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See End of Index for Tables of Northeastern Cases in State Reports

THE

NORTHEASTERN REPORTER

VOLUME 145

CHALABAIS v. STATE. (No. 24663.) (Supreme Court of Indiana. Oct. 15, 1924.) 1. Homicide 313(3)—Verdict held sufficient, in prosecution for attempt to commit violent injury on named person by shooting at him with intent to kill.

the affidavit," and the fact that the offense was not accurately described by the other words used in the verdict was not material. For, while "felonious assault" might not necessarily mean an assault with intent to commit a felony, we think that, when considered in connection with the offense charged, the use of that expression does not make the meaning of the verdict doubtful.

In prosecution for an attempt to commit a violent injury on named person by shooting at The motion for a new trial challenged the him with the intent to murder him, verdict find-sufficiency of the evidence. There was eviing defendant "guilty of felonious assault on dence that, with a man employed to drive W., as charged in the affidavit," held sufficient. 2. Homicide 257(1)—Evidence held insufficient to sustain conviction of attempt to commit violent injury with intent to kill. Evidence held insufficient to sustain conviction of an attempt to commit a violent injury on named person by shooting at him with

the intent to murder him.

back the car, appellant and two others drove from their home in Gary, Ind., to a farm some miles away in another county, where a still in a "bank cellar" or "cave" near the farmhouse and quantities of "mash," with other facts, indicated that somebody had been making whisky; they took a number of jugs along, which had contained "white mule" whisky; the house was about 30 rods

Appeal from Circuit Court, Porter County | back from the highway and the car was H. H. Loring, Judge.

George Chalabais was convicted of an attempt to commit a violent injury on named person by shooting at him with the intent to murder him, and he appeals. Reversed, with directions.

stopped out in the road, where appellant and two companions got out, with the jugs and some gasoline, and the driver took the car back to Gary; that the three men with the jugs walked down to a fence of two or three loose wires near the house, and one of them

Sheehan, Lyddick & Sharavsky, of Gary, started to crawl between the wires, when the for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

sheriff and one of his deputies ran from behind an outbuilding and seized him; that the other two men dropped their jugs and ran back toward the highway, followed by another deputy sheriff, William B. Forney; the fence EWBANK, J. [1] The charge against ap- being between him and them; that the two pellant was that, on the 21st day of August, men turned and ran into the standing corn, in the county of Porter and state of Indiana, when Forney crawled through the fence, shot he unlawfully and feloniously attempted to at them, and chased them across the corn commit a violent injury upon the person of rows until he almost caught one of them; William B. Forney, which injury he had the that this man fired a shot almost in Forpresent ability to commit, by unlawfully and ney's face, and the flash lighted up his own feloniously shooting at the said William B. face so that Forney saw it plainly, and tesForney with a certain gun loaded with gun-tified that he was one of appellant's companpowder and leaden shot, with intent thereby ions named Zitko; that this shot struck Forto kill and murder him. To this charge heney in the top of the head and made a slight pleaded not guilty. The jury found appel- wound; that two shots were fired, besides lant "guilty of felonious assault on William B. Forney, as charged in the affidavit." Appellant's motion for a venire de novo was properly overruled. This amounted to a finding of "guilty as charged in

*

the one fired by Forney; that the first shot was fired by somebody 10 or 12 feet away from Forney, in the corn, but no witness saw who fired it, and afterward Forney ran about 135 feet before he caught up with Zit

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-1

18-Unnecessary to show why speed of 60 miles per hour was negligent when speed merely incidental.

ko, when the last shot was fired. Defendant 2. Pleading
ran through the corn to the creek and swam
across, after which he walked to the next
highway and was picked up by a passing au-
tomobile, and rode back to Gary

It appeared that appellant was afterward convicted of violating the Prohibition Law, because of what he did that night, and that Zitko pleaded guilty to the charge of shooting at Forney, besides being positively identified by Forney as the one who shot him. A witness stated, on cross-examination, that he sold appellant a gun; neither the time when it was sold nor the kind of gun being stated. And the man who drove the car testified that, at some time not stated, before that night, he had seen a gun in a pocket of appellant's car, but did not see any that night. But nobody testified that appellant fired a shot, or that he was at the place from which a shot was fired, or that he had a gun of any kind with which he could have fired one. Defendant testified that he had nothing with which to shoot, and that he was running away through the corn, some distance ahead of Zitko, when he heard the shots, and that he kept on running.

[2] That appellant was guilty of violating the law may be granted, and it appeared that he had been convicted and had paid a fine for a misdemeanor. But the question is whether or not this evidence was sufficient to prove him guilty of the felony for which he was on trial. We think not. The mere facts that he ran into the corn with another man

who was shown to have been armed and to have shot at Forney, and that some unidentified person in the corn fired a shot which "missed" Forney, with proof that at some unnamed time appellant had purchased a "gun," and that at some unnamed time before that night there was a "gun" in his car, were not sufficient to support an inference that he shot at Forney with the felonious intent to kill and murder him.

The judgment is reversed, with directions to sustain appellant's motion for a new trial The clerk will issue the proper order for the return of the prisoner to the custody of the sheriff of Porter county for attendance upon such a new trial.

In an action for death of a fireman killed in a head-on collision, it was unnecessary for complaint to state facts showing why speed of 60 miles an hour was negligent, where speed was merely incidental to cause of action. 3. Appeal and error 1039 (8)—Judgment not reversed for overruling of motion to make immaterial averment more specific.

Overruling a motion to make an immaterial averment more specific is not cause for rever

sal.

4. Master and servant 204 (3)-Risk of injury by fellow servant not assumed under federal act.

Plaintiff's decedent, killed in operation of an interstate train, did not assume risk of injury by negligence of fellow servants, since Act April 22, 1908, U. S. Comp. St. § 8657, was applicable.

5. Master

and servant 180(1)-Fellow servant doctrine abrogated by federal act.' U. S. Comp. St. § 8657, making an interstate railroad carrier liable to an employé for injuries while engaged in interstate commerce, abrogates fellow servant rule at common law. 6. Discovery 63-Interrogatories held relevant and proper.

In action for death of railway fireman, interrogatories propounded to defendant as to whether it issued and delivered a certain order, whether it was in the words therein set out, and whether it gave one train the right of way sue, and not subject to be stricken out as over another, held to relate to matters in ishypothetical, calling for copy of instrument, or asking defendant to determine the law. 7. Executors and administrators 449-Proof of administrator's appointment held unnecessary when not denied.

ministrator was necessary, in view of Burns' No proof of plaintiff's appointment as adAnn. St. 1914, § 371, in action to enforce liability created by a federal statute where complaint alleged appointment by a court of jurisdiction, and authority and capacity in which he sued was not denied by pleading under oath. 8. Death 99(4)—$30,000 for death of brakeman held not excessive.

Damages of $30,000 for death of a brakeman 35 years old, who had been earning from $100 to $130 per month, and who left a widow of his own age and five children, held not excessive.

BALTIMORE & O. S. W. R. Co. v. BERDON.* 9. Discovery 79-Statute authorizes use of

(No. 24002.)

(Supreme Court of Indiana. Oct. 15, 1924.)

I. Pleading 367 (4)-Allegation as to duty of trainmen sufficiently specific.

Where complaint alleged that railroad had only a single track, and that trainmen were given order giving another train the right of way, allegation that it was their "duty" to hold their train until the other arrived was not indefinite or uncertain so as to make it subject to motion to make it more specific.

answers to interrogatories as evidence at trial.

Burns' Ann. St. 1914, § 365 (Rev. St. 1881, 359), expressly authorizes use of answers to interrogatories as evidence at trial. 10. Evidence 34, 46-Act of Congress, President's proclamation, and orders of Director General held matters of judicial notice.

Act Cong. Aug. 29, 1916, U. S. Comp. St. 1974a, the President's proclamation taking over railroads, the orders of Director General providing that roads should have all income, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Certiorari denied 45 S. Ct. 225, 69 L. Ed.

(145 N.E.)

pay all liabilities prior to January 1, 1918, and contracts between the United States and the railroads were matters of judicial notice. 11. Railroads 52, New, vol. 6A Key-No. Series-Action held maintainable against railroad under federal control.

An action for death of a fireman engaged in interstate commerce on December 29, 1917, could be maintained against railroad, in view of U. S. Comp. St. § 1974a, the President's proclamation taking over the railroads, orders of Director General providing that roads should pay all liabilities prior to January 1, 1918, and contracts between the United States and the railroads.

12. Trial 39-Defendant's offer to read President's proclamation assuming control of railroads held properly refused.

Defendant's offer to read President's proclamation taking over roads during federal control, as evidence, was properly refused, since such proclamation has effect of law, and court is required to interpret all matters of law and declare them by its instructions for guidance of jury.

13. Evidence 28-Law in force within jurisdiction is a matter of judicial notice.

The laws in force within a jurisdiction is a matter of judicial notice, and need not be pleaded or proved.

mour, Ind., and in the line of his employment was working as a servant of defendant in the operation of said train from Cincinnati westward into Indiana, on its way between said points; that said train was being run by defendant as its second No. 23, pursuant to an order which had been made, published and promulgated by defendant, that gave said train the right of way from Milan to North Vernon, stations on said railroad in the state of Indiana, as against trains numbered 2 and 68 and 46, respectively; that there was only a single track on said railroad between the stations named; that defendant's servants in charge of and operating the east-bound train No. 2 received said order; and "that under and pursuant to said order it became the duty of said employés, servants and agents running and operating said train No. 2 to hold said train at said city of North Vernon until said train second No. 23 had reached the city of North Vernon as aforesaid, and at said point said trains were scheduled and notified by reason of said order to pass each other," but that defendant's servants in charge of train No. 2 negligently failed to obey said order, and negligently ran that train toward the east from North Vernon on the same track on which the second No. 23 was approaching from the east, "and negligently ran said

Appeal from Circuit Court, Scott County: train No. 2 east as aforesaid at a high and John R. Carney, Judge.

Action by Gustav A. Berdon, administrator, against the Baltimore & Ohio Southwestern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Superseding former opinion, 143 N. E. 677. McMullen & McMullen, of Aurora, for appellant.

Thomas M. Honan, of Seymour, and Beckett & Beckett, of Indianapolis, for appellee.

EWBANK, C. J. Appellee recovered a verdict and judgment against appellant for $30,000 for the death of his decedent, Joseph F. Hornung. Overruling appellant's motion to make the complaint more specific, overruling its demurrer to the complaint, and overruling its motion for a new trial are assigned as error.

dangerous rate of speed, to wit 60 miles an
hour toward and into train second No. 23
upon defendant's track" between North Ver-
non and Milan, "and there negligently col-
lided with said train second No. 23,
and thereby struck, injured and killed plain-
tiff's decedent upon said train second No. 23
in his position upon said locomotive and
while performing his duties as said fireman
upon said locomotive in the line of his em-
ployment"; that said decedent left a wife
and five minor children who, because of cer-
tain facts stated, were thereby damaged in
the sum of $50,000.

[1] Appellant's motion to make the complaint more specific by explaining the use of the word "duty" as applied to the servants operating train No. 2 being required to hold the train at North Vernon was properly overThe complaint alleged, in substance, that ruled. All of the facts which imposed that the plaintiff was duly appointed as adminis- duty, including the alleged facts that there trator of the estate of his decedent by the was only a single track from that city eastcircuit court of the county in which said de- ward to Milan, and that they had been giv cedent lived at the time of his death, and en an order that train second No. 23 from had qualified as such administrator; that the other direction had the right of way over defendant was a corporation engaged in op- train No. 2, were fully stated in the comerating a railroad extending across Ohio, plaint, and the further charge that by reaIndiana, and certain other states, and engagson of such facts it was the duty of those ed in interstate commerce as a common carin charge of the east-bound train to hold rier for hire; that plaintiff's decedent was it at North Vernon until the west-bound in the employ of defendant as a fireman on train arrived there was not indefinite nor one of defendant's locomotives in an inter- uncertain. Pittsburgh, etc., R. Co. v. Lighstate train operated by defendant on said theiser, 163 Ind. 247, 254, 71 N. E. 218, 660; railroad between Cincinnati, Ohio, and Sey-Chicago, etc., R. Co. v. Hamerick, 50 Ind.

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

App. 425, 434, 96 N. E. 649; Wellington v. to sue not having been denied by a pleading Reynolds, 177 Ind. 49, 52, 97 N. E. 155.

[2, 3] Neither was it error to overrule the motion to require that the complaint should state facts showing why 60 miles an hour was dangerous and negligent. The grava men of the alleged cause of action was running an east-bound train along the single track on which a west-bound train was approaching that had the right of way and thereby running it against plaintiff's decedent and killing him, and the speed at which it was operated was merely incidental. Overruling a motion to make an immaterial averment more specific is not cause for reversing the judgment. Cincinnati, etc., R. Co. v. Little, 190 Ind. 662, 131 N. E. 762; Tecumseh, etc., Co. v. Buck (Ind. Sup.) 135 N. E. 481.

[4, 5] The complaint charged that plaintiff's decedent was killed in the performance of service in the operation of an interstate train as a servant of defendant in the conduct of its business as a railroad carrier engaged in interstate commerce. Under such circumstances the act of Congress (Act April 22, 1908, U. S. Comp. Stat. § 8657) applies, and he did not assume the risk of injury by reason of the negligence of fellow servants. The statute makes an interstate railroad carrier liable in damages to an employé while engaged in interstate commerce for injuries or death resulting in whole or in part from negligence of any "officers, agents or employés of such carrier," and abrogates the fellow servant rule at common law. Mondou v. New York, etc., R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 175, 38 L. R. A. (N. S.) 44.

[6] Interrogatories 4, 5, and 6 inquired whether or not defendant issued and delivered order No. 142, on the date of the accident, whether or not it was in certain words, as set out, and whether or not it gave train second No. 23 the right of way over train No. 2 between Milan and North Vernon on that day. Defendant's motion to strike them out, for the alleged reasons that they were irrelevant and not connected with the pleadings, and that they asked hypothetical questions, asked for a copy of an instrument, and asked defendant to determine the law on the facts stated, was overruled, and appellant answered each interrogatory in the affirmative. This ruling was not erroneous. It did not appear from the questions or the answers thereto that the order was in writing, and whether or not the abbreviations used expressed the meaning that one train had the exclusive right to use the single track until it should have passed over it was matter of fact. The facts inquired about were in issue, and were material.

[7] The complaint having alleged that plaintiff was the administrator of his decedent's estate, appointed by a court that had jurisdiction, and the character and capacity in which he sued and his authority

under oath, no proof of those matters was necessary at the trial. Section 371, Burns' 1914 (section 365, R. S. 1881).

We perceive no reason why this rule of evidence should not govern an action in a state court to enforce a liability created, in part, by a federal statute. The defendant had notice of the capacity in which plaintiff was suing from the time the complaint was filed, and knew that it would conclusively admit his capacity to sue as administrator if it should fail to deny such capacity under oath. The evidence was sufficient in this particular.

[8] There was evidence that the deceased was 35 years old and had a life expectancy of 31.78 years, that he left a widow of his own age, and children aged 3, 8, 12, and 14, and 15 years, respectively; that he was strong, healthy, sober, industrious, of good habits, and kind to his family; that he had worked as a brakeman 6 or 7 years, and was receiving from $100 to $130 per month, with some extra at times, and was farming ten acres on which he produced vegetables and hogs, and from which he sold $200 worth per year. We cannot say that the amount of damages awarded was so obviously a result of prejudice, partiality, or other improper motive, or was so obviously a result of the consideration by the jury of an improper element that a court of appeals can know they are excessive. City of Indianapolis v. Stokes, 182 Ind. 31, 35, 105 N. E. 477; Pittsburgh, etc., R. Co. v. Smith, 190 Ind. 656, 131 N. E. 516.

[9] The statute expressly authorized the use of the answers to interrogatories as evidence at the trial. Section 365, Burns' 1914 (section 359, R. S. 1881); Combs v. Union Trust Co., 146 Ind. 688, 694, 695, 46 N. E. 16.

[10, 11] There being an express admission of defendant, under oath, by its answers to the interrogatories, that plaintiff's decedent was in the employ of defendant as fireman on defendant's west-bound train second No. 23, on December 29, 1917, the day of the accident, that defendant gave the order referred to, and that said train collided with defendant's train No. 2 on defendant's railroad a mile and a half east of North Vernon, the following facts were matters of judicial knowledge:

That under the act of August 29, 1916 (U. S. Comp. Stat. § 1974a) "the President, in time of war, is empowered to take possession and assume control of any system or systems of transportation, or any part thereof," etc.; that after war with Germany and AustriaHungary had been declared, the President iswhich declared that he did "hereby take possessued a proclamation on December 26, 1917, sion and assume control at 12 o'clock, noon, on the 28th day of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part with

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