reversal on account of the admission órgation made by the witnesses Mr. Cutsinger exclusion of questions on cross-examination, and Mr. Browning included their direct exthere must have been a manifest abuse of amination as to pursuing the appellant, condiscretion to the injury of the complaining versation with him after he stopped, going party. Appellant insists that, on the direct with him to Southport, and leaving him examination of said witnesses, the state en there. If either or both of them made any tered upon the general subject of the investi- statements or did anything at the time they gation which was made by them to ascertain so left him or if appellant made any stateby whom the crime had been committed, and ment to them, it was proper to show on crossthat he was in their custody from the time examination what was said and done at that he was apprehended by them on the Bar- time and place. In refusing to permit each gersville road until he was released at South- of said questions to be answered in regard to port, and that he was entitled by cross-ex- what the witnesses or appellant said and did amination to bring out every detail of what then and there, errors were committed, was done and said by and between said which without doubt were injurious to the witnesses and the appellant during that pe- appellant. We believe the court abused its riod of time.

discretion in making the said rulings com[4, 5] “Cross-examination is not necessari- plained of. "The cross-examination of a ly restricted to the specific matter of exam- witness is the absolute right and not a mere ination in chief, but may extend to the gen- privilege, and its denial on a material materal subject thereof. There is some apparent ter is reversible error.” Underhill's Crimi. conflict upon this proposition and some nal Evidence (3d Ed.) § 353. courts are inclined to limit the cross-exami

[8-11) As heretofore stated, the evidence nation to the specific subject or phase of produced by the state, and upon which it rethe general subject gone into on examina- lies, is entirely circumstantial. Circumstantion in chief, but the rule, as we have stat- tial evidence in order to sustain a conviced it, is supported by the weight of authori- tion of a criminal offense must be of conty and the better reasons.” Elliott on Evi- clusive character, and must exclude every dence, g 920. "The subject-matter to which reasonable hypothesis of innocence of the acthe cross-examination may relate, however, cused. Falk v. State (1914) 182 Ind, 317, 106 is not to be given a narrow and restricted N. E. 354; Thain v. State (1914) 182 Ind. meaning, but the cross-examining party may 345, 106 N. E. 690; Robinson v. State (1919) go into any and all phases of a general sub- 188 Ind. 467, 124 N. E. 489; Zimmerman v. ject that has been opened up by the direct State (1920) 190 Ind. 537, 130 N. E. 235. This examination, and cannot be confined to ques- court has held that the above rule is for the tions upon the matters particularly brought guidance of the trial court, and has also held out by the original examination.” Ewbank's that, where circumstantial evidence is such Indiana Trial Evidence, § 147. "Generally that two conflicting inferences may be reaspeaking, it would seem that when the direct sonably drawn therefrom, one tending to examination opens a general subject, the prove the guilt of the accused, and the other cross-examination may go into any phase, favorable to his innocence, it is not within and cannot be restricted to mere facts which the province of the court on appeal to deconstitute a unity.” 28 R. C. L. 196. While termine which inference ought to control. the cross-examination of a witness must be Lee v. State (1901) 156 Ind. 541, 546, 60 N. confined to the subject opened by direct ex- E. 299; Howard v. State (1921) 191 Ind. 232. amination, this rule does not restrict such 237, 131 N. E. 403; Lee v. State (1922) 191 cross-examination to the specific facts devel. Ind. 515, 519, 132 N. E. 582; Rosenberg v. oped by the direct examination, and, when a State (1922) 192 Ind. 485, 488, 134 N. E. 856. subject is once entered on in the examination | 137 N. E. 53. But a court of last resort, in in chief, it is opened to a full and detailed in- passing upon the sufficiency of the evidence, vestigation on cross-examination. De Haven where it is circumstantial, will in case an esv. De Haven (1881) 77 Ind. 236, 239; Boyle sential link is wanting, hold the evidence V. State (1885) 105 Ind. 469, 475, 5 N. E. insufficient. Wrassman v. State (1921) 191 203, 55 Am. Rep. 218; Vogel v. Harris (1887) Ind. 399, 402, 132 N. E. 673. “If there be no 112 Ind. 494, 496, 14 N. E. 385; Louisville, evidence to support the verdict or finding, or etc., R. Co. v. Wood (1888) 113 Ind. 544, 555, if there be no evidence to support any fact 14 N. E. 572, 16 N. E. 197; Osburn v. State essential to the support of the verdict or find. (1904) 164 Ind. 262, 275, 73 N. E. 601; West- ing, such verdict or finding is an error of fall v. Wait (1905) 165 Ind. 353, 73 N. E. law which may be reviewed or corrected on 1089, 6. Ann. Cas. 788. Where facts, from appeal.” Howard v. State, supra. To suswhich an inference unfavorable to the ac tain a criminal charge, proof of two distinct cused is drawn, are elicited from a witness, propositions must be made: That the act everything within the knowledge of the wit-constituting the essence of the offense was ness tending to rebut said inference is ad- done, and that it was done by the person missible on cross-examination. State v. Har-charged. There is no evidence and there can vey, 130 Iowa, 394, 106 N. W. 938.

be no reasonable inference from the evidence [6, 7] The general subject of the investi- | in the record to sustain the charge contained

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(146 N.E.)
in the indictment that the appellant did steal, | paid at maturity, appellee having refused to
take, and carry away the personal property pay the same because the automobile was
therein described. There is a total failure of not as represented; and on March 4, 1921,
evidence as to the most essential element it was agreed between the parties that the
of the crime of larceny. The verdict is not original contract be modified, in this, that
sustained by sufficient evidence and same is the title to the automobile be at once trans-
contrary to law.

ferred to appellee, and that the two notes
The judgment is reversed, with instruc- which were past due be taken up in the fol-
tions to sustain appellant's motion for a new lowing manner: First, appellee was to have

credit on the notes for an amount equal to
the sum of money he had paid out for re-
pairs, and then the balance due on the notes,

less the repair bills, which balance was $686.-
FRANKLIN MOTOR CAR CO. v. HILKERT. 40, was to be paid appellant from the pro
(No. 12010.)

ceeds of a loan procured by appellee, who (Appellate Court of Indiana, Division No. 1. automobile. In accordance with this arrange

would secure the loan by a mortgage on the Feb. 27, 1925.)

ment, appellee applied to, and was granted a 1. Fraud m 35 - One suffering injury may loan of $686.40 by, a loan agency, and with waive right to damages.

this money and the credit given for the reOne suffering injury by fraud of another pair bills, appellee took up the past-due may waive right to damages.

notes. The money borrowed of the loan
2. Fraud Sam 35–Purchaser of automobile en agency was secured by a mortgage on the
tering into supplemental contract after dis automobile, and was made payable in ten
covery of fraud held to have waived right to equal monthly installments. Following the

supplemental agreement, eight of the month-
Where purchaser of secondhand automobile ly payments were made to the loan com-
learned that it was manufactured in 1915, and pany.
not 1917 as represented, and expended $250 for On February 6, 1922, which was a little
repairs, but, notwithstanding his knowledge of more than 18 months after the original con-
such fraud, entered into supplemental contract tract was entered into by the parties, ap-
whereby he took absolute title to car, mort-
saged it as his own, and credited repair bills pellee commenced this action against appel-
on amount he owed seller, held, that he waived lant. The action is for dàmages alleged to
all right to recover for fraud.

have been suffered by appellee because of

appellant's misrepresentations as to the age Appeal from Circuit Court, St. Joseph and condition of the automobile. The comCounty; W. A. Funk, Judge.

plaint is predicated upon the original agreeAction by Thomas F. Hilkert against the made in the complaint to the modification

ment of August 4, 1920; no reference is Franklin Motor Car Company. Judgment

which was made by the parties on March 4, for plaintiff, and defendant appeals. Re

1921. versed.

To the complaint appellant filed an answer G. A. Farobaugh and Walter R. Arnold, in three paragraphs: (1) Denial; (2) comboth of South Bend, for appellant.

promise and settlement; and (3) novation. Parker, Crabill, Crumpacker & May, of On the trial, the evidence without conflict South Bend, for appellee.

showed the above facts. Conflicting testi

mony was as to matters not material to a
REMY, J. On August 4, 1920, appellee decision of the question involved in this ap-
purchased of appellant a used automobile, peal. There was verdict and judgment for
title to remain in appellant until purchase appellee.
price of $2,000 was fully paid. Pursuant to It is urged by appellant that appellee, by
the agreement, the automobile was delivered | joining in the supplemental agreement of
to appellee, who in consideration paid $350 March 4, 1921, waived any right of action
cash, turned over to appellant two used au- he may have had because of appellant's fraud
tomobiles at an agreed vậluation of $750, and in procuring the original contract of August
gave his two promissory notes, one for $400, 4, 1920. We concur in this view.
and one for $500, due respectively four and It appears from the evidence that very
six months after date. The automobile pur- soon after appellee purchased the automo-
chased proved to be out of repair, and with bile, he learned that it was not manufactured
in a few weeks after its delivery appelee in 1917, as represented, but in 1915. He also
was compelled to expend more than $250 for discovered that it was greatly in need of
repairs. While the repairs were being made, repairs, and not as represented. In fact,
appellee discovered that the car was manu- the condition of the car was such that the
factured in 1915, and not in 1917 as stipu- necessary repairs before the two notes giv,
lated in the sale contract. Neither of the en in payment fell due cost him more than
two promissory notes given by appellee was $250. When he made the supplemental con-

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

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tract, on March 4, 1921, he was fully in- , him by the seller, executes a note for the formed as to the fraud, if any, that had been a supplemental contract reducing the amount perpetrated by appellant when he entered of the royalty, and making other changes in into the original contract. Nevertheless, the original lease, it constituted a waiver with this knowledge, he agreed to the new of any right to recover for fraud. The Suarrangement by which he took absolute title preme Court of Kentucky, in Summers v. to the car, inortgaged the same as his own, Carpenter (1913) 156 Ky. 337, 160 S. W. 1064, and accepted credit on the amount he owed held that where the purchaser of property, appellant under the original contract, for with full knowledge of fraud practiced upon the repair bills he had previously paid. Not him by the seller, executes a note for the only that, but he proceeded under the modi- balance due on the purchase price, and for fied contract for some time before this ac- money subsequently advanced by the seller, tion was begun.

he cannot thereafter recover damages for [1] In this state the law is settled that a the fraud. The. Supreme Court of Idaho, in party who suffers injury by the fraud of an a well-considered opinion (Tipton v. Ellsother may waive the right to damages. Nyse- worth [1910] 18 Idaho, 207, 109 P. 134), held wander v. Lowman (1890) 124 Ind. 584, 24 that where the purchasers of land, with N. E. 355.

knowledge that the vendor had made misThe exact question here presented has not representations with regard to the land, inbeen decided by the courts of appeal of this duced the seller to waive the contract of state, but has many times been under consid- purchase and deliver a deed for the premeration by the courts of other jurisdictions. ises, taking back a mortgage for the purA leading case is Burne v. Lee (1909) 156 chase price upon different terms than those Cal. 221, 104 P. 438, in which the Supreme provided in the original contract, there was Court of California states the law to be: a waiver of the fraud. See, also, St. John

“Now, it is well settled that when a party v. Hendrickson (1882) 81 Ind. 350; Doherty has been induced by fraud to enter into a con

V. Bell (1876) 55 Ind. 205; Edwards v. Robtract, he may elect either to rescind the con- erts (1846) 7 Smedes & M. (15 Miss.) 544; iract by restoring whatever he has received People 7. Stephens (1878) 71 N. Y. 527; under it, or ho may affirm the contract, retain Craig v. Bradley (1873) 26 Mich. 353, 369 ; ing whatever advantage he may have acquired, Schagun v. Scott Mfg. Co. (1908) 162 F. 209, and still have his action for damages for de- s9 C. C. A. 189; Fitzpatrick v. Flannagan ceit practiced upon him in making the contract. This rule is, however, subject to lim- (1882) 106 U. S. 648, 1 Sup. Ct. 369, 27 L. Ed. itations which apply whether the contract, to

211. which the charge of fraud is addressed, is an [2] We hold that appellee, by joining in executed or executory contract. One of these the supplemental agreement, after he had limitations is that when a party claiming to discovered the fraud of which he complains, have been defrauded, enters, after discovery thereby manifested a clear intention of abidof the fraud, into new arrangements or engage-ing by the original contract, except as its ments concerning the subject-matter of the contract to which the fraud applies, he is deem- terms had been modified by the new arrangeed to have waived any claim for damages on ac- ment, and waived all right to recover for the count of the fraud."


It follows that the refusal to direct the In another California case, Schmidt v. verdict for appellant was error. Mesner (1897) 116 Cal. 267, 48 P. 54, the Reversed. court held:

But this rule, which relieves a party when he chooses to sue for damages from many of the acts required of him when he ARTIFICIAL ICE & COLD STORAGE CO. elects to rescind, is subject to some just lim

v. WALTZ. (No. 11844.) itations. If, after his knowledge of what he claims to have been the fraud, he elects not (Appellate Court of Indiana, Division No. 2. to rescind, but to adopt the contract and sue

Feb. 19, 1925.) for damages, he must stand toward the other party at arm's length; he must on his part 1. Master and servant Om 367 - Employer's comply with the terms of the contract; he must not ask favors of the other party, or of

failure to exact statutory certificate from fer to perform the contract on conditions which

contractor only creates secondary liability on he has no right to exact, and must not make

part of employer. any new agreement or engagement respecting

The only effect of failure of one contractit; otherwise he waives the alleged fraud."

ing for performance of work to exact from

contractor certificate from the Industrial In the case of Brown v. St. Joplin Lead & Board, as required by Workmen's Compensation Zinc Min. Co. (1910) 231 Mo. 166, 132 s. w. Act, $ 14, as amended by Acts 1919, c. 57, is

to create a secondary liability on part of per693, 140 Am. St. 509, it is held that

son so failing, and section does not affect liawhere a party to a mining lease, with knowl-bility of immediate employer and his insuredge that a fraud had been practiced upon ance carrier.

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

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(146 N.E.) 2. Master and servant On 354–Employer of failed to point to any evidence to sustain findcontractor held "some person other than em ing of contributory negligence, and instructions ployer" as to injured employé of contractor. considered as whole in connection with evi

One contracting for performance of work dence showed that defendant was not harmed. by contractor, as to such contractor's employé, is "some person other than employer," within Appeal from Superior Court, Marion CounWorkmen's Compensation Act, $ 13, as amend- ty; Clinton H, Givan, Judge. ed by Acts 1919, c. 57, providing that, where injury is sustained under circumstances creat

Action by Charles Waltz against the Artiing liability in some other person than employ- ficial Ice & Cold Storage Company. Judger, injured employé may proceed at law against ment for plaintiff, and defendant appeals. such other person.

Affirmed. 3. Master and servant 354–Provision of

See, also, 138 N. E. 94. Compensation Act excluding rights at com- Fesler, Elam & Young, and Irving M. mon law inapplicable as between employé and third person.

Fauvre, all of Indianapolis, for appellant.

White, Wright & McKay, of Indianapolis,
Workmen's Compensation Act, $ 6, provid-

for appellee.
ing that rights granted therein to an employé
on account of injury exclude all rights at com-
mon law, has to do only with employé and his

MCMAHAN, J. Appellee recovered judg. employer, and does not affect any other party. ment against appellant on account of injuries 4. Master and servant Cam 351-Right of em- received through the negligence of appellant.

ployé to collect compensation from employer The complaint is in two paragraphs, each and third party failing to exact required cer- of which alleges that appellant, being the tificate not exclusive.

owner of an ice manufacturing plant in The right of an injured employé to proceed which there was an elevator or lift, contractunder Workmen's Compensation Act, $ 14, as ed with Hugo Wuelfing to make certain reamended by Acts 1919, c. 57, to collect compen- pairs to the shaft through which such elesation from his employer, and the party failing | vator was run and operated; that appellee, to exact certificate therein mentioned, is not ex. being in the employ of Wuelfing, was by the clusive.

latter instructed to go to appellant's plant 5. Master and servant om 354–Employer's fail- for the purpose of making such repairs;

ure to exact statutory certificate from con- that when he reached appellant's plant ap-
tractor, held not to preclude contractor's
employó from prosecuting action at law pellant told him what to do, after which he
against employer of contractor.

started to erect the necessary scaffolding, Where one contracting for performance of when appellant instructed him not to erect work failed to exact from contractor certificate a scaffold, as that would interfere with the from Industrial Board as required by Work- running of the elevator, but to do his work men's Compensation Act, $ 14, as amended by from the top of the elevator, and that one of Acts 1919, c. 57, such failure did not prevent appellant's servants would operate the elevaemployé of contractor who was injured wbile tor for that purpose, and that, while appellee performing such work from prosecuting an

was making the repairs, he was injured by action at law for damages against such third party, as provided for in section 13.

reason of the negligence of appellant.

A demurrer to each paragraph of com6. Negligence Om 121(2)-Doctrine of res ipsa plaint being overruled, appellant filed anloquitur held applicable to injury from falling swer in two paragraphs, the first being a elevator.

general denial. The second alleges that apWhere elevator on which plaintiff was in- pellant did not exact from the contractor, jured was instrumentality furnished by defend-1 Wuelfing, a certificate from the Industrial ant for use of plaintiff, and under defendant's control, and it was shown that elevator fell Board showing that such contractor had because chain broke, but evidence was conflict- complied with section 68 of the Workmen's ing as to cause of chain breaking, and strength Compensation Act (Laws 1915, c. 106, as of chain was not shown, nor was chain exam- amended by Laws 1919, c. 57); that appel. ined, held that doctrine of res ipsa loquitur ap- lee as employé of the contractor had given plied, and burden was on defendant to explain no notice to his employer nor to appellant cause of elevator's fall.

that he was not working under the Com7. Trial 296(4, 5)-Failure to include ques. pensation Act; that in fact appellee, his tion of plaintiff's contributory negligence in employer, Wuelling, and appellant at the instruction held not reversible error, in view, time of the accident were all working under of other instructions and of defendant's fail- and subject to the provisions of the Workure to show contributory negligence.

men's Compensation Act; that the rights of An instruction requiring finding for plain- all the parties were covered and determined tiff if certain facts proven, but omitting ques; by that act; that appellee had no right to tion of plaintiff's contributory negligence, held not reversible error, where other instructions maintain any action on account of his injury told jury that there could be no recovery if except before the Industrial Board for complaintiff was contributorily negligent, defendant pensation, and that the court had no juris

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

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diction of the matters alleged in the com- of the work covered by such contract. plaint.

That the state, any political division thereof, A demurrer having been sustained to the any municipal corporation, any corporation, second paragraph of answer, the cause was partnership, person, principal contractor, inter

mediate contractor or sub-contractor, paying tried by a jury, and resulted in a verdict

compensation, physician's fees, hospital fees, and judgment for appellee.

nurse's charges, or burial expenses under the Appellant in the memorandum attached to foregoing provisions of this section, may recorits demurrer calls attention to section 6 of er the amount paid from any person who, inthe Workmen's Compensation Act (Acts dependently of such provisions, would have been 1915, p. 393), and sections 13 and 14 as liable for the payment thereof. Every claim, amended in 1919 (Acts 1919, p. 159), and says filed with the Industrial Board under this sec. that the jurisdiction of the subject matter tion, shall be instituted against all parties liaof the complaint is in the Industrial Board shall fix the order in which said parties shall

ble for payment, and said board, in its award, and not in the court. This contention is be exhausted, beginning with the immediate based on the theory that section 6 of the employer." act excludes all common-law rights and

After the commencement of this action, ap remedies; that the only remedy appellee had in so far as appellant is concerned was to pellant filed an application with the In. proceed under said section 14 and file his dustrial Board asking it to determine the application with the Industrial Board for compensation to which the appellee was en

titled under the Workmen's Compensation compensation, and that the provision in section 14, concerning the failure of the person him such relief as he might be entitled un.

Act on account of his injury, and to grant having the work done to exact the certificate from the contractor, must be held to exclude der the law. "In answer to a question based the person so failing to exact such certifi- upon a certified statement of facts this court cate from liability to actions at common law advised the Industrial Board that it did not

have jurisdiction to hear said application for damages, the same as the contractor is

and to make an award of compensation to exempted from liability at common law,

appellee. In re Waltz (Ind. App.) 138 N. Said sections read as follows:

E. 94. “6. The rights and remedies herein granted And as was there said: to an employee subject to this act on account

"It is to be observed that section 13, supra, of personal injury or death by accident shall exclude all other rights and remedies of such relates to injuries or death for which compenemployé, his personal representatives, depends have been sustained under circumstances cre

sation is payable under the act, and which shali ents or next of kin, at common law

ating in some persons other than the emon account of such injury or death."

“13. Whenever an injury or death, for which ployer a legal liability for 'damages, while said compensation is payable under this act, shall for compensation,' on the part of the person

section 14 creates only a secondary liability have been sustained under circumstances cre-contracting for the performance of any work ating in some other person than the employer without exacting from the contractor a cera legal liability to pay damages *


tificate from the Industrial Board. This last to, the injured employé, or bis dependents, in section has no bearing on the question of damcase of death, at his or their option, may claim compensation from the employer or pro- any one for damages. It is limited to compen

ages and creates no liability on the part of ceed at law against such other person to re-sation. The only effect of a failure to exact cover damages or may proceed against both the certificate referred to is to make the party the employer and such other person at the

so failing liable to the same extent as the same time, but he or they shall not collect from contractor for compensation, physician's fees, both; and, if compensation is awarded and ac- hospital fees, nurse's charges and burial excepted under this act, the employer, having paid penses on account of injury or death of any compensation or having become liable therefor, employee of such contractor, due to an accident may collect in his own name or in the name of arising out of and in the course of the perthe injured employé or, in the case of death, formance of the work covered by such conin the name of his dependents from the other

tract.'" person in whom legal liability for damages exists, the compensation paid or payable to the [1] Appellee was not an employé of apinsured employé or his dependents. [Our ital- pellant. He was an employé of Hugo Wuelics.]

fing. There is no allegation in the complaint "14. The state, any political division thereof, that either appellee or his employer was any municipal corporation, any corporation, partnership or person, contracting for the per- working under the Compensation Act. Asformance of any work without exacting from suming they were both subject to the act. the contractor a certificate from the Industrial appellee could under the facts alleged in Board showing that such contractor has com- the answer have filed a claim with the In. plied with section 68 of this act, shall be lia- dustrial Board against appellant, but said ble to the same extent as the contractor for section 14 required that such claim “shall compensation, physician's fees, hospital fees, be instituted against all parties liable for nurse's charges, and burial expenses on account of the injury or death of any employé payment." The only effect of a failure of a of such contractor, due to an accident arising person contracting for the performance of out of and in the course of the performance any work, to exact the certificate is to cre

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