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ence, but we must accept the instruction as the action of the court in admitting the eviit appears in the record. By reason of this dence of certain witnesses to the effect that statement reversible error cannot be rightful- the electric gong was out of repair five or six ly predicated on its refusal. Moreover, the days before the accident in question. record fails to show that appellant excepted bases its objection to the admission of such to the giving of said instructions 16 and 17, | evidence on the grounds that it is irrelevant and for that reason any error in refusing to and immaterial and at a time too remote give the same would not be available on ap- from the time the accident is alleged to have peal. occurred. Under the averments of the com[7-9] Appellant's eighth reason for a new plaint it was proper for appellee to show that trial is based on the action of the court in the electric signal gong was out of order, and overruling its motion for judgment on the an- that it had been in that condition for such a swers returned by the jury to the interroga-length of time that appellant, by the exercise tories propounded to it, notwithstanding the of ordinary care, might have had the same general verdict. This reason for a new trial repaired. Cleveland, etc., R. Co. v. Schneider is presented by appellant in its brief, but (1906) 40 Ind. App. 38, 80 N. E. 985. The this presentation raises no question for our evidence under consideration was clearly addetermination as such action of the court is missible for the purpose of establishing the not a recognized ground for a new trial. In- latter fact. Evansville, etc., T. Co. v. Montland Steel Co. v. Harris (1911) 49 Ind. App.gomery (1912) 50 Ind. App. 528, 98 N. E. 731; 157, 95 N. E. 271. However, as appellant has based an independent assignment of error on the action of the court in overruling its said motion, and the argument advanced in its brief is applicable to such assignment, we will give it consideration. The only interrogatory and answer on which appellant relies in support of its contention in this regard is No. 8, which reads as follows:

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Indiana Union Traction Co. v. Pring (1912) 50 Ind. App. 566, 96 N. E. 180; Broadstreet v. Hall (1906) 168 Ind. 192, 80 N. E. 145, 10 L. R. A. (N. S.) 933, 120 Am. St. Rep. 356. If appellant had desired to guard against its improper application by the jury, it should have asked an instruction limiting it to its legitimate purpose. City of Delphi v. Lowery (1881) 74 Ind. 520, 39 Am. Rep. 98. The court did not err in overruling appellant's motion for a new trial.

Judgment affirmed.

COONSE v. BECHOLD.

Dec. 18, 1919.)

(71 Ind. App. 663) (No. 10136.)

MASTER AND SERVANT 301(1)—INJURIES TO
THIRD PERSON; RELATIONSHIP BETWEEN
BUYER AND SELLER OF AUTOMOBILE.

The mere fact that the seller of an auto

mobile retains title until the price is paid, with the right to retake possession upon default, does not establish the relation of employer and employé so as to render the seller liable for the buyer's negligence while operating it as a taxicab.

Accepting the fact found by said interrogatory and answer as true, as we must, it does not of itself create a conflict with the gener- (Appellate Court of Indiana, Division No. 2. al yerdict. In order for it to serve such purpose, it must be connected with a further finding that she could have heard the noise of appellant's train, as stated, in time to have avoided injury. The latter fact is not found. by any interrogatory cited, and the general verdict must be taken as a finding to the contrary. It cannot be said, with reason, that appellee's daughter could have necessarily escaped injury, because she may have discovered the approach of appellant's train immediately before she drove on the crossing on the occasion of her injury. "Immediately" is defined as without interval of time; promptly; instantly; at once; without delay. It certainly cannot be a forced conclusion that she could have avoided injury because she heard the train approach at substantially the same time she drove on the crossing, as the word "immediately" indicates; and especially must this be true when we consider her probable state of mind, arising from sudden peril. Appellant has failed to point out any substantial reason as a basis for its contention that the court erred in ruling on the motion under consideration.

Appeal from Superior Court, Marion County; Theophilus J. Moll, Judge.

Action by Lillian E. Bechold, administratrix, against Harvey Coonse and others. Judgment for plaintiff, and the named defendant appeals. Reversed for further proceedings.

Charles B. Clarke and Walter C. Clarke, both of Indianapolis, for appellant. William E. Reiley, and Paul G. Davis, both of Indianapolis, for appellee.

MCMAHAN, J. This action was commenc

[10, 11] Appellant also predicates error on ed by appellee against Harvey Coonse, Scott For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

Frazier, and Isaac Pinkus for the death of other business, and whatever money he paid her decedent, which she alleges was caused by the negligence of said defendants in the operation of an automobile. The cause was tried by a jury and resulted in a verdict in favor of appellee against the defendants Coonse and Frazier and in favor of the defendant Pinkus. The jury in connection with the general verdict answered certain interrogatories. Judgment having been rendered in favor of appellee on the general verdict, the defendant Coonse has appealed.

The first contention of appellant is that the court erred in overruling his motion for judgment on the interrogatories and answers. He contends that under the complaint there can be no recovery against him except upon the theory that Frazier who was operating the automobile was his servant in its operation at the time of the accident, and that the court erred in overruling his motion for judgment on the answers to the interrogatories, for the reason that they show that he was not present at the time, had nothing to do with the operation of the automobile, and that Frazier was not his servant.

to appellant on the purchase price of the automobile was paid out of his earnings. There is no evidence that the appellant had any control over the conduct of Frazier in operating the automobile, or that Frazier was required to make any report to him concerning the operating of the automobile for the business in which it was being used. All the right that appellant had in the matter was, in case the installments on the purchase price were not paid as they became due, to take possession of the car. There is not a. particle of evidence in the record to show that Frazier was an employé or servant of appellant. That being true, the court erred in overruling the motion for a new trial. Judgment reversed for proceedings not inconsistent with this opinion.

(72 Ind. App. 79)

TRAYLOR v. KELLER. (No. 10201.) (Appellate Court of Indiana, Division No. 2. Dec. 19, 1919.)

SUFFICIENCY OF EVIDENCE.

The decision will not be disturbed on appeal, as not sustained by sufficient evidence; there being evidence to support it.

We agree with appellant in the statement that there can be no recovery against him APPEAL AND ERROR 1010(1)-REVIEW OF except on the theory that Frazier was his servant in the operation of the automobile at the time of the accident, but we cannot agree with him in the statement that answers to the interrogatories disclose that Frazier was not his servant. But, in view of the fact that the cause must be reversed for other reasons, we do not deem it necessary to enter into a discussion of the interrogatories and

the answers thereto.

Appeal from Superior Court, Marion County; V. J. Clifford, Judge.

Action by Robert H. Keller against Marie A. Traylor. Judgment for plaintiff, new trial denied, and defendant appeals. Affirmed. Wm. W. Spencer, of Indianapolis, for appellant.

Holmes & McCallister, of Indianapolis, for appellee.

MCMAHAN, J. Action by appellee against appellant to rescind a contract for the purchase of an automobile on the ground of fraud, and to recover the purchase price and damages. Trial by the court, and judgment for appellee. Appellant filed a motion for a new trial, in which she assigns 15 specifications. The only error assigned on appeal is the overruling of this motion.

Appellant also contends that the court erred in overruling his motion for a new trial for the reason that the verdict is not sustained by sufficient evidence. The evidence shows without conflict that the decedent was killed October 20, 1915, by being struck by an automobile driven by Scott Frazier. On and prior to July 31, 1915, the appellant was the owner of the automobile driven by Frazier at the time of the accident, and on said date he sold the same to Frazier. Frazier gave the appellant his note for $600, the purchase price, and assumed and agreed to pay a garage and repair bill amounting to about $90. Frazier borrowed Appellant in her brief has stated over 20 a sufficient amount of money from the de- abstract propositions of law under the headfendant Pinkus to pay the garage and repairing of "Points and Authorities"; but appelbill. There was a contract between appel- lee insists that appellant has made no atlant and Frazier in which it was provided that the title to the automobile so sold should remain in the appellant until it was paid for, and that the note was to be paid in installments of $50 per month. Frazier purchased said car for the purpose of operating it as a taxicab, and had been operating it as such from the time he purchased it until the time of the accident. He had no

tempt to apply the points and authorities
to any particular action or ruling of the
court; that under clause 5, rule 22, no ques-
tion is presented. While it is true that ap-
pellant has failed to apply the proposition
and authorities to any action or ruling of
the court, or to indicate to what specifica-
tion in the motion for a new trial they are
applicable, there is enough stated from which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
125 N.E.--27

we can understand that part of them are in support of the contention that the decision of the court is not sustained by sufficient evidence.

about 8 or 10 miles an hour, and on seeing the appellant coming drove over to the side of the road and stopped his car; that appellant did not slow his car, but ran into the appellee's car, injuring the same. Some of

We have examined and carefully read the evidence, but no good purpose would be sub-appellee's witnesses testified that appellant served by entering into a discussion and review of the same. There is evidence to support the decision of the court. That being true, the judgment must be affirmed. Judgment affirmed.

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There being evidence to support the verdict, conflicting evidence will not be weighed on appeal.

2. TRIAL 39-NECESSITY ON INTRODUCING PHOTOGRAPH IN EVIDENCE.

Photographs not having been formally introduced in evidence, it was correct to refuse to allow them to be exhibited to the jury.

3. EVIDENCE 380-FOUNDATION FOR INTRODUCTION OF PHOTOGRAPHS.

Plaintiff seeking to introduce photographs of his auto, taken after its injury, may be required to show that there was no change in the car after the accident and before the photographs were taken.

was "zig-zagging" across the road, and that when about 30 feet from appellee he drove in a diagonal direction, striking the front wheel of appellee's car. Appellant and his witness testified to an entirely different state of facts. They testified in substance that appellee was driving his car from 25 to 30 miles an hour, had but one headlight, which, being bright and glaring, blinded appellant; that appellee drove his car from one side of the road to the other; that appellant was driving about 8 miles an hour instead of 25 to 30 miles an hour; and that appellee ran his car into appellant's car. There was a sharp conflict in the evidence. It was the province of the jury to determine the weight of the evidence and the credibility of the witnesses. The jury returned a verdict in favor of appellee, and, there being evidence to support their verdict, we will not weigh the evidence.

[2.3] Appellant also contends that the court erred in refusing to permit the jury to inspect a photograph of appellant's car which he says was admitted in evidence. The record, however, discloses that appellant offered to introduce the photograph in evidence and that plaintiff objected. The record does not clearly disclose whether the photograph was introduced in evidence or not. It appears

Appeal from Superior Court, Allen County; from the evidence that on the day after the Carl Yatta, Judge.

Action by Floyd M. Worman against William J. Steckbeck. Judgment for plaintiff, new trial denied, and defendant appeals. Affirmed.

Robert B. Dreibelbiss, of Ft. Wayne, for appellant.

Herbert L. Somers and Harry F. Kennerk, both of Ft. Wayne, for appellee.

accident two photographs, A and B, were taken of appellant's car. Appellee's objection to admitting photograph A in evidence was overruled. Nothing more is shown relative to A. The record does not disclose that after

the ruling of the court it was actually introduced in evidence. Appellant then offered to introduce B in evidence, to which appellee made objection. Appellant then made an offer to exhibit A and B to the jury. The

court overruled the offer of appellant to ex

MCMAHAN, J. Complaint by appellee for damages to his automobile caused by the al-hibit them to the jury until evidence was in-. leged negligence of appellant. The jury returned a verdict in favor of appellee, and judgment was rendered accordingly.

The only error assigned is the overruling of the motion for a new trial.

[1] The first contention of appellant is that the verdict is not sustained by sufficient evidence. The accident occurred on a country road about 6:30 p. m. December 2d. Appellee and his witnesses testified, in substance, that the appellant was driving his automobile from 25 to 30 miles an hour in violation of the law; that his lights were bright; that he did not slow up, but came straight at appellee; that appellee was driving his car

troduced showing the relation of the cars to
each other. No evidence had been introduced
to show that at the time the photographs
were taken, appellant's car was in the same
condition it was in immediately after the
accident. It is evident from the statement of
the court that neither A nor B had been for-
That being

mally introduced in evidence.
true, the court correctly refused to allow them
to be exhibited to the jury. There was no
hardship imposed on appellant by requiring
him to prove that there had been no change
in the condition of his automobile after the
accident and before the photographs were
taken. Appellant contends that the proxi-

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

(125 N.E.)

mate cause of the injury to appellee's auto- [ direct our attention to the recital of the evimobile was the fact that appellee had but one dence made by appellant in his brief, in delight on the front of his car and was running termining whether the decision of the court the same in violation of section 10476, Burns. is sustained by sufficient evidence. An exam1914. The jury, however, found otherwise, ination of this recital fails to disclose any and there is evidence to support that finding. evidence which tends to show that the estate There was no error in overruling the motion of Caddie E. Spahr is liable for any portion for a new trial. of the claim in suit, unless it be the item of $35 for a suit of clothes charged to the decedent under date of April 24, 1912. The undisputed evidence with reference to this particular suit is that it was ordered by the decedent for her husband; that appellee made the same, and then asked decedent's

Judgment affirmed.

(71 Ind. App. 523)

SPAHR v. POLCAR. (No. 10525.)

(Appellate Court of Indiana, Division No. 1. husband to come up and try it on; that he Dec. 11, 1919.)

SALES 273(2)—IMPLIED AGREEMENT THAT
CLOTHING ORDERED SHALL BE A REASONABLE

FIT.

Where an order is placed with a tailor for a suit of clothes for a particular individual, in the absence of a stipulation to the contrary, there is an implied agreement that such suit, when made, will be a reasonable fit for the person for whom it was ordered.

Appeal from Circuit Court, Jay County; Emerson E. McGriff, Judge.

Proceeding by Charles G. Polcar to enforce a claim against Charles O. Spahr, administrator of the estate of Caddie E. Spahr, deceased. Judgment for claimant, and defendant appeals. Reversed, with directions.

James R. Fleming, of Portland, for appel

lant.

S. A. D. Whipple, of Portland, for appellee.

BATMAN, J. This is an action arising out of a claim filed by appellee against the estate of Caddie E. Spahr, deceased, for clothing furnished by him to the husband and two sons of decedent, and for money loaned her, including interest on the alleged indebtedness. The cause was submitted to the court for trial, resulting in a judgment in favor of appellee for $284.24. Appellant filed a motion for a new trial, on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law. Said motion was overruled, and this action of the court is the sole error assigned on appeal.

afterwards came home and said it would not fit him and he would not take it. The evidence also showed that the suit was still in appellee's possession at the time of the trial. There is no evidence that the suit, when rade, fit the decedent's husband, for whom it was ordered, or that appellee altered the same so that it would fit him, nor is there any evidence that appellee made any further

effort to deliver the suit to the decedent or her husband, or to have either of them accept the same.

[1] Where an order is placed with a tailor for a suit of clothes for a particular individual, in the absence of a stipulation to the contrary, there is an implied agreement that such suit, when made, will be a reasonable fit for the person for whom it is ordered. In the instant case there is no evidence that would exclude such an implied agreement, while the fact that appellee requested the decedent's husband to come up and try it on tends to show that he understood that the suit was to be made to fit. The only evidence as to whether the suit did or did not fit is that given by the son of the decedent, who stated that, after appellee had requested his father to come up and try on his suit, he (the father) "came home and said it would not fit him, and he would not take it out of the shop."

[2] True, this statement is hearsay evidence; but, as it does not appear that any objection was made to the same, it may be accepted as establishing the fact which it tends to prove. Metropolitan Life Ins. Co. v. Lyons (1912) 50 Ind. App. 534, 98 N. E. 824; Hege & Co. v. Tompkins (1919) 121 N. E. 677, and cases there cited. For the reasons stated, the evidence fails to show any liability on the part of the estate of decedent for the particular suit in question. It follows, from what we have said, that the decision of the court is not sustained by the evidence, and for that reason appellant's motion for a new trial should have been sustained.

Appellant in his brief has set out what he claims to be a condensed recital of the evidence in narrative form. Under rule No. 22, governing the preparation of briefs, such recital will be taken to be accurate, and sufficient for a full understanding of the questions presented for decisions, unless appellee has made the necessary corrections or additions. An inspection of appellee's brief discloses that he has not made any such cor- Judgment reversed, with instructions to rections or additions, but has expressly stat- sustain appellant's motion for a new trial, ed that appellant's statement of the evidence and for further proceedings consistent with is substantially correct. We will therefore this opinion.

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

(71 Ind. App. 648)
UNITED STATES FIDELITY & GUARAN-
TY CO. OF BALTIMORE, MD., v.
STATE ex rel. HALE. (No. 10170.)

come intemperate in the use of intoxicating liquors, or if his death should result directly or indirectly from the use thereof, an instruction that if insured died from the intemperate use of intoxicants, and if defendant, knowing

(Appellate Court of Indiana, Division No. 1. of such use, continued to accept assessments,

HIGHWAYS

Dec. 17, 1919.)

113(5)—CLAIM OF SUBCONTRACTOR UNDER CONTRACTOR'S BOND NEED NOT BE

FILED WITH COUNTY AUDITOR.

A subcontractor for highway improvement may recover on the contractor's bond without filing his claim with the county auditor, pursuant to Burns' Ann. St. 1914, §§ 5901a, 5901b.

Appeal from Circuit Court, Sullivan County; William H. Bridwell, Judge.

Action by the State, on the relation of Henry C. Hale, against the United States Fidelity & Guaranty Company of Baltimore, Md. Judginent for plaintiff, and defendant appeals. Affirmed.

.

Batt & Danner, of Terre Haute, for appel

lant.

Arthur D. Cutler, of Sullivan, for appellee.

ENLOE, J. This was an action brought by the appellee, relator, upon a contractor's bond, in which he sought to recover an alleged balance due him as a subcontractor on a certain public highway improvement.

verdict should be given for plaintiff, held errocould not constitute a waiver of the condition neous, since acceptance of such assessments relating to death of insured.

2. APPEAL AND ERROR 757(4) - NECESSITY

OF INCORPORATING ALL INSTRUCTIONS IN
BRIEF.

It is not necessary that the brief of an appellant should contain all of the instructions given in order to have the action of the court in giving and refusing to give certain instructions considered.

Appeal from Circuit Court, Daviess County; William R. Gardiner, Special Judge.

Action by Martha A. Stone against the Modern Woodmen of America. Judgment for plaintiff, a new trial was denied, and defendant appeals. Reversed, with instructions.

Truman Plantz, of Rock Island, Ill., and Cullop, Downey & La Plante, of Vincennes, for appellant.

Harry R. Lewis, of Vincennes, and Alvin Padgett, of Washington, Ind., for appellee.

BATMAN, J. This is a second appeal ir this cause. On the trial subsequent to the decision on the former appeal, the pleadings theretofore filed remained unchanged; but

There are but two questions presented in this record necessary to be considered in the determination of this appeal. The first relates to the admission of certain evidence, over the objection of appellant, and the sec-appellant filed two additional paragraphs of

ond involves the construction of sections 5901a, 5901b, Burns 1914, the appellant contending that under the provisions of these sections it was the duty of the relator to file his claim with the county auditor, as provided for in said sections, and that, he not having done so, he had no right of action

on said bond.

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answer, numbered 5 and 6. Appellee filed a reply to these paragraphs in general denial, and also filed a second paragraph of reply addressed to the first, second, fifth, and sixth paragraphs of answer. The issues on the original trial are sufficiently shown in the opinion of the court on the former appeal, and no good purpose would be served by restating them here. Modern Woodmen of America v. Young (1914) 59 Ind. App. 1, 108 N. E. 869. Said fifth paragraph of answer, briefly stated, alleges in substance, among other things, that the contract in suit provides that, if the said Young shall become intemperate in the use of alcoholic drinks, the said benefit certificate shall be null and void, and all moneys which have been paid thereon shall be thereby forfeited; that on or about the 1st day of August, 1910, the said Young became intemperate in the use

(Appellate Court of Indiana, Division No. 1. of intoxicating liquors, and said benefit cer

Dec. 16, 1919.)

1. INSURANCE 826(1)-MUTUAL BENEFIT INSURANCE; WAIVER OF RIGHT TO, FORFEIT CER

TIFICATE WHERE DEATH CAUSED BY INTEM

PERANCE.

In an action on an insurance certificate wherein insurer's by-laws provided for a forfeiture of the certificate if insured should be

tificate became and was null and void; that prior to the time of the commencement of this action, and as soon as it learned of the said intemperate use of intoxicating liquors by the said Young, appellant elected to declare said benefit certificate void by reason of said intemperance; and that the said Young did not make any payment for dues and assessments

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

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