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(146 N.E.)

was to make an expenditure of not less than consummate the deal, and surrendered pos$1,800 in repairs, including repairs on the session to appellants. In an action to foreheating plant. Denying the right to a me- close a mechanic's lien for material and lachanic's lien, appellant contends that mate- bor furnished, the Smiths, appellants, conrialmen and laborers making improvements tended, as here, that they did not authorize on real estate, under a contract with the ten- the furnishing of the material used and the ant, cannot acquire a mechanic's lien against labor performed; that they were the owners the interest of the landlord, and that the fact at the time the material and labor was furthat the landlord had knowledge of and con- nished; and that a foreclosure was unwarsented to the action of the tenant in making ranted. But the court held in effect, that the improvements, will not estop the landlord the contract by which the appellants requirfrom denying liability. Appellant cites nu- ed the Smiths to expend the $500 amounted merous authorities that sustain this proposi- to more than mere inactive consent, and sustion of law, the latest of which is Holland v. tained the trial court in its decision foreFarrier, 75 Ind. App. 368, 130 N. E. 823. But closing the mechanic's lien. these authorities, though sound in principle, are not in point under the circumstances of this case. Here, by the express terms of the lease, appellee Powl was, as a part of the consideration for the lease, to make repairs on the building, including repairs on the furnace, of not less than $1,800. Appellant, contending that she owes nothing to appellee Powl, so contends because the repairs to the furnace were to be made under the foregoing provision of the lease. Under such circum-ed upon appellant's cross-complaint against stances, the rule that must govern is thus stated in Arctic Lumber Co. v. Borden, 211 F. 50, 127 C. C. A. 486:

"It is the general rule that where a lease contains a provision authorizing the lessee to make improvements 'by deducting the cost thereof from the rent, or where part of the consideration of the lease is the making by the lessee of improvements which become a part of the realty, or that the improvements made by the lessee shall revert to the lessor, a mechanic's lien may attach to the property for work done or materials furnished, pursuant to a contract with the lessee.'"

Other authorities to the same effect are: Myers v. Joseph A. Strowbridge Estate Co., 82 Or. 29, 160 P. 135; Ward v. Nolde, 259 Mo. 285, 168 S. W. 596; Carey-Lombard Lumber Co. v. Jones, 187 Ill. 203, 58 N. E. 347, 350; Hacken v. Isenberg, 210 Ill. App. 120; Barclay v. Wainwright, 86 Pa. 191; Hall v. Parker, 94 Pa. 109; Denniston, etc., Co. v. Brown, 183 Iowa, 398, 167 N. W. 190; Laird v. Moonan, 32 Minn. 358, 20 N. W. 354.

Numerous other authorities might be cited, but we deem these sufficient, as this court, in Rader v. Barrett, 59 Ind. App. 27, 108 N. E. 883, has announced the same principle. In that case, one Smith and his wife held a contract of purchase from appellants for the real estate upon which it sought to foreclose a mechanic's lien, one of the conditions of which contract was that the Smiths were to expend, within 60 days from the date of the contract, $500 for the improvement of the property, and appellants were not to be liable therefor. If the Smiths failed to consummate the purchase, they were to forfeit the sum so expended. They did so fail to

[2, 3] Appellant has assigned as error the action of the court in rendering judgment for appellee Ida Powl on the cross-complaint of appellant against said appellee. There is no statute that authorized such an assignment of error and no question is presented thereby. Under appellant's assignment that the court erred in overruling her motion for a new trial, no question has been presented as to the decision of the court upon the issues join

appellee Powl. We therefore do not consider
the merits of the controversy between appel-
lant and appellee Powl on such cross-com-
plaint. Numerous objections are made to the
admissibility of evidence, but we find no ob-
jection to any of such evidence, and no excep-
tion by appellant to the action of the court
in admitting it. The error, therefore, in
that regard, if any, is waived.
Judgment is affirmed.

DAVIS, Director General of Railroads, v.
STEELE. (No. 11874.)

(Appellate Court of Indiana, Division No. 2.
Feb. 4, 1925.)

1. Evidence 69-Rules presumed to have been filed with Interstate Commerce Commission and to have been published as required by law.

In carrier's action to recover demurrage, rules authorizing carriers to charge for storage in absence of evidence to contrary would be presumed to have been filed with Interstate Commerce Commission and to have been published as required by law.

2. Carriers 100 (1) -Demurrage rules extending free time for weather conditions, inapplicable where delay caused by consignee's inability to receive shipment.

Carrier's demurrage rules, providing that when condition of weather made it impossible to unload cars without serious injury to freight free time should be extended, was inapplicable streets, because consignee, who had no storage to delay in unloading car of oil for use on facilities, could not, under his contract, place oil on streets while it was raining or while streets were not in fit condition due to rain.

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

3. Appeal and error 758(1) — Appellate Court not required to pass on question as to which no claim made.

In carrier's action to recover demurrage, reasonableness of time allowed for loading and unloading cars, and charge made for detaining them beyond that time, was not required to be passed on by Appellate Court, where no claim was made in brief that either time or charge was unreasonable.

4. Carriers 196-Evidence held insufficient to excuse delay in unloading car of oil.

In carrier's action to recover demurrage for delay in unloading car of oil, evidence held insufficient to excuse delay of approximately a month under rule extending time for bad

weather.

"When the condition of the weather during the prescribed free time is such as to make it impossible to employ men or teams in loading or unloading, or impossible to place freight in cars, or to move it from cars, without serious injury to the freight, the free time shall be extended until a total of 48 hours free from such weather interference shall have been allowed."

The rainfall during the time the car of oil was on the track for unloading, expressed in inches was as follows: April 29, .52; April 30, 1.06; May 1, 1.05; May 5, 45; May 7, .61; May 8, .37; May 16, .19; May 19 to 25, from .06 to .96 inches. No rain fell May 2, 4, 9, 11, 12, 13, 14, 16, and 17. On

May 3, 6, 10, and 15 there was a bare trace.

Appeal from Circuit Court, Gibson Coun- This evidence as to rainfall related to the ty; Robt. Baltzell, Judge.

Action by James C. Davis, Director General, etc., against Charles A. Steele. From a judgment for defendant, plaintiff appeals.

Reversed, with directions.

city of Princeton, which is 12 miles west of Oakland City. There were no storage tanks at Oakland City for the storage of the oil or in which it could be stored. It was un

loaded from the car into a tank wagon and spread on the streets. Oil placed on the streets when they are wet and muddy will not readily penetrate the surface, but a large portion thereof will run off. For this reason the superintendent refused to permit appelClaude A. Smith, of Princeton, for appel- lee to put the oil on the streets when it was

Alex P. Humphrey and Edw. P. Humphrey, both of Louisville, Ky., John D. Welman, of Evansville, and Embree & Embree, of Prince ton, for appellant.

lee.

MCMAHAN, J. Complaint by appellant to recover demurrage on a car of oil shipped in interstate commerce to appellee at Oakland City, Ind., and which had been detained by appellee at Oakland City on the tracks of the Southern Railway from April 29, 1919 to May 26, 1919.

raining or when they were wet or muddy. There is no evidence showing what days the superintendent allowed appellee to place the oil on the streets. The only evidence bearing on this is, that appellee finished unloading the car May 26.

Appellee contends that there is no evidence showing that the rules authorizing appellant to charge for storage were ever filed with and approved by the Interstate Commerce Commission and that, in the absence of such evidence there can be no recovery.

The undisputed evidence shows that appellee had entered into an oral contract with the municipal authorities of Oakland City to oil the streets of that city. The oil was to be The Supreme Court of the United States, put on the streets in good condition, in good in Southern Pac. Co. v. Stewart, 245 U. S. weather, when the streets were not muddy | 359, 38 S. Ct. 130, 62 L. Ed. 345, after calling and when it was not raining. The super- attention to the fact that the Carmack intendent of streets was to determine and de- Amendment required a carrier receiving cide when the weather was fit for the plac- property for interstate transportation to ising of the oil on the streets. A tank car load-sue a receipt or bill of lading, said: ed with oil was shipped to appellee at Oak"While there is no specific allegation in the land City from a point in Illinois. This car complaint that such bill or receipt arrived at Oakland City on the morning of was issued, as the law makes it the duty of April 29, 1919, and was placed for unload-the carrier to issue the same the presumption ing at 9 a. m. of said day. Appellee received is that such duty was complied with." notice at 11 a. m. of said day of the arrival

And in American Ry. Exp. Co. v. Linden

of the car and that it had been placed for unloading. It was not unloaded until Mayburg, 260 U. S. 584, 43 S. Ct. 206, 67 L. Ed.

26, 1919, at 6 p. m.

The demurrage rules of appellant allowed

48 hours free time beginning at 7 a. m. the day after notice for unloading had been given. The rules provided that demurrage charges after the expiration of the 48 hours free time should be as follows: For each of the first four days $3, for each of the next three days $6, and for each succeeding day $10. Another rule provided that:

414, the court, quoting from Cincinnati, etc., v, Rankin, 241 U. S. 319, 36 S. Ct. 555, 60 L

Ed. 1022, L. R. A. 1917A, 265, said:

"It cannot be assumed, merely because the contrary has not been established by proof, that an interstate carrier is conducting its affairs in violation of law. Such a carrier must comply with strict requirements of the federal statutes or become subject to heavy penalties, and in respect of transactions in the ordinary course of business it is entitled to the pre

(146 N.E.)

sumption of right conduct.' It is a rule of the weather conditions at Oakland City. We general application that 'where an act is done observe, however, that the evidence shows which can be done legally only after the per- that there was no rain at Princeton after formance of some prior act, proof of the lat- May 8 until May 19, except a mere sprinkle er carries with it a presumption of the due on May 10 and 15, and a rainfall of nineperformance of the prior act.'" teen-hundredths of an inch on May 16. Even if the condition of the weather at Oakland City was the same as it was at Princeton it would not have been sufficient excuse for not unloading the oil.

And continuing the court said:

"In the absence of proof to the contrary, we therefore indulge the presumption that in basing its transportation charges upon the values recited in the receipt, the petitioner had due authority."

[1] In harmony with the rule announced in these cases we hold that the rules introduced in evidence, in the absence of any evidence to the contrary, are presumed to have been filed with the Interstate Commerce Commission and to have been published as required by law.

[2] Appellee next refers to the rule extending the prescribed free time when the condition of weather is such as to make it impossible to employ men and teams in unloading freight or is such as to make it impossible to remove the freight without serious injury to the freight, and contends that in order to make that rule apply to the case at bar, it is not necessary that it should have rained all the time, but that if the streets were so wet and muddy that the placing of the oil thereon would have destroyed the use of the oil, that is such a "serious injury to the freight," under the rule as will extend the free time. Appellee makes no claim that he could not have employed men and teams to unload the oil. His contention is that, under his contract, he was not to put the oil on the streets while it was raining, or when the streets were not in a fit condition because of rain; that it was for the superintendent of streets to determine when the streets were in proper condition to place the oil on them, and that he distributed the oil every day when permission was given him to do so.

The weakness of appellee's condition lies in the fact that his failure to unload the oil was not that the condition of the weather rendered it impossible for him to do so without serious injury to the oil. The trouble was occasioned by the fact that he was not prepared to receive and unload it. He had no storage facilities and for that reason was obliged to permit it to remain in the car until the superintendent gave him permission to place it on the streets. The evidence does not disclose the days when appellee was given permission to place the oil on the streets; the days when he distributed the oil; the number of hours which he worked on the days when it was fit to distribute the oil; or the number of days that it would have been required to distribute it if he had worked steadily and the streets had been in fit condition for oiling. There is no evidence as to

[3] Appellee, under the heading of "Points and Authorities," says:

"Whether the time allowed for loading and unloading cars, and the charge made for detaining them beyond that time, are reasonable is a question of fact."

No claim is made that either the time or charge is unreasonable, and we are not required to pass upon the reasonableness or unreasonableness of the rules relating to those questions.

[4] The evidence is not sufficient to excuse the delay in unloading the car. The cause is therefore reversed, with directions to sustain the motion for a new trial and for further proceedings.

WESTERN UNION TELEGRAPH CO. v.
OWENS. (No. 12083.)

(Appellate Court of Indiana. Feb. 5, 1925.)
1. Master and servant 416-Petition for re-
view before Industrial Board proper though
made more than seven days after award 'by
single member.

Where employer's attorneys had no notice or knowledge that award had been made and filed by single member of Industrial Board until more than seven days had elapsed, employer's petition for review by full board, though made more than seven days after such award was filed, was properly sustained, notwithstanding Workmen's Compensation Law, § 60.

2. Master and servant ~417(5)—Appellate court justified in reversing compensation case on error confessed where appellee has not filed brief on merits.

Where claimant has not filed brief on the merits on employer's appeal from award of Industrial Board in compensation proceedings, the appellate court would be justified in reversing the case on error confessed.

3. Master and servant 373-Employer should protect himself from consequences of horse play among employees by rules.

Under Workmen's Compensation Act, § 8 as amended by Laws 1919, c. 57, employer to protect himself from consequences of horse play among employees should adopt and enforce rules against such play.

4. Master and servant 375(1)-Injury to messenger boy attempting to climb fire escape while at play held not compensable.

Injury to messenger boy in playful attempt to climb fire escape on building near

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

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place of employment, held not compensable un- | which accompanied said answer, that said der Workmen's Compensation Act, though no rule had been adopted prohibiting boys from playing on fire escape.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Ellis Owens for compensation for injuries, opposed by the Western Union Telegraph Company, employer. Award for claimant, and the employer appeals. Reversed and remanded.

firm of attorneys were representing appellant in resisting said application. It further appears that said firm of attorneys were present at the hearing before the single member of said board at the city of Vincennes and represented the appellant at such hearing; that when the award by the single member who heard said cause was made. notice thereof was not sent by the secretary of said Board to the appellant at its office in New York City, nor was any notice sent

Clint K. Tharp and C. G. Gardiner, both to Messrs. Tharp and Gardner, its attorneys of Washington, Ind., for appellant.

ENLOE, J. In December, 1923, the appellee, who was, at that time 17 years of age, was in the employ of appellant as a "messenger boy," working at and out of the city office of appellant which was located on North Third street in the city of Vincennes. On the 14th day of December, 1923, during the hours of his service for appellant, he received a personal injury by accident. On December 17, 1923, the employer made a report of said accidental injury to the Industrial Board, and therein disclaimed liability on account of said accidental injury, claiming that said accident did not arise out of the employment of said appellee; it also stated in said report that its office was 125 W. Broadway, New York City.

On April 3, 1924, the appellee filed his application for an award of compensation on account of his said injuries. To this application the appellant filed an answer in denial, and thereafter, on April 30, 1924, said cause was heard by a single member of said Board, and on May 8, 1924, said Board, by its said member who heard the matter, made an award of compensation to said applicant. On May 19, 1924, the appellant filed its application for a review of the proceedings and award, which application was supported by affidavit and which application was by said Board granted, and said cause was reviewed by the full Board, which review resulted in an award of compensation by the Board, by a majority of its members, from which award this appeal is prosecuted.

herein, at Washington, Ind., and that said
firm of attorneys had no notice or knowl-
edge that any award had been made and filed
by the said single member of said Board, un-
til more than seven days had elapsed after
said award had been filed.
circumstances the Board had authority and
was fully justified in sustaining said applica-
tion for a review. In re Ale, 66 Ind. App.
144, 117 N. E. 938. The motion to dismiss is

overruled.

Under these

The only remaining question we have to consider is: Did the accident in question arise out of appellee's employment?

[2] The appellee has not favored us with any brief upon the merits of this case, and the appellant in its brief having shown prima facie error, we would, under the authorities, be fully justified in reversing this cause as upon "error confessed," but we have, however, gone through the record and considered the matter upon its merits.

Concerning the material facts involved in this case there is no dispute-no conflict in the evidence and from the testimony the following facts appear: The building used by appellant as its city office was a one-story building on Third street, in Vincennes; the building had two rooms on the ground floor, a front or office room, and a rear room for storage and for use by the messenger boys; that a door in the rear of the room used by messenger boys opened into a narrow pas sageway, the surface of which was covered with concrete; that this way opened or led into a wider passageway along the side of a new four-story building known as the La Plante building; that the La Plante building was in no way connected with the building

The appellee has moved to dismiss this ap peal upon the ground, as he contends, that this court has no jurisdiction. His conten-used by appellant or in any way used by tion is, that as there was no application for a review by the full board of the award made by the single member, within seven days, as provided for in section 60 of our Compensation Law (Laws 1915, c. 106) the review by the full Board was unauthorized and the award by the single member remains valid and binding upon all parties.

appellant; that a metal fire escape had been placed by the owners of the La Plante building on the east side thereon, the lower end of which was about ten feet above the surface of the ground, which was covered with concrete; that an adjustable, or sliding, ladder was attached to the lower part of said fire escape, but that said adjustable lad[1] It appears from the record that the der was kept up on the lower part of the answer of appellant to the application for permanent fire escape structure with the an award of compensation was prepared lower end thereof about even with the lower and filed by Messrs. Tharp and Gardner at-end of the said permanent structure; that torneys of Washington, Ind., and that the

three boys were employed by appellant, as

(146 N.E.)

to prevent these things, or at least to save himself harmless from the consequences thereof, by adopting rules according to the statute, and then enforcing such rule or rules. It was upon the ground that such rules had not been adopted, as provided by statute, or if adopted, that they had not been enforced—that such play had been permitted-that awards of compensation have been, by the courts, upheld in such cases. In re Loper, 64 Ind. App. 571, 116 N. E. 324; Kokomo S. & W. Co. v. Irick (Ind. App.) 141 N. E. 796.

the day and just previous to the accident, | play," and that injury may result therethey had gone out through the rear door of from. It is within the power of the employer appellant's building into this place to play; that while they were at play one of their number suggested, banteringly, that they try to get upon and climb the said fire escape; that one of the boys, by first getting into a window some three or four feet above the ground, managed to get onto and to climb said escape; that appellee got into said window and tried to reach the lower end of said escape but found it beyond his reach; he then, as he testified, gave "a leap" and tried to reach it, but, instead of catching hold of the permanent part of said escape, caught hold of the lower part of said "ladder" which became detached and he fell to the ground and received the injuries for which he asks compensation; that this was the first time the boys had ever attempted. to get upon or to climb said fire escape.

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The Legislature evidently had in mind, when this law was enacted, that employers could and would protect themselves against certain dangers-hazards of the employment -by adopting rules for the government of their employees in relation to such hazards. As reasonable men, the employers should anticipate the reasonable hazards of the employment and the natural and probable conduct of the employees with reference thereto. The employer knows that men and boys, when associated together, will, under natural impulse, engage in frolic, in "horse

[4] In this case we have a fire escape on the side of a building other than that in which appellee was employed, with the lower end thereof ten feet above the surface of the ground, and the question therefore arisesputting the case in its strongest phase against appellant-was the employer in this case reasonably bound to anticipate that the messenger boys, which it employed, would leave the premises of the employer, become trespassers and attempt to get upon and climb said fire escape, a matter wholly disconnected with their employment? We hold, under the facts of this case, that the employer was not bound reasonably to anticipate such conduct on the part of its said employees, that such play was in no way connected with their work, and that, under the undisputed facts in this case, the said accident did not arise out of appellee's employment.

The award is therefore reversed and this cause is remanded to the Industrial Board for further proceedings.

REMY, P. J., and THOMPSON and McMAHAN, JJ., concur.

DAUSMAN, C. J., and NICHOLS, J., concur in result.

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