surance; the third alleging a parol gift of , 146 Ind. 77, 45 N. E. 41; Elliott v. Sackett, the two policies of insurance by the deceased 108 U. S. 132, 2 S. Ct. 375, 27 L. Ed. 678; to appellee, and asking a judgment for $7,- Butler v. Barnes, 61 Conn, 399, 24 A. 328; 000, the total amount of the two policies. 12 L. R. A. 273; 34 Cyc. 982. The bank filed special answer to all three [2, 3] Appellant next contends that the paragraphs of complaint, claiming no inter- first and second paragraphs of complaint ask est in the matter in controversy, save that for a reformation of written instruments the sum of the two insurance policies was because of a mistake of law. It is averred held by it, at the request of appellant and in each paragraph that the insured caused appellee, as custodian. To the first and sec an employee of the Insurance Company to ond paragraphs of the complaint appellant prepare him an assignment transferring, asfiled demurrer, which was overruled, to signing, and vesting in appellee entire title which ruling appellant excepted.

to the policy; but that such employee, Appellant filed answer in general denial though intending to prepare and supply an to each paragraph of complaint. Appellant assignment in accordance with the wishes of also filed cross-complaint against appellees, the insured, mistakenly selected and suballeging that appellant was the owner of the mitted to him for his execution a form, then proceeds of said insurance policies, except in use by the company, for assigning policies ing that said policies were assigned to ap- as collateral security for present and future pellee by way of collateral written assign- indebtedness. The insured signed the same, ments for indebtedness. To which cross- believing it to be an absolute assignment of complaint appellee filed answer in general the policy and its proceeds to appellee, and denial. At the trial appellee dismissed as its execution was because of the mutual misto the third paragraph of her complaint. take of the insured and the employee of the

The cause was submitted to the court up- company. It is sometimes most difficult to on the issues formed on the first and second determine whether the mistake claimed to paragraphs of the complaint, and the court have been made is a mistake of fact or of law, found for appellee on each of said para- and in the present case we have a striking ilgraphs, respectively, that the appellee was lustration of the court's difficulty in so deentitled to reformation of the written as- termining. It appears by the complaint that signments set out in said paragraphs, that the insured expressly instructed the emappellee should recover, on the first para- ployee of the insurance company to prepare graph of complaint, $3,000, and on the sec- for him an absolute assignment of the polond paragraph, $4,000; that the bank should icy and of the proceeds to appellee. The inturn over said sums to appellee, and render- sured did not sign what he had intended to ed judgment accordingly. The court found sign, or what he had instructed the agent against appellant on his cross-complaint, and of the company to prepare for him. Though rendered judgment accordingly.

the complaint might have been made plainer Appellant's motion for a new trial was in this regard, we are inclined to hold that overruled, to which appellant excepted. The the averments show that the mistake was rulings of the court in overruling the demur- one of fact and not of law. We may rer to the first and second paragraphs of say, however, that if such holding is a complaint and in overruling the motion for wrong interpretation of the averments of a new trial are the errors assigned.

the complaint, we regard it as harmless [1] Appellant, in presenting error of the as hereinafter appears. In the case of Allen court in overruling his respective demurrers v. Bollenbacher, 49 Ind. App. 589, 97 N. E. to the first and second paragraphs of com- 817, it appears that the preparation of a cerplaint, contends that each of said para- tain deed and agreement was left to a scrivgraphs seeks to add to and enlarge a writ- ener, and that each believed that it was in ten assignment and to make the same an ab- accordance with and expressed their wishes, solute transfer of property, whereas such but that there was a mistake therein which writing was executed as security only, and was not discovered, by reason of which the further contends that, by the averments of instrument did not express the real intention each paragraph of the complaint, appellee of the parties. seeks to contradict and vary the terms of It was sought to reforin the instrument such written instrument. There is no doubt because of a mistake as to its legal effect. as to the general rule with reference to the The court said: merger of parol negotiations in a subsequent written contract. But there are exceptions "But as we see this case, it is one where to such rule, one of which is that it does not the scrivener, through mistake or inadvertence, apply in actions to reform written instru: failed to reduce the actual agreement of the ments for mutual mistake. United States, parties to writing. In such cases 'equity. will etc., Insurance Co. v. Emerick, 55 Ind. App. way of defense to its enforcement, or by can

interfere with the appropriate relief, either by 591, 595, 103 N. E. 435; Jones v. Sweet, 77 cellation or by reformation, to the same exInd. 187, 192; Morris, Administrator, v. tent as if the failure of the writing to express Stern, 80 Ind. 227, 232; Cole v. Gray, 139 the real contract was caused by mistake of Ind. 396, 38 N. E. 856; Smith v. McClain, fact'" (citing authorities).

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Walden v.

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(148 N.E.) The same authority quotes from the case [5] That the policies, being made payable of Adams v. Wheeler, 122 Ind. 251, 23 N. E. I to the estate of the insured, could be by him 760, to the effect that:

assigned, see Brown v. Farmers' State Bank, "It is a well-established principle of equity 70 Ind. App. 182, 123 N. E. 224, and cases jurisprudence, that where through the mutual there cited. There was no error in overmistake of the parties, the form of an instru- ruling the demurrer to the complaint. We ment is such that it does not express the agree- have examined the questions presented by ment as the parties intended it should, the aid | the assignment of error in overruling the of a court of chancery may be invoked to re-motion for a new trial, the substantial ones form the contract or deed (citing authorities]. of which have been considered in considering Courts of equity would be justly subject to re

the court's action in overruling the demurproach if they could afford no relief in cases like the present."

rer to the complaint, and we find no rever

sible error in the court's action. Nothing can in Parish v. Camplin, 139 Ind. 1, 37 N. E. be gained by further considering them. 607, the court, speaking with reference to a The judgment is affirmed. mistake in a deed, says:

"If this was a mistake of law, a mistake as to the legal effect of the deed, it was such an ove as was common to all the parties affected.

* Equity requires an amendment of the BRUCE v. STUTZ MOTOR CAR CO. OF writing that will make the contract what the

AMERICA, Inc. (No. 12208.)
parties supposed it was, and intended it should
be, although their mistake is one of law and (Appellate Court of Indiana, Division No. 2.
not of fact."

June 5, 1925.)
To the same effect, see Radebaugh v.

1. Master and servant Om419 Compensation Scanlin, 41 Ind. App. 100, 82 N. E. 544. In

agreement, not approved by Industrial Board, Skinner, 101 U. S. 577, 25 L. Ed. not "award" reviewable. 963, it is held that:

A compensation agreement, which is not "Where an instrument is drawn and executed approved by the Industrial Board, is not an that professes or is intended to carry into award which is reviewable, in view of Workexecution an agreement, which is in writing or men's Compensation Act, $ 45, as amended by by parol, previously made between the parties. Acts 1919, c. 57, § 1. but which by mistake of the draftsman, either [Ed. Note. For other definitions, see Words as to fact or law, does not fulfill or which vio- and Phrases, First and Second Series, Award.] lates the manifest intention of the parties to the agreement, equity will correct the mistake 2. Master and servant Cun419-Order of in. 80 as to produce a conformity of the instrument dustrial Board not condition to exercise of to the agreement."

privilege to reduce compensation by procur.

ing suitable work. [4] By these authorities, it is apparent Under Workmen's Compensation Act, $ 32, that, whether the mistake was one of fact or order of Industrial Board is not necessary, of law, it could be corrected so as to make as a condition to the exercise by the employ. the assignment conform to the intention of er of his privilege, to reduce compensation by the parties. It is urged by appellant that procuring for injured employé suitable emplogappellee was but a mere volunteer, and that ment and board has nothing to do in that conas such she cannot maintain an action to nection until employment has been procured reform the assignment.

and refused.

If she was but a volunteer, appellant's position would

3. Master

servant ww419-Industrial tainly be well taken. Froman v. Froman, 13 Board without jurisdiction to hear applica. Ind. 317; Randall v. Ghent, 19 Ind. 271; tion for reduction of award, until employMason v. Moulden, 58 Ind. 1; 34 Cyc. 928, ment is procured and refused.

Under Workmen's Compensation Act, § 32, But the consideration in each of the assign- the Industrial Board is without jurisdiction to ments, which assignments are made exhibits hear employer's application for reduction of to the complaint, was $1. It has been held award based on employé's capacity for suitable by the Supreme Court of this state that such employment, until proffered employment is proa consideration is sufficient to justify an ac

cured and refused.
tion for the reformation of an instrument.
Mason v. Moulden, supra. If there is any

Appeal from Industrial Board,
consideration at all it will be sufficient for Application under the Workmen's Compen-

Comstock v. Coon, 135 Ind. sation Act by the Stutz Motor Car Company 40, 643, 35 N. E. 909; Baker v. Pyatt, 108 of America, Inc., as employer, to review an Ind. 62, 72, 9 N. E. 112; Citizens' Nat. Bank award to William H. Bruce, employé. From Judy, 146 Ind. 322, 332, 43 N. E. 259; the award of the Industrial Board modifySt. Clair v. Marquell, 161 Ind. 56, 66, 67 N. ing the original award, the employé appeals.

Reversed with directions. PmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.--11

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that purpose.

E. 693.

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William H. Bruce received a compensable | until the defendant procure for him employinjury while in the employ of the Stutz Mo- ment suitable to his condition, provided that the tor Car Company and thereafter, on June total compensation hereby awarded, including 28, 1923, the employer and employé enter that heretofore paid under the agreement of ed into an agreement by which compensation June 28, 1923, shall not exceed $5,000.

It is further ordered that if the defendant was to be paid at the rate of $13.20 per week procure for the plaintiff work suitable to his during temporary disability, not to exceed condition and the plaintiff refuses to accept the statutory period, beginning June 22, the same, then plaintiff's compensation shall 1923. There is a recital in the transcript terminate from and after the date of the rethat the agreement was filed with the in- fusal. dustrial board on July 26, 1924, but it ap

"It is further ordered that the defendant have pears that the agreement has never been ap- credit on this award for all compensation here

tofore paid." proved by the Industrial Board.

On July 28, 1924, the employer filed an The undisputed evidence shows that on application for a review of the award on May 23, 1923, the employé was hit on the account of changed conditions. It is impos- left side of the head with the iron handle of sible to determine from the transcript what a windlass. The blow lacerated the skin change in the conditions the employer relied above the left side of the forehead, and left on as constituting ground for relief from him dazed and unconscious. The injury rethe payment of compensation. However, it sulted in a deplorable physical and mental appears from the briefs that the employer's condition which we need not specifically decontention before the Industrial Board was scribe. that the employé's disability has ceased. The appellant contends (1) that there is no

On September 19, 1924, the petition was evidence to sustain the finding that there heard by one member, who five days there has been a change in condition; (2) that the after made a finding and an award, which is | Industrial Board was not authorized to substantially the same as the finding and order the appellant to accept other employaward afterward made by the full board on ment when procured by the employer, on review. The full Industrial Board reviewed penalty of forfeiting his compensation; and the evidence adduced at the first hearing, (3) that the board erred in rejecting the adrefused to hear additional evidence offered ditional evidence offered. by the employé, and made the following

J. Fred Masters, of Indianapolis, for apfinding, award, and order :

pellant. "The full board

finds that on May

White, Wright & McKay, of Indianapolis, 23, 1923, plaintiff was in the employment of for appellee. the defendant and had a weekly wage in excess of $24; that on that date he received a per

DAUSMAN, J. [1] In determining whethsonal injury by an accident arising out of and in the course of his employment, of which the

er or not there has been a change in condidefendant had knowledge and furnished medical tions, the inquiry must necessarily relate to treatment; that on June 28, 1923, plaintiff and a definite period of time. That period is defendant entered into a compensation agree the time which has elapsed since the last ment whereby the defendant agreed to pay to preceding adjudication—that is to say, since the plaintiff compensation at the rate of $13.20 the conditions were last officially determinper week, beginning June 22, 1923, and con-led. tinuing during temporary disability; a copy of been approved by the Industrial Board, and

The compensation agreement has not the agreement was filed with the Industrial therefore has not become an award. It folBoard on July 26, 1924: that under the agree-lows that the petition for a review of "the ment the defendant paid to the plaintiff compensation up to and including July 27, 1924; award” on account of a change in condithat on July 28, 1924, the defendant filed, tions, was premature. There was no award with the Industrial Board, its application for to review. Section 45, Compensation Act the review of the award on account of a change (Acts 1919, p. 167); Pedlow v. Swartz Elecin conditions, alleging that the employé's disa-tric Co., 68 Ind. App. 406, 120 N. E. 603; bility on account of the injury bad ended since Indianapolis Bleaching Co. v. Morgan, 75 the date of the award. And the full board finds that defendant's

Ind. App. 672, 129 N. E. 644. application for review on account of a change

[2] The spirit of our compensation law is in conditions should be granted; that there has that total disability is to be determined pribeen a change in plaintiff's condition, in that marily by reference to the kind of work the plaintiff was at the time of the hearing on Sep- employé was doing at the time of the injury. tember 19, 1924, able to do work of a light It is also the spirit of the compensation law character, although he was not able to go in that compensation for total disability shall a factory and work where there was machinery. continue until the employé is able to resume,

"It is therefore considere and ordered that the plaintiff be and is hereby awarded against at full wages, work of the same kind and the defendant, compensation at the rate of character as that in which he was engaged $13.20 per week, beginning June 22, 1923, and at the time of the injury. Artman's Manual, to continue so long as the plaintiff is totally p. 145. That proposition is subject to the disabled for work, on account of his injury, or qualification stated in section 32 of the Com

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(148 N,E.) pensation Act (Acts 1915, c. 106). If the in- not reversible error to overrule motion to strike jured workman is able to do work of a dif-out petition of guardian for leave to appear as ferent character and thereby earn some

amicus curiæ or in permitting him to be heard wages, without injury to himself, then it is respecting vacation of ex parte order of adop

tion. his duty to accept that kind of employment when procured for him; and if he refuses 3. Adoption 7-Guardian of child cannot be employment suitable to his capacity, his party to adoption proceeding or be given any compensation shall cease during the time he

right to appear and object thereto. declines the employment. That means that

Guardian of child cannot be party to adopif the employer is of the opinion that in tion proceeding or be given any right to appear truth the employé is able to do work of a

and object thereto. different character, and desires to diminish, 4. Adoption om 14-Order of adoption and powe on that basis, the amount of compensation er of court over it are governed by same rules for which he is liable, it is his privilege to of law as other judgments and decrees. procure for the workman employment of such Adoption proceedings are judicial in chara character as, in his judgment, is suitable acter, and order therein and power of court to the workman's capacity. No order of the over it are governed by same rules of law as Industrial Board is necessary to confer that are all other judgments and decrees. privilege upon the employer. The law does 5. Judgment w342(2) - Filing of application that.

after judgment for leave to be heard as friend [3] In that respect there is nothing for the

of court does not give eourt any power over board to do until employment has actually

judgment at subsequent term. been procured and refused. Should a dispute

Filing of application after judgment by arise as to whether the employment thus stranger to record, asking leave to be heard

as friend of court, did not keep cause in court procured is suitable to the workman's capac

so as to give it any power over judgment at ity, if he have any capacity, it will be the subsequent term. duty of the board to decide the controversy when properly presented. It follows that all 6. Adoption Om 16-Court cannot vacate its de

cree of adoption after expiration of term, the board has done and all it has attempted to do with respect to this feature is prema: adoption during term at which it was rendered

Court has power to vacate its decree of ture-mere speculation. No employment had but not thereafter, and, if during term court been procured, and none refused. That en- thought there was probability that it erred, it tire controversy is purely imaginary. There should have vacated order before end of term was nothing legitimately before the board and continued matter, if need be, to next term. under section 32.

7. Adoption 16-Guardian's application to The conclusion we have reached makes it

appear as amicus curiæ held not to give court unnecessary to consider the third contention. power to vacate order of adoption after close

The award is reversed, and the Industrial of term.
Board is directed to dismiss the petition, at Application by guardian of child to appear
the cost of the appellee.

as amicus curice for purpose of vacating ex
parte order of adoption, rendered during term,
did not give court power to vacate order after
close of term.

8. Adoption Cl-Right of adoption unknown In re PERRY. (No. 12232.)

at common law.

Right of adoption, conferred by Laws 1855, (Appellate Court of Indiana. June 2, 1925.) c. 56, was unknown at common law. 1. Amicus curiæ m3_"Amicus curiæ" defined. 9. Adoption froll-Petition for adoption held

sufficient. "Amicus curise" is one who, as stander-by,

Allegation of petition for adoption that when a judge is in doubt or mistaken in matter child was in care and custody of its guardian of law, may inform court on case then before it, then residing in county where petition was filed but he is not party to suit, and has no control held sufficient in form to give court jurisdiction over it, and he cannot file pleadings or motions of adoption proceedings, under Laws 1855, c. of any kind nor reserve exceptions to any ruling 56, § 1 (Burns’ Ann. St. 1914, § 868). of court nor prosecute appeal.

[Ed. Note.-For other definitions, see Words 10. Evidence Emo 10(2)-Court judicially knows and Phrases, First and Second Series, Amicus

that Zionsville is in Boone county,

Court judicially knows that Zionsville is in

Boone county.
2. Amicus curiæ aml-No party has, cause of
complaint, if court grants stranger privilege II. Adoption

15-Presumed that evidenco of being heard.

justified finding that residence of child's No party to action has cause of complaint, guardian was residence of child. if court grants stranger privilege of being heard It is presumed that petitioner for adoption as amicus curiæ, since no action of stranger can introduced sufficient evidence at hearing to jug. affect legal rights of party, and it was therefore tify court in finding that residence of child's

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

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guardian, who lived in same county as petition- , William E. Myers as guardian at his home in er, was residence of child.

Zionsville; that the adopted father of said 12. Adoption om 14-Order giving care and cus

child lived in Grant county, Ind., and had tody of child to guardian is controlling as given his written consent that the said child between adopting parent and guardian. be adopted by the petitioner. The verified

Order giving care and custody of child to consent of Earl C. Perry to said adoption guardian is controlling as between adopting by the petitioner was also filed with the parent and guardian.

clerk. 13. Guardian and ward 29—Whether guard.

The court on said March 1, 1924, entered ian or adopting parent shall have custody of an order of adoption in accordance with the child determined by best interests of child. petition, and ordered that the petitioner from

Court, in determining whether guardian or that time have the care and custody of said adopting parent shall have custody of child, child. Two weeks later, and within the term will be guided by best interests and welfare of at which the order of adoption was made child.

and entered, William E. Myers filed a veri. 14. Domicile 5–Child's residence follows fied application asking leave to appear as that of guardian having legal custody.

amicus curiæ, for the purpose of presenting Where custody of child is legally transferred to the court certain facts about which he to guardian, residence of child follows that of believed the court should be more fully inguardian.

formed, and which he believed would lead 15. Guardian and ward em 29–Neither adopt. In his application Mr. Myers stated he was

the court to vacate the order of adoption. ing parent nor guardian has absolute right to custody of child.

an uncle of said child and its duly appointNeither adopting parent nor guardian has ed guardian acting under appointment of the absolute right to custody of child, but it is probate court of Marion county; that she proper for court to decide if either shall have had been an inmate in his home for three custody.

years, during which time he had cared for Nichols, J., dissenting in part.

and schooled her at his own expense; that

he was able financially and morally fit to Appeal from Circuit Court, Boone County; have her care and custody; that there was Frank E. Hutchinson, Judge.

an agreement between him and the relatives In the matter of the adoption of Mary by any action to change her residence or

of said child that, if at any time there should Elizabeth Perry by May H. Suter. From a

control, he should be notified, and that no judgment vacating and setting aside an order of adoption and dismissing her petition,

such change should be had without his con

sent; that he had no notice or knowlpetitioner appeals. Reversed, with directions.

edge of said adoption proceeding until said

petitioner appeared at his home with the Bell, Kirkpatrick, McClure & Elliott, of order of adoption and demanded the immeKokomo, and Roy W. Adney, of Lebanon, for diate possession of such child; that the peappellant.

titioner had no permanent home other than a Frank S. Roby and R. P. Bundy, both of boarding house; that she did not intend to Zionsville, for appellee.

keep said child permanently and make a

home for her, but that it had been and was MCMAHAN, J. On March 1, 1924, May H. her intention to place such child in a home Suter, hereafter designated as petitioner, in Chicago, Ill., among strangers to the court, filed her petition in the Boone circuit court and about whom the court knew nothing; for the adoption of Mary Elizabeth Perry. that the adoptive father, Earl C. Perry, was

The petition stated that the petitioner was a bona fide resident of Grant county, Ind.; a school teacher, residing in Howard coun- that the consent of said adoption was proty, Ind.; that Mary Elizabeth Perry was a cured from said Earl C. Perry by purchase female child, eight years of age, the child of and payment of money, and that, had the Ruth E. Perry and Samuel P. Weller, and facts, including the want of jurisdiction of born in lawful wedlock; that her father died said minor, been called to the attention of in 1916; that his widow, the mother of said the court, and the facts concerning the best child, later married Earl C. Perry; that interest of said child been given the court, thereafter said Mary E. Perry was adopted said adoption would not have been granted. by said Ruth E. Perry and her husband, On order of court notice was given the peEarl C. Perry, and her name changed to titioner, May H. Suter, of the filing of such Mary Elizabeth Perry by the county court of application by Mr. Myers, and that the court Cook county, Ill.; that Ruth E. Perry, the would hear such application April 7, 1924; mother, died in 1922; that thereafter Wil- that being the first day of the next regular liam E. Myers of Zionsville, Ind., was ap- term of the court. On April 7 May H. Suter pointed guardian of said child; that said appeared and filed a motion to strike the child was in the care and custody of said application of Mr. Myers from file. On April

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

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