absolute estate; but they are immediately followed by the provision that this legacy shall be held by the executor in trust for Lucy who is an invalid, to be loaned, and the principal and proceeds turned over as needed for her comfort and welfare. It is to be noted that the money was merely left In the possession of the executor of the will, with authority to loan it, for an indefinite time, and it was doubtless intended that in case Lucy regained her health, and desired to do so, she might take charge of the legacy. The holding by the executor was not intended as a restraint or diminution of her rights, or, in any sense, a hindrance to her full enjoyment of the property; but because of her infirmity and consequent inability to manage her estate profitably, the executor was directed to do so "in order that it may thereby be the more certainly applied to her needs." That the real intent of the testatrix might not be obscured by the multiplicity of provisions, she declares in the most apt and unmistakable terms her will to be, "that said sum of three thousand ($3,000) dollars shall be the absolute property of my said niece, Lucy Stimson." This court has declared that, "it is the right of a testator to assign his own meaning to the words he employs, and where this meaning clearly appears it will overcome the technical meaning usually affixed to the words." Ridgeway et al. v. Lanphear et al., 99 Ind. 251, 253; Brumfield et al. v. Drook et al., 101 Ind. 190. It is the expressed intention of the testatrix that this bequest is to be the "absolute property" of the beneficiary, and if we give effect to this expression in connection with the preceding provisions of the will we are lead to the conclusion that the $3,000 legacy was given to Lucy Stimson absolutely. We accordingly so hold. Lumpkin v. Rodgers, 155 Ind. 285, 58 N. E. 72; Cameron v. Parish, 155 Ind. 329, 57 N. E. 547. The rule has been frequently declared that when property is given absolutely, with a gift over of what may remain undisposed of by the first taker at his death, the limitation over is void for repugnancy. Rusk v. Zuck, 147 Ind. 388, 45 N. E. 691, 46 N. E. 674; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Wiley v. Gregory, 135 Ind. 647, 35 N. E. 507; Rogers v. Winklespleck et al., 143 Ind. 373, 42 N. E. 746; Outland v. Bowmen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420; Tower, Admr. v. Hartford et al., 115 Ind. 186, 17 N. E. 281; Allen et al. v. Craft et al., 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425; Van Gorder et al. v. Smith, 99 Ind. 404. It follows that

the attempted disposition of so much of the $3.000 as might be left at the death of Lucy Stimson was void for repugnancy, and such property upon her death passed to appellant as her personal representative.

The judgment is reversed, with directions to overrule appellees' demurrers to the complaint, and for further proceedings not inconsistent with this opinion.

(38 Ind. App. 628,

HOBBS v. TOWN OF EATON. (No. 5,647.)* (Appellate Court of Indiana, Division No. 1. June 26, 1906.)

1. EXECUTION-SUPPLEMENTARY PROCEEDINGS -COMPLAINT CAUSE OF ACTION.

A complaint in supplementary proceedings which alleged that plaintiff had recovered a judgment in a justice's court against defendant for less than $50, that the execution issued had been returned "No property found," that another execution issued out of the circuit court on the transcript and judgment being filed therein had been returned unsatisfied, that a third person was indebted on account of wages to defendant, that defendant had no other property, and that the judgment was founded on defendant's failure to pay commutation, as provided by Burns' Ann. St. 1901, § 6825, and was without right of exemption, stated a cause of action under sections 827, 831, authorizing a judgment creditor on the return of an execution unsatisfied to require a judgment debtor and a third person indebted to him to answer, and the allegation that the debtor unjustly and wrongfully refused to apply the wages to the satisfaction of the judgment, essential under section 828, was surplusage. 2. EXEMPTIONS-STATUTES-CONSTRUCTION.

Burns' Ann. St. 1901, § 6825, providing that no benefit of exemption shall be allowed a commutation money judgment, controls such a debtor's right of exemption, as against section 715, declaring that property of the value of $600 shall be exempt, and authorizes a judgment creditor in a commutation judgment to have any property in the possession of a third person belonging to the debtor applied to the payment of the judgment.

3. PLEADING-MATTERS TO BE PROVED-SUR

PLUSAGE.

Allegations in a pleading, treated as surplusage, need not be proved.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 1224.]

4. EXECUTION-SUPPLEMENTARY PROCEEDINGS -RIGHT TO ATTACK ORIGINAL JUDGMENT.

A supplementary proceeding is an independent action in no way affecting the merits of the action in which the original judgment was rendered, and any evidence affecting the original judgment is inadmissible.

[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Execution, § 1149.]

5. APPEAL-FINDINGS-CONCLUSIVENESS.

Where the evidence in a case is in part verbal, the Supreme Court on appeal cannot examine the evidence to determine where the preponderance lies.

[Ed. Note. For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 3955–3969.] 6. EXECUTION-SUPPLEMENTARY PROCEEDINGS

-JUDGMENT.

In proceedings supplementary to execution issued under a commutation money judgment, the complaint alleged that a third person was indebted to the debtor on account of wages in the sum of $40, and that the debtor had no other property. The evidence showed that the third person had in its possession property belonging to the debtor, which property was not by the terms of the original judgment exempt from its payment. Held, that a decision ordering the application of the wages to the judgment was not contrary to law.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Supplementary proceedings by the town of Eaton against Absalom B. Hobbs. From a *Rehearing denied October 12, 1906.

judgment for plaintiff, defendant Absalom B. Hobbs appeals. Affirmed.

Jas. W. Brissey and Jno. E. Ethell, for appellant. Rollin Warner, E. M. White, and W. F. White, for appellee.

MYERS, J. This is a proceeding supplementary to execution, begun by appellee against appellant and the Muncie, Hartford & Ft. Wayne Railway Company, by a duly verified complaint in one paragraph. Demurrer to the complaint for want of facts overruled. Denial filed, trial, and judgment for appellee. Motion for a new trial overruled.

1. The first error assigned questions the sufficiency of the complaint. The complaint in substance states that appellee recovered a judgment before a justice of the peace and against appellant for less than $50. Execution issued and returned, no property found. Thereafter a transcript of the proceedings and judgment before the justice was filed in the Delaware circuit court. Another execution issued to the sheriff of Delaware county, and was returned wholly unsatisfied; that appellant, Hobbs, has been continuously since the rendition of said judgment, and now is a resident of Delaware county, Ind.; that the Muncie, Hartford & Ft. Wayne Railway Company is indebted to appellant on account of wages earned in the sum of $40; that appellant has no other property; that appellee's judgment before said justice of the peace is founded on appellant's failure to pay commutation, as provided by section 6825 Burns' Ann. St. 1901, and is without relief and without right of exemption; that the property of "Hobbs so in the possession of said railway company is not exempt from being applied to the satisfaction of said judgment, but cannot be reached by an ordinary execution in the hands of the sheriff." Other allegations in the pleading tend to obscure the theory of the pleader, and render doubtful whether this proceeding is under section 827 or section 828, in connection with section 831, Burns' Ann. St. 1901. Appellant argues that it is under sections 828 and 831, while appellee claims that it is based on sections 827 and 831, supra. In view of the different constructions placed upon the pleading, it becomes our duty to determine first, the theory of the complaint, and in doing this we may look to the entire record, including all briefs of counsel in the case. Carmel, etc., Imp. Co. v. Small, 150 Ind. 427, 435, 47 N. E. 11, 50 N. E. 476. From the information thus obtained, and from the most prominent and leading allegations of the complaint above exhibited, and indulging all reasonable presumptions in favor of the proceedings and judgment of the trial court (Campbell v. State, 148 Ind. 527, 47 N. E. 221; Center School Township v. State ex rel., 20 Ind. App. 312, 50 N. E. 591), it would seem that the cause proceeded to judgment on the theory that the complaint

stated a cause of action under section 831, in connection with section 827, supra. In view of this conclusion the allegation "which said sum of $40 the said defendant, Hobbs, unjustly and unlawfully and wrongfully refuses and fails to apply to the satisfaction of said judgment," is not controlling and will be treated as surplusage. And the complaint on the theory stated will be held sufficient on demurrer to authorize the execution plaintiff to invoke the assistance of the court to enforce its judgment. Burkett v. Bowen, 118 Ind. 379, 21 N. E. 38; Sherman v. Carvill, 73 Ind. 126; Fowler v. Griffin, 83 Ind. 297. Appellant argues that, under the averment of the complaint, it clearly appears that the property appellee is seeking to have applied to the payment of its judgment, together with all of his other property, does not amount to $600, and the same is therefore exempt from levy. On this question the complaint shows that the judgment in the original action was rendered without "benefit of exemption," and was predicated upon a statutory liability of appellant to appellee. Section 6825, Burns' Ann. St. 1901. This statute expressly provides that no stay of execution or benefit of exemption, valuation, or appraisement law shall be allowed on a commutation money judgment. The language of our statute on this subject is plain, its validity unquestioned, and in this class of cases must control the debtor's right of exemption as against the general provision. Section 715, Burns' Ann. St. 1901; Winfield Township v. Wise, 73 Ind. 71. Property exemption from levy and sale by judgment creditors in this jurisdiction is purely statutory, and it is with the Legislature to say to what class of debts it shall apply. And, having expressly provided that a judgment for commutation money shall be without the benefit of exemption, authorizes the judgment creditor to have any property in the possession of appellant's codefendant belonging to such debtor applied to the payment of such judgment, or so much thereof as is necessary to fully satisfy the same. Therefore it follows that the complaint in this action is not affected by this question.

2. Appellant also assigns error of the court in overruling his motion for a new trial. The reasons assigned in support of this motion are that the decision of the court is not sustained by sufficient evidence and is contrary to law. Under this assignment the questions argued are that there is no evidence to sustain the following allegations of the complaint: (1) That appellant "unjustly refuses" to apply the money sought to be reached in payment of the judgment; (2) that such money is not exempt from execution; also that the decision of the court is contrary to law. What we have said in disposing of the demurrer to the complaint largely applies to the questions presented under this assignment, and practically disposes

of them contrary to appellant's views. Having treated the allegation in the complaint "unjustly refuses" as surplusage, the question of whether there was any evidence tending to support it, is immaterial. On the question of exemption, appellee introduced in evidence all of the pleadings and proceedings, including the judgment before the justice of the peace, from which it appears that the issue in that case, was the question of appellant's liability to appellee for what is known and designated by our statute as commutation money. The pleadings in that case were sufficient to apprise the court trying this case as to the nature of that action, and as the law is effective to bar appellant's right of exemption, in the enforcement of such judgment, we cannot say in this particular there was no evidence to support the decision of the court, nor that the decision of the court was contrary to law. But aside from the theory last stated, appellant has pointed out no error in this regard, for the further reason that this is an independent action, and in no way affecting the merits of the action in which the original judgment was rendered. Therefore, any evidence which would tend in any way to interfere with, al ter, or change the face of the original judg ment would be improper. Harper v. Behagg, 14 Ind. App. 427, 42 N. E. 1115. The original judgment stands unimpeached, unappealed from, and its validity is unquestioned; and, as this action is not a continuation or an incident of the original action, there is no issue to support evidence, the effect of which would be to affect the rights of the parties under the original judgment. Harper v. Behagg, supra, and cases there cited. For the reason that the only issue now presented is that of affording appellee that relief to which he is entitled, under the terms of his judgment.

Appellant insists that the weight of the evidence is in his favor. The evidence in this case is in part verbal. Therefore, under the decisions of the supreme and this court, we cannot examine the evidence to determine where the preponderance lies. Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109: Hudelson v. Hudelson (Ind. Sup.) 74 N. E. 504; Tyler v. Davis (Ind. App.) 75 N. E. 3. The decision of the court in this case is clearly within the issue, and it appearing from the evidence that the Muncie, Hartford & Ft. Wayne Railway Company, one of the defendants below, has in its possession property belonging to appellant, which property is not, by the terms of the judgment, exempt from its payment, and this action being in aid of such judgment, warrants the conclusion that the decision of the court, in so ordering its application is not contrary to law.

Other errors are assigned, some of which have been discussed and decided under the above assignments. The remaining ones, up

on an examination, we find to be reasons in support of a motion for a new trial. Finding no error in the record, the judgment of the trial court is affirmed.

(38 Ind. A. 413)

DAVY et al. v. BROWN et al. (No. 5,776.) (Appellate Court of Indiana, Division No. 1. June 26, 1906.)

APPEAL-JOINT ASSIGNMENTS OF ERRORS.

Where an assignment that the court erred in overruling appellants' motion for a new trial was made by a number jointly as appellants, though the motion for a new trial was made by a portion only, it appearing from the record that those who made the motion excepted separately to the action of the court, those appellants not affected not excepting to it jointly, and some of those jointly assigning the ruling not taking any exception thereto, the assignment will not be considered on appeal.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2985-2989.]

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Appeal by James Davy and others, as creditors, etc., from a judgment approving and affirming the final report of John M. Brown, receiver, and others. Affirmed.

Deneen & Hamill and E. N. Zoline, for appellants. Brick & Bates and Stuart MacKibbin, for appellees.

BLACK, J. The "errors relied upon for a reversal" in the brief of the appellants all pertain to what is designated in the brief as the twenty-sixth assignment of error, which is that "the court erred in overruling the motion of the appellants for a new trial." This assignment is made by a large number of persons and corporations jointly as appellants. The motion for a new trial was made by a portion only of the appellants, and it appears from the record that those who made the motion excepted "separately" to the action of the court thereon. Not only did those appellants affected by the ruling not except to it jointly, but also some of the appellants jointly assigning the ruling as error did not take any exception thereto. Judgment affirmed.

(38 Ind. A. 414)

STEPHENS v. AMERICAN CAR & FOUNDRY CO. (No. 5,791.) (Appellate Court of Indiana. June 26, 1906.) 1. TRIAL-DIRECTION OF VERDICT.

A request on behalf of the party having the burden of the issue for the direction of a verdict in its favor should not be granted, when the verdict must be based on the testimony of witnesses, either wholly or partially.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 334, 335.]

2. NEGLIGENCE-CONTRIBUTORY NEGLIGENCEBURDEN OF PROOF.

The burden of the issue on the question of contributory negligence, raised by a general

denial in an action for injuries, is on the defendant.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 229-234.]

3. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE- QUESTION FOR JURY.

In an action for injuries to a servant while adjusting a machine which was negligently permitted to be operated without requisite guards, evidence as to defendant's contributory negligence in attempting to make the adjustment while the machine was in motion held to require submission of such question to the jury.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1132.] Black, J., dissenting.

Appeal from Circuit Court, Floyd County; Wm. C. Utz, Judge.

Action by Ulysses G. Stephens against the American Car & Foundry Company. From a judgment in favor of defendant, plaintiff appeals. Reversed, with instructions.

E. B. Stotensburg and J. H. Weathers, for appellant. M. Z. Stannard, for appellee.

· COMSTOCK, P. J. Action against appellee for personal injuries sustained by the appellant while working at an unguarded machine in appellee's factory. The complaint was in three paragraphs and based upon the negligent act of the appellee in failing to guard a machine in its factory as required by statute. The second and third paragraphs of the complaint were withdrawn, and the cause put at issue by general denial, submitted to a jury, which by direction of the court, returned a verdict for the appellee.

The only error assigned and relied upon by the appellant, is the action of the court in overruling his motion for a new trial. This assignment challenges the action of the trial court in peremptorily instructing the jury to find for the appellee. The paragraph of the complaint upon which the cause was tried, omitting the formal parts, alleges in substance, that defendant corporation owned and operated in its establishment, at and for a long time prior to the grievances mentioned in the complaint, a machine which was used for the purpose of cutting moulding and dressing and cutting wood into various shapes; that the same was fastened to a frame on a table, extending above the same, so as to come in contact with the wood held by the person operating the same; that said machine, nor the bit thereof, was not then and there guarded, although it could have been properly guarded without interference in the proper operation of the same, which would have prevented any injury or danger of injury, but that defendant, well knowing that the same had not been done, then and there for more than a month immediately prior thereto, in violation of the laws of the state of Indiana, negligently failed to guard said machine; that on the 6th day of May, 1903, plaintiff was in the service of the defendant as an employé

at its plant and being by his contract of employment with defendant, required so to do, was then and there engaged in operating said machine in cutting moulding and in order to have the machine cut through it was necessary to reset the machine, which the plaintiff was required to do and while engaged in loosening the set screw with a wrench his hand slipped, and, on account of said machine not being properly provided with a guard, his hand came in contact with the bit of the machine, mangling his fingers and hand to such an extent that it was necessary to cut off parts of his fingers. It further avers that said injury was caused by the negligent act of the defendant in failing to guard said machine, and without any negligence on his part; that plaintiff had operated the machine for only two days prior to said accident.

Counsel for appellee point out that appellant's brief does not disclose that appellant excepted to the ruling of the court directing the verdict for appellee; that under rule 22 of this court it is essential that this should appear in the brief. Appellant, by permission of the court, has since filed an addition to the statement of the record contained in his original brief, in compliance with said rule. With this rule complied with, the only remaining question discussed is whether or not appellant was guilty of contributory negligence. The evidence showed that the machine was used in cutting moulding; that there was a lower head to the machine which was fastened to a stem which ran down a false leg of the machine and that the same was held in place by a set screw, so-called, or a jam nut. By loosening this nut the operator could turn the screw which was at the bottom of this false leg and thereby elevate or lower the head, making it cut deeper or shallower, as desired; that hoods or guards had been provided for the machine which properly protected the same and aided in carrying away the shavings or dust; that about two months before, the machine had been removed from near the wall and the guards left off, leaving the machine unguarded; that it was necessary to adjust the machine by running up this lower head; that appellant was required to do so; that it was not necessary to stop the machine to effect this; that the screw was six or eight inches below the head; that appellant, without stopping the machine, used a wrench on this occasion which threw his hand some five or six inches further away; that when he placed the wrench on the screw his fingers were directly under and within six inches of the knives, the space between the knives and his fingers being open; that the wrench was furnished by appellee; that for some reason it slipped and appellant's hand was thrown into the knife and injured; that if the machine had been guarded, appellant's hand would have struck the guard and would not have been injured. It further appears that the knives were making 3,800 revolutions per

minute; that the machine was operated by steam power; that it was provided with a belt, a tight and a loose pulley and a belt shifter. That when the belt was adjusted to the tight pulley the machine was set in operation, and, when adjusted to the loose pulley, it was stopped; that the belt could be shifted from the tight to the loose pulley by the operator by use of the belt shifter. That appellant had started and stopped this machine on other occasions by use of the belt shifter; that he had had several years experience as a wood worker, and had operated several machines in several factories, and had operated a sticker similar to the one on which he was hurt, before he worked for appellee, and knew that the machine was dangerous. There was no evidence that the bits or head could be adjusted while the machine was not running. Appellant testified that at the time of the accident he had to run the head up to dress the bottom part of the moulding, "it was leaving it rough."

If the appellant was guilty of contributory negligence, it was because he tried to adjust the machine when it was in motion. It is claimed by the appellee that it appears from the evidence that there were two methods of adjusting the set screws open to appellant -one by stopping the machine and making the adjustment while it was not in operation, and the other by making the adjustment while the machine was running; that the latter was the more dangerous methodand that where two methods of performing a service are open to a servant, and he chooses the more dangerous one, he is guilty of contributory negligence; citing Labatt on Master and Servant, vol. 1, § 339; Levey v. Bigelow, 6 Ind. App. 677, 34 N. E. 128; Gorman v. Des Moines Brick Mfg. Co. (Iowa) 68 N. W. 674; Deering v. Canfield & Wheeler Co. (Mich.) 85 N. W. 874; Foss v. Bigelow et al. (Wis.) 78 N. W. 570; Moody v. Smith (Minn.) 67 N. W. 633; Hartwig v. Bay State Shoe & Leather Co. (N. Y.) 23 N. E. 24; Buehner Chair Co. v. Feulner, 28 Ind. App. 479, 63 N. E. 239; Bailey on Master & Servant, p. 169; Jonesboro, etc., Co. v. Baldwin, 57 Ind. 86. These authorities may be said to fairly support appellee's claim, but it should appear that this choice was made with knowledge and that the bits could be adjusted while the machine was not running. It was necessary that the head be run up and down frequently as they varied the size of the moulding. It was moved by turning the screw which was provided for the purpose. It was not shown that the machine was ever stopped to run this head up or down. All that was required of appellant was that he should use reasonable care. he was guilty of contributory negligence it was only because he attempted to make the adjustment when the machine was running. Appellant testified that it was not necessary to stop the machine to change the screw. far as any inference may be drawn from the 78 N.E.-22

If

So

evidence, it was the custom to make such adjustment while the machine was running. By analogy the following cases strongly support the proposition that the evidence made a case to be submitted, under proper instructions, to the jury: Wortman v. Minich, 28 Ind. App. 31, 62 N. E. 85; Davis Coal Co. v. Poland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319; Espenlaub et al. v. Ellis (Ind. App.) 72 N. E. 527; B. & O. S. W. Ry. Co. v. Cavanaugh (Ind. App.) 71 N. E. 239; Davis v. Mercer Lumber Co. (Ind. Sup.) 73 N. E. 899; Shearman & Redfield, Neg. (5th Ed.) § 55; Beach on Contributory Negligence (3d Ed.) $ 447.

We need only refer to the rule that where there may be a difference of opinion as to whether an act is negligent or not, or how work should be performed in order to be safe, the question should be left to the jury. It has been held by this court that a request on behalf of the party having the burden of the issue on a trial, for a direction to the jury to return a verdict in his favor, should not be granted when the verdict must be based upon the testimony of witnesses, wholly or partially. Jacobs v. Jolley, 29 Ind. App., at page 44, 62 N. E. 1028; Wagner et al. v. Weyhe et al. (Ind. Sup.) 73 N. E. 89; Board, etc., v. Garrigus (Ind. Sup.) 3 N. E. 87; Messick v. Midland R. Co., 128 Ind. 81, 27 N. E. 419; Gaff et al. v. Greer et al., 88 Ind. 122, 45 Am. Rep. 449; Haughton v. Etna Life Ins. Co. (Ind. Sup.) 73 N. E. 592. The negligence of the defendant in failing to provide a guard, is not questioned, nor that the machine could and should have been guarded as required by law, nor is it claimed that the plaintiff was guilty of any negligence unless the attempted adjustment constituted negligence. The burden of the issue upon the question of contributory negligence raised by the general denial, is upon the defendant, it is to be determined from all the evidence in the cause. The court erred in directing the verdict.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.