before and its value after the street changes. | is whether the Legislature permits such Consideration of the benefits conferred is as amendments. R. L. C. 189, § 1, provides that essential an element in ascertaining compen- “all personal actions, except actions of tort sation as consideration of the injury caused. for malicious prosecution, for slander or libel Both must be taken into account and weighed or for assault and battery and actions for the one against the other before the right re- replevin, may be commenced by the trustee sult can be reached. It follows that it was process. This language is an unequivocal a part of the petitioner's case in chief to prohibition against the commencement of an offer her evidence touching the benefits accru- action for malicious prosecution by trustee ing as well as the injury suffered. Having process. It has been the continuous statute failed to proffer such evidence before resting, of the commonwealth touching actions of this it was discretionary with the trial judge sort since St. 1791, c. 65, § 1. See Rev. St. whether she should be permitted to introduce c. 109, SS 1, 17; Gen. St. C. 142, SS 1, 75; Pub. it for the first time in reply to the defense. St. C. 183, § 1; R. L. C. 173, $ 48, which auExceptions overruled.

thorizes the allowance of any "amendment in matter of form or substance * * *

which may enable the plaintiff to sustain (215 Mass. 83)

the action for the cause for which it was inGUARINO V. RUSSO.

tended to be brought, or which may enable (Supreme Judicial. Court of Massachusetts.

the defendant to make a legal defense," must Suffolk. May 24, 1913.)

be interpreted in the light of this express ACTION

(8 36*)–CHANGE OF CHARACTER OR inhibition. Within its field the statute perFORM AMENDMENT STATUTES – CON- mitting amendments is given a broad and libSTRUCTION.

Rev. Laws, c. 189, § 1, provides that all eral interpretation; but it cannot override personal actions, except actions for malicious other equally clear statutes. The commenceprosecution, etc., may be commenced by trus-ment of an action means prima facie the date tee process, while chapter 173, § 48, authorizes the allowance of any amendment which will of the writ. Gardner v. Webber, 17 Pick. enable the plaintiff to sustain the action for the 407, 412. Subsequent amendments adding cause for which it was intended to be brought, new counts are allowable to enable the plainand section 121 provides that the adding of new tiff to sustain the cause of action for which counts is allowable to enable the plaintiff to sustain the cause of action for which he in- he intended to bring his writ, and the allowtended to bring his suit, and that the allowance ance of an amendment by the trial judge conof an amendment by the trial judge conclusive-clusively establishes the existence of that ly establishes the existence of that initial intent. #eld that, as the statute prohibiting the com- initial intent. R. L. C. 173, $ 121; Tracey v. mencement of action for malicious prosecution Boston & Northern St. Ry. Co., 204 Mass. 13, by trustee process has been a continuous one 90 N. E. 416. Therefore the situation is that since 1794, those provisions relating to amendments must be construed with reference to it. the plaintiff commenced his action. by trustee and therefore, where an action is commenced by process, then intending to include within its trustee process, no amendment setting up a scope an action for malicious prosecution, alcause of action for malicious prosecution can though the count setting out this ground be allowed, for, while the remedial statutes allowing amendments are to be given liberal con- was added later.

was added later. The explicit prohibition of struction, they cannot be construed so as to the statute against commencement by trustee violate the express provisions of other statutes. process of actions for malicious prosecution

[Ed. Note. For other cases, see Action, Cent. goes to the validity of the action and to the Dig. $$ 295–310; Dec. Dig. § 36.*]

jurisdiction of the court. It cannot be cured Esceptions from Superior Court, Suffolk by amendment. Hall v. Hall, 200 Mass. 194, County; Franklin G. Fessenden, Judge.

86 N. E. 363. It is not necessary to review Action by Guiseppi Guarino against Michele the numerous cases where this court has Russo. There was a verdict for plaintiff, given a liberal construction to the statute and defendant excepted. Exceptions sus- allowing amendments. Such is its settled tained, unless plaintiff file a remittitur.

policy in interpreting and applying remedial Wm. R. Buckminster and John E. Crowley, statutes. But when the Legislature has seen both of Boston, for plaintiff. John Lowell fit expressly to prohibit the commencement and Kenneth Howes, both of Boston, for de- of any action by a specified process, it is not fendant.

reasonably possible to circumvent that plain

mandate by the allowance of an amendment, RUGG, C. J. The decisive question pre- which would transform the action into one of sented in this case is whether an action of the prohibited kind. See Church v. Philips, tort begun by trustee process can be amended 157 Mass. 566, 32 N. E. 911. The exceptions by striking out the portions of the writ must be sustained unless the plaintiff within which make it trustee process, so as to en- 15 days from the date of the rescript is perable it to be maintained for malicious prose-mitted to amend his declaration by striking cution. The determination involves a con- out the fifth count of his declaration and struction of statutes. There is no inherent files a remittitur of the amount awarded as or constitutional reason why such amend- damages on that count. ments cannot be allowed. The only inquiry So ordered.

OF

(180 Ind. 296)

chine, and who was incompetent to do such SIMPLEX RY. APPLIANCE CO. V. KAM-work; that defendant was negligent in the ERADT. (No. 21,907.)?

employment of such incompetent operator. (Supreme Court of Indiana. June 20, 1913.)

In the bed of this machine was a plunger, 1. MASTER AND SERVANT (8 265*)—BURDEN OF driven upwards by steam power against the PROOF-INCOMPETENCY OF FELLOW SERV- spring inserted, so as to crush the same toANT.

gether against a stationary top, and thus In an action for injuries because of the tested its strength and elasticity. The plungmaster's negligent employment of an incompetent fellow servant, but not alleging negli- er was operated by pulling a lever, and this gence in his retention, plaintiff had the burden work was done by Barman. When injured, of proving that his injury was the proximate the appellee was placing a spring on the result of the unfitness of such fellow servant, plunger, and before he had removed his with ordinary care should have known, of such hand from the spring the operator released unfitness.

the plunger, which drove the spring, with [Ed. Note.-For other cases, see Master and appellee's hand on it, against the top of the Servant, Cent. Dig. $8 877-908, 955; Dec. Dig. machine, and thereby cut off some of appel$ 265.*) 2. MASTER AND SERVANT ($ 170*)—MASTER’s machine, the operator should wait until the

lee's fingers. In the proper operation of the LIABILITY INCOMPETENCY OF FELLOW SERVANT.

employé inserting the spring should have reA master must use due care in engaging moved his hand therefrom, before moving servants who are reasonably competent for the the lever which released the plunger. This duties assigned them; the rule requiring the exercise of ordinary care, such as men of rea- accident happened because the operator, sonable prudence observe, and the question of Barman, pulled the lever too soon. competency depending upon the servant's physi

There was a trial by jury, verdict for apcal, moral, and mental qualifications for the task assigned, and, if the employment be for pellee, with answers to interrogatories. Apthe operation of an intricate machine, also of pellant's motion for judgment on the answers his skill and experience with reference to such to interrogatories was overruled; also its or similar machinery.

motion for a new trial. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $ 336; Dec. Dig. $ 170.*]

Appellant claims that it was entitled to 3. Master AND SERvant ($ 168*)-MASTER'S judgment on said answers, but we cannot LIABILITY INCOMPETENCY

FELLOW say that they are such as to overthrow the SERVANT.

general verdict. Where a servant operated a simple spring

Under the reasons assigned in the motion testing machine by pulling and returning a lever, understood its operation when employed, for a new trial, it is contended here that the and had not been guilty of any careless act be evidence is insufficient to sustain the verdict. fore the accident, and where his lack of mental One of the claims is that appellee was, when qualifications did not affect his competency to operate it, that requiring little skill, his inat- injured, not in the line of his employment. tention in pulling the lever too soon sending We regard the contrary as established by up a plunger and injuring the hand of plaintiii, the evidence. who was holding a spring, the master was

Appellant maintains there is an entire abguilty of no negligence causing the plaintiff's injuries; the short experience of such servant sence of evidence to show the failure of any not being material.

duty on its part in relation to the employ[Ed. Note.-For other cases, see Master and ment of the operator, Barman. Servant, Cent. Dig. $8 334, 335, 337–340, 349;

[1] The burden was on appellee to prove Dec. Dig. $ 168.*]

(1) that his injury was the proximate result Appeal from Superior Court, Lake Coun- of the unfitness of Barman to discharge the ty; T. M. C. Hembroff, Special Judge. duties assigned him, and (2) that, in em

Action by Frank Kameradt against the ploying Barman, appellant knew, or in the Simplex Railway Appliance Company. Judg-exercise of ordinary care and prudence ment for plaintiff, and defendant appeals. should have known, of such unfitness. The Transferred from Appellate Court under complaint makes no charge of negligence Burns' Ann. St. 1908, § 1405. Reversed, and because of the retention of Barman in its new trial granted.

employ. L. L. Bomberger, of Hammond, and Ralph [2] The law requires of the master that F. Potter, of Chicago, Ill., for appellant. D. he shall use due care in engaging the servJ. Moran, of Hammond, for appellee.

ices of those who are reasonably fit and

competent for the performance of the reMORRIS, J. Action by appellee against spective duties assigned them. Labatt, Masappellant for personal injuries.

ter and Servant (2d Ed.) § 1079. The rule It is alleged in the complaint that ap- requires the exercise of ordinary care, such pellant was engaged in manufacturing car as men of reasonable, ordinary prudence obsprings, and tested its products by means of serve. a machine called a spring tester; that ap- The question of the competency of the pellee's hand was injured in the machine servant includes a consideration of his physbecause of the negligence of a fellow servant, ical, moral, and mental qualifications for the named Barman, who was operating the ma- | task assigned, and, if the employment be for the operation of a machine, especially of an It is true that the accident happened only intricate nature, also of his skill and expe- two or three days after Barman had been rience with reference to such or similar ma-assigned to his new duties, but under the chinery.

facts disclosed the short experience of Bar[3] There is no evidence here whatever of man was not material. Ohio, etc., R. Co. v. any physical or moral defect in Barman. Dunn, 138 Ind. 18, 36 N. E. 702, 37 N. E.

, , Originally he had been employed on farms 546; Texas, etc., R. Co. v. Berry, 67 Tex. and in cement construction work. About 238, 5 S. W. 817. The accident did not rethree months before the accident he was em- sult from lack of experience, for Barman ployed by appellant as a laborer in its fac-well knew how the machine was operated. tory. His duty, at first, was to wheel car There was no evidence that warranted the springs to and from the testing machine. jury in finding that any neglect on appelFor a period of at least six weeks before lant's part caused, or helped to cause, ap. the accident he was engaged in sticking pellee's injury. springs in the testing machine in controver- Judgment reversed, with instructions to sy, while the latter was operated by one grant appellant's motion for a new trial. Barget. On March 23d Barget resigned his position, and on March 25th following Barinan was assigned to operate the machine.

(179 Ind. 697) No outside investigation was made of Bar

WOODSMALL V. STATE. (No. 22,349.) man's fitness for his new duty. Appellant (Supreme Court of Indiana. June 19, 1913.) relied wholly on the results of its observa- 1. CRIMINAL LAW ($ 970*)-MOTION IN ARtion and knowledge of him while in its em

REST-REQUISITES OF INDICTMENT. ploy. On March 25th Barman operated the same test by motion in arrest of judgment as it

While an indictment is not subject to the machine alone, sticking in the springs with is by a motion to quash, yet by the express one hand and operating the lever with the terms of Burns' Ann. St. 1908, § 2159, cl. 2, other. At that time appellee had been em- as against a motion in arrest' an indictment

must state facts sufficient to constitute a pubployed for about three weeks in wheeling lic offense. springs to and from the machine. On the [Ed. Note.-For other cases, see Criminal afternoon of March 26th appellee commenced Law, Cent. Dig. $S2445–2462; Dec. Dig. $ sticking springs in the machine, and contin-970.*] ued such work until he was injured on the 2. INDICTMENT AND INFORMATION ($ 202*)afternoon of March 27th.

DEFECTS AIDER BY VERDICT MOTION TO

QUASH-MOTION IN ARREST. The operation of the machine consisted

A fact material to constitute an offense, if merely in pulling and returning the lever stated in defective manner or form, on motion and inserting and removing springs. Both

to quash, may render the indictment insuffiappellee and Barman fully understood its would be cured by verdict.

cient, while such defect on moțion in arrest operation. There is no evidence that Bar- [Ed. Note.-For other cases, see Indictment man was guilty of any careless act before and Information, Cent. Dig. $$ 640-650 ; Dec. the accident. He knew how to operate the Dig. § 202.*] machine when employed. The jury expressly 3. CRIMINAL LAW ($ 970*)—MOTION IN ARfound this fact by their answers to interrog

REST-TECHNICAL DEFECTS.

Where an indictment is first assailed by atories, and there is no evidence that would motion in arrest of judgment, mere technical have warranted any other finding.

defects or errors must be disregarded, as proIt is claimed by appellee that the jury was vided by Burns' Ann. St. 1908, § 2221. warranted in finding that Barman was not a Law, Cent. Dig. ss 2445–2462; Dec. Dig. $

[Ed. Note. For other cases, see Criminal person of ordinary intelligence. It may be 970.*] that in some respects this claim finds some 4. CRIMINAL LAW (8 970*)-MOTION IN _ARsupport in the evidence. His knowledge of REST-OBTAINING MONEY BY FALSE PREarithmetic was below that of the average

TENSES — INDICTMENT — FALSIFICATION OF

PRETENSE. man, but there is no evidence that his lack

Where an indictment for conspiracy to obof mental qualifications in any way affected tain money by false pretenses alleged that dehis competency to operate the machine in fendants falsely pretended, etc., but did not controversy. Very little skill was required ly defective as against a motion' in arrest of

charge that the pretense was false, it was fatalin the simple operation of this tester, and judgment. the injury did not result from unskillfulness, [Ed. Note.-For other cases, see Criminal but from lack of watchfulness-inattention. Law, Cent. Dig. 88 2445–2462'; Dec. Dig. $ Harvey v. New York, C. & H. R. R. Co.,

970.*] 88 N. Y. 481; Baltimore Elevator Co. v. Appeal from Circuit Court, Sullivan CounNeal, 65 Md. 438, 5 Atl. 338; Couch v. Wat-ty; William R. Nesbit, Special Judge. son Coal Co., 46 Iowa, 17; Hatt . Nay,

Samuel W. Woodsmall was convicted of 144 Mass. 186, 10 N. E. 807; McIntosh v. conspiracy to obtain money by false preJones, 36 Mont. 467, 93 Pac. 557, 14 L. R. tenses, and he appeals. Reversed, with inA. (N. S.) 933; Walkowski v. Penokee & G. structions. C. Mines, 115 Mich. 629, 73 N. W. 895, 41 Charles D. Hunt and Gilbert W. Gambill, L. R. A. 33, and notes.

both of Sullivan, for appellant. Thomas M.

Honan, Atty. Gen., and Thomas H. Brana- | the said Luella Mills, to the injury of the man, Deputy Atty. Gen., for the State. said Luella Mills, contrary to the form of

statute in such cases made and provided, MORRIS, J. Appellant, with others, was and against the peace and dignity of the indicted for conspiracy to commit the crime state of Indiana.” Appellant contends that of obtaining money by false pretense, as de- | the indictment is fatally defective because it fined by sections 2588 and 2647, Burns 1908. fails to negative the alleged pretense. On a plea of not guilty, he was tried by a [1, 2] While an indictment is not subject jury, and convicted. He filed a motion in to the same test by motion in arrest as it is arrest of judgment, in which he averred that by motion to quash, yet by the terms of secthe facts stated in the indictment do not tion 2159, Burns, cl. 2, supra, it must on motion constitute a public offense. Section 2159, cl. in arrest state facts sufficient to constitute a 2, Burns 1908.

public offense. A material fact constituting The only question presented here is predi- the offense, if stated in defective manner or cated on the action of the trial court in over- form, may on motion to quash render the inruling this motion. So much of the indict- dictment insufficient, while such defect on ment as is pertinent to this controversy! motion in arrest would be cured by verdict. reads as follows: “Samuel W. Woodsmall, Woodworth v. State (1896) 145 Ind. 276, 43 Emanuel Purcell, and Charles C. Riggs N. E. 933, and cases cited. A fact, fairly * * did

unite, combine, con- and rationally inferable from facts pleaded, spire, confederate, and agree to and with though stated argumentatively and indirecteach other for the object and purpose and ly, may be deemed as averred. Agar v. with the unlawful and felonious intent to State, 94 N. E. 819; Domestic Block Coal then and there feloniously, unlawfully, know- Co. v. De Armey, 100 N. E. 675. ingly, and falsely pretend to one, Luella [3] This rule is, at least, applicable, when Mills, with intent then and there and by such an indictment is first assailed by motion in false pretense to cheat and defraud the .said arrest. Mere technical defects or errors in Luella Mills for the purpose of obtaining such event should be disregarded. Section from the said Luella Mills two hundred 2221, Burns 1908. In Pattee v. State (1887) ($200.00) dollars in money, which money then 109 Ind. 545, 10 N. E. 421, this court said in and there belonged to the said Luella Mills; reversing a judgment, where the sufficiency that the said defendants, Samuel W. Wood of the indictment was not questioned by mosmall, Emanuel Purcell, and Charles C. Riggs tion to quash or in arrest of judgment, but falsely and fraudulently represented to Lu- was challenged for the first time in this ella Mills that there was a detective in the court: “It is indispensably essential to the town of Shelburn, Sullivan county, Indiana, validity of an information for obtaining and that the said detective was going to money by false pretense to aver that the arrest the said Luella Mills' son, James Lit- pretenses upon which the money was obtaintle, and the said defendant, Charles C. ed were false." This doctrine has since been Riggs, for the burning of the said James recognized and followed by this court. Funk Little's restaurant on the 15th day of Janu- v. State (1898) 149 Ind. 338, 49 N. E. 266, ary, 1912, and that the said defendants false and cases cited: Campbell v. State, 154 Ind. ly and designedly further represented to the 309, 56 N. E. 665; Whitson v. State, 160 said Luella Mills, with the intent to defraud, Ind. 510, 67 N. E. 265. that if she would pay two hundred ($200.00) [4] Here there is no attempt by averment, dollars in money to the defendant Samuel W. direct or indirect, defective, uncertain, or Woodsmall, he would pay it to the detective otherwise, to charge that the pretenses on and prevent the arrests and exposure, relying which the money was obtained were false; upon the said representations of the said and, consequently we are dealing, not with a defendants Samuel W. Woodsmall, Emanuel defective or uncertain averment that would Purcel, and Charles C. Riggs, and their false be cured by verdict, but with the entire abpretense, as aforesaid, and believing the sence of any averment. While it is recited same to be true and being thereby deceived in the averment of the pretense that defendand having no means of ascertaining the con- ants "falsely" pretended, etc., the use of trary, did then and there and by reason of the word "falsely" in such connection was said reliance and belief upon the said day not intended by the pleader as an averment pay to the defendants Samuel W. Woodsmall, to negative the alleged pretense, and cannot Emanuel Purcell, and Charles C. Riggs two be so construed here without doing violence hundred ($200.00) dollars in money, and the to well-recognized rules of criminal pleadsaid defendants Samuel W.

W. Woodsmall, ing. Emanuel Purcell, and Charles C. Riggs did Judgment reversed, with instructions to then and there and thereby receive and ob- sustain appellant's motion in arrest of judgtain possession by means of their false pre- ment. The clerk will issue the proper notice tense, as aforesaid, the said two hundrdu for the return of appellant to the sheriff of ($200.00) dollars in money, the property of Sullivan county.

(180 Ind. 289)

and sewers, and was enacted as section 122 MARION, B. & E. TRACTION CO. V. SIM-of the Towns and Cities Act of 1905 (Acts MONS. (No. 21,937.)1

1905, p. 219) under the title of "An act con(Supreme Court of Indiana. June 18, 1913.) cerning municipal corporations.”

" Article 4, 8

S 1. STATUTES ($ 120*)-SUBJECTS AND TITLE 19, of our state Constitution, provides that OF ACTS-CONSTITUTIONAL PROVISIONS. “every act shall embrace but one subject and

Burns' Ann. St. 1908, § 8729,, enacted as matters properly connected therewith, which section 122 of the Towns and Cities Act of 1905 (Laws 1905, c. 129), under the title of subject shall be expressed in the title.” But, "An act concerning municipal corporations,” | if the title covers a general subject, matters enacted for the general purpose of codifying germane to such subject may be included in the law as to the organization of towns and cities, and necessarily general in its title, and

the act, although not specifically mentioned providing that the board of public works might in the title. Nor is it necessary that details build or change the levees and make assess- be set out in such title.

be set out in such title. Knight & Jillson ments therefor, was germane to the general purpose expressed in the title of the act, so that Co. v. Miller, 172 Ind. 27, 87 N. E. 823, 18 it did not violate Const. art. 4, § 19, providing Ann. Cas. 1146; Swartz v. Board, ete., 158 that every act shall embrace but one subject Ind. 141, 63 N. E. 31; State v. Bailey, 157 and the matters properly connected therewith, Ind. 324, 61 N. E. 730, 59 L. R. A. 435; Maule which subject shall be expressed in the title, since, where a title covers a general subject, Coal Co. v. Partenheimer, 155 Ind. 100, 55 matters germane thereto may be included in N. E. 751, 57 N. E. 710; Pittsburgh, etc., R. the act, although not sufficiently mentioned in the title, and since it is unnecessary that the 69 L. R. A. 875, 71 Am. St. Rep. 301.

Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, details be set out in the title. [Ed. Note. For other cases, see Statutes,

It was the purpose of the act of 1905 to Cent. Dig. 88 168–172; Dec. Dig. $ 120.*] codify and re-enact the statute law of this 2. MUNICIPAL CORPORATIONS (8 425*), PUB- state as it applied to the organization of

LIC IMPROVEMENTS - LEVEES — "RIGHT OF towns and cities, and prescribed the powers WAY"_"PROPERTY."

and duties of their officers and boards. Its Under Burns' Ann. St. 1908, § 8729, authorizing the board of public works to make as- purpose was general, and of necessity its title sessments against such land or property as is was also general. The particular provisions situated within the boundaries of the district of its many sections could not well be even affected by the proposed improvement and benefited thereby, the word "property" means real suggested in more specific language, and in property, and includes an interurban "right of determining whether any given section is way,” which term has a twofold significance, within the scope of the title used it is only being sometimes used to mean the mere intangi: necessary to decide whether the subject-matble right to cross, a right of crossing, a right of way, and often used to otherwise indicate ter of such section is germane to the purpose that strip which a railroad appropriates to its for which the act was passed. One of the own use, and upon which it builds its roadbed. prime functions of a municipality is to pro

[Ed. Note.-For other cases, see. Municipal |tect and preserve the lives and property of its Corporations, Cent. Dig. 88 1031-1034; Dec. inhabitants. To do this, it is often necessary Dig. 8 425.*

For other definitions, see Words and Phrases, to make provision against the inflow of water vol. 6, pp. 5693–5728; vol. 8, pp. 7768–7770; from streams in time of flood, to remove vol. 7, pp. 6230-6234; vol. 8, pp. 7790, 7791.] excess water from lands by means of drains,

Appeal from Circuit Court, Grant County; and to guard against the spread of disease H. J. Paulus, Judge.

by the construction of proper sanitary sysAction by Oren J. Simmons against the tems. The statute here in question authorizMarion, Bluffton & Eastern Traction Com-es such provisions, and its subject-matter is pany. Judgment for plaintiff, and defendant germane to the general purpose of the act appeals. Affirmed.

of which it is a part. It is therefore not Abram Simmons and Frank C. Dailey, both unconstitutional for any defect in the title of of Bluffton, for appellant. J. F. Charles, of such act. Marion, for appellee.

[2] Appellant's second proposition is that,

if the statute is constitutional, it does not SPENCER, C. J. Action by appellee to col- warrant a recovery against appellant in this lect an assessment claimed to be due from action for the reason that no assessment appellant on account of the construction of against an interurban right of way is therein a certain levee in Grant county, and to fore- provided for. The statute authorizes the close a lien.

board of public works to make assessments [1] The proceedings were had under section against such "lands or property” as are situ8729, Burns 1908, and appellant's first con- ated within the boundaries of the district tention is that this statute is void for the affected by the proposed improvement, and reason that the subject thereof is not ex- which will be benefited by such improve pressed in the title of the act of which it ment. Of course, there can be no doubt that is a part. The statute authorizes the board the word “property” as there used means real of public works of any city of the first, sec- property as distinguished from personal propond, third, or fourth class to make provision, erty. The question then is: Does an interander certain conditions, for the construction urban right of way fall within the meaning or change of levees, water courses, drains, I of the phrase "lands or property"?

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes