said county and state aforesaid, did then and there, unlawfully, in a rude, insolent, and angry manner, touch Charles Wells, with the intent then and there him, the said Charles Wells, feloniously, willfully, purposely, and with premeditated malice, to kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana." The defendant moved the court to quash all of that part of the indictment relating to the felonious intent charged, which motion was sustained by the court, and the attorney for the state reserved the proper exception, and, that the decision of the court may be reviewed, the state prosecutes this appeal.

In our opinion the court erred in quashing the said part of said indictment. The gist of the offense, whether it be a simple or a compound assault and battery, consists in the acts which constitute the assault and battery. It has long been the law of this state that an assault and battery is well charged if the language of the statute creating the offense is followed or equivalent language employed. Cranor v. State, 39 Ind. 64; Sloan v. State, 42 Ind. 570; State v. Wright, 52 Ind. 307; Knight v. State, 84 Ind. 73; State v. Smith, 74 Ind. 557.

We cannot imagine any good reason for requiring greater particularity in this respect in a compound than in a simple assault and battery, and none has been suggested. The intention which exists in the mind of the accused when the offense is committed not be

ing tangible, nothing more can be alleged with reference to it than to allege its existence in the language of the statute.

overruled. Buntin v. State, 68 Ind. 38, decides the principle; also, State v. Miller, 98 Ind. 70. It was held in Scudder v. State, 62 Ind. 13, that it is sufficient to charge the intent in the language of the statute, and again in Skaggs v. State, 108 Ind. 53, 8 N. E. Rep. 695. Smith v. State, 93 Ind. 67, is not in conflict with our conclusion, but supports it. The indictment was held bad, because the word "felonious," one of the words descriptive of the crime as defined by the statute, was omitted.

We are of the opinion that the indictment contained all of the necessary allegations to a good indictment for an assault and battery with the intention to commit murder in the first degree, and that the court erred in its ruling, and in quashing that part of the indictment relating to the felonious intention. Appeal sustained, at the costs of the appellee.

(120 Ind. 426)

WABASH COUNTY v. PEARSON.1 (Supreme Court of Indiana. Oct. 9, 1889.) COUNTIES-DEFECTIVE BRIDGES-PLEADING.

1. In an action against a county for an injury alleged to have been caused from a defective bridge, an allegation in the complaint that such bridge was safely used for 13 years does not overstructed of unsafe and unsuitable material. come the statement that it was negligently con

2. The cause of action accrued only when the injury occurred, and the statute of limitations did not begin to run until then, though defendant's negligence occurred at the construction of the bridge many years before.

3. Where it is alleged that the county negligently constructed the bridge of unsafe and unof the unsafe condition of the bridge is unnecessary. suitable material, an allegation that it had notice

4. Where the county knowingly employed in"competent persons to repair such bridge, and knew that their work was so negligently and unskillfully done as to leave the bridge in an unsafe condition, it is liable for any injury resulting therefrom.

It is contended that the word "thereby,' or some other equivalent word, should have followed the word "touch," so as to connect it with the felonious intention, as "that one George Jenkins, late of said county, on the 3d day of February, 1889, at said county and

5. Testimony of a surgeon concerning statements made to him by plaintiff as to the nature and location of his pain is admissible.

6. Where a verdict states sufficient facts to enable the court to pronounce judgment, a motion for a venire de novo will be denied, though it does not find upon all of the issues.

Appeal from circuit court, Huntington county, M. WINFIELD, Special Judge.

Action by Ephriam Pearson against the board of commissioners of Wabash county, for injuries alleged to have been sustained from a defective bridge. Judgment for plaintiff. Defendant appeals.

Warren B. Sayre, H. B. Shively, and Kenner & Dille, for appellant. Hutchins, Farrar & Branyan, for appellee.

state aforesaid, did then and there unlawfully, in a rude, insolent, and angry manner, touch Charles Wells, with the intent then and there and thereby him, the said Charles Wells," etc. No more certainty under our Code of Criminal Procedure is required in a criminal, than in a civil, pleading. All that is necessary is that the averments be certain to a common intent. Rev. St. 1881, §§ 1731, 1755; McCool v. State, 23 Ind. 127; Meiers v. State, 56 Ind. 336. That the indictment under consideration was thus certain as to the degree of felonious homicide intended to be charged, there can be no question. The statement is simple, plain, and direct that ELLIOTT, C. J. The appellee's complaint the defendant committed the assault and is in three paragraphs, and charges the apbattery charged, and that his purpose was to pellant with having negligently failed to keep commit the crime of murder in the first de-a public bridge safe for travel. Our decisgree. Nothing could be added to it to make it ions settle the question of the liability of more so, and to interpolate the word "there- counties for a negligent breach of duty reby," or any equivalent word, or any number of equivalent words, would be tautology, and spoil the euphony and simplicity of the sentence. Williams v. State, 47 Ind. 569, is a case squarely in point, and has never been

specting public bridges, but they do not hold, by any means, that a county is to be regarded as an insurer of the safety of those structures. If ordinary care is exercised in constructing and maintaining the bridges, there 1 Rehearing denied.

In the second paragraph of the complaint it is averred that the appellant negligently constructed the bridge of unsafe and unsuit- The motion for a venire de novo was propable material, and it thus appears that the erly overruled. There is no imperfection in appellant itself was the wrong-doer, so that the verdict, for sufficient facts are stated to the case does not fall within the rule that a enable the court to pronounce judgment, and, public corporation cannot be liable for suffer- under the rule which prevails in this state, ing a bridge or highway to become unsafe, the failure to find upon all the issues does unless it has notice of the defect. If the not entitle a party to a venire de novo. original wrong is that of the corporation it- son v. Hamilton, 75 Ind. 71; Jones v. Baird, self, and is of such a nature that it endangers 76 Ind. 164; Glantz v. City of South Bend, the safety of travelers, it is not necessary to 106 Ind. 305, 6 N. E. Rep. 632; 1 Work, Pr. allege that it had notice of the unsafe condi- § 971, and cases cited. This has been the tion of the bridge or highway. If the negli- rule since the decision in Graham v. State, gence is in the construction of the highway 66 Ind. 386, although the earlier cases deor bridge, then it is not necessary to aver no-clared a different rule. Quill v. Gallivan, 108 tice. Board v. Bacon, 96 Ind. 32. It must, Ind. 235, 9 N. E. Rep. 99, and cases cited; of course, be appropriately shown that ordi- Bartley v. Phillips, 114 Ind. 189, 16 N. E. nary care was not exercised, and, where neg- Rep. 508; Railway Co. v. Finnell, 116 Ind. ligence is averred, this is shown. 414, 19 N. E. Rep. 204.

In the case of Glantz v. City of South | justice of the peace or mayor of a city, where Bend, supra, the court referred to Bosseker the amount in controversy, exclusive of inv. Cramer, 18 Ind. 44, and some other cases, terest and costs, does not exceed $50: providand, after showing that the doctrine of those ed, however, *** that the party obcases had been denied in Graham v. State, taining judgment shall not take an appeal and that the later cases approved the doctrine after receiving any money paid or collected of that case, declared, in effect, that the rule, thereon." This statute would seem to be conas stated in Graham v. State, must be con- clusive upon the question here involved. It sidered as established. The effect of the de- is not denied by the appellant that his attorcisions has been to overrule Bosseker v. neys had authority to receive and receipt for Cramer, although the express statement that any and all moneys collected on the judgit was overruled has probably not been made. ment obtained by them for him. Their reWe feel bound to adhere to what has so ceipt for the money, at any time before they long been the rule, and to hold, as has been were discharged, bound their client, and reso often held in recent cases, that where the lieved the clerk from any liability to the verdict is perfect on its face, and so fully judgment plaintiff. Upon the principle that finds the facts as to enable the court to pro- the client is bound by the acts of his attor nounce judgment upon it, a motion for a ney, when the act is within the scope of the venire de novo will be denied, although the attorney's employment, we think it must be verdict may not find upon all of the issues. held that the appellant had accepted money Judgment affirmed. upon the judgment which he seeks to reverse upon the appeal, before the appeal was taken. The money was paid in July, 1888, and the appeal was not taken until March, 1889. think the motion to dismiss the appeal should be sustained. Clark v. Wright, 67 Ind. 224; Railroad Co. v. Johnson, 84 Ind. 420; Sterne v. Vert, 108 Ind. 232, 9 N. E. Rep. 127; Sterne v. Vert, 111 Ind. 408, 12 N. E. Rep. 719. The appeal is dismissed at the costs of the appellant.

(120 Ind. 266)

MCCRACKEN v. CABEL et al. (Supreme Court of Indiana. Oct. 8, 1889.)

APPEAL-ATTORNEY AND CLIENT.

Rev. St. Ind. 1881, § 632, provides that the party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon. Defendant paid the clerk of court the amount of plaintiff's judgment, and the clerk paid $150 of it to plaintiff's attorneys, taking receipt therefor. Held that, as the act of the attorney within the scope of his employment binds his client, the money was received by plaintiff on the judgment, and an appeal thereafter taken must be dismissed.

Appeal from circuit court, Daviess county; DAVID J. HEFRON, Judge.

Padgett & Paget, for appellant. Gardnier & Taylor, for appellees.

COFFEY, J. This was a proceeding instituted in the Daviess circuit court by the appellees, to condemn land for right of way for a lateral railroad under section 3987, Rev. St. 1881, with a view of reaching a coal mine in said county. The report made by the viewers appointed by the court was excepted to by the appellant, John McCracken, over whose land the proposed railroad ran, and the cause, as to him, was tried in the circuit court by a jury, who returned a verdict in his favor for the sum of $320.45, upon which judgment was rendered. His attorneys of record, Messrs. Baker & Padgett, took a lien upon said judgment for the sum of $150, their fees for obtaining said judgment. The appellees paid to the clerk of the court the full amount of the said judgment, interest, and costs, and the said clerk paid to the said Baker & Padgett $150 of the money so collected on the judgment, and they receipted him therefor. Subsequently this appeal was taken, and the appellees now move to dismiss the appeal under the provisions of section 632, Rev. St. 1881. That section provides that "appeals may be taken from the circuit courts and superior courts to the supreme court by either party, from all final judgments, except in actions originating before a

We

In an action against a benefit society for sick benefits plaintiff is entitled to recover on a valid claim, though he did not exhaust the remedies known to the society, for the recovery of claims, as required by its laws, before bringing suit, where he is prevented from doing so by the willful refusal of the proper officer to certify to his sickness, from which refusal no appeal is given by the laws of the society.

Appeal from superior court, Marion county; D. W. HoWE, Judge.

Action by Fritz Stein against the Supreme Sitting, Order of the Iron Hall, to recover benefits due him on account of sickness. Judgment for plaintiff. Defendant appeals. Albert W. Wishard, for appellant. Wallace, for respondent.

Wm.

OLDS, J. This is an action by the appellee to recover $150 on account of sick benefits claimed to be due him from the appellant. The case was put at issue, a trial had, and judgment for the appellee for $150. The appellant is a charitable and benevolent society, incorporated pursuant to the laws of the state of Indiana. Its objects and purposes, as set out in its articles of association, provide that "the principal objects of the Order of the Iron Hall, of which this association is the head, shall be to unite in bonds of union, protection, and forbearance all acceptable white persons of good character, steady habits, sound, bodily health, and reputable

calling, who believe in a supreme, intelligent | membership therein I do further pledge my being, the creator and preserver of the uni- sacred honor that I will present only just verse; to improve the condition of its mem-claims for sick benefits; that I will accept as bership morally, socially, and materially, by just whatever amount shall be allowed me by instructive lessons, judicious counsel, and the branch of which I may be a member uptimely aid, by encouragement in business, on each and every claim for sickness or disand by assistance to obtain employment ability that I may present for benefits; that when in need; to establish a benefit fund, the same shall be a full settlement therefor. from which members of the said order who And I further promise and agree that I will have complied with all its rules and regula- not object to a review of any claim for benetions, or the heirs of such members, may re- fits that I may file for sickness or disability ceive a benefit in a sum not exceeding one by the supreme medical director, and that thousand dollars, ($1,000,) which shall be his decision thereon shall be accepted by me paid in such sums and at such time as may as a final settlement for the amount due me be provided by the laws governing such pay-on any claim so submitted. I further promment or in the certificate of membership, and ise and agree that I will not enter into any when all the conditions regulating such legal proceedings against the order for any payment have been complied with." The claim I may have for benefits or membership appellee was a member of local branch No. until I shall have first exhausted all remedies 379 of appellant, located at St. Louis, Mo. of appeal within the order, as prescribed by The case is presented upon the evidence, the laws, rules, and regulations now in force, the motion for a new trial having been made or which may hereafter be enacted, as set by appellant and overruled, and exceptions. forth in the application, ritual, and constituThe evidence shows that at the time of ap- tion of the order. FRITZ STEIN." pellee's admission into the order he made and The laws of the order prescribe the followsubmitted to local branch No. 379 the following mode of allowance and payment of sick ing application for membership: "Petition benefits: "Sec. 7. When a member has been for Membership. St. Louis, April 20th, sick for one full week, and said sickness is 1887. To the Officers and Members of Local properly certified to by his attending physiBranch No. 379, O. I. H.: Having conceived cian, and certified to by the relief committee a favorable opinion of the purpose and ob- and medical examiner of his branch, after a jects of your order, I respectfully ask to be full recovery from said sickness, and the apadmitted thereto as a member of your branch, proval of his claim by the supreme medical and apply for a certificate in amount of director, the sum due said member, as pre$1,000. I agree, if admitted, to conform to scribed in his certificate, on proper proof by all the laws, rules, and usages of the order, the supreme accountant, shall be paid, and and to promptly comply with all lawful re- such payments shall be charged against the quirements. I further expressly stipulate member by the supreme accountant, and inand agree that the answers which I have dorsed on the back of the certificate, and in made, or shall make, to the questions asked like manner until one-half of the amount me in connection with this application, are named in said certificate shall have been paid: full, true, and complete statements of all provided, that in no case shall a member be matters touched upon thereby, and that any entitled to benefits whose sickness has been evasion, concealment, or withholding of in- less than one week's duration, nor for sickformation in said answers or in this petition ness that may occur within the first sixty shall work a complete and final forfeiture of days from the date of initiation, nor for any all benefits from said order to which I might fractional part of a week, nor for a time otherwise have been entitled; that I will not longer than one week prior to the date of noenter into any legal proceedings against the tice of sickness to the officers of the branch. order for any clains I may have for sick ben- Benefits shall be allowed only to members efits or total disability until I have first ex- whose sickness or disability renders them inhausted all remedy within the order as pre- capable of pursuing their usual vocation, and scribed by the laws, as set forth in the con- only for the number of weeks during which stitution and ritual of the order. FRITZ they remain incapable of following the ordiSTEIN, Petitioner." At the time appellee nary business pursuits." The law of the orwas initiated into the order and became a der authorizing an appeal is as follows: member of local branch No. 379, he took and "Article 13. Mode of Appeal. Section 1. signed the following obligation: "Local Any member considering that injustice has Branch No. 379. Order of the Iron Hall. been done them by this branch, or by the disApril ——, 1887. I, Fritz Stein, having approval of their claim for sick benefits by made a voluntary petition for membership in the supreme medical director, shall, within the Order of the Iron Hall, do solemnly swear one month after such decision or disapproval, that if accepted I will faithfully abide by all make a written appeal to the supreme sitting the laws, rules, and regulations of the su- or supreme justice, stating their reasons preme sitting, or of this branch, or of any therefor. Immediately upon making the apother branch of the Order of the Iron Hall of peal they must notify this branch of the fact. which I may become a member, and all addi- This branch, within one month after receivtional laws and amendments that may here- ing such notice, shall forward to the supreme after be enacted, and in consideration of my sitting or supreme justice a copy of all the

minutes of this branch relating to the sub-| therefore the appellee could not procure such ject, together with the journal and testimony a certificate signed by the proper officers of taken by the committee, certified to by the the local branch as he was required to present chief justice and accountant, with the seal of to the medical director, nor such a certificate the branch attached. The member making as the director was authorized, under the laws the appeal must certify to the supreme sit- of the order, to approve. Under this state ting or supreme justice that he has notified of facts, was the appellee required to present this branch of the appeal. Should either par- such certificate, improperly certified, to the ty neglect these duties, the appeal may be supreme medical director, knowing it must, considered as dismissed to the disadvantage under the laws of the order, be disallowed, of the branch or of the member. Sec. 2. and take an appeal from his decision? That Any member who has been expelled by this is to say, the appellee, as proven by the unbranch for any reason other than non-pay- controverted evidence in this case, and conment of dues, fines, or assessments shall not ceded by the counsel, had a valid claim for be restored to membership in this or any oth- sick benefits to the amount he was demander branch without the permission of the su-ing, and one of the officers of the local branch preme sitting, or, in case it is not in session, of the supreme justice."

to which he belonged, whose duty it was to sign a certificate, refused to sign it, and the appellee was unable to procure a proper certificate of his sickness by reason of the willful neglect of this officer to discharge his duty. Was the appellee bound to file such certificate not properly verified before the medical director, and appeal from his decisHe was pre

There is no controversy made in the case as to the appellee's sickness, as alleged, nor is it controverted that he gave the proper notice of his sickness, and that he was at the time of the sickness a member of the order in good standing, and is in fact entitled to sick benefits to the amount of $150. The conten-ion? We do not think he was. tion on the part of counsel for appellant is vented from presenting a proper certificate of that this suit could not be brought by the ap-his sickness to the medical director by reason pellee until he had exhausted all remedies of of the willful neglect and refusal of an officer appeal within the order, as prescribed by the of the order to sign the certificate, as it was laws, rules, and regulations of the order; and his duty to do under the conceded facts in that appellee had not exhausted all remedies this case, and we think the appellant cannot of appeal within the order, as prescribed by defeat a recovery in this case by reason of the the laws, rules, and regulations of the order conceded neglect of the officer of the local when he brought this suit; that he had never branch to discharge his duty. presented his claim to the supreme medical It remains, then, to determine whether director for approval, nor had he taken any there was any other course which the appelappeal from the decision of such supreme lee might or should have pursued. Was medical director, as prescribed in the laws of there any right given him to appeal from the the order. All the means we have of ascer- action of the local branch in refusing to sign taining what the laws, rules, and regulations his certificate? We think there was not, and of the order are, is as they appear from the that there is no appeal provided from such record in this case, and we have set out such refusal of the officers of the local branch to as are contained in the record, and have any sign a certificate as to the sickness of the bearing on the question presented. By sec- members. As it will be seen, section 1, art. tion 7 of the by-laws the member is required 15, provides that "any member, considering to have his sickness certified to by his attend- that injustice has been done him by this ing physician and the relief committee and branch, or by the disapproval of his claim medical examiner of the branch of the order for sick benefits by the supreme medical dito which he belongs, and present such certifi-rector, shall, within one month after such cate to the supreme medical director for ap- decision or disapproval, make a written approval. Article 13, § 1, provides for an appeal to the supreme sitting or supreme juspeal being taken from the decision of the tice." This section, as we interpret it, consupreme medical director disapproving a claim for sick benefits. As it appears from the laws of the order, as set out in the record in this case, it is the duty of the member to present to the supreme medical director the certificate of his sickness, signed by his attending physician and the relief committee and medical examiner of the branch of the order of which he is a member. There is no authority for the supreme medical director to allow any claim for sick benefits except such sickness be certified to by all of these persons. It is conceded by counsel in this case that one of the officers of the local branch, who was required to certify to such sickness, when requested and demanded, refused to sign the certificate of such sickness for the appellee;

templates and gives the right of appeal from the action or decision of the local branch to which the member belongs. It contemplates that the local branch may take action in regard to and affecting the rights of one of its members, and from any such decision by the local branch the inember might appeal to the supreme sitting or supreme justice from such decision. But as regards claims for sick benefits, as appears from the laws of the appellant, as set out in the record, they are not required to come before the local branch, or to be passed upon by it. Another mode is prescribed for their allowance and payment, viz., the member shall procure a certificate as to his sickness, signed by his attending physician and the relief committee and med