v. Winings, 102 Ind. 330, 1 N. E. Rep. 638; | before or after the sale. The witness had Montgomery v. Aydelotte, 95 Ind. 144. Judgment affirmed.

(121 Ind. 195)

MOELLERING v. EVANS. (Supreme Court of Indiana. Nov. 26, 1889.) LATERAL SUPPORT-DAMAGES-CROSS-EXAMINA

not testified on such examination as to the amount of earth which had slid off prior to the sale, nor as to the amount of the damage done. The witness had been upon the witness stand, and been examined in chief, and fully cross-examined, and was recalled to testify to those particular facts, and it was proper to limit the cross-examination to the 1. The proper measure of damages for the un- particular matter testified to by the witness lawful removal of lateral support to land in its when recalled, and the question propounded natural state is the diminution in the value thereof. did not relate to and was not germane to the 2. A charge that if defendant removed the lat-matter of which the witness spoke in his exeral support to plaintiff's land he would be liable for damage resulting to the buildings thereon is erroneous, where it fails to state that a different rule is to be applied in case the soil is removed carelessly from that applicable when it is removed

carefully.

TION.

3. When plaintiff is recalled as a witness in chief, in an action for damages for removing the lateral support to land, and testifies merely as to the date of the sale of a part of the land, and that the land had caved before such sale, and had fallen away from under a stable, it is improper to ask, on cross-examination, if he does not know that the land could be filled in for 25 cents a yard.

Appeal from circuit court, Allen county; E. O'ROURKE, Judge.

Action by Edwin Evans against William Moellering for damages for removing the lateral support to plaintiff's land. Judgment for plaintiff. Defendant appeals.

T. E. Ellison, for appellant. Bell & Morris, for appellee.

amination in chief.

The next question discussed is the giving and refusal of instructions by the court. The court gave the following instructions: "(1) There is incident to land, in its natural condition, a right to support from the adjoining land; and if land not subject to artificial pressure sinks or falls away, in consequence of the removal of such support, the owner is entitled to damages to the extent of the injury sustained. The measurement of damages in such case is not the cost of restoring the land to its former condition or situation, or of building a wall to support it, but it is the diminution in value of the plaintiff's land by reason. of the acts of the party removing the support. (2) If you find from the evidence that the defendant in this case removed land adjoining plaintiff's in the manner charged in the complaint, then the measure of damages OLDS, J. This is an action by the appel- would be the diminution in value of plainlee against the appellant for damages caused tiff's land. (3) If you find from the evito certain lots owned by the appellee by rea-dence that the defendant in this case removed son of the excavation of the lands adjacent land adjoining plaintiff's, as charged in the thereto by the appellant, permitting appellee's complaint, and as a result of such removal the lots to cave, and causing the destruction of fences and buildings on plaintiff's land were his fences and barn upon the lots, and greatly destroyed or injured, in estimating the damdepreciating the value of the lots. Issue was ages you may consider such injury to the joined on the complaint by general denial, fences and buildings on plaintiff's premises, and a trial had, resulting in a verdict and if any." Instructions 1 and 2 given by the judgment in favor of appellee against the ap- court properly stated the law as to the measpellant for $300. There was a motion for ure of damages to the lots. It is an old and new trial by the appellant overruled, and ex- true maxim that every one must so enjoy his ceptions, and the ruling is assigned as error. property as not to injure the property of anThe first error presented and discussed is other, and this was interpreted in the case of sustaining an objection to a question pro- Taylor v. Fickas, 64 Ind. 167, to mean "that pounded to appellee while testifying as a every one must so enjoy his property, acwitness in his own behalf. The appellee was cording to his legal right, as not to injure the recalled as a witness, and was asked on ex-legal right in the property of another." The amination in chief, and testified, as to date he had sold one of the lots, that he sold it in October, 1886, and that the principal part of the earth which had caved or slipped off from the lot had slipped off before he sold the lot; that a large quantity of the dirt right under the stable dropped off or fell off. During the course of the cross-examination the counsel for appellant put the following question to the witness: "Don't you know that could be filled in there for 25 cents a yard?" There was an objection to the question, and the objection sustained, and exceptions taken at the time. There was no error in this ruling. The witness was recalled to fix the date of the sale of the lot, and to testify as to whether the injury to the lot had occurred

lot-owner has the legal right to the support to his lot from the adjoining land. If such support be removed, and by reason of such removal the lot caves, and is injured, by reason of which the lot-owner suffers damages, he has a right of action against the person removing the support for the amount of the damages sustained to the land. The measure of damages is the diminution in the value of the lot or land. That is a matter easily arrived at,--the difference in the value of the lot by reason of the injury. Thus the damages sustained may be arrived at with reasonable certainty and without complication. To pursue any other course to arrive at the damage we enter a field of uncertainty, involving the cost of labor and material to sup

ply the support removed, the manner of its | falls, he may have an action, although A.'s construction, its sufficiency and durability, excavation was not carelessly or unskillfully and when completed we have a different sup- performed. This natural right does not export, or a support of different material, and tend to any buildings A. may place upon his an artificial instead of a natural one. Sutherland, and therefore if A. builds his house upon land on Damages states the law as follows, the verge of his own land he does not there(volume 3, pp. 417, 418:) "There is incident by acquire a right to have it derive its supto the land, in its natural condition, a right port from the land adjoining it until it shall of support from the adjoining land; and if have stood and had the advantage of such land not subject to artificial pressure sinks support for 20 years. In the mean time such and falls away, in consequence of the remov- adjacent owner may excavate his own land al of such support, the owner is entitled to for such purposes as he sees fit, provided he damages to the extent of the injury sus- does not dig carelessly or recklessly; and if tained. The measure of damages is not the in so doing the adjacent earth gives way, and cost of restoring the lot to its former situa- the house falls by reason of the additional tion, or building a wall to support it, but it weight thereby placed upon the natural soil, is the diminution of value of the plaintiff's the owner of the house is without remedy. lot by reason of the defendant's act." Mc- It was his own folly to place it there." This Guire v. Grant, 25 N. J. Law, 356. Instruc- doctrine is fully supported by the authorities. tions 1 and 2 properly stated the measure of Moody v. McClelland, 84 Amer. Dec. 771; damages, but instruction 3 is erroneous. It Beard v. Murphy, 86 Amer. Dec. 693; Charless tells the jury, as we interpret it, that if v. Rankin, 66 Amer. Dec. 644, and note, 649; the defendant removed the lateral support Lasala v. Holbrook, 25 Amer. Dec. 524. he would be liable to the plaintiff for the The third instruction given by the court was damages resulting to the buildings thereon, erroneous, and for this error the cause must regardless of the manner in which the same be reversed. What we have said in regard was done, whether the injury was caused to the instructions given, shows that the inby the negligent and careless manner in structions asked for by appellant on the queswhich the dirt was removed, or whether it tion of damages were erroneous, and were was removed in a careful or prudent manner. properly refused. Judgment reversed, at It may be claimed that as the complaint costs of appellee, with instructions to suscharges that the defendant negligently, un-tain the motion for new trial.

skillfully, and carelessly did such work, he caused the sides of the lots to cave and produced the injury, and that as the charge tells the jury that if they find the defendant removed the soil adjoining plaintiff, as charged in the complaint, and as a result of such removal the fences and buildings were destroyed, the defendant is liable, that the instruction was to the effect that if the injury resulted from the carelessness and negligence of the defendant in removing the lateral support he would be liable; but we do not think the charge warrants this construction. The jury are nowhere told in the instructions as to the nature of the charge in the complaint, or told that there would be any difference in the liability of the defendant whether the earth was removed in a careless and negligent manner, by reason of which negligence the injury resulted, and the liability for the damage to the buildings if the excavation had been made in a careful and prudent manner. Washburn on Real Property (volume 2, p. 380) states the law as follows: "Of a nature somewhat akin to the easement of light connected with the ownership of a house is that of support, or the right of having one's land, and the structures erected thereon, supported by the land of a neighboring propriétor. The proposition may be stated thus: A., owning a piece of land without any buildings upon it, has a natural right of lateral support for his land from the adjoining land. This right exists independent of grant or prescription, and is also an absolute right; so that if his neighbor excavates the adjoining land, and in consequence A.'s land

(120 Ind. 207) STACER et al. v. HOGAN et al. (Supreme Court of Indiana. Nov. 5, 1889.) WILLS-TESTAMENTARY CAPACITY.

1. Where the complaint in a will case charges both undue influence and incapacity, and the evidence clearly shows the latter, the supreme court dence as to the former. will not, under a general verdict, weigh the evi

2. An instruction which, though obscure, seems to state that as a general rule the symptoms of insanity are in a degree incapable of description, and may elude the most experienced physician, and, that whether this be so, as well as belief in illusions, are questions of fact, is not sufficient cause for granting a new trial, where, considered with other instructions, there is no ground to suppose that it misled the jury.

3. A request to charge that there is no evidence tending to show undue influence does not require the court, on appeal, to consider the sufficiency of

the evidence.

4. The court will not consider the sufficiency of evidence to sustain special findings, when they are consistent with the general verdict, which is sustained by the evidence.

Petition for a rehearing. opinion, see 21 N. E. Rep. 911.

For former

The third instruction, referred to in opinion, was as follows: "As a general rule, the symptoms of insanity seem largely incapable of description. Insanity is sometimes quite obvious. At other times it may exist in so subtle a form as to elude the observation of the most experienced physician. The belief in the existence of mere illusions or hallucinations, the creatures purely of the imagination, such as no sane man could believe in, are questions of fact, as well as the proper inferences arising upon them, for the jury, as

may be unequivocal evidence of insanity, and, | be, the instruction attempts to announce a if so, will avoid a will for partial insanity of merely abstract principle of law, and, when the testator at the time of the execution of construed with the other instructions in the the will, and, entering into it, makes it void. cause, there is no reasonable ground for the The statutes of Indiana do not permit a per- belief that it misled the jury. mit a person of unsound mind to make a will, but leaves his or her property to go according to the laws of descent."

At the proper time the appellants asked the court to give to the jury the following instruction: "The court instructs the jury that there is no evidence in this case conduc

Alf. C. Tanner, W. W. Ireland, J. S. Buchanan, Cicero Buchanan, and W. E. Nib-ing to show that the will in contest was prolack, for appellants and petitioners. D. B. Kumler, G.V. Menzies, and J. E. McCullough, for appellees.

COFFEY, J. An earnest petition, supported by an able brief, has been filed in this cause, praying for a rehearing. In view of the importance of the case, and of the numerous questions involved in it, we have again gone carefully over the voluminous record in the cause, and find no reason for changing our opinion upon any of the questions decided in the original opinion. It is claimed, however, that there are some questions involved in the case which were not decided in the opinion heretofore handed down. It is earnestly argued that there is a total failure of evidence to establish the charge of undue influence. We did not, when considering the case originally, nor do we now, deem it necessary to pass upon that question in determining whether or not the evidence supports the verdict. The complaint charges both mental incapacity and undue influence. The evidence tends to support the charge of mental incapacity, and, as the verdict is general, it will withstand an attack upon it on the ground that it is not supported by the evidence.

cured by undue influence, and upon that issue they should find for the defendants." In cases where the evidence for the plaintiff is of such a character as that taking it as true, and giving to it all the inferences that may be legally drawn therefrom, it would not support a verdict in his favor, the court may direct the jury to return a verdict for the defendant. McClaren v. Railroad Co., 83 Ind. 319; Koerner v. State, 98 Ind. 7. But in this case it cannot be said that there is no evidence, either direct or circumstantial, tending to prove undue influence. There is some evidence tending in that direction; but whether it is sufficient to sustain a verdict upon the charge of undue influence we are not called upon, in this connection, to decide. The instruction under consideration required the court to tell the jury that there was no evidence conducing to prove undue influence. We think the court did right in refusing to say to the jury that there was no evidence tending to prove undue influence. Had the court been asked to instruct the jury that there was not sufficient evidence in the cause to prove the charge of undue influence, we would feel called upon to decide the question thus presented; but, as no such instruction was asked, the question does not arise.

It is claimed, also, that the third instruction given by the court at the request of the A number of interrogatories were submitted appellees is erroneous, and must have misled to the jury by the appellants, and answered. the jury. This instruction, as it comes to It is not claimed that the answers to these inus, is somewhat obscure; but we cannot place terrogatories are in conflict with the general upon it the construction claimed by the ap- verdict, but it is contended by the appellants pellants. There is evidently the omission of that the answers to the interrogatories are not some word or words, either in drafting the supported by the evidence. It is contended instruction or in making a copy of it. With- that such an open disregard of the evidence out supplying such words, the instruction is in particular and material things, as is exwholly without meaning. Supplying the hibited in this case, inexorably undermines words necessary to give the instruction any the general verdict, and requires that it should intelligible meaning, we understand it to in- be set aside as an unsupported verdict. The form the jury that as a general rule the symp-object sought to be attained in putting intertoms of insanity are in a degree incapable of description, but are sometimes quite obvious. They may exist in such a subtle form as to elude the observation of the most experienced physician. Whether this be so, as, also, the belief in the existence of mere illusions or hallucinations, the creatures purely of the imagination, such as no sane man could believe in, are questions of fact, as well as the proper inference arising from them, for the jury, and they may furnish unequivocal evidence of insanity. If they do, and enter into the execution of a will, it may be avoided for partial insanity of the testator. Even after supplying the words necessary to give this instruction meaning, it cannot be said that it is free from criticism; but, however this may

rogatories to the jury is to elicit from them special answers to questions of fact, involved in the case, necessary to a correct application of the law to the facts in the case under investigation. For this reason, if the jury return answers to special interrogatories which disclose facts inconsistent with the general verdict, such answers will control the general verdict, and the court will render judgment according to the special facts found, notwithstanding such general verdict. If the jury should return a general verdict for one of the parties, and should answer interrogatories disclosing facts inconsistent with the verdict, it would then be necessary to inquire whether such answers were or were not supported by the evidence. If it

tained.

Appeal from circuit court, Elkhart county; JAMES D. OSBORNE, Judge.

Baker & Defrees, for appellant. & Davis, for appellee.

Wilson

were found that they were not supported by became due, and the cognovit having shortened the evidence, as the court could not ignore the time within which judgment could be obsuch answers, it would undoubtedly be its duty to grant a new trial, as the ends of justice could be reached in no other way. Murray v. Phillips, 59 Ind. 56; Railway Co. v. Selby, 47 Ind. 471. But we have no such case here. The answers to special interrogatories are consistent with the general verdict BERKSHIRE, J. This was a suit brought of the jury. The motion is for a new trial, by the appellee on a promissory note and an alleging as reason that the verdict of the jury "indorsement." Answers and replies were is not supported by the evidence. In such filed, and the case, having been put at iscase the attention of the court is not called sue, was submitted to the court for trial, and to the interrogatories, and the answers there- after hearing the evidence, a proper request to, but it is directed to the evidence in the having theretofore been made, the court recause. It is the duty of the court to examine turned a special finding, and thereafter renthe evidence; and, if it supports the general dered judgment for the appellee. The apverdict, the motion should be overruled, pellant appeals, and has assigned several erwithout any regard to the manner in which rors, to-wit: "First, the court erred in overthe answers to interrogatories are made. In ruling the demurrer of said Merriman to the the case of Railway Co. v. Selby, supra, the complaint of said Barker, and to each paraappellant moved for a new trial on the ground graph thereof severally; second, the court that the answers to interrogatories were not erred in sustaining the demurrer of said supported by the evidence, and this court Barker to the first and second paragraphs of said: "If the general and special verdicts are the answer of said Merriman, and to each of consistent with each other, then both should said paragraphs severally; third, the court stand. If they are inconsistent, and the spe- erred in stating his conclusions of law; cial verdict is not supported by the evidence, fourth, the court erred in overruling the the appellee, and not the appellant, had the motion of said Merriman to change and modright to complain. * * * The general ify his conclusions of law; fifth, the court verdict includes all that is in the special find- erred in overruling the motion of said Merings." In a case like this, where there is riman for judgment on the finding of facts nothing in the record to indicate that the in his favor, and also sustaining the motion jury did not base its verdict upon the charge of said Barker for judgment thereon in his which the evidence tends to support, we favor." The substance of the complaint is think it wholly immaterial whether the an- as follows: That on the 20th day of July, swers to interrogatories addressed to another 1883, Francis A. Merriman executed and debranch of the case are supported by the evi-livered his certain promissory note to the dence or not supported. If the general ver- firm of which the appellant was a member, dict is supported by the evidence, in such to-wit, Merriman & Holmes; that said note case the motion for a new trial, assigning for called for $800, and was due one year after reason that the verdict is not so supported, date; that on the 17th day of November, should be overruled. After a second exami- 1883, the said firm indorsed the same to the nation of the record in this cause, and a care-appellee; that on the 22d day of August, ful consideration of all the questions involved, we feel warranted in reaffirming that there is no error in the record for which the judgment of the circuit court should be reversed. Petition for a rehearing overruled.

1. Judgment against one joint maker of a note does not merge the right of action against the other, who was a non-resident, and therefore not joined in the former action.

2. A judgment on a note received from one joint obligor in consideration of the original indebtedness, does not merge the right of action against the other obligor on that indebtedness, the right to proceed against him having been reserved. 3. An allegation that plaintiff accepted from the principal a note due one day after date, and a cognovit authorizing entry of judgment thereon, does not show an extension of time such as will

release the surety, no agreement being shown not to sue on the original indebtedness until the note

1884, the appellee brought suit on said note against the payor, who appeared and defended said action, placing his defense upon the ground that the consideration for which said note had been executed had failed, and defeated a recovery in said action; that on the 4th day of March, 1884, the said firm executed to the appellee its note, due one day after date, for $375, which is due and wholly unpaid; that on the 25th day of August, 1884, the appellee brought his action on both of the above claims against said Holmes and others, but not against the appellant, for the reason that he was and had been a non-resident of the state of Indiana; that on the 9th day of December, 1884, certain proceedings to foreclose a chattel mortgage, which seems to have been in some way connected with said action, were dismissed; that on the 27th day of March, 1885, in lieu of all former proceedings in said action, the said Holmes by his cognovit, in which the right to prosecute suit against the appellant was reserved, confessed judgment in favor of the appellee for the sum of $1,187, which judgment is wholly