ment that the title should remain in them until the full purchase price was paid. Notes were executed for the purchase price, and the note in suit was given in lieu of the original notes, after default in payment had been made and upon an extension of time being given. The complaint avers the execution of the note, that it is due and unpaid, and that a reasonable attorney's fee would be $10. The note sued on describes the property, and contains a clause that the title to the property shall remain in appellees till it is paid for. The case was put at issue and tried by the court, resulting in a general finding and judgment for appellees. Appellant's motion for a new trial was overruled, and he has assigned error: (1) That the complaint does not state facts sufficient to constitute a cause of action; and (2) that the court erred in overruling the motion for a new trial.

Some argument is made that the complaint does not state a cause of action, but we are of the opinion that the complaint is sufficient to withstand a demurrer. The motion for a new trial was based upon two grounds, viz.: First, that the finding is not sustained by sufficient evidence; and, second, that it is contrary to law. Upon all material questions of fact the evidence is in no wise conflicting. The evidence shows that appellant executed the note sued on in payment of a buggy, a sewing machine, and a binder, which he agreed to purchase of appellees. The property was purchased at different times, and separate notes were executed, all of which were similar to the one sued on, except as to the amounts and dates. Appellant paid upon the three notes about $70, and when they matured he was unable to pay the balance due. Appellees then requested him to execute a new note for the amount of the balances due on the three notes first executed, and he agreed to do so, and thereupon executed the note in suit. Appellant did not ask for additional time in which to pay the first three notes, but told appellees that he was unable to pay them. After the note in suit matured, appellees sent their agent-one Vance to collect it, and appellant informed him that he was unable to pay it. Vance then told him that he would have to take possession of the property for which the note was given. Before this, however, the binder described in the note had been sold by consent of appellees for $15, and the amount had been credited on the note. Before the note in suit matured, appellant had exchanged or traded the buggy described in the note for another buggy, a better and newer one, upon the express condition that appellees should not object to the exchange. Appellant told Vance of said exchange, and offered to go and get the buggy he purchased of appellees, and to turn it over to them, and Vance informed him that the one traded for was all right, and would do just as well. Vance asked appellant to execute a chattel mtgage on his horses to secure the balance

due on the note, which he refused to do. Vance thereupon took the buggy and sewing machine, and gave a receipt therefor, which stated that the property was to be applied upon the note in suit. Appellant also signed the following statement: "This is to certify that John Turk has turned over one Standard sewing machine, one Haydock buggy, to C. Vance, for M. J. Carnahan & Co., to be applied on my note of $129.00, note No. 2,500; also secondhand Milwaukee binder. [Signed] John Turk." Appellees did take possession of said property, and never returned or offered to return it to appellant. When Vance took possession of the buggy, he removed therefrom the name plate of the makers, and told appellant that appellees had plenty of their own name plates, and would put one of them on. Appellant called several times on appellees, and demanded the surrender of his note, and was refused. At one time when appellant demanded the surrender of the note one of the appellees asked him how they should sell the property,whether at auction or at private sale,-and he told them he did not care. Vance testified that when he took the property from appellant he (appellant) agreed that appellees should take the property, and sell it, and apply the proceeds on the note; but on crossexamination he admitted that the agreement to which he referred was the one in writing, which is above copied in full. Upon these facts counsel for appellant maintain in an able brief that there can be no recovery against their client. It is important, therefore, to clearly understand the legal import of the contract expressed in the note, and the construction that courts have put upon such contracts. The contract sued on is a conditional one. The condition is that the title to the property sold as described in the note shall remain in the vendors (appellees) until the purchase money is fully paid. The title to the property never passed from appellees, and therefore never vested in appellant. Contracts of this character have long been held valid. The rule is so familiar that further discussion is useless. Dunbar v. Rawles, 28 Ind. 225; Bradshaw v. Warner, 54 Ind. 58; Payne v. June, 92 Ind. 252; Coe v. Johnson, 93 Ind. 418; Sinker, Davis & Co. v. Green, 113 Ind. 264, 15 N. E. 266; Green v. Sinker, Davis & Co., 135 Ind. 434, 35 N. E. 262. Upon default of the vendee to pay as provided in the contract, the vendor has two remedies: (1) He may retake the property, which is a disaffirmance of the sale; or (2) he may treat the sale as absolute, and bring an action for the price. 6 Am. & Eng. Enc. Law (2d Ed.) p. 480; McRea v. Merrifield, 48 Ark. 160, 2 S. W. 780; Manufacturing Co. v. Ewing, 109 Cal. 353, 42 Pac. 435; Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 18 L. R. A. 187; Fleury v. Tufts, 25 Ill. App. 101; George v. Swafford, 75 Iowa, 491, 39 N. W. 804; Munroe v. Williams, 35 S. C. 572, 15 S. E. 279; Register Co. v. Cain (Tex. App.)

which were within the province of the jury as correctly decided.

It is next insisted by counsel for appellant that the lower court erred in permitting certain evidence to go to the jury as to the value and extent of the property of the appellant. It is true that the courts of this country are not uniform in their decisions upon this subject. Perhaps we might say that the weight of authority is with the appellant. But the question seems to be settled by the courts of this state in favor of permitting evidence as to the value and extent of the property of a defendant in a case of this kind. It has been repeatedly held that in suits for damages, where the wrongdoer is not amenable to the penal laws of the state, it is within the discretion of the jury to award damages by way of punishment in addition to the compensation for the injuries sustained. This is an action of that character. It is an action for the recovery of damages growing out of a malicious tort. The exact question was before this court in the case of Sexson v. Hooyer, 1 Ind. App. 65, 27 N. E. 105. Also see Lytton v. Baird, 95 Ind. 349; Farman v. Lauman, 73 Ind. 568; Meyer v. Bohlfing, 44 Ind. 238; Taber v. Hutson, 5 Ind. 322; Johnson v. Smith, 64 Me. 553; Winn v. Peckham, 42 Wis. 492; Whitfield v. Westbrook, 40 Miss. 311; Coleman v. Allen, 79 Ga. 637, 5 S. E. 204; Abb. Trial Ev. p. 654.

It is also complained that the court permitted evidence as to whether there was a business sign or advertisement as a lawyer or attorney at law at the office of Newton Sleeper. The witness Sleeper was the attorney to whom appellant went for advice as to whether or not he should begin the criminal action against the appellee, out of which grew the present suit. We cannot understand how this evidence could have harmed appellant. Nor do counsel in any way attempt to show how the same could have resulted in harming the appellant. It has been held in this state that it is not competent to show that in the institution of a prosecution the defendant acted upon the advice of a person not an attorney or counselor at law for the purpose of disproving malice. It seems to us that evidence which tended to prove in any manner that the witness did not hold himself out to the public as a lawyer would be competent as tending to show that the defendant acted upon the advice of one who was not a lawyer. It is next insisted by counsel for appellant that the court erred in instructing the jury as follows: "The mere fact that a party procures and acts upon the advice of an attorney so obtained does not, of itself, exempt him from liability, or afford absolute justification of the prosecution. It is merely competent evidence to rebut malice and want of probable cause." We think this instruction states the law. It has always been held in this state that in actions for malicious prosecution the defendant may prove that before he began the prosecution he made a full and fair presenta

tion of the facts of the case to an attorney at law, who advised a prosecution. The advice must be sought in good faith and for an honest purpose. Lytton v. Baird, supra; Aldridge v. Churchill, 28 Ind. 62; Paddock v. Watts, 116 Ind. 146, 18 N. E. 518. But the fact that the defendant before the institution of the prosecution stated the facts to counsel, and sought his advice, is not conclusive evidence that he acted without malice, or that probable cause existed. Lytton v. Baird, supra.

Counsel for appellant complain in a general way of the other instructions given the jury. The instructions complained of cover 25 pages of the transcript. In one instance only do counsel assign a reason or cite authorities to show that certain instructions do not state the law. It is insisted that the court erred in instructing the jury that certain facts, as a matter of law, were or were not sufficient to constitute probable cause. The facts being controverted, it was the duty of the court to inform the jury what was necessary to constitute probable cause, and it could not be error for the court to inform the jury that certain facts, if proven, would not constitute probable cause. The court, having the right to decide what is probable cause, would certainly have the right to decide what is not probable cause. Upon this question we cite Pennsylvania Co. v. Weddle, 100 Ind. 138; Cottrell v. Cottrell, 126 Ind. 181, 25 N, E. 905; Taylor v. Railway Co., 18 Ind. App. 692, 48 N. E. 1044; Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646. We have given the questions presented careful consideration, and find no error. Judgment affirmed.

WILEY, J., took no part.

(25 Ind. App. 157) BOYD V. BRAZIL BLOCK-COAL CO. (Appellate Court of Indiana. June 22, 1900.) DEATH-MINERS-PARTY ENTITLED TO MAIN

TAIN ACTION.

Under Burns' Rev. St. 1894, § 7473, providing that, for the death of a person killed by reason of the violation of the act requiring mine owners to furnish timbers for making safe the place wherein miners are to work, a right of action against the mine owner shall accrue to the widow, children, or adopted children, or to the parents or parent, or to any other person or persons who were before such loss of life dependent for support on the person or persons killed, for damages sustained by rearesentative of a person killed by reason of the son of such loss of life, the personal repfailure of a mine owner to comply with the provisions of the act cannot maintain an action therefor.

Henley, J., dissenting.

Motion for rehearing denied, and opinion modified.

For former opinion, see 50 N. E. 368.

COMSTOCK, J. This cause was transferred to the supreme court for the reason that counsel claimed that a constitutional question was involved. The supreme court or

dered, its return to this court upon the ground that no constitutional question was properly presented. This action is prosecuted by the appellant, John Boyd, as administrator of the estate of John W. Elliott, deceased, under section 285, Burns' Rev. St. 1894, to recover damages, for the benefit of Elliott's children, on account of a personal injury sustained in a coal mine, which resulted in his death. The complaint consists of three paragraphs. The court sustained a demurrer to each paragraph of the complaint, and rendered judgment against plaintiff for costs. This ruling of the court is assigned as error. The first paragraph of the complaint is based upon sections 7466, 7473, Burns' Rev. St. 1894. Section 7466 provides "that the owner, agent, operator or lessee of any coal mine in this state shall keep a sufficient supply of timber at the mine, and the owner, operator, agent or lessee shall deliver all props, caps and timbers (of proper length) to the rooms of the workmen when needed and required, so that the workmen' may, at all times, be able to properly secure the workings from caving in." Section 7473, supra, provides "that for any injury to person or property occasioned by any violation of this act, or any willful failure to comply with any of its provisions, a right of action against the owner, operator, agent or lessee shall accrue to the party injured for the direct injury sustained thereby," etc. This paragraph of the complaint alleges, in substance, that at the time of the injury complained of, and for a long time prior thereto, the appellee was a corporation organized under the laws of the state for mining purposes, and was engaged in mining coal in Clay county, employing in the mine where the deceased received his fatal injury more than 100 men; that the deceased was in its employ as a coal miner, as its servant, by reason of which it was the duty of the appellee to use reasonable diligence to furnish him a safe place in which to work, and to that end it became and was the duty of the appellee to keep a sufficient supply of timber at said mine, and to deliver at the room in said mine where said Elliott was engaged in mining coal all props, caps, and timber of proper length needed and required by him in properly securing his working place in said room from caving in and crushing him; that the appellee wholly neglected and failed to perform and discharge its duty in that behalf, but, on the contrary, willfully, carelessly, and negligently omitted and refused to deliver at the room and working place where the said Elliott was at the date aforesaid engaged in mining coal all props, caps, and timbers, of proper length, needed by him, so as to enable him to properly secure his working place from caving in, or to deliver to him any timber whatever, although often requested so to do; that on the 12th day of January, 1895, by reason of the fact that the roof of the room

and working place where said Elliott was engaged in mining coal was not properly secured by timbers, by reason of the negiigence of the appellee to furnish timbers for that purpose, the same caved in, and fell upon and crushed the said Elliott, without any fault or negligence on his part, so that he soon thereafter died; that if the appellee had not negligently and carelessly omitted and refused to furnish and deliver to the said Elliott, at his room and working place, the timber necessary for that purpose, and had performed its duty in that behalf, the said Elliott could and would have secured the roof of said room and working place, and said injury would not have occurred; that at the time of said injury the said Elliott was in the exercise of due care and caution, and but a few minutes prior to his death had carefully examined said roof, and was wholly unable to find or detect any defect therein, and had no knowledge whatever of the defect which caused the same to cave in and crush him, and was wholly ignorant of the danger in which he was placed, said defect being latent, and not discoverable by the usual and ordinary tests, but that said roof would and could have been secured against the possibility of caving in and crushing the deceased, but for the negligence of the appellee as stated herein; that without said props, caps, and timbers so required to be furnished by the appellee, the working place of the said Elliott was unsafe and dangerous, which fact was known to the appellee, or by the use of ordinary care and diligence might have been known to it, and was unknown to the said Elliott; that at the time of his death the said Elliott left surviving him, as his only heirs at law, certain minor children, whose names are set out in the complaint. The second paragraph of the complaint is based upon sections 7472, 7473, Burns' Rev. St. 1894. We have already set out so much of section 7473 as is necessary to the question here presented. Section 7472 is as follows: "That the mining boss shall visit and examine every working place in the mine at least every alternate day, while the miners of such place are, or should be at work, and shall examine and see that each and every working place is properly secured by props or timber, and that safety in all cases is assured; and when found unsafe he shall order and direct that no person shall be permitted in an unsafe place, unless it be for the purpose of making it safe. He shall see that a sufficient supply of props, caps and timber are always on hand at the miners' working places. In addition

to the allegations contained in the first paragraph of the complaint, it is alleged in the second paragraph that it became and was the duty of the appellee to visit and examine, by its mining boss, every working place in its mine at least every alternate day while miners employed therein were or

should be at work, and to examine and see that each and every working place therein was properly secured by props or timbers, and that the safety was in all respects assured, and when any of said places were found to be unsafe it was its duty to order and direct that no person should be permitted in such place, unless for the purpose of making it safe; that it was its further duty to see that a sufficient supply of props, caps, and timber was always on hand at the miners' working places.

These allegations

are followed by the usual allegations of neglect to perform the duty, substantially as found in the first paragraph. The third paragraph is drawn upon the theory that appellee purposely, willfully, and intentionally violated the provisions of the mining statutes, and for that reason it is liable to appellant on account of the injury to his decedent occasioned thereby, without reference to any question of negligence on his part.

The first question to be determined in this appeal is whether, under the statute, the personal representative of the deceased has any right of action. Counsel for appellee insist that he has not, and for that reason, if for no other, the demurrer was by the lower court properly sustained to each paragraph of the complaint. The question is properly raised by the demurrer for want of facts. Pence v. Aughe, 101 Ind. 317; Farris v. Jones, 112 Ind. 498, 14 N. E. 484; Wilson v. Galey, 103 Ind. 257, 2 N. E. 736. Section 7473, Burns' Rev. St. 1894 (section 5480n, Horner's Rev. St. 1897), being section 13 of the act of 1891, under which appellant has brought this action, provides "that for any injury to a person or persons or property occasioned by any violation of this act or any willful failure to comply with any of its provisions, a right of action against the owner, operator, agent or lessor shall accrue to the party injured for the direct injury sustained thereby; and in case of loss of life by reason of such violation, a right of action shall accrue to the widow, children or adopted children or to the parents or parent or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed for like recovery for damages for the injury sustained by reason of such loss of life or lives." The language of this section clearly gives the right of action to certain parties named. In Board v. Davis, 136 Ind. 522, 36 N. E. 147, the supreme court say as to the interpretation of statutes: "First of all, ** if

*

the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation. The statute itself furnishes the best means of its own exposition." Under our statute, unless otherwise provided, all

suits must be brought in the name of the real party in interest. The estate of the deceased can have no interest in the provision made by the statute. It is not a claim due the estate. The right of action is given the widow, and it is not vested in any other than the beneficiaries therein named. When a new right or proceeding is created by statute, and a mode prescribed for enforcing it, that mode must be pursued, to the exclusion of all others. Storms v. Stevens, 104 Ind. 46, 3 N. E. 401. In Martin v. West, 7 Ind. 657, the plaintiff claimed a right of action under section 16 of an act approved March 4, 1853, entitled "An act to regulate the retailing of spirituous liquors," etc. The act provided that no person should be permitted to retail spirituous liquors until giving bond conditioned for the keeping of an orderly house, and for the payment of fines, penalties, and damages that might be incurred under the provisions of the act. Section 10 gave a right of action to any wife, child, parent, guardian, employer, or other person who should be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication of any person, in his own or her own name, "against any person and his sureties on the bond aforesaid who shall by retailing spirituous liquors have caused the intoxication of said person for all damages sustained." The court held that the statute pointed out the rule of proceeding, namely, by suit on the bond, and that the complaint was therefore defective. Section 14 of the act of the general assembly of Illinois upon the subject of miners, entitled "An act to provide for the health and safety of persons employed in coal mines," approved March 27, 1872 (Rev. St. 1874, p. 704), is in substantially the language of section 13 of the act under consideration. The right of action in case of the death of the husband, occasioned by the willful violation of the act, is in the widow. etc. The general act of Illinois for wrong ful injuries resulting in death is in the per sonal representative. In the case of Coa. Co. v. Taylor, 81 Ill. 592, which was an action brought under said act, appellee, in the commencement of the action, sued as administratrix of the estate of the decedent, who was her husband. Subsequently, on motion, the court allowed the summons and declaration to be amended so that the action might proceed in the name of appellee as widow of the decedent. This amendment was assigned as error. In passing upon the question the supreme court said: "We are satisfied that the widow was the proper person to bring the action. The fourteenth section of the act expressly authorizes her to bring the suit. Chapter 70, entitled 'Injuries' (Rev. St. 1874, p. 582), which authorizes an action in the name of the personal representative, did not repeal the fourteenth section of the act entitled 'Mines.' The former act is general, while this act in relation to miners