complaint, and upon its refusal to amend or plead over judgment was rendered that it take nothing, and that appellee recover its costs. Sustaining the demurrer is the only error assigned. The complaint is entitled “Sherman & Ellis, Inc., a Corporation, v. The Indianapolis Castings Company,” and does not suggest anything more as to the character in which or the persons on behalf of whom the plaintiff sues. The complaint recites that— .

“The plaintiff complains of said defendant and for cause of action against said defendant says that said plaintiff is a corporation * * * authorized to do business in the state of Indiana, under and pursuant to its laws, and to get as attorney in fact to make, subscribe, issue, change, modify, reinsure, or cancel contracts exchanging insurance and indemnity and to do all other acts as manager for reciprocal insurance exchanges, together with such other business as may be incidental and necessary in connection there with. That the defendant is a corporation organized under the laws of the state of Indiana, and doing a manufacturing business in the city of Indianapolis.”

It then alleges, in substance, that the defendant was operating under the Workmen's Compensation Act, and was required to keep its liability thereunder insured; that the Industrial Board, by authority of section 71 of said act, had fixed the conditions and restrictions in conformity with which reciprocal insurance associations might conduct their business, which are recited at length in the complaint, as hereinafter referred to and set out in part; that pursuant to said act and the conditions and restrictions so fixed by the Industrial Board the Indiana Manufacturers' Reciprocal Association was organized, to which defendant became a sub

scriber for the purpose of insuring its said

liability, and continued to be such member from March 7, 1917, until October 1, 1918; that said association was composed of employers of labor (neither the number nor names of any other than defendant being given), who “formed such association for the purpose of complying with said Workmen's Compensation Act * * * conformably with law” ; that each subscriber thereto was required to and did execute “a common power of attorney appointing the plaintiff to act for and in its stead in the exchange of insurance contracts, in demanding, collecting, and in receiving money due any subscriber, and authorizing said plaintiff to bring and prosecute in its own name, any suit or action at law or in equity for or on behalf of said subscribers,” a copy of the form in which each power of attorney was executed being set out, as hereinafter stated (which does not, however, contain a grant of authority nearly so broad as is here alleged); that the association was organized with a board of trustees chosen by the subscribers; “that, at the time the different subscribers,

including this defendant executed said power of attorney and received the policy as hereinafter set out, it was understood and agreed between the different subscribers that each had executed said common power of attorney”; that three different policies of indemnity insurance were issued. by the asSociation to defendant through plaintiff, as attorney in fact for each of the subscribers, each policy covering a different period of time; that each policy provided for the payment of an advance premium, and for an adjustment, at the end of certain periods or at the end of the time during which the insurance should be in force, of the total premiums, so that each subscriber should pay his share of the total cost of insurance and expenses of the association in proportion to bis payroll; that for reasons stated and as determined by action of the board of trustees defendant's proportion was fixed at certain named sums for each of the periods cowered by its different policies respectively, but, having terminated its insurance more than a year before suit was commenced, defendant

| had paid only part of such premiums, and

had refused to pay $4,025.01 thereof, and was indebted to plaintiff in the sum of $4,025.01, with interest, for which plaintiff had made a demand upon defendant. The statute referred to provides that—

“For the purpose of complying with * * * section 68, groups of employers, to form mutual insurance associations * * * subject to such reasonable conditions and restrictions as may be fixed by the Industrial Board, are hereby authorized.” Section 71, c. 106, Acts 1915, p. 414 (section 8020c:3, Burns' Supp. 1921).

The italics used in setting out the following instruments are our own. The conditions and restrictions in conformity with which reciprocal insurance associations might conduct their business, alleged by the complaint to have been fixed by the Industrial Board, included the following, in substance:

Section I. The employers forming a reciprocal insurance association shall, through their authorized attorney in fact, file with the Industrial Board for its approval a verified declaration setting forth (1) the name adopted, (2) the location where it will conduct business, (3) a copy of the form of policy contract to be used, (4) a copy of the power of attorney by which each member authorizes the execution of such policies, (5) the number of employés and amounts of annual pay rolls to be represented, (6) the fact that the required reserve has been deposited, and (7) a list of the employers forming the association, with their addresses, net wealth, and amount of indemnity assumed by the association.

Section II. All policy contracts shall be executed by an attorney in fact authorized by power of attorney from the employers to do so, which power of attorney must authorize the attorney in fact to file the written statement above required, and may (if desired) provide for a board of trustees of not less than five, to be chosen annually by the employers from their own number, which “shall have charge of and direct the general management, supervision, operation and control of the business affairs of said association, including the collection, safekeeping and disbursement of its funds,” and may select a treasurer to hold and disburse its funds, who shall give bond. Section III. Authority must be given for the chairman of the Industrial Board to accept service of process upon “each employer executing the power of attorney” in all suits arising out of the policy contracts of the association, and “to enter in any such suit the personal appearance of each of said employers” after giving five days' notice to the attorney in fact that process has been so served. Section IV. The attorney in fact shall file with the Industrial Board his bond for $50,000 or more, to be approved by said board. Section W. Each association shall maintain a reserve fund of a designated amount to be provided out of the premiums collected. “Each employer shall pay in cash in advance the full estimated premium upon each policy contract issued to him for a period of one year or less, and shall pay cash in advance annually the full premium for at least one year upon each policy contract issued to him for a longer period than one year.” Section VI. This requires full payment of any liability within 30 days after it is determined, or the deposit in a bank or trust company of funds sufficient to pay the full amount of a liability payable by installments, within 30 days after such continuing liability is determined, and regulates the manner of paying accruing installments. Section VII. This requires full payment by a member, upon his withdrawal from the association, of the entire amount of his liability for all injuries that have previously accrued, such payment to be made within 30 days after the amount of such liability shall have been determined. Sections VIII, IX, and X. These require the attorney in fact to file a statement of the names and addresses of the members, with information as to their wealth and the indemnity assumed, and annual reports of the condition of the association, the premiums collected, losses paid, etc., and require the association annually to obtain a certificate of authority from the Industrial Board, which is given power to revoke or suspend such authority for cause.

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The power of attorney alleged to have been executed by defendant, being in the form alleged to have been executed by each subscriber to the Indiana Manufacturers' Reciprocal Association, recited that the purpose was to secure adequate protection against liability under the Indiana Workmen's Compensation Act by the exchange of private contracts through plaintiff as attorney in fact; that the subscriber executing it–

“hereby appoints Sherman & Ellis our attorney for us in its name as our attorney to make, subscribe, issue, change, modify, reinsure, or cancel contracts exchanging insurance and indemnity and agreements for such exchange of contracts * * * to demand, collect, receive, and receipt for all moneys due us for credit to our account as a subscriber, to give, waive or re

ceive all notices or proofs of loss; to adjust or settle all losses and claims under such contracts or other evidence of indemnity; to perform or waive all agreements or stipulations of any such contracts; to appoint the chairman of the Industrial Board of the state of Indiana as our agent, upon whom service of process may be made with the same force and effect as if made upon ourselves, and to authorize him to enter our personal appearance in any suit * * * upon any policy contract herewith authorized, after having given the within attorney in fact five days' written notice of the service of process upon him ; to appear for us in any suits, actions or proceedings, and to bring, prosecute, defend, compromise, settle or adjust same; to perform every act not herein specifically mentioned that we could ourselves do in relation to any contract, hereby authorized, with power of substitution by said attorney, substitute selected to be approved by the trustees. The intent and purpose of this instrument is to clothe our said attorney with the power necessary to enable us, through it, to exchange contracts of insurance and indemnity with other subscribers; provided, however, that said attorney shall have no power to bind us jointly with any other subscriber, but it shall have power only to bind us severally and for ourselves alone. There shall be no joint funds, capital or stock, but a separate individual account shall be kept by our attorney with us and with each subscriber; said account to be open to our inspection. As compensation * * * our said attorney is hereby authorized to deduct 30 per cent. of all moneys received by it for credit to our account, except subscription deposit. The trustees, consisting of five or more subscribers, shall be selected by the subscribers. * * * The trustees shall " " + make such disposition of the funds of the subscribers, with reference to the investment thereof, as may be necessary to protect the interest of subscribers. * * * All disbursements from funds of subscribers shall be by check signed by our attorney and countersigned by one of the trustees, to be designated by said trustees. Said attorney and the countersigning trustee shall give such bond as may be required by the trustees and the Industrial Board of Indiana. After the adjustment or compromise of any loss or claims by our attorney as above provided the trustees are empowered and instructed to pay our portion of such loss or claim. If, at any time, losses should occur in an amount sufficient to require for their payment any part of our subscription, hereinafter provided for, we will, upon demand, pay an amount adequate to defray our portion of such losses and leave our subscription intact. * * * This power of attorney is strictly limited to the uses and purposes herein earpressed and to no other use or purpose, and is subject to the conditions and restrictions prescribed by the Industrial Board. * * * The undersigned hereby make a subscription of one-half annual premium as a surplus to be deposited upon demand therefor with the trustees.”

It is first objected that, even though it be granted that a liability of defendant for unpaid premiums on his insurance policies is shown, the facts stated only show a liability to the association, and not to plaintiff, and that no facts are alleged which give plaintiff any right to sue and recover in its own name money owing to the association, but not to itself. It will be observed that the complaint does not name any member of the Indiana Manufacturers' Reciprocal Association except the defendant, and that defendant is the only person or corporation named as having executed the alleged power of attorney, the other supposed subscribers being mentioned only as an indefinite number of unidentified “employers of labor”; that neither the title nor the opening sentences of the complaint contain any intimation that plaintiff is suing in a representative capacity of any kind or otherwise than in its own absolute right; that there is no averment that the board of trustees has ordered or authorized plaintiff to bring suit, whether in its own name or otherwise; that section 71, supra, of the statute relied on as giving authority for the formation of such association, makes no provision whatever for bringing suit in any other manner than is authorized by the general law; that the alleged conditions and regulations for the formation of such associations promulgated by the Industrial Board do not contain any statement that the attorney in fact shall have power to sue in its own name for money due the association, even if they could give such right, but provide for the election of a board of trustees, with power to direct, manage, and control the business of the association, including the collection, safekeeping, and disbursement of its funds, and to choose a treasurer, and provide for the acceptance of service of process on behalf of each employer, and for entering the personal appearance of each employer, in case of an action on a contract made by the attorney in fact in behalf of the association; and the power of attorney alleged to have been executed by defendant and others only authorizes Sherman & Ellis, Inc., to act “for us in its name as our attorney” in the many things authorized to be done, which include authorizing the chairman of the Industrial Board to accept service of process upon the principal and enter his appearance, and to appear for him in suits, and to bring and prosecute the same. But it does not purport to give authority to do anything otherwise than “for us in its name as our attorney,” and fails to suggest any purpose to confer authority to maintain an action for money due the association by suing Iuerely as “Sherman & Ellis, Inc.” And it also contains an express proviso that “said attorney shall have no power to bind us jointly with any other subscriber.” And, having provided for a board of trustees, chosen by the subscribers, it authorizes the trustees to make disposition of the funds of the subscribers, and requires all payments therefrom to be countersigned by a trustee, acting as treasurer, under bond. Having thus limited the authority of the attorney in fact,

it then expressly stipulates that the power conferred “is strictly limited to the uses and purposes herein expressed and to no other use and purpose.” It thus appears that the power of attorney only appointed plaintiff “our attorney for us in its name as our attorney” to do certain acts in the matter of executing and canceling certain contracts, and acts incident to the performance of such contracts, and the adjustment and payment of losses, and to collect and receive money due the subscriber, with further power to appear, for the subscriber in all actions, “and to bring, prosecute, defend, compromise, settle or adjust the same,” as such attorney in fact, but withholding all “power to bind us jointly with any other subscriber,” and declaring the power thus granted to be “strictly limited to the uses and purposes herein expressed, and to no other use or purpose, and subject to the conditions and restrictions prescribed by the Industrial Board,” as above set out, and that it provides for a board of trustees chosen by the subscribers, and that one of their number shall countersign all checks. Such power of attorney did not give the plaintiff title to the unpaid premiums due the association, nor did it make the plaintiff a “trustee” of such funds by designating him only an “attorney in fact” for each individual employer who became a subscriber, with strictly limited powers. And the power “to bring and prosecute” actions only purported to confer authority to do so as such attorney, while the ultimate control was vested in the board of trustees. So far as its language is pertinent to the questions now under consideration, the Civil Code provides as follows:

Sec. 3. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section. * * *

“Sec. 4. An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. * * * *

Sections 251, 252, Burns' 1914; sections 251, 252, R. S. 1881; sections 3, 4, Acts 1881, p. 240.

[1] To be sufficient as a complaint by the trustee of an express trust the pleading must clearly disclose that the plaintiff is acting in a representative capacity, and should disclose the name of the cestui que trust, so that issue may be taken upon that allegation, if necessary, and also that the cestui que trust may be bound by the judgment or decree. Marion Bond Co. v. Mexican C. & R. Co., 160 Ind. 558, 563, 65 N. E. 748. And a mere agent in the making of a contract on behalf of another which was not made “with him, in his name, for the benefit of" his principal, but was really negotiated by him between the principal and the other contracting parties, is not within the statute. Mitchell v. St. Mary, 148 Ind. 111, 115, 47 N. E. 224. The mere fact that plaintiff, as attorney in fact, was to receive as compensation 30 per cent. to be deducted from all moneys received by it to the credit of each subscriber executing a power of attorney in the form used by all of them in common, neither gave it title to the unpaid premiums or made it the “trustee of an express trust” embracing such premiums. [2] It follows that the facts alleged in the complaint did not show that plaintiff had the right to sue for and recover in its own name the premiums alleged to be due and unpaid. Therefore the demurrer to the complaint was properly sustained. Hammond v. Cline, 170 Ind. 452, 84 N. E. 827; State ex rel. v. Liberty Tp., 30 Ind. App. 208, 210, 98 N. E. 149. The complaint being bad for the reasons

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indicated, we need not consider and do not

decide whether or not it would have been sufficient in other respects. The judgment is affirmed.

WRIGHTSMAN v. BROWN et al. (No. 24091.)

(Supreme Court of Indiana. June 6, 1924.)

1. Highways 6-72(4)—Evidence held to sustain jury's finding in favor of petitioners for vacation of old and location of new highway. Evidence on question of public convenience and usefulness held to sustain jury's finding in favor of petitioners, petitioning for vacation of a diagonal highway and its relocation in direct north and south course.

Appeal from Circuit Court, Henry County; Fred Gause, Judge.

Proceedings in which Harvey E. Brown and others petitioned for a change of a highway, and in which James Wrightsman appeared in opposition. From a judgment for petitioners, Wrightsman appeals. Affirmed.

Jeffrey & Jeffrey, of New Castle, for appellant.

Paul Brown and Brown & Morris, all of New Castle, for appellees.

EWBANK, J. Appellees petitioned to change a highway which ran diagonally northwest across the east three-fourths of a 40-acre tract of land, crossing on a bridge over a small creek at the bottom of a ravine, and running along the top of a fill that often washed out, and to relocate it so that it

would run directly north along the east side of the said tract, passing east of the creek and not crossing any stream except a small branch, the water of which at a point where it was proposed to cross could all be carried (witnesses said) by a 20-inch sewer pipe. The viewers and also the reviewers reported in favor of making the proposed change, and an appeal was taken to the circuit court, where a jury also found in favor of the petitioners. The sufficiency of the evidence to sustain the finding is the only question presented for review. There was evidence that the 40-acre tract crossed by the highway was the north half of a farm owned by appellee Conway; that a highway along which was a “good pike” ran east and west at the north end of the farm, on which Conway's residence faced, 18 rods east from its northwest corner, being situated immediately west of where the road to be changed ran into the east and west highway; that the road to be changed ran between Conway's house and his barn, and thence southeast about 40 rods, down a little hill with a 4 per cent. grade into a ravine at the bottom of which was a stream that was crossed on a bridge which had cement abutments and a plank floor, and was approached by a fill on either side; that one fork of the stream washed against the fill for a distance of 150 feet, where the east side of it had been protected by a wall, but the wall had caved in, so that there was abrupt drop at the side of the wagon track of 4 or 5 feet to the bottom of the stream, and the dirt had washed from under one abutment of the bridge for nearly one-half of its length, and the roadbed there was only 10 or 12 feet wide; that the abutments of the bridge were broken and “in very bad shape”; that the road along there washed out frequently, and at the time of the trial part of the dirt, as well as the wall, had “caved in”; that the cost of a new bridge there would be $750,

... and the cost of repairing the old bridge and

the retaining wall so as to make a permanent improvement would be $450; that the proposed change would be wholly on the land of Conway (one of the petitioners), and the proposed new road from where it would turn straight north, up to the pike, would be 319 feet shorter than the diagonal road then in use; and that the lowest point on the proposed road would be 4 feet higher and the highest point 3 feet lower than the corresponding lowest and highest points, respectively, on the road before it was changed, and the greatest fill required on the new road would be 2% feet; that the steepest grade required would be 2% per cent, as against a grade of 4 per cent. on the old road; that to construct the proposed new road, including the cost of a gravel surface and a sewer pipe under the roadway at the little branch, would be $600 or less; that a

$=>For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and Indexes

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mail route passes over this road and turns Appeal from Criminal Court, Marion Coun-
east along the pike, and for a person going in ty; James A. Collins, Judge.
that direction the distance would be 1,006

Willie Carey and another were convicted of
feet shorter, while for a person going west
on the pike it would be 680 feet longer; that petit larceny, and named defendant appeals.

Reversed, with instructions. another road ran south from the pike along the west side of Conway's farm, only 20

Frank A. Symmes, Arthur R. Robinson, rods west of where the diagonal road came and Garth B. Melson, all of Indianapolis, and out upon the pike being so rods from the Frank S. Roby, of Zionsville, for appellant. proposed line of the new road; that the diag

U. S. Lesh, Atty. Gen., and Mrs. Edward onal road extended two miles southeast from Franklin White, Deputy Atty. Gen., for the this place, and except that it had been chang

State. ed so as to go around the square corner of the next quarter section, extended several EWBANK, J. An indictment in two counts miles northwest ; that there were four farm was returned jointly against appellant and residences on the diagonal road southeast of William Ford. The first count charged robwhere it was proposed to change its course, bery, alleging that the defendants "felobut no schoolhouses; that the existing road niously, forcibly, by violence and putting in cut off 16 acres of the northeast corner of fear,” stole $1.05 from the person of Cless Conway's farm, in a triangular shape, and Ferguson. The second count charged lar. ran between his house and his barn, while ceny, alleging that defendants "did feloniousthe proposed new road would follow along ly take, steal, and carry away" $1.05 behis east line; that the proposed new road was longing to said Ferguson. Being tried by laid out 30 feet wide. And a witness testi- the court without a jury both defendants fied that in his opinion if the road were to were found “guilty of petit larceny in the be changed as proposed it would afford a second count of the indictment,” and were better route for travel, with the same con- sentenced to imprisonment at the Indiana venience.

State Farm for a term of one year. Section Whatever evidence there may be to the con- 2270, Burns' 1914 (chapter 61, Acts 1907, p. trary must be disregarded in passing on 86); section 9926h, Burns' Supp. 1921 (chapthe question, on appeal, whether or not the ter 33, Acts 1919, p. 81). evidence is sufficient to sustain the finding. [1] Appellant has taken a separate appeal, We think this evidence sufficient.

and has assigned as error the overruling of The judgment is affirmed.

his motion for a new trial, by which he

challenged the sufficiency of the evidence to GAUSE, J., not participating.

sustain the finding.
The prosecuting witness testified:

That he had known appellant 15 years and
Ford 10 or 12 years, and had been with them

at different times; that at about 1 o'clock in CAREY V. STATE. (No. 24460.) the early morning he was walking through

Military Park, in the city of Indianapolis, on (Supreme Court of Indiana. June 5, 1924.) his way home from up town. That he saw ap1. Larceny www 55-Evidence held not to show pellant and Ford, and spoke to them. That

near an alley on West New York street there accused stole or participated in stealing.

a billboard, “and Bill Ford and Willie In prosecution for larceny, evidence held Carey walked out as far as the curb, and nevnot to show that accused stole or participated er opened his mouth. Bill Ford put his gun in stealing money from person of prosecuting there, and said, 'Give me what you got.' I had witness.

a paper bill and five cents, and he took it. I 2. Criminal law Om 878(3)-Conviction on one

had 15 cents in my vest pocket he didn't take. count of indictment only,' acquits on other they went on either side of the alley, and I

Willie Carey walked out toward the car track. count. Conviction of petit larceny only, under in- ters and reported them.

caught a car and went up to police headquar

The $1.05 was my dictment charging robbery and larceny in sep- property. I was afraid of Ford. These matarate counts, amounts to acquittal of robbery.

ters occurred in Marion county on or about 3. Criminal law 59(3)–Mere presence of May 13, 1923. I did not say anything to Ford.

accused when crime committed insufficient to He said, 'Give me what you got,' and took the prove participation in guilt.

$1.05. He did not call me by name. Carey Under Burns' Ann. St. 1914, SX 2095, 2647 [appellant] did not say a thing; never opened (Acts 1905, c. 169, 88 224, 641), accused's his mouth. He walked out toward the car

track." mere presence when another commits crime is not sufficient to prove his guilt if he is not shown to have conspired with his companion

Other witnesses testified that Ferguson to commit it, nor to have assisted in, counsel- bad given his dollar to Ford before they ed, encouraged, hired, commanded, or other went to Military Park, as a contribution wise procured its commission.

i toward a fund for the purchase of some whisFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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