jurisdiction being conferred by constitution or statutes, and particular jurisdiction by instituting an action.in a lawful and proper manner, p. 574.</p> <p>2. Action. — Commencement.—Under the Code an action is commenced when a complaint has been filed and a summons issued, p. 575.</p> <p>3. Courts. — Criminal.—Jurisdiction.—Criminal Prosecutions.— A criminal court has no jurisdiction in a criminal prosecution and cannot enter upon a trial until the prosecution has been commenced and perfected in a lawful and proper manner by the filing of an accusation either in the form of an indictment or affidavit, p. 575.</p> <p>4. Judgment. — Validity.—Want of Jurisdiction. — The proceedings of a court without jurisdiction are a nullity and its judgment void. p.576.</p> <p>5. Indictment and Information. — Commencement of Criminal Prosecution. — Powers of Legislature. — The power of the legislature to prescribe the regulations concerning the commencement of a criminal prosecution is plenary, and there must be a strict compliance with such requirements, p. 576.</p> <p>6. Criminal Law.— Jurisdiction of Court.— Attacking After Judgment. — The failure of accused to object to the prosecution on the ground that the court did not have jurisdiction, because the action had not been instituted in the manner prescribed by statute, did not estop him raising the question of jurisdiction after the rendition of judgment, since that question is a matter between the legislature and the court and not between the parties, p. 577,</p> <p>7. Courts. — Jurisdiction.—How Conferred. — The jurisdiction of the courts is in reality a power inherent in the state, and is conferred on the courts either directly by the people through their Constitution, or indirectly through the legislature by laws duly enacted, p. 577.</p> <p>8. Infants.— Encouraging Delinquency.— Prosecution.— Jurisdiction of Juvenile Court. — Commencement of Action. — Statute. —Although adults may be prosecuted in the juvenile court for encouraging delinquency in violation of §1648 Burns’ Supp. 1918, Acts 1917 p. 342, they are entitled, when so prosecuted, to have the accusation conform to the provisions of the Code of Criminal Procedure, p. 577.</p>

<p>1. Appeal. — Briefs.—Sufficiency.—Substantial Compliance with Buies of Court. — Where separate demurrers to each of two paragraphs of answer wea;e overruled, and appellant by inadvertence failed to mention in his errors relied on for reversal the error in overruling his demurrer to the second paragraph of answer, a statement in another part of the brief that such error was specification No. 1 of the assignment of errors, was a substantial compliance with the rules of court, and the question thereby raised will be considered, p. 579.</p> <p>2. Brokers. — Beal Estate. — Contract fo<r Commissions. — Validity. — Execution by Nonresidents in a City Requiring License.— Where one nonresident of a city entered into a contract with another nonresident, a real estate broker, to sell his farm on commission, he cannot avoid paying the commission because the broker did not have the license required by an ordinance of the city, although both the commission contract and the contract of sale were executed within such city. p. 580.</p>

From Marion Superior Court (al,628); W. W. Thornton, Judge. Action by John J. Kelly, receiver of the Morton Place Automobile Company, against William C. Zaring and others. From a judgment for plaintiff against the defendant named and another, they appeal.

From the Industrial Board of Indiana. Application by the Frankfort General Insurance Company to set aside the approval by the Industrial Board of a workmen’s compensation agreement entered into between the city of Newcastle and the dependents of George A. Conduitt, deceased. From a denial of the application, the insurer appeals.

<p>From Marion Superior Court (99,480); Linn D. Hay, Judge.</p> <p>Action by Thomas R. Sheets and others against the Vandalia Railroad Company. From a judgment for defendant, the plaintiffs appeal.</p>

From the Industrial Board of Indiana. Proceedings for. compensation under the Workmen’s Compensation Act by Kolanik Melinik against the American Steel Foundries. From an award for applicant, the defendant appeals.

<p>From Howard Circuit Court; William C. Over ton. Judge.</p> <p>Action by the Miami Lumber Company against Cora M. Smith. 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 Cora B. Davis against the American Hominy Company. From an award for applicant, the defendant appeals.

<p>1. Appeal.— Review. — Instructions.—Incomplete Instructions.— Duty to Request Proper Instructions.- — In an action against a railroad company for the death of cattle on its tracks, an instruction, which was not mandatory, on the theory of a paragraph of complaint charging negligence requiring a finding of defendant’s negligence as a condition to plaintiff’s right of recovery under such paragraph without indicating what would have been necessary to constitute negligence, held proper in view of defendant’s failure to request more complete instructions, since,1 if defendant desired to have the jury instructed more fully as to What constituted negligence, it was its duty to make a request therefor, p. 624.</p> <p>2. Railroads. — Injuries to Animals on Tracks. — Negligence.— Wilful Injuries. — Instructions.—In an action against a railroad company for the death of cattle on its tracks, an instruction that, if the cattle were seen on the track by defendant’s trainmen in time to stop the train and avoid injuring them, it was the trainmen’s duty to do so “if possible” with safety to the train and passengers, was erroneous, since the mere fact that it was possible to have stopped the train and thereby avoided injuring the cattle would not have established actionable negligence, unless it was also found that ordinarily prudent persons, • exercising ordinary care under the same or similar circumstances, would have stopped the train, pp. 625, 626.</p> <p>3. Railroads. — Injuries to Animals on Tracks. — Action.—Jury Questions. — Negligence.—In an action against a railroad company for the death of cattle on its tracks, whether defendant’s trainmen exercised ordinary care to avoid injuring the cattle when seen on the tracks was a question for the jury. p. 625.</p>

<p>From Hendricks Circuit Court; Zimri E. Dougan, Judge.</p> <p>Action by Carrie Moore against Harry Moore* From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal.— Review.— Harmless Error.— Instructions.— In an action to quiet title in which the complaint alleged defendant’s possession of the realty in controversy, though an instruction that the general denial required plaintiff to prove such possession was erroneous, since §1102 Burns 1914, §1056 R. S. 1881, relieved him of that burden, the error was harmless where the uncontradicted evidence established defendant’s possession. pp. 634, 635.</p> <p>2. Appeal. — Prejudicial Error. — Instruction Misplacing Burden of Proof. — As a general rule, the giving of an instruction which places the burden of an issue on the wrong party is reversible error, except where the record affirmatively shows that such error was harmless, p. 635.</p> <p>3. Boundaries.— Agreement on Boundary.— Estoppel.— Where adjoining landowners, who are in doubt as to the location of their division line, meet and establish such line by an agreement, and thereafter make substantial improvements with reference thereto, and occupy adjacent land in accordance with such agreement, they are estopped from disputing the line so agreed upon. p. 635.</p> <p>4. Appeal.— Review.— Harmless Error.— Refusal of Instructions.■ — In an action to quiet title, error, if any, in refusing plaintiff’s requested instructions, which merely described the realty in controversy and stated that plaintiff was seeking to quiet his title thereto and recover possession thereof, and that its identity was not in dispute, held harmless, in view of the undisputed facts shown by the evidence, p. 636.</p> <p>5. Appeal.— Review.— Harmless Error.— Refusal of Instructions. — In an action to quiet title involving the location of the division line between adjoining tracts of land, where defendants did not contend that a line established by the county surveyor and agreed upon by plaintiff’s remote grantor and defendants was the true line, measured by the United States survey, but claimed that plaintiff was estopped from disputing such agreed boundary, any error in refusing plaintiff’s requested instructions that the line run by the county surveyor was an erroneous line, was harmless, especially as such requested instructions, in so far as they stated the law correctly, were substantially covered by other instructions given, p. 636.</p> <p>6. Appeal. — Review.—Misleading Instruction. — Refusal.—In an action to quiet title involving the location of the division line between adjoining tracts of land,'where defendants relied on an estoppel to dispute an agreed boundary, an instruction requested by plaintiff which, after stating facts to be considered by the jury on the question of estoppel, directed it to determine from all such circumstances whether it was just and equitable for defendants to retain the realty to which plain'tiff had paper title, was erroneous and properly refused, p. 637.</p> <p>7. Appeal. — Questions Presented. — Refusal of Motion to Enter Judgment on Pleading. — Alleging that the trial court erred in overruling motion to direct a verdict for plaintiff presents no question for review as to the denial of plaintiff’s motion to enter judgment for him on his complaint, p. 637.</p> <p>8. Appeal. — Questions Presented. — Exclusion of Evidence. — Appellant’s contention that certain questions propounded by him on cross-examination were erroneously excluded cannot be sustained, where he fails to point out matter to which the witness testified on direct examination which would make such cross-examination proper, p. 638.</p> <p>9. Appeal. — Review.—Admission of Evidence. — In an action to quiet title involving the location of a division line between adjoining tracts of land, where the sole defense was that plaintiff was estopped to dispute an agreed boundary, plaintiff was not harmed by the admission of evidence that the agreed boundary was correct, p. 638.</p> <p>10. Appeal. — Review.—Exclusion of Evidence. — In a suit to quiet title involving the location of a division line between adjoining tracts of land, where the sole defense was that plaintiff was estopped to dispute an agreed boundary line, the exclusion of evidence to show that the agreed boundary was not the correct division line, measured by the United States survey, wa's not harmful to plaintiff, such evidence being immaterial. p. 638.</p>

<p>Appeal. — Special Finding. — When Treated, as General Finding.— Where appellants set forth in their brief what purports to be a special finding, but such finding as it appears in the record was not signed by the trial judge, nor brought into record by a bill of exceptions, nor made part of the record by order of the court, such, finding cannot be considered on a special finding, but only as a general finding.</p>

<p>1. Appeal.— Review.— Instructions.— Misleading Instruction.— Proof Required to Sustain Cause of Action. — In an action for personal injuries, an instruction that defendant’s denial placed the burden on plaintiff to prove “the material allegations, or at least, one of them,” before she could recover, though subject to the criticism that it informed the jury, by implication, that proof by plaintiff of any one of the material allegations of her complaint entitled her to a recovery, was not reversible error, in view of other instructions from which the jury must have understood that it was incumbent on plaintiff to prove at least one of the averments of negligence made by her. pp. 645, 647.</p> <p>2. Appeal. — Review.—Instructions.—Consideration as a Whole. —Instructions should be considered as a whole in determining whether error has been committed in the giving thereof, p. 646.</p> <p>3. Appeal. — Review.—Instructions.—Harmless Error. — Error in a particular instruction will not justify a reversal unless it be of such a nature as to vitiate the whole charge, and the entire charge is vitiated only when it is so erroneous that the jurors must have been misled as to the law of the case. p. 646.</p> <p>4. Trial. — Instructions.—Use of Latin Terms. — As it is presumed that jurors do not understand Latin, Latin words, phrases and sentences should not be used when instructing a jury. p. 648.</p> <p>5. Appeal.— Review.— Instructions.— Instruction Using Latin Term. — In an action for personal injuries, an instruction that it is not negligence per se for a passenger to attempt to alight from a slowly moving street car, etc., held, when the residue of the instruction is considered, not to have misled the jurors because of the use of Latin words, p. 648.</p> <p>6. Appeal. — Review.—Instructions.—Incomplete Instructions.— Appellant cannot object that an instruction on the subject of contributory negligence is meager, where it did not request an amplified instruction, but tendered and had given an instruction substantially the same as that complained of. p. 648.</p> <p>7. Carriers. — Carriage of Passengers.- — Street Cars. — Personal Injuries. — Action.—Instructions.—Competency of Motorman, —In a passenger’s action for injuries sustained when thrown from a moving street car, in which it was charged that defendant company permitted its car to be operated by an incompetent motorman, an instruction that the sudden starting of a car from which a passenger is about to alight may be considered in determining whether the car was being operated by an incompetent motorman is not objectionable on the ground that an act of negligence on the part of the motorman would not tend to prove that he was incompetent, p. 649.</p> <p>8. Appeal.— Review.— Instructions.— Burden of Proof. — “Burden.” — In an action for personal injuries sustained by plaintiff when thrown from one of defendant traction company’s cars, an instruction that if the car was started suddenly without warning to plaintiff as she was about to alight, the burden rested on defendant to explain, etc., was not objectionable on the ground that it shifted the burden of proof to defendant, the word “burden” not being used as the equivalent of the technical phrase “burden of proof,” but as synonymous with the word “duty”, p. 650.</p> <p>9. Evidence. — Burden of Proof. — The phrase “burden of proof” has a highly technical meaning, denoting a principle or idea relating exclusively to procedure, and its function is to guide the court in settling the issues, in securing an orderly presentation of evidence, etc. p. 650.</p> <p>10. Appeal. — Review. — Instructions. — Doctrine of Presumed Negligence. — In an action for personal injuries sustained by plaintiff when she was thrown from one of defendant traction company’s cars which was started suddenly without warning as she was about to alight, the giving of an instruction which in effect applied the doctrine of presumed negligence, held not to constitute reversible error, in view of all the instructions, the theory adopted at the trial, and the evidence adduced, pp. 651, 653.</p> <p>11. Negligence. — Presumption of Negligence. — Defense of Contributory Negligence. — A presumption of negligence does not preclude the defense of contributory negligence, p. 651.</p> <p>12. Carriers. — Carriage of Passengers. — Personal Injuries.— Presumption of Negligence. — Generally, when a passenger is injured by reason of the machinery and appliance used by the common carrier, which are wholly under its control, negligence on the part of the carrier will be presumed, p. 651.</p> <p>13. Carriers. — Carriage . of Passengers. — Personal Injuries.— Negligence. — Evidence.—In an action for personal injuries sustained by plaintiff when she was thrown from one of defendant traction company’s cars which suddenly started without warning as she was about to alight, plaintiff was not bound to prove by direct and positive evidence the true cause of the starting of the car in order to make out a prima facie case of negligence, even though the complaint alleged that it was due to defendant’s negligence in having the car equipped with a defective brake and in permitting it to be .operated by an incompetent and careless motorman. p. 652.</p> <p>14. Appeal.— Review.— Instructions.— Measure of Damages.— In an action for personal injuries, the giving of an instruction that the measure of damages should be compensatory and that, if the verdict was for plaintiff, the jury should determine what would compensate her for all damages she may have sustained by reason of the injury incurred, was not error, though not limiting the damages to those shown by the evidence, where another instruction directed that the amount of damages must be determined from the evidence, p. 653.</p> <p>15. Appeal. — Review. — Refusal of Instructions. — Presumed Negligence. — In an action for personal injuries sustained by plaintiff when she was thrown from one of defendant traction company’s cars which was. started suddenly as she was about to alight, a requested instruction that the fact that plaintiff was injured in attempting to alight from defendant’s car raised no legal presumption that defendant was guilty of any of the acts of negligence charged in the complaint, was properly refused, since, although the mere fact that plaintiff was injured while alighting from the car did not raise a presumption of the carrier’s negligence, it was a fact to be considered with other facts in determining whether such presumption existed, and the instruction did not fairly present the matter, p. 654.</p> <p>16. Damages. — Excessive Damages. — In an action for personal injuries, where it was shown that plaintiff’s injuries consisted of cuts about the head and face, a broken nose, bruises on various parts of the body, three broken teeth and severe injuries to the back and neck, a verdict for $2,909 is pot excessive. p. 654,</p>

<p>1. Attorney and Client. — Collection of Claim,. — Settlement.— Authority of Attorney. — Statute.—Under §1003 Burns 1914, §968 R. S. 1881, an attorney who has a claim for collection has no authority, in the absence of special authority, to accept in settlement anything except money, and cannot accept a check, p. 657.</p> <p>2. Attorney and Client. — Collection of Claim. — Payment.— Acceptance and Indorsement of Check by Attorney. — An attorney has no authority to receive a check as payment of a judgment entrusted to him for collection, nor could he by his indorsement impose a new contractual liability upon his client, but where he took the check in due course" of his employment, he had implied authority to make a formal indorsement in behalf of his client for the purpose of making collection and receiving the money, and, having by indorsement received the money thereon, he effected the purpose for which he had been employed, and the receipt by the attorney of the check amounted to payment of the judgment, p. 658.</p>

<p>1. Appeal.— Questions Presented.— Sufficiency of Evidence.— Appellant’s contentions that the verdict is not sustained by sufficient evidence, and that the verdict is contrary to law because there is not evidence tending to prove certain ultimate facts which are essential to a recovery, present but one question on appeal, p. 661.</p> <p>2. Physicians and Surgeons. — Malpractice.—Negligence.—Expert Testimony. — Generally, where negligence is predicated on a physician’s lack of skill or attention, the court and.jury must depend on expert evidence, but jurors of ordinary intelligence, sense and judgment, although not skilled in medical science, are capable of reaching a conclusion without the aid of expert testimony as to whether it is good surgery to permit a wound to heal superficially, with nearly a half yard of gauze deeply imbedded in the flesh, and likewise are capable of determining whether or not injurious consequences of some character would probably result, although the exact nature and extent of such resulting injuries could not be determined by laymen without the aid of medical science, p. 663.</p> <p>3. Physicians and Surgeons. — Malpractice.—Evidence.—Sufficiency. — In an action for malpractice in leaving a piece of gauze in an incision made during the course of a surgical operation, evidence held sufficient to sustain a finding of negligence. p. 665.</p> <p>4. Appeal.— Review.— Harmless Error.— Admission of Evidence. — In an action against a hospital corporation for malpractice, admission in evidence of statements made by one of the surgeons to plaintiff when she was a patient in the hospital, relating to her physical condition, could not have harmed defendant, in that there was not proof that the surgeon was an employe or agent of the corporation, since, if there was not proof of that fact,'there swould be an utter failure of proof as , tp element essential to ^recovery which would require a reversal, the complaint being drawn upon the theory that the attending surgeons were employes or agents of the corporation. p. 666.</p> <p>5. Trial. — Admission of Evidence. — In an action against a hospital corporation for malpractice by surgeons alleged to have been furnished by it, it was not improper to admit in evidence certain statements of one of the surgeons to plaintiff, as against the objection that there was no proof that such surgeon was an agent or employe of defendant corporation, where there was sufficient evidence on that question adduced to warrant the jury in deciding that the surgeon was an employe or agent of defendant, p. 667.</p> <p>6. Physicians and Surgeons. — Malpractice.—Measure of Damages. — In actions for malpractice there is no fixed measure of damages, the amount to be awarded in such cases depending on the sensibilities and the judgment of the jurors, p. 668.</p> <p>7. Physicians and Surgeons. — Malpractice.—Excessive Damages. — An award of $2,100 to a woman who suffered great physical pain and mental anguish, became permanently injured, etc., as a result of a surgeon negligently leaving a piece of gauze in an incision made during the course of a surgical operation, was not excessive, the amount not being so large as to indicate that the jurors were actuated by passion, prejudice or any improper influence or motive, p. 668.</p> <p>8. Appeal. — Rehearing.—Scope of Review. — An appellant cannot base a petition for rehearing on a question which was not presented to the trial court, nor to the appellate tribunal at the original hearing, p. 668.</p>

<p>1. Electricity. — Electric Wires. — Duty to Insulate. — Electricity is a dangerous force, and companies engaged in its generation and distribution, while not liable as insurers to those who may come in contact with wires carrying electric current, are required to exercise reasonable care to keep such wires safely insulated, p. 671.</p> <p>2. Negligence. — Electric Wires. — Defective Insulation. — Injuries to Children. — Liability.—If an improperly insulated electric wire constructed through the branches of a small tree on private property Was obviously dangerous to persons coming in contact therewith, and if the electric company owning and maintaining the wire should reasonably have anticipated that children in their play would climb into the tree, and thus be exposed to danger, the company is liable for injuries to a child nine years of age climbing into the tree and coming into contact with the wire, even though the wire was not an “attractive nuisance,” and regardless of whether such child was a trespasser, p. 671.</p> <p>3. Electricity. — Electric Wires. — Defective Insulation. — Injuries to Children. — Liability.—Where a company generating and distributing electric current constructed a “live” wire through the branches of a small tree located upon a lot abutting a city street, and a child nine years of age climbed into the tree and was injured by coming in contact with the wire at a point where the insulation was defective, held that, under the facts alleged and as shown by the evidence, the company should have anticipated that children would climb into the tree, and that the maintenance of the wire with defective insulation was a breach of duty making it liable to the injured child, p. 672.</p>

<p>From Randolph Circuit Court; Theodore Shockney, Judge.</p> <p>Action by Mary E. Miller against Charles O. Yost. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Vanderburgh Superior Court; Robert J. Trace-well, Judge.</p> <p>Action by Ida Vieau against the Public Utilities Company. From a judgment for plaintiff, the defendant appeals. •</p>

From Switzerland Circuit Court; F. M. Griffith, J udge. Action by Christ Schweitzer against the estate of Sarah K. Bales, deceased, Leonard E. Smith, administrator. From a judgment for defendant, the plaintiff appeals.

<p>1. Appeal. — Change of Venue. — Transcript.—Sufficiency.—Objection. — Time for Malting. — An objection on appeal by plaintiff appellee that the transcript on change of venue granted on his motion was not authenticated by a sufficient certificate, and that therefore the pleadings are not properly in the record, is too late and cannot be considered, where he appeared in the court to which venue was changed and went to trial without objection to the alleged insufficiency of the certificate, p. 688.</p> <p>2. New Trial. — Motion.—Sufficiency.—Memorandum.—A motion for a new trial need not be accompanied by a memorandum, p. 689.</p> <p>3. Insurance. — Fire Insurance. — Action on Policy. — Reply.— Averment of Agent’s Authority. — Sufficiency.—In an action on a fire insurance policy, a paragraph of reply alleging that defendant insurer, by and through its duly authorized agent, waived each and every provision, condition, and requirement set forth in paragraphs of answer setting up breach of certain conditions embraced in the policy, held sufficient, as against demurrer, as an averment that the agent had authority to maké such waiver, p. 689.</p> <p>4. Appeal. — Review.—Harmless Error. — Admission of Evidence. —In an action on a fire policy, error, if any, in permitting plaintiff to testify on direct examination as to the value of property insured in a lump sum, was harmless, where the witness was fully cross-examined as to the value of the separate articles involved, p. 690..</p> <p>5. Insurance. — Fire Insu/ranee. — Action on Policy. — Evidence. —Proofs of Loss. — In an action on a fire policy, proofs of loss are admissible only for the purpose of showing a compliance with the terms of the policy, p. 690.</p> <p>6. Appeal.. — Review.—Instructions.—Duty to Request. — In an action on a fire policy, defendant insurer, having failed to tender an instruction that proofs of loss made by insured were admitted only to show compliance with the terms of the policy, cannot complain that such an instruction was not given, p. 690.</p> <p>7. Insurance. — Fire Insurance. — Action on Policy. — Evidence. —Admissibility.—In an action on a fire insurance policy providing that, if the property insured was or should become incumbered by a chattel mortgage, the policy should be void, the refusal to permit defendant insurer’s agent to testify as to What effort he had made to find insured prior to tendering a return of the premium paid on discovering that the property-insured was incumbered by a chattel mortgage, held, reversible error, p. 691.</p> <p>8. Witnesses. — Contradiction.—Party’s Own Witness. — Under §531 Burns 1914, §507 R. S. 1881, a party may in all cases contradict his witness by other evidence and by showing that he has made statements different from his present testimony, the only limitation being that the testimony given must have been prejudicial, p. 692.</p> <p>9. Witnesses. — Refreshing Memory. — It is proper to refresh the memory of a witness, p. 693.</p> <p>10. Witnesses. — Impeachment.—Certified Copy of Testimony Before State Fire Marshal. — In an action on a fire insurance policy, a properly authenticated copy of insured’s testimony before the state fire marshal investigating the fire is admissible for the purpose of impeaching or contradicting insured as a witness, p. 693.</p> <p>11. Trial. — Impeachment of Witness.^-O'ffer to Prove. — In an action against an insurer on a fire policy, where defendant offered to introduce in evidence the testimony of plaintiff before the state fire marshal, and, upon objection by plaintiff offered to prove certain facts from a copy of the testimony taken by the fire marshal and certified by him and the secretary of state, the offer was not proper, and the objection thereto was properly sustained, the testimony not being offered as an exhibit, p. 694.</p> <p>12. Appeal. — Review.—Refusal of Instructions. — Tender of instructions after the jury had been instructed was too late, and they were properly refused, p. 695.</p> <p>13. Appeal. — Record.—Bill of Exceptions. — Filing.—Sufficiency of Showing. — Where it appears from the record that on November 3, defendant was given forty-five days to file its bill of exceptions, and on the last page of the bill the trial judge certified that “within the time fixed by the court for filing the same, the defendant tendered this, his bill of exceptions, and prays that the same might be signed, sealed and made part of the record in this case, which is accordingly so done on this 13th day of December,” followed by the signature of the trial judge and a file mark of the clerk reciting that the bill was filed December 15, and the clerk’s final certificate to the transcript dated- within the time allowed for filing the bill of exceptions certifying that the transcript contains a full, true, and correct and complete copy of all the papers, etc., including the original bill of exceptions, the record sufficiently shows that the bill was filed and that the filing was within the time allowed, p. 695.</p>

<p>From Knox Circuit Court; Thomas B. Coulter, Judge.</p> <p>Action between Henry W. Morrison and Curtis G. Shake and another. From the judgment rendered, the former appeals.</p>

<p>From Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action between Abe Feinberg and Thomas F. Hart and another. From the judgment rendered, the former appeals.</p>

<p>From Allen Superior Court; Carl Yaple, Judge.</p> <p>Action by Mary Meyer against Henry F. Meyer, administrator of the estate of Fredericka Meyer, deceased. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Wabash Circuit Court; Nelson G. Hunter, Judge.</p> <p>Action between Waltz School Township and Vern Derck. From the judgment rendered, the former appeals.</p>