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been paid over to the trustee of the township to be by him turned into the general fund of such township under said section 9577, Burns' 1908. This showing defeats recovery under said section 6088, Burns' 1908. Cleveland, etc., v. Board, 19 Ind. App. 58, 67, 68, 49 N. E. 51, and authorities there cited. This section has no application whatever to cases like the one here presented, but such section

unexpended balance in his hands arising | gun the taxes sought to be recovered had from appropriations for railroad and other purposes named therein to the township trustee to be placed in the general funds of the township. So it seems that the authorities have recognized, and that the statute now contemplates, that there may be a levy of taxes in cases of the kind here involved which may necessarily result in an excess fund. We do not mean to say that, if an auditor, by an excessive per centum, at-uthorizes a refund out of the county treastempted to levy and collect a tax clearly beyond the amount voted for as expressed in the order of levy made by the board of commissioners, a taxpayer would not at the proper time and in the proper way have a remedy against such excessive levy, but certainly not at a time and in the manner here attempted.

ury of taxes collected by the county treasurer, "so far as the same was assessed and paid for county taxes," where the proper person appears before the board of commissioners of the county where such taxes were collected, and makes the proper proof as provided in such section.

cause of action either under the common law or under any statute authorizing the refunding of taxes. Hence the demurrer thereto was properly sustained.

The authorities herein cited make it clear, [4] We next inquire whether the complaint that the facts pleaded by appellant in his states a cause of action within the provision first paragraph of complaint fail to show a of any statute of this state. As applicable to this branch of the case, we quote from the case of Durham v. Board, 95 Ind. 182, at pages 183, 184: "An elementary rule is that one who founds a right of action on a stat[5] We now inquire whether the second ute must make a case within its terms. This paragraph of complaint states a cause of acthe appellant has not done. In order to make tion. As part of the law to enforce the colleca case within the statute, it must be shown tion of taxes, section 10321, Burns' 1908, pronot only that the special assessment was vides, among other things, a penalty to be made by an unauthorized person, and in an added to taxes when they become delinquent. irregular manner, but also that the property Section 5476, Burns' 1908, provides in effect upon which the taxes were laid was not just- that taxes of the character here involved ly subject to the assessment. It is not are to be collected as other taxes are colenough to show that the special assessment lected, and in case of default of payment was irregular and unauthorized, for it must when due they become delinquent the same also be shown that the taxes were unjustly as other taxes. This provision of 5476 carlevied. A man cannot evade the payment ries into it the penalty provision of 10321 of taxes justly chargeable against him by above indicated, and places the penalty on showing that the wrong person made the the same footing with the original taxes upon assessment. This subject is so well and which it is assessed, and hence the law thoroughly discussed in the opinion of Nib- which prevents a recovery of the taxes paid lack, J., in Board, etc., v. Armstrong, 91 Ind. likewise prevents a recovery of the penalty 528, that further discussion is unnecessary." assessed thereon. Lowe v. Laughlin, etc., See, also, Board, etc., v. Graham, 98 Ind. 101 Ind. at page 35. If, however, it should 279, 280; Board, etc., v. Murphy, supra, 100 be conceded that the penalty could not have Ind. at pages 573, 574; Hilgenberg v. Board, been collected in the first instance, appellant 107 Ind. 494-496, 8 N. E. 294; Board, etc., must fail in this action, because no statute v. First National Bank, 25 Ind. App. 94, 95, authorizes recovery under the facts here 57 N. E. 728; Simonson v. Town of West pleaded, and the payment of the penalty by Harrison, supra; Nyce v. Schmoll, supra. the averments of the complaint is not shown Appellant has not cited any statute upon to have been procured by fraud or mistake which he predicates his right to recover, of fact, or to have been involuntary within but cites authorities which recognize section the meaning of the law as declared in the 5813, R. S. 1881, being section 6088, Burns' authorities herein cited. 1908, as being applicable to cases there inJudgment affirmed. volved. The cases relied on are so different in their facts that they can have no influence in the case at bar.

(55 Ind. App. 243) CLEVELAND, C., C. & ST. L. RY. CO. v. CHAMPE. (No. 8,087.)1 (Appellate Court of Indiana, Division No. 1. Oct. 17, 1913.)


The case at bar is against the township. The complaint shows no demand of or application to the board of county commissioners by claim or otherwise while such taxes were in the hands of the county treasurer or before the filing of the suit herein, but, on the contrary, shows that when this action was beFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Where a complaint is first attacked after a verdict, it will he held sufficient, if it does not wholly omit any essential averment, and is suf

ficient to bar another suit for the same cause of action.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.*] 2. DEATH (§ 49*) - ACTIONS FOR CAUSINGCOMPLAINT-EXISTENCE OF BENEFICIARIES. Under Burns' Ann. St. 1908, § 285, providing that a suit for death caused by the wrongful act of another shall be brought by the personal representative of deceased for the benefit of the widow and children, if any, or the next of kin, an allegation that the deceased left two children surviving her is sufficient to support the action and admit proof of pecuniary loss to the children, without averment that the children were dependent upon deceased for their support.

dicate that the recovery was not based upon that doctrine.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §8 4225-4228, 4230; Dec. Dig. § 1068.*] 9. TRIAL (§ 296*) - INSTRUCTIONS - CURE BY OTHER INSTRUCTIONS.

Where the court, in an instruction as to the measure of damages for death, used an expression which, standing alone, might be considered to allow recovery for something more then pecuniary loss to the beneficiaries, but other instructions clearly stated that there could be no recovery unless the beneficiaries were proven to have sustained loss, and that there was no presumption that they had sustained loss, but that that fact must be proved by preponderance of the evidence, the error was

[Ed. Note.-For other cases, see Death, Cent. Dig. | cured. §§ 64-66, 09; Dec. Dig. § 49.*]


A statement in such a complaint that the personal representative was entitled to recover damages on behalf of the estate is a conclusion and does not destroy the effect of the allegation that there are surviving children. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 12-282, 68; Dec. Dig. § 8.*]


Where an instruction, stating in general terms the degree of care required of one approaching a railroad grade crossing, as preliminary to an instruction on the burden of proof of contributory negligence, correctly stated the rule when considered in connection with three other instructions on that question, the instruction was not erroneous as leaving open to conjecture by the jury the degree of care required on the part of the traveler.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*] 5. RAILROADS (§ 346*)-ACCIDENTS AT CROSSINGS-PRESUMPTION-CONTRIBUTORY NEGLI


In an action for the death of one killed at a railroad grade crossing, there is no presumption as to the negligence of the defendant or the contributory negligence of the plaintiff.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1117-1123; Dec. Dig. § 346.*] 6. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-INSTRUCTIONS-CURE BY VERDICT.

In such a case, where the only evidence as to contributory negligence was that the headlight of the locomotive was burning and that the deceased could have seen it by looking, and the jury by answer to special interrogatories found that the light was not burning, that the deceased could not have seen the train, and that no signals were given, error in instructing the jury that there was a presumption that the decedent exercised due care was harmless, since the answers show that the verdict rested upon the facts proven and not upon the presumption.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*] 7. TRIAL (229*) — INSTRUCTIONS - REPETITION OF INSTRUCTION.

Where the court had stated the conditions under which the doctrine of last clear chance applies in one instruction, it was unnecessary to repeat them in another instruction in which the doctrine was referred to.

[Ed. Note. For other cases, see Trial, Cent. Dig. 513,; Dec. Dig. § 229.*] 8. APPEAL AND ERROR (§ 1068*) - HARMLESS ERROR-INSTRUCTIONS-CURE BY VERDICT. Error in instruction as to the doctrine of last clear chance is harmless, where the answers of the jury to special interrogatories in

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*] 10. DEATH (§ 99*) EXCESSIVE DAMAGES SURVIVING CHILDREN.

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years old, who left a son and daughter surviving her, the son living separate from her and not depending upon her nor contributing to her support, and the daughter living with her mother in a flat, which the mother rented and where she did the ordinary housework, the daughter contributing what she could from her earnings to the expenses of the household, a verdict for $1,650 damages will not be set aside as excessive.

In an action for the death of a woman 72

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Amy A. Champe, administratrix, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover damages for death caused by the defendant's negligence. Judgment for the plaintiff, and defendant appeals. Affirmed.

The decedent was a woman 72 years of age who lived with her daughter in a flat which the decedent rented and where she kept house, paying part of the expenses herself, and the daughter paying what she could out of her earnings. The only other child was

son who was living separate from his mother and neither depended upon her nor contributed anything to her support.

Frank L. Littleton, of Indianapolis, Leonard J. Hackney, of Cincinnati, Ohio, and Carter & Morrison, of Shelbyville, for appellant. George W. Galvin, of Indianapolis, for appellee.

FELT, J. Suit for damages against appellant for the alleged negligent killing of appellee's decedent. From a judgment in favor of the appellee for $1,650, appellant has appealed and assigned as error: (1) Appellee's complaint does not state facts sufficient to constitute a cause of action. (2) Error in overruling the motion of appellant for a new trial.

The complaint charges in substance that appellee had been duly appointed administratrix of the estate of Eliza Champe, deceased; that appellant is a duly organized railway corporation and as such operates a railroad which passes through the city of Indianapolis; that there was, at the time

[3] The phrase "plaintiff is entitled to recover for and on behalf of the estate" is in the nature of a conclusion and does not destroy the effect of the averment giving the names of the surviving children of the decedent.

of the alleged accident, in force in the city | persons were dependent on the deceased for of Indianapolis an ordinance making it the support, and proof of their pecuniary loss duty of every engineer, conductor, or other occasioned by the death may be received person engaged in running any locomotive to without such averments. Salem, etc., Co. v. ring the bell attached thereto when the en- Hobbs, 11 Ind. App. 27, 29, 38 N. E. 538; gine was moving through said city and mak- Stewart, Adm'r, v. Terre Haute, etc., Co., ing it unlawful to run such engine at a 103 Ind. 44, 47, 2 N. E. 208; Jeffersonville, greater rate of speed than four miles per etc., R. Co. v. Hendricks, Adm'r, 41 Ind. 48, hour or to run the same between the hours 77; Pa. Co. v. Coyer, Adm'r, 163 Ind. 631of sunrise and sunset unless the engine was 634, 72 N. E. 875. provided with a white light on the front end and a red light on the rear of such locomotive, car, or train of cars, and providing a fine for the violation of such ordinance; that on or about the 31st day of July, 1909, while plaintiff's decedent was in the proper and careful use of South New Jersey street, in said city, where defendant's tracks cross the same, she was carelessly and negligently struck by one of defendant's engines, which was carelessly and negligently run and operated by it along said tracks, across said street, at a speed of more than four miles per hour, without ringing the bell on said locomotive and without a light on the front end thereof, all in violation of the ordinance of said city; that defendant carelessly and negligently ran said engine against said decedent and thereby knocked her down and crushed and killed her; that decedent left surviving her two children, Amy A. Champe and her brother, William Champe; "that, by virtue of the laws of the state of Indiana, plaintiff is entitled to recover for and on behalf of the estate of Eliza Champe the sum of $10,000," for which amount judgment is demanded. To this complaint defendant filed answer in general denial.

[1] Where a complaint is first attacked after verdict, the rule has been many times stated and followed that it will be held sufficient if it does not wholly omit any essential averment and is sufficient to bar another suit for the same cause of action.

The objections urged to the complaint are: (1) That the suit is brought for the benefit of the estate of the deceased and not for the benefit of the children or next of kin; and (2) that, while the complaint alleges the names of the children of the deceased, it does not show that they suffered any damage by her death.

[2] Under the rules of pleading above announced, neither of the objections is tenable. The complaint alleges the names of the children of the deceased and avers facts showing that her death was caused by the negligence of the servants of appellant in charge of the engine which struck her. The facts averred bring the case under the provisions of section 285, Burns 1908 statute. The suit must be brought by the personal representative of the deceased "for the benefit of the widow and children, if any, or next of kin.”

Where the complaint alleges that the deceased left children surviving her, it is suf

A new trial was asked on the ground that the verdict of the jury is not sustained by sufficient evidence; that the verdict is contrary to law; that the damages assessed are excessive; error in giving and in refusing to give certain instructions. Certain interrogatories were submitted to the jury, and in addition to the general verdict they returned answers thereto. The substance of these answers reveal the main facts of the case as follows: That decedent was killed at about 8:30 p. m. on July 31, 1909, and was struck while walking south on the east side of New Jersey street, at a point where the tracks of appellant cross said street; that she was struck by an east-bound engine on the south track, after she had passed over three other adjacent tracks of the defendant; that there was a light on the engine that struck her but it was not burning at the time of the accident and had not been burning from the time the engine passed the viaduct west of New Jersey street; that there was a bell on the engine but it was not ringing as it passed over New Jersey street nor did it ring after the engine passed the viaduct but did ring after decedent was struck; that she could not by looking west before she entered upon the first track have seen the engine that struck her had it been at any point within 250 feet of the place where she was struck; that just before she entered upon the track on which she was struck she could not have seen the engine that struck her had it been at any point west and within 150 feet of the place where she was struck; that she was prevented seeing by darkness; that she could not, as she approached the track on which she was injured, have seen the train in time to avoid being struck; that she could have heard the bell on the engine had it been ringing; that the bell did not ring continuously from the time the engine passed under the viaduct until it struck her; that her eyesight and hearing were good; that the engine was moving four miles per hour when she was struck; that her view to the west was obstructed by piles of lumber and by by the watchman's shanty; that the east sidewalk near the track on which decedent

The law applicable to the case at bar as declared in this state indulges no presumptions as to the negligence of the defendant or the contributory negligence of the injured party but leaves such questions to be determined from the evidence as ultimate facts. City of Indianapolis v., Keeley, 167 Ind. 516525, 79 N. E. 499; Evansville & Terre Haute Ry. Co. v. Berndt, 172 Ind. 697-705, 88 N. E. 612. This part of the instruction was therefore erroneous and it remains to be determined whether the error was harmful to appellant.

ed by piles of cinders and railroad irons 4 to 5 feet in height and about 16 feet in width and the same prevented decedent from having the free use of the sidewalk; that decedent could not after she passed over the north track tell by looking west upon which of the several tracks an engine was approaching; that there were no lights at or near the crossing where decedent was struck and it was very dark; that she could not by looking as she approached the railroad tracks at New Jersey street tell upon what track a locomotive was running if one was approaching; that after decedent was struck the engineer The answers of the jury to the interrogamoved the engine that struck her some dis-tories show clearly the actionable negligence tance away from the crowd and lighted the of the defendant. By statute, contributory headlight on the engine; that those in charge negligence is a matter of defense, the burden of the engine that struck decedent could by of proving which rests upon the defendant. the exercise of reasonable care have discov- The answers of the jury in this case are ered her presence and peril in time to have avoided injuring her; that those in charge of said engine did not, after it started west

of the viaduct until it struck and killed de

cedent, sound the whistle or give any signal which indicated the approach of the engine to New Jersey street; that the deceased was wearing a white shirt waist; that the fireman or the engineer could by looking have seen all the tracks crossing New Jersey street after he reached the west side of the street.

Appellant complains of the giving of certain instructions by the court and of its refusal to give certain instructions tendered by it. [4] It is urged that by instruction 10 the court undertook to state the degree of care required of a traveler on a highway when approaching a railroad crossing at grade, and that the court erred in not stating as a matter of law the degree of care required; also that the instruction left it to the jury to determine whether the traveler should in this case exercise the care required by the law. The instruction is not open to the objections urged against it.

The court in instructions 13, 14, and 141⁄2 stated to the jury the degree of care required by the law of such traveler and in the first part of instruction 10 stated such rule of care in general terms as preliminary to the proposition that the burden of proving contributory negligence in such case rests upon the defendant. The degree of care required of such traveler was not left open to conjecture by the jury, nor was the statement of the rule erroneous when considered, in connection with the remaining portion of the instruction and the other instructions given.

[5, 6] The further objection is urged to this instruction that, after stating that the burden was on the railway company to prove contributory negligence of the decedent, the court also informed the jury that, in the absence of any evidence on that subject, the presumption is that the plaintiff's decedent did exercise such degree of care as the law

full and complete on the issuable facts and show affirmatively that neither the general verdict nor the answers to interrogatories were in any way influenced by the erroneous statement of presumption of due care on the found by the jury in the answers to the The physical facts interrogatories are of such a character as to show that no presumption could have changed or modified them in any respect or influenced the jury in arriving at the general verdict; that the decision rests entirely upon facts proven by the evidence and not upon any presumption.

part of the decedent.

The Supreme Court in Evansville, etc., Ry. Co. v. Berndt, supra, 172 Ind. 705, 88 N. E. 612, held that an instruction similar to the one under consideration was erroneous but harmless because there was no evidence tending to show contributory negligence.

In the case at bar the evidence tending to show contributory negligence consisted of statements to the effect that there was a light on the engine and that decedent could have looked west along the track and discovered it in time to avoid being struck.

The jury by answers to the interrogatories found that the light was not burning as the engine approached and that decedent could not see the approaching engine because of obstructions and the darkness, and that no warning of any kind was sounded. The situation, therefore, is the same as if there had been no evidence on the subject of contributory negligence, and the instruction, though erroneous, was harmless.

[7] It is also insisted that the court erred in giving the jury instruction 152. It is claimed that the instruction contains an incomplete statement of the doctrine of last clear chance and is erroneous by the reason of the use of the word "opinion." The court did not in this instruction state in detail the conditions under which the doctrine of last clear chance is applicable, but it had already done so in instruction 9, and it was not necessary to repeat it.

[8] Furthermore, if erroneous in the par

ed for the answers to the interrogatories | lating to the proof are technical. Considershow affirmatively that the verdict of the ing the inferences that may be drawn from jury does not rest on the doctrine of last the facts proven, there is no failure to conclear chance, and that the case is one of nect appellant with the injury. We find no ordinary actionable negligence on the part reversible error. of the defendant resulting in the death of the injured party. In view of this finding, the error, if any, was harmless.

[9] It is also contended that the court in instruction 18 gave the jury an erroneous standard of the measure of damages. Damages in such case are limited to the pecuniary loss suffered by the widow or next of kin for whose benefit the suit is maintained. Consolidated Stone Co. v. Staggs, 164 Ind. 331-337, 73 N. E. 695; Commercial Club v. Hilliker, 20 Ind. App. 239-243, 50 N. E. 578. It may be conceded that in the closing part of this instruction the court used an expression which, standing alone, might be construed to mean something more than pecuniary loss to the son and daughter. The instruction is long and need not be set out ut in this opinion. It clearly and definitely

limits the recovery to pecuniary loss.

Furthermore, in instruction 3 given by the court, the facts essential to a recovery are set out, and it is there clearly stated that there can be no recovery unless the children of the deceased have been proven to have sustained loss or damage as a result of her death.

In instruction 19 the court told the jury there was no presumption that the next of kin had suffered any pecuniary loss by her death, and that, before they could find that her children had sustained such loss, the fact must be established by a preponderance of the evidence, and if not so proven the verdict must be for the defendant. The instruction complained of, when fairly construed, gave a correct idea of the measure of damages and, when considered in connection with the others given on the subject, make it certain that no harmful error was

committed in the instructions complained of.

The other objections to the instructions given and refused have been carefully con

sidered but are not of a character to require detailed consideration in this opinion. When fairly construed, the instructions given correctly informed the jury as to the law applicable to the case, and those refused which were applicable to the issues and evidence were covered by others given.

[10] The new trial was asked on the ground that the damages assessed are excessive. While the amount is fairly liberal, after reading the evidence we cannot say that it is so excessive as to call for a reversal of the judgment by this court. Indianapolis So. Ry. Co. v. Wall, 101 N. E. 680, and cases there cited.

The other contention of appellant that the verdict is not sustained by sufficient evidence is not tenable. The questions suggested re

Judgment affirmed.

(54 Ind. App. 233)

CHANEY V. MULLIS. (No. 7,891.) (Appellate Court of Indiana, Division No. 2. Oct. 15, 1913.)

APPEAL AND ERROR ($ 757*)-BRIEFS-FAILURE TO POINT OUT ERROR. Where the only error assigned is that the court erred in overruling appellant's motion for a new trial, and appellant's brief fails to set out or state the substance of the motion, or to indicate where it may be found in the record, the judgment will be affirmed, as it is the appellant's duty to point out error, and the court will not search the record to reverse. Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] [Ed. Note.-For other cases, see Appeal and

Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.

Action by James Chaney against Clint Mullis. From a judgment for defendant, plaintiff appeals. Affirmed.

James M. Hudson and Theo. E. Slinkard, both of Bloomfield, for appellant. William L. Slinkard, of Bloomfield, for appellee.

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Oct. 14, 1913.)



That a way may be established by the rule of necessity, the facts must be such that from parties to a conveyance had an agreement that them the law raises the presumption that the the grantee should have the right of access to the land conveyed over unconveyed land of the grantor; and, a valid express agreement for a way having been fairly made, there is no room for presumption.

[Ed. Note. For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*] 2. APPEAL AND ERROR (§ 1071*)—HARMLESS ERROR-CONCLUSION OF LAW.

One and the same relief being granted under each of two conclusions of law, any error in the one, in that the findings do not support it, is harmless; the findings supporting the other.

Error, Cent. Dig. 88 4234-4239; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 1071.*]

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