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of personal security, or of private property, the doctrine of contributory negligence has no application. Railroad Co. v. Bills, 118 Ind. 221, 20 N. E. Rep. 775; Town of Salem v. Goller, 76 Ind. 291; Steinmetz v. Kelly, 72 Ind. 443; Beach, Contrib. Neg. § 22. If the expulsion of the plaintiff from her home into the cold was a direct consequence of the defendant's unlawful act he was civilly liable for the resulting damages to the same extent as if he had expelled her with his own hands. One who, in violation of the law, sets in motion a dangerous, uncontrolled force, must take notice of the consequences that are liable to follow, and be ready to answer, under the statute, for any damages to the person or property of those who are within its protection. Dunlap v. Wagner, supra, and cases cited. In the language of the court in Schroder v. Crawford, 94 Ill. 357: "The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning. There was no error in the ruling of the court. Judgment affirmed, with

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(120 Ind. 314)

RIETMAN et al. v. STOLTE. (Supreme Court of Indiana. Oct. 12, 1889.) MASTER AND SERVANT-DEFECTIVE APPLIANCES.

A servant cannot recover from his master

tion, knowing his condition at the time, the defendant does that which amounts to whereby the latter became crazed and inca- an unlawful invasion of the plaintiff's right pacitated for business, and spent and squandered his own and plaintiff's money, thereby causing the plaintiff to sustain damage to her property, and means of support. In an additional paragraph it is further averred that the plaintiff's husband, by reason of the intoxication so unlawfully produced, became crazed, and while in that condition drove her from her home, while thinly clad, into the cold, whereby she was made sick, and was damaged thus by suffering pain, and loss of time, and in expenses incurred in being restored to health. The only question presented involves the propriety of the ruling of the court in overruling the demurrer to the complaint. The action was against the defendant personally, under section 5323, Rev. St. 1881. That this section authorizes an action in general terms against one who sells intoxicating liquors in violation of the provisions of the liquor law, personally as well as upon his bond, has been definitely settled by recent decisions of this court. Dunlap v. Wagner, 85 Ind. 529; Mulcahey v. Givens, 115 Ind. 286, 17 N. E. Rep. 598; State v. Cooper, 114 Ind. 12, 16 N. E. Rep. 518. It is said, how-costs. ever, that because the main element of damages was predicated upon the cruel treatment which the plaintiff suffered at the hands of her husband, and the impairment of health resulting therefrom, it became necessary to aver that she was free from fault contributing thereto, and that such averment being absent from the complaint made it bad. This view is not sustained. This was not an action based upon the mere negligence or non-feasance of the defendant in failing to do that which the law required of him, or made it his duty to do, but upon an active, aggressive wrong, constituting the violation of a positive law, in knowingly selling intoxicating liquors to the plaintiff's husband while he was in a state of intoxication. Pennsylvania Co. v. Sinclair, 62 Ind. 301. Where one merely neglects a duty which the law OLDS, J. This is an action for damages reimposes upon him his act may be one of mere sulting from an injury received by the appelneglect or non-feasance, but when in viola-lee Stolte, while at work for appellants loadtion of a positive statute he does an act to ing timber upon a car. The complaint is in the injury of a third person he thereby in- two paragraphs. The first paragraph of the. vades the rights of the other, and his act is complaint alleges that the defendants, Henry one of active, aggressive wrong. The rule Rietman and Charles Schulte, are partners, applicable in cases of assault, or assault and doing business under the firm name of Rietbattery, governs in such cases. The statute man & Schulte, and, as such partners, are regulating the sale of intoxicating liquors running and operating a saw-mill in Vanderstands as a guaranty that no one shall know-derburgh county, and are manufacturers and ingly sell, barter, or give away intoxicating liquors in violation of its provisions so as to inflict damage upon the person or property or means of support of another. Every citizen of the state has a right to the security which the observance of this law affords, and a violation of the law resulting in injury is an unlawful invasion of the rights of the person injured. "When the wrong-doing of the defendant is merely negligence, the contributory negligence of the plaintiff may, as is well understood, operate as a defense;" but when

for personal injuries caused by a patent defect in a machine which the servant had been using for three weeks, where neither party knew of the defoct, and both had the same opportunity of discovering it.

Appeal from superior court, Vanderburgh county; AZRO DYER, Judge.

Action by Theodor Stolte against Henry Rietman and Charles Schulte. Judgment for plaintiff. Defendants appeal.

P. Maier, for appellants. Tanner & Ireland, for appellee.

dealers in lumber; that on the 9th day of July, 1886, the plaintiff was in the employ of the defendants, working in and about their said mill; that, under and by direction of the defendants, plaintiff was, upon that day, engaged in loading heavy timber from a wagon into a car for the purpose of transportation, and, to lift said timber from the wagon to the car, he used a crane belonging to the defendants; that attached to said crane, and as a part thereof, was an iron hook with which the timbers were grasped and held up

and caution? A. No. (11) In what capacity or position was John Schaefer employed? 4. As a common laborer. ERNST DUESBERG, Foreman." The defendants filed their motion for judgment upon the answers to interrogatories, notwithstanding the general verdict, which was overruled, and exceptions taken; and this ruling of the court is one of the errors assigned.

while being lifted as aforesaid; that on the knowledge, how did they get it? A. They day aforesaid, while engaged as aforesaid, did not know it, but ought to have known and without any fault or negligence on his it. (10) Could not the plaintiff have avoidpart, a heavy oak timber, while being raised ed being injured had he used ordinary care as aforesaid, slipped from the hook, and fell upon and crushed both of the plaintiff's feet, whereby he suffered and endured great mental and physical pain and agony for a long time, and was, by reason thereof, unable to perform any work or labor for eight weeks, and incurred large expense in and about being cured; that at the time the injury was inflicted plaintiff was using due care, and handling said crane in a careful, prudent It is a well-settled principle which has been manner, and said timber slipped from the adhered to by this court "that an employe hook and inflicted said injury wholly because who knows, or by the exercise of ordinary said hook was defective, and unfit for use diligence could know, of any defects or imfor such purpose, in this: it was worn, and perfections in the things about which he is the teeth thereof were dull and broken, so employed, and continues in the service withthat it did not, and could not, securely hold out objection, and without promise of change, said timber while the same was being lifted is presumed to have assumed all the conseas aforesaid, and permitted it to slip and fall, quences resulting from such defects, and to which defective condition was at the time have waived all right to recover for injuries known to the defendants, but wholly un- caused thereby." Perigo v. Railroad Co., 3 known to the plaintiff. Prayer for judg- N. W. Rep. 43; Electric Light, etc., Co. v. ment. The allegations of the second count Murphy, 115 Ind. 566, 18 N. E. Rep. 30. are like the first, except, instead of charging That case was an action for damages resultthe appellants with knowledge of the defect ing from a defective ladder which the emin the hook, it alleges that the "defective condition was at the time of said injury wholly unknown to the plaintiff, but the same might have been known to the defendants by the exercise of ordinary care." To each paragraph of the complaint a demurrer was filed, for want of sufficient facts. The demurrer was overruled, and exceptions taken. The issues were formed by answer in general denial. The jury returned a general verdict for the plaintiff, and assessed his damage at $175. Interrogatories were submitted to be answered by the jury in case they found a general verdict, and the jury returned the following answers to interrogatories: "(1) For what particular work was plaintiff employed by defendants? Answer. He was employed for common labor. (2) Could not plaintiff, by the use of ordinary diligence, have seen the defect in the hook fastened to the crane, if there was any? A. Yes; he could see it if he had looked at it. (3) Was the hook defective which was attached to the crane? A. It was. (4) If you answer the preceding interrogatory in the affirmative, will you state in what the defect consisted? A. The defect consisted in its being a dull hook. (5) Did not plaintiff have as good an opportunity to see the defect, if any there was in the hook, as the defendant? A. Yes. (6) How long did the plaintiff work with the crane to which the hook claimed to be defective was attached? A. About three weeks. (7) Who told plaintiff to go on the car the morning he was hurt? A. Schaefer. (8) Did defendants have any knowledge of any defect in the hook attached to the crane, used to load the car the morning plaintiff was hurt? A. The defendants did not know of the defect at the time, but the defendants ought to have known it. (9) If they had v.22N.E.no.15-20

ploye of the company mounted to repair the line of the company, and the case was reversed upon the evidence. The rule does not go to the extent of requiring the employe to search for latent defects in the machinery or appliances furnished him for use, but it does go to the extent that the employe assumes the consequences resulting from such defects as are patent, and such as by the exercise of ordinary diligence, and giving proper heed to the things that surround him, he would discover. Railway Co. v. Buck, 116 Ind. 566, 19 N. E. Rep. 453; Railway Co. v. Stupak, 108 Ind. 1, 8 N. E. Rep. 630; Railway Co. v. Frawley, 110 Ind. 18, 9 N. E. Rep. 594. It is alleged in the complaint in this case, and a recovery is sought for an injury caused by reason of a defect in a hook attached to a crane used in taking timbers from wagons, and placing them upon the cars, that the defective hook was the one which grasped each piece of timber as it was lifted from the wagon and transferred to the car. From the very nature of things, and the use made of the hook, it was constantly exposed to the view of the employes engaged in transferring such timber. It would be difficult to imagine a defect in a tool or appliance more exposed to view or more easily discovered than the defect alleged in this case. The special findings of the jury show that the appellee had been engaged in the use of the crane and hook attached thereto for three weeks; that the appellee, by the use of ordinary diligence, could have seen the defect; that he could have seen it if he had looked at it; that appellee had as good an opportunity to see the defect as the appellants; that the appellants did not know of the de fect, but they say they ought to have known of it. The answers to the interrogatories

show these facts, viz., that the defect in the Artifices were resorted to, and these were crane was one which was patent; that nei- made means of deception. The only question ther appellants nor appellee knew of it, but in the case which requires serious consideraboth might have known of it if they had tion or discussion is, was the appellant the looked; that the appellee had worked with bona fide holder of the note? Where a promthe hook for three weeks, and could have seen issory note is obtained by fraud there can be the defect if he had looked at it. The spe- no recovery unless the plaintiff shows that he cial findings do not show that either of the is in possession of it as a bona fide holder. appellants were about the crane, but the evi- It is held, with very little diversity of opindence shows that this work was under the ion, that the plaintiff must show that he control of a fellow-servant of the appellee. acquired the note in good faith, although The rule of law we have stated requires one there is some diversity of opinion upon the to exercise the faculties which he possesses, question of what constitutes a bona fide and if there is a patent defect in a tool or holder. In some of the cases it is held that machinery used by him which he can see by he must show that he acquired the note for looking he must look, and unless some rea- value before maturity, and without notice. sonable excuse is given he is guilty of negli- In the case of Baldwin v. Fagan, 83 Ind. gence if he does not look. In this case the 447, it was said, in speaking of the evidence special findings show the defect to be one required of the plaintiff, that, "in other words, which the appellee would have known if he the burden was cast upon them of showing had exercised ordinary diligence, and given that they purchased and paid value for the proper attention to his business and the note before it was due, without notice of the things surrounding him, and that he was fraud by which it was procured." In Zook v. neglectful of his duty, and of the things Simonson, 72 Ind. 83, the jury were instructwhich surrounded him; and it was by reasoned that upon proof of fraud "the burden of of his own negligence that he did not know proof would rest on the plaintiffs to show of the defect in the hook, and he is chargea-that they took the note in ignorance of these ble with having knowledge of such defect. matters. The plaintiffs having offered no The court erred in overruling the motion for judgment upon the answers to interrogatories, notwithstanding the general verdict, and for such error the cause must be reversed. Taking the theory we do in regard to this question, it is unnecessary to pass upon the other questions presented. Judgment reversed at the costs of the appellee, with instructions to sustain the motion for judgment on the answers to interrogatories.

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Appeal from circuit court, St. Joseph county; DANIEL NOYES, Judge.

evidence on that point, it will be for the jury to consider whether there has been shown a failure of consideration, "—and after a very full discussion of the question this instruction was held to state the law correctly. The cases to which we have referred have been followed in later decisions. Mitchell v. Tomlinson, 91 Ind. 167; Eichelberger v. Bank, 103 Ind. 401, 3 N. E. Rep. 127.

In stating the rule which governs in such cases as this the court said in Coffing v. Hardy, 86 Ind. 369, that "under this law the indorsee, before maturity, in good faith and without notice, of such a note as the one in suit, takes the same as against the maker thereof, freed from all the equities which may have existed between such maker and the payee of the note." The question came up again in Scotten v. Randolph, 96 Ind. 581, and it was said, in speaking of an averment of the complaint, that "it cannot be said, we think, that the averment of good faith is equivalent to the averment that the indorsee took the note without notice of the maker's

Action by Jacob M. B. Giberson against Thomas Jolley on a note given by the latter in payment for "Bohemian Oats," and indorsed by the payee to the plaintiff. Judg-defense." In Baldwin v. Barrows, 86 Ind. ment for defendant. Plaintiff appeals.

A. Anderson, for appellant. L. Hubbard, for appellee.

ELLIOTT, C. J. The evidence in this case warranted the jury in concluding that the promissory note on which the appellant's complaint is founded was obtained by fraud. The appellee was induced to sign the note by a cunningly devised scheme, preconcerted for the purpose of deceiving him, and made effective by faise statements. The appellant is in error in assuming that all that the payee of the note did was to misrepresent the value and qualities of the so-called "Bohemian Oats," which he induced the appellee to buy.

351, the element that the indorsee received the note without notice is treated as essential to constitute him a bona fide holler, as against a maker who has been induced to execute the note by the fraud of the payee. We have shown by these authorities that the rule has been long enforced in this state, and in many instances; and we ought not to depart from our former decisions except for the weightiest and most satisfactory reasons, and these we have not discovered. Our decisions are supported upon the point under discussion by those of other courts, and are well grounded in principle. In Smith v. Assocíation, 93 Pa. St. 19, it was said: "Where a negotiable note is obtained from the maker

under false pretenses, and fraudulently put [ment. The courts which hold that the burin circulation by the payee, the holder of the den is on the plaintiff to show that he is, in note, in order to recover, must show a pur- all the term implies, a bona fide holder, have chase for value before maturity, without no- never so much as hinted that absolute evitice of the fraud." It was said by the court dence is required. In no civil case is so high in Tilden v. Barnard, 43 Mich. 376, 5 N. W. a degree of evidence demanded. It is thereRep. 420, that "a transfer of the note before fore a mistake to assume that such evidence due for a valuable consideration is not suffi- is meant by the cases which declare that cient." Another court holds that "the fact the plaintiff must show that he is a goodof fraud being established will throw upon faith holder of the bill or note. Nor do these the plaintiff the burden of proof, to show that cases require the proof of "an impossible neghe came by the possession fairly, and without ative," as the author assumes. The negative any knowledge of the fraud." Munroe v. required is far from being an impossible one; Cooper, 5 Pick. 412. It would be a departure on the contrary, it is not only possible, but from principle to hold that the maker must easy, for the plaintiff to prove the facts withprove that the holder had notice of the fraud. in his own knowledge, since, if he knows that Whether he had notice or not is a matter pe- he bought the note, he cannot very well be culiarly within his own knowledge. It needs ignorant of the facts attending its acquisition. no more than a bare statement of the proposi- Nor is it unusual to require a plaintiff to tion that the plaintiff's possession or non-pos- prove a negative. It is indeed always resession of notice is a matter peculiarly within quired of him where the facts are peculiarly his own knowledge to establish it to the sat- within his own knowledge, and essential to isfaction of a candid mind; and, if this prop- his right of recovery. "Whenever," says osition be established, then it must follow Mr. Wharton, "whether in a plea, replicathat the proof should come from him, for few tion, rejoinder, or surrejoinder, an issue of rules of law are better settled than that a fact is reached, then, whether the party party whose cause of action or defense rests claiming the judgment of the court asserts an upon facts peculiarly within his own knowl-affirmative or a negative proposition, he must edge must prove those facts. This rule pre- make good his assertion." 1 Whart. Ev. vails even in prosecutions for crime. Shearer § 354. In Goodwin v. Smith, 72 Ind. 113, this v. State, 7 Blackf. 99; Goodwin v. Smith, 72 Ind. 113. Nor is there any hardship in requiring the plaintiff to prove the circumstances under which he acquired the note, for none can show them so well as he, and no other person can so well know where to search for the facts. To impose the duty upon the defendant of showing the circumstances under which the plaintiff obtained the note, and of proving what he knew, would in many cases demand of the defendant an impossible thing, and in all cases it would impose upon him a hardship and a burden from which justice requires he should be free. It is not easy to conceive how one can be a bona fide holder of a note if he had notice of the fraud; and all the courts agree that the plaintiff who sues upon a note must, when evidence that it was obtained from the maker by fraud is given, prove that he is a bona fide holder. It would seem clear, therefore, that, to be consistent, they should hold that he must prove, not one, but all, of the essential eiements of the character of a bona fide holder. This cannot be done without showing that the note was acquired by the plaintiff without notice, since, if not so acquired, it is not possible for him to be a bona fide holder within the meaning of the law. In support of his adoption of the rule which relieves the plaintiff of the burden of proving that he did not have notice, Mr. Daniel gives this reason: "To require the plaintiff to show absolutely that he had no knowledge of facts would be to burden him with the necessity of proving an impossible negative." 1 Daniels, Neg. Inst. (3d Ed.) § 819. The learned, and usually very accurate, author has fallen into more errors than one in this brief state

question received full consideration, and a great number of authorities were cited in proof of the proposition that the general rule is that negative propositions must be proved, and these cases, as well as those collected by Mr. Wharton, conclusively show that the rule is a common and not an extraordinary one, and is, indeed, one of almost universal application. In holding a party who assumes that he is the bona fide holder of a promissory note bound to prove all the facts essential to invest him with that character, no more is done than to apply to the particular instance a familiar general rule of wide sweep.

We find nothing in the record which would justify us in overthrowing the finding of the jury upon the question of the appellant's knowledge of the existence of facts constituting a defense to the note. Judgment affirmed.

(120 Ind. 298)

STATE v. BALTIMORE & O. & C. R. Co. (Supreme Court of Indiana. Oct. 12, 1889.)

OBSTRUCTION OF HIGHWAY-INDICTMENT. 1. Under Rev. St. Ind. 1881, § 1897, subjecting corporations to prosecution for obstructing highways, and section 1964, making such obstruction a criminal offense, the fact that mandamus is a remedy for such obstruction does not bar an indictment therefor.

2. An indictment for such an offense, which fendant obstructed it, stating the character of such alleges that there was a highway; that the deobstruction; and that travel was thereby obstructed, and the public greatly inconvenienced,-is sufficient, though there is no allegation of criminal

intent.

Appeal from circuit court, De Kalb county; S. A. PoWERS, Judge.

Indictment against the Baltimore & Ohio

Louis T. Michener, Atty. Gen., Ernest A. Bratton, and John A. Gillett, for appellant. J. E. Rose and J. H. Collins, for appellee.

& Chicago Railroad Company for obstructing | All that is necessary to a good indictment a highway. The indictment was quashed, for obstructing a public highway is to allege and the state appeals. such facts as meet the requirements of the statute. 1 Bish. Crim. Law, § 1075; Nichols v. State, 89 Ind. 298. Under the statute it is not necessary to the commission of the offense that the acts done be accomplished with BERKSHIRE, J. This was a prosecution a criminal intent. A further contention is against the appellee for the obstruction of a that, in the erection of its bridge, the law alpublic highway. The charging part of the lowed to the appellee a discretion in the natindictment is as follows: "That on the first ure of a judicial discretion, and similar to day of March, 1888, at the county of De Kalb, that allowed to cities in the improvement of in the state of Indiana, said Baltimore & streets and alleys; and that to make the inOhio & Chicago Railroad Company, over its dictment good it was necessary for it to alright of way in said county, at the crossing lege that the appellee acted in bad faith. of said railroad and a certain public highway, What we have already said is an answer to located upon and along the line running this contention; but if we concede, for the north between the south-east quarter and the sake of argument, that, in the erection of its south-west quarter of section number three, bridge, the appellee was allowed the discre(3,) in township number thirty-three (33) tion contended for, it would not follow that north, of range number thirteen (13) east, it would be allowed to continue the obstrucdid then and there unlawfully build, erect, tion for the length of time alleged in the inand construct a certain high, precipitous, un- dictment. Another objection taken to the insafe, and dangerous bridge, thereby greatly dictment is that the condition of the highway obstructing and incumbering said public before the obstruction is not alleged. This highway; and did unlawfully deposit large was unnecessary. It is alleged that there quantities of earth and other materials, as was a highway; that the appellee obstructed approaches and embankments to said bridge, it. The character of the obstruction is given, in a steep, dangerous, and narrow manner and it is alleged that travel was thereby oband condition, so as to obstruct travel on said structed, and the public greatly inconvenhighway, and rendering the same very dan-ienced. The allegations in the indictment gerous and hazardous; and did unlawfully, are certain to a common intent, and this is from said first day of March, 1888, continuously, until the finding of this indictment, continue to unlawfully maintain, obstruct, and incumber said public highway in the unsafe, dangerous, and hazardous condition as aforesaid; and did then and there, and during all of said time, allow, suffer, and permit said. State, 94 Ind. 443; State v. Berdetta, 73 public highway to be so unlawfully incum- Ind. 186; State v. Railway Co., 86 Ind. 114. bered and obstructed by said bridge, embank- Judgment reversed, with costs. ments, and approaches as aforesaid." On motion of the appellee the court quashed the indictment. The appellant reserved an exception, and prosecutes this appeal, assigning as error the ruling of the court in quashing said indictment.

all that is required. Sections 1731 and 1755, Rev. St. 1881; McCool v. State, 23 Ind. 127; Meiers v. State, 56 Ind. 336; State v. Jenkins, ante, 133, (at this term.) We think the indictment is good, and that the court erred in quashing it. Nichols v. State, supra; Bybee

POPE v. VAJEN.

(121 Ind. 317)

(Supreme Court of Indiana. Oct. 15, 1889.) RELEASE ANd Discharge.

It is not a sufficient defense to an action on

a promissory note that the note was given in payment for land, that defendant had sold the land to. one who assumed the note, and that the plaintiff had agreed to release the defendant, and look only to the assumer. Following Kelso v. Fleming, 3 N. E. Rep. 830. ELLIOTT, C. J., dissenting.

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

By virtue of section 1897, Rev. St. 1881, corporations are subject to prosecution the same as natural persons, for creating, continuing, or maintaining a public nuisance, or for obstructing a public highway, or navigable stream. Section 1964 makes it a criminal offense to obstruct a public highway. It is contended by appellee's counsel that the rem- James Buchanan, for appellant. Dunedy in cases like the one made by the indict-can, Smith & Wilson, for appellee. ment is by a writ of mandate to compel the corporation to remove the obstruction or nuisance, and that the appellee is not, therefore, liable to be prosecuted for a criminal offense. This may be one remedy, but it is not exclusive. Section 1964, supra, recognizes no such exception, and it would be judicial legislation for the courts to recognize any such exception. Besides, section 1897, supra, would have to be disregarded before such an exception could be recognized.

It is argued that the indictment is bad because it fails to charge a criminal intention.

BERKSHIRE, J. This is an action by the appellant against the appellee and his wife, Alice Vajen, founded upon several promissory notes executed by the appellee and wife to the appellant. The case was put at issue, and tried at special term of the superior court, and a judgment rendered for the appellee and his wife, Alice, from which an appeal was taken to the general term, and in general term the judgment at special term was affirmed, and from the judgment in general term as to the appellee alone the appel

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