The first of these sections is as follows: "All corporate property, including capital stock and franchises, except where some other provision is made by law, shall be assessed to the corporation as to a natural person, in the name of the corporation. The place where its principal office in this state is situated shall be deemed its residence, and if there be no principal office in the state, then such property shall be listed and taxed at any place in the state where the corporation transacts business." This section is general as to the character of corporations and stock to be listed and assessed under it, and, in the absence of any other provision, might be sufficiently comprehensive to include building associations; but section 8507, supra, supplies a specific provision as to the taxation of building associations. It is as follows: "Building, loan-fund and saving associations shall be listed and assessed in the following manner: Before the first day of June of each year the secretary of every building, loan and savings association shall file with the auditor of the county in which said association was organized a duplicate statement, verified by said secretary, showing the amount paid into said association by shareholders upon shares of stock issued by it up to the first day of April preceding and then outstanding, and also the amount loaned up to said date to shareholders and secured by mortgage upon real estate listed for taxation. And the auditor shall deliver said statement to the proper assessor, who shall proceed to assess said association for taxation with the amount shown to have been paid into said association up to the first day of April upon outstanding shares of stock, less the amount shown by the statement to have been loaned to shareholders upon said mortgage security so listed for taxation, and neither said association nor the shareholders therein shall be liable to other taxation upon said shares of stock." Practically the effect of this section is to list and assess against the association the difference between the amount paid in by shareholders and the amount loaned to them by the association; that is to say, the association is chargeable with the difference between receipts and loans. There is no provision by this section for assessments of any kind as against members of the association, borrowing or nonborrowing; and the clause closing said section, "and neither said association nor the shareholders therein shall be liable to other taxation upon said shares of stock," is a declaration that the stock is not intended to be taxed. As was held in Deniston v. Terry, 141 Ind. 677, 41 N. E. 143, this exemption was not intended as a limit upon the right to further tax the holders of stock or those to whom building associations were indebted. In fact, the theory of this section is not the taxation of stock, but is, as to the building association, the taxation of the balance on hand or remaining to the credit

of the association. As intimated in the case just cited, any other construction of the exemption would render it unconstitutional, as in violation of article 10, § 1, Const., which provides that the only property which may be exempted from taxation is that for municipal, educational, literary, scientific, religious, or charitable purposes. In the case cited it was further held, with reference to stock fully paid up, that it was taxable, not as stock, but as a credit in favor of the stockholder; and it was said in that case that there was no reason to distinguish between nonborrowing stock partly paid up or fully paid up. The conclusion that the holdings of a nonborrowing member should be taxed as a credit, and not as stock, is supported by the fact that building associations, in the form now known to the laws of this state, admit of the withdrawal at any time of the amount which the holder has paid into the association, together with the legal rate of interest upon the same. Burns' Rev. St. 1894, § 4447. This theory has been further adopted with reference to paid-up or prepaid stock by the legislature of 1897. Acts 1897, p. 284. It is quite clear, we think, that one who deposits his money with an association subject to call at any time upon reasonable notice, and who may receive the interest upon or earnings of the money so deposited, is a creditor to the extent of such deposit and interest or earnings, and, although his credit may be evidenced by a certificate of stock or other writing, he is nevertheless a creditor, and his holdings, whatever called or however evidenced, constitute a credit. Of this question it was said in Deniston v. Terry, supra: "Whether the stockholder who has loaned his money to the association, and has received certificates of stock in evidence of such loan, has in fact paid in full for the stock, or has made only part payment thereon, he should in either case be taxed for the true cash value of his stock, and that value will, in general, be the amount paid by him on the stock; but the stockholder who is simply a lender to, a creditor of, the association, holds ais stock in evidence of such credit, just as he might hold the promissory note or other obligation of the association. Whether, in fact, he holds a certificate of stock or not, or whatever other evidence there may be of such credit, can make no difference. He is an actual creditor. The law looks through names, and sees the things which the names stand for. Such a

credit, therefore, by whatever name it may be called, or however it may be evidenced, is taxable under the constitution as any other credit. Any law which should provide otherwise would be invalid." Treating, therefore, the holdings of the appellant as a credit, and not as stock, there is no provision that such credit shall be taxed against the association, and it would only remain to be determined whether it was taxable as

against the holder. There is little reason to claim that a credit upon which no further payments are owing is taxable to the holder of such credit, and that a partly paid up credit is not taxable to the extent of the payments thereon. This is the effect of the holding in Deniston v. Terry, supra, and, unless some reason not appearing when that case was decided shall raise a different view of the question, we must follow the holding in that case. Section 8422, supra, applies to the assessment only of corporate property, and that "where some other provision is" not "made by law." It would, therefore, not relate to assessments against individuals. Being a general provision, and section 8507 being a specific provision upon the same subject, the former, under the wellknown rules of statutory construction, would not control. The legislature certainly has the power, in classifying and providing methods of taxing property, to charge the same, if it consist of investments in corporations, either to the individual member or the corporation; and it not infrequently occurs that corporate property is assessed directly, instead of against the stock. The property, or the investment which the member makes, supplies the essential characteristics of the property to be taxed, and not the stock. The investments of the nonborrowing member of a building association are as so much cash deposited for profit in the way of interest or participancy in earnings, and when that investment is taxed the stock should not also be taxed. Likewise, when any species of property is taxed to its owners in severalty, it should not be taxed also against its owners collectively. Considering the constitutional inhibition against the exemption of property from taxation, and indulging in the presumption that the legislature did not intend to violate the constitution, we are aided in the conclusion that it was intended to tax, not the stock of the corporation, but the holdings of its members and such balances as may remain in the hands of the association or officers.

The suggestion of the learned counsel for the appellant that the case of Board v. Holliday (Ind. Sup.) 49 N. E. 14, should control this case in favor of appellant is certainly made upon a misapprehension of the holding in that case. It was not decided in that case that there should be a specific selection of each article, credit, or kind of property to indicate the legislative intention to tax it, or to warrant its assessment for taxation. A selection by general classification is sufficient, and we do not understand it to be claimed here that, if we are correct in holding the appellant's right a credit, it is not within the legislative classification of property to be taxed. The essence of the decision mentioned was in the holding that the legislature

had not, directly or indirectly, supplied the methods or instrumentalities for estimating the value for assessing policies of life insurance, and it was not held that such policies were not included in the legislative classification of property for taxation. Nor is it claimed that the credit here in question possesses any peculiarity rendering its valuation or assessment difficult, or that there could be two or more methods of ascertaining the value thereof. Indeed, the legislature has recognized the value of such credits in no uncertain or ambiguous terms. By section 4447, supra, it is provided that its withdrawal value is the amount paid in, and, under certain circumstances, added interest. Its value, however, is ascertainable by the ordinary business method of ascertaining the value of a promissory note, certificate of deposit, or draft.

Speaking of the case of Deniston v. Terry, supra, counsel for appellant say: "In that case the sole question was the right to tax paid-up stock, and we think the court decided that question properly." This conclusion is in entire harmony with all that we have said in this case. The only possible difference between this case and that is in the proportion in which the credit has been created. We know of no reason for distinguishing between fully paid up and partly paid up credits of this class. A subscription of $1,000, upon which $500 has been paid, is as valuable as a $500 subscription fully paid. As to either, the sum can be drawn upon notice, and as to either its earnings depend, not upon the character of the credit, but upon the mutual obligations assumed by the parties. Nor do we observe any occasion for refinement of distinction upon the question as to whether members of a building association are stockholders or creditors. This, we think, may be said as to borrowing and nonborrowing members. The association is formed for the purpose of gathering the funds of those having and earning a surplus, and of lending them to those who want to borrow, with the privilege of making small payments. Those who lend and those who borrow are members, whether they are called stockholders or not, and whether they have certificates of stock or not. Their membership enables one set to lend their surplus to another, and the corporate entity, through its official instrumentalities, is the agency or source through which this method of borrowing and lending is carried on. The amount paid in by a nonborrowing member is subject to withdrawal at pleasure, and the withdrawal, as in the case of a stockholder in a bank who withdraws his individual deposits, does not affect the status or character of the corporation. The judgment of the circuit court is affirmed.

TION OF RISK-MINING OPERATORS. 1. A room in a coal mine was inspected by the mine boss, and coal was found adhering to the roof, and all of it that was loose was taken down by his orders. Held, that where an employé subsequently entered the room in the due course of his employment, saw the overhanging coal, tested it, and found it firm, but, being an experienced miner, knew it was liable to fall, and went to work underneath it, and was injured by its falling on him, the company was not liable.

2. Rev. St. 1894, § 7472, making it the duty of the mining boss to visit and examine every working place in the mine at least every alternate day, and see that the same is properly secured by props or timber, does not require him to place the props in such a way as to interfere with the necessary working of the mine.

Appeal from circuit court, Sullivan county; G. W. Buff, Special Judge.

Action by John A. Greenwood against the Island Coal Company. There was a judgment for plaintiff, and defendant appeals.

Reversed.

John S. Bays and Miller & Elam, for appellant. Davis & Moffett and Cullop & Kessinger, for appellee.

HOWARD, C. J. Appellee was employed by the appellant company in mining coal, and has brought this action to recover damages for injuries alleged to have been caused by the negligence of the company, in suffering coal to fall upon him from the roof of the mine in which he was at work. The jury returned a general verdict in favor of appellee, assessing his damages at $4,500. They also returned answers to interrogatories. The questions discussed by counsel may best be considered in connection with the action of the court in refusing to give judgment to appellant on these answers to interrogatories, notwithstanding the general verdict.

From the answers to interrogatories it appears that on the 16th day of October, 1895, and previous thereto, the appellant company was engaged in mining coal near Linton, in Greene county; that on said day, and for more than a year before, appellee was employed in the company's mine known as "No. 2," his business being to run a cutting machine, in which work he was assisted by one Sherwood; that there were a number of openings in the mine called "work rooms," each connected with a passageway or entry, the rooms being from 20 to 26 feet in width; that after a room was started at a given width it was usual for the miners to work at the face of the vein,-that is, at the end of the room furthest from the entry; that the vein of coal being mined on said 16th of October, 1895, was about five feet in thickness; that it was mined by the men operating the machines by cutting away a part of the lower edge of the vein across the 1 Rehearing pending.

whole face of the room, preparatory to blasting; that, after the machine men had done their work, other miners, called "loaders," drilled holes in the face of the coal which had been so cut under, into which holes blasting powder was inserted, and thereby masses of coal were thrown down and broken up; that, while the loaders were blasting coal in one room and removing it from the mine, the machine men were at work in another room, three loaders, in this case, following the two machine men; that it was the business of the loaders to clear up a room after a blast, and before any further cutting was done in it; that appellee was hurt in a room known as "No. 8," in the ninth entry east of the south main entry, his injury being caused by top coal and slate falling upon him from the roof of the room; that on the 16th day of October, 1895, the day on which appellee was hurt, and for several days prior thereto, one Newport was appellee's mine boss; that said mine boss visited room 8 on the 14th day of October, 1895, and then found top coal adhering to the roof of said room, extending across the end of the room next to the face of the coal, and being about 11 feet wide on the right-hand side of the room, and 31⁄2 inches thick; that the mine boss sounded this top coal, and found it loose at the point where he sounded it; that the mine boss then directed one of the loaders to take down the top coal, and before the accident occurred the loaders did take down a part thereof; that the part taken down began at the left side of the room, and the loaders took down all that was loose; that the mine boss again visited the room on the morning of October 16th, the day of the accident to appellee, and then saw that a part of the top coal had not been taken down; that about three-quarters of an hour after the mine boss left room 8, on the morning in question, appellee and his assistant brought in their cutting machine, and both noticed that a part of the top coal had not been taken down; that appellee then sounded said top coal by striking it with a pick, to discover whether it was loose and likely to fall down, but upon such sounding the coal appeared to be firm and to adhere closely to the roof of the room; that appellee's assistant, Sherwood, sounded the top coal in like manner with the handle of a shovel, and also found it firm and adhering tightly to the roof; that thereupon appellee and his assistant placed their machine, and began to cut the side of the room under said top coal, and after they had been at work for an hour and a half the top coal fell upon them; that the weight of the coal that came down was about 800 pounds, being all of the coal that adhered to the roof when they began cutting, and it fell a distance of 21⁄2 feet; that miners determine whether top coal, or other material adhering to the roof of a room, is likely to fall, by striking it and listening to the sound; that, if such material

is loose, it will give forth a hollow sound on being so struck; that no other method is shown for determining whether top coal is loose; that there is always more or less danger of top coal falling from the roof of a mine, and no one can determine by examination when it will fall; that appellee and his assistant, while running a cutting machine in appellant's mine, had eight different working rooms, and changed from one to another, going to a room which the loaders had made ready; that rooms were often shot, cleaned up by the loaders, and again entered by the machine men between the regular visits of the mine boss; that appellee and his assistant, Sherwood, when they went to work in a room, often found top coal adhering to the roof which the loaders had not taken down, and it was their custom on those occasions to test the condition of such top coal by sounding the same, and thus determining whether it was safe to work under; that on this occasion Sherwood sounded said coal all over its surface, and the coal sounded solid and safe, both when appellee sounded it and when it was sounded by Sherwood; that the pick, used by appellee, was the best thing for sounding top coal, and the shovel handle used by Sherwood was a good implement for that purpose; either being better than the implement used by the mine boss in sounding on the 14th of October, 1895; that, to judge of the safety of the top coal, no one could do more thar listen to the sound when it was struck; that appellee and Sherwood had good hearing when they sounded the top coal in room 8, and both heard the sound given forth when it was struck by the pick and the shovel handle; that the condition of room 8 when appellee and Sherwood entered it on the morning of the accident was open to their observation, but they did not observe its condition closely or sound the top coal over its whole surface; that the reason why top coal was often found adhering to the roofs of rooms in which appellee and Sherwood worked was because the entire vein did not always come down when the blast was fired; that Newport, the mine boss, had general charge of the safety of entries, rooms, and other places where employés or others had occasion to go in appellant's mine; that, in the course of the work in mining coal, that part of the room where work was actually done often became unsafe by reason of the manner in which such work was done, and the loaders often remedied the trouble which caused danger, by removing the top coal; that such dangers often arose and were remedied between the visits of the mine boss, and without his suggestion; that appellee had been a coal miner, a part of the time, for 11 years before the accident, and Newport had then been mine boss for about 10 days; that there was space in room 8 to the north and west of where the top coal that fell on appellee was adhering to the roof, in

which they might have worked their machine on the morning of the accident, but it was necessary for them to operate the machine under the overhanging coal; that the appellee placed his machine under the top coal, knowing that such top coal was there, in room 8, at the time he so placed his machine, and began work thereunder, because of the fact that he had sounded such top coal and believed it to be absolutely safe and free from danger.

It is not contended that these facts show contributory negligence on the part of appellee; but counsel for appellant do contend that the facts so found show that appellee assumed all risk of danger from the falling of the top coal. Counsel for appellee, on the other hand, contend that the danger was not obvious, but concealed or latent, and that as to such danger there is no assumption of risk. It is true that the danger was concealed, but it was concealed from appellant as well as from appellee. And while the duty of inspection rested upon the company, and it was required to furnish a reasonably safe place for its employés to work, yet we think the facts show that the duty so resting upon appellant was performed as fully as was reasonably possible. It is to be remembered that the defect in the roof was not in the passageways of the mine, but in the very place where appellee was at work, and of which he had a fuller and more complete knowledge than appellant could have. The cause of danger was in the immediate presence of appellee, and had been thoroughly tested by him and his assistant, and, on such test, was found by them to be, as they believed, perfectly safe. They often found such top coal adhering to the roof when they entered a room to work, and were in the habit of testing it, as they did on this occasion. The jury found that there is always more or less danger of such coal falling, and that no one can tell by any examination when it will fall. It was also found that such dangers often occur and the top coal is removed between the visits of the mine boss, and without his suggestion. No doubt, as to permanent openings through which persons pass and repass in the mine, it is the duty of the mine owner, made so by the common law as well as the statute, to see that the mine is safe from all dangers that may be avoided by removing or propping up loose places in the roof. And while the statute (section 12 of the act approved March 2, 1891 [Acts 1891, p. 57; Rev. St. 1894, § 7472]) makes it also the duty of the mining boss to visit and examine every working place in the mine at least every alternate day, and see that the same is properly secured by props or timber, and that safety in all respects is assured, yet these requirements must be taken in a reasonable sense. It cannot be intended that props shall be set up at the very place where the machine men are at work. The men

must have room to use their machines and tools and to engage in the actual work before them. Indeed, the fact that the mine boss is not required to be present oftener than every alternate day shows that these props are not to be set up before the workmen have cleared a place for them. It is found that rooms are often shot, cleaned up by the loaders, and again entered by the machine men between the regular visits of the mine boss.

In Railway Co. v. Howell, 147 Ind. 266, 45 N. E. 584, an employé was injured by reason of the parting of a coupling pin between two cars. The employé was at the time standing on the front of the engine holding the shackle bar in his hands, and it was unsuccessfully sought to charge him with having assumed the risk of the danger occasioned by the defective coupling pin. "Had he coupled the cars between which the link was used," said the court in that case, "and thus handled the defective appliance, and so had opportunity to observe it, there might be some propriety in holding him accountable for a knowledge of its condition. Employés are rightly held chargeable with knowledge of the condition of the tools and parts of machinery and appliances which they use or with which they come in contact." The same is true of the places in which employés are at work and with which they are in immediate contact. The condition and dangers of such places are liable to change from hour to hour, as the work progresses, and the employé himself has much better means of knowing of such condition and dangers than his employer possibly can have. An important consideration in such cases, as said by the supreme court of Iowa in Corson v. Coal Co., 70 N. W. 185, is whether the structure, appliance, or instrumentality is one which has been furnished for the work in which the employés are to be engaged, or whether the furnishing and preparation of it is itself part of the work which they are employed to perform. So in Finalyson v. Mining Co., 14 C. C. A. 492, 67 Fed. 507, where an employé was injured by material. falling from the roof of a mine, it was held that the rule as to providing a safe place to work did not fully apply to a case where the work consisted in making a dangerous place safe or in constantly changing the character of the place for safety as the work progressed. The case of falling top coal in such a case as the one before us is not unlike the caving in of a gravel pit, where it has been frequently held by this court that the employé assumes the risk of such a possible danger which is alike open to the observation of employer and employé. Water-Supply Co. v. White, 124 Ind. 376, 24 N. E. 747; Swanson v. City of Lafayette, 134 Ind. 625, 33 N. E. 1033. The jury here find that both appellant and appellee knew that a part of the top coal was left adhering to the roof

of the place where appellee began work. Appellee found the coal, as he and his assistant believed, to be so fast to the roof as "to be absolutely safe and free from danger." In this it turned out that they were mistaken, whether the defect then existed or was brought about by causes arising after appellee and his assistant had begun their work. Having equal or better opportunities than appellant for knowing the danger threatening him, it would seem that appellee could have no right of action. Were it not for the provisions of the statute above cited, and the failure of the jury to find whether the overhanging coal could be propped or timbered without undue interference with the work, the case would hardly admit of doubt. We are of opinion, however, from a consideration of the whole case as presented, that justice will best be promoted by granting a new trial, rather than by ordering judgment on the answers to interrogatories. Judgment reversed, with instructions to grant a new trial, and with leave to amend pleadings if desired.

DOBLE v. BROWNE et al. (Appellate Court of Indiana. April 20, 1898.) APPEAL-DEATH OF PARTY-ASSIGNMENT OF ER

RORS-AMENDMENT.

1. Under Burns' Rev. St. 1894, § 648 (Rev. St. 1881, § 636), declaring that in case of death of a party to a judgment before appeal is taken notice of appeal may be served on the persons in whose favor or against whom the action might have been revived if death had occurred before judgment, appeal is void where prosecuted against a party who died after rendition of judgment and before appeal.

2. Appeal being void because prosecuted against a party who died after rendition of judgment, but before appeal, there can be no substitution of party for him in the appellate

court.

3. An appellate court will not permit amendment of assignment of errors as to a material matter after expiration of time for appeal.

Appeal from circuit court, Vigo county; David N. Taylor, Judge.

Action by Budd Doble against Samuel A Brown and others. From adverse judgment, plaintiff appeals. Dismissed.

John L. Patterson, MeNutt & McNutt, and Davis & Turk, for appellant. Lamb & Beasley, for appellees.

HENLEY, J. Appellant filed his complaint and affidavit in attachment against appellees in the lower court. The Vigo Agricultural Society of Vigo County was made a garnishee defendant only. Appellee Samuel A. Browne answered the complaint and affidavit in attachment by a plea in abatement. A demurrer to this answer was overruled. Appellant refused to plead further, and upon motion of appellee Browne judgment was rendered against appellant. This judgment was rendered on the 15th day of March, 1895. Appellant prayed an appeal to this court.

The