(147 N.E.)

tee for interest on trust funds, see St. Paul [ court, after reviewing the evidence quoted Trust Co. v. Strong, 85 Minn. 1, 88 N. W. from Stanley's Estate v. Pence, supra, to the 256; White v. Sherman, 168 Ill. 589, 48 N. effect that the question of requiring a trusE. 128, 61 Am. St. Rep. 132; In re Gehring's tee to pay interest on trust funds depended Estate, 179 Wis. 589, 192 N. W. 36; Clarke upon the facts in each particular case, said: v. Gilmore, 163 App. Div. 845, 147 N. Y. S. "In this case it is shown the claimant grew 129; Society v. Pelham, 58 N. H. 566; Knowlton v. Bradley, 17 N. H. 458, 43 Am. up to womanhood in her grandfather's home, as a member of his family. It is therefore equiDec. 609; Coffin v. Bramlitt, 42 Miss. 194, table and just that this estate be liable for in208, 97 Am. Dec. 449; Wagner v. Coen, 41 terest from the date of her marriage only, the W. Va. 351, 23 S. E. 735; Davis v. Swedish time she ceased to be a member of his family." Am. Nat. Bank, 78 Minn. 408, 80 N. W. 953, 81 N. W. 210, 79 Am. St. Rep. 400.

And in Gilbert v. Welsch, 75 Ind. 557, er appellee is entitled to interest on the 561, the court said:

ments in writing, accounts stated, money had and received for the use of another and retained without his consent, is not controlling as to the amount of interest a trustee shall be required to pay on an accounting or on a claim filed against his estate.

Judgment reversed, with directions to sustain appellant's motion for a new trial, to grant appellee leave, if desired, to amend her claim, and for further proceedings consistent with this opinion.

UTTERBACK v. GOOTEE. (No. 12098.) (Appellate Court of Indiana, Division No. 1. May 14, 1925.)

I. Trial

253(7)—Instruction directing verdict on hypothesis erroneous, if essential fact omitted.

An instruction directing verdict for plaintiff on hypothesis of facts proved is erroneous, unless facts included within hypothesis are all facts necessary to warrant recovery. 2. Appeal and error

1066-Error in omitting element of proximate cause from instruction held harmless.

In action by automobilé occupant for injuries from collision, instruction directing verdict for plaintiff on hypothesis of facts proved, though erroneous in failing to include element of proximate cause, held harmless, in view of Code Civ. Proc. § 137, where, under the evidence, if defendant was guilty of any negligence, such negligence was proximate cause of collision.

"If you should find that the plaintiff, without any negligence on her part, was being driven upon the public highway, and that the defendant by his negligence, either in the improper use of his lights or improper speed, as defined by the statute, was guilty of negligently driving into the car occupied by the plaintiff, as outlined by the instructions heretofore given, and that the plaintiff was without any fault upon her part, then you should find for the plaintiff and assess her damages at whatever sum you may believe, from a preponderance of the evidence, that she is entitled to recover for the injury, if any, sustained."

[1] This instruction is mandatory in form. It directs a verdict for plaintiff on the hypothesis of facts proved. Many times the courts of appeal of this state have correctly held that the giving of such an instruction is error, unless the facts included within the hypothesis are all the facts necessary to warrant a recovery. Indianapolis Traction, etc., Co. v. Mathews (1911) 177 Ind. 88, 97 N. E. 320; Terre Haute, etc., Traction Co. v. Young (1913) 56 Ind. App. 25, 37, 104 N. E. 780; American, etc., Tin Plate Co. v. Bucy (1908) 43 Ind. App. 501, 87 N. E. 1051; Indiana Nat. Gas, etc., Co. v. Vauble (1903) 31 Ind. App. 370, 68 N. E. 195; Indiana Ins. Co. v. Pringle (1898) 21 Ind. App. 559, 567, 52 N. E. 821.

[2] It is earnestly contended by appellant that, inasmuch as the instruction does not include the element of proximate cause, the action of the court in giving it to the jury was, under the authorities above cited, a fatal error. Appellant is right in this contention, unless from the whole record it is manifest

Appeal from Circuit Court, Greene County; that appellant was not harmed. Section 137, Thos. B. Coulter, Judge.

Action by Jennie Gootee against Frank Utterback. Judgment for plaintiff, and defendant appeals. Affirmed.

Cyrus E. Davis, of Bloomfield, and Padgett & Rogers, of Washington, Ind., for appellant. Shake & Kimmell, of Vincennes, and Hendren & Vosloh, of Bloomfield, for appellee.

Code of Civ. Proc. (Burns' Ann. St. 1914, § 407); Chicago, etc., R. Co. v. Lake County Savings, etc., Co. (1917) 186 Ind. 358, 114 N.

E. 454. Appellant concedes, as the evidence without conflict shows, that appellee would not have been injured except for the collision of the two automobiles. As to the proximate cause of the collision, there is much conflict in the evidence. If witnesses for appellee are to be believed, the cause of the collision was the excessive speed of appellant's car, which at the time was being operated with

REMY, J. Appellee, while riding upon a public highway in an automobile operated by another, sustained personal injuries as a re-improper lights. If witnesses for appellant be sult of a collision of the automobile in which she was riding with another automobile, which at the time was owned and was being operated by appellant. Claiming that the proximate cause of the injuries sustained by her was appellant's negligence in the operation of his machine at a high rate of speed with improper lights, appellee commenced this action for damages. Trial resulted in a verdict and judgment for appellee.

Error is predicated upon the action of the court in giving to the jury the following instruction:

credited with telling the truth, then the sole cause for the collision was that the automobile in which appellee was riding was, at the time, being operated on the wrong side of the roadway. If the jury believed the testimony of witnesses as to the negligence of appellant in the operation of his car, and also believed the witnesses who testified that the driver of the other car was operating it on the wrong side of the highway, then the proximate cause of the collision may have been the concurrent negligence of the two drivers. Appellee was not required to sue

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

(147 N.E.)

error in permitting plaintiff to read in evidence ordinances held not presented for review.

both drivers, even if both were guilty of neg- | 5. Appeal and error 499(3), 501 (3)-Any. ligence which proximately contributed to her injuries. She could maintain an action against either or both. Her action is against appellant. The instruction under considera

In action for death, any error in permitting tion authorized a verdict if the jury should plaintiff to read in evidence respective ordinances involved in the action was not presented find that appellant "was guilty of negligently for review, in absence of objection to admission driving into the car occupied by the plaintiff, of such evidence, or exceptions thereto, apas outlined by previous instructions hereto-pearing in record. fore given." The previous instructions referred to were merely instructions stating Appeal from Circuit Court, Hendricks the issue as presented by the complaint, the County; Zimri Dougan, Judge. averments of the complaint being a formal statement of the alleged facts that appellant was at the time negligently operating his car at a high rate of speed and with improper lights, as a result of which he negligently ran into the other car. If appellant was guilty of negligently driving his car into the car in which appellee was riding, it necessarily follows that under the pleadings and under the evidence his negligence was a proximate cause of the collision and the injuries which resulted to appellee.

We hold that the giving of the instruction was harmless error.

Affirmed.

CINCINNATI, I. & W. R. CO. v. Mc-
GAUHEY. (No. 12292.)

Action by Maude M. McGauhey, administratrix, against the Cincinnati, Indianapolis & Western Railroad. Company and another. From judgment for plaintiff, defendant

named appeals. Affirmed.

Frank J. Goebel, Jacob S. White, and Anthony P. Donadio, all of Indianapolis, for appellant.

Beckett & Beckett, of Indianapolis, for appellee.

NICHOLS, J. This was an action by appellee against appellant and the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for wrongfully causing the death of Charles McGauhey. Accompanied by one Charles Newman, he was walking in a southerly direction on Holmes avenue in the city of Indianapolis, and while in the act of crossing the railroad tracks of appellant

(Appellate Court of Indiana, Division No. 2. which intersect said Holmes avenue at grade,

May 14, 1925.)

I. Railroads 348 (5)-Finding of negligent injury at crossing held warranted.

In action for death of plaintiff's decedent when struck by defendant's train at street crossing, finding that railroad was negligent in running train at high speed without sounding whistle or bell, and in failing to lower gates, held warranted.

after having traversed three tracks belonging to the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, he was struck by an east-bound passenger train operated by appellant. He died a few hours later as the result of injuries sustained. Just before the trial was commenced appellee dismissed the cause as against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. There was a trial by jury, resulting in a ver

2. Negligence 136(9)-Contributory negli- dict and judgment against appellant for $7,gence for Jury.

Ordinarily it is jury's province to determine whether a given state of facts shows contributory negligence, unless they are undisputed and such as to impel an inference of negligence in minds of all reasonable persons.

3. Railroads 350(13)-Contributory negligence of pedestrian held for jury.

In action for death of pedestrian struck by defendant's train at street crossing, whether decedent was guilty of contributory negligence held for jury.

4. Appeal and error -757(4)-Any error in giving of instructions not presented for review when those with which conflict claimed not in brief.

Any error as to giving of instructions, claimed to be in conflict with others, was not presented for review, where the latter were not set out in appellant's brief.

000. The error relied upon for reversal is the court's action in overruling appellant's motion for a new trial.

[1-3] Appellant contends with much earnestness, in the first place, that appellant was not guilty of negligence, and, secondly, if so, still appellee's decedent was guilty of contributory negligence as a matter of law, and that therefore there can be no recovery. The evidence shows by divers witnesses that appellant was operating its train that struck appellee's decedent through a populous part of the city of Indianapolis, over the crossing where the accident occurred, at a high and dangerous rate of speed, to wit, 35 miles per hour, without blowing the whistle or sounding the bell, and that it failed to lower the crossing gates installed for the protection of the public. Each of these acts of negligence was in violation of a city ordinance. Cor

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

roborative of the speed of the train, it appears by the evidence that the decedent was knocked 45 or 50 feet by its force. We hold that there was ample evidence from which the jury might reasonably infer the negligence of appellant. But appellant argues that the decedent was guilty of contributory negligence as a matter of law. It is with much hesitation that the courts will declare that a given state of facts show contributory negligence as a matter of law. Ordinarily it is the province of the jury to determine as to whether such facts show contributory negligence, and unless they are undisputed, and such as to impel an inference of negligence in the minds of all reasonable persons, the question must be left to the jury. We find no such state of facts here as would justify taking the case from the jury. The gates, which had been operated theretofore for two years or more, were up, thereby presenting a seeming assurance that the way was open and safe. But, passing the north gate, the decedent and his companion were compelled to hasten to avoid a freight train in an opposite direction on one of the five tracks over the street. They were then between the passing freight train with its necessary noise, and appellant's track, on which its train was approaching at a high and unlawful rate of speed, without sound of bell or whistle, and with the south gate still up thereby assuring them that no train was approaching on appellant's track from the opposite direction. These circumstances, attended, as we may well infer, with some confusion on the part of the decedent, presented a question of fast for the jury as to the decedent's negligence, rather than a question of law for the court. Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 310, 20 N. E. 843, 10 Am. St. Rep. 136; Evansville, etc., R. Co. v. Berndt, 172 Ind. 697, 88 N. E. 612; Lake Erie, etc., R. Co. v. McFarren, 188 Ind. 113, 118, 122 N. E. 330; Indianapolis, etc., R. Co. v. Neubaucher, 16 Ind. App. 21, 43 N. E. 576, 44 N. E. 669; Smith v. Michigan, etc., R. Co., 35 Ind. App. 188, 200, 73 N. E. 928.

[4] The evidence is ample to sustain the verdict. We do not decide as to whether appellee's instructions Nos. 3 and 7, given by the court, were in direct conflict with appellant's instructions 34 and 36, given by the court, for the reason that said instructions 34 and 36 are not set out in appellant's brief. Otherwise we have carefully examined the instructions, and we hold that the jury was fully instructed as to the law of the case, and that there was no error in refusing appellant's instructions tendered. Nothing can be gained by a more extended discussion of them.

[5] Appellant attempts to present error of the court in permitting appellee to read in evidence the respective ordinances involved in this action, but we find no objection to the

2. Fraud 41-Complaint held to state cause of action for fraudulent procurement of deed.

Complaint, in action for damages for false misrepresentation and wrongful procurement of deed to realty, alleging that defendant, as loan agent, had been employed to negotiate loan for plaintiff, and that plaintiff, relying on false. fraudulent statements of defendant, had signed deed without reading it not knowing its nature, held to state cause of action.

3. Election of remedies 9-Grantor, In deed fraudulently procured, held entitled to sue for damages for fraud on abandonment of suit to cancel deed.

Grantor's institution of suit to cancel deed fraudulently procured by his agent who conveyed to third person, or decree quieting such third person's title, held not to preclude grantor, on abandonment of such suit, from suing agent for damages for fraud perpetrated on him. 4. Election of remedies9-Prosecution of one remedy must either be pending, or have been prosecuted to final determination, to bar or exclude another remedy.

Prosecution of one remedy must either be pending, or have been prosecuted to final determination, to bar or exclude another remedy for same right.

5. Appeal and error

197(1)—Alleged variance deemed waived, in absence of showing that it was called to court's attention.

Alleged variance between pleadings and proof is deemed waived, in absence of showing that it was called to trial court's attention. 6. Appeal and error 1039 (13)—Variance im. material, in absence of showing of prejudice.

Under Burns' Ann. St. 1914, § 400, variance between pleadings and proof is immaterial, in absence of showing of prejudice. 7. Appeal and error 758 (2)-Record held insufficient to present for review any question as to admissibility of evidence.

Where questions and answers thereto and objections of counsel were not included in appellant's brief, except in motion for new trial, and no reason for objections appeared any

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

(147 N.E.)

where, question as to admissibility of evidence and with the understanding that appellee would not be reviewed.

would execute his mortgage to secure the pellant all facts above set out, and appellant loan thus secured. Appellee revealed to apaccepted said employment and agreed to act as agent of appellee to secure such loan, with the purpose to pay off all of the creditors of appellee. Appellant represented to appellee that he had secured a loan from Farmers' National Life Insurance Company of America, and that it would be necessary for appelperfect a loan. Harley E. Rittgers was a lee and his wife to sign papers in order to real estate agent and notary public. On June 17, 1920, appellant and Rittgers represented to appellee that he was able to secure a loan for $17,000, and it was necessary for appellee and wife to sign a mortgage and promissory notes to secure the payment of said sum, and appellant further represented that he had caused to be prepared an abstract of title to said real estate, and he had also investigated the debts, and that it would require an additional sum above said $17,000 to pay off all the debts and liens existing against said real estate, and that he would furnish said additional sum for the benefit of appellee, and to enable appellant to remove all of the liens and incumbrances on said real estate. Appellant represented to appellee that it would be necessary to sign a contract to secure ap

NICHOLS, J. Action by appellee against appellant for damages on account of certain alleged false representations and the wrong-pellant for providing the additional sum. Apful procurement from appellee by appellant of a deed of conveyance to certain lands in Whitley county, Ind.

pellant further represented that the only purpose of executing said contract was for the purpose of securing said loan, and that it would be for the benefit and advantage of appellee to secure these loans.

There was a trial by jury, which resulted in a verdict for appellee for $9,000, on which, after appellant's motion for a new trial was On June 17, 1920, appellant and Rittgers overruled, judgment was rendered. The er- came to the home of appellee and represented rors assigned are that (1) the trial court that Rittgers was a notary public, needed in erred in overuling the demurrer of appellant the execution of the proper papers in closing to appellee's amended complaint; (2) in sus- the loans. They had all papers prepared and taining appellee's demurrer to the second presented them to appellee, who signed notes paragraph of appellant's answer; (3) in sus- and mortgage to secure the $17,000 loan, and taining appellee's demurrer to the third para- also signed a paper for appellant, which pagraph of appellant's answer; (4) in sustain- per said appellant and said Rittgers repreing appellee's demurrer to the fourth para-sented to appellee to be a contract made for graph of appellant's answer; (5) in sustain- the benefit of appellee to secure appellant for ing appellee's demurrer to the fifth paragraph advancing said sum above said $17,000 loan. of appellant's answer; (6) in overruling appellant's motion for a new trial.

The amended complaint avers in substance that on and prior to June 17, 1920, appellee was a farmer, residing in Whitley county, Ind., and the owner of 200 acres of real estate of the value of $45,000, and he was indebted in the total sum of approximately $16,000. Appellant was a banker and loan agent. Appellee was not acquainted with the procedure and things necessary to procure a loan, and was not acquainted with institutions who had the money to make such loans. In the early part of the year 1920, appellee | employed appellant to act for him as agent to secure a loan on said real estate of $17,000 to pay off the debts then owing by appellee,

Appellee says that the statements of appellant so made as to additional debts and obligations and liens of appellee, relating to the necessity of borrowing an additional sum above the $17,000 loan, and relating to the necessity of appellant to advance any additional sum for the benefit of appellee, were false and fraudulent, and were known by appellant and said Rittgers to be wholly false, and were made with the intent and purpose to cause appellee to execute the papers theretofore so prepared by appellant with the intent and purpose of defrauding appellee and depriving him of the title and ownership of said real estate.

Appellant and said Rittgers presented a warranty deed of conveyance for signature For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes