usual custom upon the arrival of the train PITTSBURGH, C., C. & ST. L. R. CO. V. at Richmond that one of the mail clerks on JONES. (No. 11947.)

said train should go to the mail car from (Appellate Court of Indiana, Division No. 2. Dayton, which was left upon the track in the March 20, 1925.)

station at Richmond, enter said car, and as

sort the mail, and said car was then switch. 1. Carriers 241-Railway mail clerks helded from the track on which it was left in "passengers."

the station into the said Cincinnati and ChiRailway mail clerks, required by Rev. St. U.

cago train. S. § 4000 (U. S. Comp. St. § 7480) to be carried by railroad without compensation, held to the usual custom, left his mail car on the

Appellee on the night in question, as was be "passengers."

arrival of the train from Cincinnati, and en[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Pas-tered the mail car on the track in the station, senger.]

which had arrived from Dayton, for the pur

pose of sorting the mail during the time said 2. Carriers Ow247(1)-Mail clerk held not de- train remained at Richmond. On entering

prived of rights as passenger by entering car the car from Dayton appellee commenced his not yet switched into train. Where railway mail clerk was injured by in repiling the boxes, packages, and sacks,

usual and proper duties as mail clerk, and violence with which locomotive struck car, his rights as passenger held not taken from him and while so doing appellant carelessly and by fact that car which he entered to perform negligently ran its locomotive engine against his regular duties had not yet been switched said storage mail car with great force and into regular train.

violence. The force and shock of the colli

sion was such that it drove said storage car Appeal from Circuit Court, Henry Coun

several feet along the track upon which said ty; J. R. Hinshaw, Judge.

storage car was standing at the time, and Action by Clyde 0. Jones against the Pitts- when said collision occurred appellee was in burgh, Cincinnati, Chicago & St. Louis Railo said storage car, and had just lifted onto road Company. From a judgment for plain- his shoulder a heavy case of mail, and in liff, defendant appeals. Affirmed.

consequence of said collision appellee was Newby & Newby, of Knightstown, and hurled, forced, and thrown against the side John L. Rupe, of Richmond, for appellant.

of the car with great force and violence, Miller & Matterson, of Syracuse, N. Y., jamming him against the side of the car with William 0. Barnard, of Newcastle, and one end of a box against him and the other Frank A. Wisehart, of Middletown, for ap- against the side of the car, following which pellee.

he was thrown to the floor of the car with

great force and violence; thereby sustaining NICHOLS, J. Action for personal injury great and permanent injuries. alleged to have been received on the night of [1, 2] Appellant concedes that under sec. September 27, 1920, in the passenger station tion 7480, Comp. Statutes (section 4000 Reat Richmond, Ind., while appellee was in the rised Statutes of the United States), there United States mail service as a railroad is an obligation imposed upon railroad commail clerk running on the regular passenger panies to carry mail agents or clerks withtrain from Cincinnati to Chicago.

out compensation, and that they are held to A trial by jury resulted in a verdict in be passengers. Numerous authorities so favor of appellee for $6,000, upon which, holding are cited in Malott v. Central Trust after appellant's motion for a new trial was Co., 168 Ind. 428, 79 N. E. 369, 11 Ann. Cas. overruled, judgment was rendered. The only 879, and in the case of Barker v. Chicago, errors assigned are the court's action in etc., R. Co., 243 Ill. 482, 90 N. E. 1057, 26 L. overruling appellant's demurrer to the com- R. A. (N. S.) 1058. But appellant contends plaint, and in overruling its motion for a that, when appellee left the train and went new trial. Appellee's cause of action is to the mail car on another track, and was based upon the following facts alleged by injured when such car was being switched him in his complaint:

into the regular train, his relation while in He had been in the railroad mail service the mail car so being switched into the for some years, running between Cincinnati train as a passenger ceased. But we do not and Chicago, over the line of appellant, and so understand the law. It is a verred in the on a regular passenger train leaving Cincin- complaint and appears by the eridence that nati. On September 27, 1920, he was engag- it was the custom for the train here involred ed in his usual and proper duties as mail to pick up the Dayton mail car upon arrivclerk. His train arrived at Richmond about ing at Richmond, and that it was also the 12 o'clock midnight. It was the usual cus- custom for a mail clerk upon such arrival of tem at that time for the said train to take the train to go immediately to the mail car on a mail car from Dayton, Ohio, and to car- for the purpose of arranging the mail to save ry the same to Chicago. It was also the time in its distribution, and that this was a

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

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(146 N.E.) duty imposed by the government upon the Appeal from Probate Court, Vanderburgh mail clerks. Appellee in following the cus- County; Elmer Lockyear, Judge. tom was performing the duty required of

Action by Lillian M. Henrich against him by the government at the time he was | Frank Prior and others. From an adverse injured. The fact that the mail car in which judgment, plaintiff appeals. Affirmed. appellee was performing his regular duties was at the time standing on a track in the

Denton & Denton, of Evansville, for apdepot ready to be switched into the regular

pellant. train did not take from him his rights as a

Leo H. Fisher, of Huntingburg, for appel

passenger. Wabash Railroad Co. v. Jellison,
124 Ill. App. 652; Gemmill v. Illinois Cen-
tral R. Co., 186 111. App. 124.

MCMAHAN, J. Complaint by appellant on
Appellant cites Pittsburg, etc., R. Co. v. a policy of life insurance. The insurance
Arnott, as decided by the Supreme Court, company paid the amount due into court,
189 Ind. 350, 126 N. E. 13, and as decided by and was discharged from further liability.
this court (79 Ind. App. 135 N. E. 365), to The contest is between appellant and appellee
sustain its contention, but the circumstances as to which one is entitled to the money.
in that case were so different from those in The cause was tried upon an agreed state-
the instant case that we hold it not in point. ment of facts, and resulted in a judgment in
Appellant's contention is presented by error favor of Mr. Prior.
in overruling the demurrer to the complaint, The policy in question was issued in May,
and in giving an instruction to the jury, but 1918, on the life of Theodore Henrich, and
we hold that the court committed no error was made payable to his wife, the appellant
in that regard. There was ample evidence herein. It reserved to the insured the right
to sustain the verdict.

of revocation, and provided that the insured The judgment is affirmed.

upon written request filed with the insurance company might designate a new beneficiary, or have the policy payable to his estate, such change to take effect only when indorsed on the policy. It also provided that

no assignment of the policy should be bindHENRICH V. PRIOR et al. (No. 12064.)

ing on the company, unless the original as(Appellate Court of Indiana. Division No. 2. signment or a duplicate thereof be filed with March 17, 1925.)

the company at its home office. The insured 1. Insurance 587—Insured may not revoke died in March, 1924, and after suit the

wife as beneficiary and name another in her amount due on the policy was paid into stead, if policy does not create such right.

court for the use of the proper party. On Where a policy of insurance on the life of May 20, 1922, the insured as evidence of a the husband is payable to his wife, without debt then owing Frank Prior gave him a right in husband to revoke appointment of bene-note for $5,000. On the face of this note ficiary and to name another in her stead, no was the statement that it was secured by an such right exists; the policy in such case be assignment of the policy in question. On the ing the wife's absolute property over which

same day the insured executed a writing rethe husband has no control.

citing that under the right given in the pol2. Insurance 587–Valid change of benefici- icy he revoked the appointment of his wife

ary, though without latter's consent, deprives as beneficiary, and requested that the polformer beneficiary of interest in policy permit icy be changed and made payable to his esting such change.

tate. A duplicate of this revocation and reA valid change of beneficiary, though with quest was sent to the insurance company, out latter's consent, deprives former beneficiary and was by it attached to the policy. At the of interest in policy permitting such change.

time of executing said revocation the insured, 3. Insurance on 587—Change in beneficiary also in writing, assigned the policy to Frank

and assignment of policy held not invalidated Prior as security for the payment of said by insured's assignment of policy before note. This assignment was sent to the inchanging beneficiary.

surance company along with the written rev. Change in beneficiary and assignment of ocation, and also attached to the policy by policy which gave insured such rights held not the insurance company at which time the ininvalidated by fact that insured concluded to surance company made a written statement make the assignment before a change in the

on the policy to the effect that the appointbeneficiary was made.

ment of appellant as beneficiary had been 4. Insurance 587–Change in beneficiary and revoked according to the right reserved to assignment of policy held valid.

the insured, and that the company agreed the Insured's change of beneficiary, without policy should be payable to the executors, latter's consent, and assignment of policy, pur- administrators, or assigns of the insured. suant to rights conferred therein, held valid. I The policy with said indorsements on it was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-55

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then sent to appellee Frank Prior, who ever, change in beneficiary was made the entire since has had possession thereof.

transaction is invalid. We cannot concur in There are two questions involved in this this contention. appeal: (1) Did the insured have the right Indiana National Life Ins. Co. v. McGinto assign the policy without the consent of nis, 180 Ind. 9, 101 N. E. 289, 45 L. R.A. (N. his wife? (2) Was the assignment legally S.) 192, is not in our judgment of controlling made?

influence. The insured in that case, withAppellant makes no claim that there was out the knowledge or consent of the benenot a sufficient consideration for the execu- ficiary who had possession of the policy, and tion of the note. Neither is there any claim who had a vested interest in the policy, un that any fraud was exercised in connection dertook to surrender it to the insurance comwith changing the policy of insurance so as pany and to release the company from all to make it payable to the estate or assigns | liability on the policy. No question as to of the insured. Appellant, however, insists the right of the insured to change the bene she had an indefeasible interest in the pol- ficiary or to assign the policy was there inicy which could not be taken from her and volved. That case recognizes the power of destroyed without her consent.

an insured to change the beneficiary, when Арі ellant does not dispute the right of her that right is reserved, as in the policy now husband to change the beneficiary in the under consideration. policy. But she insists that the policy still [4] The trial court in our judgment corbelongs to her; that the extent of the right | rectly held the change in beneficiary and the and power of her husband was to change the assignment of the policy in the instant case beneficiary; and that he had no right to as were valid, and that the proceeds of the polsign it without her consent.

icy should be paid to Mr. Prior. In support of her contention appellant The judgment is therefore affirmed. says that, where a policy provides the method of changing the beneficiary, such method must be followed, and, if the policy provides that the change shall not become effective

NOLTE V. EYDEN. (No. 12052.) until indorsed on the policy, such indorse (Appellate Court of Indiana, Division No. 1. ment is necessary, and that, where several

March 20, 1925.) papers are executed practically at the same time, and one of them is invalid, all are in- . Executors and administrators na 452–Mo.

tion for new trial properly overruled, if ev. valid. In other words, appellant insists that,

idence sufficient to sustain verdict based on since the change in beneficiary and the as

either paragraph of claim. signment were both made on the same day,

In proceedings on claim for services renthe transaction must be held to be invalid.

dered decedent, motion for new trial because [1, 2] The law favors the making of rea- verdict was not sustained by evidence was propsonable provisions by a man for his wife erly overruled, if evidence was sufficient to susand family. And where a policy of insur- tain verdict based on either paragraph of plainance on the life of the husband is payable to tiff's claim. his wife, without right or power in the hus- 2. Appeal and error 768-Appellate court band to revoke the appointment of the ben justified in assuming that testimony set out eficiary and to name another in her stead, no in appellee's brief correct where not chalsuch right exists. In such cases the policy

lenged by appellant. is her absolute property, and he has no con Appellate court was justified in assuming trol over it. But the insured may retain the that testimony set out by appellee in his brief right to change the beneficiary without the which he claimed was sufficient to sustain ver

dict was correct where it was not challenged latter's consent, and when such a change

by appellant. has been made in accordance with the terms of the policy it is binding on the former ben- | 3. Executors and administrators w205(1)eficiary, and she no longer has any interest

Contract to pay for services held express

and not special. therein.

Contract to pay for services was express [3] Appellant concedes that her husband had the right to change the beneficiary, and ise to pay whatever services should reasonably

but not special, where it was an express promto make the policy payable to his estate, and be worth. that, if, after he had done so, he at some future date concluded to assign the policy, 4. Appeal and error Em930(1)-Evidence con

strued most favorably to appellee in consuch assignment would have been valid, if

sidering sufficiency of evidence to sustain made in the manner named in the policy.

verdict. She contends, however, that the evidence con

In considering sufficiency of evidence to susclusively shows that before making the tain verdict, appellate court can consider only change of beneficiary he had concluded to that most favorable to appellee, together with make the assignment, and because he had reasonable inferences which may be drawn concluded to make the assignment before the therefrom.

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

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(146 N.E.) 5. Executors and administrators Om 221(5)– This testimony shows that prior to August

Evidence held sufficient to sustain verdict on 1, 1906, the said deceased and one Kemper, express promise to pay reasonable value of as partners, were engaged in a retail busiservices,

ness at Richmond, Ind., selling rugs, carpets, Evidence held sufficient to sustain verdict draperies, etc., and that the claimant workbased on paragraph of claim alleging that de- ed for them as a clerk in their said store; cedent promised to pay claimant reasonable value of services rendered by him.

that Kemper died on August 7, 1906, and that

thereafter the said deceased became the 6. Executors and administrators Ow225(1) - sole owner of said store; that during the

Motion to striko paragraph of claim in action life of Kemper the work of the store was against executrix held properly overruled. divided-Kemper doing the "outside” work

In action against executrix to recover for and also acting as a salesman in the store, services rendered decedent, motion to strike from files second paragraph of claim because and Nolte taking care of the books; that executrix intended to file her report in final after the death of Kemper the claimant did settlement of estate within 30 days from date the work formerly done by said Kemper ; when such paragraph was filed held properly that he also did other work connected with overruled, where executrix did not bring her the operating of said store; that, after the self within Burns' Ann, St. 1914, § 2828. death of Kemper, Nolte told one witness

that they were getting along fine, that the Appeal from Circuit Court, Wayne Coun- | business was getting better and bigger, and ty; Wm. A. Bond, Judge.

that Eyden was taking hold, and that he Action by Walter Eyden against Elma could not see that there was any change so Nolte, executrix. Judgment for plaintiff, far as the management of the store was conand defendant appeals. Affirmed.

cerned. In talking to another witness the Kelley & Kelley and Gardner, Jessup & deceased said that Eyden had been with him Hoelscher, all of Richmond, for appellant.

a long time, had been faithful, and had made

him a lot of money. Will W. Reller, of Richmond, for appellee.

There was also evidence tending to show

that the appellee was a popular salesman, ENLOE, J. The appellee, hereinafter call- and, as such, had a large personal followed the claimant, filed a claim against the ing in the city of Richmond. It was also estate of George H. Nolte, deceased, for a shown that the appellee had received offers balance claimed to be due him on account of employment at Indianapolis, and at Louisof personal services rendered by him for the ville, Ky., but had not accepted them; that deceased. The cause was tried upon an the deceased, speaking in reference to such amended claim in two paragraphs; the first offers, had said: “Eyden felt better satisfied being based upon an alleged express promise to stay with him, because he knew he would: of the said deceased to pay to the claimant be taken care of.” what his said services should be reasonably

At another time the deceased while talkworth, and the second paragraph upon the ing to a witness in reference to Eyden said: implied promise of said deceased to pay to the claimant such sum.

"Walter has got to move; he has been up

The services for which such claim was made were continu- it is our' busy time of year; he is worrying

against it; he is working at nights; we are busy; ous and extended over a period of more about it and I just can't do the work; I have than 16 years, and the balance claimed as always promised him that I would take care owing was $10,000. The cause was tried by of him, and now is my time to do so; I told a jury and resulted in a verdict and judg. Walter to find out what he could buy that house ment in claimant's favor for $5,000. The for.” overruling of appellant's motion for a new trial is the only error assigned.

In talking to this same witness at another It is first insisted that the verdict of the time the deceased said: jury is not sustained by sufficient evidence.

I gave that house to Walter Eyden; Walter [1] It is fundamental that, if the evidence will have a home as long as he lives, and if is sufficient to sustain a verdict based upon anything ever happens Walter is taken care either paragraph of said claim, the court of." did not err as to the above alleged cause in overruling said motion, and we shall there conversation, concerning Eyden and his serve

In talking to this same witness, in a prior fore proceed to an examination of the evi-ices to deceased, the deceased said: dence herein.

[2] The appellee, in his brief herein, has "Well, I will tell you, if you knew me as well set out certain testimony hich, he claims, as Walter Eyden understands me, Walter is sufficient to sustain said verdict. The knows that he will be taken care of." appellant has not challenged the correctness of the said testimony as set out, and we There is also testimony that upon one occaare therefore justified in assuming that the sion the deceased remarked to his brother-insame was correctly set out in said brief. I law that:

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

"He would have to change his will because he [3] It will be noted that the express promwanted to fill the promise he had made to ise of the said deceased, relied upon in the Walter Eyden; that he had promised to deed, tirst paragraph of said claim, was the promEyden the property, but had just neglected it.” ise of said decedent to fully pay and comTo another witness the deceased, speaking claimant would remain with him and in his

pensate claimant for his said services, if of Eyden, said:

service so long as he remained in business, "I am going to do something for him in the or until his death. In other words, the end, or when the time comes; I have bought claimant is relying, in this paragraph, upon a home for him."

an express promise of said deceased, not to

pay a specific designated sum for said servIn talking to this same witness, upon an. ices, but to pay whatever such services other occasion, concerning some repairs on should be reasonably worth. The contract the house which he had purchased, the de- relied upon was erpress, but not a special ceased said:

one, Forester v. Forester, 10 Ind. App. 680, "I believe I will let Walter pay for these re- 38 N. E. 426. pairs, for he will get the benefit of them, and

Under this paragraph of claim the jury eventually will get it all.”

had, at most, but two questions to answer.

(a) Did the deceased make to claimant the To another witness, in a conversation had said alleged promise? and (b), if so, what about the time he purchased said property, were the services rendered by claimant reaand speaking with reference thereto, deceas- sonably worth over and above all compened said:

sation received by him on account of such "I am doing this for Walter; he has been in services ? my employ a good many years, and has been [4, 5] In considering the sufficiency of the a good, faithful employé.”

evidence to sustain the verdict, we can only

consider that most favorable to the claimTo another witness the deceased said:

ant together with the reasonable inferences "I have got the same kind of a case in which may be drawn therefrom. Reitz v. Walter Eyden, and I have been intending to Hodgkins, 185 Ind. 163, 112 N. E. 386; Waindeed him the house in which he lives, and I wright Trust Co. v. Kinder, 69 Ind. App. 88, have been putting it off from day to day."

120 N. E. 419. We hold that the evidence in

this record, with the reasonable inferences There was also testimony by other wit- which may be drawn therefrom, are amply nesses that the deceased, speaking of claim- sufficient to sustain a verdict founded upon ant, had said, "Walter is a very trustworthy the first paragraph of said claim. 'man, and I don't think I could keep store [6] The appellant also objects to instrucwithout him;" that Walter could run the tions numbered 8, 17, 18, 19, and 20, given store as well as he could; that his business by the court of its own motion. These indid not worry him; that he was satisfied to structions were each addressed to the averleave his business in Eyden's hands; and ments of the second paragraph of said claim. that Eyden had full control of his business. This paragraph of claim was filed January There was testimony by another witness 12, 1924, and on January 15, 1924, before that after the death of Kemper the deceased the commencement of the trial, the appeldepended upon Eyden in the matter of pur- lant moved the court "to strike from the chasing goods, and would not make any pur- files the second paragraph of claim," for chases unless Eyden was present to assist the reason "that this defendant, executris, in selecting the goods.

intends to file her report in final settlement Another witness testified that upon one of said estate within 30 days from the date occasion he remarked to the deceased that when said second paragraph was filed." This it was singular that he could keep such a motion the court overruled, and appellant man as Eyden in his employ, and that the contends that this was error, and that as deceased answered by saying, “Eyden will said paragraph of claim was not rightfully be taken care of all right;" that the de- in the record, the court should not hare ceased further said that he was giving Ey given the said instructions, or either of den a per cent. of in the business and giv- them. Waiving the question as to the maning him the house in which he was living. ner in which appellant sought to raise the There was also testimony that, after Eyden said question, i. e., whether such question moved into the house heretofore mentioned, can only properly be raised by answer in he took down the fence, set out shrubbery, abatement, yet the appellant by said motion wired the house for electricity, repaired the did not bring herself within the provisions of furnace, painted and worked over the floors, section 2828, Burns' 1914, and there was no papered the house, and made other improve error in overruling said motion. ments on said property, all at his own ex We find no error in this record. pense.


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