In 1911, p. 145; section 8020a et seq., Burns; 8020b, Burns 1914) to the effect that the 1914), and that by the terms of that act the defense of assumed risk is eliminated in actions brought under it. Appellant rejoins, in substance, that, conceding that the action is brought under that act, the defense of assumed risk is not entirely abrogated thereby; that section 3 (section 8020c, Burns 1914) of the act, if any part of it, is applicable, and that by the express terms of such section the defense of assumed risk is eliminated only where the defect complained of (quoting from the act) "was prior to such injury known to such employer, or by the exercise of ordinary care might have been known to him in time to have repaired the same, or to have discontinued the use of such defective working place, tool, implement or appliance," and that the complaint here is insufficient by reason of the absence of an allegation that appellant had such knowledge. Appellant's argument is to the effect that the complaint is not sufficient in its averments to render available the provisions of the act of 1911, by which the defense of assumed risk is eliminated, and hence that the complaint in its relation to such question must be measured by the rules of pleading in vogue in this state in commonlaw actions, and hence that the complaint, to be sufficient, should have negatived the assumption of risk. It will be observed that appellant's argument is based on the assumption that in actions brought under the act the burden rests upon the plaintiff to allege in his complaint the facts necessary to invoke the act, to the end that he may be relieved from the consequences of an assumed risk; that is that the burden rests upon him to allege facts to the effect that the employer had knowledge, actual or constructive, of the existence of the defects in time to have repaired, etc. It is expressly provided by the concluding sentence of section 3 of the act that: "The burden of proving that such employer did not know of such defect, or that he was not chargeable with knowledge thereof in time to have repaired the same or to have discontinued the use of such working place, tool, implement or appliance, shall be on the defendant, but the same may be proved under the general' denial." The act is also so interpreted. Deer v. Suckow, 110 N. E. 700; Vandalia, etc., Co. v. Stillwell, 181 Ind. 267, 104 N. E. 289. The act, however, is silent respecting the burden of averring such knowledge, both in its relation to the question of assumed risk and the issue of negligence. We shall revert to the question of pleading thus suggested, after a partial examination of some provisions of the act. We agree with appellee's contention that this action is predicated on the act of 1911. We had occasion, in the recent case of Standard, etc., Co. v. Martinecz, No. 9026, 113 N. E. 244, this term, to examine the act somewhat in detail. We, therefore, abbreviate here. The question here invokes a consideration of two provisions of the act rather than one. That part of section 2 (section fact that dangers or hazards inherent or ap plained of. However, we do not find it nec- knowledge of the defect from its inception, | accounted for by affirmative averments to the and an express allegation to that effect was not required. Standard, etc., Co. v. Bowker, 141 Ind. 12, 18, 40 N. E. 128; Louisville, etc., Co. v. Miller, 140 Ind. 685, 40 N. E. 116; Indiana, etc., Co. v. Snyder, 140 Ind. 647, 39 N. E. 912; Indiana, etc., Co. v. Vauble, 31 Ind. App. 370, 68 N. E. 195; Louisville, etc., Co. v. Hicks, 11 Ind. App. 588, 37 N. E. 43, 39 N. E. 767; 26 Cyc. 1144. It follows that appellant's first point is not well taken. We proceed to the second point, the question of contributory negligence. effect that, by reason of his position and the situation of the scale house and its entrance and the requirement that the car be weighed while in motion, he voluntarily placed himself in a position certain to result in serious injury or death, rather than let the car pass unweighed, and thereby encounter the extra labor of causing it to be stopped or returned to be weighed. It is not alleged that anything out of the ordinary occurred by reason of which he was caused to misjudge the situation. The allegation is that, driven by an influence, averred to have been compulsion, he went between the passing car and the side of the scale house, and was crushed and killed because there was not room between the car and the scale house for his safe passage. He [11-15] Under some circumstances, contributory negligence is a defense in actions brought under the act of 1911. In such an action as this, it is available as a defense. See Standard, etc., Co. v. Martinecz, supra, and cases cited. The burden of proof rests upon The term "place to work" as used in cases the defendant, but it may be proven under such as this usually means the premises the general denial. Section 8020b, Burns where the services are performed. Haskell, 1914; Vandalia, etc., Co. v. Stillwell, supra. etc., Co. v. Przezdziankowski, 170 Ind. 1, 83 The plaintiff is not required either to allege N. E. 626, 14 L. R. A. (N. S. ) 972, 127 Am. or prove that the person for whose injury or St. Rep. 352. As involved here, it means the death the action is brought was in the exer- scale house and its environment, including cise of reasonable care. That he did not exer- the switch track, and also the temporary but cise such care is matter of defense, and may frequently recurring element of a passing car. be proven under the general denial. Section The defect complained of was the proximity 362, Burns 1914. If, however, the complaint of the scale house to the track, creating an affirmatively discloses that the person injured apparent hazard, while a car was passing, to or killed was guilty of contributory negligence any one who at the time happened to be bewhich proximately caused or contributed to tween the scale house and the track, but insuch injury or death, it discloses a defense volving no peril to any one remote from the and is insufficient on demurrer. Pein v. Miz- car and the passage. Importance, therefore, nerr, 170 Ind. 659, 84 N. E. 981. The infer- attaches to the influences accountable for deences on that subject, however, which the cedent's presence at the danger point. complaint reasonably admits of, must be in- was not required to perform any service bedulged in favor of its sufficiency. Cleveland, tween the two structures, but it is averred etc., Co. v. Lynn, 171 Ind. 589, 85 N. E. 999, that he was compelled to pass between them 86 N. E. 1017. Bearing on the question now in order that he might reach a point where he under consideration, the complaint discloses was required to perform services. Peril atthe following facts: The scale house was sit- tached to his position there only during the uated so close to the switch track that at fraction of a minute, while the car was passtimes an ordinary coal car scraped its sides ing. No overpowering necessity required his in passing. Its west wall was not more than presence at the danger point during such in2 feet from the east rail of the switch, and as terval, but a matter very trivial in its nature a consequence (considering the width of a car when compared to the value of a human life. as compared with the track), employés were Under such circumstances, he voluntarily and likely to be caught and crushed between the inexcusably assumed a position of danger. wall and a passing car. It was decedent's He was killed, not by reason of defects in the duty to do all the weighing. A loaded car place, but by reason of the use that he made propelled by gravity was approaching the of his place of work, or his conduct in such scale house from the north. Decedent was place. Knowing of the existence of the defect west of the switch and south of the scale in place, as alleged, the fact that he continued house. The entrance to the latter was on its in the employment, and thereby continued to north side. It was his duty to weigh the car be in touch with the defective place, presentwhile in motion, and as there was no other ed a question of assumed risk, all defenses practicable means of reaching the scale based on which are eliminated by the act of house and gaining entrance thereto in time to 1911. As to whether his conduct while in conweigh the car, he was thereby compelled to, tact with such defective place was characand did, attempt the hazardous feat of pass- terized by the exercise of reasonable care for ing between the car and the scale house. It his own safety presents a question of contribis not alleged that any of his fellow employés utory negligence, a defense based on which, was guilty of any negligence or misconduct, in a case such as this, remains available unor that there was anything unusual in the ap-der the act of 1911. In the Martinecz Case, proach of the car or its speed or control, by reason of which he was deceived and tricked supra, we sought to draw the distinction between the defense of "assumed risk” elimi "contributory negligence" recognized by such terrogatories should be governed solely by act, as those terms are used in the act. As the evidence. The court held, on authority measured by the distinction there drawn, we of the Gretzinger Case that the giving of the are impressed that the complaint here dis- instruction was harmless. In the latter the closes affirmatively that decedent's contrib- interrogatories submitted were delivered to utory negligence was the proximate cause of the jury sealed in an envelope, with instruchis death, and that the court therefore erred tions that the envelope should not be opened in overruling the demurrer. See, also, as hav- until the jury had agreed on a general vering some bearing, the following: New York, dict. The Supreme Court, in its opinion in etc., Co. v. Ostman, 146 Ind. 452, 45 N. E. 651; that case, while recognizing that the statute Salem, etc., Co. v. O'Brien, 12 Ind. App. 217, does not require that the interrogatories be 40 N. E. 430; Cincinnati, etc., Co. v. Long, answered in the absence of an agreement on 112 Ind. 166, 13 N. E. 659; 26 Cyc. 1149. the general verdict, condemned the practice of submitting interrogatories sealed, and with instructions as indicated, and stated respecting the interrogatories: [16] We have carefully considered the assignment based on the overruling of the motion for judgment on the answers to interrogatories returned with the general verdict. We do not believe the court erred in overruling such motion. Answering certain arguments advanced, there is no averment in the complaint that decedent was killed while endeavoring to cross the track, and the answers to interrogatories do not disclose that he was killed in such an attempt. The averment is that he was killed by being crushed between the side of the car and the side of the scale house, presumably after he had crossed the track. While the answers reveal that it was obviously hazardous for decedent to attempt to pass between the car and the scale house, they do not disclose the existence of an obvious hazard in such a degree as necessarily convicts decedent of contributory negligence in making the attempt. Jenny Electric Co. v. Flannery, 53 Ind. App. 397, 98 N. E. Co. v. Flannery, 53 Ind. App. 397, 98 N. E. 424; Kingan Co. v. Gleason, 55 Ind. App. 424; Kingan Co. v. Gleason, 55 Ind. App. 684, 101 N. E. 1027. [17-20] By reason of its frequent recurrence in appeals presented to this court, one other question demands our attention. The court refused the following instruction tendered by appellant: "The law does not prescribe when you shall consider and answer the interrogatories that will be submitted to you, and you are at liberty to take them into consideration and answer them either before or after you have agreed upon a general verdict," according to your own desire and convenience. The refusal of an instruction practically identical with the above was considered by this court in Deep Vein Coal Co. v. Raney, 112 N. E. 392, resulting in a conclusion, as stated in substance in the opinion, that the instruction might very properly have been given; but, in view of the state of the record, the court declined to determine whether its refusal was error. In the course of the opinion Southern Ry. Co. v. Weidenbrenner, 109 N. E. 926, and Wabash, etc., Co. v. Gretzinger, 182 Ind. 155, 104 N. E. 69, are cited. The instruction involved in the former, as given by the court, does not differ materially in legal effect from the one under consideration here. It is, in substance, that the jury might consider first in order of time, either the general verdict or the answers to the interrogatories, or both at the same time, but that the answers to the in Under In the Raney Case, supra, this court outlined some of the reasons why the interrogatories might be helpful, as stated by the Suthese decisions, it is apparent that both the preme Court in the Gretzinger Case. Supreme Court and this court are of the opinion that it is proper procedure for the jury first in order of time to consider the case as a whole, with a view to agreeing on rogatories submitted with a view to answerthe general verdict, or to consider the intering them, or to consider both phases of the cause submitted, at the same time, as the jury may discover in the course of their deliberations that they may best arrive at a deliberations that they may best arrive at a just determination of the whole matter submitted. It follows at least that the instruction here refused was a proper one to have been given. Whatever confusion exists respecting the question under consideration, and whatever false impression has gained lodgment, possibly grew out of certain language used in Summers v. Tarney, 123 Ind. 560, 24 N. E. 678, where the interrogatories were delivered to the jury sealed, and with a like instruction as in the Gretzinger Case. The court there say: "This is new practice, so far as our information goes; but we are not inclined to hold that it amounts to available error, as the statute provides that the interrogatories are only to be answered after a general verdict has been agreed to." That case was decided while section 546, R. S. 1881 (section 555, Burns 1894), was in force, which was in part as follows: "In all actions, the jury, unless otherwise directed by the court, may in their discretion, render a general or special verdict; but the court ** in all cases, when requested by either party, shall instruct them, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing." It will be observed that that statute did not provide that "the interrogatories are only to be answered after a general verdict has been agreed to," but rather, in substance, that the interrogatories were to be answered and returned only in case the jury rendered a general verdict. While it may be argued that, even under the statute of 1881, the answering of interrogatories was futile until it had first been ascertained that an agreement could be reached on the general verdict, yet neither that statute, nor any other that has been in force in this state, has prescribed the order in which interrogatories and the general verdict should be be considered. The statute of 1881 was amended in 1895 (Acts 1895, p. 248). The present statute (section 572, Burns 1914), which repealed the act of 1895, was enacted in 1897 (Acts 1897, p. 128). It requires that a general verdict be rendered in all cases tried by a jury, except cases in equity, and that, where requested by either party, the court shall instruct the jury "when they render a general verdict to find specially upon particular questions of fact, to be stated to them in the form of interrogatories," etc. To construe the clause, "when they render a general verdict," to mean, as argued, "after they have agreed on a general verdict," is to do violence to the lanThe word "render" as used means guage. more than an arrival at an agreement. It includes also the idea of reporting the verdict in due form. Hence to construe the word "when" as argued would amount to a holding that the interrogatories are to be considered and answered only after the general verdict has been agreed on and returned into court. The word "when" is frequently used in the sense of "provided," "in case," "and if." 40 Cyc. 921. It is our judgment that it is so used here, and that the "when" clause of the present statute is identical in meaning with the "if" clause of the statute of 1881. The latter was embodied in the statute of 1881, because by that statute either a general or a special verdict, the one exclusive of the other, might be returned. In case of a special verdict, interrogatories and the answers thereto could serve no useful purpose, and hence the provision for interrogatories, and that they be answered "if they rendered a general verdict." As indicated, the present statute requires that a general verdict be rendered in all jury cases. When considered in the light of the preceding legislation on the subject, this requirement means simply that a general, rather than a special, verdict be rendered. The jury, however, may fail to agree on a general verdict, in which case there would be no verdict, even though the interrogatories were answered; or the jury may agree on a general verdict, but fail to agree on the answers to the interrogatories or some material part thereof. In such case also there would be no verdict, and the trial court would be required to discharge the jury for failure to agree. Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183. Hence the argument that the jury should not consider the interrogatories until after an agreement on a general verdict, because such answers accomplish nothing in the absence of such agreement, applies with equal force conversely, and the conclusion from the argument in its double aspect would result in neither phase of the case being considered. It is therefore apparent that the statutory direction extends only to the fact that interrogatories be answered, and is silent respecting the particular stage of the deliberations when they should be considered or answered. [21] In view of certain other instructions given, and the general state of the record, we might consistently hold, as was done in the cited cases, that the refusal of the instruction, if error, was harmless. The bench and bar of the state, however, are entitled to the judgment of this court on the involved question. The refusal of the instruction presents a question, not of substance, but rather of regularity of procedure. The instruction contains no direction as to what should be considered by the jury in answering interrogatories, or as to what should form the basis of such answers. Had it been given and followed, the jury would not thereby have been influenced respecting the facts included in or excluded from their answers, but they would have been left entirely free to answer interrogatories under the evidence, as directed by other instructions. Although the instruction was refused, the interrogatories were answered, and the general verdict rendered by the jury proceeding under oath. To hold that the refusal of the instruction was prejudicial error would force the presumption that the jury did not observe the court's instruction that they be truthfully answered, the evidence being the sole guide. In the absence of an indication to the contrary, it is our judgment that the opposite presumption should be indulged. While we believe that such instruction should be given when requested, we do not believe that in any case its refusal would constitute reversible error. Other questions presented are not considered, as they are not likely to arise in a new trial. Judgment reversed, with instructions to sustain the demurrer to the complaint, with permission to amend, if desired, and for other proceedings in harmony with this opinion. 1. (62 Ind. App. 357) WILLIAMS v. LOWE. (No. 9054.) (Appellate Court of Indiana, Division No. 1. June 7, 1916.) LIMITATION OF ACTIONS 25(3)-CHECKS. Action on check is barred under Burns' Ann. St. 1914, § 295, cl. 5, in ten years. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 113, 120; Dec. Dig. 25(3).] 2. BILLS AND NOTES 26-"CHECK”—LIA BILITY. A "check" is a written contract for the payment of money, and the drawer or signer of the bill by the act of drawing and delivery be-leged therein are substantially as follows: comes bound to pay if the acceptor does not. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 31, 34; Dec. Dig. 26. For other definitions, see Words and Phrases, First and Second Series, Check.] 3. APPEAL AND ERROR 302(1) - SCOPE OF REVIEW-PRESERVATION OF EXCEPTIONS. Refusal to allow the proper party to open and close is an error during trial, which under Burns' Ann. St. 1914, § 585, cl. 8, must be presented in motion for new trial in order to secure review on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1746; Dec. Dig. 302(1).] Appellee was the plaintiff in a foreclosure proceeding in which certain land was ordered sold, and became the purchaser at such sale and received a certificate of purchase therefor. Toward the close of the year for redemption appellee gave this certificate to his attorneys, including appellant, who represented him in the foreclosure suit, that they might have it to surrender to the redemptioner in case he redeemed from the sale. The owner paid to the clerk of the court the amount necessary to redeem said land. The latter paid it over to said attor4. TRIAL 359(2)-SPECIAL FINDINGS - MOTION FOR JUDGMENT-MATTERS CONSIDERED. neys on April 15, 1904. On the same day apIn determining correctness of ruling on mo- pellant deposited the funds so collected in the tion for judgment on answers to interrogatories, A. McCoy & Company's Bank at Rensselaer the court looks only to the answers, pleadings, in his name. Appellee was notified of the reand general verdict, every presumption being in favor of the general verdict, which governs if demption, and came to Rensselaer on April 16, the answers conflict beyond reconciliation. 1904, to make settlement, and appellant gave him his (appellant's) check on the A. McCoy & Company's Bank for the amount, less attorney's fees, $629.24. At the time this check was delivered to appellee the bank had closed [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 875, 877, 878; Dec. Dig. 359(2).] 5. TRIAL 358- VERDICT-SPECIAL FINDINGS CONFLICT. Answers to special interrogatories, relating to receipt and deposit of money by an attorney, for that day, and did not afterwards open held in such conflict that the general verdict its doors for business, and was later declared would prevail. a bankrupt. On the following business day [Ed. Note.-For other cases, see Trial, Cent. appellee placed said check in a bank at MontiDig. 856; Dec. Dig. 358.] 6. PRINCIPAL AND AGENT 62(1)-LIABILITY-DEPOSITS OF FUNDS. If an agent or trustee deposits principal's money, he can escape risk only by doing so in principal's name or distinguishing deposit on company books from his own; and, if he deposits it as his own, he is estopped, in case of loss, to deny liability. This' check was not presented to the bank on cello, Ind., where he lived for collection. which it was drawn, for the reason that such bank never opened after appellee received said check. Appellant was notified of such fact, and payment of the check was demanded of him, and he refused to pay. The only difference between the two paragraphs that we need mention is that the check in suit is set out as an exhibit to the first paragraph, and is set out in the body of the second paragraph. Numerous answers were filed to each of said paragraphs, of which the first, sec[Ed. Note. For other cases, see Trial, Cent. ond, tenth, and eleventh only are set out in Dig. § 856; Dec. Dig. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. 88 99, 100, 102, 103; Dec. Dig. 62(1).] 7. TRIAL 358-MOTION FOR JUDGMENT. 358.] appellant's brief. The first and second plead Appeal from Circuit Court, Carroll Coun- ed the six-year statute of limitations to the ty; James P. Wason, Judge. Action by John C. Lowe against George A. Williams. Judgment for plaintiff, and defendant appeals. Affirmed. L. D. Boyd and George W. Julien, both of Delphi, for appellant. E. B. Sellers, of Monticello, and John H. Cartwright, of Delphi, for appellee. HOTTEL, P. J. This is an appeal from a judgment in appellee's favor for $629.24 in a suit brought by him on a check given to him by appellant for said amount, drawn on A. McCoy & Company's Bank at Rensselaer, Ind., and bearing date of April 16, 1904. The transaction which gave rise to the suit has been before this court in two former appeals: Baughman v. Lowe, 41 Ind. App. 1, 83 N. E. 255; and Williams v. Lowe, 49 Ind. App. 606, 97 N. E. 809. The complaint involved is in two paragraphs. The facts leading up to and connected with the giving of said check as al first and second paragraphs of complaint, respectively, and a demurrer to each was sustained by the court. The ninth paragraph is a plea of no consideration. There was a trial by jury. With their general verdict the jury returned answers to interrogatories. Appellant's motions for judgment on such an swers and for new trial were overruled. The errors assigned and relied on for reversal are: (1) Error of the court in sustaining appellee's demurrer to appellant's first paragraph of answer "to appellee's complaint." (2) Error of the court in sustaining appellee's demurrer to appellant's second paragraph of answer "to appellee's complaint." (4) "The court erred in refusing to allow the appellant to open and close the argument to the jury." (5) Error in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict. [1] No question is presented by either the For other cases see same topic and KEY-NUMBER :n all Key-Numbered Digests and Indexes |