* *

*

or that the defendant com

*

* * of

Our attention is drawn to three facts, room, which, in language not free of asperity, coun- pany was negligent in that it had notice sel assert are wholly omitted from the comthrough its mine boss, or otherwise plaint. These are as follows: (1) "The fact that the roof of said room * * was dethat the piece of slate or stone that fell was fective, and had notice and knowledge that loose is not stated at all. (2) The fact that said piece of slate or rock * was the mine boss either actually or constructive- loose and liable to fall, and that ly knew that the piece of slate or stone was defendant with such knowledge loose is not stated even defectively. (3) The the loose condition of said slate and its fact that the mine boss failed to secure that liability to produce injury failed to take piece of slate or stone is not stated in any down, or secure said loose slate. form." It is alleged in the complaint that It is manifest that when the cause was tried plaintiff's injury resulted from the falling both court and counsel discerned in the com"from the roof of said room" of a piece of plaint an allegation of failure to "secure that slate weighing one or two tons; it is averred, piece of slate." impliedly at least, that the roof of the room was defective and insecure, "and was in a condition to fall at any time and injure

this plaintiff.

*

*

It is proper to say that appellee has not invoked the doctrine of estoppel to bind appellant to the theory of the cause espoused by it in the trial court. The references made to the record show that the construction of the complaint adopted by this court differs in no material respect from that adopted by appellant's learned and experienced counsel at a time when in the faithful discharge of their duties to court and client a critical analysis of the complaint was required. This interpretation, concurred in by the trial court, appellant's counsel, and this court, is manifestly the one that would be adopted by persons of common understanding. Section 343, Burns 1908. the lapse of time since the trial counsel have forgotten the views of the complaint then entertained by them; otherwise it must be presumed that much of the present brief would have been eliminated.

No doubt in

That the whole of a thing includes all the parts thereof is an axiomatic truth. If the entire roof was insecure and liable to fall, the portion thereof consisting of the piece which fell on plaintiff was necessarily insecure and liable to fall. If appellant desired a more specific statement concerning the portion of the roof which fell on plaintiff, a motion therefor, rather than demurrer, afforded the appropriate remedy. At the trial appellant's counsel by its requested instruction No. 2 sought to have the jury told specifically what were the material allegations of the complaint. The requested instruction was given, and contains the following: "Plaintiff further alleges in his complaint that the mine boss knew that prior to plaintiff's injuries that the piece of slate that fell upon and procured plaintiff's injuries was loose and insecure and defective, and was in a condition to fall at any time. *" It would appear that at the time of the trial neither counsel nor court entertained any doubt about the proper construction of the complaint in reference to the second proposition now advanced by counsel. Counsel KINGAN & CO., Limited, v. FOSTER. (No. here state (third proposition) that the fact

The complaint, notwithstanding its surplusage and unskillful construction, avers sufficient facts to constitute a cause of action; and this, whether tested by common-law or Code rule.

Petition overruled.

7,989.)

(53 Ind. App. 511)

that the mine boss failed to secure that piece (Appellate Court of Indiana, Division No. 2.

of slate or stone is not stated in any form. By said instruction No. 2 counsel said at the trial: "The plaintiff in his complaint

*

*

* charges that the defendant company was negligent, in that it failed by and through its mine boss to visit and examine the roof of room No. 7, and in negligently failing to discover that the piece of slate that fell and produced plaintiff's injuries was loose, and in failing to discover and make secure the roof of said room by taking down said loose and dangerous piece of slate or stone. * I instruct you, gentlemen, that these allegations in plaintiff's complaint are material allegations, and before you are authorized to return a verdict for the plaintiff must you find that the defendant was negligent in failing to have its mine boss visit said

June 5, 1913.)

1. NEW TRIAL (§ 59*)-SPECIAL INTERROGATORIES-CONFLICTING ANSWERS.

If the answers to special interrogatories are irreconcilably conflicting with the general verdict, a new trial should be granted.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 125; Dec. Dig. § 59.*] 2. MASTER AND SERVANT (§ 150*)-WARNING SERVANTS-DUTY.

As a rule an employer must warn and instruct his employés concerning dangers of which he knows or should know in the exercise of them or not discoverable by the exercise of reasonable care, and which are unknown to reasonable care.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. § 150.*]

3. MASTER AND SERVANT (§ 153*)-WARNING EMPLOYÉS-YOUTHFUL EMPLOYÉS.

An employer must instruct a minor employé as to all dangers, whether open or con

IBACH, J. In this action appellee recovered judgment against appellant in the sum of $500 for personal injuries caused by appellant's negligence. The only error presented relates to the court's action in overruling appellant's motion for judgment on the answers to interrogatories returned by the jury, notwithstanding the general verdict.

Answers to special interrogatories in an action by a minor employé for injuries to his eyes by rubbing muriatic acid, used in his work, therein, because of alleged failure to warn him of the danger, finding that plaintiff "by the diligent use of his faculties" could have known of the danger of muriatic acid, were not irreconcilably conflicting with a general verdict for plaintiff, where the answers also showed that he had not learned of the danger from us-part that he had not learned of the danger from using the acid.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*]

5. MASTER AND SERVANT (§ 125*)-INJURIES CONSTRUCTIVE KNOWLEDGE OF DANGER.

An employer is presumed to know the dangers both latent and obvious arising from performance of the duties imposed upon employés. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. 125.*]

6. MASTER AND SERVANT (§ 296*)-CONTRIBUTORY NEGLIGENCE "DILIGENT"-"DILIGENT USE OF HIS FACULTIES."

The word "diligent" is defined to mean attentive and persistent in doing a thing, steadily applied, active, sedulous, laborious, unremitting, untiring, etc., and the expression "diligent use of his faculties" in an instruction with reference to a minor employé's duty to protect himself requires the use of care beyond the ordinary or reasonable use of his senses which is the standard of care required of him by law.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. §. 296.*]

7. NEGLIGENCE (§ 68*)-"CONTRIBUTORY NEG

LIGENCE.'

One is guilty of contributory negligence only where he fails to use ordinary or reasonable care to avoid injury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 92, 94, 95; Dec. Dig. § 68.*

For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.]

The amended complaint of a single paragraph states that appellee was an ignorant foreign boy, who was employed by appellant as a tinner's helper, in which capacity he was required to wipe muriatic acid from that part in a pipe where joints were soldered together, that in so doing some of the acid was brought in contact with his hand, and he not knowing the danger of muriatic acid coming in contact with his eye rubbed his eye with his hand, and the acid coming in contact with his eye completely destroyed the sight thereof. The theory of the complaint is that appellant was under a duty to instruct appellee as to the poisonous and dangerous nature of the acid, and the manner in which it might have been used without injury to himself, but that it neglected this duty, and by reason of its negligence in this respect appellee was injured. In answering the interrogatories, the jury finds specially that plaintiff at the time of his injury was about 18 years of age, that he had been employed in the work at which he was engaged when injured from June 20, 1906, to July 30, 1906. The following questions and answers are set out verbatim: “(7) In wiping joints with muriatic acid, did the plaintiff use a damp or wet rag or piece of cloth of some sort? Yes. (8) Did the plaintiff perform this service several times a day each day while he was in the employment of the defendant? Yes. the defendant? Yes. (9) Was muriatic acid used for the purpose of eating metal with which it came in contact? Yes. (10) Was which it came in contact obvious to one seethe action of the acid upon the metal with

8. MASTER AND SERVANT (§ 230*)-CONTRIBU-ing it applied to the metal? Yes. (12) Does TORY NEGLIGENCE-CARE REQUIRED-YOUTH- muriatic acid discolor the skin when it FUL EMPLOYÉ.

Where the dangers to an employé are latent or of such a character as not to be appreciated because of the employé's youth or inexperience, he is only held to an ordinary exercise of his senses for his own protection.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 687-700; Dec. Dig. 8

230.*]

comes in contact therewith? Yes. (13) Was
the plaintiff at the time of his alleged injury
in full possession of the faculties and of
average intelligence? Yes. (14) Did the
plaintiff at said time speak and understand
the English language? No.
plaintiff at the time of his alleged injury
(15) Did the

know the nature of the acid with which he

Appeal from Circuit Court, Hancock Coun- was working? No. (16) Could the plaintiff ty; Robert L. Mason, Judge.

Action by John Foster against Kingan & Co., Limited. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H. H. Miller, C. C. Shirley, S. D. Miller, and W. H. Thompson, all of Indianapolis, for appellant. Stephen A. Clinehens and Clyde P. Miller, both of Indianapolis, for appellee.

by the diligent use of his faculties have known prior to the time of his alleged injury of the danger of muriatic acid coming in contact with his eyes? Yes. (17) Did the plaintiff learn prior to the time of his alleged injury of the dangers attendant upon the use of muriatic acid? No. (18) Did the acid frequently get on plaintiff's hands while performing his work prior to his alleged in

jury? Yes. (19) Did the acid when it came in contact with plaintiff's hands cause them to smart at times? Yes. (20) At or about the time plaintiff claims to have been injured had he been wiping muriatic acid from a joint that had been soldered by the tinner? Yes. (21) Was the plaintiff perspiring at the time of his alleged injury? Yes. (22) Could the plaintiff by the exercise of ordinary care have prevented the acid from coming into contact with his eye? Yes. (24) Would the accident in question have occurred if the plaintiff had not wiped his face or eye with his hand or cloth in his hand, while there was muriatic acid on his hand or such cloth? No." It is insisted by appellant that these answers to interrogatories, especially those to 16, 22, and 24 show that by the use of the degree of care for his own safety demanded of him by law plaintiff could have known the dangerous character of the acid used by him in his employment of wiping the soldered joints of iron and could have prevented his injury.

to the intelligence or experience of the employé, in the exercise of ordinary care on his part, this care being measured by the maturity of his faculties and the amount of his experience." Section 4093. Labatt states the rule thus: "The rule actually applied by the courts is merely this: The master is liable for failure to instruct a minor, 'unless both the danger and the means of avoiding it are apparent and within the comprehension of the servant.'" Labatt, Master and Servant (2d Ed.) § 1145.

[4] The jury finds by its general verdict that no warnings or instructions of any kind were ever given appellee as to the dangerous character of the fluid he was required to use in his work: It is found by an answer to an interrogatory that plaintiff by the diligent use of his faculties (our italics) could have known of the danger of muriatic acid coming in contact with his eyes. To properly determine whether the answer to this interrogatory is in irreconcilable conflict with the general verdict, we must consider the gener[1] The general verdict finds in favor of al verdict and the facts shown by the anappellee upon every material averment of the swers to the other interrogatories, especially complaint, including the charge that appel- 15 and 17, which show that he did not know lant negligently failed to instruct appellee as of the nature of the acid and had not learnto the danger attending the use of muriatic ed of the dangers attending its use. It is acid, and that he was not guilty of any neg- said in the case of Haynes v. Erk, 6 Ind. ligence contributing to his injury. If the App. 336, 33 N. E. 638, a case similar to the answers to the interrogatories are in such present: "The fact that appellee might, by irreconcilable conflict with the general ver- the use of his eyesight, have seen that the dict as to be beyond the possibility of being work was dangerous, or that he by the use removed by any evidence properly admis-of his reasoning faculties might have realized sible under the issues, appellant's motion for and avoided the danger which he was incurjudgment in its favor should have been sus-ring, is not sufficient, under the circumstanctained, otherwise there was no error in re-es, to enable the court to say as a matter of fusing it. law that appellee was guilty of contributory negligence."

[2] The general rule applicable to this class of cases is thus stated by Thompson in his work on Negligence, § 4055: "Generally speaking, an employer is bound to warn and instruct his employés concerning dangers known to him, or which he should know in the exercise of reasonable care for their safety, and which are unknown to them, or are not discoverable by them in the exercise

of such ordinary and reasonable care as in their situation they may be expected and required to take for their own safety, or concerning such dangers as are not properly appreciated by them, by reason of their lack of experience, their youth, or their general incompetency or ignorance, and unless the servant is so warned or instructed he does not assume the risk of such dangers; but, if he receives an injury without fault on his part in consequence of not having received a suitable warning or instruction, the master is bound to indemnify him therefor."

[3] In case of a minor employé, "the master is here, as in every other case, bound to act reasonably and justly; and this rule requires him to give suitable warning and instructions to a minor employé in regard to any danger, whether open or or concealed,

[5] The master in charge of the factory in the present case by whom appellee was employed is presumed to have known of the dangers both latent and obvious which appellee would encounter in the performance of his duties and as to those risks and dangers which were latent or of such a character that by reason of appellee's youth, ignorance,

or inexperience he was not able to understand or appreciate he should as far as possible have been given warning by appellant. Appellee was merely a common laborer in appellant's shop, an inexperienced foreign boy, and it is not reasonable or fair to say that he would be possessed of such knowledge as was necessary to comprehend the exmuriatic acid without instruction. The law treme danger attendant upon the use of therefore enjoined upon him while using the dangerous fluid the exercise of ordinary care to protect himself from the known dangers of his employment, or the dangers which by the exercise of reasonable and ordinary care on his part might have been discovered. But interrogatory 16 is based upon a higher degree of care than this.

"attentive and persistent in doing a thing, [ on the answers to the interrogatories is ensteadily applied, active, sedulous, laborious, tirely justified under the facts of this particunremitting, untiring," etc. Century Diction-ular case, and, when so interpreted, there is ary. So that the expression "diligent use no conflict between the general verdict and of his faculties" includes a duty to use care the answers upon the question of contributory beyond the "ordinary or reasonable use of negligence, and the motion of appellant for his senses," which is the degree of care en- juagment on the answers to interrogatories joined upon him by law. We entertain no was properly overruled. doubt judging from the general verdict and Judgment affirmed. the answers to the remaining interrogatories that the answer to the sixteenth interrogatory would have been entirely different if the question had referred to the exercise of such ordinary care as a reasonably prudent person would have exercised under like conditions and circumstances to discover the danger of muriatic acid coming in contact with his eyes.

(53 Ind. App. 495)

STATE ex rel. BOARD OF COM'RS OF
MARION COUNTY v. QUILL et al.
(No. 8,601.)

(Appellate Court of Indiana, Division No. 2.
June 3, 1913.)

CLERKS OF COURTS (§ 35*)-COMPENSATIONS
AND FEES-STATUTORY PROVISIONS.

[7, 8] It is only where a person has failed to use ordinary or reasonable care to avoid an injury that he can be said to be guilty of contributory negligence. In some cases, in the presence of a known danger, as where a traveler is about to cross a railroad, th courts have held that ordinary care under such circumstances demands the diligent use of one's faculties, but a servant in the exercise of the ordinary care demanded of him to discover dangers of which the master should have warned and which are either latent, or of such a character as to be un-ed and account for the balance to the bureau of appreciated by him, because of inexperience or youth is held to only the ordinary use of his faculties and senses.

[Ed. Note.-For other cases, see Clerks of Courts, Cent. Dig. § 62; Dec. Dig. § 35.*]

Under Const. U. S. art. 1, § 8, providing uniform rules of naturalization, and to make that Congress shall have power to establish all laws necessary and proper for carrying such powers into execution, and Act Cong. June 29, 1906, c. 3592, 34 Stat. 596 (U. S. Comp. St. Supp. 1911, p. 124), conferring on state courts of record jurisdiction in the naturalization of aliens, the state courts in naturalization cases act as an agency of the federal government, and its officers are officers of the federal government in that behalf, and hence under the provisions of the act of Congress mentioned authorizing clerks of courts to retain one-half of the fees collectimmigration and naturalization the portion retained by a clerk of the circuit court belongs to him, and not to the county, notwithstanding Burns' Ann. St. 1908, § 7324, providing The answers to 22 and 24 can only be that such fees shall be the property of the county; section 7226 providing that the county understood to mean that the plaintiff could officers named in the fee and salary act shall have prevented the acid from coming into be entitled to receive the compensation therein contact with his eye, if he had known of the specified and no other compensation whatever, and section 7353 providing that nothing in that danger from such contact. If he did not act shall be construed to allow any of the ofknow of the danger, he would not be charge- ficers named the salary provided, and also the able with contributory negligence for allow-fees required to be taxed, except as otherwise specified. ing the acid to touch his eye. This court in considering a similar question in the case of Flickner v. Lambert, 36 Ind. App. 524, 74 N. E. 263, held that when it was apparent that the defendant had failed to instruct the plaintiff as to the manner in which a dangerous machine might be operated with safety, and in answer to an interrogatory the jury found that the plaintiff knew without any warning or instructions his hand or fingers would be cut off if he got them in the roller or knives, and in answer to another that he knew or should have known in the exercise of ordinary care, without having his attention drawn to it, or without warning or instruction, that it was dangerous to put his hand near or against the rollers of the machine at which he was working, and another answer showed that with "proper instruction" plaintiff could have avoided the injury, the presumption obtains in support of the general verdict that the jury intended to show that the former answer was qualified with the phrase "with proper instructions." The interpretation which we have placed up

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by the State, on the relation of the Board of Commissioners of Marion County, against Leonard M. Quill and others. From a judgment sustaining a demurrer to complaint, plaintiff appeals. Affirmed.

Thomas M. Honan, Atty. Gen., Thomas H. Branaman, of Indianapolis, Edwin Corr, of Bloomington, and James E. McCullough, of Indianapolis, for appellant. Martin M. Hugg, of Indianapolis, for appellees.

ADAMS, J. The errors assigned in this appeal are predicated on the sustaining of appellee's demurrer to appellant's complaint. The action was brought against appellee Quill as clerk of the Marion circuit court and his bondsmen to recover $1,289.50, being one-half of fees collected by him in proceedings for the naturalization of aliens, and not turned over to the county of Marion.

United States and for the final hearing thereon, two dollars; for entering the final order and issuance of the certificate of citizenship thereunder, if granted, two dollars. The clerk of any court collecting such fees is authorized to retain one half of the fees collected by him in such naturalization proceedings; the remaining one half of the naturalization fees in each case collected by such clerks, respectively, shall be accounted for in their quarterly accounts, which they shall render the bureau of immigration and naturalization, and paid over to such bureau within thirty days from the close of each quarter of each fiscal year. * It is also provided that clerks shall be permitted to retain one-half of the fees in any fiscal year up to the sum of $3,000; that all such fees received by clerks in excess shall be accounted for and paid over to said bureau. It is further provided that clerks shall pay all additional clerical force required in performing the duties imposed from fees received in naturalization proceedings. The forms used in naturalization cases are set out in the act, all blanks are furnished by the federal bureau of immigration and naturalization, and clerks are required to account to said bureau for such blanks.

The single question presented by the rec- | ing, filing, and docketing the petition of ord and briefs is, Do the fees so collected an alien for admission as a citizen of the and retained by the clerk belong to him, or do such fees belong to the county of Marion? The question is one of first impression in this state, and is not free from doubt. We believe, however, that the better reason, as well as the weight of authority, is with the appellee. By section 7226, Burns 1908, it is provided that the county officers named in the fee and salary act shall be entitled to receive for their services the compensation specified in the act, and shall receive no other compensation whatever. By section 7353, Burns 1908, it is provided that nothing herein shall be construed as to allow any of the officers named the salary provided and also the fees required to be taxed, except as otherwise specified. Section 7324, Burns 1908, being section 114 of the fee and salary act, in force June 28, 1895, is in part as follows: "The clerks of the circuit, criminal and superior courts of this state on behalf of the county in which said courts are held, shall tax and charge upon proper books, to be kept in their offices for that purpose, the fees and amounts provided by law, which amounts so taxed shall be designated as 'clerk's costs,' but they shall in no sense belong to and be the property of the clerk, but shall belong to and be the property of the county. For recording and indexing each declaration of intention of any person desiring naturalization, administering oath of abjuration and issuing certified copy thereof under official seal to applicant, one dollar. For making and indexing record of the naturalization of any person, administering oath of abjuration and issuing certificate of naturalization, with official attestation and seal attached, one dollar." By section 236, Burns 1908, all statutes of the United States in force and relating to the subjects over which Congress has the power to legislate for the states, and not inconsistent with the Constitution of the United States, are declared to be a part of the laws governing this state.

*

*

Under section 8, art. 1, of the federal Constitution, it is provided that Congress shall have power to establish uniform rules of naturalization throughout the United States, and to make all laws which shall be necessary and proper for carrying into execution such powers. It must follow that in the exercise of the power thus conferred Congress has exclusive jurisdiction over the subject of the naturalization of aliens. By Act Cong. June 29, 1906, c. 3592, 34 U. S. Stats. at Large, 596 (U. S. Comp. St. Supp. 1911, p. 124), jurisdiction in the naturalization of aliens was conferred on state courts of record. It is provided by said act (9055 K, Burns 1908) that "the clerk of every court exercising jurisdiction in naturalization cases shall charge, collect, and account for the following fees in each proceeding: For receiving and filing a declaration of intention and issuing

It is not seriously contended by appellee that the amount retained by the clerk and sued for in this action does not fall within the meaning of the term "fees." The charge for services required by the federal act to be performed by clerks of state courts implies a fee, and is specifically designated in the act as a fee. But it is contended by appellee that, the fees in naturalization cases being authorized by the federal statute, the clerk becomes the agent of the United States in rendering such services, and is not bound by a state law in regard to the disposition of such fees. It is well settled that a state law which is in conflict with an act of Congress is invalid. It follows, therefore, that the fee and salary law of Indiana, as to clerk's fees in naturalization cases, enacted in 1895 (Laws 1895, c. 145), has been repealed by the federal act of 1906. It must also follow that since its enactment the latter act constitutes the only law in this state on the subject of fees in such cases. County of Hampden v. Morris, 207 Mass. 167, 93 N. E. 579, Ann. Cas. 1912A, 815; Eldredge v. Salt Lake County, 37 Utah, 188, 106 Pac. 939; Fields v. Multnomah County (Or.) 128 Pac. 1045. While the language employed in the Indiana act (section 7324, supra) is broad and comprehensive, yet our Supreme Court has held that a county officer is not required to account to the county for all compensations received by him by virtue of his office; that the act of 1895 does not require a county auditor to charge the amount allowed by a former statute for his services as a member of the