evidence that Schilling paid assessment 153 for Williamson on July 3d. It is not shown that assessment 153 was the assessment for June; it is not shown but that assessment 152 was the June assessment and it is not shown that Schilling did not pay more than one assessment for Williamson. It might be inferred from the question and answer above set out that Schilling did pay the June assessment on June 19th. The presumption is that the payments were made when they were due, and it cannot be said that the evidence conclusively shows that the payment made on July 3d was the payment for June. Indeed, the contrary inference seems the most reasonable.

The judgment is therefore affirmed.

ROBINSON, C. J., and BLACK and MYERS, JJ., concur.

COMSTOCK, P. J. (dissenting). The suit was brought by the appellees against the appellant upon a beneficiary certificate issued by the appellant, May 29, 1902, for $1,000. The complaint is in one paragraph, and alleges the issuing of a certificate to James A. Williamson, providing that, if the member died during the second year, there should be paid $750 and $100 for a monument; that Williamson died August 24, 1903; that the member, Williamson, and the appellees, performed all the conditions; that the defendant denied all liability on the ground that all rights had been forfeited by Williamson's failure to pay certain assessments and dues payable prior to his death; and that the money was due, with interest. The demurrer to the complaint for want of facts was overruled. Appellants then filed an answer, alleging that the member (Williamson) failed to pay his assessment for July, 1903, and that, under his contract and the law, he thereby forfeited all rights under the certificate sued upon. To this answer the appellees replied: First, a general denial; second, that the appellant had, by custom of accepting assessments after due and by express contract and agreement, waived payment of the assessments. A demurrer for want of facts, sufficient to avoid the answers, was overruled to this second paragraph of reply. The second paragraph of reply was dismissed when both sides had rested. The trial by jury resulted in a verdict for the appellees for $770.50, on which judgment was rendered. The errors assigned are that the court erred in overruling the appellant's demurrer to the complaint, and its motion for a new trial. The sufficiency of the complaint is not discussed, and is therefore waived. The court permitted appellee to dismiss the second paragraph of answer, pleading waiver of the conditions of the certificate. In this there was no error. This left the issue formed on the complaint and the answer denying the payment of certain assessments.

of

The first question presented by the motion

for a new trial is, was the assessment for July paid? J. A. Murray, in behalf of defendant, testified that he was clerk at Live Oak Camp, No. 5, W. O. W., located at Memphis, Tenn., during the year 1903; that James A. Williamson was a member of said camp; that the last assessment paid to him (Murray) for Williamson, was paid to him by H. J. Schilling, July 3, 1903, $1.25 for assessment No. 153. H. J. Schilling testified that he had held the office of escort during the year 1903, of Live Oak Camp, W. O. W. He was then asked the following question: "Q. If you were acquainted with James A. Williamson, state if he was a member of your camp, and what, if anything, you know of any one for him paying an assessment for dues during the month of June, 1903. A. Yes, I know him, and paid his assessment for the month of June, 1903. Q. State with whose money such assessment or dues was paid in June, 1903; and, if your own, whether said Williamson ever repaid you. A. I paid it with my own money, and he had not paid me at the time of his death." It was adr 'tted by the plaintiff that the assessment for July, 1903, was $1.25 and due, but not admitted that it was unpaid. The plaintiff introduced in evidence a receipt for assessment No. 152 which receipt is in words and figures as follows:

The foregoing is all the evidence introduced upon the issue of the payment of the assessment for July, 1903. The proposition for which appellees contend, that the burden of proof is upon the defendant, where he pleads that certain assessments have not been paid by the insured, to prove such failure, is correct: Joyce on Insurance, § 3826. Thus it appears that the last assessment paid for Williamson, was paid by Schilling; was No. 153; was for the month of June, and paid July 3, 1903. Assessment 152 was paid in June, 1903. The assessment for each month was payable during the month, or on the first day of the following month and on failure to make payment on or before the first day of the following month, the member stood suspended. It will not be presumed that payment of the July assessment was made be fore it was required, under the custom which was practiced, especially in view of the fact that appellees, in the second paragraph of reply averred that the assessments against said member for a period of six months prior to his death, had all been paid and accepted by the defendant company, after

the first day of the month following that on which they became due, and that the defendant waived the failure to pay the July assessment, 1903, on or before the first day of the following month.

The third reason set out in the motion for a new trial is that the defendant was surprised and misled by the plaintiffs in this: that in conference between the plaintiff and defendant's counsel, the plaintiff's counsel claimed only that the defendant, by accepting assessments from the member, J. A. Williamson, had waived prompt payment of the assessment for July, 1903, and in which conference it was tacitly agreed that an assessment was due for July, 1903, of $1.25 and that it was never paid; that, in a letter written October 9, 1903, by B. Wood Jewell, chairman of the sovereign finance committee of the defendant, which committee passes upon all claims against the defendant to P. W. Frey, then the plaintiff's attorney, notified the said attorney that said Williams became suspended from the order for the nonpayment of his assessment and dues for July, 1903, and therefore had no claim. To this letter plaintiff's counsel answered January 11, 1904, by letter mailed to and received by said Jewell as follows: "We are representing the beneficiaries of Mr. J. A. Williamson under certificate No. 6064 in your order, and your letter of October 9, 1903 to Mr. Frey of this city stated that Mr. Williamson had forfeited his certificate by failing to pay his assessments and dues for July last, has been handed to us. In looking over the papers of Mr. Williamson, we note that it had been the custom to accept his assessments and dues after the time for paying them, according to the terms of the contract, had expired. As you know, this is a waiver of prompt payment. His receipts show that the payments were made as follows: No. 147 for December 1902, was paid January 2, 1903; No. 148 for January 1903, was paid February 2, 1903; No. 149 for February, 1903, was paid March 4, 1903; No. 150 for March, 1903, was paid April 2, 1903; No. 152 for May, 1903, was paid June 19, 1903; No. 153 for June, 1903, was paid July, 3, 1903. As you know the habit of accepting dues and assessments after the delinquency, is a waiver of prompt payment, and, under the circumstances, we submit that your order is liable for the payment of this claim. We hope that you will settle the matter up without involving us in litigation and putting our clients to the expense that would be occasioned thereby, etc." Signed "Denton & Seiler."

The motion further states that the defendant conducted its case upon the faith of these representations as it was known by both sides and that they were true, and having no intimation that such facts would be disputed, simply introduced such evidence as made certain the facts. That the entire

evidence was introduced upon both sides in less than one hour's time. That the plaintiff introduced no evidence except the receipt for the June 19, 1903 1903 assessment No. 152 and the plaintiff, relying upon the knowledge of both sides, and this receipt was for May, and defendant supposing it was offered only in support of the alleged waiver, offered no further evidence in reference to it and the evidence closed at 11 o'clock, the defendant opening with an argument of 10 minutes and the plaintiff answering it with an argument of about 20 minutes. For the first time and to the surprise of the defendant, the plaintiff's counsel argued to the jury that the receipt of June 19, 1903, for assessment No. 152, was in payment of the assessment for that month, not May, and therefore assessment No. 153 was for July and was paid July 3, 1903, when the plaintiff knew it was for June, etc. That the defendant was taken wholly unawares and by surprise, and the case being submitted to the jury in less than an hour after the argument began, had no time to meet and counteract this surprise, and thereby an erroneous verdict was returned by the jury. The foregoing statement is sworn to.

Just before the defendant rested, Mr. Charles L. Wedding, counsel for the defendant, said to the court, in the presence of the jury, that there might be some doubt as to what monthly assessment the receipt introduced by the plaintiff applied and that he would like leave to place a witness on the stand to explain the matter, to which the court assented and the said Wedding then called for Mr. Young, the bailiff of the court, who had been on the stand as a witness in the case, but Mr. Young being temporarily absent from the courtroom, counsel said that he thought it was clear enough, and rested his case. After the close of the argument and about 30 minutes after the jury had retired to consider of their verdict, Mr. Wedding, counsel for the defendant, moved and requested the court that he be allowed to show by the bailiff of the court, Henry Young, who was then present and a member of the order, that the said Young knew and would testify that assessment No. 152 was for May, 1903, and that assessment No. 153 was for June, 1903, and the counsel then requested that the jury be recalled, and that he be permitted to introduce the evidence, which motion and request was overruled and to which the defendant excepted.

The jury having returned a verdict against the defendant, and the defendant having filed its verified motions for a new trial on April 14, 1904, the plaintiffs filed in said cause counter affidavits on a motion for a new trial, of C. M. Sieler, P. W. Frey and George K. Denton as counsel for plaintiffs. Mr. Sieler made affidavit that he had not at any time made any agreement, either

tacitly or otherwise, with counsel for defendant, that the assessment in controversy, for the month of July, 1903, was not paid. Mr. Frey made an affidavit to the same effect. Mr. Denton that he was on the 8th day of April, 1904, and before and from the time the suit was originally filed, attorney for the plaintiffs and that he had charge of the case; that he had never at any time, tacitly or otherwise, agreed that the assessment for July, 1903, was not paid; that he never had any knowledge or information on the question as to whether or not the assessment for the month of July, 1903, was paid, except the statement in a letter written by the chairman of the sovereign finance committee, on October 9, 1903, in which said chairman claimed that the order was not liable for the payment of the claim under the certificate in controversy, for the reason that the member had not paid his assessment and dues for the month of July, 1903; that assuming that this statement was true, and having no knowledge to the contrary, the plaintiffs not having lived in the same city or state with their brother at the time of his death and knowing nothing to the contrary, he assumed the assessment paid July 3, 1903, must be for the month of June and that the, assessment paid June 19, 1903, must be for May, and that other assessments referred to in the letter set out in the defendant's third cause for a new trial, had likewise been paid for the months preceding that in which they were paid, and prepared to try the case on the theory set out in the second paragraph of reply; that is, that there had been a waiver of prompt payment by the habitual acceptance of past due assessments; that he assumed this solely upon the faith of the statement of the chairman of the sovereign finance committee, before referred to, and had no knowledge that such was not the case until shortly before the case was called for trial, when, in looking over the testimony which the defendant had secured from the clerk, J. A. Murray and the escort, H. J. Schilling, he learned that the clerk of the local camp had not accepted the past dues from the member J. A. Williamson and that therefore the assessment paid on July 3, 1903, was the assessment for that month and that the assessment for June 19, 1903, was the assessment for that month and that after the evidence was introduced, seeing that, under the testimony, no past due assessment had been accepted from the deceased member and that therefore there was nothing in the evidence to sustain a claim of a waiver, we dismissed the paragraph of reply setting up the waiver, as we were compelled to do in view of the testimony introduced by the defendant at the trial; that the plaintiff then went to trial on the issue made by the general denial to the defendant's answer, setting up the nonpayment of the July assessment. Then affiant further says that

before the case was argued to the jury, he stated to counsel for the defendant, in the hearing of the court, that he would admit that there was an assessment for the month of July, 1903, but refused to admit that it was not paid, and the court, prior to the argument, stated to counsel for defendant, his understanding that the agreement was to this effect and that the question at issue was as to whether or not the assessment for July, 1903, was paid.

In further support of the motion for a new trial, defendant filed the affidavit of J. A. Murray, as follows: "That he is a member of the defendant order, Woodmen of the World, and was, during the year 1903, clerk of the Live Oak Camp, Memphis Tenn.; that the last assessment ever paid by or for J. A. Williamson, a member of said Live Oak Camp, was No. 153, for the month of June, 1903, which was paid by H. J. Schilling, July 3, 1903, upon evidence that said Williamson was at the time, in good health. That assessment No. 152, paid June 19, 1903, was for the month of May, 1903, and not for the month of June, 1903, and that said J. A. Williamson was suspended from the order on the 2d day of August, 1903, for the nonpayment of assessment No. 154 and so reported in my report to the Sovereign Camp, for the month of July. The said assessment No. 154 for July, 1903, has not been paid or tendered me since. Subscribed and sworn to," etc. Also the affidavit of John F. Bittrolf, as follows: "John F. Bittrolf says that he is and has been for several years, a member of the Woodmen of the World, the defendant order, and has been clerk of Live Oak Camp for the last three years. That assessments payable by the members of said order each month are numbered continuously beginning with No. 1 upon the foundation of the order about 13 years ago. That assessments for the first 7 months of the year 1903 upon the members of the order including all camps in the states of Indiana, Tennessee, and other states belonging to the defendant order, were as follows: No. 148 for January, 149 for February, 150 for March, 151 for April, 152 for May, 153 for June and 154 for July. Subscribed and sworn to," etc.

The question of the agreement between counsel as to the fact in issue, was for the court. The recalling of the jury to hear additional testimony was largely within the discretion of the court, but if the affidavits of the officers of the defendant company are true, the judgment of the court is wrong The purpose of judicial investigation is to do justice, even if the failure of appellant's counsel to introduce the additional evidence in question, before the retirement of the jury, was negligence, which we do not concede, yet it is brought to the knowledge of the court upon the showing made, that if the judgment is permitted to stand, injustice will be done the defendant. Appellants

should not be denied the privilege of making legitimate proof of her defense because counsel differ in their statements upon the subject of the alleged agreement.

The judgment should be reversed and a new trial had, because, first, the only reasonable inference which can be drawn from the evidence, is that the July assessment was not paid, and that there is no evidence even tending to show that it was paid; second, that to refuse a further hearing is to affirm a judgment in the face of offered evidence that it is without pretense of right.

WILEY, J. (dissenting). I concur in the dissenting opinion upon two grounds: First. Because in my judgment the evidence shows beyond a question of doubt that the insured did not pay his July assessment, and that by reason thereof he stood suspended. Second. It clearly appears from the entire record that an incorrect result was reached in the court below as a result of which an unconscionable injustice has been done appellant.

The judgment should be reversed.

(38 Ind. A. 607)

ADAMS v. CENTRAL INDIANA RY. CO. (No. 5,628.)

(Appellate Court of Indiana, Division No. 1. Oct. 10, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-ASSUMPTION OF RISK.

Where a telegraph lineman was directed by his employer to remove the wires from an old pole to a new one, which had been one of his duties in the employment for several years, and he was given no specific directions as to the method of doing the work, and did not rely on an inspection of the condition of the old pole by the master, but made such inspection himself, he could not recover for injuries from the breaking of the pole underground and falling while he was at the top removing wires, since he assumed the risk.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88 574-600.] 2. SAME-EVIDENCE-BURDEN OF PROOF.

In an action for injuries to a servant, the burden is on the servant to show neglect of duty on the part of the master.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 895.]

Appeal from Circuit Court, Boone County; Saml. R. Artman, Judge.

Action by Orion E. Adams against the Central Indiana Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

B. F. Ratcliff, for appellant. S. M. Ralston and Urban C. Stover, for appellee.

ROBINSON, C. J. Appellant sued for damages for a personal injury. Trial by the court, and upon a special finding of the facts the court stated a conclusion of law in appellee's favor and rendered judgment accordingly. The only error assigned is that the court erred in the conclusion of law.

The facts found are, in substance, as follows: From March 20, 1903, to October 31, 1903, appellant was employed by appellee as a telegraph repairman, and it was his duty to keep the telegraph poles in proper position, the wires connected, insulated, and clear of all obstructions, and to make all necessary repairs on the line, and for the purpose of performing such work had authority to call on track and section foremen for assistance. That in the discharge of his duty appellant was required to and did load and unload telegraph poles and distribute the same, dig holes for such poles, set the same, trim trees to prevent interference with wires, pull slack out of wires, put in new wires, wire the offices, transfer wires from old to new poles, and take down old poles and replace them with new ones. That in the performance of such service appellant acted, not only under his general employment, but frequently upon special orders from appellee's superintendent and train dispatchers, specifying particular work that he should do. That on October 31st appellant was ordered by the train dispatcher, to whose orders appellant was subject, to take down a certain pole and transfer the wires from it to a new pole. That the removal of the old pole was necessary, because it obstructed a driveway being opened to an elevator on the railroad. The pole was about 28 feet high, 10 inches in diameter at the base, and 4 inches at the top; about 4 feet of the top being formed by a splice. It was about 4 or 5 feet higher than the average; but some other poles on the line were as high, and some higher. Attached to the top were two line wires, and a guy wire extending about 30 feet to a tree; from the ground to the top were crossing spikes extending out 4 or 5 inches. That the removal of the old pole and setting the new one and transferring the wires was work of the same kind and character which appellant had been performing at different intervals during his entire term of service. That in removing old poles appellant was required to and did depend upon his own inspection of such poles to determine their safety in climbing the same to remove wires. That appellee had no person in its employ whose special duty it was to inspect the poles and determine their safety for appellant before he would climb the same. That the removai of the pole was more dangerous and haz ardous, on account of the crossing spikes, than removing an ordinary pole, because he could not climb or slide down the pole rapidly. That appellee did not inform appellant how long the pole had been in use, and did not give appellant any specific instructions as to the method by which the pole was to be removed. That the pole had the appearance of an old pole, which appellant and appellee knew. That prior to October 31st appellant had climbed the pole at