shall fail, neglect, or refuse to pay the certificates or bonds, or to promptly collect any assessment, when due, such a suit will lie. It is provided in section 4294, Burns' Rev. St. 1894 (section 6777, Horner's Rev. St. 1897), that, when bonds have been requested as therein indicated, the common council of the city, or the board of trustees of the town, shall cause the assessment and bonds to be placed upon the city or town tax duplicates, and charged against the several lots, etc., 10 per cent. for each successive year for 10 years, adding to the several amounts interest, payable semiannually, and the first 10 per cent. shall be due and payable when the first tax falls due and is payable after the assessment is made, and the assessment, as made, together with the interest thereon, shall be a lien upon the several lots, etc., to the same extent that taxes are a lien upon such property, and shall be collectible in the same way that taxes are collectible, or in such manner as the common council or board of trustees, by ordinance, shall prescribe, and the law governing the collection of taxes shall, so far as applicable, regulate and govern the collection of such assessments, and such assessments, and the proceeds arising therefrom, shall constitute a special fund for the payment of the costs of the improvement and the bonds and certificates issued therefor, and for no other purpose. And in section 4294, Burns' Rev. St. 1894 (section 6777, Horner's Rev. St. 1897), there is also a provision that, whenever any payment shall be made upon any of such assessments, it shall be the duty of the treasurer, contractor, or owner of the assessment, bonds, or certificates or installments of assessments, receiving such payment, to enter upon the proper record the receipt of such money, and such receipt shall be a discharge of the lien of such assessment to the exent of such payment. In construing any particular provision of the statute, it must be considered in connection with all other pertinent provisions of the same enactment; and the language of the particular provision should be applied, if possible, so as to allow effect to the apparent meaning of the other particular provision, and so as to accord with the intention reasonably inferred from the statute, considered as a consistent whole. The statute made it obligatory upon the appellees to pay the installments upon the tax duplicate to the treasurer, which they did. By the express provisions of the statute, the treasurer's receipt of the money discharged the lien of the assessment to the extent of the payment. Whatever meaning may be ascribed properly to the provision on which the appellants rely, it cannot be allowed the effect of authorizing collection by suit from the lot owner who has paid the accrued nstallments in compliance with the positive requirements of the statute, or as giving the remedy of foreclosure of a lien which has been discharged to the extent to which the claim thereby secured has matured. The money received by the treasurer from the

943

1. In an action on an insurance policy, it is not necessary to make the application a part of the complaint.

2. A bill of exceptions recited that a policy of insurance was "offered" in evidence and marked "Exhibit A," and then followed the policy sued on. The bill began by stating that the following evidence was "introduced," and closed with the recital, signed by the judge, that "this was all the evidence given in the cause." Held to show that the policy was introduced in evidence.

Appeal from circuit court, Warrick county; E. M. Swan, Judge.

Action by Elizabeth Dubois against the Knights Templars' & Masons' Life Indemnity Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Gavin & Davis, for appellant. Hatfield & Hemenway, for appellee.

HENLEY, J. This action was commenced by appellee to recover against appellant on a policy of insurance issued by appellant on the life of one George M. Dubois, the husband of appellee, which policy was payable to appellee at the death of the insured. A demurrer was filed to the complaint and overruled. Appellant then filed an answer in two paragraphs. To the affirmative answer, appellee filed a general denial. The cause was submitted to a jury for trial, which resulted in a verdict for appellee, and over appellant's motion for a new trial the court rendered judgment upon the verdict. The errors assigned are: First, that the court erred in overruling appellant's demurrer to the complaint; second, that the court erred in overruling appellant's motion for a new trial.

Under the first specification of the assignment of errors, counsel for appellant urge that the complaint is insufficient because a copy of the application is not filed with the complaint. A copy of the policy of insurance was filed with, and made a part of, the complaint; and this, we think, was all that was necessary. It has been held in several cases by the supreme court of this state that it is not necessary, in an action upon a policy of insurance, to make the application a part of the complaint. This point was decided in the following cases: Insurance Co. v. Kessler, 84 Ind. 310; Insurance Co. v. Wiler, 100 Ind. 92.

Under the second specification of the assignment of errors, counsel for appellant 1 Rehearing denied,

Appeal from superior court, Tippecanoe county; W. De Witt Wallace, Judge.

Action for injuries by Benjamin V. Stafford, by Guy O. Stafford, his next friend, against the Lafayette Carpet Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

Stuart Bros. & Hammond, for appellant. Thompson & Storms, for appellee.

COMSTOCK, J. On January 12, 1897, appellee, then lacking 8 days of being 19 years of age, while in the employment of appellant, lost his left arm by falling into the "whizzer," a machine used for the purpose of extracting water from yarn. His amended complaint to recover damages for said injury was in three paragraphs. Appellant demurred to each paragraph for want of facts sufficient to constitute a cause of action. The demurrer was sustained as to the second, and overruled as to the first and third, paragraphs; to which rulings as to the first and third paragraphs appellant excepted. Appellant answered by the general denial. There was a trial by jury, and a general verdict returned in favor of appellee, assessing his damages at $1,650. With their general verdict the jury also returned answers to interrogatories submitted by appellant. Appellant filed a written motion for judgment in its favor on the special findings of the jury in answer to interrogatories, notwithstanding the general verdict. It also moved for judgment in its favor upon the statements in the pleadings, notwithstanding the general verdict. These motions were overruled, and exceptions were taken. The court sustained appellee's motion for judgment on the general verdict, to which ruling appellant excepted, and judgment was rendered in favor of appellee for the amount of the verdict. The foregoing adverse rulings to the appellant are assigned

as error.

The whizzer into which appellee fell and received his injury is thus described in the complaint: "That said whizzer is made of a large circular iron frame, which rises from floor to a height of about 2 feet, with a top rim about 32 to 4 inches wide; that said iron frame was about 4 feet in diameter; that, arising from said iron rim, there were three iron beams, bolted onto the said rim, which rise in a circular direction, and meet about 21⁄2 feet above the center of the plane of the iron rim, and there forming the upper boxing for the spindle, which spindle extends down through the center of the iron frame into a lower boxing; that fastened on the bottom of said spindle, and immediately above the lower boxing, and inside of said iron frame, is a circular tub, made of wood and iron, the top rim of which is wood, placed thereon in sections, which fit closely together when placed thereon properly, and when said rim is in proper repair; that said top wooden rim of said tub was nearly on 57 N.E.-60

a level with the rim of said iron frame, and formed a circle inside and closer to the center than said iron frame, so that it was exposed and unprotected; that said three iron beams arising from said rim were located on the north, west, and south side of said frame, forming a semicircumference, and left an open space of one-half the circumference on the east side of said whizzer."

It is averred in both paragraphs of the complaint that appellee was 18 years of age at the time of his injury; that appellant failed to give him any instructions as to the dangerous condition of the machine; but there is no averment that appellee did not know that the machine was uncovered, nor that he did not know of the danger of operating the machine, nor that he was inexperienced, nor that appellant knew his age and inexperience. It is also averred that appellee worked in a narrow passageway, in which it was difficult to see because of the dense steam, but it does not aver that appellee was ignorant of these conditions. These averments were not sufficient, therefore, to charge negligence on the part of appellant as to the whizzer's being uncovered, and as to the narrow passageway, and the presence of the steam. There was no absolute duty on the part of the appellant to cover the whizzer. Guedelhofer V. Ernsting (Ind. App.) 55 N. E. 113, and authorities there cited. See, also, Stephenson v. Duncan (Wis.) 41 N. W. 337; Naylor v. Railway Co., 53 Wis. 661, 11 N. W. 24; Hobbs v. Stauer, 62 Wis. 108, 22 N. W. 153; Foley v. Machine Works, 149 Mass. 294, 21 N. E. 304, 4 L. R. A. 51; Gilbert v. Guild, 144 Mass. 601, 12 N. E. 368; Goodnow v. Emery Mills, 146 Mass. 261, 15 N. E. 576; Murphy v. Rubber Co., 159 Mass. 266, 34 N. E. 268; Hale v. Cheney, 159 Mass. 268, 34 N. E. 255; Stuart v. Railway Co., 163 Mass. 391, 40 N. E. 180; Downey v. Sawyer, 157 Mass. 418, 32 N. E. 654; Schroeder v. Car Co., 56 Mich. 132, 22 N. W. 220; Coombs v. Cordage Co., 102 Mass. 572; Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812; Palmer v. Harrison, 57 Mich. 182, 23 N. W. 624; Young v. Mattress Co., 79 Iowa, 415, 44 N. W. 693; Railway Co. v. McCormick, 74 Ind. 440; Larson v. Knapp, Stout & Co. Company (Wis.) 73 N. W. 992; Mackin v. Refrigerator Co., 100 Mich. 276, 58 N. W. 999.

Counsel for appellee say in their able brief that the statute required appellant to cover its machinery, quoting section 7087h, 4 Burns' Rev. St. (Acts 1897, p. 101, § 8). This act, however, even if applicable to the case before us, did not go into effect until after appellee received his injury.

The objections to the first and third paragraphs of the amended complaint are (1) that they are insufficient for failing to aver directly, or stating facts showing, that appellee's injury occurred through the negligence of the appellant and in failing to show that the alleged defects in the rim or spindle were the proximate cause of such

injuries; (2) that they are insufficient for want of averments, or statement of facts, showing that appellee's injuries were received without fault or negligence upon his part. The negligence charged against appellant in the first paragraph is that "defendant neglected its duty, and failed to keep said machine in repair," especially that part known as the "rim" of the tub; that said rim was made of wood, and was out of repair, in this: that the sections were loose, and the joints of the same did not come close together; and that said rim was worn rough, so that parts (commonly called "splints" or "slivers") of the top and edge projected slightly above the surface of the same. "In consequence of the rim of said tub being out of repair, the yarn which he was carrying on his left arm was caught by the rough part of said rim," etc. There is no averment that the want of repair was the same before stated, nor that any act or omission of appellant was the cause of the yarn catching in the rim. The fact that the rim was out of repair, and caused the yarn to catch, may have been a different defect from that with which appellant is charged with being negligent. Presumptions will not be indulged in favor of the pleader.

The averment of negligence in the third paragraph follows the description of the defects in the spindle, and is as follows: "Defendant neglected its duty, and failed to place any covering or netting over the rear of said whizzer and spindle, and failed to keep said machine in repair, especially that part of said machine known as the 'spindle.'" The want of repair of the spindle is thus described: "Said spindle was made of iron, and the same was out of repair, in this: that the part below the top boxing which held the top of said spindle was rough, and covered with oil and dust." It is claimed by counsel for appellant that the foregoing averment does not charge any act of negligence causing appellee's injury. It charges that appellant failed to keep or place any covering over the rear of the whizzer and spindle, and especially failed to keep the machine in repair, particularly the spindle, but does not aver that appellee's injury was caused by appellant's negligence. Nor does it appear from the facts that appellant's negligence caused appellee's injury.

In Pennsylvania Co. v. Gallentine, 77 Ind. 322, 324, it was averred: "That the said defendant cut down the grass and weeds growing on the track and grounds of said railroad at said point, and permitted large quantities of other inflammable material to accumulate on said road and grounds at said point, and negligently permitted said grass, weeds, and other inflammable material to remain on the track and grounds of said road as aforesaid, until they became very dry, when on the day of, 1872, they were set on fire by the passing trains, negligently run and operated on said road by the defendants, and the fire from said burn

ing grass, weeds, and other inflammable material was communicated to said wood, and it was then and there burned; wherefore the plaintiff was damaged," etc. The complaint was held bad, the court, at page 325, saying: "It avers that the wood was set on fire by the passing trains, negligently run and operated on said road by the defendant, and burned,' but it does not aver that the negligence had anything to do with the setting on fire and the burning of the wood, or that the injury was caused by, or resulted from, the negligence of the defendant."

In Bluffton Corp. v. Mathews, 92 Ind. 213, being an action against the town for an injury received by the plaintiff in falling into an excavation, the complaint charged "that said incorporated town of Bluffton and said Morgan suffered and permitted said two excavations in said sidewalk to be made, and negligently, wrongfully, and unjustly suffered and permitted the same to remain open, and the passage of said sidewalk to be obstructed and rendered dangerous to persons passing along said sidewalk along said lot, for a long and unreasonable length of time, to wit, for the space of about five weeks; that said sidewalk was constantly frequented and used by persons passing to and fro by said lot; that the said defendant negli gently, wrongfully, and unjustly left the said excavations in said sidewalk along said lot uncovered and unprotected, and without any barriers or guards to prevent persons passing along said sidewalk and lot from falling into said excavations in said sidewalk; that on the 24th day of October, 1881, the said defendant negligently left, suffered, and permitted said excavations in said sidewalk along said lot to be uncovered, and without any guards or barriers or lights to prevent persons from falling into said excavations while passing along said sidewalk and lot with due caution; that on the evening of the

day of -, 1881, plaintiff, without any fault or negligence on her part, and while with due caution passing along said sidewalk, was precipitated and fell into said excavation in said sidewalk, to the depth of said excavation, and striking the bottom thereof with great force and violence, by means whereof she was greatly injured, and was sick and sore for a long time, and suffered greatly, and paid out large sums of money, to wit, five hundred dollars, for medical and surgical treatment, and suffered damages in the sum of five thousand dollars; wherefore," etc. The complaint was held insufficient, the court saying: "To render the appellant liable, it was necessary to show in the complaint, by the averment of issuable facts, a wrong on the part of the appellant and damage to the appellee, and the wrong was the proximate cause of the damage. The complaint did not show that when the appellee was injured the appellant was chargeable with fault, or that her injury was caused by the appellant's wrongful act or omis sion."

In Railway Co. v. Conn, 104 Ind. 64, 3 N. E. 636, an action against a railroad company to recover damages for injuries caused by its alleged negligence, it was held that the complaint must not only charge the defendant with the negligent acts, whether of commission or omission, but also show with reasonable certainty that such acts were the direct or proximate cause of the accident or injury; "that in such case the allegation in the complaint that the defendant, with gross negligence, and in a careless and reckless manner, caused one of its locomotives, then and there operated by its servants and agents, to rapidly approach the street crossing where the accident occurred, without having the headlight lit in said locomotive, and without giving any reasonable, timely, or proper warning, notice, or signal of the approach, either by ringing the bell or blowing the whistle at a safe and reasonable distance from said crossing, fails to show that the accident or injury was caused by the negligence of the defendant."

In Harris v. Board, 121 Ind. 299, 23 N. E. 92, it is stated: "The complaint of the appellant alleges that a bridge, forming part of one of the highways, was negligently suffered to get out of repair, and become unsafe; that the board of commissioners had notice of its condition; that the appellant's horse, which he was riding over the bridge, was injured, without any fault on the appellant's part." The complaint was held bad, the court saying: "To sustain a recovery, there must, in every instance, be a connection between the wrong and the injury. In other words, the plaintiff must show that the unsafe condition of the bridge was the proximate cause of the injury for which he sues. There is no such showing in this case. It does appear that the bridge was unsafe, and that the plaintiff's horse was injured, but it is not shown that there was any connection between the two facts."

In Railway Co. v. Engrer, 4 Ind. App. 261, 30 N. E. 924, which was for an injury received at a crossing, the complaint charged that the defendant "negligently and carelessly omitted to give any signal of its approach by bell, whistle, or otherwise," and, "while said locomotive and cars were being run in the negligent and careless manner aforesaid," the plaintiff was struck and injured, etc., and then alleged that "the foregoing injuries were occasioned by the negligence and carelessness of the defendant," etc. The court said: "The injury must be shown to have been caused or occasioned by some act or omission which is alleged to have been negligent. In the complaint before us, after the description of the injuries suffered, it is alleged that they were occasioned by the negligence and carelessness of the appellant. In this connection no act or omission is mentioned, and no reference is here made to any act or omission or any negligence before mentioned. In the former part of the complaint it is alleged that the appellant caused its locomotive and train

to pass rapidly along the railroad track, and over the crossing, and in so doing negligently and carelessly omitted to give any signal of its approach by bell, whistle, or otherwise, and that while said locomotive and train were being run along said track and over said crossing, in the negligent and careless manner aforesaid, the same ran against the appellee, etc. It is not shown that the injury alleged was caused by any act or omission stated. This was a material defect. The appellant was entitled to a statement of the cause of action in plain and concise language, showing that the alleged injury was caused or occasioned by some act or omission stated and alleged to have been negligent."

In Stone Co. v. Wray, 10 Ind. App. 324, 37 N. E. 1058, it was held: "In an action for damages for personal injuries, the complaint is fatally defective where it does not appear, by direct allegations or necessary inferences, that the injuries complained of were the result of defendant's negligence."

In Railroad Co. v. Thomas, 147 Ind. 35, 46 N. E. 73, it was held: "In an action against a railroad company for damages for the killing of plaintiff's intestate at a crossing, a complaint which alleges that defendant negligently piled lumber on its right of way, which obstructed the view of travelers on the street, and that the persons managing defendant's train at the time plaintiff's intestate was killed failed and neglected to sound the whistle or ring the bell in approaching the crossing, and were negligently running the train at an unlawful rate of speed, which complaint does not further aver that the view of the decedent was obstructed by the lumber, or that the failure to give the signals, or the unlawful speed of the train, caused the injury, does not state a cause of action." See, also, Railway Co. v. Young, 146 Ind. 374, 45 N. E. 479, and cases there cited.

The following portions of the first paragraph of complaint contain the averments as to want of contributory negligence: "That on the 12th day of January, 1897, while said tub in said whizzer was being operated with great power and velocity by the steam engine located in said room, and while said plaintiff, who was a minor eighteen years old, was engaged in passing through said narrow passageway in the rear of said machine, through which he was compelled to go by orders of the defendant, and putting yarn on the said poles so placed aforesaid, as it was his duty to do, and without any fault or negligence on his part, and in consequence of the rear of said machine being uncovered and unprotected, and in consequence of the rim of said tub being out of repair, and in consequence of said narrow passageway, the lower part of the yarn which he was carrying on his left arm was caught by the rough part of said rim, carried around until it came in contact with the said spindle which revolves said tub, and said yarn was quickly wrapped around