KLYSZ v. STATE. (No. 25278.) Supreme Court of Indiana. June 1, 1928. 1. Intoxicating liquors Evidence that N. attempted to deliver four bottles of whisky to defendants, though sus picious circumstance, did not establish that defendants' place of business was common nuisance, within meaning of Burns' Ann. St. 1926, § 2740, since there cannot be conviction on mere suspicion. 2. Intoxicating liquors 236(9) Evidence of bad reputation alone is not sufficient to establish existence of common nuisance (Burns' Ann. St. 1926, §§ 2740, 2744). Though Burns' Ann. St. 1926, § 2744, makes proof of reputation competent in evidence, evidence of bad reputation alone is not sufficient to establish existence of common nuisance, under section 2740. 3. Intoxicating liquors 236(9)-Evidence held insufficient to sustain conviction for maintaining common nuisance (Burns' Ann. St. 1926, § 2740). Evidence held insufficient to sustain conviction for maintaining common nuisance, in violation of Burns' Ann. St. 1926, § 2740. Appeal from Superior Court, No. 1, St. Joseph County; J. Fred Bingham, Judge. Matt Klysz and another were convicted of maintaining a common nuisance, and they appeal. Reversed, with directions. The state's evidence showed that appellants operated a soft drink place in the city of South Bend. The arresting officers saw Nagy carry a tin bucket containing 4 quart bottles of moonshine whisky up to the back door step of appellants' place of business. He set the bucket down and knocked on the door, whereupon the officers arrested him. The officers, upon making a search, found 3% gallons of wine in the basement under the building in which appellants' soft drink place (435 Chapin street) and a butcher shop (433 Chapin street) were both located. This basement, the entrance to which was in the butcher shop, contained the heating plant for the whole building, and was used by both tenants. A can containing some alcohol was found in a shed or outbuilding back of the butcher shop. The validity of the search made by the arresting officers is questioned, but we have not considered the same because (1) appellants were acquitted on the possession charge, and (2) the possession of liquor by Nagy, outside of appellants' place of business, cannot establish that place of business as a common nuisance. [1, 2] Nagy's apparent attempt to deliver 4 bottles of whisky to appellants was a suspicious circumstance, but from it an inference could not reasonably be drawn that appellants' place of business was a common nuisance within the meaning of the law. There cannot be a conviction on mere suspicion. Baugh v. State (Ind. Sup. 1928) 159 Ν. Ε. 550; Benoit v. City of Bay St. Louis (1912) 103 Miss. 218, 60 So. 137. A common nuisance, as declared and prohibited by section 24, c. 4S, Acts 1925 (section 2740, Burns' 1926), is: * "Any room, house, or place of any kind where intoxicating liquor is sold, manufactured, bartered, or given away in violation of George Sands, of South Bend, for appel- law, or where persons are permitted to resort lants. Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State. MARTIN, J. The two appellants, jointly with Mike Nagy, were prosecuted by affidavit, in two counts, for unlawfully (1) possessing intoxicating liquor and (2) maintaining a common nuisance. Sections 4, 24, c. 48, Acts 1925; sections 2717, 2740, Burns' 1926. Trial by the court resulted in the conviction of the appellants on the second charge and in their acquittal on the first charge. Nagy, who is not a party to this appeal, was convicted on the first charge and acquitted on the second. Appellants assign as error the overruling of their motion for a new trial. One of the 53 alleged grounds for this assignment is that the finding of the trial court is not sustained by sufficient evidence. for the purpose of drinking intoxicating liquor as a beverage, or any place where such liquor is kept for sale, barter or gift in violation of the laws of this state, and all intoxicating liquor, and all property kept in and used in maintaining such a place." There is no evidence that persons were permitted to resort to appellants' place of business for the purpose of drinking, and the only evidence in the record to sustain the conviction of appellants is the testimony of two police officers that appellants' place of business had the general reputation of being a place where intoxicating liquor was unlawfully possessed and sold. [2] Subsequent to the decision of Shacklett v. State (1924) 195 Ind. 436, 145 N. E. 554, which held that proof of a "bad reputation" in the community of a defendant's house as "a place resorted to for the purpose of drinking intoxicating beverages" did not "constitute evidence that she was guilty of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) maintaining a place where the liquor law was violated," 1 section 28, c. 48, Acts 1925 (section 2744, Burns' 1926), was enacted, providing that: "In any criminal or civil proceeding under sections 24 or 25 of this act, it shall be competent to prove the general reputation of the place re ferred to as to its being a place where intoxicating liquor is possessed or sold and where peo ple resort for the purpose of drinking intoxicating liquor." While the effect of this statute is to make ordered," was merely provision by which buyer Appeal from Jay Circuit Court; Roscoe D. Action by the Kansas City Flour Mills Com- James J. Moran, of Portland, and Emshwiller & Emshwiller, of Hartford City, for L. B. Simmons, of Hartford City, for appellees. proof of reputation competent in evidence, appellant. [3] It follows that the finding of the court is not sustained by sufficient evidence. The judgment is therefore reversed with directions to the trial court to sustain appellants' motion for a new trial. KANSAS CITY FLOUR MILLS CO. v. MCMAHAN, J. Appellant and appellees entered into a written agreement, the appellant to sell and appellees to buy a named quantity of flour. The contract was partly in print with blank spaces to be filled in according to the agreement of the contracting parties. The printed part of the contract, among other things provided, that: "The commodities covered by this contract shall be ordered shipped within 60 days from the date of the contract, unless a shorter time is herein specified. The buyer shall furnish to the seller, not less than 14 days prior to the expiration of the contract period, such specifications and instructions as will permit the seller to ship." When specified dates for shipments were agreed upon the shipper had the right to Appellate Court of Indiana, in Banc. March 29, ship five days prior to or five days after the 1928. Sales when ordered," held not ambiguous and void. Where sales contract provided that goods should be shipped within 60 days from date of contract unless shorter time was specified, and also stated "time of shipment, when ordered," buyer held not entitled to have contract canceled on ground that contract was so ambiguous that two different constructions could be placed on its meaning, and that it was unenforceable and void, since clause, "time of shipment, when In Wrench v. State (1926) 198 Ind. 61, 152 Ν. Ε. 274, citing Shacklett v. State, supra, it was held that evidence to the effect that defendant's dwelling was reputed to be a place where persons resorted for the purpose of drinking intoxicating liquors, and where the same were kept for sale as intoxicants, was incompetent as tending to prove the offense defined by section 20, c. 4, Acts 1917 (substantially the same as section 24, c. 48, Acts 1925), and "should not have been admitted." Other cases purporting to follow Shacklett v. State, supra, viz.: Brown v. State (1925) 196 Ind. 77, 147 Ν. Ε. 136; Beemer v. State (1925) 196 Ind. 95, 147 Ν. Ε. 276; Thompson v. State, 196 Ind. 229, 147 N. Ε. 778; and Manley v. State, 196 Ind. 529, 149 N. E. 51-do not seem to hold that such testimony is incompetent and inadmissible, but that testimony of bad reputation of a place is not alone sufficient to sustain a conviction of maintaining a common nuisance. All cases cited in this note arose before the Acts of 1925 went into effect. specified date. On the first page of the con- in the contract is as follows: "Time of ship- Appellees gave shipping directions for part For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 shipment until they could store and care for the flour as the parties had verbally agreed; that appellant believed and understood the contract to mean that the flour was required by the terms of the contract to be shipped within 60 days from the date of the contract regardless of whether appellees had room in which to store the same; that the parties did not understand the contract alike; that their minds did not meet upon the terms of the contract; and that the contract was wanting in mutuality and was void. Appellant's motion to strike the amended cross-complaint from file and its demurrer thereto were overruled, and without the hearing of any further evidence the court found the facts specially and stated its conclusions of law to the effect that the law was with appellees, and judgment was thereupon rendered in favor of appellees on the amended cross-complaint. Appellees contend the contract is so ambiguous that two different contructions can be placed on its meaning; that the parties do not and cannot agree as to the meaning, and the same is, for that reason, unenforceable and void. This contention is not tenable. The contract is clear and unambiguous. There is no room for any difference of opinion as to its meaning. It means just what it says-that the flour shall be shipped within 60 days from its date unless a shorter time is specified. Provision is made by which appellees could order the flour shipped in a shorter time. This was accomplished by the clause, "Time of shipment, When ordered." Certain questions of practice are presented by appellant, but in view of the conclusion reached we do not need to pass on them. The cause is reversed, with directions to the trial court to restate its conclusions of law, to the effect that the law is with appellant, and that appellees should take nothing by their cross-complaint, and to render judgment accordingly. DAUSMAN, J., absent, account, and closed with trust that he could count on further forbearance, to which plaintiff agreed, held to state cause of action. Appeal from Marion Circuit Court; Harry Chamberlin, Judge. Action by the Wasmuth-Endicott Company against Frank F. Richards. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals. Reversed with directions. U. S. Lesh and R. L. Lowther, both of Indianapolis, and J. M. Sayler, of Huntington, for appellant. MCMAHAN, J. This is an action by appellant against appellee to recover the amount due and owing appellant by the Woods-Richards Company for material sold and delivered to that company, and which account it is alleged appellee assumed and agreed to pay. The court sustained a demurrer to the complaint; hence this appeal. The complaint alleges the sale to the WoodsRichards Company; that appellee was interested in that company; that the company having failed to pay any part of the account and the same being past due, appellant wrote a letter to appellee calling his attention to the condition of the account and referring to a letter appellant had received from one of its representatives saying he had interviewed appellee relative to the account, and that appellee was making an effort to clean up the affairs of the company and would be able to pay the account within 30 to 60 days; that the 60 days were up; that appellant understood a receiver had been appointed for the company, but that appellant was willing to forego filing its claim with the receiver and to give appellee an opportunity to work to the advantage of himself and of his company, if assured of some result, and indicating a preference to give appellee a reasonable time to "clean up the affairs of the company" without being pressed, if it could be done within a reasonable time. This letter closed with a statement that appellant should have some word from appellee in reference to the matter by return mail. About a week later appellee wrote a letter to appellant, excusing his delay WASMUTH-ENDICOTT CO. v. RICHARDS. in answering, saying he had expected to settle (No. 12982.) Appellate Court of Indiana, in Banc. April 5, 1928. Guaranty 85(1)-Complaint alleging promise to pay for goods sold company, in which defendant was interested if plaintiff allowed time, stated cause of action. Complaint, alleging that defendant was interested in company which had failed to pay part of account due plaintiff, and being past due plaintiff wrote letter to defendant calling attention to condition of account, and defendant answered stating that he expected to clean up the account before that time; that he had a trade on that would clean up all accounts against the three houses in which the materials sold by appellant had been used, but that the matter was being held up; that he (appellee) was doing all he could to pay all the accounts of the Woods-Richards Company, and would assume and pay appellant's account as soon as possible. Further expressions of a desire and intention to pay were expressed, and closed with a trust that he could count on a further forbearance on the part of appellant. The complaint alleges that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) appellant answered the above letter from appellee, and therein accepted appellee's proposition and agreed to extend time for pay ment of the account until the last of November. Appellee has not favored us with a brief, but it is suggested in appellant's brief that the demurrer was sustained upon the theory that the complaint failed to show any consideration for the agreement of appellant to forbear bringing suit. We are of the opinion that appellant has shown prima facie error in the sustaining of the demurrer to the complaint. The cause is therefore reversed, with directions to overrule the demurrer and for further proceedings. DAUSMAN, J., absent. Action by Ida Moore, administratrix of the estate of Leslie Blakemore, deceased, against the Interstate Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed. Staff & Staff and Henry E. White, all of Franklin, and Owen S. Boling, of Indianapolis, for appellee. NICHOLS, J. Action for damages for the death of Leslie Blakemore, who was killed in a collision between an automobile truck driven by him and one of appellant's electric trains. There was a trial by jury which resulted in a verdict for appellee for $1,750, on which judgment was rendered. The error assigned is the action of the court in overruling appellant's motion for a new trial. It appears by the evidence that appellant owns and operates an interurban railroad be tween Indianapolis, Ind., and Louisville, Ky., and passing through Greenwood, Whiteland, INTERSTATE, PUBLIC SERVICE CO. v. and Franklin, all in Johnson county. At and 1928. 1. Railroads 348 (2) - Evidence in action for death of truck driver in crossing collision held to sustain finding of railroad's negligence in maintaining defective crossing. In action for death of truck driver in collision of truck with train at crossing, evidence held sufficient to sustain verdict that railroad was guilty of negligence in the maintenance of a defective crossing, in that boards at crossing between tracks were too short. 2. Railroads 348(6) -Evidence held to justify verdict for truck driver, killed at crossing collision, under last clear chance doctrine. In action for death of truck driver in collision of truck with train at crossing, evidence that motorman saw deceased on highway which parallels railroad when truck was about 1,700 feet from crossing, and knew deceased was going to attempt to cross when train was at least 800 feet distant, but did not attempt to stop train until within 100 to 150 feet of crossing, and that truck was vibrating on track three or four seconds before collision, held to justify verdict for plaintiff under last clear chance doctrine. 3. Appeal and error 762-Appellant cannot set out only in reply brief purported nunc pro tunc entry showing that instructions were in fact properly made part of record. Appellant cannot, instead of amending its brief by leave of appellate court, set out only in reply brief purported nunc pro tunc entry showing that certain instructions were in fact properly made a part of the record, since matter omitted in original brief cannot be supplied in reply brief. to and on the west side of the Madison and Indianapolis state road, now United States Highway No. 31. On the day of his death, February 26, 1924, and for about a month prior thereto, said Blakemore was employed by one Thompson, who lived west from interurban stop No. 27. On the day of the accident Blakemore drove the Ford truck, in which he was conveying garbage, passing south along said highway, which is paved with concrete to a width of 18 feet, and turned to his right at stop No. 27, into a township road, known as the Oliver road, and was struck by appellant's limited car, southward bound, at about noon. At the place of collision and for more than a mile north therefrom, the country is level and the view of appellant's trains unobstructed from any point on said highway. After a traveler turns from said highway into the Oliver road, a line of poles located on the east side of appellant's right of way obstructs the view of the traveler looking northward, as he travels a short distance. At said place of the collision the west edge of the pavement on said highway is about 16 feet distant from the east rail of the track. From the concrete road to the surface of the crossing there is a gradual rise to a height of about 18 inches above the surface of the concrete highway. On the day of the collision and at the time of the injury complained of the by 3-inch boards laid next to the rails. At the east rail and next to the turn-off said concrete road boards on each side of the rail were 11 feet long. At the west rail the two boards were each 9 or 91⁄2 feet long. weather was clear. Appellee's intestate was a colored man, 25 years old, in good health, and in the full possession of his faculties. He had been engaged Appeal from Johnson Circuit Court; F. in that kind of work for only a short time. Miller, Judge. The crossing over the track was protected For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Said highway and appellant's track run slightly to the northwest, while Oliver road leaves said highway in a due westerly course, and a truck turning onto Oliver road turns at something less than a right angle, and to make the crossing from the north, with a truck, a short turn must be made and one has to swing out to the east side to get on the road and to keep from running off the planks. The short turn has a tendency to throw the truck to the south. Other vehicles in making the turn into Oliver road had missed the crossing boards at the west rail and the wheels thereof hit the west rail south of the crossing boards. Appellant had been informed of the defective condition in that the boards were too short. The defective condition of the crossing as to these boards is the only defect complained of. Appellant's train consisted of a regular passenger coach, and a dining car, with combined weight of 100 tons, and was operated by a motorman and conductor, both experienced trainmen. The train was traveling 60 miles per hour. The regular statutory crossing whistle of one long and two short blasts of the whistle were sounded. When the train, was about 800 feet from the crossing, the motorman began giving short blasts of the whistle as warning to Blakemore of the approach of the train, but the brakes were not applied until about 100 to 150 feet from the crossing, and there was no slackening of the speed of the train, which was running at 50 or 60 miles per hour, running about 1,200 feet after the accident before stopping. The motorman ran the car from 700 feet above the crossing after he knew Blakemore was going to cross, and there is evidence that he sounded the warning signals as far as 800 feet from the crossing. Blakemore continued his course along the highway and turned west off the concrete road and on the crossing without stopping his truck. Upon said Blakemore's turning off the concrete road, and at a time when appellant's train was 100 to 150 feet north of the crossing, the motorman applied all the air brake pressure at his command. As Blakemore left the concrete road and turned into Oliver road, there is a difference in the estimates of the speed at which his truck was moving, some estimating that it was traveling 4 to 5 miles per hour; others, as fast as 15 to 20 miles per hour. He did not stop his truck at any time. His truck continued to move forward and in a westerly direction until it was on the crossing, some evidence being that the collision came like a flash after the truck turned onto the Oliver road, while other evidence was that it was on the crossing three or four seconds before it was struck, and was vibrating against the west rail before it was struck. The evidence clearly shows that he did not stop for the approaching train, and the uncontradicted evidence shows that Blakemore had every opportunity to see and hear the approaching train and avoid the collision had he looked or listened; there being no obstruction except the line of poles mentioned above. [1] We have thus tried fairly to state the facts upon which the jury based its verdict, which, as it seems to us, was sufficient to sustain a verdict that appellant was guilty of negligence in the maintenance of the defective crossing. As it seems to us, the evidence would have been sufficient to sustain a finding that Blakemore was guilty of contributory negligence in entering upon the tracks without stopping, looking, or listening for the approaching train, had such a verdict been returned. But whether Blakemore was guilty of contributory negligence or not, because of the happenings after Blakemore was upon the track, the judgment of the court must be affirmed. [2] It appears by the evidence that appellant's motorman saw Blakemore upon the highway which parallels the railroad when the car was about 1,700 feet from the crossing at which time Blakemore had not turned off the concrete; that the motorman watched him as he turned off and knew that he was going to attempt to cross the tracks, when the car was at least 800 feet distant; that the motorman saw Blakemore as he turned upon the tracks, but that he did not attempt to stop the car until he was within 100 to 150 feet of the crossing, at which time his car was going so fast that it did not stop until it had gone beyond the crossing a distance of about 1,200 feet. There is evidence that Blakemore, with his truck, was upon appellant's track three or four seconds before the collision, with his truck vibrating against the west rail. It thus appears and the jury was justified in finding that Blakemore was in a helpless situation and that appellant had the last clear chance to avoid the accident. Appellant conceded that there was evidence as to its last clear chance by tendering an instruction on that doctrine. [3] Appellant has undertaken to present error with reference to a number of instructions, given and refused. Appellee, however, forcefully contends that none of the instructions was made a part of the record, by order of the court. Appellant has, in effect, conceded appellee's contention, and has undertaken by what purports to be a nunc pro tune entry, followed by certiorari to show that the instructions were in fact properly made a part of the record. But appellant instead of amending its brief by leave of court, and thereby making such purported nunc pro tune |