Ind. App. 461, 108 N. E. 400; Sovereign Camp, etc., v. Latham (1915) 59 Ind. App. 290, 107 N. E. 749; Scottish, etc., Ins. Co. v. B. E. Linkenhelt & Co. (1919) 70 Ind. App. 324, 121 N. E. 373; Kokomo, etc., Co. v. Ramseyer (Ind. App. 1920) 125 N. E. 580. Appellee has challenged the showing made by appellant on the question of diligence in seeking information, prior to the trial, on the subjects covered by the affidavits, but we are not required to consider such question, in view of what we have already stated. We conclude that the court did not err in overruling appellant's motion for a new trial on the ground of newly discovered evidence. [3] The only remaining errors which appellant has attempted to present, relate to the action of the court in giving and refusing to give certain instructions. Appellee has challenged the sufficiency of appellant's brief to present any such questions, and her contentions in this regard have much merit. However, after much hesitation, we have decided to consider certain of the alleged errors, with reference to the instructions, which appellant claims to have presented. Complaint is made of the action of the court in giving instruction No. 2 on its own motion, in which the jury was informed that the complaint alleges as an act of negligence “that the defendant operated his truck at a great or high rate of speed,” and that she could recover on proof of such negligence alone, if she had otherwise established her cause of action. Appellant bases his contention that this instruction is erroneous on a claim that there is no evidence that his truck was operated as alleged. The evidence does not warrant such a claim, in view of the direct testimony in that regard, and the inference to be drawn from the circumstance, which the evidence tends to establish, that the driver was unable to stop the truck in less than 75 feet from the place of collision, although he put on the emergency brake with all his power just before it occurred. There was no error in giving said instruction. [4] What we have said as to said instruction No. 2 applies with equal force to instructions Nos. 14, 20, and 22, given by the court on its own motion, and of which complaint is made on account of the reference to speed in each of them. Instruction No. 19 givven by the court on its own motion, is also challenged, but, as appellant has failed to point out in his brief wherein it is erroneous, we are not required to give the same any consideration. [5] Appellant complains of the action of the court in refusing to give certain instructions requested by him, but, as he has not attempted to present any question, except as to No. 1, the others will not be considered. Said instruction contains a definition of an accident, and applies the same to certain facts

of which there was evidence, but there was no error in refusing to give the same as its subject-matter was substantially covered by instructions Nos. 21 and 23 given by the court on its own motion. Van Spanje v. Hostettler (1918) 68 Ind. App. 518, 119 N. E. 725.

Failing to find that the court erred in overruling appellant's motion for a new trial, the judgment is affirmed.


(Appellate Court of Indiana, Division No. 1. May 22, 1924.)

1. Master and servant 3-388—Widows conclusively presumed dependent within Compensation Act. Under Acts 1919, p. 165, dividing widows entitled to compensation into three classes, those living with their husbands at the time of their deaths, those not living with them, but dependent on them, and those not living with them and not dependent on them, but nevertheless entitled by virtue of law to support from them, widows falling within the first and third classes are conclusively presumed to be wholly dependent, while as to those in the second class no such presumption arises.

2. Master and servant 6-403–Widow claiming compensation has burden of proving husband's liability to support her. A widow entitled to compensation because the law imposed the duty on her deceased husband to support her has the burden of proving facts warranting the conclusion of such liability. 3. Master and servant 3-388–Husband held not liable to support wife claiming compensation for death. A showing that the widow of an employee killed in August, 1921, had been living apart from him in a foreign country since January, 1914, had received $1,650 from him prior to 1917, was not dependent on him and had not heard from him since April, 1921, held insufficient to warrant the conclusion that such deceased husband was legally liable to her for support.

4. Husband and wife 3-4–Husband not liable for support of wife who has abandoned or voluntarily without justification lives apart. A husband is not liable for the support of a wife who had abandoned him or voluntarily and without justification lives apart.

5. Pleading 3-63—Party claiming statutory right must bring himself within statute. A party claiming a right conferred by statute must bring himself within its provisions.

6. Appeal and error £->996—Findings based on reasonable inferences must be accepted as true. Though facts found appear to be based on inferences, where same are reasonable, they must be accepted as true on appeal, though contrary inferences may be equally reasonable and such as the appellate court would have been more inclined to draw.

Go For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

7. Evidence 6-75–Widow's failure to explain separation from husband and his failure to support may be considered on question of his liability for support. Failure of a widow claiming compensation to explain long-continued absence of her husband, his failure to support her during a part of that period, and the absence of communication between them for nearly three months preceding his death, held a circumstance properly considered in determining the question of his legal liability to support her.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Joka Jelicic, by Dr. Bojidar Pouritch, Consul of the Kingdom of the Serbs, Croats and Slivenes, attorney in fact, against the Vermillion Coal Company. From denial of compensation, claimant appeals. Affirmed.

Defrees, Buckingham & Eaton, of Chicago, Ill., for appellant.

Hays & Hays, A. C. Owens, W. P. Stratton, J. S. Taylor, W. H. Bridwell, and G. W. Buff, all of Sullivan, for appellee.

BATMAN, J. Appellant seeks to reverse an award in which she was denied compensation against appellee, based on the following finding of facts:

“And the full board, having heard the argument of counsel, having reviewed the evidence and being duly advised in the premises, finds that on July 20, 1921, one Wide Jelicic was in the employment of the defendant at an average weekly wage of $24; that on said date the said Wide Jelicic received a personal injury by an accident arising out of and in the course of his employment, of which the defendant had knowledge; that said injury resulted in the death of said Wide Jelicic on August 1, 1921, of which the defendant had knowledge; that at the time of the injury and death of said Wide Jelicic, the said Wide Jelicic left surviving him Joka Jelicic, his widow, and Djuka Jelicic, his minor daughter, who were at said time living in the Kingdom of the Serbs, Croats and Slovenes; that the said Djuka Jelicic died on April 18, 1922; that the said Wide Jelicic and his wife and daughter had been living apart since January 23, 1914; that up to 1917 the said Wide Jelicic had sent to his wife, Joka Jelicic, the sum of $1,650; that the said Joka Jelicic last heard of her husband, Wide Jelicic, on April 13, 1921; that, at the time of the injury and death of said Wide Jelicic, the said Joka Jelicic was not dependent upon him for her support; that the injury and death of the said Wide Jelicic was not due to his willful misconduct or willful disobedience of any orders

of the defendant; that the defendant has paid (1914) of Ind. APP.

Appellant's assignment of error contains 11 specifications, but all are covered by the first, as it presents the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts. Acts 1917, p. 154. We shall first consider the sufficiency of the facts found to sustain the award, denying compensation to appellant, as the widow of the deceased employee, Wide Jelicic. Under the law as it has existed since 1919, three classes of widows of deceased employees are entitled to receive compensation, as dependents, where facts are found showing liability, viz.: (1) Those living with their husbands at the time of their deaths; (2) those not living with their husbands at the time of their deaths, but dependent upon them for support; (3) those not living with their husbands at the time of their deaths, and not dependent upon them for support, but nevertheless were entitled to support from their husbands at the time of their deaths, by virtue of the laws of the state. Acts 1919, p. 165; Collwell v. Bedford Stone, etc., Co. (1920) 73 Ind. App. 344, 126 N. E. 439. [1] If a widow falls within either said first or third class, she is conclusively presumed to be wholly dependent upon her deceased husband for support; but if she falls within said second class, there is no such presumption, and hence the question of dependency must be determined in accordance with the fact, as the fact may be at the time of such death, as provided in said last-named act. In the instant case it is clearly disclosed by the finding of facts that appellant does not fall within either said first or second class, as it is found that appellant was living apart from her husband at the time of his death, and that she was not dependent on him for her support. Therefore we are only required to determine whether she falls within said third class, which is based on the italicized portion of the following provision of section 38 of the Workmen's Compensation Act, as amended in 1919: “The following persons shall be conclusively presumed to be wholly dependent for support on a deceased employee: “(a) A wife upon her husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. * * * * (Our italics.) Acts 1919, p. 165. Whether a wife is living with her husband at the time of his death involves a conclusion of fact, but whether the laws of the state impose an obligation upon him to support her at such time involves a conclusion of law, as its determination requires an application of abstract principles of law to the facts, as they are found to exist. Lagler v. Roch 79, 104 N. E. 111; Cable

$100 of the burial expenses of the said vide Co. v. McElhoe (1914) 58 Ind. App. 637, 108

[ocr errors]
[ocr errors]

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

[2] The burden of proving the facts which , evidence, nor has she set out any such fact would warrant such a conclusion of law was which she claims is established by the eviupon appellant, and, if not found, we must dence, but not stated in the finding. An inassume they were not proved. Raynes v. vestigation, however, discloses some eviStaats-Raynes Co. (1918) 68 Ind. App. 37, dence to sustain every ultimate fact expressly 119 N. E. 809; Calumet, etc., Co. v. Mroz found, by being stated in the finding, or im(1922, Ind. App.) 137 N. E. 627; Chicago, etc., pliedly found, by being omitted therefrom. R. Co. v. Kaufman (1921, Ind. App.) 133 N. E. This is true, notwithstanding the variance 399; S. J. Peabody, etc., Co. v. Miller (1922, between the evidence and finding as to when Ind. App.) 133 N. E. 591.

appellant last heard of or from her husband, [3-5] The only facts found, bearing upon as this at most is a mere evidential fact. the question under consideration, are the fol- | True, some of such ultimate facts appear to lowing: Appellant is the widow of the de- be based upon inferences; but, as they are ceased employee, Vide Jelicic. She had been reasonable, we must accept such facts as true living apart from him since January 23, 1914. on appeal, although contrary inferences may He had sent her the sum of $1,650 prior to be equally as reasonable, and such as we 1917, but she was not dependent upon him for would have been more inclined to draw, had her support at the time of his death. She the questions been submitted to us as original last heard of him on April 13, 1921, a little ones. City of Linton v. Jones (1920) 75 Ind. more than three months prior to his death. App. 320, 130 N. E. 541; Utilities Coal Co. Do these facts warrant the conclusion of v. Herr (1921) 76 Ind. App. 312, 132 N. E. law, essential to appellant's right of recor- 262. In reaching this conclusion we note ery, viz. that the laws of this state imposed that the only evidence of facts, on which the an obligation on said deceased employee to Industrial Board could have based a consupport appellant at the time of his death?clusion, as to whether or not the laws of this We are clearly of the opinion that they do state imposed an obligation upon appellant's not, for the following reasons: While it is husband to support her, at the time of his true, as a general rule, that the laws of death, was given by appellant herself. It this state impose upon husbands the duty of is significant that she did not give any evisupporting their wives, such duty does not dence of misconduct on the part of her husexist under all circumstances. To illustrate : band, which excused her from living with It does not exist where a wife abandons her him at the time of his death, or any evihusband, or voluntarily and without justi- dence that at such time she was free from fication lives apart from him. Summers v. conduct which would have relieved her hus Summers (1912) 179 Ind. 8, 100 N. E. 71; band from the obligation imposed upon him Brown v. Templeton Coal Co. (1923, Ind App.) by the laws of this state to give her sup137 N. E. 724. In the instant case no fact is port. found which explains the conduct of ap [7] It is also significant that, although the pellant in living apart from her husband deceased employee had been in this country for more than seven years prior to his death. for more than seven years, had written her In face of the burden resting on her to es-only occasionally and had ceased to send tablish her right to receive compensation, we her money for more than four years prior to may not assume that her conduct in that his death, she gave no evidence of having regard was attributable to the fault of her written to him, or made any effort to join husband, and thereby conclude that he was him in this country, or of having made any under a legal obligation to support appel- complaint of his long absence, or of his faillant, by virtue of the laws of this state, not. ure to send her any portion of his earnings, withstanding her absence in a foreign land during the time stated. These were facts for more than seven years.

This is in ac- peculiarly within her knowledge, and perti. cord with the well-established rule that a nent to an issue on which she had the bur. party, claiming a right conferred by statute, den. Her failure to give any evidence in ex. must bring himself fully and clearly within planation thereof was a circumstance the its provisions before he can enforce it. Staf-court had a right to consider, and may have ford v. St. John (1904) 164 Ind. 277, 73 N. E. been controlling in the determination of 596; Board v. Jarnecke (1905) 164 Ind. 658, otherwise would have been in even balance.

material questions of fact against her, which 74 N. E. 520; Woodward v. State (1910) Barnett v. Gluting (1891) 3 Ind. App. 415, 29 174 Ind. 743, 93 N. E. 169.

N. E. 154, 927; Bump v. McGrannahan (1915) [6] The only other question before us re- 61 Ind. App. 136, 111 N. E. 640; Godwin v. lates to the sufficiency of the evidence to sus- De Motte (1916) 64 Ind. App. 394, 116 N. E. tain the finding. Appellant in the proposi- 17; Indianapolis, etc., T. Co. v. Montfort. tions or points of her brief has not set out (1923, Ind. App.) 139 N. E. 677. any ultimate fact which she claims is stated For the reasons stated the award is af. in the finding, but not established by the firmed.

(144 N.E.)

there was no reversible error in refusing tesRODEBECK V. RICHARDSON et al. timony of trial judge that if he had known (No. 1 1831.)

purchaser was objecting to title he would not

at the time he took action on administrator's. (Appellate Court of Indiana, Division No. 2. report have approved it, where only inference June 3, 1924.)

therefrom was that court would have post1. Executors and administrators @319-Sale poned action until purchaser had been given by administrator under court order is judi opportunity to present his objection to ap

proval of report. cial sale.

A sale by an administrator under order and decree of court is strictly a judicial sale.

Appeal from Circuit Court, Hancock Coun. 2. Executors

ty; Fred C. Gause, Judge. and administrators 375 Sales by administrators effective after ap In the matter of the estate of Henry Fraproval by court.

lich, deceased. Petition by Frederick RodeSales by administrators are not only made beck against Guy Richardson, administraunder court order, but must be reported to and tor, and others, to set aside order approving approved by court before becoming effective. sale of land. From judgment denying peti3. Executors and administrators 76%Ad. tioner relief, he appeals. Afirmed.

ministrator's act, approved by court, becomes Samuel J. Offutt and Charles H. Cook, judicial act.

both of Greenfield, for appellant. An administrator must report his pro

Arthur C. Van Duyn and Charles L. Lin. ceedings to court, and after court approves dall, both of Greenfield, for appellees. bis act it adopts it as its own, and it becomes a judicial act. 4. Executors and administrators 377–Par.

MCMAHAN, J. Guy Richardson adminis ty for whose benefit notice is given may trator of the estate of Henry Fralich, herewaive,

after referred to as appellee, filed his peti. Object of notice of sale is to inform public tion for the sale of real estate to pay debts of nature and condition of land to be sold and All of the heirs of the decedent and all lientime, place, and terms, and party for whose holders were made defendants. On February benefit it is given may waive omission to give 4, 1920, the court directed said administrapotice or defects therein.

tor to sell such real estate at private sale, 5. Executors and administrators 362-11 after giving notice of the time, terms, and

object of notice of sale is attained, error or place of sale by two weekly publications in defects therein are immaterial,

a certain weekly paper. On April 25, 1921, If objects to be gained by giving notice of appellee filed his report reciting, among othsale are attained, immaterial errors and de- er things, that he had given notice of sale fects will not affect its sufficiency.

as required by the order of the court, that 6. Executors and administrators 375, he sold such real estate to appellant, and

When confirmation of sale cures defects in asking that said sale be approved. The sale notice stated.

was approved, deed ordered, reported, and Where terms of sale or notice given are approved, with directions to deliver the same such as court had authority to direct in de- to appellant when he complied with the or. cree ordering property sold, confirmation of sale by court cures irregularities in terms of der of the court fixing the terms of sale.

May 18, 1921, appellant filed his petition sale as made or in notice of sale.

asking the court to set aside the order ap7. Executors and administrators 362–Mis-proving the sale, on the ground that the take in notice of sale, not misleading to pube written agreement entered into between him lic, held immaterlal.

and appellee required appellee to furnish Where mistake in notice as to date of sale is not such as to mislead the public, it is im- an abstract showing a merchantable title to material and of no effect; such being especially the real estate; that the abstract which aptrue where mistake is obvious on inspection.

pellee furnished did not include the papers, 8. Executors and administrators Ema 362-Do- estate sold, and did not show a merchantable

proceedings, and judgment ordering the real fect in notice of sale of land held immaterial. title; that, on having certain objections to

Where only parties who could attack sale of land by administrator to pay debts because the title pointed out, appellee caused suit to of defects in notice of sale were heirs of de- be instituted to quiet the title to correct the cedent, who by their subsequent warranty deed alleged defects; that, after the decree quietwere barred from action to set aside and va- ing title had been entered, appellee again tencate sale, defects in potice were immaterial. dered an abstract, but that the same failed 9. Executors and administrators 380(3)

to show a merchantable title, in that it did Refusal to admit evidence of trial judge that not show that appellee had caused notice of if informed of objection he would not have the time of the sale to be published; that approved administrator's sale held not re- the notice of sale as shown by the abstract versible error,

and by the record was published in the paper In proceeding to set aside order approving named on the 5th, 12th, and 19th days of sale of land by administrator to pay debts, February, and stated that appellee would of

For other cases Bee same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

fer the real estate for sale February 4, 1920, and that no other or different notice of such Sale was given; that appellant notified appellee of the defects in said notice, and that by reason thereof he would not complete the purchase of the real estate; that appellee, with full knowledge of said fact, presented his report of sale to the court and secured the approval thereof; that appellant had no knowledge that appellee was intending to make such report of sale until after the same had been filed and approved. Appellee filed an answer to this petition, and, after hearing evidence, the court denied appellant any relief. Appellant's motion for a new trial for reasons, (1) that the decision is not sustained by sufficient evidence, (2) that the decision is contrary to law, and (3) in excluding certain evidence, being overruled, he appeals. The facts as disclosed by the evidence are, in substance, as follows: The order of the court directing the sale of the real estate was made February 4, 1920. Appellee caused notice to be published February 5, 12, and 19, 1920, that appellee would on February 4, 1920, and from day to day thereafter until sold, offer the real estate for sale. On March 18, 1920, appellant and appellee entered into a written agreement wherein appellant agreed to buy, and appellee agreed to sell, the real estate ordered sold; appellee agreeing to furnish an abstract showing a merchantable title. Soon after this contract was entered into appellee delivered an abstract of title to appellant, who delivered the same to an attorney for examination. Objections were made to the title, and appellee, pursuant to an agreement, caused a suit to be commenced and prosecuted to final decree quieting the title to the real estate ordered sold. This decree is dated January 1, 1921. A continuation of the abstract showing the proceedings in the suit to quiet title and the recording of certain government patents and deeds was thereafter furnished appellant. There was further delay; it being inferable from the evidence that appellant was seeking to delay the consummation of the sale, and that appellee was desirous of having the sale completed. It was later agreed that the parties would meet at the office of appellee's lawyer April 14, 1921. On this day appellant with several members of his family and his lawyer met appellee at the office of his lawyer. Other objections to the title were pointed out and corrected. The whole day was taken up in the matter. Late in the asternoon, appellant's lawyer called attention to the wording of the notice of sale, wherein it was stated that appellee would on February 4, and from day to day thereafter until sold, offer the real estate for sale, and to the fact that the first day on which this notice was published was February 5. Appellant on the advice of counsel refused to close the sale or take the land unless appellant would re

advertise the land for sale. Appellee refused to readvertise unless appellant would agree to thereafter bid the land in at the same price theretofore agreed on. Appellant refused to do this. Appellee had also secured a warranty deed from all the heirs of the decedent, conveying the land to appellant, but appellant refused to complete the sale, upon the ground that the notice was not sufficient to authorize appellee to make the sale. Following appellant's refusal, appellee's report of the sale was filed and approved, and deed ordered, reported, and approved. Appellant entered into possession of the real estate in controversy within a few days after the agreement between him and appellee was signed. In his answer to appellant's petition appellee alleged that such possession was taken under the contract of purchase subject to the approval of the sale by the court. Appellant claims that he took possession of the land as a tenant of appellee, with the understanding that if the sale was finally consummated his title was to relate back to the date of the agreement so that he would be under no obligation to pay any rent for the period antedating the execution of the deed, and that if the sale was not approved or if for any reason appellee was not able to furnish a good title he would be holding only for a reasonable rental. The evidence upon this subject was conflicting. Appellee denied the existence of any conversation or agreement upon that question. Appellant did take possession of the land and has farmed it since March, 1920, and has never paid or offered to pay any rent for the use of the Saine. Appellee insists that appellant is in no position to ask the court to relieve him from his obligation to purchase the land, while retaining possession and without paying or offering to pay anything for the use of the farm. But in view of the conclusion we have reached on the question as to the sufficiency of the notice of sale, we need not enter into a consideration of the effect of appellant's possession. [1, 2] We must keep in mind that a sale by an administrator under an order and decree of court is strictly a judicial sale. Pierce v. Wansell, 35 Ind. App. 525, 74 N. E. 554. Such sales are not only made under an order of the court, but they must be reported to and approved by the court before they become effective. See Emerick v. Miller, 159 Ind. 317, 64 N. E. 28: Lawson v. De Bolt, 76 Ind. 563; Maul v. Hellman, 39 Neb. 322, 58 N. W. 112; Mauney v. Pemberton, 75 N. C. 219. [3] An administrator is required to report his proceedings to the court, and, if the court approves his acts, it adopts them as its own, and it becomes a judicial act. Noland v. Barrett, 122 Mo. 181, 26 S. W. 692, 43 Am. St. Rep. 572.

« ForrigeFortsett »