(147 N.E.) proved in the case of McDermott v. State, 89 Ind. 187, and reads as follows: "Where a homicide is perpetrated by intentional use of a deadly weapon in such manner as is likely to and does produce death, the law presumes such homicide was committed purposely and maliciously, unless it was done in self-defense or upon a sudden heat occasioned by such provocation as is adequate in law to reduce the killing to the grade of manslaughter." of Walker, but there is absolutely no evidence to sustain such insinuation. The character of the instrument was reflected by the description of the wound inflicted. Thomas v. State, 44 Tex. Cr. R. 344, 72 S. W. 178. True, no witness testified as having seen the instrument, but the effect it produced strongHence, ly confirmed its deadly qualities. as said in the case of State v. Bowles (1898) 146 Mo. 6, 47 S. W. 892, 69 Am. St. Rep. 598: Both of the foregoing instructions are at"A deadly weapon is any weapon or instrutacked upon the ground of failure of evi- ment by which death would likely be produced, dence showing that appellant perpetrated a when used in the manner in which it may apdeliberate cruel act, or that he used a dead-pear it was used in the affray." ly weapon in a manner likely to produce death. In addition to the evidence already mentioned, it appears that the deceased was five feet five inches tall, and weighed about 125 pounds. The muscles or wall of his abdomen was two inches thick, and was pierced by a knife or some other sharp instrument. The path of the wound was upward. At the point of entry it was about the width of a man's finger, and terminated by a slit in the stomach about an inch wide. Appellant was a machinist, and on the day of the trouble he quit work at 5 o'clock, and, after his evening meal, he went to a restaurant at the corner of Garvin and Eichel streets in the city of Evansville, where he knew Walker was a frequent evening visitor. He inquired for Walker, and, on being told that he was a little too early for him, he left for "the home of his girl," which was two blocks away. Shortly after his arrival there, and while talking with the young lady on the porch, Walker came along the street on his bicycle. We have already stated, in substance, what then followed between them. "The Appellant testified at the trial that his inquiry for Walker at the restaurant was not for the purpose of any trouble. only thing, he had been talking about me, I heard, and talking about my girl and my folks, and I just wanted to ask the man why he did this, whether it was for a joke or what he meant by it, and I wanted it straightened out, was all." When arrested, appellant had on his person a pocket knife fastened to one end of his watch chain, blade one-fourth of an inch wide, one and threefourths inches long, length of knife over all, four inches; also a sharp pointed finger nail instrument, blade one-fourth of an inch wide, one and one-fourth inches long, handle and blade, three and three-fourths inches long. We have read carefully the evidence disclosed by the record in this case, and from which we conclude that the jury had much evidence tending to show that appellant perpetrated the cruel act deliberately, and that the act which caused Walker's death was committed by appellant. Counsel for appellant suggests that the wound might have been inflicted by an open knife on the person In the instant case it was for the jury to say from the evidence whether or not the instrument used was a deadly weapon. For this court to affirm that there was no evidence justifying the jury in finding that the instrument used as it was in a vital part of Walker's body was not dangerous or deadly is out of the question. People v. Lopez, 135 Cal. 23, 66 P. 965. We may very well assume that the jury found the facts in keeping with the evidence, and, if so, it might well have concluded that the weapon by which the wound was inflicted was dangerous and deadly, its use unjustified and without provocation. These facts appearing, malice may be inferred. Murphy V. State (1869) 31 Ind. 511; Ex parte Moore (1868) 30 Ind. 197; Benjamin v. State, 148 Ala. 671, 41 So. 739; 1 State v. Bowles, supra. J We therefore conclude that the above instructions were within the evidence, and no error was committed in giving them. [4] Instruction No. 12 was on the subject of provocation, and under what circumstances passion will mitigate the offense and reduce the crime from murder to manslaughter. This instruction is one of a series of four referring to this same matter, and in all probability it was the court's conception of the law as expressed in Henning v. State, 106 Ind. 386, 400, 6 N. E. 803, 7 N. E. 4, 55 Am. Rep. 756. There was evidence tending to show that the deceased began the combat by first striking appellant in the face with his fist. The question of sufficient provocation was thus injected into the case, and naturally called for an instruction upon that subject. Appellant first insists that this instruction invades the province of the jury by assuming that appellant had committed the act charged against him. We are not convinced that it is subject to the asserted infirmity. It is next insisted that it was error to sub mit the question of a sufficient provocation to reduce the killing from murder to manslaughter upon all the facts and circumstances surrounding the case, when the question should 1 Reported in full in the Southern Reporter; not reported in full in Alabama Reports. Judgment affirmed. have been limited to the circumstances shown, sufficient to sustain the verdict, and thereby the evidence. By statute, voluntary man- fore the verdict was not, for that reason, slaughter is the unlawful killing of any contrary to law. human being without malice upon a sudden heat. Section 2239, Burns' 1914. The statement in the opinion in the case last cited, and in the instruction, that "it is the provocation that reduces the crime to the grade Insurance (No. 12068.) 1925.) 451(1)-Insured riding in aeroplane as passenger held "engaged in aviation" within exception. of manslaughter" is not, standing alone, MASONIC ACC. INS. CO. et al. v. JACKSON. technically accurate. It is the sudden and violent heat of passion, induced by sufficient (Appellate Court of Indiana. March 31, provocation, and not the provocation which reduces the homicide from murder to manslaughter. There may be an adequate provocation under circumstances that would not distract the mind of the actor from a cool and deliberate purpose of forming a plan to take the life of the person killed. In such case, the provocation, although seemingly adequate, would not necessarily reduce murder to manslaughter. Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809, 9 Ann. Cas. 923. [5] Sufficient provocation is a question of fact for the jury, but what is meant by the term "sufficient provocation," or "adequate provocation," when related to unlawful homicides, very properly merits some expression from the trial court. The instant instruction committed this feature of the case to the jury upon all the surrounding facts and circumstances, and explained generally its meaning. If the instruction was erroneous and harmful to appellant, the burden was upon him to show that it was. He has not directed our attention to a single fact or circumstance thus brought to the attention of the jury, detrimental to him, that would have been excluded by an instruction expressly limiting the question of provocation to the facts and circumstances shown by the evidence. Moreover, when all the instructions on this subject are considered together, as they must be, appellant has no grounds for complaint. Where insured died from injuries received ficiary held not entitled to recover on policy while riding as passenger in aeroplane, benewhich excepted death or disability while "engaged in aviation," that phrase meaning the act of flying in the air in machine heavier than air, whether piloting or riding as passenger. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Engage.] Dausman, C. J., dissenting. Appeal from Superior Court, Marion County; Sidney S. Miller, Judge. Action by Leona Jackson against the Masonic Accident Insurance Company and oth ers. From a judgment for plaintiff, defendants appeal. Reversed, with directions. Orbison, Zechiel & Orbison, of Indianapolis, for appellants. Oscar C. Hagemier, and Burke G. Slaymaker, both of Indianapolis, for appellee. insurance policy insuring Joseph L. Jackson MCMAHAN, J. Action by appellee on an against accidental death and disability. The policy contained a clause reading in part as follows: "Indemnity under this policy shall not be payable for any death or disability that may be caused or contributed to wholly or in part, While engaged in aviation or ballooning." by any of the following causes: * The insured died from an accident re an aeroplane operated by another person as pilot. Was the insured while riding as a passenger in the aeroplane "engaged in aviation"? The Century Dictionary defines aviation as: [6] Instruction No. 7 requested and refused was on the subject of appellant's motive in making inquiry for Walker at the Thomas Restaurant. The only purpose of this instruction was to submit to the jury the ques-ceived by him while riding as a passenger in tion of appellant's intention in case he found Walker there. This instruction was greatly involved by recitals from appellant's testimony, given at the trial, relative to his object in making the inquiry. It did not bring to the attention of the jury principles of law bearing upon the subject of malice or the effect of proving a motive in this class of cases which had not been fully explained and covered by other instructions given to the jury. It was not error. to refuse the instruction. [7] Finally, without extending this opinion for the purpose of reconsidering the evidence, we think it apparent from the evidence to which we have already referred that it was science or art of directing and controlling fly"The art or act of flying, specifically, the ing machines; the art of navigating the air with machines heavier than air." "Engaged," as used in the policy, is an intransitive verb, and is defined in the Century Dictionary as follows: take "To occupy one's self; be busied; part; as to engage in conversation; he is zealously engaged in the cause." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) Appellee would have us insert and read in-, to the policy the word "occupation" or the word "business," so as to make the phrase read, “While engaged in aviation as an occupation or as a business." We cannot do this without limiting the natural and ordinary meaning of the words used by the parties. Classification of risks and premiums as affected by change in occupation is provided for by another provision of the policy and is not involved in this action. In Travelers' Insurance Co. v. Peake, 82 Fla. 128, 89 So. 418, and in Bew v. Travelers' Ins. Co., 95 N. J. Law, 533, 112 A. 859, 14 A. L. R. 983, the policy in each case pro vided that: "The insurance hereunder shall not cover injuries fatal or nonfatal * sustained by the insured while participating in or in consequence of having participated in aeronautics." The insured in each case took passage in an airplane, which was being operated for hire for the purpose of carrying passengers on various short trips. The court in the Peake Case in denying liability, said: "A passenger in an airplane flying in the air, whether he takes part in the operation of the airplane or not, is 'participating in aeronautics'; within the intent and meaning of the provisions specifically excepting such a risk from the indemnity contract contained in the policy." In the Bew Case, after stating that courts being adverse to forfeitures would in case of doubt or ambiguity adopt that construction which prevents a forfeiture, if such construction was reasonably deducible from the words used, said: "Where, however, it becomes necessary to construe words or phrases, the ordinary and usual meaning of the words must be sought and given to them. But where apt words are used to express the meaning of the party using them, the courts will not adopt a strained and improbable construction, in order to defeat a forfeiture. In the instant case, a finding rests upon a construction of the words 'participate' and 'aeronautics.'" After discussing the meaning of the words "participate" and "aeronautics," the court continuing, said: "There is nothing in the definition given, or in the common use of the term, to confine it to those who are active in the piloting of air vessels and to exclude those who are inactive users thereof. If it had been intended to confine the application of this provision to those who pilot or manage the physical opera tions of such vessels, it would probably have been expressed by using some such language as engaging in the piloting, management or opplaintiff seeks to give too narrow a meaning eration of aeronautical vessels.' I think that to both words. 'Aeronautics' does not describe a business or occupation, like 'engineering' or 'railroading,' but an art which may be practiced for pleasure or profit, and is indulged in by all who ride, whether as pilots or passengers." the flight has no influence in determining The purpose the insured had in making whether or not he was participating or engaged in aviation. As was suggested in the Bew Case, suppose the policy had provided it should not apply to any one "engaged in tobogganing" could it be asserted with any degree of plausibility that one riding on the sled, but who had no part in the management or steering of the sled, was not engaged in tobogganing? If we engaged the owner of a rowboat to take us for a pleasure ride on a river, we most certainly would be engaged in boating. Or suppose we enter an automobile whether owned by us or not, for the purpose of taking a ride, for pleasure or business, would it be said we were not We are of the engaged in automobiling. opinion that if we as a passenger should employ ourselves in, or take part in an act of sailing or floating in the air in an aeroplane we would be engaged in aviation. Suppose the insured had been the owner of the aeroplane and was making a flight, long or short, in connection with some business of his own, or for pleasure, would he not have been engaged in aviation? "Engaged in aviation" can have but one meaning as used in the policy, and that is the act of flying in the air in a machine heavier than the air. In Meredith v. Business Men's Acc. Ass'n, 213 Mo. App. 688, 252 S. W. 976, the words "participate in aeronautics" was held to mean "to share in sailing or floating in the air." The policy in the instant case clearly shows the parties had in mind a classification of hazards, and recognized the right of the insurer to protect itself from the hazardous acts and diseases named. Riding in an aeroplane, either as pilot or passenger, would naturally increase the probability of injury to the person so engaged. We hold appellee's husband, at the time of the injury which resulted in his death, was engaged in aviation, and that there can be no recovery under the facts as alleged in the complaint. The judgment is reversed, with directions to sustain the demurrer to the complaint. DAUSMAN, C. J., dissents. CARTER et al. v. AMERICAN TRUST CO. (No. 11971.) paid, appellants, on April 1, 1923, commenced this proceeding in the Howard circuit court, by filing a petition in the form of a complaint against appellee as guardian, setting forth (Appellate Court of Indiana, Division No. 1. the execution of the note by Wood prior to 1. Trusts March 31, 1925.) 12-Proceeds of trust for grantor's own benefit held subject to claims of creditors. Deed of trust by which cestui que trust conveyed land in trust for his own use being void as to creditors under Statute of Frauds, § 18 (Burns' Ann. St. 1914, § 7480), proceeds of sale turned over to guardian appointed for cestui que trust adjudged a spendthrift, were subject to claims of creditors. 2. Bills and notes 539-Verdict of $838.50, in action on note for $2,500, held contrary to law. In action on a note for $2,500, in which there was no answer of partial failure of consideration or plea of counterclaim or set-off, verdict for plaintiff of $838.50 was contrary to law. 3. Bills and notes 539-Partial failure of consideration for note not found, under plea of no consideration. In action on note, court could not find a partial failure of a consideration, under plea of no consideration. the appointment of appellee and that the The duties and powers of a guardian of a person adjudged to be a spendthrift are, in this state, the same as those of guardians of infants and persons of unsound mind. Acts 1911, p. 533, § 4; section 3111d, Burns' 1914. Appeal from Circuit Court, Howard Coun- This court has held that the proper practice ty; J. Marshall, Judge. Action by Bert Carter and another against the American Trust Company, guardian of Ernest C. Wood. From an adverse judgment, plaintiff's appeal. Reversed. Homer R. Miller, Rex E. Ballenger, and Dewey E. Kelley, all of Kokomo, for appellants. Don C. Strode, of Kokomo, for appellee. REMY, J. In 1915, Ernest Wood inherited from his parents certain land of the value of $8,000. At or near the time that he came into possession of the inheritance, . Wood, acting on the advice of friends, and to avoid being placed under guardianship as a spendthrift, conveyed the land to the Farmers' Loan & Trust Company, in trust for his own use. Later the real estate was sold by the trustee, and the proceeds invested in bonds. Following his execution of the deed of trust, Wood took employment with appellants, who were engaged in a general transfer business. On December 15, 1918, Wood purchased of appellants the property used by them in their business, including wagons, harness, teams, feed, one automobile, and other property, and in consideration therefor gave to appellants his promissory note for $2,500, payable on demand. Thereafter on May 5, 1922, Wood was adjudged a spendthrift, and appellee appointed as his guardian. As such guardian, appellee took possession of all the property of Wood, including the bonds. The note not having been in this jurisdiction requires that disputed claims against a ward's estate be presented by a petition in the form of a complaint against the guardian in a court having jurisdiction of the ward's estate and of the person of the guardian, Stewart v. White (1909) 44 Ind. App. 87, 88 N. E. 716. [1] It is expressly provided by section 18 of the Statute of Frauds (section 7480, Burns' 1914) that conveyances or transfers made in trust for the use of the grantor are void as to existing or subsequent creditors. Under this statute, the trust deed of Wood to the Farmers' Loan & Trust Company was, as to appellants, of no effect. It follows that the trial court erred in its decision that the bonds, which were the proceeds of the land conveyed in trust, were impressed with the trust, and not subject to the payment of the judgment. [2, 3] Under the issues presented by the pleadings, the judgment for $838.50 is necessarily contrary to law. The action was on a note which called for $2,500 and interest. There was no answer of partial failure of consideration. No counterclaim or set-off was pleaded. The court could not have found a partial failure of consideration, under the plea of no consideration. Cason v. Megee (Ind. App. 1923) 139 N. E. 293; Crow v. Eichinger (1870) 34 Ind. 65. Under the issues as formed, the judgment should have been for plaintiffs for the full amount of the note, or there should have been a finding and judgment for defendants. Reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) BRETHREN'S MUT. INS. CO. v. HAYES et al. (No. 11857.) ments of premiums and assessments on such policy issuing receipts therefor to appellees; that on August 3, 1920, certain buildings lo (Appellate Court of Indiana, Division No. 2. cated on said real estate and covered by the April 1, 1925.) policy were destroyed by fire; and that appellant on being notified of the fire denied liability. A judgment having been rendered for appellees for the amount of the policy, appellant appeals and contends that the court erred in overruling the demurrer to the amended complaint. Appeal from Circuit Court, Fulton County; they ever made application for membership Reuben R. Carr, Judge. Action by Elmer Hayes and another against the Brethren's Mutual Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed. Guy R. York, of Peru, Ind., and Myers & Emmons, of Rochester, for appellant. Arthur Metzler, of Rochester, and Tillett & Lawrence, of Peru, Ind., for appellees. in appellant company as provided in rule 13 of the company, or that they became members under rule 30; (3) that John Borden is the only person entitled to prosecute the claim; (4) that John Borden never assigned or transferred the policy to plaintiffs; (5) that when Borden transferred the property to plaintiffs, he ceased to be a member of appellant company, and that under the policy the liability of the company ceased; (6) that the acceptance of Walker and issuance of a certificate or contract of insurance to him was not an acceptance of plaintiffs as members; and (7) that Walker was the legal owner of the property and the only person to whom a policy could issue, and that the complaint shows there was no contract of insurance between plaintiffs and the defendant. The questions presented for our determination relate to the sufficiency of the facts alleged to constitute a cause of action. MCMAHON, J. Action by appellees on a certificate of membership and policy of fire insurance issued by appellant. The amended complaint on which the case was tried alleges that on September 28, 1918, one George Walker, being the owner of certain real estate, entered into a contract for the sale of the same to appellees, who immediately thereafter entered into the possession of the same, a deed being executed at a later date when the balance of the purchase price was Appellant insists that since the policy was paid; that on said date appellees and Walk- made payable to Walker alone, and never er went to an agent of appellant to have the having been assigned to appellees, they canbuildings on such real estate insured and in- not maintain this action. There is no claim formed appellant's agent of the execution of that appellees did not have an insurable insaid contract, that appellees were to take terest in the property at the time the policy possession immediately under such contract, was issued. They entered into a contract for and that they desired to carry insurance on the purchase of the property, and, the purthe buildings for the protection of Walker, chase money not all being paid, had agreed in accordance with the terms of the contract, to take out insurance on the buildings for until the balance of the purchase price was the protection of the seller. Appellant with paid; that such agent advised them that the knowledge of all the facts, with knowledge proper way would be for appellees to take that appellees desired to take out and carry out the insurance and pay the premiums the insurance, wrote the contract of insurthereon, but to have the policy made in the ance for appellees intending to insure the name of Walker, which was done, appellees buildings against loss by fire, taking appelpaying the premium and costs of such policy; lees' money in payment of the premiums and that Walker sold and transferred his inter- fees in accordance with the rules of the comest in the real estate to John Borden, and pany. Instead of the policy being made paythe policy was transferred to him by appel- able to Walker and appellees as their interest lant; that on January 27, 1920, the balance might appear, it was on the advice of and at of the purchase price being paid, Borden the suggestion of appellant's agent made payconveyed the real estate to appellees; that able to Walker alone. The agent, knowing thereafter appellant with full knowledge of that appellees were the owners of an equitaall the facts accepted from appellees pay-ble interest in the property and that Walker For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |