Volume 77 — Indiana Appellate Court Reports

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Louis Warren against Newton Hanna and others. From an award for'applicant, the defendants appeal.

From Jasper Circuit Court; Moses Leopold, Special Judge. Action by Frank Melrose against Emil Besser, in which Dessie Melrose was admitted as a party defendant and filed a cross-complaint. From a judgment for defendants, the plaintiff appeals.

<p>Appeal. — Review.—Instructions.—Failure to Include Evidence in Record. — Presumptions.—In the absence of the evidencé from appellant’s brief, it will be presumed that the instructions of which complaint is made on appeal, so far as they relate to the facts of the case, were within the evidence adduced at the trial, and if the evidence to which they relate was admissible under the issues, there was no error in giving them.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Ella Driscoll against the Weidely Motors Company and another. From an order dismissing the application, the applicant appeals.

<p>1. Exemptions.— Householder’s Exemption.— Sale of Property Exempt. — Liens__Where a judgment is founded on contract, and the judgment debtor is a resident householder, and his entire estate, real and personal, within and without the state, does not exceed in value $600, he may, before it is sold on execution, sell or dispose of any or all of it, and the person to whom such property passes takes it free from the lien of the judgment or the lien of any execution that may have been issued thereon, p. 16.</p> <p>2. Exemptions. — Property Exempt from Execution. — Creditor’s Claims.- — -Liens.—Property exempt from execution is not subject to any claim of a creditor, and no execution or other writ is a lien upon it. p. 16.</p> <p>3. Exemptions.— Property Exempt from Execution.— Sale.— Lien of Judgment Creditors of Grantor. — A grantee of mortgagor’s equity in mortgaged property which, at the time of the conveyance, was not subject to the claims of grantor’s creditors, by reason of grantor being entitled to a householder’s exemption, cannot be held to take the property subject to a lien of the grantor’s judgment creditors because the mortgage debt was subsequently paid out of the proceeds of a life policy held by grantor which had been assigned as additional security for the payment of the mortgage debt; the rights of judgment creditors being fixed by the circumstances as they existed at the time the conveyance was made. p. 16.</p>

From Lake Superior Court; Virgil S. Reiter, Judge. Action by Albert Sauer, for whom Wilhelmina Sauer, administratrix of the estate of Albert Sauer, deceased, was substituted, against Constance G. Sauer and another. From the judgment rendered, the plaintiff appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by W. H. Stevens against the Marion Machine Foundry and Supply Company, in which defendant filed a petition for reyiew on account of change of condition. From an award for defendant, the applicant appeals.

From Clark Circuit Court; Francis M. ■Griffith, Spe- ' cial Judge. Action by Jeffersonville School Township of Clark County against the city of Jeffersonville and others. From a judgment for plaintiff, the defendants appeal.

<p>1. Insurance. ■ — ■ Forfeitures. — Enforcement. — Although forfeitures of insurance policies are not favorites of the law, and will not be enforced except where it clearly appears as a right under the contract, courts are not authorized to make contracts for parties, but only to construe them when ambiguous, p. 39.</p> <p>2. Insurance. — Life Insurance. — When in Effect. — Policy Stipulations. — Validity.—An agreement by insured in his application for a life policy that it should not be in force until the acceptance and approval of his application by the insurer at its home office, the delivery of the policy and the payment of the first premium, and that upon such delivery the policy should be taken and accepted as having become effective upon a certain stipulated date, was valid, and beneficiary cannot maintain that the policy became effective until a date later than the date specified, pp. 39, 40.</p> <p>3. Insurance, — Payment of Premiums. — Forefeiture.—A provision in a life policy that in event of failure to pay any premium when due, or within the grace period, the policy should lapse and become void, is valid ánd enforceable, p. 40.'</p> <p>4. Insurance. — Life Insurance. — Settlement.—Action on Policy. —Where the beneficiary under a life policy acknowledged the receipt of money from the insurer “in full for all claims arising under” a policy bearing a specified number, she cannot recover the face of the policy, without first rescinding, or offering to rescind, and tendering back the money so received in settlement, although such settlement may have been procured by fraud, p. 41.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by Philena Coffman against Aaron Goldberg, in which C. Ed. Coffman, administrator with the will annexed, was substituted after the death of the original plaintiff. From a judgment for plaintiff, the defendant appeals.

<p>From Vigo Superior Court; C. A. Royse,.Judge.</p> <p>Action by the Burnett Coal Mining Company against Nicholas Schrepferman and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Carriers. — Carriage of Freight. — Negligence.—Evidence.— Sufficiency. — In an action by consignee against connecting carrier for damage to a shipment of bananas which were frozen when delivered, evidence held sufficient to sustain a finding that the bananas were frozen while in defendant’s possession by reason of its negligent failure to regulate the temperature of the car in which the bananas were being transported, p. 59.</p> <p>2. Appeal. — Questions Review,able.- — Admission of Evidence.— Failure to Object Below. — No question is presented for review on appeal as to alleged erroneous admission of evidence, where it does not appear that any objection was made to such evidence or that any exception was taken to its admission. p. 60.</p> <p>3. Action. — Transportation of Freight.- — Negligence.—Remedies. —Action in Part. — Though one have a contract with a common carrier for the transportation of goods, if there has been negligence in the performance of the contract, he may sue in tort and claim his damages by the proper proof, p. 60.</p>

<p>1. Appeal. — Review.—Harmless Error. — Ruling on Demurrer.— Special Findings. — Overruling a demurrer to the complaint is immaterial where the court finds the facts specially, and states its conclusions of law thereon, as the same question as to the legal effect of the facts stated in the complaint arises upon the facts as specially found, p. 62.</p> <p>2. Mines and Minerals. — Lease of Coal Lands. — Requirement for Improvements Within Stipulated Time. — Equipment Furnished Thereafter. — Right to Lien. — Where a lease of a coal mining property required lessee to expend a stipulated amount for machinery, improvements and betterment within a specified time, and to deposit a portion of such amount with the lessor to be paid and applied on such improvements and betterments, one furnishing equipment and repairs to lessee after the expiration of the period specified in the lease were not entitled to a lien by reason of the stipulations in the lease as to improvements. p. 68.</p> <p>3. Mechanics’ Lien. — Statutory Right. — The lien of a material-man did not exist- at common law, and the right to such a lien must be conferred by statute, p. 68.</p> <p>4. Mechanics’ Liens. — Statutes.—Construction.—Statutes giving to materialmen, laborers, etc., liens upon property to the extent of the value of labor performed or materials furnished are in derogation of the common law and strictly construed as to whom the benefits thereof are to be extended, and one claiming such benefits must be clearly within the terms of the statute. p. 68.</p> <p>5. Mines and Minerals. — Coal Minors. — Equipment Fwmished Lessee. — Right to Lien.- — Where equipment for a coal mine was furnished by claimant, and repairs were made by it at the instance of the lessee, and'not at the request of the owners of the land, their mere inactive consent to the making of such improvements by the lessee gave claimant no right to a lien. p. 68.</p> <p>6. Mechanics’ Liens. — Right to Lien. — Interest of Person in Possession.— Duty of Materialmen to Take Notice.— Persons about to furnish labor or materials for the making of an improvement on land must take notice of the rights of persons in possession and of the extent of their interest in the land, p. 69.</p>

<p>From Madison Superior Court; WUUs S. Ellis, Judge.</p> <p>Action by Rosa Perisho against the Citizens State Bank of. Carmel. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Wabash Circuit Court; Nelson G. Hunter, Judge.</p> <p>Action by Alonzo Crumrine and others against Milo Crumrine and others. From the judgment rendered, the defendants appeal.</p>

<p>1. Municipal Corporations. — Public Improvements. — Action to Set Aside Assessment Roll. — Answer.—Sufficiency.—Statutes.— In an action by property owners to set aside the assessment roll for a street improvement and to enjoin the enforcement thereof, where plaintiffs were not seeking to set aside the contract or enjoin its performance, but predicated their right of action, in part, on the contractor’s failure to comply with the contract, plans and specifications, it was proper for the trial court to sustain a demurrer to an answer drawn under §8710 Burns 1914, Acts 1909 p. 412, providing that any suit to enjoin the performance of such contracts must be brought within ten days from the time the contract is executed, p. 84.</p> <p>2. Municipal Corporations. — Public Improvements. — Action to Set Aside Assessment Roll. — Answer.—Sufficiency. — Contractor’s Bond. — In an action by property owners to set aside the assessment roll for a street improvement and to enjoin the enforcement thereof, where the complaint alleged failure to comply with the contract, plans and specifications, it was no defense that the contractor had given a bond to the city requiring it to keep the street in repair, as such bond would not protect plaintiffs as to faulty construction or materials, p. 84.</p> <p>3. Municipal Corporations. — Public Improvements. — Action to Set Aside Assessment Roll. — Allegations of Fraud. — Sufficiency. —In an action by property owners to set aside the assessment roll for a street improvement and enjoin enforcement, held that it was not error for the trial court to overrule defendant’s motion to make the complaint more specific by requiring plaintiffs to set out the acts constituting the fraud of which complaint was made. p. 85.</p> <p>4. Appeal.- — Review.—Conclusions of Law. — Exceptions.—Effect. —An exception to the correctness of conclusions of law proceeds upon the theory that the facts upon which the conclusions were based were fully and correctly found, but that no fact or facts have been found by the court upon which the conclusions may be legitimately based, p. 85.</p> <p>5. Municipal Corporations. — Public Improvements. — Action to Set Aside Assessment Roll. — Conclusions of Law. — Findings.— Sufficiency. — In an action by property owners to set aside the assessment roll for a street improvement, held that the findings were sufficient to sustain conclusions of law that the work was accepted without authority of law; that the assessment roll was illegal and void and should be set aside; that the assessments were void and should be set aside and the collection thereof enjoined; that the action of the board of public works in adopting the primary assessment roll and all subsequent acts based thereon were void; and that such conclusions of law are sufficient to support a decree setting aside the assessment roll and enjoining the enforcement thereof, p. 86.</p> <p>6. Appeal. — Review.—Harmless Error. — Conclusions of Law.— That part of the conclusions of law are erroneous will be deemed harmless, where the judgment or decree is not based upon the conclusions which are erroneous, p. 86.</p> <p>7. Appeal. — Briefs.—Sufficiency.—Points and Authorities. — Théstatement in appellants’ brief under points and authorities: “The court erred in overruling appellants’ motion for a new trial, (a) The decision of the court is not sustained by sufficient evidence, (b) The decision of the court is contrary to law. (c) An assessment roll prepared by the city without property owners having any part in such preparation, is not proper evidence of the title to plaintiff to the property contained in said assessment roll” — is not in compliance with "Rule 22, cl. 5, of the Appellate Court, and is insufficient to present any question for review, p. 88.</p>

<p>From Jefferson Circuit Court; Francis M. Griffith, Judge.</p> <p>Action by Harold Heath and another against Robert Benham. From a judgment for plaintiffs, the defendant appeals.</p>

<p>Master and Servant. — Workmen’s Compensation Act. — Delay in Giving Notice of Injury. — Right to Compensation. — Where an employe sustains an injury resulting in total temporary disability entitling him to compensation under §31 of Workmen’s Compensation Act (Acts 1915 p. 392, §80201 -et seq. Burns’ Supp. 1918), as amended Acts 1919 p. 158, failure to give notice until after the expiration of the thirty days allowed by §22, as amended by Acts 1919 p. 158, merely postpones the time when payment of compensation begins, and does not bar the employe’s right to any portion of the compensation, where the employer is not prejudiced by the delay in receiving notice.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by David- Dolby against the Indiana Manufacturers’ Reciprocal Association and another. From an award for applicant, the defendants appeal.

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by the Doak Company against John C. Brown. From a judgment for plaintiff, the defendant appeals.</p>

From Morgan Circuit Court; N'athan A. Whitaker, Judge. Action by Margaret J.' Lowry against the Indianapolis Traction and Terminal Company. Judgment for plaintiff, and defendant after term filed an application for new trial. From a judgment awarding new trial, the plaintiff appeals.

<p>From Johnson Circuit Court; Fremont Miller, Judge.</p> <p>Action by Gertrude V. Watson against Leo C. Tracy and others. From the judgment rendered, the plaintiff appeals.</p>

<p>Evidence. — Admissibility.—Pa/rol Evidence of Contests of Letter. —In an action against tenants for possession of real estate and for damages for -unlawful detention, parol evidence of the contents of a letter written, by one of the defendants to plaintiffs’ grantor, who had leased the property to defendants, and who, considering the letter of no value, destroyed it, held admissible; the evidence though conflicting, being sufficient to support a finding that the letter had been writen and that it had been destroyed by the recipient without fraudulent design.</p>

From.Morgan Circuit Court; Alfred M. Bain, Judge. Action by Tecumseh S. McNaught against Thomas E. McNaught and others, in which defendants filed a cross-complaint against plaintiff individually and as executor of the estate of Thomas A. McNaught, deceased. From the judgment rendered, defendants appeal.

<p>From Newton Circuit Court; C. W. Hanley, Judge.</p> <p>Action by Alvia B. Light against Angie Stewart Doolittle and another. From a judgment for defendants, the plaintiff appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Sylvin Rogers against James Hadley and Samuel W. Roe. From an award for applicant, the first-named defendant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Erma Hardesty and others against the Pioneer Coal Company. From an award for applicants, the defendant appeals.

<p>1. Insurance. — Life Insurance. — Application. — Substantial Truth of Answers. — Representations.—Where an application for life insurance provided that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, answers to questions contained in the application are representations need be only substantially true. p. 217.</p> <p>2. Insurance. — Life Insurance. — Truth of Representations.— Jury Questions. — In an action on a life policy, the question whether representations made by insured in his application for insurance are substantially true, is, for the jury. p. 217.</p> <p>3. Trial. — Findings of Fact. — Conclusions of Law. — In an action on a life policy involving the question whether insured made false statements in response to questions contained in the application, the court’s finding that insured made no false or fraudulent statement or answer, held, not a conclusion of law to be disregarded in construing the special finding, but a finding of fact to be considered in determining the correctness of the conclusions of law. p. 218.</p> <p>4. Insurance. — Life Insurance. — Application.—Falsity of Answers. — Burden of Proof.- — Failwre to Find. — Effect.—In an action on a life policy which provided that statements made by insured in the application should be deemed representations and not warranties, in the absence of fraud, the burden was on the insurer to prove fraud on the part of the insured, and the failure of the court to affirmatively find fraud in respect to such statements was equivalent to a finding against the insurer on that issue, p. 218.</p> <p>5. Insurance. — Life Insurcmce. — Application.—Finding that Answers Were not False. — Effect.—In an action on a life policy involving the question whether insured made fraudulent statements in the application, the court’s finding that the statements and answers of insured were not false and fraudulent held equivalent to a finding that they were at least substantially true, such answers and statements constituting representations under the terms of the policy, p. 219.</p> <p>6. Insurance. — Life Insurance. — Avoidance of Policy. — Substantial Truth of Representatives. — A representation made in an application for life insurance which is substantially true is not sufficient ground for the avoidance of the policy, p. 219.</p> <p>7. Insurance. — Life Insurance.- — Waiver of Conditions. — Payment of Premium.- — Delivery While Insured was in Good Health. —A provision that a life policy should not take effect unless the premium was paid and the policy was delivered while the insured continued in good health was made for ■ the benefit of the insurer and could be waived by it. p. 222.</p> <p>8. Insurance. — Life Insurance. — Waiver of Conditions. — Delivery While Insured was in Good Health. — Where an insurance agent delivered a life policy and accepted the premium with full knowledge that insured was ill, notwithstanding the offer of insured to postpone payment of premium and acceptance of the policy until he should recover, and insurer’s general state agent, after having been informed by such agent that the policy had been delivered when insured was ill, accepted the premium, thereby ratifying the acts of the local agent, a provision of the policy that it should not take effect until delivered while insured continued in good health was waived, p. 222.</p> <p>9. Insurance.- — Life Insurance. — Policy Provisions. — Construction. — Delivery to Applicant During “Continuance in Good Health”. — Avoidance of Policy. — The provision in a life policy that the policy should not take effect unless the first premium shall have been paid and the policy shall have been delivered to the applicant and during his “continuance in good health” implies that the applicant was in good health when the application was made, and refers solely to a change in condition of health after the making of the application and medical examination. p. 222.</p> <p>10. Insurance. — Life Insurance. •— Policy. — Construction. — “Good Health". — The words “good health” as used in life policies generally mean the absence of any vice in the constitution and of any disease of a serious nature that has a direct tendency to shorten life; that is, the absence of a condition of health that is commonly regarded as a disease in contradistinction of a temporary ailment or indisposition, p. 224.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Laura A. Wertz against Frank Reynolds and another. From an award denying compensation, the applicant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Nellie Winkle against the Mansfield Engineering Company. From an award of compensation the defendant appeals.

<p>1. Appeal. — Review.—Ruling on Motion for Judgment on Interrogatories. — Scope of Review. — In reviewing the action of the trial court in overruling defendant’s motion for judgment upon the jury’s answers to interrogatories, the court on appeal can consider only the pleadings, the verdict and the answers to interrogatories, p. 241.</p> <p>2. Trial. — Verdict.—Scope.—A general verdict for plaintiff is a finding in his favor on all material issues, p. 241.</p> <p>3. Railroads. — Interwrban.—Crossing Accidents. — General Verdict. — Jury’s Answers to Interrogatories. — In an action by a passenger in an automobile to recover for injuries sustained in a collision with defendant interurban company’s car on a highway crossing wherein plaintiff relied on the doctrine of last clear chance, answers by the jury to special interrogatories that plaintiff was negligent up to the time of the accident, and that after the motorman discovered the perilous situation of plaintiff it was not possible to have stopped the car and thereby avoided hitting the automobile, held not in irreconcilable ■conflict with the general verdict for plaintiff, since the finding that the car could not be stopped in time to have avoided striking the automobile was not a finding that the motorman could mot have stopped the car after striking the automobile before injuring plaintiff; the automobile having been carried across the road and crushed against a telephone pole, at which time plaintiff sustained her injuries, p. 241.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Cecil Weirick and others against the General American Tank Car Corporation. From an award for applicants, the defendant appeals.

From the Industrial Board of Indiana. Proceeding for compensation under the Workmen’s Compensation Act by Vernie Thomas against the Northern Indiana Gas and Electric Company. From an award for applicant, the defendant appeals.

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Effie Helman against Mary I. Huntington and others.. From a judgment for plaintiff, the defendants appeal.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Mary B. Miller and others against the S. J. Peabody Lumber Company and others. From an award for applicants, the defendants appeal.

<p>1. - Appeal. — Review.—Judgment.—Inadequate Award of Damages. — Scope of Review. — In an action to recover damages resulting from a sale of hogs alleged to have been diseased, a verdict for plaintiffs was a decision in their favor upon all the issues involved, so that plaintiffs cannot on appeal urge a reversal under error assigned on the overruling their motion for a new trial on any ground which does not relate to the amount of the damages assessed, p. 256.</p> <p>2. Trial. — Refusal of Instructions. — Abstract Propositions of Law. — It is not error to refuse to give an instruction which is a mere abstract proposition of law. p. 256.</p> <p>3. Trial. — Refusal of Instructions. — It is not error to refuse requested instructions where the subject-matter thereof is covered by instructions given, p. 256.</p> <p>4. Damages. — Proof Required. — In an action to recover for injury to hogs from cholera, where the evidence as to resulting damages to plaintiffs’ land was such that an assessment of such damages would have been based on mere conjecture, that element of damage could be ignored, p. 257.</p> <p>5. Appeal. — Review.—Verdict for Nominal Damages.- — Where, in an action for injury to hogs from cholera, the jury found for plaintiffs and assessed their damages at $1, if the record discloses any explanation consistent with the presumption that the jurors have done their duty in view of the evidence and in accordance with the instructions, the court on appeal will adopt that explanation, p. 258.</p> <p>6. Sales. — Sale Defined. — A sale is the transfer of the title to property for a price estimated in money, p. 260.</p> <p>7. Costs. — Actions not Arising' Out of Contract. — Costs Recoverable. — Statutes.—In an action for injury to hogs from cholera, plaintiffs’ request for an instruction that there was no contract because §3273 Burns 1914, Acts 1913 p. 333, made it unlawful to offer hogs for sale within four weeks after vaccination with cholera virus committed plaintiffs to the theory that the action did not arise out of contract, so that, under §619 Burns 1914, §592 R. S. 1881, no more costs than damages could be recovered where the verdict was for a less amount than $5. p. 260.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Jacob Shoemaker against the Indiana Railways and Light Company. From a judgment for defendant, the plaintiff appeals.</p>

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

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Clarence N. Karst against the Wasmuth-Endicott Company. From an award for applicant, the defendant appeals.

<p>From Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by Nicholas J. Lux against the Indianapolis Electric Supply Company and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Orange Circuit Court; James L. Tucker, Judge.</p> <p>Action by Cornelius Newkirk against Mark Wheeler and another. From a judgment for plaintiff, the defendant named appeals.</p>

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Phil H. Adler and others against the Board J of Commissioners of Boone County. From a judgment for plaintiffs, the defendant appeals.</p>

From Huntington Circuit Court; Robert M. VanAtta, Special Judge. Action by the Herman Tapp Construction Company and others against George W. Paul, commissioner, and others. From the judgment rendered, the plaintiffs appeal.

From Green Circuit Court; Thomas Van Buskirk, Judge. Action by the Sullivan Loan and Trust Company against Joel Bailey, the Pocket Oil and Gas Company and others, in which defendants filed cross-complaints. From a judgment for plaintiff and defendant oil company, the remaining defendants appeal.

<p>Sales. — Property Procured by Fraud. — Fights of Innocent Purchaser. — Where vendor sold an automobile to a stranger and accepted in payment therefor a check which was a forgery, he was not entitled to recover the automobile from one who purchased it from the forger in good faith for a valuable consideration, and without knowledge of the fraud perpetrated by the forger, since where one of two innocent persons must suffer by the acts of a third person, he who has enabled the third person to occasion the loss must sustain it.</p>

<p>1. Public Lands. — Public Grants. — Construction.—Public grants are to be construed strictly and nothing passes by implication, and this is especially true where the right claimed tends to impair the state’s power to exercise its ordinary governmental functions, or to suspend its powers 'of improving and rendering safe an important line of travel, p. 327.</p> <p>2. Counties.- — Conveyance of Land Held for Highway Purposes. —Reversionary Right to Fee in Highway. — A deed by a county, conveying a strip of land by definite bounds, which strip was part of a larger strip of land held for highway purposes and for the abutment of a bridge, held not to convey any reversionary right in the fee to the center line of the entire strip, nor to any special interest therein, p. 327.</p> <p>3. Easement.- — Easements by Prescription. — Acquisition of Right Against Government. — No prescriptive right can be obtained against the government nor county as to land held for the public, and the owner of land abutting an embankment used for a highway leading to a bridge could not obtain by prescription the right to have the embankment remain as a protection to his lands against flood waters or as a means of ingress and egress to his property, p. 327.</p> <p>4. Eminent Domain. — Removal of Embankment by County. — - Exposure of Abutting Lands to Floods. — Landowner’s Right to Damages. — Where a county removed an embankment, upon which was a road leading to a bridge, when constructing a new bridge, resulting in the loss of protection to adjacent lands from flood waters and of a means of ingress and egress to such lands, the owners thereof were not entitled to recover for the consequential damage sustained as an incident to the improvement, p. ,329.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Arnold Darsch against the Thearle Duffield Fire Works Display Company. From an order denying claimant compensation, he appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by John Reisinger against the Bucyrus Company and others. From an award for applicant, the defendant appeals.

<p>From Marion Circuit Court (31,192) ; Harry O. ■Chamberlin, Judge.</p> <p>Action by Harry C. Brown against George W. Galvin. From a judgment for plaintiff, the defendant apeals.</p>

<p>1. Appeal. — Questions Presented. — Denial of Temporary Injunction. — Failure to Incorporate Evidence in Record. — Where appellant failed to make the evidence a part of the record, no question is presented as to alleged error of the trial court in denying him a temporary injunction, and in dissolving a temporary restraining order after notice was given and a hearing had. p. 375.</p> <p>2. Frauds, Statute of. — Applicability.—Contracts for the Sale of Real Estate. — Under §7462 Burns 1914, §4904 B. S. 1881, a contract for the sale of real estate, to be enforceable, must be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, p. 375.</p> <p>3. Specific Performance. — Contract for Sale of Real Estate. —Desco'iption.—Parol Evidence. — Admissibility.—In an action for the specific performance of a contract for the sale of real estate which was incorrectly described as regards the city in which it was situated, where the complaint alleged that the error in description was due to mistake, but did not seek reformation of the contract, held that parol evidence was not admissible to establish the facts alleged with reference to the mistake in description, pp. 376, 377.</p> <p>4. Evidence. — Contracts for Sale of Real Estate.- — Incomplete Description. — Parol Evidence. — Admissibility.—Parol evidence may be received to complete a description and identify property covered by a contract of sale where the description given is consistent, but incomplete, but will not be received where such completion would require a contradiction or alteration of the description given, or the introduction of a new one. p. 376.</p> <p>5. Frauds, Statute of. — Contract for Sale of Real Estate.— Failure to Allege Written Contract. — Presumption.—Enforcement. — Where, in an action for the specific performance of a contract for the sale of real estate, the complaint does not allege that the contract was in writing, it is presumed that it was in parol, and specific performance cannot be enforced in the absence of allegations taking the contract out of §7462 Burns 1914, §4904 B. S. 1881. p. 377.</p>

From Daviess Circuit Court; James W. Ogdon, Judge. Action by George Daily against Zed D. Horner and Fred G. Horner, partners doing business under the name of the Horner Elevator and Mill Company, and another. From a judgment for plaintiff, the defendants appeal.

<p>1. Municipal Corporations. — Violation of Ordinance. — Maintaining Pump on Sidewalk. — Recovery for Damages to Pump. —The fact that it is a violation of a city ordinance to maintain a pump on a sidewalk will not prevent a recovery for damages to the pump from being struck by an automobile, unless the obstruction of the sidewalk was the proximate cause of the collision and resulting damages, p. 387.</p> <p>2. Negligence. — Contributory Negligence. — Jury Question.— Where there is any dispute as to the controlling facts on the question of contributory negligence, or where reasonable men might honestly differ in their conclusions, the question is for the jury. p. 387.</p> <p>3. . Municipal Corporations. — Violation of Ordinance. — Proximate Cause. — Jury Question. — In an action against the driver of an automobile for striking and damaging a gasoline pump maintained on a sidewalk in violation of a city ordinance, the question whether the obstruction of the sidewalk was a proximate cause of the collision which caused the damage, held, for the jury, and the withdrawal of that question from its consideration was reversible error, p. 387.</p>

From Daviess Circuit Court; James W. Ogdon, Judge. Action by Harry R. Lewis, administrator de bonis non of James Elmer Cross, deceased, against the American Coal Mining Company. From a judgment for plaintiff, the defendant appeals.

<p>From Huntington Circuit Court; George M. Eberhart,. Judge.</p> <p>Action by John Gesaman against Jennie Minton and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>Infants. — Contracts.—Affirmation after Arriving at Legal Age. —Conduct.—-Where an infant gave a note executed by him in payment of the annual premium on a policy of life insurance, payable to his estate, and retained possession of the policy after reaching the age of twenty-one years, his conduct amounted to a ratification of the original contract so as to make him liable on the note.</p>

<p>1. Carriers. — Contracts.—Validity.—Compensation for Services. —Pass.—Statutes.-—Where a railroad company entered into an agreement with plaintiff whereby he conveyed a right of way to the company and agreed to act as station agent for it, and in consideration the railroad agreed to issue an annual pass to plaintiff for life, if the railroad was engaged in interstate commerce, and the pass was issued as part payment for the right of way, the contract was invalid under, and the issuance of the pass prohibited by, §8563 U. S. Comp. Stat. 1918, and, if the railroad was engaged in intrastate' commerce, the issuance of the pass was prohibited by §5544 Burns 1914, Acts 1907 p. 454-. p. 418.</p> <p>2. Work and Labor. — Acceptance of Services of Station Agent. —Liability of Railroad. — Where a station agent, who had been acting in that capacity for a railroad company under a contract requiring it to give him an annual pass as compensation for his services, continued to perform his duties on the railroad’s failure to issue the pass because the management of the company had no knowledge of the contract, and such services were accepted, the railroad company became liable for the reasonable value of such services, although the railroad tendered the agent a pass, which was refused, as soon as it learned of the existence of the contract, p. 418.</p>

From Vanderburgh Superior Court; Robert J. Trace-well, Judge. Action, by the State of Indiana, on the relation of J. B. Speed and Company, against Edgar Traylor and others. From a judgment for defendants, the relator appeals.

<p>From Allen Superior Court; William N. Ballou, . Judge.</p> <p>Action by Jacob H. Feichter against Rose Swift. From the judgment rendered, the plaintiff appeals.</p>

<p>Master and Servant. — Workmen’s Compensation Act. — Loss of Fingers. — Measure of Compensation. — Where a servant sustained an injury necessitating the amputation of four fingers just beyond the knuckles, nearest the palm, and as a result lost ninety per cent, of the use of the arm below the elbow joint, such an injury justifies an award of 180 weeks’ compensation under §31, cl. h, of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), as amended by Acts 1919 p. 158, notwithstanding a clause of the same section, specifying the period of compensation for injuries resulting in the loss of fingers.</p>

<p>Work and Labor. — Services Rendered Married Daughter During Sickness by Parents. — Husband’s Liability. — While the husband is bound to support his wife, her parents cannot recover for services rendered to her when she was brought to their home to be cared for while ill where there was no thought or suggestion of pay at the time the services were rendered.</p>

<p>1. Appeal. — Review.—Ha/rmless Error. — Overruling Demurrer to Paragraph of Answer. — Error, if any, in overruling a demurrer to a paragraph of answer was harmless, where the evidence admissible under such paragraph was admissible under defendant’s general denial, p. 437.</p> <p>2. Appeal. — Review.—Fair Trial of Merits. — Disregard of Intervening Errors. — Statutes.—Under §700 Burns 1914, §658 R. S. 1881, where the merits of the cause have been fairly tried, intervening errors, if any, cannot prevail, p. 438.</p>

<p>From Greene Circuit Court; Thomas Van Buskirk, Judge.</p> <p>Action by George Price against Sadie M. Engle and another. From a judgment for defendants, the plaintiff appeals.</p>

From Newton Circuit Court; Charles W. Hanley, Judge. Action by Minnie D. Smith for a review of a judgment rendered in an action against her by the State of Indiana, on the relation of Forga A. Camblin and another. From the judgment rendered, the plaintiff appeals.

From Dubois Circuit Court ; John F. Dillon, Judge. Action by Sallie Williams, administratrix of the estate of Will Williams, deceased, against Bertram W. Hart and others. From a judgment for plaintiff, the defendants appeal.

<p>From Switzerland Circuit Court; Francis M. Griffith, Judge.</p> <p>Action by George W. Moore against Leonard E. Smith, administrator of the estate of Minnie Merhoff, deceased. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Counties. — Contracts.—Validity.—Contracts Beyond Term of Office of Commissioners. — As a general rule, contracts extending beyond the term of the office of the members of a board of county commissioners are valid, if made in good faith, p. 463.</p> <p>2. Counties. — Employment of Attorney. — Contract Extending Term of Office of Commissioneo's. — Validity.—A contract entered into between the board of county commissioners and an attorney under which he was employed to act as county attorney for a term extending beyond the time when there would be a change in the membership of the board, is void as against public policy although the contract was only for one ■ year and at the time it was executed the board did not have an attorney in its employ, p. 463.</p> <p>3. Contracts. — Contracts Void as against Public Policy. — Ratification.- — A contract which is void as against public policy is not susceptible of ratification, p. 465.</p> <p>4. Pleadings. — Complaint.—General and Special Averments.— Inconsistency. — Specific averments in a complaint, when inconsistent with the general averments, will control, and the sufficiency of the complaint will be determined from the special averments, p. 465.</p>

<p>1. Contracts. — Mutuality.—Enforcement.—An oral agreement by a vendor of real estate with persons furnishing material to the vendee that, if the vendee failed to make payments, as provided in the contract of sale, the materialmen could take over the contract and thereby protect themselves and their lien for materials, was unenforceable as a contract for the sale of real estate both because it was not in writing and because of lack of mutuality, there being no agreement by the materialmen to take the land and pay for it in event of the vendee’s default, p. 469.</p> <p>2. Mechanics’ Liens. — Agreement to Notify Lienor before Forfeiting Contract for Sale of Land. — Breach.—Liability of Vendor. — Where materialmen furnishing’ materials to a vendee of real estate for the improvement thereof filed a notice of ' their intention to hold a lien, any subsequent purchaser of the realty was bound by the notice, and the right of the material-men to foreclose the lien was not affected by the vendor’s resale of the land, so that the vendor’s breach of his agreement to notify them before forfeiting the vendee’s contract of purchase in order that they might take over such contract gave them no right of action, p. 470.</p> <p>3. Vendor and Purchaser. — Options to Sell or Purchase Real Estate. — Acceptance of Offer.- — An option to sell or purchase real estate is not a contract for such sale or purchase, and only becomes such when the offer contained in the option is accepted, until which time it constitutes a mere continuing offer in which the optionee is not bound, and the optioner is only bound to complete the sale or purchase in event of the acceptance of the offer, p. 471.</p> <p>4. ' Vendor and Purchaser. — Option to Purchase Realty.— Failure to Accept. — Sale of Property to Another. — Optionor’s Liability. — A vendor’s agreement with persons furnishing materials to the vendee of realty for the improvement thereof that if vendee defaulted in his contract of purchase they might take over the contract and protect themselves, if regarded as an option to purchase the property, gave no right of action upon the vendor’s sale to another, where there was not an acceptance of the offer by the materialmen, p. 471.</p> <p>5. Vendor and Purchaser.— Options.■ — • Acceptance.— Time. — , Where a vendor’s agreement with persons furnishing materials to the vendee of realty for the improvement thereof that, in event of the vendee’s default, they might take over the contract' of purchase, did not fix any time in which the vendor’s offer must be accepted, the materialmen were bound to accept within a reasonable time after learning of the vendee’s default, p. 471.</p> <p>6. Frauds, Statute op. — Specific Performance. — Oral Option to Purchase Lands. — Damages.■—-An oral option to purchase lands, even if accepted, will not afford a basis for a decree of specific performance nor for an action for damage in event of its breach, since such contracts are within the statute of frauds and must be in writing, p. 471.</p> <p>7. Frauds, Statute op. — Oral Contract to Purchase Real Estate. —Payment of Purchase Price. — Refusal to Perform. — Recovery. —One who accepts an oral option to purchase realty and pays part of the purchase price may recover it if the vendor refuses to perform his part of the contract because unenforceable under the statute of frauds, p. 472.</p> <p>8. Frauds, Statute op. — Oral Option to Purchase Real Estate. —Consideration.—Value of Lien Waived. — Optionor’s Refusal to Perform. — Where a vendor orally agreed that if persons furnishing materials to the vendee of realty for the improvement thereof would waive their right to foreclose their lien they might purchase the property, in event of default' by the vendee, for the unpaid balance of his contract, and nothing was ever paid on the unpaid balance by the materialmen, they could recover nothing on the vendor’s refusal to perform the oral agreement, as the waiver of the right to foreclose the lien was the consideration of the option, and not a part of the purchase price, in the absence of any provision that it was to be a part thereof, p. 472.</p>

<p>From Marion Criminal Court (51,567) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Charles F. Wiggins. From a judgment of conviction, the defendant appeals.</p>

<p>From Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by Margaret Hartman and others against Carl Van Laningham. From a judgment for plaintiffs, the defendant appeals.</p>

From Hendricks Circuit Court; James P. Hughes, Special Judge. Proceeding in the matter of the estate of Elisha D. Beard, deceased. From a judgment distributing the estate, Charles E. Edwards, administrator of the estate of Mabel Smith, deceased, appeals.

<p>From Laporte Superior Court; H. L. Crumpaeker, Judge.</p> <p>Action by Rosa M. B. Hitt and others against Drusilla Carr and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>From Whitley Circuit Court; Edward O’Rourke, Special Judge.</p> <p>Action by Bertha V. Stenger against the Metropolitan Life Insurance Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Charles McClellan against Samuel N. Finch and another, as partners, wherein the named defendant died before trial and Ira A. Finch, administrator of his estate, was substituted as a party defendant. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Bills and Notes. — Promissory Note. — Execution by Wife in Trust for Husband. — Defenses as against Indorsee. — That a note and mortgage was executed by a married woman to a third person in trust for her husband and not otherwise, the fulfillment of the trust being the only consideration therefor, and that there was a failure of consideration, is not a defense, in an action on the note, as against an indorsee who is a holder in due course, p. 553.</p> <p>2. Appeal.- — Burden of Showing Reversible Error. — The burden is on appellant to show reversible error, p. 553.</p> <p>3. Appeal.- — Questions Presented.- — Overruling Demurrer. — Absence of Pleadings and Evidence from Record. — When the complaint and the evidence is not in the record, the court on appeal cannot say that the • trial court erred in overruling a demurrer to a reply, especially when the answer to which the reply is addressed does not necessarily contain facts sufficient to bar a recovery under all circumstances, p. 553.</p>

<p>1. Pleading. — Reply.—Departure.—Action to Recover Possession of Real Estate. — In an action to recover possession of real estate, where the complaint alleged a lease of lands for one year, and that the tenancy expired on a specified date, and defendant by answer set up a written lease which contained nothing as to the extent or duration of the tenancy, a reply, admitting the written lease and averring that at the time of the execution thereof it was agreed that the tenancy should be for one year only, but that provision was omitted from the lease by mutual mistake, and asking for reformation, was not demurrable on the ground that - it set up new matter inconsistent with the complaint, p. 555.</p> <p>2. Appeal. — Review.—Harmless Error. — Reply.—Good Averments Sufficient to Meet Answer. — In an action to recover possession of real estate, where the complaint alleged a lease of lands for one year, and that the tenancy expired on a specified date, and defendant by answer set up a written lease which contained nothing as to the extent or duration of the tenancy, a reply that at the time of the execution of the lease it was agreed that the tenancy should he for one year only, but that such provision was omitted from the lease, and asking for reformation, was sufficient to meet the averments of the answer without the prayer for reformation, and error, if any, in overruling a demurrer to such reply on the ground that it set up new matter inconsistent with the complaint in asking reforma- ' tion of the written contract, was, therefore harmless, p. 555.</p> <p>3. Evidence. — Written Lease.- — -Omission of Duration of Tenancy by Mistake. — Proof by Parol. — Where a written lease of realty was complete, except that it contained no provision as to the duration of the tenancy, parol evidence, in an action by the lessor for possession, was admissible to complete the contract by showing the agreement of the parties as to the time of the termination of the lease, and to show that the omission fixing the term of the tenancy was the result of a mutual mistake of the parties, p. 557.</p> <p>4. Appeal . — Briefs.—Questions Presented. — Failure to Show Filing of Bill of Exceptions. — Where appellant by his motion for new trial attempts to present questions as to the evidence, but his brief fails to show the filing of a bill of exceptions containing the evidence, such questions are not presented for review on appeal, p. 557.</p>

<p>From Marion Criminal Court (51,566) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Paul Beckley. From a judgment of conviction, the defendant appeals.</p>

From Henry Circuit Court; Fred C. Gctuse, Judge. Action by Clara Freeman Vickery, administratrix de bonis non of the estate of Henry C. Freeman, deceased, against Horace L. Hardin, in which Leo Todd, by next friend, and John C. Hardin were admitted as parties. From a judgment for Leo Todd, the plaintiff appeals.

From Delaware Circuit Court; W. A. Thompson, Judge. Proceedings in the matter of the tax assessment against Lucetta Hinton by James P. Drágoo, auditor of Delaware county and others. From a judgment of the circuit court sustaining the tax assessment, Hinton appeals.

<p>Appeal. — Briefs.—Sufficiency.-—Presenting Questions for Review. - — Constitutionality of Statutes. — On appeal by the ward from a judgment appointing a guardian for her, where the error relied on was that the court erred in appointing a guardian, no question as to the constitutionality of certain sections of the statutes involved is presented, where appellant’s brief fails to set out the complaint, so that the court on appeal cannot say without searching the record what averments it contained, or that by it appellee was seeking to invoke any specific statutory power of the trial court.</p>

<p>Set-Off and Counterclaim. — Equitable Set-Off. — Plaintiff’s Insolvency. — Bight to Belief. — In an action to recover the balance due on a contract, a set-off of a claim against a partnership of which plaintiff was a member, where there was no mutuality between such claim and the matter in action, was not allowable as an equitable set-off for the insolvency of plaintiff, there being no showing that the other members of the partnership were insolvent.</p>

<p>1. Trusts. — Creation.—Funds Raised by Popular Subscription for Child. — Where contributions from the general public collected by a number of persons for a child were deposited with an aid association under a written contract obligating the association to invest and expend the fund for the use and benefit of the child, held that the association became a trustee of the fund to invest and hold it for the uses and purposes set forth in the contract, p. 580.</p> <p>2, Trusts. — Funds Raised by Popular Subscription for Child. ■ — Power of Collectors to Create Trust. — Where several persons and newspapers collected contributions for the benefit of a child from a large number of persons who gave no specific directions as to the use or disposition of the money, they were agents of the contributors for the final disposition of the fund and had" authority to create a trust for the child’s benefit; the contributions not constituting a gift inter vivos to the child entitling the guardian to custody of the fund as being the property of the ward. p. 581.</p> <p>8. Principal and Agent. — Authority of Agent. — Presumptions. —The act of an agent being legal, his authority to do that act will be presumed until directly challenged, p. 581.</p> <p>4. Trusts. — Funds Raised by Popular Subscription for Child. —Contract of Trust. — Right to Challenge.- — Where a fund was raised by popular subscription for the benefit of a child, and the collectors placed the money in the hands of a trustee under contract to expend it in a certain manner, no one except the donors may complain as to such contract of trust, in the absence of misconduct on the part of the trustee, p. 581.</p> <p>5. Trust s. — Creation.-—Statutes.—Scope and Applicability.— Sections 4012-4040 Burns 1914, §§2969-2997 E. S. 1881, providing how trusts shall be created, apply only to trusts in real estate, and not to a trust created by the collectors of a fund for the education and maintenance of a child, p. 582. .</p>

<p>1. Appeal. — Review.—Ruling Sustaining Demurrer to Complaint. — Scope of Review. — The rule that a party demurring to a complaint waives all objection not set out in the memorandum accompanying the demurrer, and cannot avail himself on appeal of defects not so pointed out, does not apply where the demurrer has been sustained, p. 586.</p> <p>2. Railroads. — Injuries to Children on Tracks. — Attractive Nuisance Doctrine. — Applicability.—Where a child, playing about a pile of sawdust near the tracks of a railroad company and on its right of way, wandered upon the tracks and was killed, the attractive nuisance doctrine does not apply to the father’s action for wrongful death, as the child was not injured by reason of the sawdust, p. 591.</p> <p>3. Negligence. — Injuries to Children upon Premises of Another. —Liability of Owner. — A landowner is not liable for injuries to a child coming upon his premises unless he owes to the child, or to the person prosecuting the action, a duty which he has neglected, the primary duty of protecting children devolving upon their parents, whose moral duty it is to keep their children from entering upon dangerous premises, an obligation equal at least to the moral obligation of the landowner to fence them out; and the mere fact that a child non sui juris is injured will not import negligence to the owner of the premises upon which the injury is sustained, p. 593.</p> <p>4. Railroads. — Trespassers and Licensees. — Duty of Railroad Companies.- — Generally, the only duty which a railway company owes to trespassers and licensees upon its right of way and tracks is not to willfully or wantonly injure them after discovering their presence, p. 596.</p> <p>5. Negligence. — Infant Trespassers. — Attractive Nuisance and Last Clea/r Chance Doctrines. — Duty of Owner. — Under the attractive nuisance and last clear chance doctrine a duty may arise from the fact of the presence of a child of immature years in a situation of peril coupled with knowledge, actual or constructive, of the owner of the premises on which the child is situated of the . perilous situation of the child, and knowledge in such cases imposes on the owner the duty to exercise reasonable care in the use of his property so as not to injure the child, p. 598.</p> <p>6. Railroads. — Children on Tracks.- — Duty of Railroad Company. — A railway company owes no higher duty to an infant trespasser on its tracks than it does to an adult trespasser, even in the matter of the exercise of care to discover his presence on the track, and owes no duty to keep a lookout for his presence, in the absence of any knowledge thereof, but does owe to each of them the duty of ordinary care after it has actual or constructive knowledge of such presence, and ordinary care may require care of a different kind and degree where a child of tender years is involved, p. 598.</p> <p>7. Negligence. — Invitation.—Permission or License. — A mere permission or license to go upon the premises of another is not an invitation to do so. p. 598.</p> <p>8. Railroads. — Children on Tracks. — Duty of Railroad Company. — Ordinary Care. — Where the person on the track is a ■ child non sui juris, the railroad company, having knowledge, actual or constructive, of its presence and of its helplessness, must operate its cars with reference to the probable presence of such child and its helplessness, and use ordinary care to avoid injuring it, and in such case make use of the last clear chance, but reasonable care does not impose any duty where the presence of a child on its tracks is merely possible, or where such duty or care imposes on the company an unreasonable limitation on the usual and ordinary uses of its property, p. 599.</p> <p>9. Death. — Death of Child. — Contributory Negligence of Parents. — Right to Recover. — The unattended presence of a child nineteen months old upon railroad tracks in the vicinity of a pile of sawdust, where it had been playing, held, if -unexplained, to constitute such carelessness on the part of the parents as to prevent recovery by them for its death when struck by a train, p. 600.</p> <p>10. Death. — Wrongful Death. — Defenses.—Contributory Negligence. — In an action by a parent for the death of a child nineteen months old on a railroad track, as a matter of pleading the simple fact that a child of tender years was found in a place of danger was not presumptive evidence of any negligence on the part of the parents, since, if plaintiff did or failed to do something that a reasonably prudent person should or should not have done for the protection of the child, that was. a matter of defense, p. 601.</p> <p>11. Pleading.- — Complaint.-—Negligence.—Conclusions of Law.- — • In an action against a railroad company for the death on its tracks of a child nineteen months old, an allegation in the complaint that “it became and was the duty of” the railroad company “in operating its train at said point to keep a careful lookout so as to discover the presence of children of tender years who might wander or go upon its tracks and to avoid running its trains over them,” was a conclusion of law rather than the allegation of a fact. p. 602.</p> <p>12. Railroads. — Injuries to Children on Tracks. — Duty of Railroad Company. — Keeping a Lookout. — A railroad engineer had the right, in the absence of any notice or knowledge to the contrary, to assume that the parents of immature children, playing around a pile of sawdust upon the right of way of a railroad company and near its tracks, were not permitting such children to go into a place of danger unattended, and if he had seen and knew that children of immature age were accustomed to gather and play around the pile of sawdust, he had the right to assume that their parents were not neglecting them and that some one of proper age was present to look after and care for them, and he was under no duty to the parents to keep a lookout for a child, or to slacken the train until after he became aware of the perilous situation of the child, p. 604.</p>

From Marion Superior Court (A6,785) ; Linn D. Hay, Judge. Action by the State of Indiana, on the relation of E. C. Stansbury, Attorney-General, against George Scott and another. From the judgment rendered, the named defendant appeals.

<p>From Lagrangé Juvenile Court; Thomas -A. Davis, Judge Pro Tem.</p> <p>Prosecution by the State of Indiana against William Miller. From a judgment of conviction, the defendant appeals.</p>

<p>From Dubois Circuit Court; John L. Dillon, Judge.</p> <p>Action by George A. Kemp against Elijah “Boss” Whitten. From a judgment for plaintiff, the defendant appeals.</p>

From Pike Circuit Court; John F. Dillon, Judge. Action by John W. Scales against Elijah Roy in which judgment was rendered for plaintiff. Defendant’s motion to set aside the judgment was denied, and he appeals.

<p>From Starke Circuit Court; Oscar B. Smith, Special Judge.</p> <p>Action by Jeremiah W. Dowd against Emery Andrews and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From the Marion Superior Court (A713) ; Theophilus J. Moll, Judge.</p> <p>Action by Sarah E. Beaman against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Edna Crenshaw and others against the American Coal Mining Company. From an award for applicants, the defendant appeals.

<p>1. Appeal. — Record.—Motion for New Trial. — Sufficiency.—In an action to quiet title against three defendants against whom judgment was rendered, a motion for new trial on behalf of one of them, which designated him in the. introductory part as “the defendant,” was not insufficient to authorize a review of the ruling on the motion, where that defendant’s name alone appeared as defendant in the caption of the motion, p. 655.</p> <p>2. Appeal. — Record.-—-Motion for New Trial. — Sufficiency.— That the signature of defendant’s attorney to defendant’s motion for new trial was followed by the words “Attorney for Plaintiff” could not have harmed plaintiff in anyway, and does not prevent a consideration on appeal of ■ the questions presented by the motion, p. 655.</p> <p>3. Deeds. — Deed and Contract. — Simultaneous Execution. — Construction. — Where a deed conveying land to two grantees was executed at the same time as a contract between the grantor and grantees obligating the latter to pay and discharge a mortgage debt against the property, etc., the deed and contract will be construed together, p. 657.</p> <p>4. Deeds. — Conditions Subsequent. — Construction.—A provision in a contract that an estate conveyed by deed executed at the same time should be forfeited by failure of grantees to perform conditions subsequent, will be strictly construed, as conditions subsequent are not favored in law. p. 657.</p> <p>5. Tenancy in Common__Forfeiture of Cotenant’s Interest.— Nonpayment of Indebtedness Assumed.■ — Contract.—Construction. — Where a contract, executed simultaneously with a deed conveying realty to two grantees who agreed to assume and pay the mortgage indebtedness against the property, and also all taxes and assessments thereon, provided that, if either grantee should fail to pay hife half of the mortgage indebtedness, his estate should be forfeited to the party paying it, the grantee who paid the interest and taxes, but who failed to discharge the mortgage indebtedness, cannot have declared a forfeiture of his cotenant’s interest upon the latter’s failure to pay his half of such indebtedness, p. 658.</p>

<p>1. Appeal. — Questions Revieivable. — Motion to Dismiss. — Waiver by Petition for Extension of Time.- — Where appellees, as required by the rules of court, stated in their petition for an extension of time within which to file their brief that the brief would be upon the merits of the cause and that no motion to dismiss the appeal would be filed, they waived any right to thereafter file such a motion, p. 660.</p> <p>2. Judgment. — -Motion to Arrest. — -Filing after Entry of Judgment. — Re-entry of Judgment. — Where the trial court rendered judgment, and it was never set aside or annulled, nor was there ever any motion filed seeking such action, a judgment subsequently entered was a nullity, and a motion in arrest of judgment filed subsequently to the first judgment was too late. p. 660.</p> <p>8. Appeal. — Matters Reviewable. — Consideration of Evidence.— Failure to Incorporate Bill of Exceptions into Record. — In the absence from the record of a bill of exceptions containing the evidence, questions necessitating a consideration of the evidence cannot be reviewed on appeal, p. 661.</p> <p>4. Exceptions, Bill op. — Filing.—Extension of Time Beyond Term. — Grant of Time. — An extension of time beyond the term within which to file a bill of exceptions containing the evidence must be granted when the motion for new trial is overruled in order to make the evidence part of the record, p. 661.</p>

<p>From Henry Circuit Court; Fred C. Gause, Judge.</p> <p>Action by Daniel S. King'and others against Maria King and another. From a judgment for plaintiffs, the defendants appeal.</p>

<p>From Vanderburgh. Superior Court; Robert J. Trace-well, Judge.</p> <p>Action by Zula Angel against the Western and Southern Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Railroads. — Interurban.—Crossing Accidents. — Negligence.— Failure to Maintain Signal Device. — In an action against an interurban railroad company for injuries sustained in a crossing accident, allegations in the complaint that it was defendant’s duty to install and maintain a signal device to warn travelers on the highway of the approach of cars, held insufficient to charge the defendant with negligence, in the absence of any showing that defendant was under a duty to install such device, p. 673.</p> <p>2. Railroads. — Interurban.—Crossing Accidents. — Contributory Negligence. — Duty of Passenger in Vehicle. — Though:one riding .in an automobile be simply a guest, where he has the opportunity to do so, it is no less his duty than it is the duty of the'driver, when approaching a railroad crossing, to look and listen to discover an existing peril and to avoid it if practicable. p. 674.</p> <p>8. Railroads.- — Interurban.—Crossing Accidents. — Instructions. —Contributory Negligence. — Duty of Passenger in Automobile. • — -In an action against an interurban railroad company for injuries sustained by an automobile passenger in a crossing accident, the giving of an instruction as to the duty of a passenger to use reasonable care for his own safety, stating that in circumstances of great and sudden peril, meddlesome interference with the driver may be disastrous, and inaction of a passenger is not in every case contributory negligence, held not reversible error, p. 675.</p> <p>4. .Negligence. — Negligence of Automobile Driver. — Imputing to Passenger. — The negligence of the driver of an automobile cannot be imputed to an occupant of the car who has no control over its operation, p. 676.</p> <p>5. Railroads. — Crossing Accidents. — Contributory Negligence.— Duty of Passenger in Automobile. — A passenger or guest in an automobile approaching a railroad crossing is under a duty to exercise vigilance in his own behalf, and to warn the driver of a train which, in the exercise of reasonable diligence, he sees approaching, p. 676.</p> <p>6. Railroads. — Interurban.—Crossing Accidents. — Negligence.-— Failure to Install Warning Signal. — Instructions.—In an action against an interurban company for injuries sustained in a crossing accident, instructions pertaining to defendant’s duty as to installing devices to give warning of the approach of cars which authorized the jury to infer negligence from failure to install such devices, without any reference to the speed at which the car was being run or to the manner in which it was being operated, or to the frequency with which travelers passed over the crossing, held erroneous, p. 677.</p> <p>7. Trial. — Instructions.—Applicability.—In an action against an interurban railroad company for injuries sustained by an occupant of an automobile in a crossing accident, instructions as to defendant’s duty to install warning devices at the crossing which referred to obstructions to a view of the crossing not mentioned in the complaint, held erroneous, p. 679.</p> <p>8. Damages. — Personal Injuries.- — Measure of Damages. — Plaintiff in an action for personal injuries can only recover for such elements as are averred in his complaint and proved, p. 679.</p> <p>9. Railroads. — Interurban.—Crossing Accidents. — Negligence.— Warning Signals. — Insttructions.—In an action against an interurban railroad company for injuries sustained in a crossing accident, the refusal of' defendant’s requested instruction that there was no statutory or other law requiring defendant to install a device to warn those using a crossing of the approach of cars, and that there could he no recovery for failure to maintain such a device, held erroneous, in the absence of evidence to show that the erection and maintenance of such a device had been ordered by the board of county commissioners or the Public Service Commission, p. 679.</p> <p>10. Railroad. — Interurban.—Crossing Accidents. — Operation of Cars. — Speed.—Instructions.—In an action against an interurban railroad company for injuries sustained in a crossing accident, defendant’s requested instruction that, in the absence of statutory enactment regulating the speed of interurban cars, they may be operated at any rate of speed which best suits the company and which is consistent with the safety of passengers and commodities being transported, held properly refused because permitting the operation of cars without regard to the safety of persons using crossings, p. 680.</p> <p>11. Evidence. — Opinion Evidence. — Competency.—Operation of Interurban Cars Approaching Crossing. — -In an action against an interurban railroad company for injuries sustained in a crossing accident, in which the question whether the speed of the car should have been slackened on approaching the crossing was for the jury, admission of the opinion of a witness as to whether it was proper to slacken the speed of the car involved under the circumstances, was error, as the admission of such evidence was an invasion of the province of the jury. p. 681.</p>

<p>1. Exchange of Property. ■ — ■ Defective Goods. — Delivery to Maker for Exchange for New Goods. — Refusal of Exchange. — • Title. — Where plaintiff purchased and paid for a car load of glassware which, when inspected upon delivery, proved to be defective, and which was at the suggestion of defendant manufatcurer returned in exchange for a new shipment, which defendant failed and refused to deliver to plaintiff, held that the title to the glassware so returned remained in plaintiff, and it had the right to recover such property or its value, p. 684.</p> <p>•2. Exchange of Property. — Sales.—Distinction.—An exchange is a transfer of goods for other goods, while a sale is a transfer of goods for value estimated in money, p. 686.</p> <p>8. Exchange of Property. — Rescisión.—Measure of Recovery.— Where goods have been sold and delivered and title has passed to the buyer by reason of payment of the purchase price, and the parties agree that the goods be exchanged for other goods, and in pursuance to the agreement the buyer redelivers the goods received to the seller, but the latter fails to comply with the agreement, the buyer’s measure of recovery, in event the goods could not be restored, is the price paid on the original sale, in the absence of evidence to the contrary, p. 686.</p> <p>4. Receivers. — Preferred Claims. — Exchange of Goods. — Breach of Agreement. — Where goods have' been delivered and title passed to the buyer by payment of the purchase price, and the parties agree that the goods shall be exchanged for other goods, but the seller fails to abide by the agreement after the goods have been redelivered, the buyer, in event his goods cannot be restored, is entitled to a preferred claim against the estate of the seller in the hands of a receiver. p. 686.</p>

<p>From Johnson Circuit Court; Fremont Miller, Judge.</p> <p>Action by Loui Zeppenfeld and others against the Franklin Motor Service 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 James Washington against James N. Blair, Joseph Kerr and William Murphy, doing business under the firm name of Blair, Kerr and Murphy, in which there was an award for applicant.

<p>From St. Joseph Circuit Court; George A. Crane, Special Judge.</p> <p>Action by W. Alex Grzesk against John Kohler. 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 William Pobutkiewiez against the General American Manufacturing Company and another. From an award denying compensation, the applicant appeals.

From Grant Circuit Court; J. F. Charles, Judge. Action between the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company and another and Ida Goldsmith. From the judgment rendered, the former appeal.