Volume 78 — Indiana Appellate Court Reports

<p>From Huntington Circuit Court; George M. Eberhctrt, Judge.</p> <p>Action by Jefferson L. Bunn against Henry C. Crawford. ■ From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Review.—Harmless Eo'ror.• — Findings.—Improper ' Designation of Parties to Contract. — In an action for breach of covenant in a warranty deed,, the trial court’s finding that the president of defendant company and the president of plaintiff company entered into a contract whereby the former agreed to sell and the latter agreed to buy certain land, instead of a finding that the contract was made by them as agents, held harmless to defendant against whom judgment was rendered. p. 10.</p> <p>2. Vendor and Purchaser. — Contract for Sale of Land. — Warranty Deed. — -Breach of Covenant. — Mistake as to Quantity of Land. — Grantor’s Liability. — Where a contract for the sale of land and the deed were for land described by government subdivisions, with covenant that there should be not less than a stipulated number of acres, and the parties believed that grantor was the owner of all the land described in the contract and deed, it is immaterial, as regards liability for shortage, that when the negotiations commenced a contract was made for land described as a certain farm and that the shortage arose because of the grantor not being the owner of a strip containing 8.45 acres, within the description of the deed, but outside the fence of the farm. p. 11.</p> <p>3. Trial. — Findings.—Sufficiency.—-In an action for breach of covenant in a warranty deed, because of shortage of land, a special finding of facts held not so indefinite or uncertain that a judgment could not be rendered thereon, p. 13.</p> <p>4. Appeal.- — Review.—Disregard of Intervening Error. — Where it appears from the whole record that substantial justice has been done by the judgment rendered, no intervening error will avail in securing a reversal, p. 13,</p> <p>5. Appeal. — Review. — Harmless Error. — Findings. — In an action for breach of covenant in a warranty deed because of shortage of land, the trial court’s finding that the value of the land “is,” instead of “was,” $146 per acre, held, harmless, I where the grantor covenanted in his contract to pay the : grantee that amount for each acre that the tract conveyed should be short, p. 13.</p>

<p>From Marion Superior Court (A8,964) ; W. W. Thornton, Judge.</p> <p>Action by Calvin P. Ticen against Clark N. Elliott and others. From a judgment for plaintiff, the defendants appeal.</p>

From Marion Superior Court (A9,712) ; Arthur R. Robinson, Judge. Action by Albert Hoffmeyer against the Merchants Heat and! Light Company and another. From a judgment for plaintiff against the named defendant, it appeals.

<p>From Knox Circuit Court; Hileary Q. Houghton, Special Judge.</p> <p>■ Action by Joseph T Griggs against the city of Vincennes and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Gibson Circuit Court; Luther Benson, Special Judge.</p> <p>Action by Joe Diver, administrator of the estate of John Diver, deceased, against Ben Wieler. From a judgment for plaintiff, the defendant appeals.</p>

From Whitley Circuit Court; Arthur F. Biggs, Judge. Action by John H. LaValle and others on a claim against the estate of Isaac R. Duggins, deceased, opposed by Frank E. Fox, administrator. From the judgment rendered, the plaintiffs appeal.

<p>1. Nuisance. — Abatement.—Owner of Life Estate in Lands.— Bight to Belief. — Under §291 et seq. Burns 1914, §289 et seq. R. S. 1881, the owner of life estate in lands may maintain an action to abate a nuisance and to recover damages resulting therefrom, p. 63.</p> <p>2. Abatement and Revival. — Plea in Abatement. — Pendency of Another Action. — That another action for the same cause is pending between the parties should be presented by a plea in abatement, p. 63.</p> <p>3. Nuisance. — Licensed Fertilizer Plant. — Belief against as a Nuisance. — Statutes.—Although the state veterinarian, under §3299a et seq. Burns 1914, Acts 1913 p. 291, is charged with certain administrative duties on behalf of the state with reference to fertilizer plants, he has no judicial power, and is not authorized to determine the rights of - citizens as affected by such plants, and the granting of a license to erect and operate a fertilizer plant does not give immunity to an institution that is in fact a nuisance, nor does it hamper the courts in determining and enforcing the rights of a citizen with respect thereto, if such plant be in fact a nuisance, p. 64.</p>

<p>1. Railroads. — Crossing Accidents. — Complaint.—Certainty.— In an action for injuries sustained by plaintiff when the wagon in which he was riding was struck at an alleged defectively constructed railroad crossing by a train approaching without warning, the complaint held sufficiently certain and definite as against a motion to make more specific, p. 68.</p> <p>2. Pleading. — Complaint.—Certainty.—Motion to Make More Specific. — Where a complaint is sufficiently specific distinctly to inform defendant what it is required to meet, it is sufficient as against a motion to make more specific, p. 68.</p> <p>3. Railroads. — Crossing Accidents. — Complaint.—Sufficiency.— In an action against a railroad company for injuries in a crossing accident, a complaint, alleging that the crossing was defective, thereby making it difficult and dangerous to cross,that defendant was running its train at an excessive rate of speed without sounding the whistle or ringing the bell or giving other warning of its approach, and that plaintiff’s injuries were caused solely by such negligence and carelessness without fault on his part, held sufficient as against demurrer, p. 68.</p> <p>4. Railroads. — Crossing Accidents. — Complaint.— Sufficiency.— Contributory Negligence. — In an action for injuries in a crossing accident, where the complaint showed that plaintiff, though required to watch his team because of the defective condition of the crossing, was also looking and listening for trains, it did not necessarily sfiow contributory negligence, p. 68.</p> <p>5. Railroads. — Crossing Accidents. — Negligence.—Contributory Negligence. — Jury Questions. — In an action for injuries in a crossing accident, the question of negligence and contributory negligence held for the jury. p. 69.</p> <p>6. Railroads.- — Crossing Accidents. — Instructions. — Duty of Railroad Company. — Applicability.—In an action for injuries in a crossing accident, where the complaint -alleged, and the proof showed, that the crossing involved was rough, uneven and narrow, and the planking rotten and split, and there was evidence that the view was obstructed by an embankment, an instruction that, if the crossing was “extra dangerous,” it was the railroad company’s duty to exercise reasonable care in the operation of trains to prevent accidents, was warranted by the issues and proof, and not reversible error because of the use of the words “extra dangerous.” p. 69.</p> <p>7. Appeal. — Review.—Harmless Error. — Instruction Inapplicable to Evidence. — In an action for injuries in a crossing accident, the giving of an instruction which was inapplicable to the evidence informing the jury that, when a railroad company misleads a traveler and puts him in peril, and, due to the excitement of the peril and in an honest effort to escape, he makes a mistake and is injured, such an error is not contributory negligence, held harmless, p. 70.</p> <p>8. Railroads. — Crossing Accidents. — Traveler’s Reliance on Signals. — Instructions.-—In an action against a railroad company for injuries in a crossing accident, where the complaint alleged, and there was some evidence, that defendant carelessly and negligently failed to sound the whistle upon its locomotive, ring the bell, or give any warning of the train’s approach to the crossing, the giving of an instruction that plaintiff had a right to assume that the defendant would comply with the law and give the statutory signals, and that the jury had a right to consider this fact in • determining whether plaintiff exercised proper care, was not reversible error, p. 70.</p> <p>9. Railroads.- — ■ Crossing Accidents.— Railroad’s Duty to Give Warning of Approach of Trains. — instructions.—In an action against a railroad company for injuries in a crossing accident, an instruction that in the absence of any statutory requirement as to signals, it would still be defendant’s duty to give reasonable and timely warning of the approach of its train to the crossing, held proper, p. 71.</p> <p>10. Appeal. — Review.—Instructions on Damages. — Waiver of Error. — Failure to Assign Excessive Damages as Error. — An error in the giving of instructions embracing elements of damages not averred in the complaint and of which there was no proof is waived, where defendant fails to assign as ground for new trial that the damages were excessive, p. 71.</p>

<p>1. Pleading. — Complaint.—Overruling Motion to Make More Specific. — Effect.—Overruling a motion to make a complaint more specific by setting out facts to sustain conclusions pleaded, is deemed a decision, procured by and binding upon plaintiff, that all the facts known to, and relied on by, him to support the general averments were already stated in the complaint, p. 76.</p> <p>2. Pleading.— Complaint.— Determining Sufficiency.— Conclusions of Law. — In determining the sufficiency of a complaint to withstand a demurrer for want of facts, the court must disregard all conclusions of law, and look only to the facts and conclusions of facts alleged therein, p. 77.</p> <p>3. Railroads. — Crossing Accidents. — Collision with Automobile. —Complaint.—Sufficiency.—In an action against a railroad company for damages to an automobile in collision with defendant’s train on a crossing, a complaint alleging the existence of a street crossing crossed by defendant’s tracks, and that defendant backed a train or cut of cars across it without sounding the whistle or bell or giving any warning signal of the approach thereof, etc., held to sufficiently disclose a duty on the part of defendant to make the complaint good as against demurrer. p. 78.</p> <p>4. Railroads. — Crossing Accidents. — Collision with Automobile. —Contributory Negligence. — Jury Question. — In an action against a railroad company for damages to an automobile in collision with defendant’s train on a crossing, even if the absence of a flagman did not give plaintiff, who was driving the automobile, the right to assume that the way was clear, the complaint, further alleging that before proceeding to drive over the railroad tracks plaintiff reduced his speed to not more than eight miles an hour, and looked and listened attentively, and, discovering no train approaching, and observing the absence of the flagman, started to cross the tracks, when, without any signal, a cut of cars was backed against the machine, all without plaintiff’s fault, held sufficient to withstand a demurrer on the ground that plaintiff’s contributory negligence wás the proximate cause of the damage to the automobile, pp. 78, 79.</p> <p>5. Pleading. — Complaint.—Construction.—Contributory Negligence. — General and Specific Averments. — In an action for damages to an automobile in a collision, general averments in the complaint that plaintiff was without fault will not be controlling on the question of contributory negligence when the facts specifically alleged conclusively show, as a matter of law, that plaintiff was guilty of negligence which proximately contributed to the damage sustained, p. 79.</p> <p>6. Railroads. — Crossing Accidents. — Collision with Automobile. —Contributory Negligence. — Evidence.—In an action against a railroad company for damages to an automobile in a collision on a crossing, verdict for plaintiff held sustained by the evidence, as regards the issue of contributory negligence, p. 80.</p> <p>7. Damages. — Damage to Automobile. — Measure of Recovery, —Purchase of Automobile at Less Than Market Price. — The measure of damages for injury to an automobile is the difference in its value before and after the injury, regardless of the fact that the sales agent from whom the owner purchased the automobile gave him the benefit of the agent’s commission. p. 88.</p> <p>8. Railroads. — Crossing Accidents. — Contributory Negligence.— Evidence. — Absence of Flagman. — In an action against a railroad company for damages to plaintiff’s automobile struck by a train on a crossing in which the complaint alleged that defendant had kept a watchman at the crossing for many years to warn travelers of the approach of trains, and that plaintiff relying upon the absence of the watchman at the time of the accident as meaning that no train was approaching, proceeded to drive upon the tracks, evidence of the manner and custom of the watchman in warning travelers and as to his custom of retiring to the shelter house provided by defendant when no train was approaching, was proper on the question of contributory negligence, p. 84.</p>

<p>From Allen Superior Court; William -N. Ballou, Judge.</p> <p>Action by Inez Williard against John Slifer. 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 Robert J. Gardiner against the Cochran Chair Company. From an order denying compensation, the applicant appeals.

<p>Ejectment. — Partition.—Appointment of Commissioner. — Action in Ejectment by Owners. — Where the court in partition proceedings finds that the real estate cannot be divided without damage to the owners, and orders it sold by a commissioner, the commissioner is not vested with the title, so that the mere appointment of such a commissioner, conveyance not having been executed by him, does not prevent the original owners, or one of them to whom the other conveys his interest, from maintaining an action against a third person for possession of the premises.</p>

<p>From Vanderburgh Probate Court; Elmer Q. Lock-year, Judge.</p> <p>Action by Clarence B. Swallow. against Jacob W. Butsch and another. From a judgment for plaintiff, the defendants appeal.</p>

From Johnson Circuit Court; Fremont Miller, Judge. Action by Robert J. Johnson and others against James T. Paris, township trustee, and others. From a judgment for defendants, the plaintiffs appeal.

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Adelia P. Hicks and another against Frank E. Bryson. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Perry Circuit Court; Fred A. Heuring, Judge.</p> <p>Action by the American Cannel Coal Company against the Indiana Cotton Mills. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Record.—Erroneous Designation of Party Reserving Exception. — Disregard of Clerical Errors. — Where the record shows that plaintiff excepted to the overruling of the demurrer to the complaint instead of the defendant, the word plaintiff will be regarded as used in place of defendant by inadvertence of the clerk, and the ruling on the demurrer will be reviewed, p. 125.</p> <p>2. Pleading. — Complaint.—Overruling Motion to Make More Specific.- — Effect.—The overruling of a motion to make the complaint more specific by stating the facts showing the alleged negligence is deemed a decision by the trial court, procured by and binding upon plaintiff, that all facts known to and relied on by him tending to support the general averments of negligence are already stated in the complaint, p. 126.</p> <p>3. Master and Servant. — Injuries to Servant. — Negligence.— Complaint. — Sufficiency.■—-In an action by a railroad employe for injuries sustained while riding on a gravel train, sitting on the end sill of one car with his feet on the end sill of another car, a complaint alleging that the engineer carelessly and negligently started the train with a violent jerk, causing the slack between the cars to be run up suddenly and violently and catching plaintiff’s leg between the cars upon which he was riding, held insufficient to show that the engineer was negligent, it not being shown that he knew of plaintiff’s position, and he, therefore, owed him no duty other than that owed generally to those on the train." p. 127.</p> <p>4. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Complaint.—Sufficiency.—In an action by a railroad employe for injuries sustained by the sudden starting of a gravel train upon which he was riding, complaint held to show contributory negligence, precluding recovery, where the facts pleaded showed that plaintiff, at the time of his injury, was sitting on the end sill of one car with his feet on the end sill of another car, which dangerous position he had voluntarily chosen, p. 127.</p>

<p>From Elkhart Superior Court; William B. Hile, Judge.</p> <p>Action by Ada Pletcher against the State Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Nettie D. Herskovitz against J. Hamilton Spielman and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Master and Servant. — Contract of Hire.- — Waiver of Performance. — Where one employed to sell automobiles on commissions failed to report each week his prospects of sale to his employers and engaged in other business in violation of the terms of the contract, and his employers, with full knowledge of the facts, continued to accept his services, notwithstanding their right to terminate the contract upon three days’ notice, they thereby waived the employe’s breaches of the contract, and could not avoid liability under the contract for services performed, especially where they did not strictly perform the contract themselves, in that they failed to make settlements for commission at the specified time. p. 141.</p> <p>2. Appeal. — Questions Presented. — Admission of Evidence.— Failure to Show Objection. — Where' appellants made no reference in their motion for a new trial to an exhibit claimed to have been erroneously admitted in evidence, and did not set it out in their statement of the evidence, no question is presented as to the admission of such exhibit, p. 143.</p>

<p>1. Brokers. — Real Estate. — Contract for Sale of Lands. — Right, to Commission. — Compliance.—A real estate agent seeking to recover a commission on the theory that he has fully complied with his contract to sell land must prove an actual sale and transfer of the lands described, or that he procured a purchaser ready, willing and able to purchase upon the terms stated, and the owner had refused to sell, or that by and through his procurement a third party had entered into a valid executory contract with the owner for the purchase of the land. p. 145.</p> <p>2. Brokers. — Real Estate. — Contract for Sale of Lands. — Recovery of Commissions.- — Failure of Purchaser to Carry out Contract. — Where a contract for the sale of land procured by an agent of the vendor provided for a forfeiture at the option of the vendor upon default by the purchaser, and that if the purchaser could not sell his own farm, the contract was void, and the purchaser did not do so and failed to carry out his contract with the vendor, the latter is not liable to his agent for a commission for the sale of his land. p. 145.</p>

<p>1. Injunction. — Action on Bond. — Damages.—Dissolution of Restraining Order. — In an action on an injunction bond for damages, plaintiffs, who had been restrained from removing or taking possession of a quantity of wheat pending a determination of its ownership, could not recover for expenses incurred, or for loss of time, or for damage to the wheat after the restraining order was dissolved, p. 156.</p> <p>2. Injunction. — Action on Bond. — Damages.—Evidence.—In an action on an injunction bond for damages, plaintiffs, who had been restrained from removing or taking possession of a quantity of wheat pending a determination of its ownership, could not recover for damage to the wheat in the absence of evidence of the value of the wheat at the time when the restraining order was issued and of its value or condition when the order was dissolved, p. 156.</p> <p>3. Injunction. — Action on Bond. — Evidence.—Plaintiff’s Refusal to Draw Money Paid into Court by Receiver. — Admissibility.— Where a receiver was appointed to thresh and sell a quantity of wheat pending a determination of its ownership in an action in which defendants had been restrained from removing the wheat, evidence as to whether one of such defendants had not refused to accept money paid into court by the receiver for use of defendants, on advice of counsel, held immaterial in defendants’ action on the injunction bond to recover damages, p. 157.</p> <p>4. Injunction. — Action on Bond. — Damages.—Recovery.-—In an action on an injunction bond to recover damages, plaintiffs, who had been restrained in the injunction proceeding from removing a quantity of wheat pending determination of its ownership, could not recover for damage to the wheat sustained after a receiver appointed to thresh and market the wheat had taken possession thereof, though the receiver did not qualify by giving bond or taking oath, where defendant did not object to the receiver taking possession and did not request that he be required to give bond or take oath. p. 158.</p>

<p>From Marion Superior Court (A10,099) ; W. W. Thornton, Judge.</p> <p>Action by the Columbian Insurance Company of Indianá against the Southern Surety Company. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Circuit Court (31,959) ; Louis B. Ewbank, Judge. Action by the Fletcher Savings and Trust Company and others against Lewis G. Miller and others. From a judgment for plaintiffs, the defendants appeal.

<p>From Decatur Circuit Court; John W. Craig, Judge.</p> <p>Action by Bernard Henry Leising against the Reserve Loan Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Vanderburgh Probate Court; Elmer Q. Lock-year, Judge.</p> <p>Action by Henry P. Benninghof against the Meyer Candy Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Executors and Administrators. — Appointment of Administrator.— Preferences.— Statutes.— Section 2742 Burns 1914, Acts 1901 p. 281, fixing the order of preference in which letters of administration shall be issued, is mandatory, p. 287.</p> <p>2. Executors and Administrators. — Granting Letters to Stranger. — Revocation.—Right of Appeal.— Statutes.— Where an administrator has been removed for misconduct, as provided by §2762 Bums 1914, §2245 R. S. 1881, he may, if aggrieved as an individual, appeal, but, where a stranger to the estate is made administrator, knowing that the appointment is subject to revocation if any one of the preferred class should apply for letters, he has no right of appeal in his representative capacity, p. 288.</p> <p>3. Executors and Administrators. — Revocation of Letters of Administrators. — Operation of Order. — An order revoking letters of administration is self-executing, and an appeal therefrom does not operate to suspend its effect, p. 289.</p>

<p>L. Master and Servant.— Workmen’s Compensation Act.— Posthumous Child.— Compensation.— Under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921), compensation cannot be awarded to a posthumous child prior to its birth, p. 302.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Compensation to Several Dependents. — Death of Dependent. — Disposition of Compensation. — Section 37 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921), providing that a weekly compensation equal to fifty-five per cent, of the deceased employe’s average weekly wages shall be paid for 300 weeks in equal shares to all wholly dependent upon him, does not contemplate a diminution of the award in event of the death of one of several dependents, but the entire weekly compensation is to be paid by the employer as long as there is at least one beneficiary surviving who was wholly dependent on the deceased employe, so that, on the death of one of three dependents, the share of each of the other two is increased from one-third to one-half of the same weekly compensation payable before the death of such dependent, p. 303.</p> <p>3. Master and Servant. — Workmen’s Compensation Act.— Basis of Award. — Conditions at Death of Workman. — Modification. — In a proceeding for compensation under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921), compensation for the death of an employe should be awarded to his dependents on the basis of conditions as they existed at the time of his death, subject to modification in the event of the subsequent birth of a dependent or of the death of one or more of the dependents, p. 305.</p>

From Jasper Circuit Court; C. W. Hanley, Judge. Action by Cornelia Catherwood and others against Robert Catherwood and wife. From the judgment rendered, the named defendant appeals.

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Rosa Davis, administratrix of the estate of Charles E. Davis, deceased, against the Central Indiana Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From the Industrial Board of Indiana.</p> <p>Proceedings for compensation under the Workmen’s Compensation Act by Bettie Turk and another against William Wenning and Robert Kirk, partners, and another. From an award for applicants, the defendants appeal.</p>

<p>From Porter Circuit Court; H. H. Loring, Judge.</p> <p>Action by B. F. Nichols, administrator of the estate of Joseph Ross Wilson, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p> <p>This action was instituted by appellee against appellant to recover damages for the death of Dr. Joseph Ross Wilson. So much of the first paragraph of the amended complaint as is necessary to an understanding of the questions presented is as follows:</p> <p>“That the defendant operates a line of railway from •Chicago to Logansport; that the defendant’s said line of railway crosses a public highway between the towns of LeRoy and Hebron; that the said railroad runs on.an angle from the north-west to the south-east and crosses the said highway at an acute angle; that on the 12th day of February, 1916, and for a long time prior thereto, at the said highway in question, the defendant carelessly and negligently failed and omitted to maintain gates to warn travelers upon said highway of the approach of trains thereon; that the defendant on said-date, and for a long time prior thereto, carelessly and negligently failed to maintain any signal or warning device of any kind or description, to warn travelers upon said highway of the approach of trains; that Joseph Ross Wilson was then and there traveling from the east, going west upon said public highway, and on that portion of the highway east of said railroad crossing; that said Joseph Ross Wilson was then and there traveling along slowly with due care and caution toward said railroad crossing; that the diagonal manner at which the defendant’s railway crosses the said public highway causes the trains coming from the east to approach a person traveling west on said public highway from the left and rear of such traveler; that the view of a person traveling on said highway was also somewhat obstructed by trees and brush; that the said Joseph Ross Wilson with due care and caution on said day was crossing on and over the said railroad crossing; that said defendant then and there carelessly and negligently failed to operate any gates warning travelers of the approach of trains; that said defendant did then and there carelessly and negligently fail to operate any signal device warning travelers of the approach of said train; that said defendant did then and there carelessly and negligently operate a train going west on the south track, which was then and there the track used by east-bound trains; that the defendant has used the north track for west-bound trains and south track for east-bound trains for many years, which fact was then and there well known to the said Joseph Ross Wilson; that said action of said defendant company in then and there running its said train west on the south track was without notice or warning of any kind to the said Joseph Ross Wilson; that said defendant did then and there carelessly and negligently run and operate its said train at a dangerous, reckless and unusual rate of speed of from sixty to seventy miles per hour; and did then and there carelessly and negligently run and operate said train at said dangerous, reckless and unusual rate of speed without any signal device, gates, or other means of warning travelers upon said public highway, and did then and there so operate said train as aforesaid without sounding a whistle or ringing a bell, or in any other manner warning persons traveling upon said highway - of the approach of said train; that said defendant by said negligent means aforesaid did then and there carelessly and negligently run, operate and propel its said train on, across, and over said highway crossing where said Joseph Ross Wilson was then and there traveling with due care and caution; that said defendant did then and there carelessly and negligently by the negligent means aforesaid run said train against said Joseph Ross Wilson, then and there killing him; that said killing resulted wholly from said negligence and carelessness of the defendant as aforesaid, and not otherwise; that the said Joseph Ross Wilson was a physician and .surgeon, residing and practicing his profession at Hebron, with a large and profitable practice of $4,000 a year; that he was 52 years of age; that he was a strong robust person in good health; that he left surviving him Ada Luella Wilson, his widow, dependent upon him for support; that said widow was and is damaged in the sum of $10,000,”</p> <p>The second paragraph of complaint is the same as the first with the following additional averments:</p> <p>“That the defendant saw the deceased as he*was about to enter upon said crossing or ought to have seen the deceased when he was about to enter upon said crossing, but said defendant did then and there carelessly and negligently fail to slacken the speed of said train and did then and there carelessly and negligently fail to take any precautions to avoid striking deceased; that if said defendant had then and there exercised due care and caution when defendant first saw or ought to have seen the deceased as he was about to enter upon said crossing, defendant could have avoided any injury to deceased.”</p> <p>The defendant moved the court to require each paragraph of complaint to be made more specific in eighteen particulars, mainly “by alleging facts to show what duty-the defendant owed to the decedent” with respect to each averment of negligence, and to show how the duty arose. The motions were overruled. The defendant then demurred to each paragraph for want of facts. The demurrers were overruled. Verdict and judgment for $3,500. The errors assigned and presented are the overruling: (1) The motions to make more specific; (2) the demurrers; and (3) the motion for a new trial.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Charles West against Alice H. Norris and another. From a judgment for plaintiff against the named defendant, she appeals.</p>

<p>1. Appeal. — Parties.—Entry Making Parties Plaintiff. — Where the court, on petition of “S. D. et al.” to be made parties plaintiff, entered an order reciting that it “sustains said motion, and said S. D. et al. are made parties plaintiff herein,” S. D. alone became a party plaintiff, as the word “et al.” following his name did not have the effect of making the court’s entry apply to any other persons, p. 403.</p> <p>2. Exceptions, Bill op. — Re-Extension of Time for Filing.— Notice of Hearing on Application. — Statutes.— Under §661 Burns 1914, Acts 1911 p. 193, providing that a party asking a re-extension of time to 'file a bill of exceptions shall give the opposite party or his attorney of record at least three days notice of the time and place of the hearing on the application, and that such application be made and the hearing set for a day prior to thé expiration of the time first given, a notice served two days before the day immediately prior to that on which the time first given expired, was too late, and an extension granted on the day following such notiee was ineffective. p. 404.</p>

<p>1. Charities.— Devise to Church.— Lapse.— Consolidation of Devisee Church with Other Church.— Statutes.— Where testator, who died before the enactment of §§4474-4476 Burns 1914, Acts 1897 p. 273, devised property to the trustees of a designated church “and their successors in office” in trust for the use and benefit of the church, and, prior to testator’s death, the devisee church consolidated with another church pursuant to the provisions of §§4454-4460 Burns 1914, §3597 R. S. 1881, and a new church organization was created to which both churches conveyed their realty and personal property, the devisee church ceased to exist after the consolidation and the devise lapsed, the trustees of the new organization not being the “successors in office” of the devisees, p. 409.</p> <p>2. Charities.— Charitable Devise.— Death of Testator before Enactment of Statutes as to Trusts. — Sections 4474-4476 Burns 1914, Acts 1897 p. 273, as to consolidation of church associations, has no application to a trust provided for by the will of a testator who died before their enactment, p. 411.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Almeda Duer against Frank McDowell and others, doing business in the firm name of the Bluffton Hoop Company. From an award for applicant, the defendants appeal.

<p>Landlord and Tenant. — Lease of Premises for Use as Liquor Store. — Validity.—Prohibition Law. — Where by the terms of a lease the demised premises were “to be used and occupied by said lessee for a liquor store and for no other purpose,” and the term “liquor store” was understood by the parties to mean a place where intoxicating liquors should be sold at retail under proper authority of law, and which also might be used as a place for the sale of mineral waters, soft drinks, cigars, etc., and also as a place for keeping pool tables, the elements other than the use of the premises for the sale of intoxicating liquors were substantial and not merely incidental, and the lease was not rendered void by the passage . of the state-wide Prohibition Law (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918); the rule being that where a lease contemplates the use of the demised premises for more than one purpose, the fact that the lessee is deprived of one or more of the purposes contemplated, but less than all, does not de- ' prive him of the beneficial use of the leased property.</p>

<p>1. Master and Servant. — Workmen’s Compensation Act. — Appeal. — Briefs.—Sufficiency.—In an appeal from an award under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921) an assignment of error that the award is. contrary to law is sufficient to present the question of both the sufficiency of the facts found to sustain the award, and the sufficiency of the evidence to sustain the finding of facts, but it is encumbent upon an appellant, under the rules governing the preparation of briefs, to indicate the particular question to which his propositions or points are addressed, p. 476.</p> <p>2. Appeal. — Review.—Findings.—Failure to Find. — Waiver of Error. — Failure to find a fact is equivalent to a finding against the party having the burden of proving such fact; and where there is no proposition or point in appellant’s brief addressed to a failure to find a fact, but only propositions or points addressed to the sufficiency of the evidence to sustain the finding of facts, any question as to the failure to find is waived, p. 476.</p> <p>3. Master and Servant. — Workmen’s Compensation Act. — Compensable Injury to Contractor’s Employe. — Liability of Corporation. — In a proceeding under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921) against a railroad company and its contractor to recover compensation for the death of an employe of the contractor, the company may be held liable where it had failed to exact from the contractor the certificate required by §14, as amended Acts 1919 p. 159, showing compliance with §68 of the act. p. 477.</p> <p>4. Appeal. — Presenting Questions for Review. — Constitutionality of Statute. — Briefs.—Propositions.—Sufficiency.—A proposition in appellant’s brief which seeks to challenge an amended section of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921) by merely asserting that “Section 14 Acts 1919 is unconstitutional” for certain reasons therein set forth, without stating whether such section violates a provision .of the State or Federal Constitution, but merely citing a section of the former and an amendment of the latter, without book or page, together with certain decisions in support of the alleged reasons for the invalidity of the section assailed, is not a compliance with Rule 22, governing the preparation of briefs, and presents no question for review, p. 477.</p>

<p>1. Appeal. — Review.—Harmless Error. — Court’s Failure to Include Amount of Money Judgment in Conclusions of Law.— Where the facts found by the court are sufficient to authorize a money judgment for either party, the failure of the court to state in the conclusions of law the amount which the party should recover is harmless, where, from the facts found, the court, by a mathematical calculation, can determine the amount due, and a correct judgment has been rendered on the facts, p. 516.</p> <p>2. Judgment. — Modification.—Conflict in Findings. — Where, in an employer’s action against its agent to recover money alleged to have been converted by him, the findings as to the items of the account between the parties were in irreconcilable conflict which could only be explained on the theory that the court made an error in addition, and it was clear that the court erred in entering judgment for an amount in excess of that warranted under the facts found, but it was not clear what amount the judgment should be entered for, the trial court should have granted a motion to modify the judgment, p. 516.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Edwin E. Ingersoll against the Hoosier Veneer Company. From an award for applicant, the defendant appeals.

<p>1. Principal and Surety. — Surety Contract. — Construction by Parties.— Failure to Demand or Pay Premium.— Statutes.— Where a bonding company furnished a bond to a road contractor to be submitted with his bid on a proposed highway improvement, as required by §7723 Burns 1914, Acts 1901 p. 521, the failure of the company to demand payment of the premium, or the principal’s failure to pay, at any particular time, did not amount to a construction by the parties that the premium was not to be paid until the work under the contract should actually be commenced, p. 544.</p> <p>2. Principal and Surety. — Road Contractor’s Bond. — Time of Payment of Premium.— Where a road contractor submitted surety bond with his bid on a proposed highway improvement, as required by §7723 Burns 1914, Acts 1901 p. 521, the application for the bond being dated January 26, on which date the application was accepted, the bond signed, and the proposal and bid made and accepted and the contract awarded and entered into, the liability of the bonding company attached and the consideration for the execution of the contract passed on' such date, and the premium which was to be paid on that date became due and payable, notwithstanding that subsequently the contract for the proposed improvement was canceled before the commencement of work thereunder, p. 546.</p> <p>3. ' Principal and Surety. — Bonds.—Release of Surety. — Power of County Commissioners. — Where a county board of commissioners, after having accepted a bid for • a proposed highway improvement, canceled the contract on the petition of the contractor and released the bond furnished in pursuance to §7723 Burns 1914, Acts 1905 p. 521, the action of the board did not release the contractor from his agreement with the bonding company to pay the premium for the bond. p. 546.</p>

From Tippecanoe Superior Court; Henry H. Vinton, Judge. Action by Robert R. Engle, administrator of the estate of Margaret Malinda Engle, deceased, against the Director General of Railroads. From a judgment for defendant, the plaintiff appeals.

From Tipton Circuit Court; James M. Purvis, Judge. Action by California Harmon against William A. Scott and others, in which the named defendant filed a cross-complaint. From the judgment rendered, the plaintiif appeals.

<p>From Daviess Circuit .Court; James W. Ogdon, Judge.</p> <p>Action by Thomas V. Allbright against Wells, Fargo and Company Express. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Special Findings. — Failure of Court to Sign. — Effect. — Where special findings of fact are requested, <but the findings made are not signed by the trial judge, they will be treated as general findings only. p. 578.</p> <p>2. Judgment. — Conclusiveness.-—-Correction after Term. — Validity. — The jurisdiction of the court over its decrees terminates with the close of the term at which they were rendered, and a judgment may be amended , or corrected only at the term during which it was entered and not thereafter; hence, where the court at a subsequent term corrected its findings of fact and conclusions thereon and rendered a new judgment, such judgment was void. p. 578.</p> <p>3. Trial. — Incorrect Findings. — Remedy. — Motion for New Trial. — A motion to reconsider special findings of fact is unknown to the practice in this state, the only remedy, if the facts are not correctly found, being by a motion for a new trial, p. 579.</p> <p>4. Appeal. — Judgments Appealable. — Judgment Rendered Without Authority of. Law. — Dismissal.—Where the trial court entered judgment, and at a subsequent term, without authority of law, reconsidered its findings and conclusions thereon, and entered a new judgment, the second judgment, being void, was not appealable, and, there being no motion for new trial, and no appeal from the first judgment, it is binding on the parties, p. 580.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Dave Decoursey against the Pan Handle Coal Company. From an award for applicant, the defendant appeals.

<p>From Wells Circuit Court; Frank W. Gordon, Judge.</p> <p>Action by Mary Shoe and others against Eugenia Heckley and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>From Marion Superior Court (A4,818) ; Theophilus J. Moll, Judge.</p> <p>Action by Mike Lapenna against the Western Union Telegraph Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Washington Circuit Court; James L. Tucker, Judge.</p> <p>Action by Nancy E. Teaford and others against the Town of French Lick. From a judgment for plaintiffs, the defendant appeals.</p>

<p>Carriers. — Carriage of Passengers. — Injuries to Passenger Alighting from Street Car. — Action.—Complaint.—Sufficiency. —In a passenger’s action against a street railway company to recover for injuries sustained in alighting from a car, a complaint alleging that the place where the car stopped to permit passengers to alight was an unsafe place for the purpose because of the great distance from the step of the car to the pavement, that defendant had negligently constructed and maintained its tracks twenty-seven inches above the grade of the street, which required passengers alighting to step down a distance of more than three feet, that the danger was not apparent to a passenger about to alight, that plaintiff was ignorant of the unusually great distance between the car step and the pavement, and was not in a position to discover the danger, and that defendant, knowing the danger and that it was not apparent to plaintiff, failed to warn her, held sufficient to state a cause of action.</p>

From Grant Circuit Court; J. F. Charles, Judge. Action by George E. Eberhart and another, partners, against Eyre-Shoemaker, Incorporated, and others, wherein one Ross intervened. From a judgment for defendants, the intervener appeals.

<p>1. Bills and Notes. — Promissory Note. — Surety Signing as Comaker.— Discharge.— Extension of Time of Payment.— Statutes. — Under §119 of the Negotiable Instrument Law (Acts 1913 p. 120, §9089a et seq. Burns 1914), as to the discharge of instruments, §120, concerning the discharge of persons secondarily liable, and §192, defining persons primarily and secondarily' liable, a person signing on the face of a note as a comaker, though in fact a surety to the knowledge of the holder, is not discharged by an extension of time of payment for a valuable consideration without his consent, notwithstanding §58 of the act, making a negotiable instrument subject to the same defenses as if it were not negotiable in the hands of any holder other than a holder in due course, p. 668.</p> <p>2. Bills and Notes. — Negotiable Instrument Law. — “Defense.” —Construction.—Section 58 of the Negotiable Instrument Law. (Acts 1913 p. 120, §9089a et seq. Burns 1914), providing that a negotiable instrument shall be subject-to the same defenses as if it were not negotiable in the hands of any holder other than a holder in due course, must be construed in harmony with the other sections, so as to give effect to the general purpose and intent of the act, and when so interpreted the word “defenses” must be construed as referring to defenses existing at the time of the execution of the instrument or arising out of the original transaction, p. 678.</p> <p>3. Bills and Notes. — Promissory Note. — Payment.—Giving New Note. — Intent of Parties. — The giving of a new note for the amount of an old note is prima facie evidence of payment, but it is not payment when not so intended by the parties, p. 678.</p>

From Lake Superior Court; James P. Wason, Special Judge. Action by the First National Bank of Hammond and others against Theodore C. Klotz and others. From a judgment for plaintiffs, the defendants appeal.

From Monroe Circuit Court; Robert W. Miers, Judge. Action between Milford G. Koons and others and Florence Burkhart. From the judgment rendered, the former appeal, and the latter moves to dismiss the appeal.

<p>Prom Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by William H. Chulip against the Trustees of the Presbyterian Church of Laporte, Indiana. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Circuit Court (33¿530); Harry O. Chamberlin, Judge.</p> <p>Action by John E. Rehm, receiver of the Lion Bonding and Surety Company, against George W. McCray. From a judgment for defendant, the plaintiff appeals.</p>