Volume 75 — Indiana Appellate Court Reports

From the Industrial Board of Indiana. Proceedings' for compensation under the Workmen’s Compensation Act by William Decourcey against the American Coal Mining Company. From an award for applicant, the defendant appeals.

<p>1. Railroads. — Interurban.—Crossing Accidents. — Negligence.—■ Operation of Car at Excessive Speed. — Where an interurban railway stopped its cars at a highway crossing only on signal, the fact that a car approached the crossing at night, at such a high rate of speed that it could not be stopped before it reached the crossing, after the motorman could see the signals, warrants an inference of negligence which will support a general verdict in favor of a prospective passenger who, in going upon the tracks to signal the car, cáught his foot between a rail and a loose plank and was struck by the car. p. 25.</p> <p>2. Appeal. — Review.—Harmless Error.- — Instructions.—Right Result. — In an action for personal injuries, a verdict for plaintiif will not be disturbed because of error in instructions given, ■where the general verdict finding plaintiff guilty of negligence was warranted by the evidence, p. 25..</p> <p>S. Railroads. — Interurban.—Crossing Accidents. — Action.—Conuplaint. — Constmiction.—In an action against an interurban railway company by a prospective passenger who, in going upon the tracks to signal an approaching car to stop at a local stop, caught his foot between a rail and a loose plank and was struck by the car, one paragraph of the complaint held to rely on the negligent rate of speed at. which the car was operated and the other paragraph on negligent construction of the crossing, either of which acts of negligence would be sufficient to support the verdict for plaintiff, p. 25.</p> <p>4. Appeal. — Review.—Judgment Based on Two Grounds¿ — Error as to One Harmless. — Where a judgment is based upon two grounds or findings, either of which, independent of the other, is sufficient to support it, it will not be reversed because of error as to one. p. 26.</p> <p>5. Appeal. — Review.—Harmless Error.- — Instructions.—Where the result of the trial could not have been different than that arrived at, the giving of erroneous instructions is harmless, p. 26.</p>

<p>From Gibson Circuit Court; S'. L. Vandeveer, Judge.</p> <p>Action by John C. Byrne and another against William Steelman. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Putnam Circuit Court; James P. Hughes, Judge.</p> <p>Action by Thomas O. Jones against the Travelers Protective Association. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Insurance. — Life Insurance. — Interest of Beneficiary.— Where no power of disposition is reserved in the insured in an ordinary life insurance policy, the ■ beneficiary, upon the issuance and acceptance of the policy, acquires a vested right which cannot be impaired without the beneficiary’s consent, but where by the terms of the policy the right is reserved by insured to change the beneficiary at will, then the original beneficiary acquires only a defeasible interest in the policy, and has but a mere expectancy until after the death of the insured, p. 48.</p> <p>2. Insurance. — Life Insurance. — Nonpayment of Premiums.— Forfeiture.- — -Waiver.—A notice mailed by the insurer to insured on the day after his death that an interest payment on a policy loan would be due on a certain date does not waive a lapse of policy for nonpayment of the premium where insured had a right to reinstatement of the policy, since the notice was obviously mailed without knowledge of the death of the insured, and amounted only to a suggestion that the policy might be reinstated, p. 49.</p> <p>3. Insurance. — Life Insurance. — Nonpayment of Premiums¿— Forfeiture. — Waiver.—The waiver of the lapse of a policy of life insurance for nonpayment of premiums, to be binding on the company, must be by agreement supported by a valid consideration or by estoppel, p. 50.</p> <p>4. Insurance. — Life Insurance. — Nonpayment of Premiums.— Death of Insured. — Lapse of Policy. — Waiver by Agreement.— An act of the insurer could not operate as a waiver by agreement of the lapse of the policy for nonpayment of premiums when performed after the death of insured, since there could not then have been any agreement with insured, p. 50.</p> <p>5. Insurance.1 — Life Insurance. — Nonpayment of Premiums.— Forfeiture. — Waiver by Estoppel. — Waiver by estoppel of the lapse of an insurance policy for nonpayment of premiums requires some act by the insurer whereby the insured was in some manner misled to his prejudice, p. 50.</p> <p>6. Insurance. — Life Insurance. — Action on Policy. — Answer.— Motion to Make More Specific. — In an action against insurer on a life policy, an answer alleging lapse of policy for nonpayment of premium which embodied the receipt for the last premium paid, clearly stating the term for which the policy was thereby extended, held sufficiently definite as against a motion to make more specific as to the extension of the term, p. 50.</p> <p>7. Insurance. — Life Insurance. — Policy.—Construction.—Payment of Quarterly Premium* — Effect.—Term of Renewal.— Where a life policy provided for quarterly payments of premiums, and stipulated that the payment of such a premium should not continue the policy in force longer than for the time specified in the receipt therefor, which receipt recited that it would continue the policy in force only for three months, the payment of the first quarterly premium for the policy year did not continue the policy in force for the entire year, subject only to a lien for the unpaid balance of the annual premium, p. 51.</p> <p>8. Insurance. — Life Insurance. — Nonpayment of Premiums.— Lapse of Policy. — Under a life insurance policy providing that, if a premium is not paid when due, it should be charged as an automatic policy loan if the loan value of the policy, in addition to existing indebtedness and accrued interest, was sufficient to pay at least a quarterly premium, but if such loan value was insufficient to pay such premium, the policy should cease to be in force, where there was a loan on the policy which, with accrued interest, reduced the loan value to less than the quarterly premium, the policy lapsed on the expiration of the period of grace for payment of quarterly premium, p. 52.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Emilia Markiowicz and others against the Republic Iron and Steel Company. From an award for applicants, the defendant appeals.

From Marion Superior Court (A2,134); W. W. Thornton, Judge. Action by Lucretia Philpott, administratrix of the estate of Cyrus Philpott, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appeals.

From Monroe Circuit Court; Robert W. Miers, Judge. Action by Paul Kuhn against Frank Morgon and Joseph I. Hays, in which Hays filed a cross-complaint against plaintiff and his codefendant. From a judgment for Hays on his cross-complaint, Morgon and Kuhn appeal.

<p>From Marion Superior Court (Al,247); Vincent G. Clifford, Judge.</p> <p>Action by Alma Throop against the Western Union Telegraph Company. From a judgment for plaintiff, the defendant appeals.</p>

From Greene Circuit Court; Thomas Van BusMrk, Judge. Action by the State of Indiana, on the relation of George C. Porter, guardian of George Morgan, insane, against John Davidson and the Federal Union Surety Company, which company was reinsured by the Western Indemnity Company. From the judgment rendered, the reinsurer appeals.

<p>Appeal. — Appellee’s Failure to File Briefs. — Reversal.—Where there is apparent error in the ruling and judgment of the trial court, as presented by appellant’s brief, appellee’s failure to file a brief will be taken as a confession of error, and the judgment will be reversed.</p>

<p>From Wells Circuit Court; E. E. McGriff, Special Judge.</p> <p>Action by Aria Miles against Minnie Swigert and others. From a judgment for plaintiff, the defendant named appeals.</p>

<p>From Jefferson Circuit Court; F. M. Griffith, Judge.</p> <p>Action by William E. Ogle against Clarence E. Brown. From a judgment for plaintiff, the defendant appeals.</p>

<p>Appeal. — Briefs.—Questions Presented. — Rules of Court. — The court on appeal is unable to determine what issue is presented by a set-off, where there was no statement in appellant’s brief as to its contents, as the brief fails to comply with Rule 22 clause 5 of the Supreme and Appellate Courts, requiring that appellant’s brief shall contain a concise statement of so much of the record as fully presents every error and exception relied on.</p>

<p>From Dearborn Circuit Court; Warren N. Hctuck, Judge.</p> <p>Action by Martha J. Fye and others against Jethro M. Hamilton and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Appeal. — Parties.—Jurisdiction.—Assignment of Errors.— The assignment of errors is appellant’s complaint on appeal, and jurisdiction is acquired only over those parties adverse to appellant in the judgment appealed from who are named in the assignment, p. 110.</p> <p>2. Appeal. — Necessary Parties. — Parties to Judgment. — It is the parties to the judgment appealed from, and not merely the parties to the record, who must be made parties to the appeal. p. 110.</p> <p>3. Appeal. — Parties.—Parties of Record. — Although it is the general rule that only parties to the judgment who had been formally named as adverse parties in the cause who must be made appellees, and that it is never necessary to join as appellee one who is named and given an interest in the judgment, unless such person had been an adverse party in the proceeding, the rule is not one to which there can be no exception, p. 110.</p> <p>4. Appeal. — Necessary Parties. — Appeal by Party Denied Appointment as Trustee.1 — Failure to Make Trustee Appointed Appellee. — Dismissal.—Where, in proceedings on the application of a beneficiary of a testamentary trust, a judgment was entered denying the appointment as trustee of a trust company named in the will as successor in trust, and appointing</p> <p>' another trust company, the trust company so appointed, having accepted the trust and qualified before the appeal bond was filed on appeal from such judgment by the trust company named as successor in trust, was a necessary party to such appeal, though the trustee appointed was not a formal party to the proceedings below, and the appeal must be dismissed for want of jurisdiction for failure to join the trustee as appellee, pp. 110, 111.</p> <p>5. Appeal. — Term-Time.—Stay of Proceedings. — Bond.—Under §679 Burns 1914, §638 R. S. 1881, providing that a term-time appeal shall operate as a stay only upon an appeal bond being filed, the prayer for an appeal does not operate to stay further proceedings on the judgment, p. 111.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Eliza K. Swing against the Kokomo Steel and Wire Company. From an award denying compensation, the applicant appeals.

<p>From Dekalb Circuit Court; Dan M. Link, Judge.</p> <p>Action by John A. Naylor against the Holland'-St. Louis Sugar Company and another. From a judgment for defendants, the plaintiff appeals.</p>

From Gibson Circuit Court; S'. L. Vandeveer, Judge. Action by Levi Wilder, administrator of the estate o*f James W. Wilder, deceased, against the Ayrshire Coal Company. From a judgment for plaintiff, the defendant appeals.

<p>From Perry Circuit Court; Fred A. Heuring, Judge.</p> <p>Action by the American Rattan and Reed Manufacturing Company against Albert P. Fenn and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Allen Superior Court; Carl Yaffle, Judge.</p> <p>'Action by George M. Shiffer, trustee in bankruptcy, against Louis Akenbrook and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Depositions. — Motion to Suppress. — Time for Making. — Statute. — Under §455 Burns 1914, §439 R. S. 1881, the admissibility of a deposition may be tested after the commencement of the trial if the deposition itself does not disclose the ground of objection, p. 183.</p> <p>2. Appeal. — Review.—Ruling Suppressing Deposition. — Coruelusiveness. — Where the ruling of the trial court suppressing a deposition after hearing evidence under §455 'Burns 1914, §439 E. S. 1881, is supported by some evidence, it will not be disturbed on appeal, p. 183.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by Daniel N. Lane against the Beech and Fuller Company and others. From a judgment for plaintiff, the defendant named appeals.

<p>1. Appeal. — Questions Presented. — Ruling on Motion to Require Statement of Facts. — Absence of Memorandum. — Where a motion to require plaintiff to state facts to sustain certain conclusions in' the complaint was not accompanied by a memorandum as required by §5 of the Acts' of 1917 p. 523 (§691a et seq. Bums’ Supp. 1918), no question is presented for review as to the overruling of the motion, p. 193.</p> <p>2. Master and Servant. — Injuries to Servant. — Federal Employers’ Liability Act. — Action.—Practice.—Law of Forum.— The federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65), having conferred on state courts a jurisdiction concurrent with that of the federal courts in actions under the statute, and having made no regulation of the practice, the practice in actions in the state courts is regulated by the law of the forum, p. 194.</p> <p>3. Master and Servant. — Injuries to Servant. — Federal Employers’ Liability Act. — Complaint.—Sufficiency.—Pleading Conclusions. — In view of §343 a Burns’ Supp. 1918, Acts 1915 p. 123, providing that a conclusion stated in a pleading shall be considered an allegation of all facts necessary to sustain it when necessary to the sufficiency of the pleading, a complaint, in an action against a railroad company under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 85 Stat. at L. 65), for personal injuries to a section hand, which alleges that it was the duty of the section boss or foreman to keep a careful lookout and warn section hands of the approach of trains, etc., in sufficient time for them to move to a place of safety, is sufficient as against demurrer on the ground that it stated no facts making it the.duty of the foreman to warn a section hand. p. 194.</p> <p>4. Master and Servant. — Injuries to Servant. — Federal Employers’ Liability Act. — Instructions.—Law Applicable. — In an action under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65), for personal injuries, an instruction that the rights and liabilities of the parties were governed exclusively by that act, and that no laws of the state could have any effect in determining such rights and liabilities, was properly refused, in view of §362 Burns 1914, Acts 1899 p. 58, relating to the defense of contributory negligence in actions for personal injuries, p. 195.</p> <p>5. Master and-. Servant. — Injuries to Servant. — Federal Employers’ Liability Act. — Contributory Negligence. — Proof.— Statute. — Section 362 Burns 1914, Acts 1899 p. 58, making contributory negligence a matter of defense in actions for personal injuries, and placing the burden of proof on defendant, applies to an action in the state courts under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65). p. 196.</p> <p>6. Master and Servant. — Injuries to Servant. — Federal Employers’ Liability Act. — Negligence.—Contributory Negligence. —Federal and State Laws. — Applicability.—In actions under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65), the question whether the acts complained of amount to negligence' and whether the injured party was guilty of contributory negligence must be determined under the state law, but the effect of contributory negligence when established is controlled by the federal law. p. 196.</p> <p>7. Master and Servant. — Injuries to Servant. — Federal Employers’ Liability Act. — Construction.—Negligence.—Violation of Statute. — Under §1 of the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65), creating a liability for injury or death resulting from the negligence of any officer, agent or employe, and abrogating the fellow-servant rule, subject, however, to the doctrine of assumption of risk by the employe, and §4, providing that the employe does not assume the risk where the violation of any statute for the safety of employes contributed to the injury or death, the negligence of the officer, agent or employe which gives the right of action need not grow out of the violation of such statute, p. 196.</p>

<p>1. Evidence. — Action Against Decedent’s Estate. — Self-Serving Declarations of Decedent. — Admissibility.—In an action hy a nephew against his uncle’s estate for' services rendered pursuant to his uncle’s oral agreement to convey certain real estate in consideration of such services, but' which real estate the uncle conveyed to other parties before his death, it was not error to refuse to permit a witness for the executrix to testify that decedent, while at witness’ house to • have her husband prepare the deeds to such other parties, said that if plaintiff and his wife had treated him as when plaintiff was a boy, the deeds would not be made, since the statement was a self-serving declaration made in the absence of plaintiff, and did not come within the exception to the general rule making such declarations admissible when accompanying an act proper to be given in evidence, and in some way qualifying or giving character to the same. p. 202.</p> <p>2. Appeal. — Review.-—Instructions.—Exceptions.—Sufficiency.— Exceptions to the action of the court in giving certain enumerated instructions and each of them, are not in gross, but challenge the correctness of each instruction severally, p. 203.</p> <p>3. Appeal. — Review.—Instructions.—Invited Error. — Error in giving instructions is not reversible error where it was invited . by instructions tendered by appellant and given by the court, pp. 204, 205.</p> <p>4. Work and Labor. — Contract Unenforceable Under Statute of Fraud,. — Recovery on Quantum M-eruit. — In an action against a decedent’s estate to recover for services rendered upon decedent’s parol contract to convey land in consideration of such services, recovery could be had upon the quantum meruit for services rendered pursuant to such contract, regardless of whether plaintiff fully performed all the services specified therein, although the contract itself was unenforceable as being within the statute of frauds, p. 204, 205.</p> <p>5. Contracts. — Complaint.—Presumption.—Where it is not alleged in the complaint that the contract relied on was in writing, it will be assumed that it was in parol, p. 205.</p> <p>6. Work and Labor. — Presumption of Gratuitous Service. — Rebuttal. — Contract Unenforceable Under Statute of Frauds. — : Action on Quantum Meruit. — In an action by a nephew against his deceased uncle’s estate for services rendered in reliance upon his uncle’s parol contract to convey land to the nephew therefor, such contract, although unenforceable as being within the statute of frauds, served to rebut the presumption that the services were rendered gratuitously, or under a mere hope of reward, p. 205.</p> <p>7. Appeal. — Revieiv. — Verdict. — Sufficiency of Evidence. — Weighing Evidence. — If there is any evidence fairly tending to establish all the facts essential to a recovery, the verdict cannot be disturbed for insufficiency of the evidence, as the court on appeal will not weigh the evidence, but will decide whether there is or is not a total failure of evidence to support any material fact essential sto a recovery, p. 206.</p>

<p>1. Appeal. — Appeal Bond. — Liability.—Estoppel to Attack Condition in Bond. — Where one appealing from a judgment against him for ten dollars damages and costs and enjoining him from maintaining a dam across a watercourse and ■ requiring its removal executed an appeal bond which, in addition to the usual stipulation for the payment of the judgment and costs as required by §679 Burns 1914, §638 R. S. 1881, was conditioned to pay “all damages which may be sustained” by appellee, and “the mesne profits, wastes or damages -to the land” during the pendency of the appeal, and the opposite party relied upon such condition, which was voluntarily written in the bond, appellant is estopped, upon affirmance of the judgment, to attack the condition for payment of damages as surplusage because not required by the statute, and cannot evade liability thereunder for damage to appellee’s crops resulting from overflows of water held back by the dam while the appeal was pending, p. 210.</p> <p>2. Appeal. — Bond.—Conditions Voluntarily Added. — Validity.— An appeal bond in which appellant had voluntarily written a condition requiring him to pay the waste and damages to appellee’s land during the pending of the appeal in event of affirmance, was not prohibited by statute nor contrary to public policy, and was founded upon a sufficient consideration, so that it was sufficient as a common-law bond, even if not sufficient as a statutory bond because the statute did not require such a condition, p. 212.</p>

<p>1. Judgment. — Conclusiveness.—Set-Off and Counterclaim.— Generally matters of set-off and counterclaim, which a party may or may not set up, are not regarded as being a defense to an action, but when such matter is presented and passed upon in a suit, it is barred by the judgment, but when not so determined, the defendant may make it the subject of a separate action, p. 230.</p> <p>2. Set-Off and Counterclaim. — Dismissal.—Prosecution ■ in Separate Action. — A defendant who files a counterclaim or cross-complaint has the right to dismiss it, and, where he does so, he is not estopped from thereafter prosecuting a separate action on the demand contained in such counterclaim or cross-complaint unless the facts therein alleged constitute a defense to plaintiff’s original cause of actiqjn and is necessarily involved therein, p. 230.</p> <p>3. Judgment. — Conclusiveness.—Matters Not in Issue. — Counterclaim. — Failure to Plead. — Effect.—Statute.—Although a party when sued must interpose all defenses which he has, and as to them, whether pleaded or not, the judgment is conclusive, it is not conclusive as to an affirmative cause of action which he may have against the plaintiff, and of which he could have, but did not, availed himself by way of counterclaim, the only effect of defendant’s failure to plead the proper counterclaim being that he cannot thereafter maintain an action thereon against plaintiff, except at his own cost, as provided by §356 Bums 1914, §351 R. S. 1881. p. 230.</p> <p>4. Judgment. — Conclusiveness.—Matters Decided Under Issues Made. — The rule that a judgment in a prior action is conclusive not only as to what was actually decided therein, but also as to every other matter which might have been litigated, applies only to questions which were, or might have been, determined under the issues in the action in which the judgment was rendered, and not to questions which might have been raised by counterclaim, but were not. p. 231.</p> <p>5. Mortgages. — Foreclosure Decree. — Conclusiveness. — Unclaimed Damages for Fraud. — Subsequent Action. — Costs.— Statute. — A decree foreclosing a mortgage securing purchase-money notes is not conclusive against a subsequent action by the purchaser for fraud in the sale in connection with which the notes were given, where the seller tendered no issue as to the alleged fraud in the foreclosure suit, and the purchaser' went to trial on an answer of general denial without seeking affirmative relief by way of counterclaim for the fraud; but, as the fraud afforded grounds for a counterclaim in the foreclosure proceedings, a subsequent action therefor could be maintained only at the purchaser’s cost, in view of §356 Burns 1914, §351 R. S. 1881, providing that, if a defendant personally served omits to set up a counterclaim, he cannot afterward maintain an action thereon, except at his own cost. p. 232.</p> <p>6. Pleadings. — Answer.—Legal Conclusions. — An allegation in an answer, in an action to recover for alleged fraud in an exchange' of real estate, that defendant, by her complaint in a previous action to foreclose a mortgage securing purchase-money notes ’ given in the transaction, had challenged plaintiff to set up the defense of fraud and to present and litigate therein by counterclaim all causes on account of fraud, is merely an allegation of a legal conclusion, p. 232.</p>

From Gibson Circuit Court; S. L. Vcmdeveer, Judge. Final report by John C. Stormont, administrator of the estate of James T. Stormont, deceased, to which Margaret Stormont filed exceptions. From a judgment for the administrator and another, Margaret Stormont appeals.

From Wabash Circuit Court; Alvah Taylor, Special Judge. Action by Alfred H. Plummer and others on claims against the estate of William Rautenkranz, deceased. From- a judgment for plaintiffs, the administrator of the estate, Fred Rautenkranz appeals.

From Morgan Circuit Court; Nathan A. Whitaker, Judge. Action by the State of New Jersey against Elbert W. Shirk and others in which defendants filed cross-complaints. From a judgment on the cross-complaints for defendants, the plaintiff appeals.

<p>From Dekalb Circuit Court; D. W. Whiteleather, Special Judge.</p> <p>Action by John G. Childs against Perry Stafford and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Marion Juvenile Court (15,235a); Frank J. Ldhr, Judge.</p> <p>Prosecution by the State of Indiana against Livingston. Arthur Sudlow. From a judgment of conviction, the defendant appeals.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by Abram Callner and another against the Gary and Southern Traction Company. From judgment for plaintiffs, the defendant appeals.</p>

<p>1. Contracts. — Avoidance—Fraud.—Resulting Damages. — One of the facts essential to the avoidance of a contract alleged to have been procured by fraud is that the complaining party should have sustained damages by reason thereof which are the natural and proximate consequences of the fraud, and not those which are merely remote, contingent or purely conjectural, p. 305.</p> <p>2. Brokers. — Real Estate Brokers. — Contract Secured by Misrepresentation. — Absence o f Damages. — Avoidance.—Where plaintiff falsely represented to defendants that he had the exclusive right to rent certain realty as agent for the owner, who was unknown to defendants, and thereby procured an agreement under which defendants rented the property and agreed to share their profits with plaintiff, defendants, who. received the full amount due them under the contract, were in no way damaged by the misrepresentation as to plaintiff’s exclusive right to rent, and cannot avoid the contract on that ground, p. 305.</p> <p>3. Brokers. — Contracts.—Misrepresentation.—Avoidance.—Speculative Damages. — Where plaintiff falsely stated to defendants that he had been given the exclusive agency for the renting of realty by the owner, who was unknown to defendants, and thereby procured an agreement under which defendants rented the premises and agreed to share their profits with plaintiff, the damage to defendants by reason of the loss of the possibility of their securing a broker’s contract for the rental of the property from the owner without sharing profits therefrom with plaintiff is too remote and speculative to entitle defendants to ■ avoid their contract' to share profits with plaintiff because of his misrepresentation, p. 306. - '</p>

<p>1. Appeal. — Review.—Harmless Error. — Sustaining Demurrer to Answer. — It was not reversible error to sustain a demurrer to one paragraph of ajiswer where all the material facts alleged therein were provable under another paragraph, which on demurrer was held good. p. 308.</p> <p>2. Bills and Notes. — Promissory Note. — Demand.—Where a note is payable generally, at no particular place, on demand, no demand is necessary before commencing suit thereon, the .commencing of suit being a sufficient demand, p. 309.</p> <p>3. Appeal. — Review.—Complaint.—Amendments Deemed Made. —Judgment in Excess of Demand. — Where, in an action on a note, the judgment for attorney’s fees corresponds with the undisputed evidence as to the value of such fees, but is in excess of the demand in the complaint, the complaint will be deemed amended after verdict to correspond with the proof, p. 309.</p>

From Marion Probate Court (1,140); Mahlon E. Bash, Judge. Action by James H. McKernan, administrator of the estate of Gamaliel Scott, deceased, against Gay R. Estabrook, administrator of the estate of Ada M. Scott, deceased. From a judgment for defendant, the plaintiff appeals.

From Knox Circuit Court; Thomas B. Coulter, Judge. Proceedings by the State Board of Medical Registration and Examination to revoke a physician’s license issued to George B. Smith. From a judgment in his favor on appeal to the circuit court, the board appeals.

<p>Brokers. — Contract for Commissions. — Compliance.—Furnishing Buyer who Executes Contract of Purchase. — Where a landowner entered into a contract to pay a broker a commission for furnishing a buyer .“who will pay” an agreed price for the land involved, the broker could recover his commission where he procured a buyer who entered into a valid and enforceable contract for the purchase of the land, which was accepted by the owner, without showing that the purchaser was able, ready and willing to pay the agreed price, as he would be required to do if the owner had refused to enter into a contract of sale which the buyer furnished.</p>

<p>From Allen Superior Court; William N.. Ballou, Judge.</p> <p>Action by Earl Manier against the Fort Wayne Transfer Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Greene Circuit Court; Thomas Van Buskirk, Judge.</p> <p>Action by Maggie E. Jones against the City of Linton. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Vanderburgh Superior Court; Robert J. Trace-well, Judge.</p> <p>Action by Clayborn C. Ayres against Fred W. Mc-Neely and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>•From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Ella T. Bollenbacher against Henry A. Lee, executor of the will of Eliza J. Alexander, deceased. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Commerce.' — Federal Safety Appliance Act. — Applicability.— Cars Not in Use in Interstate Commerce. — Section 2 of the federal Safety Appliance Act (27 Stat. at L. 531, §8605 et seq. U. S. Conap. Stat. 1916), making it unlawful for any common carrier to permit to be hauled or us.ed on its line any car used in moving interstate traffic not equipped with automatic couplers, applies to a car equipped with a defective coupler which caused the injury of defendant carrier’s employe, though the car, while used in both intrastate and interstate commerce as occasion required, was not being used in interstate commerce at the time of the accident, p. 341.</p> <p>2. Master and Servant. — Injuries to Servant. — Federal Safety Appliance Act. — Car Couplers. — Duty do Repair. — It is not enough that a railroad freight car should have been originally equipped with automatic couplers, as required by the federal Safety Appliance Act (27 Stat. at L. 531, §8605 et seq. U. S. Comp. Stat. 1916), but such equipment must be kept in proper repair at all times while the .car is in use. p. 341.</p> <p>3. Master and Servant. — Injuries to Servant. — Complaint Contributory Negligence. — In an action against a railroad company by a brakeman to recover for personal injuries alleged to have resulted from defendant’s failure to comply with the federal Safety Appliance Act (27 Stat. at L. 531, §8605 et seq. U. S. Comp. Stat. 1916), plaintiff having had his foot crushed while attempting to shove a coupler so that it would engage, complaint held not to show that plaintiff’s negligence was proximate cause of the injury, p. 341.</p> <p>4. Trial.— Instructions.— Applicability.— Instructions must be relevant to the issues made by the pleadings and to the evidence given in support thereof, p. 342.</p> <p>5. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Employers’ Liability Act. — An order to a railroad brakeman “to pick up the car of coal” left to his judgment the manner and means of doing the work, and was not an order to adjust a defective coupler with his foot so that it would engage, and such direction did not relieve him of the result of his own contributory negligence, if any, in attempting to make a coupling in such manner, under §2 of the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), providing that an injured employe shall not be held guilty of negligence or contributory negligence where the injury complained of resulted from such employe’s obedience or conformity to any order or direction of the employer or of any employe to whose orders he was bound to conform, pp. 342, 343.</p> <p>6. Master and Servant. — Injuries to Servant. — Employers’ Liability Act. — Construction.—Section 2 of the Employers’ Liability Act (Acts 1911 p. 145, §8020á et seq. Burns 1914), providing that no employe shall be held guilty of contributory negligence where the injury complained of resulted from such employe’s obedience or conformity to any order or direction of the employer, is in derogation of the common law, and will be strictly construed, p. 343.</p> <p>7. Master and Servant. — Injuries to Servant. — Instructions.— Contributory Negligence. — In a servant’s action for personal injuries under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), an instruction that if plaintiff was injured “while” obeying an order Of the master the latter was liable, was erroneous, since the act provides that the employe shall not be held guilty of contributory negligence where the injury complained of “resulted” from obedience to an order of the master, p. 344.</p> <p>8. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Disobedience of Orders. — The fact that a servant was dis.obeying a rule of the employer at the time he received an injury does not preclude a recovery unless the disobedience was the proximate cause of the injury, p. 344.</p> <p>9. Master and Servant. — Injuries to Servant. — Jury Questions. —Contributory Negligence. — Proximate Cause. — In a servant’s action for personal injuries under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), plaintiff having had his foot crushed when shoving a car coupler so that it would engage, held that the question of contributory negligence and of proximate cause was for the jury. p. 345.</p> <p>10. Evidence.— Admissibility.— Conclusions.— Answers of witnesses which were nothing more than conclusions should be stricken out on motion, p. 345.</p>

<p>From Wayne Circuit Court; William A. Bond, Special Judge.</p> <p>Action by Charles Heck against Clem Thistlewaite. From a judgment for plaintiff, the defendant appeals.-</p>

<p>From Marshall Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by James O. Farrier against William Holland and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Schools and School Districts. — School Officers. — Authority. — Contracts for Housing Grade Schools in High School Building. — Under §6622a Burns 1914, Acts 1911 p. 463, providing for the erection by towns and townships of joint schoolhouses for joint graded schools, or joint high schools, or both, and §6623c Burns’ Supp. 1918, Acts 1915 p. 29, authorizing the school officials of towns and townships to enter into contracts to provide high school accommodations for a part or all of their respective townships or town corporations, etc., the school officers are given wide discretionary powers with reference to-joint arrangements for the accommodation of the pupils of their respective municipalities, and are authorized, in the exercise of their discretion, to contract for the housing and instruction of grade school pupils in a joint high school building to be constructed, p. 384.</p> <p>2. Schools and School Districts. — Joint High School Building. — Board of Control. — Powers.—The authority of the board of control of a joint high school to direct the use of the building is exclusive, and will not be interfered with by the courts. p.'385. ’ '</p> <p>3. Schools and School Districts. — Use of Joint High School for Graded School. — Injunction.—Right of Taxpayer to Relief. —A taxpayer and father of a pupil in a joint high school, the exclusive control and management of which is vested in a board- of control free from interference by the courts, cannot maintain an action for an injunction prohibiting the use of a. room in the high school building for a graded school, where it • does not appear that he is seeking to protect a private right or the prevention of a private wrong different from that sustained by the general public, since a private person who has suffered no special wrong cannot maintain an action for the invasion of a public right, p. 386.</p>

<p>Municipal Corporations. — City Hospital. — Negligence.—Liability. — One injured by falling into an elevator shaft in a city hospital negligently left unguarded cannot maintain an action for his injuries, where the maintenance of the hospital was an exercise of a governmental function by the city.</p>

<p>From Warrick Circuit Court; Marshall B. Tweedy, Judge.</p> <p>Action by Levi Wilkinson against John W. Wilkinson. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Highways.— Construction.— Contractor’s Bond.— Conditions. —Statute.—Section 7723 Burns 1914, Acts 1905 p. 521, relative to bonds to be furnished by bidders for the construction of gravel roads, makes no provision for, and does not recognize, a proposal bond, but requires the bidder to file a bond with his bid conditioned that he will enter into a contract and faithfully perform the work in accordance with the profile and report, etc., and that he will pay all debts incurred in the course of the work. p. 399.</p> <p>2. Principal and Surety. — Contract of Suretyship. — Prior Oral Agreements. — Merger.—Where a written application for a bond to accompany a bid for the construction of a road contained an agreement to pay a premium of “$5 for the proposal, $413.50 for the full maintenance and guarantee period, $4Í8.50 annually in advance for the contract bond,” until delivery of competent evidence of the surety’s discharge from liability, an alleged oral agreement, made prior to the execution of the application, that only a proposal bond and not a construction bond was contemplated was of no effect, since all previous oral negotiations were merged in the written application, p. 399.</p> <p>3. Highways.— Contractor’s Bond. — Release of Surety. — Furnishing New Bond. — Approval by Board of County Commissioners. — Where a bond of a bonding company submitted under. §7723 Burns 1914, Acts 1905 p. 521, by the successful bidder for a gravel road contract was conditioned for the faithful performance of the work, and payment of all bills for labor, material, etc., the surety- was not released from liability on the bond because the contractor treated it as a proposal bond and with the consent of the board of county commissioners subsequently filed a new construction bond which was approved by the board, in lieu of that filed with the bid. p. 401.</p>

<p>1. Improvements. — Improvements by1 Occupying Claimant.— Right to Relief. — Amount of Recovery. — Statute.—Under the occupying claimant statute (§1121 et seq. Burns 1914, §1074 et seq. R. S. 1881), an occupying claimant can recover only the value of the improvements to the extent that they increase the value of the real estate upon which they are mistakenly placed, and to the extent that such improvements benefit' the owner of the realty, regardless of the cost of the improvements or their value to the occupying claimant who mistakenly located them, pp. 413, 414.</p> <p>2. Improvements. — Improvements by Occupying Claimant.— Right to Recover Under Common Law. — Under the common law an occupying tenant had no-right of recovery from the owner of land for improvements mistakenly made thereon, but the claimant lost them, though he had acted in good faith and under color of title, p. 414.</p>

<p>Divorce. — Proof of Residence. — Evidence.—Sufficiency.—Statute. —In an action for divorce, the testimony of plaintiff, a resident freeholder and householder, showing that at the time of the commencement of the action she was, and for more than two years immediately prior thereto had been a bona fide resident of the county and state, when supplemented by the testimony of one other competent witness to the same effect, is sufficient to show residence within the requirements of §1066 Bums 1914, §1031 R. S. 1881, in view of §519 Bums 1914, §496 R. S. 1881, making all parties and persons interested competent witnesses in civil actions.</p>

<p>1. Contracts. — Contracts Violating Public Policy. — Validity.— Comity. — The public policy of a state is supreme, and, when once established, will not, as a rule, be relaxed even on the ground of comity to enforce contracts which, though valid where made, contravene such policy, p. 421.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Applicability. — Foreign Contract Exempting Employer from Payment of Compensation. — Recovery by Injured Employe. — Where a circus company, an Indiana corporation, gave no notice of nonacceptance of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Bums’ Supp. 1918), under §§2-4, 15 of the act, it could not escape payment of compensation for the death of an employe resulting from injuries sustained in the course of his employment while working in the state even though the contract of employment made in another state provided that the rights and liabilities of the parties should be governed by the laws of the District of Columbia, since the employer could not relieve itself of the statutory obligation to pay compensation by a foreign contract; the employer’s obligation under the Workmen’s Compensation Act being superimposed upon such foreign contract of employment as a condition of its performance in this state, p. 421.</p> <p>3. Constitutional Law. — Awwrd Under Workmen's Compensartion Act. — Impairment of Contract. — Appropriation of Property Without Due Process. — Denial of Equal Protection of Laws.— Where a contract of employment made in .another state provided that the rights and liabilities of the parties should be governed by the laws of the District of Columbia, an award of compensation by the Industrial Board of Indiana under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) for the death of an employe from injuries received in this state in the course of his employment did not impair the obligations of such contract in violation of §10, Art. 1 of the Constitution of the United States,, or deprive the employer of property without due process, or deny it the equal protection of the law, in violation of the Fourteenth Amendment to the federal Constitution, p. 423.</p> <p>4. Constitutional Law. — Constitutional Guarantees, — Public Welfare. — The rights guaranteed by §10, Art. 1 of .the Constitution of the United States, prohibiting impairment of the obligations of contract, and by the Fourteenth Amendment, prohibiting the taking of property without due process of law and denial of equal protection of law, are subservient to the public welfare, p. 424.</p>

<p>Exceptions, Bill of. — Failure to Set Out Evidence. — Sufficiency. —A bill of exceptions prepared pursuant to §§664-667 Burns 1914, Acts 1911 p. 193, which merely recites that plaintiff introduced evidence tending to prove all the material averments of the complaint and tending to controvert the defendants’ evidence, and that defendants introduced evidence tending to prove all the material averments of their counterclaim and tending to controvert the plaintiff’s evidence, is insufficient to present any questions for consideration on appeal.</p>

<p>Judgment. — Default Judgment. — Motion to Set Aside. — Sufficiency. — A motion to set aside a default judgment which was based on the ground that defendant’s director having control of the case was too ill to give the case attention, and that defendant had an understanding that a certain law firm would appear for it but failed to do so, held insufficient to warrant the trial court setting aside the default.</p>

<p>1. New Trial. — Grounds. — Interrogatories. — Answers. — The causes for a new trial specified in §585 Bums 1914, §559 R. S. 1881, are exclusive, so that specifications in a motion for a new-trial that the answers of the jury to special interrogatories is not sustained by sufficient evidence, or that such answers show that the jury was actuated by bias, prejudice, or improper motives, which are not among the causes specified in that section, cannot be considered, p. 430.</p> <p>2. Master and Servant. — Injuries to Servant. — Dangerous Machinery. — Guarding.—Jury Questions. — Where, in a servant’s action against the master for personal injuries, the negligence charged was the failure to guard a machine that the statute did not require to be guarded, it was a material fact to be decided by the jury whether the machine could be so guarded to protect the workman without materially impairing its usefulness. p; 431.</p>

<p>1. Corporations. — “Indebtedness.”—Scope.—Income and Excess Profits Taxes. — Where a contract for the sale of stock in a corporation obligated the sellers to pay all indebtedness of every sort and character owing by the corporation, income and excess profits taxes assessed for a part of the year prior to the execution of the contract under a law enacted thereafter are not embraced within the term “indebtedness” as used in the contract, p. 434.</p> <p>2. Corporations. — “Indebtedness.”—Scope.—Income and Excess Profit Taxes. — Where a contract for the sale of corporation stock obligated the sellers to pay all indebtedness owing by the corporation, excess profits taxes for prior years, under a statute existing before the execution of the contract, constitute indebtedness within its terms; the statute itself imposing a tax with a fixed percentage being a sufficient assessment to determine the extent of the company’s liability, and an examination of the company’s books, by which was determined the amount due the government on account of such tax, having been made previous to the signing of the contract, and all accounts payable to the company being reserved to the sellers, so that it will be presumed that • the parties used the term “indebtedness” in its broadest sense as intending to embrace all obligations of the company that were at the time imposed upon the company by law. p. 436.</p>

<p>1. Municipal Corporations.- — Personal Injuries. — Contributory Negligence. — Burden of Proof. — Statute.—Under §862 Burns 1914, Acts 1899 p. 58, relating to the defense of contributory negligence in actions to recover for personal injuries, if plaintiif’s evidence does not show contributory negligence on the part of the person injured, the defendant must establish such negligence by a preponderance of the evidence in order to defeat a recovery. (City of Bluffton v. McAfee [1894], 12 Ind. App. 490, explained.) p.452.</p> <p>2. Appeal. — Review.—Verdict.—Conclusiveness.—A verdict supported by some evidence will not be disturbed on appeal, it being the province of the jury to weigh the testimony, p. 452.</p> <p>8. Municipal Corporations. — Personal Injuries. — Assumed Risk. — Contributory Negligence. — The term “assumed risk” is rightly applicable only when the relation of master and servant exists, so that a pedestrian injured by a fall on an icy sidewalk cannot be deemed to have assumed the risk of injury, as the question is one of her contributory negligence, p. 452.</p> <p>4. Municipal Corporations. — Personal Injuries. — Defective ■ Sidewalks. — Contributory Negligence. — Though a pedestrian knew that a sidewalk was icy and that it was dangerous to attempt to walk thereon, she was not required, as a matter of law, to avoid the use of the walk, but was merely bound to use care proportionate to the known danger; hence, she cannot be deemed guilty of negligence because she used an ice-covered sidewalk instead of a pathway at the edge thereof, there being no evidence as to the condition of the pathway, p. 453.</p> <p>5. Municipal Coepoeations. — Defective Sidewalks.— Personal Injuries. — Contributory Negligence. — A person is not debarred from using a sidewalk simply because he happens to know that it is in a dangerous condition, unless the danger is such that a reasonably prudent person, knowing its condition, would not attempt to use it. p. 454.</p> <p>6. Appeal. — Review.—Instructions.—Appellant cannot complain of error in the giving of an instruction, Where such instruction was unduly favorable to it. p. 454.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Anton Ball against the Carl Hagenbeck and Great Wallace Shows Company. From an award for applicant, the defendant appeals.

<p>From Decatur Circuit' Court; John W. Donaker, Judge.</p> <p>Action by Mack H. Wiley and others against Emma Bagby Wiley and others. From a judgment in favor of part of the defendants, plaintiffs and other defendants appeal.</p>

<p>1. Carriers. — Carriage of Goocls. — Interstate Shipment. — Dam* ages. — Common-Law Liability. — Where an interstate shipment was damaged in transit, the consignee could prosecute an action against the terminal carrier either at common law or under the Carmack Amendment to the Interstate Commerce Act (§§8604a, 8604aa. U. S. Comp. Stat. 1916). p. 477.</p> <p>2. Carriers. — Carriage of Goods. — Damages.—Action at Com* mon Law. — Practice and. Procedure. — Carmack Amendment.— In an action at common law against a terminal carrier by a consignee for damages to an interstate shipment in transit,- all presumptions that existed in favor of a plaintiff in such an action prior to the Carmack Amendment to the Interstate Commerce Act (§§8604a, 8604aa U. S. Comp. Stat. 1916) were availble to the consignee, as such amendment did not change the rules relating to the “practice, procedure or evidence” in common-law actions arising from interstate shipments', p. 477.</p> <p>8. Carriers. — Carriage of Goods. — Damages.—Action at Common Lato. — Proof.—Where a consignee of an interstate shipment damaged in transit elected to prosecute an action at common law against the terminal carrier, he was bound to establish by a preponderance of the evidence that the shipment was damaged while in the possession of defendant carrier and the amount of the damagesi, and it is not sufficient to show that it was damaged on delivery at the destination, as it must be shown what condition the shipment was in when received by the terminal carrier, p. 478.,</p> <p>4. Carriers. — Carriage of Goods. — Receipt of Goods by Carrier. —No Presumption as to Condition. — The mere fact that goods were received by a carrier for shipment is not sufficient to create a presumption that such goods were in good condition when received. (Cleveland, etc., R. Co. v. Schaefer [1910], 47 Ind. App. 871, distinguished.) p.478.</p> <p>5. Carriers. — Carriage Goods. — Damages.—Connecting Carriers. —Negligence.—Presumptions.—Receipt of Goods in Good Condition. — Where freight is received by the initial carrier in good condition, and is delivered to the terminal carrier in a damaged condition, the presumption arises, the contrary not appearing, that such freight was delivered to the terminal carrier in the same condition as when received by the initial carrier, by reason of which presumption the burden is cast on the terminal carrier to show that the freight was not injured while in its possession, but in the absence of proof that the freight was in good condition when delivered to the initial carrier, such presumption does not exist, and there is no burden on the terminal carrier, p. 479.</p>

<p>From Dearborn Circuit Court; Charles A. Lowe, Judge.</p> <p>Action between Henry Maune and Miller and Company. From the judgment rendered, the former appeals.</p>

From Jackson Circuit Court; John H. Edwards, Special Judge. Action by Hannah Heins and another against Lulu Greiner and others, in which John Benjamin Heins and Frank Meeh, Jr., each filed cross-complaints. From a judgment for John Benjamin Heins on his cross-complaint, Lulu Greiner and others appeal.

<p>From Vanderburgh Superior Court; Robert J. Trace-well, Judge.</p> <p>Action by the Parsons and Scoville Company against W. Sherman Vick. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Larceny. — Obtaining Property by Fraud. — One issuing a fraudulent cheek in payment of the purchase price of an automobile is not guilty of larceny, where the owner of the car intended to part with both the possession and right of property, p. 492.</p> <p>2. Chattel Mortgage. — Security.—Property Obtained by Fraud. —Rights of Mortgagee. — One lending money secured by a mortgage on an automobile, which the mortgagor obtained by issuing a fraudulent check in payment of the purchase price, stands in the relation of a purchaser in good faith, and will be protected against the vendor’s claims, where he had no knowledge of the mortgagor’s fraud, p. 492.</p>

<p>1. Evidence. — Judicial Notice. — Population of City. — Statutes.— Laiu Governing Municipal Police Force. — The Appellate Court will take judicial notice that the city of Elkhart, at the time of the injury and death of a policeman for whose death compensation is sought under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), was a city having a population of between 10,000 and 35,000, and that its police force was established under, and regulated by, the act known as the Metropolitan Police Act of 1897 (Acts 1897 p. 90; §9033 et seq. Burns 1914), as amended by the acts of 1907 (Acts 1907 p. 284), 1909 (Acts 1909 p. 153), and 1911 (Acts 1911 p. 125). p. 495.</p> <p>2. Officers. — Public Office.- — -Definition.—A public office may be defined as a position to which a portion of the sovereignty of the state attaches for the time being, and which is exercised for the benefit of the public; the most important characteristic distinguishing an office from an employment being that the duties of the incumbent of an office must involve an exercise of some portion of the sovereign power, p. 495. •</p> <p>3. Master and Servant.— Workmen’s Compensation Act.— “Employe.” — Policeman.—One appointed as a police officer by the city of Elkliart in accordance with the provisions of the Metropolitan Police Act of 1897 (Acts 1897 p. 90, §9033 et seq. Burns 1914), as amended by the acts of 1907 (Acts 1907 p. 284), acts 1909 (Acts 1909 p. 153), and the acts of 1911 (Acts 1911 p. 125), was a “public officer” and not an “employe” of the city within the terms of §76 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), so that the city was not liable for compensation under such act. (Frankfort General Ins. Co. v. Conduitt [1920], 74 Ind. App. 584, distinguished.) p. 495.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by James F. Wright against Weil Brothers and Company. After a denial of compensation, the applicant filed an application for review before the full board, which application was dismissed and the applicant appeals.

<p>1. Municipal Corporations. — Public Improvements. — Board of Public Works. — Character of Board. — The board of public works is an administrative body, and a proceeding to improve a street by grading and paving is a special statutory proceeding administrative in character, p. 503.</p> <p>2. Appeal. — Appeal From Administrative Board to Court. — In appeals, so-called, from an administrative board to a court, the word “appeal” is not used in its technical sense, p. 503.</p> <p>3. Municipal Corporations. — Street Improvements. — Assessments. — Appeal.—Duty of Cfowi. — Payment on Installment Plan. — Statutes.—The legislature intended that under the provisions. of §8716 Burns 1914, Acts 1909 p. 412, the court, on appeal to the circuit or superior court from the assessment made by the board of public works1, should fix the amount of the final assessment, and that the amount so fixed should be certified, or in some other manner 'communicated to such board, and that the board should then place that amount on the final assessment roll, but there was no intention that a citizen thus appealing should lose his right to. elect to pay on the installment plan. p. 504.</p> <p>4. Action. — “Summary Proceeding.” — Nature. — A “summary proceeding” is> a form of trial in which the established course of legal proceedings is disregarded, especially in the matter of trial by jury, and no cause can be tried summarily otherwise than in due course, except perhaps cases of contempt of court,for the Code, as well as. the common law, is a stranger to such mode of trial, p. 505.</p> <p>5. Municipal Corporations. — Street Improvements. — Assessments. — Appeal.—“Summarily.”—Statute.—The legislature intended that the word “summarily,” as used in §8716 Burns 1914, Acts 1909 p. 412, relating to appeals from assessments for street improvements as fixed by the board of public works, should be taken in its ordinary, rather than its. technical meaning, and intended thereby to direct that the trial on appeal shall be “reduced into a narrow compass or into few words.” p. 505.</p> <p>6. Municipal Corporations. — Street Improvements. — Assessments. — Appeal. — Nature of Action. — Statutes. — An appeal from the assessment for a street improvement, as fixed by the board of public works, under §8716 Burns 1914, Acts 1909 p. 412, is not a civil proceeding within the Code, and it is not a proceeding known to the common law, and if, by reason of its inherent nature, it is not a civil action, it cannot he made one by mere legislative reference, p. 505.</p> <p>7. Municipal Corporations. — Street Improvements. — Assessments. — Appeal.—Nature and Scope of Revieiv.- — Statutes.— On appeal to the circuit or superior court from an assessment for a street improvement under §8716 Bums 1914, Acts 1909 p. 412, the inquiry is limited to a determination of whether the final assessment exceeds the actual benefit, and in determining the matter any evidence may be adduced which has a legitimate hearing on the controversy, except that the assessment made against the property involved for the purpose of general taxation, which is specifically, excluded from consideration by §8711 Burns 1914, Acts 1909 p. 412. p. 506.</p> <p>8. Municipal Corporations. — Street Improvements. — Assessments by Board of Public Works. — Nature of Proceedings.— Presumptions. — In making special assessments under §8716 Burns 1914, Acts 1909 p. 412, for the cost of street improvements, the board of public works is exercising the power of taxation, and, because of the very nature of the process, when the board is determining the amount of these assessments it is not engaged in an adversary proceeding, the members of the board representing the landowner as well as the city and all others concerned, and the presumption is that the members of the board have done their duty in a spirit of fairness and to the best of their judgment, p. 506.</p> <p>9. Municipal Corporations. — Street Improvements. — Assessments Made by Board of Public Works. — Appeal to Circuit Court. — Judgment.—Rights of Appeal. — A property owner assessed for a street improvement who appeals to the circuit or superior court from his assessment under §8716 Burns 1914, .Acts 1909 p. 412, as amended by the acts of 1919 (Acts 1919 p. 625), is not entitled to prosecute an appeal from the judgment of such court, where nothing is involved other than the amount of the assessment, p. 506.</p> <p>10. Municipal Corporations. — Street Improvements. — Appeal From Amount of Assessment. — Scope of Review. — Assessment of Property for More Than Fifty Per Cent of Value. — Statutes. —A violation of §8710 Bums 1914, Acts 1909 p. 236, providing that no contract shall be let for the improvement of any street, etc., the total cost of which shall exceed fifty per cent of the aggregate value of the property subject to be assessed for the payment of the cost of the improvement, if utilized in a proper action seasonably instituted, would result in preventing the improvement, but cannot be made available on appeal from the amount of the assessment, p. 509.</p>

<p>1. Trust. — Resulting Trust. — Purchase of Real Estate. — Purchase Money Furnished to Grantee by Another. — It is the general rule in equity that where one person buys real estate and takes the title in his own name, and the entire purchase money is furnished as purchase money by another, a resulting trust arises by implication of law in favor of the party paying the purchase money, p. 521.</p> <p>2. Trusts. — Resulting Trust in Realty. — Purchase Money Contributed by Several Persons. — Title Taken in Nrnne of One.— Where the money with which real estate is purchased is contributed as purchase money by two or more persons and the title is taken in the name of one, a resulting trust in the land arises by implication of law in favor of each contributor' to the extent of the purchase money paid by each. p. 522.</p> <p>3. Trusts. — Resulting Trust in Realty. — Purchase of Realty with Money Furnished Grantee by Another. — Presumption.—It is the general rule, subject to certain exceptions, that the mere fact that one buys land, with money furnished by another raises the presumption that the land was purchased for the party furnishing the purchase price, but the presumption is one of fact and rebuttable, p. 522.</p> <p>4. Trust. — Resulting Trust' in Realty. — Contribution to Purchase Price. — Intent of Parties. — Where one furnishes part of the purchase price of realty without being joined as grantee, the mere proportion which the amount furnished happens to sustain to the entire purchase price is never conclusive as to whether a trust results, the decision in each case depending on the real intent of the parties, p. 523.</p> <p>5. .Trusts. — Express Trust. — Creation.—Statute.—Under §4012 Burns 1914, §2969 R. S. 1881, relating to trusts concerning lands, only the person having dominion can create and impress upon real estate an express trust, and such a trust can be created only by a writing which conforms strictly to the provisions of such section, p. 525.</p> <p>6. Trusts. — Requisites.—Trust Fund. — In order that there may be a trust of any kind, there must be a trust fund. p. 526.</p> <p>7. Trusts. — Express Trust. — Creation by Parol Agreement.— Merging of Family Earnings. — Where children pursuant to an oral agreement turned over to the father their income to be used as a common fund to purchase real estate to be held in trust for such children, they thereby created a trust in personal property, p. 526.</p> <p>8. Trusts. — Resulting Trust. — Merging of Family Earnings.-— Purchase of Land. — Where children pursuant to a parol agreement contributed their earnings to a common fund to be used by the father to purchase land, which he agreed to hold in trust for the children, and the father purchased lands with such fund, the title to which was taken in his own name, a •trust in such real estate arose by implication of law in favor of the children, p. 527.</p> <p>9. Trusts. — Resulting Trusts. — Purchase of Land. — Presumptions. — Statute.—Section 4017 Burns 1914, §2974 R. S. 1881, providing that when a conveyance is made to one person, and the consideration paid by another, no use or trust shall result in favor of the latter, but the title shall rest in the former, extinguishes the old presumption that he who furnished the money intended to acquire the title for himself, and raises an opposite presumption, p. 527.</p> <p>10. Trusts. — Resulting Trust--Presumption. — Purchase of Realty for Wife or Child. — Statutes.—Section 4017 Bums 1914, §2974 R. S. 1881, providing that when a conveyance is made to one person, and the consideration paid by another, no use or trust shall result in favor of the latter, but the title shall rest in the former, etc., does not affect the old presumption that where the consideration is furnished by one and the title to- the realty purchased is taken in the name of his wife or child, the transaction is intended as a means of support or as an advancement, p. 527.</p> <p>'ll. Trusts. — Resulting Trusts. — Presumptions.—Statute.—Under §4017 Burns 1914, §2974 B. S. 1881, providing that when a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter but the title shall rest in the former, etc., all presumptions are against one seeking to establish a resulting trust, and the burden is upon him to prove all the elements essential under the statute to the existence of the trust, p. 527.</p> <p>12. Trusts. — Resulting Trusts. — Requisites. — Contribution to Consideration. — Agreement.—Statutes.—In order that a resulting trust may arise upon contribution to purchase money within §4019 Burns 1914, §2976 E. S. 1881, providing that §4017 Burns 1914, §2974 E. S. 1881, as to resulting trusts in realty, shall not apply where it shall be made to appear that by agreement, without any fraudulent intent, the party to whom a conveyance of realty was made, or in whom the title shall rest, was to hold the land or some interest therein in trust for the party giving the purchase money or some part thereof, it is essential that the parties must have made such an agreement as is specified in the statute before the title to the real estate was acquired, that the agreement must be based upon valuable consideration, be fair and be free from fraud, and that the proof be clear and unequivocal; but the agreement need not be in writing, and if in parol, is not objectionable on the ground that it is an attempt to create indirectly an express trust in land in violation of §4012 Burns 1914, §2969 R. S. 1881. p. 528.</p> <p>13. Trusts.' — Resulting Trusts. — Violation of Trust. — Conveyance of Land Held in Trust. — Where children, pursuant to a mutual agreement, contributed their earnings to a common fund to be used by the father in buying land to be held in trust for the children, and the father from time to time purchased land with such fund, conveyances by him of land so acquired were in violation of the trust, and the deeds should be canceled, p. 530.</p> <p>14. Trusts. — Resulting Trusts. — Merging of Family Ecurnings and Labor. — Trust Interests. — Determination.—Where children, pursuant to mutual agreement, contributed their earnings to a common fund, and also rendered services on a farm, the value of which was added to the fund, which was to be used by the father in purchasing real estate to be held in trust by him for the children, the labor as well as the money contributed must be taken into account determining the contribution of each child, p. 531.</p> <p>15. Trusts. — Resulting Trust. — Purchase of Realty with Comunión Fund. — Interests of Contributors. — Where real estate is purchased by a common fund, it is the common property of the contributors to the fund, and is owned by them in equal shares, notwithstanding the unequality of their contributions to such fund. p. 532.</p> <p>16. Trusts. — Resulting Trusts. — Merging of Family Earnings. —Purchase of Realty. — Parol Agreement as to Inteo'ests of Contributors. — Validity.—Where children orally agreed to contribute their earnings to a common fund, which was to be used by the father in the purchase of land to be held in trust for the children, it was competent for the parties- to specify in the agreement the respective interests the contributors should have in the land to be subsequently acquired, p. 533.</p> <p>17. Trusts. — Resulting Tmist. — Evidence.—Sufficiency.—Where children, pursuant to an oral agreement, contributed their earnings to a common fund which was to be used by the father in the purchase of real estate to be held in trust for the children, held, in an action to establish a trust in the land so purchased after the father had conveyed it in violation of the agreement, that- the evidence was sufficient to show conclusively all the elements essential to establish a resulting trust within §4019 Burns 1914,-§2976 E. S.-1881. p. 536.</p> <p>18. Trusts. — Administration.—Powers and Duties of Trustee.— Under the general obligation of carrying the trust into execution; a trustee is bound to conform strictly to the directors of the trust, and he can use the property only for the purposes contemplated in the trust, p. 536.</p> <p>19. Trusts. — Trust in Real Estate.- — Administration.—Conveyances. — Where children agreed to contribute to a common fund which was to be used by the father in purchasing real estate to be held in trust for the children, the father violated the trust by purchasing land in his own name and in the name of himself and wife, it being his duty to take deeds embodying the provisions of the trust agreement as to the interest of the parties, p. 537.</p> <p>20. Trusts. — Resulting Trust. — Merger of Family Earnings.— Purchase of Realty. — Rights of Contributors to Fund. — -Remedy at Law. — Adequacy.—Where children, pursuant to an oral agreement, agreed to place their earnings in a common fund which was to be used by the father in purchasing property to be held in trust for the children, adequate compensation cannot be made to the children on the basis of the quantum meruit, after the purchase by the father from time to time of realty with the fund thus accumulated, pp. 537, 539.</p> <p>21. Trusts. — Constructive Trusts. — Statute of Frauds. — Constructive trusts are raised by the courts, in proper cases, in defiance of the statute of frauds, on the principle that the statute cannot be invoked to aid in the perpetration of fraud, .or to shield one who has perpetrated a fraud, p. 539.</p>

<p>1. Intoxicating Liquors. — Brewery Guaranteeing Loan of Liq-our License Fee — Saloon Keeper’s Promissory Note Evidencing Contingent Liability. — Validity. — A transaction between a .saloon keeper and a brewing company whereby the latter undertook to loan the former its credit by guaranteeing the payment of a loan from the bank to the saloon keeper of the money necessary to pay for his liquor license, being a plain attempt to contravene the policy of the Act of 1911 (Acts 1911 p. 244) concerning intoxicating liquors, was against public policy, and the saloon keeper’s note, given to the brewing company as evidence of his contingent liability, is void. p. 542.</p> <p>2. Intoxicating Liquors. — Saloon Keeper’s Note Given in Illegal Transaction. — Payee’s Right to Relief. — Pleading Illegality. — A recovery will not be allowed on a saloon keeper’s note to a brewing company for guaranteeing a loan to obtain a retail liquor license, even though the illegality of the consideration was not pleaded, where such illegality appeared in the course of the action, p. 542.</p>

<p>From St. Joseph Superior Court; Chester R. Montgomery, Judge.</p> <p>Action by Frances Strauss and others against Pelagia Woefel. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From the Industrial Board of Indiana.</p> <p>Proceedings for compensation under the Workmen’s Compensation Act by Charles Ossam against Kingan and Company, Limited. From an award for applicant, the defendant appeals.</p>

<p>1. Judgment. — Conelusiveness.—Res Adjudicata. — In an action on a note given by defendants to plaintiff to indemnify him against loss because of his liability on notes excuted by plaintiff to a third person for benefit of defendants, a judgment that such third person take nothing by his cross-complaint drawn upon the theory of a right to subrogation to the rights of plaintiff against defendants held, not res adjudicata, in a subsequent action by such third person’s executrix against plaintiff on the notes executed for the benefit of such defendants, pp. 597, 598.</p> <p>2. Pleading. — Complaint.—Theory.—Determination.—The' theory of a complaint is not determined by its prayer, but by its averments, p. 598.</p> <p>3. Evidence. — Parol Evidence. — Judgment.—Matters Concluded. —Where pleadings and record evidence in a former action were not ambiguous, parol evidence was not admissible to determine what was adjudicated therein, such evidence being competent only in case of ambiguity, p. 598.</p> <p>4. Appeal. — Review.—Harmless Error. — Admission of Evidence. ■ — In an action in which it was contended that the judgment in a prior 'action was res adjudicata, error in admitting parol evidence as to what was adjudicated in the prior action was harmless, where the pleadings and records therein were free from ambiguity, p. 598.</p>

<p>From the Industrial Board of Indiana.</p> <p>Proceedings for compensation under the Workmen’s Compensation Act by Harry Zafiropoulos against the Cudahy Packing Company. From an award for applicant, the defendant appeals.</p>

<p>1. Executors and Administrators. — Decedent’s Debts. — Eight of Administrator to Sell Land. — R.es Adjudicata. — Where, on petition of an administrator, the court ordered the sale of an interest in land' alleged to have been the property of decedent, the right of the administrator to sell such interest became res adjudicata as between the parties to the court’s order and their privies, p. 604.</p> <p>2. Executors and Administrators. — Order for Sale of Realty. — Matters Adjudicated.— One-Third Interest of Widow.— Where an administrator filed a petition to sell an undivided two-thirds interests in land to pay debts of decedent, who, it was alleged, was • the owner of the entire tract, an order . for the sale of such two-thirds interests was not an adjudication as between the widow of decedent and her children and their privies as to the other third, the widow’s right as to the one-third not being in issue, and the widow and children not being adversary parties, pp. 604, 606.</p> <p>3. - Judgment. — Conclusiveness.—Parties.—Issues.-—-The plea of res adjudicata is not available to parties in an action unless the judgment set up was rendered upon issues between them, it being essential that there must have been a controversy between the parties, the question in which was or might, within the issues framed, have been completely adjudicated, p. 606.</p> <p>4. Judgment. — Conclusiveness.—Matters Between Codefendants. —A court cannot decree between codefendants when neither pleading nor proof shows any controversy or adverse interest between them. p. 609.</p> <p>5. Judgment. — Matters Concluded. — Issues.—To constitute a bar to further proceedings, a judgment in -a prior action must have been an actual judgment upon the same issue, p. 609.</p>

From Marshall Circuit Court; Smith N. Stevens, Judge. Action by the First State Bank of Bourbon on a claim against the estate of Graham Rose, deceased, in which the executor filed a cross-complaint against plaintiff and decedent’s widow, Ella Rose appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Ever M. Shiveley against Shiveley Brothers, a corporation, in which applicant and the defendant entered into a compensation agreement which was approved by the Industrial Board. From án order refusing to vacate the order approving the compensation- agreement, the Aetna Life Insurance Company, defendants insurance carrier, appeals.

<p>Landlord and Tenant. — Covenant to Repair. — Breach.—Right ' to Recover. — A landlord’s breach of his covenant to repair the roof of the leased premises does not authorize a recovery by the tenant for damages inflicted on the furnishings, where he knew for years of the leaky condition but made no effort to protect his goods, and made no claim for damages until sued for possession for nonpayment of rent.</p>

From Marion Probate Court; Mahlon E. Bash, Judge. Action by Nannie Morris Haines against the Indiana Trust Company, trustee under the trust created by the will of Kate Morris Brown, deceased. From a judgment for defendant, the plaintiff appeals.

<p>1. Appeal. — Briefs.—Sufficiency.—No question is presented for consideration on appeal as to the sufficiency of a notice of injury to comply with §8962 Burns 1914, Acts 1907 p. 249, where appellant city’s brief, in its proposition and points, merely informs the court what the notice contains, and then states as a proposition of law that such notice must be given and the fact that it was given must be alleged in the complaint, but fails to point out any defects in the notice; nor can such omission be supplied by defects in the notice suggested in the argument to appellant’s brief, p. 662.</p> <p>2. Municipal Corporations. — Personal Injuries. — Notice of Injury. — Sufficiency.—Statute.—A notice to a city directed to the mayor and common council purporting to be signed by the injured person, “You and each of you are hereby notified that on the 26th day of December 1916, at about 7.00 o’clock P. M., I suffered an injury by reason of a fall on an icy ridge, where sidewalk crosses the alley and intersects same, at the northeast corner of the Windle Block, known as Lot 3, in Block 22, in the original survey of the town (now city) of Valparaiso, Indiana. That said icy ridge was permitted to be and remain in said place for more than four days, followed by a description of the injuries claimed to have been received, and a notice that the injured person intended to hold the city liable therefor, was sufficient to comply with §8962 Burns 1914, Acts 1907. p. 249. p. 663.</p> <p>3. Damages. — Personal Injuries.— Physical Examination.— Discretion of Court. — A motion to require plaintiff in an action to recover for personal injuries to submit to a physical examination is addressed to the sound discretion of the trial court, but the exercise of such discretion is reviewable on appeal, and correctible in case of abuse, p. 664.</p> <p>4. Damages. — Personal Injuries. ■ — • Physical Examination. — Right to More Than One Examination. — Discretion of Court.— Courts have authority to order more than one physical examination of a plaintiff in an order for damages on account of physical injuries, the purpose of such examinations being to enable the courts to obtain as nearly as possible the exact and full truth concerning the matters in controversy in order that they bestow upon litigants equal and exact justice; hut a defendant in such an action may not demand either a first or subsequent examination under order of court as a matter of right, as the making of such an order is within the sound discretion of the court, and a physical examination should never be ordered without sfficient cause or so frequently as to unduly annoy plaintiff, or at such times and places as to cause unnecessary embarrassment, p. 664.</p> <p>5. Damages. — Personal Injuries. ■ — • Physical Examination. — Abuse of Discretion.- — Refusal to Order Second Examination.— In an action to recover for personal injuries, held, that it was an abuse of the trial court’s discretion warranting reversal to refuse an order for a second physical examination of plaintiff, where the complaint alleged that her injuries were permanent and had rendered her a cripple for life, and the application for a second examination was made nineteen months after the first examination was had, and just prior to the trial of the cause, p. 666.</p>

<p>From Wabash Circuit Court; Nelson G. Hunter, Judge.</p> <p>Action by Eilt Schipper against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

From the Industrial Board of Indiana. Proceeding for compensation under the Workmen’s Compensation Act by Inez Morgan against the Indianapolis Bleaching Company. From an award increasing the compensation previously awarded on account of change in condition, the defendant appeals.

From Allen Circuit Court; E. O’Rourke, Judge. Action by Rebecca Eady, executrix of the estate of Philip J. Eady, deceased, against the city of Decatur. From a judgment for plaintiff, the defendant appeals, and thereafter filed its application for leave to amend the assignment of errors.

<p>From Vigo Superior Court; John E. Cox, Judge.</p> <p>Action between Elmer Williams and others and the Farmers State Bank. From the judgment rendered, the former appeals.</p>

<p>From Knox Circuit Court; B. M. Willoughby, Judge.</p> <p>Action between Curtis G. Shake and the Board of Commissioners of the County of Knox. From the judgment rendered, the former appeals.</p>

<p>From Fulton Circuit Court; Smith N. Stevens, Judge.</p> <p>Action between Lee Montgomery and Francis C. Montgomery and others. From the judgment rendered, the former appeals.</p>

<p>’From Henry Circuit Court; Fred C. Gause, Judge.</p> <p>Action between the Universalist Convention of Indiana and Alvin Spannuth and another. From the judgment rendered, the former appeals.</p>

From Lake Circuit Court; E. Miles Norton, Judge. Action between the Calumet Electric Company and the State of Indiana, on the relation of one Hunter. From the judgment rendered, the former appeals.

<p>From Marion Superior Court (A 6,145) ; Linn D. Hay, Judge.</p> <p>Action between Ed. Spahn and I. M. Dearman. From the judgment rendered, the former appeals.</p>

<p>From Starke Circuit Court; William C. Pentecost, Judge.</p> <p>Action between Marie Kesler and the Winona Telephone Company. From the judgment rendered, the former appeals.</p>