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(162 N.E.)

"He told us he was up in Chicago and Marshall Rowe and William Hinton came there and met him, and told him they were going to crash a joint, an alcohol cache, and for him to wait for them until they came back; that they went into Chicago to what is known as Bum Town, and broke into an alcohol storage plant, and got their load of alcohol, and started back and picked Hall up and started to Indianapolis. He told us, when we pulled in behind them at Augusta, that some one made the remark to him 'that hi-jackers were after us,' and Rowe got on the side of the car and said, "They are not hi-jackers; that it was a sheriff's car, and that

he could not afford to be caught; he was a parole

from the Leavenworth prison.' He said that Rowe emptied two revolvers; that Rowe got out of the car first, and he got out second, and that one of the guns belonged to Hinton, and the other belonged to Rowe, and that Rowe took one, and that he (Hall) took the other one along with him."

[1] Appellant's objection to the admission in evidence of State's Exhibit 1, which was a confession signed by the codefendant Hinton (who was tried at the same time), was on the grounds that it was obtained under duress, was the confession of a confederate subsequent to the commission of a crime, was not made in Hall's presence, and was hearsay. The record, however, shows that the court did not admit and consider this evidence as

against this appellant. The court, in ruling upon the admissibility of this evidence said, "This will go in for what it is worth as to defendant Hinton." Hinton's confession did not contain anything with reference to Hall that is not in Hall's confession referred to above, except that Hall was to pay Hinton $50 for each load of liquor hauled, and that Hall lived at 1519 Dawson street with Claude Adams, to whom the liquor was to be delivered.

[2] Appellant also objected to testimony by a deputy sheriff of his conversation with Hinton covering some of the same facts, viz. that Hinton had been to Chicago in company with Hall; that they had obtained alcohol there, and were returning to Claude Adams' house in Indianapolis. Objections at the time were made separately by the several attorneys representing Hinton, Hall, and Adams; the objection of the latter two being that their clients were not present at the time the conversation took place. The court admitted the evidence, saying, "I will watch all of that."

It is reasonable to assume from this statement of the court, and in view of the statement made with reference to Exhibit 1, that the court did not consider this conversation as against Hall. But, even if this evidence had been admitted erroneously, it would constitute only harmless error, since the confession of Hall covered the same essential facts, and is alone sufficient to sustain the finding of the court.

[3, 4] The appellant contends that the finding of the court is not sustained by sufficient evidence, and is contrary to law, because no

proof was made that the alcohol being transported by appellant was intoxicating liquor. He maintains that alcohol (a) is not intoxicating liquor as defined in section 2, c. 48, Acts 1925, section 2715, Burns' 1926; (b) is not a spirituous liquor, although admittedly it is the basis of all spirituous liquors; and (c) is not a beverage, being neither potable, wholesome or drinkable, but is a violent irritant.1

The word "alcohol," as commonly used, and as used in our statute, means ethyl alcohol, a colorless, volatile, inflammable

liquid, which is the intoxicating element or principle of fermented and distilled liquors. It is produced by various processes of fermentation, brewing and distillation from fruits, grains, and vegetables containing sugar or starch, and, in addition to its use as an intoxicant, it is used extensively in the arts, for mechanical, manufacturing, and scientific purposes especially in medicine and pharmacy as a solvent.2

That alcohol is an intoxicating liquor is a fact that every person of common understanding knows, and it may be easily diluted so as to be capable of being used freely as a beverage. Snider v. State (1888) 81 Ga. 753, 7 S. E. 631, 12 Am. St. Rep. 350; State v. Kollar (1920) 17 Okl. Cr. 132, 186 P. 968; State v. Wallace (1921) 121 Me. 83, 115 A. 609.

While a few cases (cited by appellant and noted supra in footnote 1), decided years ago when intoxicating liquors were lawfully obtainable, have held that no demand existed for alcohol for drinking purposes, and that it was not in common use, nor even capable of being used as a beverage or for purposes of dissipation, and was not an intoxicating liquor; times, customs, and appetites have changed with the advent of prohibition, and it is now uniformly held that alcohol is a spirituous and intoxicating liquor, and of this fact the courts take judicial no

1 Appellant, to support these propositions, cites (a) State v. Martin (1879) 34 Ark. 340; State v. Witt (1882) 39 Ark. 216; (b) Lemly v. State (1892) 70 Miss. 241, 12 So. 22, 20 L. R. A. 645; and (c) State v. Osmers (1911) 21 Idaho, 18, 120 P. 165.

Concerning the first two of these cases, it was said in note, 48 L. R. A. (N. S.) 302: "These remarkable decisions had the natural effect, and the court was shortly obliged to modify its position." See Winn v. State (1884) 43 Ark. 151, which affirmed the conviction of one indicted for selling "intoxicating liquor" who sold alcohol only.

In Lemly v. State, supra, the court said that "alcohol is not in common use as a drink," and "would rarely, if ever, be wanted for drinking purposes, if supplies of the ordinary potations could be had."

It

Methyl (wood) alcohol, is poisonous, and its poisonous and dangerous character is well known. is not an intoxicating, spirituous liquor within the meaning of the first class of liquors, defined in sec

tion 2, c. 48, Acts 1925, and its sale, in the absence of any evidence tending to show that it was sold or reasonably likely or intended to be used as a beverage (within the meaning of the second class of liquors defined in section 2, c. 48, Acts 1925), was

held not to be an offense under the Prohibition Act of 1917. Hamilton v. State (1922) 191 Ind. 466, 133 N. E. 491, 19 A. L. R. 509.

tice. 33 C. J. 498, note 17; 15 R. C. L. 376, note 6; State v. Kollar, supra; State v. Wallace, supra; Robinson v. State (1925) 197 Ind. 148, 153, 149 N. E. 888; State v. Nicolay (Mo. App. 1916) 184 S. W. 1183; Trammel v. State (1925) 103 Tex. Cr. R. 46, 279 S. W. 277; Greiner-Kelley Drug Co. v. Truett (Tex. Civ. App. 1903) 75 S. W. 536.3

[5] Furthermore, we believe that it also clearly appears from sections 5, 10, and 19 of chapter 48, Acts 1925, that it was the legislative intent to include alcohol as an intoxicating liquor in section 2 of the act. Section 5 (section 2718, Burns' 1926), enumerating manufacture and sales to which the act does not apply, provides that:

"No provision of this act shall be construed to prohibit * the manufacture and sale of pure grain alcohol for medical, scientific or mechanical purposes * nor shall it prohibit

a wholesale druggist from selling pure grain alcohol in quantities of not less than one gallon as provided in this act nor

to prohibit a registered pharmacist from selling alcohol for medicinal purposes, upon the prescription of a licensed physician as herein provided," etc.

Section 10 (section 2726, Burns' 1926) provides that:

"It shall be unlawful for any pharmacist to sell any intoxicating liquor, except pure grain or ethyl alcohol, and such alcohol only for scientific, medicinal or mechanical purposes, etc.

Section 19 (section 2735, Burns' 1926) provides that:

"Any wholesale druggist, licensed pharmacist or any manufacturing chemist or any person authorized to use alcohol desiring to have transported to it or him such alcohol, shall make and file with the clerk of the circuit court a statement in writing, under oath," etc.

[6] That a defendant comes within the class of persons authorized to possess or transport alcohol for a lawful purpose is a matter of defense not necessary to be pleaded in the indictment or affidavit. State v. Kollar, supra. It was neither pleaded, proved, nor even claimed that this appellant came

See, also, Cureton v. State (1911) 135 Ga. 660, 70 S. E. 332, 49 L. R. A. (N. S.) 182; Marks v. State (1909) 159 Ala. 71, 48 So. 864, 133 Am. St. Rep. 20; Rucker v. State (Tex. Cr. App. 1894) 24 S. W. 902; Sebastian v. State (1903) 44 Tex. Cr. R. 508, 72 S. W. 849; Caswell v. State (1841) Humph. (Tenn.) 402; Bennett v. People (1863) 30 Ill. 389. And in State v. Torello (1924) 100 Conn. 637, 124 A. 375, it was held that partially denatured alcohol (97.7 per cent.) which could be made fit for beverage purposes by the mere addition of water or other liquid or by simple distillation and dilution was spirituous and intoxicating liquor. The federal courts have uniformly held that it is unnecessary to allege and prove that alcohol is an intoxicating liquorthe National Prohibition Act (27 USCA) so defines it. Miller v. U. S. (C. C. A. 1927) 21 F. (2d) 32, and cases there cited; Brown v. U. S. (C. C. A. 1926) 16 F. (2d) 682; Maresca v. U. S. (C. C. A. 1921) 277 F. 727.

within that class of persons or had complied, or attempted to comply, with those sections of the statute authorizing the possession and transportation of alcohol.

The rule announced in Hedges v. State (1924) 194 Ind. 122, 142 N. E. 13, concerning Jamaica ginger, and in Bernstein v. State (Ind. Sup. 1928) 160 N. E. 296, concerning malt extract, does not require, as appellant contends, that allegations and proof be made here, that alcohol is "reasonably likely or intended to be used as" an alcoholic beverage (under the second class of liquors defined in section 2, ch. 48, Acts 1925, section 2715, Burns' 1926), since we hold that alcohol is a "spirituous liquor containing as much as one-half of one per cent. of alcohol by volume" (under the first class of liquors defined in section 2, c. 48, Acts 1925, section 2715 Burns' 1926). State v. Cook (1925) 53 N. D. 429, 206 N. W. 786.

[7, 8] Appellant says that "the mere fact that alcohol was in a car in which appellant had ridden" would not make him guilty of the unlawful transportation, citing Howard v. State (1923) 193 Ind. 599, 141 N. E. 341, and Johnson v. State (Ind. Sup. 1927) 155 N. E. 196; but appellant has not brought himself within the rule applicable to the innocent, invited passenger. Persons knowingly helping to transport intoxicating liquors in an automobile are equally guilty with the owner of the liquor and car. Simpson v. State (1925) 195 Ind. 633, 146 N. E. 747; Payne v. State (1924) 194 Ind. 438, 143 N. E. 283.

Judgment affirmed.

MYERS, C. J., and WILLOUGHBY, J., concur in conclusion.

Otis SPROUT v. CITY OF SOUTH BEND. (No. 24695.)

Supreme Court of Indiana. June 20, 1928. Funk, Judge. Appeal from St. Joseph Circuit Court; W. A.

PER CURIAM. This court, on October 14, 1926, by its decision in the above-entitled appeal (198 Ind. 563, 153 N. E. 504, 49 A. L. R. 1198; rehearing denied 198 Ind. 563, 154 N. E. 369, 49 A. L. R. 1198), affirmed the judgment of the St. Joseph circuit court. Thereafter, by virtue of a writ of certiorari, the transcript of the record in the above-entitled cause was filed in the Supreme Court of the United States, wherein the decision and judgment of this court was reviewed, with the result that on June 20, 1928, a memorandum of the decision of the Supreme Court of the United States in said cause was filed in this court, and reads as follows:

"And whereas, in the present term of October, in the year of our Lord one thousand nine hundred and twenty-seven, the said cause came

(162 N.E.)

on to be heard before the Supreme Court of the United States on the said transcript of record, and was argued by counsel:

"On consideration whereof, it is now here ordered and adjudged by this court that the judgment of said Supreme Court in this cause be, and the same is hereby, reversed with costs, and that the said appellant, Otis Sprout, recover against the said appellee $141.45 for his costs herein expended and have execution therefor.

"And it is further ordered that this cause be, and the same is hereby, remanded to the Supreme Court of the state of Indiana for further proceedings not inconsistent with the opinion of this court. May 14, 1928."

Now, therefore, in obedience to the above and foregoing mandate of the Supreme Court of the United States, the order and judgment of the Supreme Court of Indiana affirming the judgment of the St. Joseph circuit court is hereby set aside and annulled; that the judgment of the St. Joseph circuit court rendered in said cause be and the same is hereby reversed and cause remanded to that court, with directions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with the opinion of the Supreme Court of the United States, pronounced May 14, 1928, reported, Otis Sprout v. City of South Bend, Ind., 48 S. Ct. 502, 72 L. Ed

STATE v. FEIGLE. (No. 13161.)
Appellate Court of Indiana, in Banc.
June 22, 1928.

1. Action 27 (2)-Complaint by highway contractor against state alleging breach of contract through neglect of state officers to perform duties was one for breach of contract, not tort.

Complaint by highway contractor against

state for breach of contract, which was result of failure, neglect, and refusal of state officers to procure right of way and perform other official duties, held to be one for breach of contract and not for tort.

2. Highways —113(4)—Highway contractor could sue state for damages for state's breach of highway contract by failure to procure right of way and for mistakes of state's engineer causing delay (Burns' Ann. St. 1926, § 1550).

Under Burns' Ann. St. 1926, § 1550, highway contractor could maintain action against state for breach of highway contract by state's failure, through its highway officials, to procure right of way over which contractor could construct highway, and for mistakes during progress of work by engineer of state highway commission which resulted in delay to contractor. 3. Highways

113(1)-Contract between highway contractor and state must be construed as though it were between individuals.

Contract between highway contractor and state must be construed the same as if it were between two individuals, since state in entering

into contract laid aside its sovereignty and bound itself substantially as one of its citizens does when he enters into a contract.

4. Highways 113(4)-State executing highway contract held liable to contractor for damages resulting from delay in furnishing place to construct highway.

State entering into highway contract obligates itself to furnish place to construct highway in time not to hinder progress of work and is liable for damages resulting to contractor from state's delay in furnishing place to construct highway.

5. Highways 113(4)-Highway contractor, required to follow state engineer's direction, may recover damages caused by engineer's mistakes in directing contractor.

Highway contractor, being required to follow state engineer's direction, is entitled to reimbursement for damages sustained because of mistakes of engineer in directing contractor, since even though state is not liable for damages for neglect of its officers and agents, it must be held liable for breach of its contract even though such breach is result of neglect of its officers and agents. 6. Highways

113(4)-Highway contract clause providing for extension of time where work is delayed through no fault of contractor does not preclude contractor from recovering damages for delay caused by state.

Clause of highway construction contract, providing that "whenever work is delayed or suspended through no fault of contractor or whenever extra or additional work is required director shall allow a reasonable extension of time for final completion of contract," held not to preclude contractor from recovering damages for delay caused by state's officers or agents, but such clause was intended to relieve contractor from consequences of any failure on his part because of unavoidable happenings. 7. Highways 113(4)-Where state caused delay in highway contract, contractor could complete work and then claim damages.

Where state caused delay in completing highway contract by failure to procure right of way, contractor was not obliged to abandon work and sue for damages, but could proceed to complete work and then claim damages.

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NICHOLS, C. J. Action by appellee against the state and the state highway commission for damages growing out of the breach of a highway construction contract.

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

The complaint alleges: That heretofore, to wit, on February 19, 1924, appellee and the state, by the state highway commission, duly entered into a contract in writing by the terms of which appellee undertook and agreed to furnish the material and labor necessary to construct a certain highway in the state, which improvement was designated as federal aid project No. 65, section B, extending from the city of Princeton in a northerly direction. Said contract was entered into by said parties after due and legal advertisement, and was let to appellee as the lowest and best bidder.

The defendant state highway commission had a corps of engineers, the chief of whom told appellee, on February 19, 1924, to proceed with the construction of said improvements in accordance with the terms of his contract. Thereupon appellee assembled his machines, tools, plants, and labor at the site of said improvement project and made all necessary arrangements and preparations to begin the construction thereof. In order to carry out said contract, of which the highway commission knew, it was necessary for appellee to have considerable equipment, consisting of tools, scrapers, levelers, wagons, mixers, and other like equipment, some of which he then owned and some of which he rented for the particular purpose, and such renting was had at a rental expense of $210 per day, which rental was to begin simultaneously with the beginning of said construction and end upon the completion thereof. Instead of hiring a superintendent, appellee did the superintending of the work himself, and the reasonable value thereof was $10 per day..

In order properly to carry on said work, he did, during the entire time, rent and maintain an office in Evansville, with proper and necessary office help, and all such overhead expenses, wages, and salaries were required to be paid by him whether or not construction was continued or delayed, which amounted to $20 per day. Appellee leased grounds for the location of his construction camp and his equipment and had railroad sidings and switches put in for use in such construction.

On March 26, 1924, the commission, by its chief engineer, told appellee to receive shipments of cement and other material, and to have his equipment installed ready to begin laying pavement not later than April 15, 1924; and in pursuance of said order he ordered cement and other material, and in all things prepared to commence work according to the contract.

Under said contract it was the duty of said commission to furnish the right of way for said highway, but it, at divers times, failed, neglected, and refused to secure any right of way so that the work on construction could go on, though often requested by appellee so to do; and, wholly on account of such failure, neglect, and refusal of the commis

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When appellee reached a certain point on said highway with his grading, it was discovered that the engineer in charge, through negligence and error, had made a mistake and required appellee to make a fill of seven inches in excess of the proper depth, but that after said fill had been made, said engineer discovered his mistake and appellee was required by said engineer to remove said excess of seven inches of dirt, and because thereof he suffered a total loss of $436.11. At one place said engineer had so fixed his stakes that had said right of way been graded and paved in accordance therewith it would have been impossible to keep said paving, shoulders, and ditches on the right of way which had theretofore been obtained by said commission, and because of the delay occasioned thereby, appellee was damaged $276.92.

That each and all of the delays and errors in the construction on said work, as specifically set out, was wholly without any fault on the part of appellee, but due wholly to the failure, neglect, and refusal of said commission to obtain said right of way, and said errors and negligence of said engineer in charge; said commission at all times before the beginning of said construction and during the progress thereof had full knowledge of not having the right of way, and of the hindrance, delay, and damages suffered by appellee.

There is due appellee from defendants on account of said breach of said contract (as we compute) $21,054.13, which defendants have failed to pay, or any part thereof, for which appellee demands judgment.

Appellant's demurrer to the complaint for want of facts was overruled, and thereupon appellant filed its answer in four paragraphs. The first was a denial, the second averred payment of the total amount due on the contract, and the third averred that appellee and appellant, through the highway commission, entered into a contract for the construction of a certain part of the highway as alleged in the complaint. By express provision of the contract the standard specifications on file in the offices of said commission as provided by statute were made a part of said contract, which standard specifications are by exhibit a part of the complaint.

By express provision of said specifications appellee was invited to examine carefully the site of the work contemplated in the contract, and it was expressly provided that appellant, through said commission, should assume that appellee had judged for and satisfied himself as to the conditions to be encountered, as to the character, quality, and quantity of work

(162 N.E.)

to be performed and materials to be furnished.

Appellee did examine the site of the proposed work and knew, or had the means of knowing, the facts as to the ownership of all land included in the proposed improvement and any easements on and over said land, and by reason of such facts he had knowledge that appellant, through said commission, had not acquired an easement for the location of said highway on the land as proposed in said contract and in the records and files of said commission.

Notwithstanding the fact that appellant, through said commission, had not acquired all of the right of way for the location of said improvement, and with full knowledge of such fact, appellee entered into said contract and undertook the work contemplated therein. By express provision of said specifications, it was provided that the chief engineer of said commission should have the authority to suspend all or any part of the work when in his opinion conditions were such that the work could not be done properly, in which case appellee was required to store all materials, provide adequate drainage, and take such other precautions as to protect the work already done and to protect the traveling public.

By express provision of said specifications, it was further provided that when the work should be delayed or suspended through no fault of the contractor, the director should allow a reasonable extension of the time for the final completion of the contract, and that in case of suspension of the work the extension should be in direct proportion to the length of time during which the work was so suspended.

It was further expressly provided in said contract that the compensation provided therein should constitute full payment for the work indicated complete in place including the furnishing of all materials, tools, machinery, equipment, labor and work incidental thereto, as well as any and all expenses incurred by reason of any cause whatever except as otherwise provided in said specifications and contract. Notwithstanding said provisions, appellee entered into said contract and undertook the work as proposed therein and with the full knowledge that all of the right of way had not been procured over the line of said highway as proposed in the plans and specifications therefor; that said contract contained no provision fixing the time for the procuring of said right of way; and that notwithstanding said fact, appellee so entered into said contract, undertook the work therein, and accepted the provisions of said contract above referred to as to the extension of time caused by delays, and said contract was extended from time to time by appellant through the highway commission.

From time to time as provided in said speci fications, appellee accepted monthly estimates

as the work progressed, and upon the completion of the work he accepted the final estimate and a voucher was executed properly covering the amount of said final estimate, which was duly forwarded to the auditor of state and a warrant issued thereon, which warrant was accepted by appellee as the final payment for the work done and performed under said contract.

Appellee having accepted all benefits of the extension provisions and other provisions of the contract above referred to, and by reason of all facts herein alleged, is estopped to assert any claim against the state arising out of the work done under said contract or for claiming any further compensation for expense caused by delays.

The facts pleaded in the fourth paragraph of answer are the same as the third, but such paragraph by reason of such facts avers a waiver because of accepted benefits, instead of an estoppel as in the case of the third.

Appellee's demurrer to the second, third, and fourth paragraphs of answer for want of facts was sustained.

There was a trial by the court, which resulted in a judgment in favor of appellee for $13,995, from which this appeal, appellant assigning as error the court's respective rulings on demurrers and on the motion for a new trial.

[1, 2] We have no hesitation in holding that the theory of the complaint herein is to recover damages from the state for the breach of a contract, and not to recover damages because of the tort of the state's officers or agents. The mere fact that the breach of the contract involved was the result of the failure, neglect, and refusal of some of the officers of the state to perform their official duties does not make the action one of tort instead of one for a breach of contract. It is expressly stated in the complaint that there is due appellee from appellant "on account of said violation and breach of said contract" by appellant the sum of $21,345.64. We are impressed that appellant is not very serious in its contention that the action is in tort, for in the opening statement of its brief it says:

"This is an action for breach of a highway construction contract brought by the appellee against the state of Indiana and the Indiana state highway commission."

The action is authorized by an act of the Legislature passed in 1889, Acts 1889, p. 265, as amended in 1895, Acts 1895, p. 231; Burns' 1926, § 1550. This act, so far as here in

volved, reads as follows:

"Any person or persons having or claiming to have a money demand against the state of Indiana, arising, at law or in equity, out of contract, express or implied, accruing within fifteen years from the time of the commencement of the action, may bring suit against the state therefor in the superior court of Marion county, Indiana, by filing a complaint with the clerk of the

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