[8] Appellants cite Mitchell v. Geisendorff, 44 Ind. 358, in support of their contention that the court had no authority to render a judgment in excess of the amount designated in the general verdict and that the court erred in rendering judgment for $6,571.88. The jury in the case referred to returned a special verdict. Under the law then in force it was necessary for such verdict to cover and find upon all the issues necessary to a recovery. A failure to find a fact in issue was equivalent to a finding against the party having the burden of proving such fact. Fisher, Adm'r, v. Louisville, etc., R. Co., 146 Ind. 558, 45 Ν. E. 689. If a general verdict was returned with a special verdict, the general verdict was disregarded. Louisville, etc., R. Co. v. Balch, 105 Ind. 93, 4 N. E. 288. In determining what judgment should be rendered, the court could look only to the pleadings and the special verdict. It is quite clear that section 598, supra, was intended to and does abolish special verdicts as defined by the Code, although the statute defining a special verdict has not been expressly repealed. Watson's Works' Prac, § 1858. amount is $6,571.88. The court, by looking at the pleadings, the verdict, and the answers to the interrogatories, can see that the proper judgment to render is the amount last stated. The court did not err in rendering judgment for $6,571.88. See Adsit v. Schaff Bros. Co., 78 Ind. App. 511, 135 N. E. 185, and authorities there cited. [11] There is no merit in the contention that the general verdict is not sustained by sufficient evidence. The evidence is ample to show that the Grain Company had made no application to appellants or to appellee for a loan, and that the negotiations in relation thereto originated with and were carried on by appellants without the knowledge of the Grain Company, in order that the bank might be relieved from the debt of the Grain Company-an obligation which the state banking department had for some time been insisting should be reduced. [12] The court should not have submitted two sets of interrogatories to the jury. The court should have caused the interrogatories to be numbered, not in sets, but as an entirety, from one to the close before submitting them to the jury. Jonas v. Hirshburg, 18 Ind. App. 581, 592, 48 Ν. Ε. 656. Judgment affirmed. BRUNER v. CHICAGO & E. I. RY. CO. (No. 13039.) [9, 10] A general verdict must now be returned in all cases tried by a jury, and which are properly triable by a jury. No other form of verdict is now authorized, although when a general verdict is returned the jury may, in the language of the statute, find specially upon particular questions of fact to be stated to them in writing in the form of interrogatories. All verdicts must now be regarded as general verdicts. Kelley v. Bell, 172 Ind. 590, 1. Commerce 33(1)-Shipment between Pa 88 Ν. Ε. 58. Under the statute, the interrogatories, together with the answers of the jury thereto, must be recorded with the verdict. Section 616, supra, provides that, where there is a special finding on particular questions of fact, the court shall render the proper judgment. In order to determine what a proper judgment is the court looks to the pleadings, the verdict, and the answers of the jury to the interrogatories. Looking to the pleadings and the general verdict, we find that the jury found all the facts necessary for a judgment in favor of appellee. There is an inconsistency and irreconcilable conflict between the verdict and the answers to the interrogatories as to the amount which appellee is entitled to recover. The jury in answer to the interrogatories find facts from which it is clear that the amount of recovery should be $6,571.88, if there is to be a recovery. By the general verdict the jury has said appellee should recover a judgment against appellants. Through what we must, in face of the special findings, say is a mistake or error, the amount of the recovery is fixed at $3,285.94, while in answer to specific questions the jury says the Appellate Court of Indiana, in Banc. April 20, 1928. toka, Ind., and Cincinnati, Ohio, held one in "interstate commerce” governed by congressional statutes (Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce (49 USCA § 20 (11, 12). Shipment from Patoka, Ind., to Cincinnati, Ohio, was one in "interstate commerce," and action for damages occurring on line of connection carrier brought against initial carrier was governed by Federal Act to Regulate Commerce and Carmack Amendment (49 USCA§ 20 (11, 12); Comp. St. §§ 8604a, 8604aa), and subsequent amendments thereto, and not by Indiana Shippers' Act (Burns' Ann. St. 1926, $ 4699). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 2. Carriers 76-Action against initial carrier for damages to interstate shipment must be by lawful holder of receipt or bill of lading (Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20, 49 USCA § 20 (11). Under Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20 (49 USCA § 20 (11); U. S. Comp. St. § 8604a), any action against initial carrier For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) for damages to interstate shipment must be by lawful holder of receipt or bill of lading. 3. Carriers76-person suing initial carrier for damages to interstate shipment must establish title to bill of lading (Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20, 49 USCA § 20 (11). Under Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20 (49 USCA § 20 (11); U. S. Comp. St. § 8604a), party suing initial carrier for damages to interstate shipment has burden to establish that he was lawful holder of bill of lading at time of injury to shipment. 4. Carriers 76-In absence of express contract retaining title in interstate shipper, title of goods on delivery to carrier vests in consignee, who alone has right of action for injury thereto (Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20, 49 USCA § 20 (11). Regardless of ownership of interstate shipment when delivered to carrier, in absence of express contract retaining title in shipper, title vests on delivery to carrier in consignee, who alone has right of action for injury thereto, under Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20 (49 USCA § 20 (11); U. S. Comp. St. § 8604a). 5. Carriers76-Under findings as to ownership showing only initial carrier received interstate shipment, presumption is title vested in consignee, who had right to sue for damages (Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20, 49 USCA § 20 (11). In action for damages to interstate shipment, where findings of fact showed that initial carrier received property from plaintiff, and that it was consigned to firm in another state, and were silent as to ownership of property thereafter, law presumes that title vested in consignee, which was lawful holder of bill of lading, and, under Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, § 20 (49 USCA § 20 (11); U. S. Comp. St. § 8604a), had right to sue for damages to shipment. 6. Carriers 76-Shipper not found to be lawful holder of bill of lading had no right of action for damages to interstate shipment (Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, 49 USCA § 20 (11). Where findings were that interstate shipper delivered property to initial carrier, and that it was consigned to firm in another state, and were silent as to ownership of property thereafter, presumption is that title vested in consignee, and, in absence of finding that shipper had title at time of damage to shipment, he had, under Carmack Amendment and subsequent amendments to Federal Act to Regulate Commerce, $20 (49 USCA § 20 (11); U. S. Comp. St. § 8604a), no right of actions for damages. Action by Harry E. Bruner against the Chicago & Eastern Illinois Railway Company. From a judgment for plaintiff on a paragraph of his complaint and for defendant on other paragraphs, plaintiff appeals, and defendant by cross-error asks a reversal as to certain conclusions of law. Affirmed in part, and reversed in part, with instruction. Sanford Trippet, of Princeton, for appelIant. T. Morton McDonald, of Princeton, for appellee. NICHOLS, J. Action by appellant against appellee, as initial carrier, under the Carmack Amendment to the Act to Regulate Commerce (49 USCA § 20 (11, 12); Comp. St. §§ 8604a, 8604aa), for alleged damage to live stock sustained in transit while in the possession of a connecting carrier. There was a special finding of facts and conclusions of law stated thereon by the court. The conclusions of law stated on the issue involved on the first paragraph of complaint was against appellee, and on the second and third paragraphs the conclusions were against appellant. Judgment was rendered against appellee on the first paragraph of complaint, for $53.56, and on the second and third paragraphs, against appellant that he take nothing. Appellant relies for reversal on error of the court in its second and third conclusions of law and appellee by cross-error asks a reversal as to the first and fourth conclusions of law. It appears by the special findings here involved that at all times appellee was a common carrier of goods and live stock for hire between Patoka, Ind., and elsewhere in said state; that on December 27, 1924, appellant delivered to appellee at Patoka, at about 2 o'clock p. m., 165 hogs and 9 calves, all alive and in good condition, at said time the property of appellant, consigned and to be carried to Long, West & Co., Cincinnati, Ohio, within a reasonable time and there delivered to said consignee; that 85 of said hogs and 9 calves were loaded in one car and the remaining 80 hogs were loaded in another car; that both said cars left Patoka on the same train and were delivered at destination at the same time; that Patoka was on appellee's road and ing carrier all said live stock was alive and in good condition; that said live stock was handled by appellee in a careful and prudent manner, and in a reasonable time; that there was a sudden change in the temperature on said day, the lowest temperature being 11 degrees Fahrenheit below zero and the highest temperature being 25 degrees Fahrenheit above zero; that the said Baltimore & Ohio Railroad Company transported said live stock from Vincennes to Cincinnati, and there delivered it to the consignee at the stockyards at about 1 o'clock p. m., December 28, 1924; that said live stock should have been delivered at said stockyards not later than 8 o'clock a. m., December 28, 1924, and it was not delivered in a reasonable time, but was delayed from 8 o'clock a. m. till 1 o'clock p. m. of said day, which is an unreasonable delay; that when said stock was delivered the one car contained 85 hogs and 9 calves, all alive and in good condition, but when the other car was delivered it contained 77 live and 3 dead hogs; that there was no evidence of physical injury to the dead hogs that could have caused their death; that they weighed 480 pounds, and had the same been alive and in good condition would have been worth $51.60; that the carcasses of said three dead hogs so delivered were reasonably worth $3.85; that appellant paid appellee the freight charges for said shipment, but the appellant did not, either in person or by agent, accompany the shipment; that said live stock was shipped by appellant and accepted and trans ported by said carriers, under a uniform live stock contract, duly executed by appellant and appellee; that the death of said 3 hogs was caused by the unreasonable delay in the shipment by the Baltimore & Ohio Railroad from Vincennes, Ind., to Cincinnati, Ohio, a distance of over 200 miles. the destination of said stock was not on the road of appellee, but was on the road of the Baltimore & Ohio Railroad, a connecting carrier with which appellee's road connects at Vincennes, Ind.; that said two cars of live stock were safely transported by appellee from Patoka to Vincennes, and were there delivered to said connecting carrier, the Baltimore & Ohio Railroad Company, at Appeal from Gibson Circuit Court; Claude about 8 o'clock p. m. on December 27, 1924, A. Smith, Judge. and at the time so delivered to said connect For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] It is apparent that the shipments here involved were made in interstate commerce, and hence the rights and remedies of the parties are governed by the acts of Congress to regulate such commerce and that the Indiana Shippers' Act (section 4699, Burns Ann. St. 1926) is not controlling. If it were, such statute does not purport to fix any liability upon the initial carrier for the negligence of subsequent carriers, and by the findings there was no fault or negligence upon the part of appellee, the initial carrier. [2, 3] So much of the Carmack Amendment and subsequent amendments to section 20 of the Federal Act to Regulate Commerce as is applicable to this case reads as follows: one state * * * * * * * receiv "That any common carrier ing property for transportation from a point in to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property, caused by it," etc. U. S. Comp. Stats. 1923 Supp. § 8604a (49 USCA § 20 (11). It is thus apparent that, by the express terms of the contract, any action against the initial carrier must be by the lawful holder of the receipt or bill of lading. The burden was upon appellant to establish that he was the lawful holder of the bill of lading at the time of the injury to the stock. While there is a finding that appellant was the owner of the stock at the time of its delivery to appellee, there is no finding that he was such owner or the lawful holder of the bill of lading at the time of its injury. [4] It is well settled that, regardless of the ownership of the property at the time it was delivered to the carrier, in the absence of an express contract retaining title in the shipper, the title vests in the consignee upon such delivery to the carrier and the consignee alone has the right of action for injury thereto. [5] It appears by the findings that appellee received the property from appellant, and that it was consigned to Long, West & Co., Cincinnati. The findings are silent as to the ownership of the property thereafter, and the presumption of law is that the title when vested in the consignee who was therefore the lawful holder of the bill of lading. Butler v. Pittsburgh R. Co., 18 Ind. App. 656, 46 Ν. E. 92; Cleveland, etc., R. Co. v. Partlow, 70 Ind. App. 616, 123 N. E. 838. [6] Without title to the property at the time of its injury, appellant had no right of action for damages resulting from such injury. Having reached this conclusion, we do not need to consider other questions. The judgment is affirmed as to the second and third conclusions of law, and reversed as to the first and fourth conclusions, with instruction to the court to restate the same in favor of appellee. DAUSMAN, J., absent. ZAHAREK et al. v. GORCZYCA et ux. (No. 12733.) (161 Ν.Ε.) In this case, to speak of the conduct of counsel for appellants who prepared the briefs herein in mildness and with charity for the Appellate Court of Indiana, in Banc. April 4, seeming frailness of human nature, they have 1928. 1. Appeal and error 930(1)-Reviewing court may assume that verdict not challenged as not signed by foreman, complied with statute as to signing (Burns' Ann. St. 1926, § 596). The reviewing court may assume that a verdict, not challenged on ground it was not signed by the foreman, as required by Burns' Ann. St. 1926, § 596, was so signed. 2. Appeal and error 757(1)-That brief set forth what person preparing entry for record conceived to be legal effect of verdict held insufficient to satisfy requirement that verdict be set forth in brief. * Where transcript of the record recited, "Come, now the jury into open court and return a verdict for the cross-complainant, that he is the owner in fee simple of lot 28, in Citizens' Land Company's West End subdivision to the city of South Bend, St. Joseph county, Indiana," held that such recitation, being merely a statement of what the person who prepared the entry for record conceived to be the legal effect of the verdict, was not a setting forth of the verdict in the brief as required on appeal. 3. Trial 136(3)It Is court's province to declare legal effect of instrument, and it does so by rendering judgment.. It is the province of a court to declare the legal effect of an instrument, and this it does by the rendition of a judgment. On petition for rehearing. Petition denied. ENLOE, J. The appellants have filed their petition for a rehearing, and assign as one of the grounds therefor that we erroneously declined to consider their alleged error concerning the action of the trial court in overruling their motion for a venire de novo. In the original opinion of this court, it was said: "The appellants moved for a venire de novo on the ground that the verdict of the jury was so 'uncertain, indefinite, and insufficient,' as to render it impossible to enter judgment thereon. The trial court, at the time it was called upon to rule upon this motion, had the verdict before it, and was well in a position to determine whether it was 'uncertain,' 'indefinite,' or 'insufficient.' The appellees called attention to the fact that the appellants, in their brief filed herein, had wholly failed to embody said verdict in their said brief, and thus place it before us for our consideration; that, where a paper or a pleading is the foundation of any motion, or demurrer, such paper or pleading must be set out, on appeal, in the brief, has long been settled. The verdict of which complaint is made not being set out, no question is presented for consideration by this assignment." our permitted their zeal for their cause, "to blind their discernment and their judgment," and have boldly gone so far as to accuse us of stating the record "contrary to the fact" shown thereby. But their zeal, which almost approaches the form of venom, cannot change the RECORD. The statement made by us in the former opinion, and which they now challenge as being contrary to the record, is our statement that they had not, in their brief, set out the said verdict which they were claiming was defective, indefinite, uncertain, etc. In view of this contention and of the attitude of counsel, as shown by their brief filed in support of their petition for rehearing, we shall set forth the record in this case, and consider it in the light of the statute. [1] It is provided by statute (section 596 Burns' 1926), and has long been the law, that: "When the jury have agreed upon their verdict, it must be reduced to writing and signed by the foreman; and when returned into court, the foreman shall deliver the verdict, and either party may poll the jury." In this case, as the verdict which was returned is nowhere challenged because the same was "not signed by the foreman," we are warranted in assuming that the verdict of the jury complied with the above statute. [2, 3] In the case at bar, the transcript of the record recites: "Come now the jury into open court and return a verdict for the cross-complainant, Ludwig Gorczyca, that he is the owner in fee simple of lot 28, in Citizens' Land Company's West End subdivision to the city of South Bend, St. Joseph county, Indiana." The above, as it conclusively shows upon its face, is not, nor does it purport to be, a copy of the verdict returned by the jury; it is, and only purports to be, a statement by the person who prepared the entry for the record, of what that person conceived to be the legal effect of said verdict. We cannot accept and be controlled in our determination of the legal effect of a pleading or verdict by what some person, other than a court of competent jurisdiction, says is the legal effect of such instrument. It is the province of a court to declare the legal effect of an instrument, and this it does by the rendition of a judgment. Here we have no "judgment" on the matter in question; we have simply matter of an historical nature prepared by the clerk, supposedly, and by him entered of record along with his "interpretation" of the legal effect of the verdict which the jury returned. The statute requires that the verdict of the jury be signed, that it may be known and identified should occasion demand, just as is required as to instructions For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and as to special findings, under certain circumstances. An examination of the brief filed by counsel for appellant, on appeal, discloses that, instead of the verdict rendered by the jury upon the trial of this case, they set forth therein what the clerk or person who prepared the entry for the record, conceived to be the legal effect of said verdict. A search of the record herein fails to disclose any copy of the said verdict; nothing is set forth in the record except the above-quoted recitation as to the legal effect of said verdict. If the attorney, or attorneys, who wrote the brief herein on petition for rehearing herein, had exerted a small portion of the energy expended upon said brief in seeing that this record in this case, upon which the appeal was prosecuted, was full and complete, he doubtless would have escaped the situation in which he is now found. The other matters of which complaint is made were given consideration upon the original hearing, and we see no reason to depart from the ruling there made. The petition for a rehearing is denied. WALL et al. v. ENGSTROM et al. (No. 12032.) 1 the death of Mrs. Studt, these heirs duly gave notice to the appellants that they disaffirmed said deed, on the ground, among others, that said Maria Studt was at the time of making said deed a person of unsound mind. A reconveyance having been refused, this action was brought upon a complaint in two paragraphs; one being upon the theory unsoundness of mind of said grantor at the time said deed was executed, and the other upon the theory that said deed was obtained by fraud and undue influence. In each of said paragraphs it was averred that said deed was executed without any consideration having been given therefor. To this complaint the appellants, who are husband and wife, answered by general denial. They also filed a cross-complaint in two paragraphs; the first being in ejectment, and the second to quiet title. These paragraphs of cross-complaint were met by an answer in denial. The issues thus formed were tried by the court, and resulted in a finding in favor of the appellees upon the issues made upon their complaint and a finding against the appellants upon the issues made upon their said cross-complaint; there was a decree accordingly. The alleged error is the action of the court in overruling appellants' motion for a new trial. It is first contended that the decision of the court as to the issues made upon the said Appellate Court of Indiana, in Banc. April 25, complaint is not sustained by sufficient evi 1928. Deeds In action by heirs of grantor to set aside deed and quiet title, evidence held sufficient to sustain court's finding that grantor was of unsound mind at time déed was executed. Appeal from Porter Circuit Court; Grant Crumpacker, Judge. Suit by Emily Engstrom and others against Clara E. Wall and others to set aside a deed to real estate and quiet title, in which defendants filed a cross-complaint. From a decree for plaintiffs, defendants appeal. Af firmed. August A. Bremer, of Crown Point, and Daniel E. Kelly and Edward J. Ryan, both of Valparaiso, for appellants. Roscoe R. Peddicord, of Hobart, for appellees. ENLOE, J. This appeal is prosecuted from a decree of the Porter circuit court setting aside a deed to real estate and quieting the title of the appellees therein. The said deed was executed March 11, 1922, by one Maria Studt, and the grantee named therein was the appellant Clara E. Wall. On May 22, 1922, the said grantor died, leaving the appellees as her only heirs at law. After dence, and is contrary to law. This contention involves a consideration of the evidence and the determination of its sufficiency to sustain the averments of either paragraph of said complaint, for, if either paragraph is sustained, as to the material averments thereof, by sufficient evidence, the appellees were entitled to a finding in their favor. As to the issue of unsoundness of mind: We find in the record the testimony of a number of witnesses, persons who knew Mrs. Studt, and who had talked with her on different occasions, and who had, on such oсcasions, an opportunity to observe her manner and conduct, and each of these witnesses gave it as his or her opinion, respectively, that in March, 1922, at the time of the making of said deed, Mrs. Studt was not a person of sound mind. As to this issue, the decision is abundantly supported by the evidence. As to the issue as to whether anything had been given, as a consideration for said deed, the appellant Clara E. Wall testified, as her testimony is set forth in appellants' brief herein: That "she and Mrs. Studt had gone to Hammond to Mr. Conroy's office three times; that the third time they took Mr. Neilip along, as he was planning on purchasing the property; that, when Conroy told Neilip about the property, and that there would probably be some difficulty in ousting the Ewiglebens, he backed out; that Mrs. Studt was disappointed in not making the sale; that she then told Conroy For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |