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The fifth assignment of error is not discussed, and hence we do not consider it.

in overruling appellant's motion to require | facts not established by the evidence, the the jury to consider further of the special remedy is by a motion for a new trial, and verdict, and erred in discharging the jury not by a motion for a venire de novo." Govover appellant's objection; fourth, that the erned by this rule, there was clearly no error court erred in overruling appellant's motion in overruling the motion for a venire de novo, for a venire de novo; fifth, that the court as the facts found show the appellee entitled erred in overruling appellant's motion to to recover a judgment for the value of one strike out the conclusions of law and findings cow. of evidence from the special verdict; sixth, that the court erred in overruling appellant's motion for a new trial; seventh, that the court erred in overruling appellant's motion for judgment in its favor on the special verdict; eighth, that the court erred in overruling appellant's motion for judgment in its favor on the special verdict as to the cow killed on the crossing; ninth, that the court erred in sustaining appellee's motion for judgment on the verdict, and erred in rendering judgment thereon.

No question is discussed as to insufficiency of either paragraph of complaint, and no objection is pointed out to either paragraph, and therefore the first two errors assigned are waived, and we do not consider them.

We pass the sixth and seventh assignments of error, and next consider the eighth assignment of error, which presents the question as to the sufficiency of the verdict. Before the rendition of the judgment on the verdict in favor of the appellee, the appellant moved the court for judgment in its favor on the special verdict as to the cow killed on the highway crossing, and the court overruled the motion. This was a proper motion. The two causes of action were clearly distinct; and, if the facts found in the special verdict entitled the appellee to a judgment in its favor upon the one cause of action, the motion should have been sustained. Johnson v. Culver, 116 Ind. 278, 19 N. E. Rep. 129. The facts found in the special verdict relating to the cow killed upon the highway crossing, we think, may be stated as follows: That plaintiff's cow, without his fault, broke through his pasture fence in the night-time; that the fence was a safe one, and plaintiff made diligent search, and was unable, by reason of the darkness of the night, to find her; and during the same night she entered upon the defendant's track, at a point where the same crossed a public highway, and, while the cow was upon the said crossing, defendant's train passed said crossing at a high rate of speed, without sounding any whistle before reaching said crossing, and the locomotive ran over said cow and killed her. These constitute the material facts found. There are some epithets and some conclusions stated in the verdict, but they must be excluded, in determin

The third assignment of error presents no question. The refusal of the court to send the jury back to consider further, for the reasons stated in the motion of appellant, and the discharging of the jury over appellant's objections, are matters which must be presented by a motion for new trial. The object sought by the appellant is to question the rulings of the court in overruling its motion to require the jury to be sent back, and consider further of their verdict, and in overruling its objection to the discharge of the jury; and, if the rulings were erroneous, they constituted error of law occurring at the trial; and, to present any question as to such ruling, the ruling must be assigned as error in the motion for new trial. The trial continues until the rendition of the verdict by the jury. So "Trial," 2 Rap. & L. Law Dict.; Bouv. Law Dict. In passing upon this question as we have, we do not intending the sufficiency of the verdict. It is also to hold that it is proper practice, in a case stated that the defendant made no attempt to wherein a special verdict is requested, for the frighten said cow from said crossing, but court, on motion, to send the jury back, after there is no finding of facts that the employes they have returned a verdict, to consider running the train saw the cow, or knew she further, or to find further facts not included was upon the crossing; and if they did not see in the special verdict. In the case of Rail- her, or know she was upon this crossing, they way Co. v. Finnell, 116 Ind. 414, 19 N. E. were not required to make any attempt to Rep. 204, the court says: "It is well settled frighten her off the track. It is very doubtin this state that it is the office of a special ful whether the appellant has a right to reverdict to find the facts, and not the evidence cover for this cow in any event, in view of or conclusions of law. It is also as well set- the fact that the cow was at large upon the tled that it does not follow that, because a highway, the plaintiff being required to keep special verdict may contain, evidence, con- his cattle upon his own land; and the question clusions of law, facts without the issues, or is presented as to whether or not the cow was fails to find facts proven, a motion for a not trespassing, even if she escaped without venire de novo must be sustained. Matters appellant's fault, and, if so, whether there thus improperly found will be disregarded. can be a recovery, even if appellee's negliBut if, stripped of those matters, the verdict gence caused the injury; but, in view of the is yet sufficient to lead to and support a judg-theory we take of the question presented by ment either way, under the issues as made by the pleadings, a motion for a venire de novo will be overruled. If such a verdict fails to find facts established by the evidence, or finds

the motion, we deem it unnecessary to decide whether this would defeat a recovery or not. The appellee seeks to recover in this case by reason of the omission of the engineer and

persons in charge of the train to comply with wards her, but, if the whistle had been soundthe requirements of the statute in sounding ed, she would have left the track, and avoided the whistle before crossing the highway. Sec-instant death. Sec-instant death. We do not think this conclution 4020, Rev. St. 1881, makes it the duty sion can be drawn from the facts found in the of engineers running engines upon railroads, special verdict. The primary object of the upon approaching a highway crossing, to statute is to add to the safety of human life, sound the whistle three times at a distance of and to surround it with an additional safenot more than 100, and not less than 80, rods guard, by requiring a signal to be given to from such crossing, and to continuously ring persons in the vicinity of highway crossings, the bell from that time until such engine has warning them of the approaching train, that passed such crossing. Thus the engineer is they may heed the warning and avoid danger. required to sound the whistle distinctly three It is, manifestly, not the ordinary object or times between 80 and 100 rods from the high- purpose, of the statute to require this signal way crossing, and continuously ring the bell for the purpose of frightening animals which from a distance of 80 rods before reaching the may chance to stray upon the crossing, as the crossing until his engine has passed over the law does not permit cattle to run at large in crossing. Section 4021 makes the engineer the highways of the state; and the presumpliable to the state for failure to comply with tion is that none will be upon the highway, the provisions of section 4020. It also pro- and, if they were, would no doubt be as liable vides that "the company in whose employ to become frightened at the approaching train such engineer or person may be, as well as as by the signals required; while, upon the the person himself, shall be liable in damages contrary, persons with vehicles and driving to any person, or his representatives, who may animals are rightfully upon the highway, and be injured in property or person, or to any it is to be presumed, if a signal is given, they corporation that may be injured in property, will avoid danger. The court erred in overby the neglect or failure of such engineer or ruling appellee's motion for judgment in its other person, as aforesaid." There is no fact favor for the cow killed on the highway crossfound in the verdict to show that the employes ing. The question is presented on the overhad any knowledge of the cow being upon the ruling of the motion for new trial as to the crossing; and the fast rate of speed, of itself, sufficiency of the evidence, but there is sufficonstituted no negligence. It does not appear cient evidence to support the verdict as to that the train was running at any unlawful this one cow described in the first part of the rate of speed; and the only negligence, if any, verdict. There are also some questions prewith which the employes of the appellee are sented as to the ruling of the court, and the chargeable, is omitting to sound the whistle; admission of evidence; but we have examined and unless, from the facts found, the conclu- them, and do not think there is any error in sion can be drawn that the death of the cow the admission of evidence for which the judgwas caused by reason of the fact that the ment should be reversed. It is also contended whistle was not sounded, there can be no that the court erred in some of its instructions recovery, for the statute expressly provides given to the jury; but the instructions which that the liability is for property injured by it is contended are erroneous relate to the liareason of the failure to sound the whistle and bility for the cow killed upon the highway ring the bell. It is the well-settled rule that, crossing, and, taking the view we have as to if the finding or verdict is silent upon a ma- the liability of the appellant for this cow, it terial point, on that point it is against the is unnecessary to pass upon the question as party having the burden. Dennis v. Rail way to the instruction. Co., 116 Ind. 42, 18 N. E. Rep. 179.

In the absence of a finding of a fact to the contrary, the presumption is that the engineer in charge of the train discharged his duties, and sounded the whistle and rung the bell as the statute required. The jury found as a fact that he did not sound the whistle, but the verdict is silent as to whether or not he rung the bell; and, being silent as to that fact, we are to pass upon the question as if that fact was found in the verdict in the affirmative, with this omitted fact supplied as the law supplies it. The question presented is whether we can draw the conclusion that the death of the cow killed upon the highway crossing was caused by the neglect of the engineer to sound the whistle. In order to entitle the appellee to judgment for the value of this cow, the inference must be drawn that the cow remained on the track notwithstanding the noise of the approaching train, the ringing of the bell, and shining head-light of the engine, coming at a rapid rate of speed to

For the error committed in overruling appellant's motion for judgment in its favor for the cow killed on the highway crossing the judgment must be reversed. Judgment reversed, at costs of appellee, with instructions to the court below to sustain appellant's motion for judgment in its favor for the cow killed upon the highway crossing, and to render judgment in favor of appellee for the damage done to the cow described in the verdict as injured upon the track where the same was not fenced.

(120 Ind. 327) HOGSHEAD v. STATE ex rel. ALLEN. (Supreme Court of Indiana. Oct. 15, 1889.) GUARDIAN'S BOND-NEW TRIAL-EXCESSIVE VER

DICT.

1. A guardian invested his ward's money in a mortgage, and afterwards bought the mortgaged land himself, agreeing to pay the mortgage, which be entered satisfied of record, and then mortgaged the land to a third person. Held, that this constituted a conversion of his ward's money, for which his bondsman was liable.

2. In a suit against such bondsman, the fact that an instruction, otherwise correct, spoke of the transaction as a conversion of the land, is not reversible error.

3. In an action on a guardian's bond, the assignment, as a cause for a new trial, that the verdict is excessive, does not call in question the amount of such verdict. Following McKinney v. State, 19 N. E. Rep. 613.

Appeal from circuit court, Daviess county; D. J. HEFFRON, Judge.

Action by the state of Indiana, on the relation of John Allen, guardian of Margaret E. Wallace, against Hiram Hogshead, administrator of David Hogshead, deceased, on the guardian's bond of Nelson Pursell, which was executed by said David Hogshead as surety. Judgment for plaintiff. Defendant appeals. Gardiner & Taylor, for appellant. Ogden & Burke and Billheimer & Downey, for appellee.

to pay $500 of the mortgage debt. On the 22d day of January, 1879, Barnetta Mattingly conveyed the land to Nelson Pursell, the guardian; the sole consideration for such conveyance being his agreement with her to pay off the mortgage debt above named. David Hogshead departed this life on the 13th day of June, 1879, and on the 1st day of October, 1881, the guardian reported this fact to the Daviess circuit court, and filed a new bond to the approval of said court. Nelson Pursell, the guardian, having negotiated a loan of money from the Ætna Life Insurance Company upon the land mortgaged to him to secure the debt due to his ward, and other lands, on the 10th day of December, 1883, entered the mortgage satisfied of record. Ogden fied of record. On the 7th day of December, 1885, Nelson Pursell was removed from his trust as guardian by the Daviess circuit court, and the appellee appointed as his successor in the trust. Upon these facts the court instructed the jury as follows: "(1) It is the duty of the guardian to preserve the identity, as well as the existence, of the fund under his control; and if a guardian invest the money of his ward in his hands in his own business, or the business of others in which he has an interest, it is a conversion of money, for which he will be liable on his bond. (2) The selling, bartering, or assigning away the property of his ward, including choses in action, by the guardian for his own use, is a conversion of his ward's assets, fcr which he is liable." "(5) If the jury find, from a preponderance of the evidence, that Nelson Pursell was duly appointed guardian of Margaret E. Wallace, and executed his bond as such, and that the decedent, David Hogshead, executed such bond as surety for said Pursell in that behalf, which bond was duly approved, and that money or other property of said ward came into the hands of said Pursell as such guardian; and you further find that said Pursell, as such guardian, loaned the money of his ward to Hiram Pursell, and took a mortgage from him on certain real estate, as security for said loan, and, before the payment of said mortgage, Nelson Pursell bought the land so mortgaged, and took the deed to himself in his own name, and, as a part of the consideration for such purchase, promised and agreed to pay said mortThe undisputed facts in the case are that gage, and that he took possession of said on the 7th day of August, 1875, Nelson Pur- land, and converted it to his own use, and sell was duly appointed guardian of the per- failed to pay said mortgage to his ward, or son and property of Margaret E. Wallace in any other person authorized to receive it, Daviess county, and executed a bond as such, and that such conversion was made when in the usual form, with David Hogshead as the decedent, David Hogshead, was surety his surety. On the same day he loaned to on the bond, and before a new bond was exHiram Pursell $544 of his ward's money, at ecuted by Pursell,-then, and in that case, 10 per cent. interest, and took a mortgage on you should find for the plaintiff. (6) If you real estate in Daviess county to secure the re- find for the plaintiff, and that Nelson Purpayment of the same. Forty-four dollars of sell, as guardian, converted to his own use the principal of this loan was subsequently the funds of his ward, as above stated, you repaid to the guardian. Hiram Pursell and will assess the plaintiff's damages at the his wife conveyed the land thus mortgaged amount so found to be converted, with 6 per to Barnetta Mattingly on the 24th day of cent. interest from the date of the converFebruary, 1876; she assuming and agreeing sion, together with 10 per cent. damages

COFFEY, J. On the 7th day of August, 1875, Nelson Pursell was duly appointed guardian of the person and property of Margaret E. Wallace, a minor, and executed his bond, as such, in the penal sum of $1,200, with David Hogshead as surety. David Hogshead, the surety on said bond, departed this life intestate on the 13th day of June, 1879, and his estate is now in process of settlement in the Daviess circuit court. Nelson Pursell was removed from his trust as such guardian by the Daviess circuit court, and the appellee herein, John Allen, was duly appointed and qualified in his stead. The appellee filed the claim now in controversy, basing it upon the guardian's bond executed by the said Nelson Pursell and David Hogshead, and alleging, as a breach of said bond, that prior to the 15th day of October, 1881, the said Nelson Pursell, as guardian, converted to his own exclusive use and benefit, out of the moneys which came into his hands as such guardian, the sum of $750, and has never accounted for the same, or any part thereof, to the said Margaret E. Wallace, or any other person. A trial of the cause before a jury resulted in a verdict for the appellee in the sum of $885.54, upon which the court rendered judgment. The error assigned is that the circuit court erred in overruling the appellant's motion for a new trial.

thereon." To the giving of each of these instructions the appellant excepted, and assigned the same as reasons for a new trial.

case differ from one where the guardian had
collected the money, and had then invested it
in the land? In either case he is indebted to
his ward in the sum which represents the
purchase price of the land.
price of the land. We think it
ought to be held that he has converted the
debt due to his ward to his own use.
It is claimed that the ward might still en-
force the mortgage against the land, and have
it declared preferred to the mortgage exe-
cuted to the Etna Life Insurance Company,
and for that reason the ward has lost noth-
ing. Whether the mortgage in favor of the
ward could be enforced as against the insur-
ance company depends upon whether that
company had notice of the facts in the case.
We do not think the ward should be compelled
to litigate the question with that company.
As the guardian has treated the debt due
his ward as paid, and has entered the mort-
gage satisfied, neither he nor his surety should
be heard to complain when required to answer
to the ward for the debt thus admitted by
the guardian to have been paid.

It is further claimed by the appellant that the court erred in its fifth instruction, in assuming that a person could convert land to his own use; but it is evident from the instructions, taken as a whole, that the word "converted," as used in this instruction, was not used in its technical sense. It was used in the sense of "appropriate," and was doubtless so understood by the jury. We are of the opinion that the instructions given by the court stated the law correctly, and that the court did not err in giving them.

By these instructions we think the question is fairly presented as to whether the facts above set out amount to a conversion to his own use of the ward's money by Nelson Pursell, the guardian. In the case of State v. Sanders, 62 Ind. 562, it was said by this court: "It is the duty of a guardian to loan or otherwise invest the money of his ward in his hands in such a way as to keep it all the time at interest, as far as practicable, and to use due care in making such loans or investments. He is not permitted to use such money for his own benefit, or to make any profit out of it for himself. The rule in that respect is very strict. Guardians and all other trustees of the moneyed concerns of others are answerable for any mismanagement or unauthorized dealings with the trust moneys in their hands, and any misapplication of such moneys is a conversion of them, within the meaning of the statute relating to guardians. It is their duty to preserve the identity, as well as the existence, of the fund under their control. If they destroy the fund, they render themselves responsible for it at once. If they pay away the money as their own, the trust is practically at an end. The investment of the money in his hands, by a guardian, in his own business, or the business of others in which he has an interest, as a mere business investment, is a conversion of the money, for which he is liable on his bond." See, also, Covey v. Neff, 63 Ind. 391; Lowry v. State, 64 Ind. 421. In this case, as we have seen, Barnetta Mattingly conveyed the land upon which the guardian held a mortgage to secure a debt due to the ward to the guardian, in consideration of his promise to pay the debt secured by the mortgage. As It is also contended that the verdict and between Barnetta Mattingly and the guard-judgment are too large. The reason assigned ian, the debt was satisfied. She placed in for a new trial was that the damages assessed the hand of the guardian funds with which by the jury were excessive. This being an he agreed to satisfy the debt due to the ward. action on contract, the assignment, as a cause To all intents and purposes he used the debt for a new trial, that the verdict is excessive, due his ward to purchase land for his own does not call in question the amount of such benefit, taking the title to himself. In such verdict. McKinney v. State, 117 Ind. 26, 19 case he is held, in equity, to have received N. E. Rep. 613; Smith v. State, 117 Ind. 167, the funds for the use of the party for whose 19 N. E. Rep. 744. We find no error in the benefit the contract was made, and is a trus-record for which the judgment should be retee holding such funds for the use of the versed. Judgment affirmed. cestui que trust. Miller v. Billingsly, 41 Ind. 489; Beals v. Beals, 20 Ind. 163; Cross v. Truesdale, 28 Ind. 44; Durham v. Bischof, 47 Ind. 211. It is true that, as to the ward, Hiram Pursell and Barnetta Mattingly were not discharged; but they were liable as sureties only for the guardian. The case, then, is this: The guardian purchased the land, upon which he held a mortgage to secure money due to his ward, agreeing, as the purchase price, to pay the debt due to the ward. As between him and his vendor, the purchase price is paid. The debt due to the ward represents that price. So far as the guardian is concerned, the debt is paid. The guardian owes the debt to his ward. In what does the

It is also claimed by the appellant that the court erred in the admission of evidence on the trial of the cause, but we find in the record no objection or exception to the admission of evidence.

(120 Ind. 357)

STATE v. BRINNEMAN et al. (Supreme Court of Indiana. Oct. 17, 1889.) DIVORCE-DEFENSE BY PROSECUTING ATTORNEY.

If a defendant appears to and answers a complaint for divorce after the prosecuting attoring the action, as is his duty in such case when ney has appeared thereto for the purpose of resistthere is no appearance by defendant, under Rev. St. Ind. 1881, 1038, it is not error of which the state can complain to strike out the prosecuting attorney's answer. If the appearance of defend ant is collusive, the striking out of the answer will not prevent the prosecuting attorney from resisting the action.

Appeal from circuit court, Wells county; HENRY B. SAYLER, Judge

E. C. Vaughn, for the State. A. N. Mar- | file, there could be no necessity that the prostin and A. L. Sharpe, for appellees.

ecutor should also have a separate answer, in order to enable him to resist the petition. MITCHELL, J. Sarah A. Brinneman com- The answer of the defendant was sufficient, plained of her husband, Solomon Brinneman, no matter what the purpose was in filing it. and charged that the latter, for more than In the interest of the state, it would doubttwo years next before the commencement of less be the duty of the prosecutor, notwiththis suit, failed to make any reasonable pro-standing the appearance and answer of the vision for her support, or that of her infant defendant, to appear and resist the petition, child. She prayed judgment dissolving her and take all proper steps to defeat the obtainmarriage with the defendant. The prose- ing a divorce by collusion, in case there apcuting attorney appeared and answered, deny-peared reasonable ground to believe that the ing the material allegations of the complaint. appearance and defense were merely colorAfterwards the defendant appeared in person able. The prosecuting attorney was in no and by attorney, and answered by a general way hindered from appearing and resisting denial. Thereupon the court, upon the mo- the petition in the present case. It does not tion of the plaintiff, struck out the answer of the prosecuting attorney, notwithstanding the latter deposed to the effect that he had reason to believe that the appearance and answer of the defendant were merely colorable, and for the purpose of furthering the design of the plaintiff to obtain a divorce without sufficient cause. After hearing, the court gave judgment in favor of the defendant upon a cross-bill, in which he charged the plaintiff with having abandoned him.

appear that he offered any evidence which the court refused to hear, or that he was in any way denied the fullest opportunity to resist the granting of a divorce on the petition of the plaintiff, or the cross-petition of the defendant. There was, therefore, no error in the ruling of the court in striking out the answer of the prosecutor, after the defendant had appeared and answered. We decide nothing as to the right of the state to appeal in a case like this, no such question having been made. The judgment is affirmed, with costs.

(120 Ind. 463)

DURHAM et al. v. SMITH. (Supreme Court of Indiana. Oct. 29, 1889.) TESTAMENTARY CAPACITY-INSTRUCTIONS.

credit to testimony concerning testator's mental 2. To charge that the jury should give greater capacity coming from one witness than to that of another witness, of equal sagacity, who had less opportunity for observing testator's condition, is an invasion of the province of the jury, and it is reversible error, though the greater number, but not all, of the appellant's witnesses lived nearer to, and were more intimate with, testator than appellee's witnesses.

This appeal is by the state, and the only question involved relates to the propriety of the ruling of the court in striking out the answer of the prosecuting attorney. Recognizing the interest which the state has in maintaining the family relation, and in preventing the dissolution of the marriage tie by collusion, the statute makes it the duty of the if a testator's mind was unsound, he could not 1. It is erroneous and misleading to charge that, prosecuting attorney, whenever any petition make a valid will, whether the unsoundness affor divorce remains undefended, to appear fected the character of the will or not, as the term and resist the petition. Section 1038, Rev. "unsound mind" includes, in its broadest sense, St. 1881; Scott v. Scott, 17 Ind. 309; People is not confined to idiots, non compotes, lunatics, every species of mental defect or impairment, and v. Dawell, 25 Mich. 247. Public policy re-monomaniacs, or distracted persons, though so dequires that the marital relation shall not be fined by statute. severed for inadequate causes, that families shall not be broken up and disrupted from unworthy motives, and that reconciliation shall be effected if practicable or possible. The prosecuting attorney has a public duty to perform, and it is his right to perform that duty without unreasonable embarrassment. Jordan v. Westerman, 62 Mich. 170, 28 N. W. Rep. 826. The proper interpretation of this statute must be that, in the absence of an appearance by the defendant in a proceeding for divorce, it becomes the duty of the prosecuting attorney to enter an appearance for the defendant, and resist the petition by taking all proper steps to prevent the granting of a divorce, unless the facts make a case entitling the petitioner to a judgment. Where, however, the defendant appears and answers, it may be presumed that a bona fide defense is intended; and unless there is a good reason to believe that the appearance and answer are a mere pretext and cover, intended to assist in obtaining a collusive divorce, the prosecuting attorney has no further duty to perform. Even if he should believe that the defendant did not contemplate a bona fide defense, so long as the latter had an answer or cross-complaint on

Appeal from circuit court, Vijo county; B. E. RHOADS, Judge.

John G. Williams and Harrison, Miller & Elam, for appellants. Davis & Davis, McNutt & McNutt, and Pugh & Pugh, for appellee.

OLDS, J. This was an action to contest and set aside the will, and probate thereof, of Esther B. Thornton, deceased. The action was commenced by the appellee against the appellants, Milton S. Durham, executor, Milton S. Durham in his own right, the Rose Orphan Home; also against John D. Pugh, Horace C. Pugh, and George E. Pugh. The interests of the three last-named parties were with the plaintiff, and they do not appeal, and have served notice upon their co-defendants in accordance with the statute. The testatrix, Esther B. Thornton, was an aged maiden

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