dence to sustain the verdict, appellants that they were in the employ of appellant, make only the general statement that there or either of them, but that all of them testiwas a total failure of proof connecting ap- fied that they were in the employ of the pellants, or either of them, with any of the Pennsylvania Railroad Company.

But we acts of negligence alleged in the complaint, are not favorably impressed with such conand for this reason, also contends that the tention. If we are rightly informed, by a verdict is contrary to law.

recent reorganization of the Pennsylvania [1] There was evidence that the bridge system, the lines east of Pittsburgh are and approaches thereto were supported by known as the Pennsylvania Railroad Com. trestles and piling, which were so construct- pany. It is probable that the jury did not ed as to provide a dam for drift; that many understand that operating east carloads of stone were dumped between the of Pittsburgh had sent its employés to work trestles of the approach; that many piles on the bridge and its approaches over Eagle were driven between the trestles of the ap- creek, near Indianapolis. It is more proba. proach to the bridge; that old trestles and ble, and the jury might reasonably infer piles had been sawed off leaving the stubs that these men, however indiscriminately sticking up so as to catch the drift; that they might have used the names of the difthese obstructions hindered the flow of the ferent organizations of the Pennsylvania water, and caused it to pile up against the System, were working for the companies who embankment and the drift so that it was were operating the railroad over the bridge much higher on the upper than the lower at Eagle creek, and that such companies, side of the bridge, and thereby overflowed these appellants, were chargeable with their appellee's land; that conditions were such acts while so employed. But the jury was that in times of high water a force of men not confined to inference to determine by were kept there in an effort to keep the drift whom these witnesses were employed. It is moving. Such evidence was certainly suff- frequently disclosed in the course of their cient to justify the jury in its finding that testimony that they were working for the there was negligence which occasioned the companies which operated the railroad that damage complained of.

crossed Eagle creek and valley. [2] By clause 5, section 13, of the Act in Appellants complain of instruction 5, gis. force May 6, 1853, I. R. S. p. 409, railroads en by the court on its own motion, because, were given the right to construct their roads as appellants say, it limits appellee's contrib. across any stream of water, or watercourse, utory negligence to the time of the alleged so as not to interfere with the free use of injury, but we do not see this limitation in the same, but such statute also imposed the it. It should be considered along with other duty to restore the stream to its former instructions, and when so considered it was state, or in sufficient manắer not unnecessa- not erroneous. rily impair its usefulness. By this act, [4] Appellants complain of instruction 8, and by section 7683, Burns' R. S. 1914, this given by the court on its own motion, beright and duty has continued to this date. cause it states that one who maintains a That the obligation not to obstruct a stream structure in the channel of a natural water so crossed is a continuous one, and that it course is bound in the construction and main. rests equally upon a purchasing company, tenance thereof to make and provide sufficient see Graham v. Chicago, etc., R. Co., 39 Ind. opening in such structure for the passage App. 294, 77 N. E. 57, 1055, where it is held down the water course of all water, driftthat each day of the continuance of the ob- wood, and other material that may be reasonstruction is a fresh violation of the statute. ably expected to come down such stream at In the light of this authority, and the cases the point in question. They also complain of there cited, appellants' argument that it is instruction 9 for the reason that it states that not liable because the acts of negligence such duty is absolute. But these instruccharged were the acts of its predecessor, tions are not stronger than the statute men. must fail.

tioned above, which makes it the duty of a [3] But appellants say that while certain railroad company, building across a stream, witnesses testified to the conditions of the to restore it to its former state, or in suffi. bridge, trestle, and embankment, and we may cient manner not unnecessarily to interfere add, their connection therewith, appellee's with its usefulness. Instruction 7 quotes argument that from such facts the jury could section 7683 mentioned above, and the three properly draw the inference that appellants instructions taken together state the law as authorized, directed or permitted the wrong. favorably to appellants as they may require. ful acts complained of, must fail for the No reversible error is presented. reason that none of these witnesses testified Affirmed.

(146 N.E.)

as being spondylitis of the lumbar vertebræ. STAR PUB. CO. V. JOHNSON. (No. 12031.) On May 12, 1923, he became very sick, and

was vomiting fecal matter. His abdomen (Appellate Court of Indiana. Feb. 20, 1925.)

was very much distended and he had high 1. Master and servant em417(7) - Cause of fever. On May 13th he was removed to a disease question for Industrial Board. hospital for an "exploratory operation,”

In proceedings for compensation under which was at once performed. This operaWorkmen's Compensation Act, it was for Intion disclosed that the patient had a "ruptur. dustrial Board to find fact as to what caused ed gangrenous appendix,” and that his abappendicitis with which deceased became af-dominal cavity was filled with a "sero, flicted.

purulent fluid, accompanied by virulent in2. Master and servant uw 417(7)-Finding of fection and general peritonitis." Two days Industrial Board on evidence conclusive. after the operation he died, and his widow

Finding by Industrial Board is conclusive on filed her application with the Industrial Appellate Court when sustained either by any Board asking an award of compensation on direct evidence or by evidence which is subject account of the death of her said husband. to reasonable inference that fact found by board Compensation was awarded to the widow, exists.

from which award this appeal is prosecuted. 3. Master and servant 405(4)-Finding ap

It is tacitly conceded in this case that the pendicitis had its source in injury to spine “virulent infection and general peritonitis” sustained.

which immediately caused the death of said In proceedings under Workmen's Compen- Johnson, were caused by the appendicitis, sation Act, evidence held to sustain finding of the rupture of the gangrenous appendix, but Industrial Board that appendicitis, with which the appellant insists that no causal connecdeceased became afflicted, had its source in an tion has been shown between the spondylitis, injury which deceased sustained to his spine.

from which the deceased was suffering, and Dausman, C. J., and Remy, P. J., dissenting. the appendicitis, which we may say caused

his death, and that therefore the award of Appeal from Industrial Board.

the Industrial Board is not sustained by sufProceeding by Emma Johnson under the ficient evidence, and is contrary to law. Workmen's Compensation Act (Laws 1915, C.

There is evidence in this record that the 106), for compensation for death of her hus- deceased, after he became confined to his band, Walter Johnson, opposed by the Star bed, became constipated to the extent that Publishing Company, employer. From an

his bowels would not move without his being award of compensation by the Industrial given a laxative or a purgative; that he was Board, the employer appeals. Affirmed.

63 years of age at the time of his injury;

that on the 25th of November, 1922, he was George Edwards, of Indianapolis, and placed in a plaster cast "to fix” the spine; Montgomery & Montgomery, of Seymour, for that he became emaciated so that the cast appellant.

did not fit, and in February, 1923, another Oscar B. Abel and Oren O. Swails, both of cast, extending from his arm pits down over Seymour, for appellee.

his hips, was placed on him; that the physi

cian who was called to see him, two days ENLOE, J. On the 17th day of August, before he died, found a "complete obstruction 1922, Walter Johnson, the husband of appel- of the bowels." One physician testified that lee, an employee of appellant, received a per- in his opinion “the only connection between sonal injury by accident arising out of and the spondylitis and the appendicitis would be in the course of his employment. On Oc. in the inflammatory condition going through tober 23, 1922, the employer and employee his system and locating in the appendix." entered into a compensation agreement which Another physician testified that in his opinwas duly filed with and approved by the In- ion constipation was one of the greatest condustrial Board, by the terms of which agree-tributing factors in causing appendicitis; ment the employer was to pay to the em- that he could see some connection between ployee commencing on the 28th day of the infected vertebræ and the appendicitis; August, 1922, the sum of $13.20 per week that appendicitis was often a secondary disduring the period of his total disability, and ease; that medical authorities pretty genalso the reasonable and necessary surgical erally agree that appendicitis is due to inand hospital expenses of said employee dur- fection from other sources; that constipation ing the first 30 days after said injury. was one of the causes of appendicitis.

The record also discloses that almost im [1-3] In this case it was for the Industrial mediately after said injury said employee Board to find the fact as to what caused the became confined to his bed, and so remained appendicitis with which the deceased became until the 15th day of May, 1923, when he atflicted, and they, by their award, have died, and that during practically all of said found that it had its source in the injury time he was under the care of physicians. which the deceased sustained on August 17, His ailment was pronounced by his physicians 1922. While we might have reached a dif

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ferent conclusion had we been permitted to , averments of such paragraph are provable unweigh the evidence, yet such finding by the der reply in general denial. Board is conclusive upon us when sustained

6. Fraud Omw 18 — Fraud in misrepresenting either by any direct evidence or by evidence

price of property purchased jointly not obviwhich is subject to the reasonable inference

ated by fact property may have been worth that the fact, so found by the Board, exists. price represented. We therefore conclude that the finding of the Where one occupying a fiduciary relation Industrial Board in this case is sustained toward another arranged with such person to by sufficient evidence, and the said award is jointly purchase a farm, but misrepresented therefore affirmed.

price to be paid, and so accomplished a fraud,

held, fact that farm may have been worth price McMAHAN, NICHOLS, and THOMPSON, which it was represented was being paid did

not obviate fraud. JJ., concur.

DAUSMAN, C. J., and REMY, P. J., dis- 7. Appeal and error 1068(3)—Where it is sent.

apparent both on law and facts that right result has been reached, judgment will not be reversed for erroneous instructions.

Where it is apparent, both on law and facts,

that right result has been reached, judgment ALLEN REALTY CO. V. UHLER,

will not be reversed for erroneous instructions. (No. 11989.) (Appellate Court of Indiana, Division 2. Appeal from Circuit Court, Wells County ; Feb. 20, 1925.)

F. W. Gordon, Judge. 1. Fraud On 17-Failure of party occupying Action by the Allen Realty Company

fiduciary relation to disclose material facts against Anna C. Uhler. Judgment for de constitutes fraud.

fendant, and plaintiff appeals. Affirmed. Where relation of trust and confidence obtains between parties dealing together, there

Vesey & Vesey, of Ft. Wayne, and Simis duty on part of party occupying fiduciary re- mons, Dailey & Simmons and Eichhorn & lation to disclose all material facts, and failure Edris, all of Bluffton, for appellant. to do so constitutes fraud.

Sturgis, Stine & Sturgis, of Bluffton, and 2. Bills and notes em477—Answer in action on Hoffman & Hoffman, of Ft. Wayne, for ap

note alleging fraud in its procurement held pellee. not demurrable.

In action on note, answer alleging fraud, in NICHOLS, J. Action by appellant against that plaintiff, while occupying a fiduciary rela- appellee on a promissory note for $4,000. tion towards defendant, had pretended to pur. The complaint is in the usual form of comchase property jointly with her, but had mis- plaints in such actions. Appellee answered represented purchase price, and had not in fact itself advanced any money, and that defendant, in general denial, a second paragraph of no after an exchange of property so purchased, consideration, a fourth of payment, and a had given plaintiff note sued on in satisfaction seventh of fraud. The other paragraphs are of its claimed equity, held not demurrable. not here involved. Appellant's demurrer to

the seventh paragraph of answer was over3. Appeal and error Ones 1040 (14)-Overruling

demurrer to paragraph of answer which does ruled. Thereupon appellant replied in denial, not state good defense is error, though mat. and with three affirmative paragraphs. To ter covered by such defense may be provable the third paragraph of reply, appellee's deunder another paragraph.

murrer was sustained. There was a trial by Overruling demurrer to paragraph of an- jury, which resulted in a verdict for appelswer which does not state a good defense is lee, upon which, after appellant's motion for error, notwithstanding proof of matters als a new trial was overruled, judgment was leged in that paragraph would be admissible un rendered. Appellant assigns as error the ac der another paragraph.

tion of the court in overruling its demurrer 4. Estoppel w 114—Pleading of estoppel beld to the seventh paragraph of answer, in susdefective for fallure to aver knowledge of taining appellee's demurrer to its third par. facts on part of person estopped. In action on note, paragraph of reply al- for a new trial.

agraph of reply, and in overruling its motion leging that, because of transactions in which

Briefly, the seventh paragraph of answer defendant had engaged after perpetration of alleged fraud on her, she was estopped to as

avers that the note in this suit was given to sert it as defense, held demurrable for failure appellant as a result of the following real to aver her knowledge of such fraud at time estate transaction: On or about July 17, of such transactions.

1917, one Smith, real estate agent, now de5. Appeal and error ww1040(8)-Error, if any,

ceased, had a meeting with appellee and one in sustaining demurrer to paragraph of re- Cook, then secretary of the Citizens' Trust ply, held harmless.

Company and stockholder and director in apError, if any, in sustaining demurrer to pellant company, in the place of business of paragraph of reply, held harmless, where all said trust company, and pretended to sell ap

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(146 N.E.) pellee and said Cook, or appellant, a certain | duty to disclose all material facts of the farm, lying six miles north of Ft. Wayne, transaction, and a failure so to do constiInd., for $40,000; that there was a mortgage tutes fraud. 26 C. J. 1076; 39 Cyc. 1613; of $24,000 thereon, which appellant and ap- King v. White, 119 Ala. 429, 24 So. 724. The pellee were to assume, and each of them was case of Grant v. Hardy, 33 Wis. 668, quoting to pay $8,000, being the full considera- on page 674 from well-known authorities on tion for said farm. Appellee paid appellant Equity Jurisprudence, states the rule thus: her said sum of $8,000, but appellant failed to pay its $8,000, or any part thereof, and in

"Whenever parties stand in such a relation truth and in fact appellant was purchasing sarily imposed by the one, and the influence

that, while it continues, confidence is necessaid farm for $32,000, and no more. At said which naturally grows out of the confidence time appellee placed absolute confidence in is possessed by the other, and this confidence appellant, believed the representations So is abused, or the influence is exerted to obtain made by appellant that the purchase price of an advantage at the expense of the confiding said farm was $40,000, and that appellant party, the person so availing himself of his would pay $8,000 as a part of the considera- position will not be permitted to retain the tion, left the entire deal in appellant's and advantage, although the transaction could not Cook's hands, and, relying upon said repre had subsisted.”

be impeached, if no such confidential elation sentations, paid $8,000 herself to appellant for consideration in the purchase of said farm, the title to which, without the knowl- [2, 3] The facts of that case are so similar edge of appellee, was taken in the name of to the facts here involved, and its reasoning appellant.

is so clear, that it seems to us that it is Said farm was exchanged by plaintiff for forceful in determining the controversy bea property in Ft. Wayne, and for no other tween the parties hereto. Announcing the consideration, the title to which property was same principle, see Zahn v. McMillin (Pa.) 36 taken in appellee's name. Appellant did not A. 188. Had appellant paid some part of the own said farm, or any interest therein, at purchase price, but not its full proportion the time it was exchanged for said property, thereof, appellee might have enforced con: and never acquired any interest in said prop- tribution, upon discovery of the fraud. Soule erty by virtue of said exchange. At all times v. Frost, 76 Me. 119; Bucher's Appeal, 136 Cook was acting for and in behalf of appel- Pa. 535, 20 A. 523; Furman v. McMillan, 2 lant. At the time of the exchange of said Lea (Tenn.) 121. But in this case appellant farm for said city property appellant told paid nothing, and therefore, as between it appellee that she would owe it $4,000 for its and appellee, it had no equity in the propequity in said farm and property. Appellee erty, and, the note having been given for its believed the representations of appellant and equity, it and any renewal thereof was withCook, which were false and fraudulent, that out consideration. However, even though they had expended $8,000 in the purchase of the facts as disclosed by the seventh parasaid farm, relied upon said representations, graph of answer might have been proven unand executed her note, the renewal of which der the second paragraph, alleging no conis sued on. Appellee received nothing from sideration, it would have been error to overappellant, or any one on its behalf, in con- rule the demurrer to the seventh paragraph sideration for said note, but she did not dis- of answer, had it not stated a good defense, cover the facts hereinbefore alleged until aft-, which it did. The rule in this regard, as er the execution of the note in suit, which is stated by the writer of this opinion in Burton the last renewal note.

V. Burton, 77 Ind. App. on page 438, 133 N. The third paragraph of reply to the sev. E. 612, is erroneous, and is disapproved.

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aver acts of appellee with reference to the actions averred in the third paragraph of original note and the renewals thereof, con- reply, after knowledge of the fraud that had stituting a waiver of any defense thereto. been perpetrated on her, no doubt she would

[1] That the answer is on the theory of have been estopped thereafter from defendfraud is apparent from a casual reading ing because of the fraud; but there is no thereof, and that it discloses a fiduciary re- averment in the reply of knowledge of the lation between appellee and appellant is fraud. In this the reply was defective, and equally apparent. Appellee, at first with her the demurrer thereto was properly sustained. husband, and after his death and without the seventh paragraph of answer avers want his counsel and alone, placed entire confi- of knowledge by appellee of the fraud being dence in appellant and its officers, believed perpetrated on her. All the averments of their representations that she was a joint | the third paragraph of reply were probable purchaser with appellant of the farm, and under the reply in general denial, and therethat appellant was paying its half of the fore any error in sustaining the demurrer purchase price of the equity therein. Where thereto was harmless. The evidence as set such a relation of trust and confidence ob- out in appellant's brief, supplemented by aptains between the parties, there is always a pellee's brief, fully sustains the seventh par

agraph of answer, and the verdict of the NICHOLS, J. Appellee was superintendjury.

ent of the construction of a certain highway [6] One of appellant's contentions is that known as the Mason road in Liberty town. there is no evidence that the farm was worth ship, Wabash county, built under the threeless than the amount paid for it, by which mile road law. He filed his claim for 120 we assume that appellant means the $40,000. days service as such superintendent and the This may be true, but is wholly immate same was disallowed by the board of comrial. Lowe v. Hendrick, 86 Conn. 481, 85 missioners. He appealed to the circuit A. 795; Carnahan v. Moore, 70 Wash. 623, court, which rendered judgment in his favor 127 P. 195. Appellee was entitled to recover, in the sum of $240. The error relied upon though the farm might have been a good bar- in this court is the action of the court in gain at the price represented to have been overruling appellant's motion for new trial, paid therefor. King v White, supra; Ber- the reason for which, that we need to congeron v. Miles, 88 Wis. 397, 60 N. W. 783, 43 sider, being that the court erred in refusing Am. St. Rep. 911.

to admit certain testimony hereinafter con[7] We have examined the instructions sidered. Section 7730, Burns R. S. 1914, prochallenged by appellant, and we find no er- vides for the employment of a superintendror in giving them; but, even if they were ent for the construction of highways under erroneous, it is apparent that, both on the the three-mile road law, and further prolaw and the facts, a right result has been vides that "his compensation shall not exreached, and under such circumstances this ceed two dollars ($2) per day for the time court will not reverse for erroneous instruc- actually employed, to be paid out of the contions.

struction fund of said road." The language The judgment is afirmed.

of this statute is clear and unambiguous. It fixes the maximum compensation at $2 per day, but does not fix the minimum, leaving it for the board or the court to deter

mine the value of such services. There was BOARD OF COM’RS OF WABASH COUNTY no way by which the court could determine · V. MASON. (No. 12105.)

this value, except by hearing evidence there

of based on the kind, quality, and character (Appellate Court of Indiana, Division No. 2. of such service. Appellant offered to prove Feb. 26, 1925.)

by divers witnesses that the subgrade was Highways On I 12–Evidence that road was not not lowered to a sufficient depth, as required

constructed according to specifications, held by the specifications; that the concrete base admissible as to value of superintendent's was a little less than 442 inches instead of 6 services.

inches, as required by the specifications; In action by superintendent of construc- that in other particulars the road was not tion of a highway for compensation provided by constructed according to the specifications; Burns' Ann. St. 1914, § 7730, evidence that and that the superintendent was derelict in road was not constructed according to specifi- not requiring the contractor to so construct cations, and that superintendent was derelict it. This evidence was proper and it was erin not requiring contractor to so construct it, was admissible as going to value of superin- the superintendent's services. It appears by

ror to exclude it, as going to the value of tendent's services.

the evidence that much of his time was spent Appeal from Circuit Court, Wabash Coun- at a public garage, which he was operating, ty; Frank 0. Switzer, Judge.

and elsewhere, and if he, by neglect or for

other reason, failed to require the road to be Claim by Oliver H. Mason was disallowed constructed according to specifications, his by the Board of Commissioners of the Coun-services may have been of no value. The ty of Wabash, and on appeal to circuit court, position of appellee as superintendent was judgment was rendered in his favor, and the

an important and responsible one, and one Board of Commissioners appealed. Judg- in which the public had a right to demand ment reversed, with instructions.

conscientious service, Walter S. Bent, of Wabash, for appellant. Judgment reversed, with instructions to D. F. Brooks, of Wabash, for appellee. grant a new trial.

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