have no control whatever over the possession would be in effect to render all written inof such instruments, and on account of which struments oral ones, subject to change at the cannot prevent any person in the possession will of the party or parties to accord with his thereof from doing therewith as his inclina- or their remembrance of the contract. Murtion might dictate, in utter disregard of ray v. Graham (1870) 29 Iowa, 520; Hunt v. honesty and good conscience. The matter is Gray (1871) 35 N. J. Law, 227, 10 Am. Rep. well summed up in the opinion in a New York 232. case, which says:

"It is necessary to commercial transactions that the rules of liability of parties to negotiable paper should be fixed and certain. It is better that such rules be arbitrary than they lack precision and certainty." First National Bank, etc., v. Gridley (1906) 112 App. Div. 398, 407, 98 N. Y. S. 445, 452.

Three cases are cited by appellee to sustain its point that the payee of a promissory note may materially alter the same to make it conform to the intention of the parties thereof. Busjahn v. McLain (1891) 3 Ind. App. 281, 29 N. E. 494; Osborn v. Hall (1902) 160 Ind. 153, 66 N. E. 457; John Kindler Co. v. Bank (1915) 61 Ind. App. 79, 109 N. E. 66. These cases are not controlling. In the case of Busjahn v. McLain, supra, the note read "$175" in figures and "one hundred and seventy" in writing. The alteration was by adding the word "five" to "one hundred and seventy." The written words controlled the figures. The alteration therefore changed the tenor of the note and was material, which under the present statute would have avoided the note. Former decisions held that changing an ambiguity in a note did not avoid it. Murray v. Graham, supra, page

527.

It is the opinion of the writer that the note sued upon was given in renewal of a note which, at the time of such renewal, had theretofore been materially altered by the payee, appellee herein, which avoided it, and that the note which had been so materially altered was insufficient upon which to base a renewal note, and that the renewal note based thereon is without consideration.

MYERS, J., concurs in this dissenting opinion.

MUNSON V. SCHEID et al. (No. 12129.) (Appellate Court of Indiana, Division No. 1. Dec. 16, 1924.)

I. Master and servant 417(5)—Refusal of Industrial Board to grant full hearing reversible error.

Where single member of Industrial Board in granting award violates Workmen's Compensation Act, § 59, by failing to give full hearing, and where section 60 provides that award granted by less than full board may be appealed to full Board, which shall grant full hearing, but on appeal this statutory right was again denied, and board affirmed award, held, that In the case of Osborn v. Hall, supra, the board, in failing to correct error committed by alteration was not material. It has never single member, and itself committing same erbeen the law that an immaterial alteration ror, had abused discretionary power lodged in avoided the note. In the case of John Kind-it by said section, and its award must be reler Co. v. Bank, supra, the alteration of this 'note is based upon the rules relating to the filling in of blank lines. The facts disclose that the case was decided upon the order of the maker of the note in letters and that it 'did not avoid the note. These cases are not

to be overruled, but rather they have distinguished the rule of law in relation to the alteration of written instruments, to make them conform to the agreement of the parties as understood by one party, and without the consent of the party or parties to be bound. The statute in force now must surely change the jurisprudence of this state from what it was at the time the three cases were decided, if the interpretation of them is to be such as put upon them by the appellee. It is the opinion of the writer, based upon said sections 124 and 125, that a party cannot alter a negotiable note for the purpose of making it conform to the original agreement, without the assent of the party or parties to be bound, and then be permitted to recover on the note. For to permit this

versed.

2. Master and servant 404-Exclusion of evidence that applicant for workmen's compensation was independent contractor erro

neous.

Where applicant for workmen's compensation insisted that relation of master and servant existed, but alleged employer claimed that applicant was independent contractor, refusal to consider checks given for labor performed, and evidence of circumstances under which they were given, was reversible error, when tending to show relations existing.

3. Master and servant 404-Memorandum written on check by maker after payment held not to prevent its admission as to master and servant relation, in compensation proceedings.

Check given by alleged employer to applicant for workmen's compensation, bearing notation, "Loyd No. 26 Union Soap Co. Stack," given for labor performed, was not inadmissirelation of master and servant did not exist. ble, by reason of such notation, to show that

where notation was written after check had

been paid, as mere memorandum, and not as an alteration of executory contract.

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

Appeal from Industrial Board.

(145 N.E.)

Proceeding under the Workmen's Compensation Act by Raymond Scheid, as employee, and others, for injuries sustained, opposed by S. A. Munson, as employer. From an order of the Industrial Board granting an award, after review of an award by a single member, S. A. Munson appeals. Award reversed for further proceedings.

Watson & Esarey, of Indianapolis, for appellant.

Frank C. Riley, of Indianapolis, for appellees.

BATMAN, J. Appellee Scheid, hereinafter

referred to as the appellee, filed an appli

cation with the Industrial Board for an award of compensation against appellant. A hearing was had before a single member of the board, who made an award in favor of appellee. On application of appellant, this award was reviewed by the full board, resulting in an award in favor of appellee of $13.20 per week, beginning November 28, 1923, and to continue so long as he is disabled, not exceeding $5,000 in amount, and providing that appellant pay the medical and surgical treatment of appellee during the first 30 days. Appellant is now prosecuting this appeal, based on an assignment of errors, which alleges in substance, among other things, that the award of the full board is contrary to law, and that the full board erred in refusing to hear additional evidence upon the review made by it, pursuant to an application of appellant therefor.

[1] We will first direct our attention to the alleged error last stated, as our conclusion in that regard renders any further consideration unnecessary. The Workmen's Compensation Act provides as follows:

* *

shall be had. This evidently means that the member or members of the board conducting such hearing, although not constituting a court, and hence not bound by all the rules of civil procedure, nevertheless must grant what the statute evidently intends, viz. such a hearing of the parties and their witnesses as will enable such member or members to arrive at the truth concerning the material issues, in order to apply the law properly, and thereby do justice between the contendand the number of members sitting thereat is ing parties. If such a hearing is not had, less than the full board, as was true in the instant case, any error in that regard may be view by the full board, as provided in said rendered harmless by an application for re

section 60, and such a hearing thereat, as will

bring before the full board all the pertinent
facts bearing on the issues, of which the
parties shall offer proper evidence. If, how-
not had on review, there will be an abuse of
ever, on due application, such a hearing is
the discretionary power lodged in the full
board by the provisions of said section, as
will warrant a reversal of the award so
made, on an appeal to this court.
Spoke, etc., Co. v. Loper (1917) 65 Ind. App.

479, 117 N. E. 527.

Bimel

[2] One of the material issues involved in the application before us relates to the relation of appellant and appellee at the time of the alleged injuries; the contention of the former being that appellee was an independent contractor, while the contention of the latter is that the relation of master and serv

ant existed between them. On the original hearing before the single member of the board, appellant testified in substance, among

other things, that a number of checks there present, represented amounts which he had theretofore paid appellee for work, and made "Sec. 59. The board, by any or all of its a request to introduce the same in evidence. members, shall hear the parties at issue, their Appellee objected to their introduction, and representatives and witnesses, and shall deterthe member of the board, by a statement mine the dispute in a summary manner. The award shall be filed with the record of promade in response to said request and objecceedings, and a copy thereof shall immediately tion, in effect, although not formally, refused be sent to each of the parties in dispute. appellant's request. Appellant afterwards Section 60. If an application for re-offered in evidence a check, identified as Exview is made to the board within seven days hibit No. 1, drawn by himself in favor of apfrom the date of an award, made by less than pellee for $5, bearing the following pencil all the members, the full board, if the first notation, "Loyd No. 26 Union Soap Co. hearing was not held before the full board, shall Stack," and the indorsements of appellee and review the evidence, or, if deemed advisable, hear the parties at issue, their representatives others. The evidence shows that this check and witnesses as soon as practicable and shall was given for labor performed by appellee make an award and file same, with a finding for appellant. The time of its performance of the facts on which it is based, and the rul- was evidently prior to the day of appellee's ings of law by the full board, if any, and send alleged injuries, although there is evidence a copy thereof to each of the parties in dispute, tending to show the contrary, as it bears a in like manner as specified in the foregoing secdate 18 days prior thereto, is for a larger tion." Acts 1917, p. 154. amount than the evidence shows was paid It thus appears that, when an application for his work on that day, and bears a nofor compensation is filed and the matter is tation indicating that the work for which taken up for determination by any or all of payment was thereby made was done at an the members of the board, as provided in entirely different place from that at which said section 59, a hearing of "the parties at appellee worked on the day he received his issue, their representatives and witnesses," | alleged injuries. The single member of the

board excluded this evidence, and at the ing parties on the hearing, and one which conclusion of the hearing made an award the evidence adduced did not render free in favor of appellee. On April 25, 1924, ap- from doubt. There was and is no contention pellant filed an application for a review by that the arrangement, under which appellee the full board, and also a written request was working at the time he received his alfor permission to introduce the evidence of leged injuries was any different from that unappellant, together with certain checks, ex- der which he had theretofore been working cluded as irrelevant by the single member for appellee, and hence the excluded evidence of the board hearing the application, in order would have been relevant as tending to prove to show that appellee was an independent the relation of the parties at the time in contractor at the time he received the in- question, which, of course, as appellee conjuries of which complaint is made. The full tends, was the time with which the board board denied appellant's said request, and, was directly concerned. This is in accord without hearing further evidence, reviewed with the well-established rule governing the that given before the single member of the production of evidence, subject to certain board, and made the award in favor of ap- exceptions not pertinent here, that the evi pellee, from which this appeal is prosecuted. dence offered must correspond with the alAppellant contends that the checks in ques-legations and be confined to the point in istion, had they been admitted, taken in con- sue. It is not necessary, however, that the nection with his evidence as to the work evidence should bear directly upon the issue. done in consideration therefor and the time It is admissible, if it tends to prove the isconsumed in the performance thereof, would sue or constitutes a link in the chain of have shown that appellee was an independ- proof; although, alone, it might not jusent contractor, and not his employee, at the tify a verdict in accordance with it. Under time he received his alleged injuries; that, this rule, all facts and circumstances upon with such a showing, no award in favor of which any reasonable presumption can be appellee would have been made against him, founded, as to the truth or falsity of the and hence he was not accorded such a hear-issue or disputed fact, are admissible in eviing as the statute contemplates. It is clear to us that the evidence offered was, not only proper, but of such a character that its re"If the evidence offered conduces in any reajection by the single member of the board sonable degree to establish the probability or may have led to an erroneous award, depend- improbability of the fact in controversy, it ing on the weight which might have been should go to the jury. It would be a narrow given thereto, when considered in connection rule, and not conducive to the ends of justice, with all of the other evidence adduced. The to exclude it on the ground that it did not affull board, by its denial of appellant's writ- ford full proof of the nonexistence of the disAny circumstances that ten request to introduce additional evidence puted fact. on review, failed to render harmless the of the fact to be tried, are to be received and may afford a fair and reasonable presumption error committed by the single member, as left to the consideration of the jury, who are it might have done by granting such request. to determine upon their precise force and This denial, under the circumstances shown. effect, and whether they are sufficiently satisconstitutes such an abuse of the discretion-factory to warrant them in finding any of the ary power lodged in the full board by said section 60 of the Workmen's Compensation Act as to require a reversal of the award made by it. Bimal Spoke Co. v. Loper,

supra.

Appellee contends that the evidence in question was wholly irrelevant to any issue before the board, as the checks involved, at most, only related to other work done for appellant by appellee, upon occasions prior to the one on which he received his injuries, and in no way connected therewith. We cannot agree that such checks were irrelevant. One of the controlling issues to be determined involved the relation of appellant and appellee, at the time of the latter's alleged injuries. There was substantial evidence tending to show that for some time past appellee had been doing similar work for appellant, under some kind of a continuing arrangement. Whether this work was done by appellee as an independent contractor or as an employee of appellant was a question in dispute between the contend

dence. As applicable to jury trials, it has been said:

facts in issue." Dougherty v. White, 2 Boyce (Del.) 316, 80 A. 237, Ann. Cas. 1914C, 876; 10 R. C. L. 927; 22 C. J. 748; Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 96 A. 704; Presby v. Melgard, 48 Wash. 689, 94 P. 641; Bowers v. Pixley (Neb.) 197 N. W. 410; San Antonio, etc., Co. v. Higdon, 58 Tex. Civ. App. 83, 123 S. W. 732; Robertson v. O'Neill, 67 Wash. 121, 120 P. 884.

The following cases in this state are in accord with the rule stated: Knapp v. State (1906) 168 Ind. 153, 79 N. E. 1076, 11 Ann. Cas. 604; Moore v. Schrader (1895) 14 Ind. App. 69, 42 N. E. 490; Hufford v. Neher (1896) 15 Ind. App. 396, 44 N. E. 61; Lake Erie, etc., R. Co. v. Howarth (1920) 73 Ind. App. 454, 124 N. E. 687, 127 N. E. 804.

[3] Our attention is called to the pencil notation on the check offered in evidence, which is shown was placed thereon by appellant in the absence of appellee, after it had been paid, merely as a memorandum. This notation, however, did not warrant its exclusion as evidence. The check, in the pos

an

(145 N. E.)

session of appellant after its payment, was merely evidence of a completed and fully executed transaction-a mere memorial of accomplished and existing fact-and hence not governed by the rules with reference to the alteration of executory contracts. 1 R. C. L. 999, 1004; Alabama, etc., Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80. Moreover, appellant was not seeking to establish any right thereby, but merely offered it as evidence of a collateral fact, which he claimed would throw light on a pertinent issue between the parties. But of more significance than either of the above reasons is the fact that it does not appear that the pencil notation became a part of the check, or was ever so intended, or could have been taken as an attempted alteration thereof, with any show of reason, as it clearly appears to be a mere memorandum. Light v. Killinger (1896) 16 Ind. App. 102, 44 N. E. 760, 59 Am. St. Rep. 313; Eaton v. Delay, 32 N. D. 328, 155 N. W. 644, L. R. A. 1916D, 528; Carr v. Welch, 46 Ill. 88; Yost v. Watertown (Tex. Civ. App.) 24 S. W. 657; Maness v. Henry, 96 Ala. 454, 11 So. 410; Johnson v. Parker, 86 Mo. App. 660. Under these circumstances, the pencil notation did not afford a sufficient reason for not admitting | the check, as it was a matter separate and apart from it, and could be eliminated therefrom.

pretation is susceptible of no other reasonable inference than that of negligence on his part, directly contributing to his injury. the question of contributory negligence ceases to be a question of fact for the determination of the jury, uncontroverted fact for a declaration by the but, for the purposes of the case, becomes an court of the law applicable thereto. It is the duty of the court in such case to direct a verdict.

Error to Court of Appeals, Huron County.

Action by Err Lee, administrator, etc., & St. Louis Railway Company. Judgment against the Cleveland, Cincinnati, Chicago for plaintiff was affirmed by Court of Appeals by divided court, and defendant brings error. Reversed and rendered.-[By Editorial Staff.]

The petition in this cause avers the corporate capacity of the defendant; that on the 1st day of August, 1920, the defendant was operating a double-track railroad in an easterly and westerly direction through Huron county, Ohio; that at Dignan's Crossing in that county the tracks crossed at grade a public highway which ran in a northerly and southerly direction; that the southerly track of the defendant company is commonly called the east-bound main track and the northerly track the west-bound main track; that on above date plaintiff's decedent

Award reversed for further proceedings approached the crossing from the south upon consistent with this opinion.

a public highway in a five-passenger automobile; that at the same time a passenger train of the defendant company approached the crossing from the west upon its north

CLEVELAND, C., C. & ST. L. RY. CO. v. erly track; and that as decedent came upon

LEE. (No. 18250.)

(Supreme Court of Ohio. Dec. 9. 1924. hearing Denied Jan. 6, 1925.)

the crossing the passenger train collided with the automobile he was driving, killing him. Re- The petition avers negligence upon the part

(Syllabus by the Court.) 1. Negligence 122(2)—Where plaintiff's evidence raises presumption of his negligence, he has burden to dispel inference, and failure of such proof defeats recovery.

In an action where the negligence of the defendant is admitted or proven, and contributory negligence on the part of the plaintiff is an issue, and the plaintiff's evidence raises a reasonable presumption of negligence on his part, directly contributing to his injury, the burden is cast upon him to furnish proof, as a part of his case in chief, tending to dispel such inference, and a failure to furnish any such proof will defeat a recovery by him and it then becomes the duty of the court to direct a verdict.

gence held question for court.

of the defendant because of the failure to sound whistle or ring bell; because of the dangerous and defective condition of the crossing, by reason of weeds, bushes, trees, and poles on the right of way; because of the elevation of the tracks 25 feet above the natural level of the highway; because of the narrowness

of the passageway over the tracks, the construction of the crossing of loose stones, rough and difficult to travel over, the failure to maintain watchman, gates, or warnings, the operation of the train at dangerous rate of speed, approximately 60 miles per hour, the operation of eastbound train on the northerly track, failure to keep a lookout, and the failure to stop the train after it saw or should have seen plaintiff's decedent upon the tracks.

The answer of the defendant company de

nied negligence on its part, and averred that, even if it were negligent, the collision and death were due to the negligence of decedent. The reply denied the negligence of the decedent.

In an action involving the negligence of the defendant and contributory negligence of the plaintiff when, giving to every portion of the plaintiff's evidence the most favorable interpretation in favor of the absence of negligence on his part, such evidence under such inter- The cause was tried to a jury, and ver

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

diet was rendered and judgment entered for | growing either upon the lands of Mr. Humplaintiff. Error was prosecuted to the Court of Appeals, where the judgment was reversed upon the weight of the evidence upon the subject of the contributory negligence of decedent. The cause was again submitted to a jury which rendered a verdict for plaintiff, and judgment was entered thereon. Error was again prosecuted to the Court of Appeals, where, by a divided court, the judgment was affirmed, the majority opinion stating: