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It was an assault and battery for defend-instruction ant, against plaintiff's will, with force and in a rude and insolent manner, to take hold of her, hug and kiss her, feel of her breasts, attempt to raise her clothing, and ask her to have sexual intercourse with him.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 3; Dec. Dig. § 6.* For other definitions, see Words and Phras-tained. es, vol. 1, pp. 539-540; vol. 8, p. 7582.] 3. ASSAULT AND BATTERY (§ 38*)-DAMAGES RECOVERABLE.

Loss of reputation and social standing did not necessarily follow an assault and battery by taking hold of plaintiff in a rude and inso-There lent manner, hugging and kissing her, feeling of her person, attempting to raise her clothing, and requesting her to have sexual intercourse with defendant; and, in the absence of evidence of such loss, damages therefor were not recoverable, and hence it was error to charge that damages might be given therefor.

2. ASSAULT AND BATTERY (§ 6*)-ACTS CON- [ because it does not tell the jury that the assault and battery must be unlawful. The instruction is not open to this objection. By it the jury was told that if it found certain facts from the evidence, it must find for the plaintiff; that is, it must find that the allegations of her complaint, averring an unlawful assault and battery, had been susAn assault and battery is necessarily unlawful, and when the facts constituting an assault and battery are shown, it is a mere redundant conclusion to state that the assault and battery are unlawful. There can be no doubt that the facts stated in the instruction would constitute an assault and battery. The jury was told that if it found certain facts, its verdict should be for the plaintiff. This was equivalent to telling it that such acts were unlawful. The province of the jury in a civil case is to ascertain the facts, not to decide whether certain acts are unlawful. It was the province of the court to declare the law of the case, and he made correctly the conclusion of law that a state of facts such as that set out in the instruction would constitute an unlawful assault and battery. He had previously, in other instructions given as a part of the same series with the one complained of, defined assault and battery, telling the jury that any injury actually done to the person of another in a rude and insolent manner, however slight the touching of the person, was unlawful, and an assault and battery. There was no error in giving instruction 4.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 53; Dec. Dig. § 38.*] 4. APPEAL AND ERROR (§ 1031*)-HARMLESS ERROR-INSTRUCTIONS-APPLICABILITY ΤΟ TO


As a general rule, it is reversible error to give an instruction concerning a fact or state of facts of which there is no evidence, unless it affirmatively appears that the party complaining thereof was not harmed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. & 1031.*]

Appeal from Circuit Court, Tippecanoe County; Richard P. De Hart, Judge.

Action by Martha B. Kenrick against Jacob B. Timmons. Judgment for plaintiff, and defendant appeals. Reversed and re


Reynolds & Sills, of Monticello, and Thompson & McAdams, of La Fayette, for appellant. Robert C. Pollard and Charles R. Pollard, both of Delphi, and Joseph B. Ross, of La Fayette, for appellee.

IBACH, J. Upon trial by jury, appellee recovered $675 for an alleged unlawful assault by appellant upon her person. The only errors presented to this court are in the giving of instructions 4 and 5 at appellee's request.

[3] Instruction 5 is in the following words: "If you find for the plaintiff, you will assess in her favor such damages, within the amount claimed, as you think she has sustained, and which will be a compensation to her for any loss or injury occasioned, which are the direct results of said defendant's conduct. In arriving at compensatory damages, the jury are not necessarily restricted to the naked pecuniary loss; for besides damages for pecuniary loss or injury, the jury may allow such as are the direct consequence of the act complained of, for injury to Mrs. Martha B. Kenrick's good repute, her social position, for physical suffering, bodily pain, anguish of mind, sense of shame, humiliation, and loss of honor." This was the only instruction on the measure of damages given. Appellant does not question that the elements of damages enumerated are proper under the averments of the complaint, but he claims that the instruction is erroneous, in that it does not restrict the jury to the consideration of the damage shown by the evidence, if any was shown; and he asserts that there was no testimony of any injury to appellee's good repute, or her social position, or of any loss of honor, nor any testimony from which such injury could be inferred.

[1, 2] Instruction 4 is in the following words: "If the jury believe and find from the evidence that on June 2, 1910, the defendant went to the home of plaintiff in the town of Pittsburg, Carroll county, Ind., and then and there requested said plaintiff to have sexual intercourse with him, and then and there, in a rude and insolent manner, and with force took hold of plaintiff, and hugged her and kissed her, and felt her breasts, and attempted to raise her clothing, during all of which time said defendant implored plaintiff to yield to his solicitations and have sexual intercourse, all of which was against the will of said plaintiff, then your verdict will be for the plaintiff." It [4] The general rule is that instructions is claimed that this instruction is erroneous, must be applicable to the evidence, and that

if an instruction is given concerning a fact | the evidence did not fully justify the giving or state of facts of which there is no evi- of the instructions. In the case of Kelley v. dence, it is reversible error, unless it ap- Kelley, the instruction expressly restricted pears affirmatively that the party complain- the jury to the consideration of certain ele ing of the instruction was not harmed. ments of damage, if such damage was shown. Southern R. Co. v. Crone, 99 N. E. 762, 766 Thus the jury was restricted to the evidence (point 13); Cleveland, etc., R. Co. v. Case in its consideration of the amount of dam(1910) 174 Ind. 369, 91 N. E. 238, and author- ages. Though the court in its opinion states ities cited; Summerlot v. Hamilton, 121 Ind. that no evidence was introduced as to the 87, 22 N. E. 973. extent of the damage for any of the injuriIn the present case there was not a syl- ous results, the effect of the opinion is only lable of evidence tending to show any loss that the jury had a right to consider all the of social position on the part of the plaintiff. elements of damages, without special proof Nor was there a syllable of evidence as to as to the amount, and the impression to be her loss of reputation, nor as to what her gained from reading the opinion is that the reputation was. The presumption of law is evidence before the jury was such that it that her reputation was good, and we must could find therefrom damages as to all the continue to presume that it has not been af- injurious results enumerated as elements of fected, in the absence of proof to the con- damage. In the present case there was no trary. Social position is a matter to be estab-evidence from which the jury could find any lished by proof. It does not necessarily fol-loss of good repute, or of social position. low from the fact that an assault and bat- The judgment is reversed, and the cause tery like that charged in the complaint has remanded for new trial. been committed that the person assaulted has lost in reputation, social standing, or honor. Such loss is to be established, like other elements of damage, by evidence, not necessarily direct evidence as to the amount of such damage, but at least evidence from which the jury could infer reasonably that there had been such loss. See, also, Totten v. Totten (1912, Mich.) 138 N. W. 257, and Sletten v. Madison, 122 Wis. 251, 99 N. W.


But the jury in the present case was not restricted to the evidence in awarding dam

ages. It was told to assess such damages as its members thought she sustained as the direct result of defendant's conduct, but was not limited to such damage as was shown in evidence. By this instruction the members of the jury were permitted to indulge in inference and speculation, as to the amount of damages sustained, without limitation except the bounds of their own thoughts. We believe that instruction 5 was misleading to the jury, in authorizing them to consider elements of damage upon which there was no evidence, and in not limiting them in their consideration of the amount of damage to the damage shown in evidence. We cannot say that appellant was not harmed by the instruction; hence its giving

constitutes reversible error.

Appellee relies upon the cases of Wolf v. Trinkle, 103 Ind. 356, 3 N. E. 110, and Kelley v. Kelley, 8 Ind. App. 606, 34 N. E. 1009, 36 N. E. 165, as supporting this instruction. We must admit that these cases lend strong color to her contention, yet we do not believe them controlling, in view of the universal rule that instructions must be applicable to the evidence. In the case of Wolf v. Trinkle, instructions similar to the one under discussion were given, but it does not appear that the objection here considered was there presented to the court, nor does it appear that

YOUNG et al. v. WILEY. (No. 7,871.) 1 (Appellate Court of Indiana. May 27, 1913.) 1. WILLS (§ 602*)-CONSTRUCTION-ESTATE DEVISED-DETERMINABLE FEE.

A will directing that testator's son should have certain described land with all the improvements thereon, and, if he die before his present wife, then said land to go to his children, vested in the son a conditional or determinable fee and not a fee simple.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1351-1359; Dec. Dig. § 602.*] 2. QUIETING TITLE (§ 34*)-COMPLAINT-ADVERSE CLAIM.


A bill by a devisee against his minor children to quiet title, setting out a clause of the will bequeathing the property in question to complainant in the bill subject to a conditionthe language was uncertain and cast a cloud al remainder in the minors and alleging that on the title, was insufficient to warrant a judgment quieting title in the devisee against the minors for failure to aver that ty adverse to the right and title of such comthey were making some claim to the properplainant, or that such claim was unfounded, and constituted a cloud on the devisee's title, as required by Burns' Ann. St. 1908, § 1116. Title, Cent. Dig. §§ 69, 71, 72, 76, 77; Dec. [Ed. Note.-For other cases, see Quieting Dig. § 34.*1]




Where a complaint by a devisee against his children to quiet title prayed for a condevisee was the owner of the property in fee, struction of the will so as to show that the and the judgment quieting the title in him as against his children necessarily involved such construction, it was conclusive against the children as to the construction of the will unless procured by fraud, though the complaint was insufficient to warrant a judgment quieting title, for failure to allege that the children were making an adverse claim to the property.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1053, 1284-1296; Dec. Dig. § 747.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r In lexes



(8 518*)-DIRECT

ATTACK-[of the complaint, and plaintiffs appeal. Re versed with instructions.

An attack on a judgment for fraud in its procurement is a direct attack, which is permitted notwithstanding the judgment questioned may appear on its face in all respects regular and valid.

Gavin, Gavin & Davis, of Indianapolis, for appellants. Erastus W. McDaniel, of Shelbyville, and Conner, Conner & Chrisman, of

[Ed. Note.-For other cases, see Judgment, Connersville, for appellee. Cent. Dig. §§ 961, 962; Dec. Dig. § 518.*] 5. JUDGMENT (§ 460*)-CONCLUSIVENESSSERVICE OF PROCESS-FRAUD.

A complaint, attacking a prior judgment against complainants for fraud, alleging that a summons was issued and not served on them, did not mean that no summons was issued and served on complainants and that the record did not show service of process on them, or, if the record did show such service, that it was fraudulently procured, and that a false return was made by the sheriff at the instance and request or with the knowledge of the adverse party, and hence it would be presumed, in determining the sufficiency of the complaint, that the summons was duly issued and served on the complainants, and that a true return thereof was made to the court and shown by the record.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. & 460.*]



This is a suit by appellants FELT, J. against the appellee to declare void a former judgment quieting title to certain real estate in Rush county, Ind., and to recover possession of the real estate.

There are 5 paragraphs of amended complaint, and a separate demurrer was tained to each of said paragraphs for insufficiency of the facts alleged to state a cause of action. The appellants have assigned as error the ruling of the court on the demurrer to each of said paragraphs. The first paragraph of complaint in substance alleges that on and prior to the 23d day of October, 1888, Lewis Young was the owner of the east half of the northwest quarter and the west half of the southeast quarter of section 27, township 12 north, range 6 east, in Rush county, Ind.; that on said day said Young died in Testator left certain real estate to Y. said county, testate, seised in fee simple of subject to the condition that if he died before said real estate; that he left a will, dishis present wife it should go to complainants, posing of all his property, and devised the his children. Thereafter Y., claiming a fee, brought suit against his minor children to real estate here in controversy as follows: quiet his title, in which he fraudulently pro- "I direct that my son Sebastian Young shall cured the appointment of a guardian ad litem have the west eighty acres of my land with to represent them, who made no actual de-all the improvements thereon, and, if he fense, and procured a judgment construing the will in accordance with his prayer, and holding that the minors had no interest in the property, after which the devisee died leaving his wife surviving and the complainants as his children referred to in the will, who had no knowledge of the suit until after the death of their father and until a short time before suit was brought to recover the land from a purchaser. Held, that the father, being under confidential relation to his children, was not entitled to any advantage or profit over them, and that the judgment as to them was voidable for fraud.

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[Ed. Note. For other cases, see Infants, Cent. Dig. § 314; Dec. Dig. § 110.*] 7. VENDOR AND PURCHASER (§ 231*)-BONA FIDE PURCHASER NOTICE MENT.

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Where it appeared of record that a father had procured a judgment against his infant children without any any presentation of their meritorious defense in a suit to quiet title, by which they were deprived of a remainder interest in the land, and such defense was apparent from the record itself, the facts constituted a warning to any purchaser of the property, and charged him with notice of the fraud, so as to deprive him of the rights of a bona fide purchaser for value.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513539; Dec. Dig. § 231.*]

should die before his present wife does, then
it shall go to his children;" that said
will was duly probated on the 9th day of
November, 1888, was
November, 1888, was never contested, an-
nulled, or in any way set aside, but remains
in full force and effect; that at the time
said will was so executed and probated said
Sebastian Young had two living children,
namely, Alvah C. Young and Della C. Young,
now Della C. Lawson, who are the appel-
lants herein; that, after the death of said
Lewis Young, appellants and their father
and mother continued to reside upon said
real estate until the 1st day of January,
1892; that on the 19th day of December,
1888, appellants' father, Sebastian Young,
filed his complaint in the Rush circuit court
against the appellants, which complaint, omit-
ting the caption, is as follows: "Sebastian
Young, plaintiff, complains of Della Young
and Alvah Young, defendants, and says, that
on the 25th day of April, 1882, Lewis Young,
late of said county, who was the father of
plaintiff and grandfather of defendants, ex-
ecuted an instrument in writing purporting
to be the last will and testament of said
Lewis Young; that afterwards, on the

Appeal from Circuit Court, Madison Coun- day of ty; Chas. K. Bagot, Judge.

1888, said Lewis Young departed this life, and on the 9th day of NoAction by Alvah C. Young and others vember of said year this will was left for against Elijah Wiley. A separate demurrer probate with the clerk of this court and was sustained to each of the five paragraphs was so probated as the law directs; that

judgment was so rendered without the issues and without jurisdiction over the person of appellants; that the same was fraudulently procured by Sebastian Young, and the court was by him deceived and misled, and was fraudulently and wrongfully procured to enter said judgment, and the same is null and void; that said Sebastian Young fraudulently and wrongfully procured said judgment for the purpose of fraudulently and wrongfully depriving his said infant children, now the appellants, out of their interest in said real estate, which they would acquire in the event of his death before that of his wife; that afterwards, on the 21st day of December, 1889, said Sebastian Young and wife executed on said real estate a mortgage for $1,600, and thereafter a foreclosure was brought upon said mortgage, and such proceedings were had that said real estate was sold to one Isaac H. Crane for $1,900 to pay and satisfy said mortgage, and on the 1st day of May, 1894, said Crane received

clause second of said will reads as follows: | his wife the fee-simple title to the real estate 'I direct that my son Sebastian Young shall in question vested in appellants; that said have the west eighty acres of my land with all the improvements thereon, and, if he should die before his present wife does, it shall go to his children.'" Plaintiff further says that he is the Sebastian Young referred to in said will, and that the defendants are his minor children who are referred to in said will. This plaintiff further says that it was the testator's intention and desire to devise said land, to wit, the east half of the northwest quarter of section 27, township 12, range 8, to this plaintiff in fee simple, but the wording of the will is meaningless and without effect, and leaves a cloud upon this plaintiff's title. Wherefore plaintiff prays that said will be so construed as to devise him said land in fee simple, that said cloud be removed, and title in said land be quieted in the plaintiff, and for all other proper relief; that a summons was duly issued in said cause, but the same was never served on appellants or either of them; that on the 17th day of January, 1889, said cause was called for trial, and a guardian ad litem a deed for said real estate, and thereafter, was appointed by the court for the appellants, who thereupon filed an answer of general denial, and on the same day the court rendered judgment in favor of said Sebastian Young against the appellants, quieting title to said real estate; that at the time of the rendition of said judgment said Della Lawson was 18 years of age and said Alvah Young was 7 years of age; that they were living with their father as members of his family and under his complete control and domination; that they knew nothing whatever of court proceedings and knew nothing of the terms and provisions of their grandfather's will; that neither of them knew of the pendency of said suit or of the rendition of said judgment; that when said cause was called for trial the father of appellants selected a member of the bar of the Rush circuit court as guardian ad litem for them and the court made the appointment; that the guardian ad litem had no knowledge of the nature of the action or the effect the judgment would have upon appellants, and accepted the appointment and acted only as an accommodation to the father of appellants; that the answer of said guardian ad litem was prepared by the plaintiff's attorneys, Henley and Guffin, and was filed by them; that the guardian ad litem gave no attention to the suit and took no steps to protect the interests of these appellants; that no evidence was offered or heard upon the trial, The first question arising upon the comand the court rendered the judgment quiet-plaint calls for a determination of the kind ing title to said real estate in the absence and character of title bequeathed to Sebasof said guardian ad litem; that the com- tian Young by the will of Lewis Young, deplaint filed by said Sebastian Young to quiet ceased. title against appellants did not state facts sufficient to state a cause of action against them; that the title of said Sebastian Young by the terms of said will was a determinable

on the 25th day of June, 1894, conveyed the same to appellee for the sum of $2,100, and he is now in the possession of said real estate, claiming to be the sole owner thereof; that said Sebastian Young, the father of appellants, died on the 3d day of August, 1905, leaving surviving him his wife, Mary C. Young, who was his wife at the time of the making of said will as aforesaid, by Lewis Young, deceased, and also his children, these appellants; that appellants did not know of said suit to quiet title against them until after the death of their said father and until a very short time before this suit was begun; that appellants demanded possession of said real estate from the appellee, and he refused to surrender possession thereof to them and claims to be the exclusive owner thereof. Wherefore plaintiffs ask that said pretended judgment quieting title to said real estate against them in favor of said Sebastian Young be set aside and declared null and void; that they be declared the owners in fee simple of said real estate, and that they have judgment for the possession of the same, and $500 damages for being kept out of the possession thereof, and for all proper relief. The second, third, fourth, and fifth paragraphs of complaint are substantially like the first, and for the purposes of this opinion the difference in their averments is immaterial.

[1] Appellee contends that the title was a fee simple absolute, and appellants that it was a conditional or determinable fee. In the case of Pulse v. Osborn, 30 Ind. App. 631,

in speaking of a determinable fee said: upon appellants, or, if the record does show "This one might have been of perpetual continuance. It was therefore a fee. It was liable to be determined by an event expressed in the instrument creating it. It was therefore a determinable fee." The clause of the will devising the real estate to Sebastian Young with the condition vesting the title in his children upon his death before that of his wife comes clearly within the definition of à determinable fee. This conclusion is well supported by the authorities in our own state. Outland v. Bowen, 115 Ind. 150-153, 17 N. E. 281, 7 Am. St. Rep. 420; Matlock v. Lock, 38 Ind. App. 281-292, 73 N. E. 171; Boling v. Miller, 133 Ind. 602-604, 33 N. E. 354; Corey, Exr., v. Springer et al., 138 Ind. 506, 508, 510, 37 N. E. 322; Smith v. Hunter et al., 23 Ind. 580; Essick et al. v. Caple, 131 Ind. 207, 209, 30 N. E. 900.

such service, that it was fraudulently procured by the plaintiff, and a false return made by the sheriff at his instance and request or with his knowledge. Miederich v. Lowenstein, supra. The presumption is in favor of the regularity of the proceedings of a court of record, and the averments of the complaint are not sufficient to overcome the presumption that a summons was duly issued and served upon appellants, and that a true return thereof was made to the court and is shown by the record. Davis v. Taylor, 140 Ind. 439-441, 39 N. E. 551; Bateman v. Miller, 118 Ind. 345-348, 21 N. E. 292; Bailey et al. v. Rinker et al., 146 Ind. 129-136, 45 N. E. 38; McCormick v. Webster, 89 Ind. 105-107; Davis, Sheriff, v. Clements, 148 Ind. 605-608, 47 N. E. 1056, 62 Am. St. Rep. 539. Therefore, in determining whether the complaint in this case shows that the judgment quieting title was procured by fraud, we must consider the question on the assumption that the record shows that a summons was duly served upon appellants and a true return thereof made to the court and shown by the record.

[6] The case of Cotterell v. Koon, supra, in

[2] The complaint in the case brought by Sebastian Young against appellants (then his minor children) was insufficient to warrant a judgment quieting the title to said real estate for the reason that it does not allege that appellants claimed any interest in said real estate adverse to the right or title of said Sebastian Young. The complaint sets out the clause of the will in question, and its essential facts, is similar to the case at alleges that its language is uncertain and casts a cloud upon the title. But to be sufficient to warrant a judgment quieting title, the averments must show that the defendants are making some claim to the real estate which is adverse to the right and title of the plaintiff, or that such claim is unfounded and a cloud upon his title. Burns' Statute 1908, § 1116; Weaver v. Apple, 147 Ind. 304, 46 N. E. 642; Seymour Water Co. et al. v. City of Seymour, 163 Ind. 120-124, 70 N. E. 514; Brown v. Cox, 158 Ind. 364-366, 63 N. E. 568; Tolleston Club of Chicago v. Clough, 146 Ind. 93, 43 N. E. 647.

[3] However, the complaint asked for a construction of the will to show that Sebastian Young was the owner in fee simple of the real estate, and the judgment quieting the title in him as against his children necessarily involved such construction, and, notwithstanding the defects of the pleading, the judgment is conclusive against appellants, unless it was procured by fraud.

bar. In that case the defendants to the suit to quiet title were the minor children of the plaintiff, and were duly served with process in a suit to quiet title where the plaintiff by the terms of a will was given a determinable fee which by the suit he sought to have adjudged to be a fee-simple title. The appointment of a guardian ad litem and his appearance in that case were in all respects similar to that shown by the averments of the complaint at bar. The opinion distinguishes cases of this kind from those dealing with questions of fraud upon creditors, and cites a number of decisions relating to questions of fraud. to questions of fraud. The court found in that case that the judgment quieting title against the infant children of the plaintiff was void, and among other things said (151 Ind. page 185 et seq., 51 N. E. page 236): "It is urged by the appellant's counsel that the facts found were insufficient to support the conclusions of law, because there was finding that the judgment sought to be va[4] An attack upon a judgment for fraud cated disclosed its invalidity. in its procurement is regarded as a direct would certainly be a rare instance in which attack, which is permitted, notwithstanding the decree would disclose the fraud or imposithe decree or judgment questioned may ap- tion upon the parties or upon the court. It pear upon its face in all respects regular and is further urged for the appellant that the valid. Cotterell v. Koon, 151 Ind. 182-185, findings were insufficient in failing to find as 51 N. E. 235; Miederich v. Lowenstein, 172 a fact the existence of fraud in the procureInd. 140, 142, 86 N. E. 963, 87 N. E. 1029. ment of the judgment. This insistence is [5] It is charged in the first and third made upon the authorities which hold that, paragraphs of the complaint that a summons in actions for fraud upon creditors, the exwas issued and not served upon the appel-istence of fraud must be found and stated in lants. This is by no means the equivalent of the special finding as a substantive fact. averments showing that no summons was issued and served upon appellants, and that


Such authorities are numerous, but in this state they have their support from a pro

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