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 squan- of personal security, or of private property, dered his own and plaintiff's money, thereby the doctrine of contributory negligence has causing the plaintiff to sustain damage to no application. Railroad Co. v. Bills, 118 her property, and means of support. In an Ind. 221, 20 N. E. Rep. 775; Town of Salem v. additional paragraph it is further averred Goller, 76 Ind. 291; Steinmetz v. Kelly, 72 that the plaintiff's husband, by reason of the Ind. 443; Beach, Contrib. Neg. § 22. If the intoxication so unlawfully produced, became expulsion of the plaintiff from her home into crazed, and while in that condition drove her the cold was a direct consequence of the defrom her home, while thinly clad, into the fendant's unlawful act he was civilly liable cold, whereby she was made sick, and was for the resulting damages to the same extent damaged thus by suffering pain, and loss of as if he had expelled her with his own hands. time, and in expenses incurred in being re- One who, in violation of the law, sets in mostored to health. The only question presented tion a dangerous, uncontrolled force, must involves the propriety of the ruling of the take notice of the consequences that are liacourt in overruling the demurrer to the com- ble to follow, and be ready to answer, under plaint. The action was against the defend the statute, for any damages to the person ant personally, under section 5323, Rev. St. or property of those who are within its pro1881. That this section authorizes an action tection. Dunlap v. Wagner, supra, and cases in general terms against one who sells intoxi- cited. In the language of the court in Schroder cating liquors in violation of the provisions v. Crawford, 94 Ill. 357: “The statute was of the liquor law, personally as well as upon designed for a practical end, to give a subhis bond, has been definitely settled by recent stantial remedy, and should be allowed to decisions of this court. Dunlap v. Wagner, have effect according to its natural and ob85 Ind. 529; Mulcahey v. Givens, 115 Ind. vious meaning.” There was no error in the 286, 17 N. E. Rep. 598; State v. Cooper, 114 ruling of the court. Judgment affirmed, with Ind. 12, 16 N. E. Rep. 518. It is said, how- costs. ever, that because the main element of dam

(120 Ind. 314) ages was predicated upon the cruel treat

RIETMAN et al. v. STOLTE. ment which the plaintiff suffered at the hands of her husband, and the impairment of health

(Supreme Court of Indiana. Oct. 12, 1889.) resulting therefrom, it became necessary to MASTER AND SERVANT-DEFECTIVE APPLIANCES. aver that she was free from fault contrib A servant cannot recover from his master uting thereto, and that such averment be- for personal injuries caused by a patent defect in

a machine which the servant had been using for ing absent from the complaint made it bad. three weeks, where neither party knew of the deThis view is not sustained. This was not an fact, and both had the same opportunity of disaction based upon the mere negligence or covering it. non-feasance of the defendant in failing to Appeal from superior court, Vanderburgh do that which the law required of him, or county; AZRO DYER, Judge. made it his duty to do, but upon an active, Action by Theodor Stolte against Henry aggressive wrong, constituting the violation Rietman and Charles Schulte. Judgment for of a positive law, in knowingly selling intoxi- plaintiff. Defendants appeal. cating liquors to the plaintiff's husband while

P. Maier, for appellants. Tanner & Irehe was in a state of intoxication. Pennsyl- land, for appellee. vania 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 activé, 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 dealers in lumber; that on the 9th day of liquors in violation of its provisions so as to July, 1886, the plaintiff was in the eminflict damage upon the person or property or ploy of the defendants, working in and about means of support of another. Every citizen their said mill; that, under and by direction of the state has a right to the security which of the defendants, plaintiff was, upon that the observance of this law affords, and a vio- day, engaged in loailing heavy timber from lation of the law resulting in injury is an un- a wagon into a car for the purpose of translawful invasion of the rights of the person portation, and, to lift said timber from the injured. “When the wrong-doing of the de- wagon to the car, he used a crane belonging fendant is merely negligence, the contributory to the defendants; that attached to said crane, negligence of the plaintiff may, as is well un- and as a part thereof, was an iron hook with derstood, operate as a defense;" but when which the timbers were grasped and held up

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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 and caution ? A. No. (11) In what capacupon and crushed both of the plaintiff's feet, ity or position was John Schaefer employed ? whereby he suffered and endured great men- A. As a common laborer. ERNST DU EStal and physical pain and agony for a long BERG, Foreman." The defendants filed their time, and was, by reason thereof, unable to motion for judgment upon the answers to perform any work or labor for eight weeks, interrogatories, notwithstanding the general and incurred large expense in and about be- verdict, which was overruled, and exceptions ing cured; that at the time the injury was taken; and this ruling of the court is one of inflicted plaintiff was using due care, and the errors assigned. 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 defecting from a defective ladder which the emin the hook, it alleges that the “defective ploye of the company mounted to repair the condition was at the time of said injury line of the company, and the case was rewholly unknown to the plaintiff, but the versed upon the evidence. The rule does same might have been known to the defend- not go to the extent of requiring the emants by the exercise of ordinary care.” To ploye to search for latent defects in the maeach paragraph of the complaint a demurrer chinery or appliances furnished him for use, was filed, for want of sufficient facts. The de- but it does go to the extent that the employe murrer was overruled, and exceptions taken. assumes the consequences resulting from The issues were formed by answer in gen- such defects as are patent, and such as by eral denial. The jury returned a general the exercise of ordinary diligence, and giving verdict for the plaintiff, and assessed his proper heed to the things that surround him, damage at $175. Interrogatories were sub- he would discover Railway Co. v. Buck, mitted to be answered by the jury in case 116 Ind. 566, 19 N. E. Rep. 453; Railway they found a general verdict, and the jury Co. v. Stupak, 108 Ind. 1, 8 N. E. Rep. 630; returned the following answers to interroga- Railway Co. v. Frawley, 110 Ind. 18, 9 N. tories: "(1) For what particular work was E. Rep. 594. It is alleged in the complaint plaintiff employed by defendants? Answer. in this case, and a recovery is sought for an He was employed for common labor. (2) injury caused by reason of a defect in a hook Could not plaintiff, by the use of ordinary attached to a crane used in taking timbers diligence, have seen the defect in the hook from wagons, and placing them upon the fastened to the crane, if there was any? A. cars, that the defective hook was the one Yes; he could see it if he had looked at it. which grasped each piece of timber as it was (3) Was the hook defective which was at- lifted from the wagon and transferred to the tached to the crane? A. It was. (4) If you car. From the very nature of things, and answer the preceding interrogatory in the af- the use made of the hook, it was constantly firmative, will you state in what the defect exposed to the view of the employes engaged consisted? A. The defect consisted in its in transferring such timber. It would be being a dull hook. (5) Did not plaintiff have difficult to imagine a defect in a tool or apas good an opportunity to see the defect, if pliance more exposed to view or more easily any there was in the hook, as the defendant? discovered than the defect alleged in this A. Yes. (6) How long did the plaintiff work case. The special findings of the jury show with the crane to which the hook claimed to that the appellee had been engaged in the be defective was attached ? A. About three use of the crane and hook attached thereto weeks. (7) Who told plaintiff to go on the for three weeks; that the appellee, by the use car the morning he was hurt? A. Schaefer. of ordinary diligence, could have seen the de(8) Did defendants have any knowledge of fect; that he could have seen it if he had any defect in the hook attached to the crane, looked at it; that appellee had as good an opused to load the car the morning plaintiff portunity to see the defect as the appellants; was hurt? A. The defendants did not know that the appellants did not know of the de of the detect at the time, but the defendants fect, but they say they ought to have known ought to have known it. (9) If they had '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 beld, 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 reason ed 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 evidence on that point, it will be for the jury judgment upon the answers to interrogato- to consider whether there has been shown a ries, notwithstanding the general verdict, and failure of consideration,”—and after a very for such error the cause must be reversed. full discussion of the question this instrucTaking the theory we do in regard to this tion was held to state the law correctly. The question, it is unnecessary to pass upon the cases to which we have referred have been other questions presented. Judgment re- followed in later decisions. Mitchell v. Tomversed at the costs of the appellee, with in- linson, 91 Ind. 157; Eichelberger v. Bank, structions to sustain the motion for judg-103 Ind. 401, 3 N. E. Rep. 127. ment on the answers to interrogatories. In stating the rule which governs in such

cases as this the court said in Coffing v. (120 Ind. 301)

Hardy, 86 Ind. 369, that “under this law the GIBERSON V. JOLLEY.

indorsee, before maturity, in good faith and (Supreme Court of Indiana. Oct. 12, 1889.)

without notice, of such a note as the one in NEGOTIABLE INSTRUMENTS-FRAUD.

suit, takes the same as against the maker The indorsee of a note obtained by fraud thereof, freed from all the equities which must show, to recover thereon against the maker, may have existed between such maker and the that he received the note without notice of the payee of the note.” The question came up fraud.

again in Scotten v. Randolph, 96 Ind. 581, Appeal from circuit court, St. Joseph coun- and it was said, in speaking of an averment ty; DANIEL NOYES, Judge.

of the complaint, that “it cannot be said, we Action by Jacob M. B. Giberson against think, that the averment of good faith is Thomas Jolley on a note given by the latter equivalent to the averment that the indorsee in payment for “Bohemian Oats,” and in- took the nute without notice of the maker's dorsed by the payee to the plaintiff. Judg- defense.” In Baldwin v. Barrows, 86 Ind. ment for defendant. Plaintiff appeals. 351, the element that the indorsee received

A. Anderson, for appellant. L. Hubbard, the note without notice is treated as essenfor appellee.

tial to constitute him a bona fide holler, as

against a maker who has been induced to exELLIOTT, C. J. The evidence in this case ecute the note by the fraud of the payee. We warranted the jury in concluding that the have shown by these authorities that the rule promissory note on which the appellant's has been long enforced in this state, and in complaint is founded was obtained by fraud. many instances; and we ought not to depart The appellee was induced to sign the note by from our former decisions except for the a cunningly devised scheme, preconcerted for weightiest and most satisfactory reasons, and the purpose of deceiving him, and made ef- these we have not discovered. Our decisfective by faise statements. The appellant ions are supported upon the point under disis in error in assuming that all that the cussion by those of other courts, and are well payee of the note did was to misrepresent the growded in principle. In Smith v. Associavalue and qualities of the so-called “Bohemian tion, 9:3 Pa. St. 19, it was said: “Where a Oats,” which he induced the appellee to buy. 'negotiable note is obtained from the inaker

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 withoutative,” 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 knowlelge, 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 pecul.arly within his own knowl-affirmative or a negative proposition, he must elge 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 question received full consideration, and a Ind. 113. Nor is there any hardship in re- great number of authorities were cited in quiring the plaintiff to prove the circumstan-proof of the proposition that the general rule ces under which he acquired the note, for is that negative propositions must be proved, none can show them so well as he, and no and these cases, as well as those collected by other person can so well know where to Mr. Wharton, conclusively show that the rule search for the facts. To impose the duty is a common and not an extraordinary one, upon the defendant of showing the circum- and is, indeed, one of almost universal apstances under which the plaintiff obtained the plication. In holding a party who assumes note, and of proving what he knew, would that he is the bona fide holder of a promisin many cases demand of the defendant an sory note bound to prove all the facts essenimpossible thing, and in all cases it woulu tial to invest him with that character, no impose upon him a hardship and a burden more is done than to apply to the particular from which justice requires he should be free. instance a familiar general rule of widesweep. It is not easy to conceive how one can be a We find nothing in the record which would bona fide holder of a note if he had notice of justify us in overthrowing the finding of the the fraud; and all the courts agree that the jury upon the question of the appellant's plaintiff who sues upon a note must, when knowledge of the existence of facts constituevidence that it was obtained from the maker ting a defense to the note. Judgment afby fraud is given, prove that he is a bona fide firmed. holder. It would seem clear, therefore, that, to be consistent, they should hold that he must

(120 Ind. 298) prove, not one, but all, of the essential eie

STATE 0. BALTIMORE & O. & C. R. Co. ments of the character of a bona fide holder. (Supreme Court of Indiana. Oct. 12, 1889.) This cannot be done without showing that OBSTROCTION OF HIGHWAY-INDICTMENT. the note was acquired by the plaintiff with 1. Under Rev. St. Ind. 1891, $ 1897, subjecting out notice, since, if not so acquired, it is not corporations to prosecution for obstructing highpossible for him to be a bona fide holder ways, and section 1964, making such obstruction a

criminal offense, the fact that mandamus is a within the meaning of the law. In support remedy for such obstruction does not bar an inof his adoption of the rule which relieves the dictment therefor. plaintiff of the burden of proving that he did 2. An indictment for such an offense, which not have notice, Mr. Daniel gives this rea- fendant obstructed it, stating the character of such

alleges that there was a highway; that the deson: “To require the plaintiff to show abso- obstruction; and that travel was thereby obstructlutely that he had no knowledge of facts ed, and the public greatly inconvenienced, --is sufwould be to burden him with the necessity ficient, though there is no allegation of criminal

intent. of proving an impossible negative.” 1 Daniels, Neg. Inst. (30 Ed.) § 819. The learned, Appeal from circuit court, De Kalb counand usually very accurate, author has fallen ty; S. A. POWERS, Juilge. into more errors than one in this brief state Indictment against the Baltimore & Ohio

& 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 Louis T. Michener, Atty. Gen., Ernest A. statute. 1 Bish. Crim. Law, § 1075; Nichols Brutton, and John A. Gillett, for appellant. v. State, 89 Ind. 298. Under the statute it J. E. Rose and J. H. Collins, for appellee. is not necessary to the commission of the of

fense 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 high way. 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 embank'ments 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 inconvenhigh way, 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, continuous- all that is required. Sections 1731 and 1755, ly, until the finding of this indictment, con- Rev. St. 1881; McCool v. State, 23 Ind. 127; tinue to unlawfully maintain, obstruct, and Meiers v. State, 56 Ind. 336; State v. Jenkins, incumber said public highway in the unsafe, ante, 133, (at this term.) We think the indangerous, and hazardous condition as afore- dictment is good, and that the court erred in said; and did then and there, and during all quashing it. Nichols v. State, supra; Bybee 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

(121 Ind. 317) indictment. The appellant reserved an ex

POPE 0. VAJEN. ception, and prosecutes this appeal, assigning (Supreme Court of Indiana. Oct. 15, 1889.) as error the ruling of the court in quashing

RELEASE AND DISCHARGE. said indictment.

st is not a sufficient defense to an action on By virtue of section 1897, Rev. St. 1881, a promissory note that the note was given in paycorporations are subject to prosecution the ment for land, that defendant had sold the land to. same as natural persons, for creating, con- had agreed to release the defendant, and look only

one who assumed the note, and that the plaintiff tinuing, or maintaining a public nuisance, or to the assumer. Following Kelso'v. Fleming, 3 for obstructing a public highway, or naviga- N. E. Rep. 830. ELLIOTT, C. J., dissenting. ble stream. Section 1964 makes it a criminal

Appeal from superior court, Marion counoffense to obstruct a public highway: It is ty; D. W. HOWE, Judge. 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 BERKSHIRE, J. This is an action by the nuisance, and that the appellee is not, there- appellant against the appellee and his wife, fore, liable to be prosecuted for a criminal Alice Vajen, founded upon several promissooffense. This may be one remedy, but it is ry notes executed by the appellee and wife to not exclusive. Section 1964, supra, recog- the appellant. The case was put at issue, nizes no such exception, and it would be and tried at special term of the superior judicial legislation for the courts to recognize court, and a judgment rendered for the apany such exception. Besides, section 1897, pellee and his wife, Alice, from which an supra, would have to be disregarded before appeal was taken to the general term, and such an exception could be recognized. in general term the judgment at special term

It is argued that the indictment is bad be- was affirmed, and from the judgment in gencause it fails to charge a criminal intention. 'eral term as to the appellee alone the appel

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