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156; Shockney v. Smiley, 13 Ind. App. 181, to a judgment, the requirements of said sec41 N. E. 318. It was not alleged in the com tion must be complied with. Kelley v. Love, plaint that the judgment was duly given or 35 Ind. 106, 107; Burson v. Blair, 12 Ind. that it was duly made. Neither was there 371, 373. Under the statute, the legal title any averment showing that the justice of the vests in the assignee when the required aspeace bad any jurisdiction over the Midland signment is attested by the proper officer. Railway Company. It is true that where it As there is no allegation showing that the appears that inferior courts have jurisdic- assignment was attested by the proper offi. tion over the subject matter, and have ac cer, the same only vested an equitable title quired jurisdiction over the persons of the in the appellee. The rule is that, in an acparties to the action, the same presumptions tion by an equitable assignee, the assignor are indulged in favor of the regularity and should be made a party to answer as to his validity of the proceedings as are indulged interest. Kelley v. Love, supra, pp. 107, in favor of the proceedings of courts of su 108; Clough v. Thomas, 53 Ind. 24; Nelson perior jurisdietion. Johns v. State, 104 Ind. v. Johnson, 18 Ind. 329. It would seem, 557, 560, 4 N. E. 153, and cases cited. But no therefore, that George L. Weitzel should have presumptions will be indulged that courts of been made a party defendant to answer as to justices of the peace have acquired jurisdic his interest. Kelley v. Love, supra, 107, tion of the parties. This must be shown by 108. Judgment reversed, with instructions to the facts alleged in the pleading, or the stat sustain the demurrer to the complaint. utory averment that the judgment was duly made or given. Hopper v. Lucas, supra, page 46, and cases cited. It is clear that the complaint was not sufficient to withstand the

HARN v. WOODARD, County Treasurer. demurrer for want of facts. It is alleged in the complaint that the judg

(Supreme Court of Indiana. April 19, 1898.) ment was rendered by the justice of the TAXATION-BUILDING AND LOAN ASSOCIATIONS

STOCK. peace in favor of George L. Weitzel, and that a transcript thereof was filed in the Burns' Rev. St. 1894, 8 8422, relating to office of the clerk of the circuit court of

corporations in general, makes all stock, except

where some other provision is made by law, tax. Boone county, Ind., and recorded in the or

able in the corporate name.

Section 8507 proder book of said court; and that afterwards vides that building, loan-fund, and savings assosaid "George L. Weitzel, for value received,

ciations shall be assessed on the surplus of resold, assigned, and transferred by indorse

ceipts over loans, and declares that neither said

associations nor the shareholders therein shall be ment in writing on the record of said judg liable to other taxation on said shares of stock. ment, where recorded in the office of the clerk

Held, that this was not a limit on the right to of said court, all his right, title, and interest

further tax the holders of stock, or those to

whom building associations were indebted, and in and to said judgment, to Moses P. Hig

it was proper to tax a nonborrowing member for gins, the plaintiff herein, who is the owner his holdings, which are in the nature of a credit, and holder of said judgment and entitled to

and it was immaterial whether the stock was the payment thereof." Counsel for appellant

fully paid up. insist that said allegations only show an equi Appeal from circuit court, Monroe county; table assignment of the judgment to appel W. H. Martin, Judge. lee, and not an assignment under the statute, Action by Albert S. Harn against Joseph and that, therefore, George L. Weitzel should S. Woodard, treasurer of Monroe county, to have been made a party defendant in the enjoin the collection of taxes. From a judgcourt below to answer to his interest in said ment entered on an order sustaining a dejudgment, as required by section 277, Burns' murrer to the complaint, plaintiff appeals. Rev. St. 1894 (section 276, Rev. St. 1881). Affirmed. The statute concerning the ass

ament of judgments of a court of record and of a jus

Louden & Louden and Duncan & Batman, tice of the peace is that they “may be assign

for appellant. Henley & Wilson, for appeled by the plaintiff or complainant, and the as.

lee. signees thereof, successively, on or attached to the entry of such judgment or decree; and HACKNEY, J. The appellant, Harn, sued the assignment, when attested by the clerk the appellee, Woodard, as treasurer of Monof the court, or such justice of the peace, roe county, to enjoin the collection of taxshall vest the title to such judgment or de es for the year 1897 upon certain running cree in such assignee thereof, successively.” stock in a building association, not borrowed Section 612, Burns' Rev. St. 1894 (section 603, upon by Harn as the holder thereof. The Rev. St. 1881). Before the enactment of said lower court sustained a demurrer to the section, judgments were not assignable so as complaint, and that ruling presents the only to rest the legal title in the assignee. Lap question for review. ping v. Duffy, 47 Ind. 51, 52; Reid v. Ross, One of the questions urged by the plaintiff 15 Ind. 265. Under our Code, an equitable is that stock of this character is assessable assignee of a judgment may maintain an ac to the building association, and not to the tion thereon. Lapping y. Duffy, supra, 52,

holder thereof. To this proposition are cited 53, and cases cited.

To pass the legal title sections 8122, 8507, Burus' Rev. St. 1894. 50 N.E.3

ISLAND COAL CO. v. GREENWOOD." (Supreme Court of Indiana. April 21, 1898.)

MAstER AND SERVANT – Neglig ENce — Assumption of Risk—MINING OPERATORs.

1. A room in a coal mine was inspected by the mine boss, and coal was found adhering to the roof, and all of it that was loose was taken down by his orders. Held, that where an employé subsequently entered the room in the due course of his employment, saw the overhanging coal, tested it, and found it firm, but, being an experienced miner, knew it was liable to fall, and went to work underneath it, and was injured by its falling on him, the company was not liable. 2. Rev. St. 1894, § 7472, making it the duty of the mining boss to visit and examine every working place in the mine at least every alternate day, and see that the same is properly secured by props or timber, does not require him to place the props in such a way as to interfere with the necessary working of the mine. Appeal from circuit court, Sullivan county; G. W. Buff, Special Judge. Action by John A. Greenwood against the Island Coal Company. There was a judgment for plaintiff, and defendant appeals.

Reversed.

John S. Bays and Miller & Elam, for appellant. Davis & Moffett and Cullop & Kessinger, for appellee.

HOWARD, C. J. Appellee was employed by the appellant company in mining coal, and has brought this action to recover damages for injuries alleged to have been caused by the negligence of the company, in suffering coal to fall upon him from the roof of the mine in which he was at work. The jury returned a general verdict in favor of appellee, assessing his damages at $4,500. They also returned answers to interrogatories. The questions discussed by counsel may best be considered in connection with the action of the court in refusing to give judgment to appellant on these answers to interrogatories, notwithstanding the general Verdict.

From the answers to interrogatories it appears that on the 16th day of October, 1895, and previous thereto, the appellant company was engaged in mining coal near Linton, in Greene county; that on said day, and for more than a year before, appellee was employed in the company's mine known as “No. 2,” his business being to run a cutting machine, in which work he was assisted by one Sherwood; that there were a number of openings in the mine called “work rooms,” each connected with a passageway or entry, the rooms being from 20 to 26 feet in width; that after a room Was Started at a given width it was usual for the miners to work at the face of the vein, -that is, at the end of the room furthest from the entry; that the vein of coal being mined on said 16th of October, 1895, Was about five feet in thickness; that it was mined by the men operating the machines by cutting away a part of the lower edge of the Vein across the

1 Rehearing pending.

whole face of the room, preparatory to blasting; that, after the machine men had done their work, other miners, called “loaders,” drilled holes in the face of the coal which had been so cut under, into which holes blasting powder was inserted, and thereby masses of coal were thrown down and broken up; that, while the loaders were blasting coal in one room and removing it from the mine, the machine men were at work in another room, three loaders, in this case, following the two machine men; that it was the business of the loaders to clear up a room after a blast, and before any further cutting was done in it; that appellee was hurt in a room known as “No. 8,” in the ninth entry east of the south main entry, his injury being caused by top coal and slate falling upon him from the roof of the room; that on the 16th day of October, 1895, the day on which, appellee was hurt, and for several days prior thereto, one Newport was appellee's mine boss; that said mine boss visited room 8 on the 14th day of October, 1895, and then found top coal adhering to the roof of said room, extending across the end of the room next to the face of the coal, and being about 11 feet wide on the right-hand side of the room, and 3% inches thick; that the mine boss sounded this top coal, and found it loose at the point where he sounded it; that the mine boss then directed one of the loaders to take down the top coal, and before the accident occurred the loaders did take down a part thereof; that the part taken down began at the left side of the room, and the loaders took down all that was loose; that the mine boss again visited the room on the morning of October 16th, the day of the accident to appellee, and then saw that a part of the top coal had not been taken down; that about three-quarters of an hour after the mine boss left room 8, on the morning in question, appellee and his assistant brought in their cutting machine, and both noticed that a part of the top coal had not been taken down; that appellee then sounded said top coal by striking it with a pick, to discover whether it was loose and likely to fall down, but upon such Sounding the coal appeared to be firm and to adhere closely to the roof of the room; that appellee's assistant, Sherwood, sounded the top coal in like manner With the handle of a slıovel, and also found it firm and adhering tightly to the roof; that thereupon appellee and his assistant placed their machine, and began to cut the side of the room under said top coal, and after they had been at work for an hour and a half the top coal fell upon them; that the weight of the coal that came down was about 800 pounds, being all of the coal that adhered to the roof when they began cutting, and it fell a distance of 2% feet; that miners determine whether top coal, or other material adhering to the roof of a room, is likely to fall, by Striking it and listening to the sound; that, if such material is loose, it will give forth a hollow sound on being so struck; that no other method is shown for determining whether top coal is loose; that there is always more or less danger of top coal falling from the roof of a mine, and no one can determine by examination when it will fall; that appellee and his assistant, while running a cutting machine in appellant's mine, had eight different working rooms, and changed from one to another, going to a room which the loaders had made ready; that rooms were often shot, cleaned up by the loaders, and again entered by the machine men between the regular visits of the mine boss; that appellee and his assistant, Sherwood, when they went to work in a room, often found top coal adhering to the roof which the loaders had not taken down, and it was their custom on those occasions to test the condition of such top coal by sounding the same, and thus determining whether it was safe to work under; that on this occasion Sherwood sounded said coal all over its surface, and the coal sounded solid and safe, both when appellee sounded it and when it was sounded by Sherwood; that the pick, used by appellee, was the best thing for sounding top coal, and the shovel handle used by Sherwood was a good implement for that purpose, either being better than the implement used by the mine boss in sounding on the 14th of October, 1895; that, to judge of the safety of the top coal, no one could do more than listen to the sound when it was struck; that appellee and Sherwood had good hearing when they sounded the top coal in room S, and both heard the sound given forth when it was struck by the pick and the shovel handle; that the condition of room 8 when appellee and Sherwood entered it on the morning of the accident was open to their observation, but they did not observe its condition closely or sound the top coal over its whole surface; that the reason why top coal was often found adhering to the roofs of rooms in which appellee and Sherwood worked was because the entire vein did not always come down when the blast was fired; that Newport, the mine boss, had general charge of the safety of entries, rooms, and other places where employés or others had occasion to go in appellant's mine; that, in the course of the work in mining coal, that part of the room where work was actually done often became unsafe by reason of the manner in which such work was done, and the loaders often remedied the trouble which caused danger, by removing the top coal; that such dangers often arose and were remedied between the visits of the mine boss, and without his suggestion; that appellee had been a coal miner, a part of the time, for 11 years before the accident, and Newport had then been mine boss for about 10 days; that there was space in room 8 to the north and west of where the top coal that fell on appellee was adhering to the roof, in

which they might have worked their machine on the morning of the accident, but it was necessary for them to operate the machine under the overhanging coal; that the appellee placed his machine under the top coal, knowing that such top coal was there, in room 8, at the time he so placed his machine, and began work thereunder, because of the fact that he had sounded such top coal and believed it to be absolutely safe and free from danger. It is not contended that these facts show contributory negligence on the part of appellee; but counsel for appellant do contend that the facts so found show that appellee assumed all risk of danger from the falling of the top coal. Counsel for appellee, on the other hand, contend that the danger was not obvious, but concealed or latent, and that as to such danger there is no assumption of risk. It is true that the danger was concealed, but it was concealed from appellant as well as from appellee. And while the duty of inspection rested upon the company, and it was required to furnish a reasonably safe place for its employés to work, yet we think the facts show that the duty so resting upon appellant was performed as fully as was reasonably possible. It is to be remembered that the defect in the roof was not in the passageways of the mine, but in the very place where appellee was at work, and of which he had a fuller and more Complete knowledge than appellant could have. The cause of danger was in the immediate presence of appellee, and had been thoroughly tested by him and his assistant, and, on such test, was found by them to be, as they believed, perfectly safe. They often found such top coal adhering to the roof when they entered a room to work, and were in the habit of testing it, as they did on this occasion. The jury found that there is always more or less danger of such coal falling, and that no one can tell by any examination when it will fall. It was also found that such dangers often occur and the top coal is removed between the visits of the mine boss, and without his suggestion. No doubt, as to permanent openings through which persons pass and repass in the mine, it is the duty of the mine owner, made so by the common law as well as the statute, to see that the mine is safe from all dangers that may be avoided by removing or propping up loose places in the roof. And while the statute (section 12 of the act approved March 2, 1891 [Acts 1891, p. 57; Rev. St. 1894, § 7472]) makes it also the duty of the mining boss to visit and examine every working place in the mine at least every alternate day, and see that the same is properly secured by props or timber, and that safety in all respects is assured, yet these requirements must be taken in a reaSonable Sense. It cannot be intended that props shall be set up at the very place where the machine men are at work. The men

whole face of the room, preparatory to blastISLAND COAL CO. V. GREENWOOD.1 ing; that, after the machine men had done (Supreme Court of Indiana. April 21, 1898.)

their work, other miners, called "loaders,” MASTER AND SERVANT NEGligence

drilled holes in the face of the coal which

ASSUMP-
TION OF RISK-MINING OPERATORS.

had been so cut under, into which holes 1. A room in a coal mine was inspected by the blasting powder was inserted, and thereby mine boss, and coal was found adhering to the masses of coal were thrown down and roof, and all of it that was loose was taken

broken up; that, while the loaders were down by his orders. Held, that where an employé subsequently entered the room in the due

blasting coal in one room and removing it course of his employment, saw the overhanging from the mine, the machine men were at coal, tested it, and found it firm, but, being an work in another room, three loaders, in this experienced miner, knew it was liable to fall, and went to work underneath it, and was in

case, following the two machine men; that jured by its falling on him, the company was

it was the business of the loaders to clear not liable.

up a room after a blast, and before any fur2. Rev. St. 1894, § 7472, making it the duty

ther cutting was done in it; that appellee of the mining boss to visit and examine every working place in the mine at least every alter

was hurt in a room known as “No. 8,” in nate day, and see that the same is properly se the ninth entry east of the south main encured by props or timber, does not require him try, his injury being caused by top coal and to place the props in such a way as to interfere with the necessary working of the mine.

slate falling upon him from the roof of the

room; that on the 16th day of October, 1893, Appeal from circuit court, Sullivan county;

the day on which appellee was hurt, and for G. W. Buff, Special Judge.

several days prior thereto, one Newport was Action by John A. Greenwood against the

appellee's mine boss; that said mine boss Island Coal Company. There was a judg

visited room 8 on the 14th day of October, ment for plaintiff, and defendant appeals.

1895, and then found top coal adhering to Reversed.

the roof of said room, extending across the John S. Bays and Miller & Elam, for appel end of the room next to the face of the coal, lant. Davis & Moffett and Cullop & Kes and being about 11 feet wide on the right-hand singer, for appellee.

side of the room, and 342 inches thick; that

the mine boss sounded this top coal, and HOWARD, C. J. Appellee was employed found it loose at the point where he sounded by the appellant company in mining coal, it; that the mine boss then directed one of and has brought this action to recover dam the loaders to take down the top coal, and ages for injuries alleged to have been caused before the accident occurred the loaders did by the negligence of the company, in suffer take down a part thereof; that the part ing coal to fall upon him from the roof of taken down began at the left side of the the mine in which he was at work. The jury room, and the loaders took down all that was returned a general verdict in favor of ap loose; that the mine boss again visited the pellee, assessing his damages at $4,500. room on the morning of October 16th, the They also returned answers to interrogator- day of the accident to appellee, and then ies. The questions discussed by counsel may saw that a part of the top coal had not been best be considered in connection with the taken down; that about three-quarters of action of the court in refusing to give judg an hour after the mine boss left room 8, on ment to appellant on these answers to in the morning in question, appellee and his terrogatories, notwithstanding the general assistant brought in their cutting machine, verdict.

and both noticed that a part of the top coal From the answers to interrogatories it ap had not been taken down; that appellee then pears that on the 16th day of October, 1895, sounded said top coal by striking it with a and previous thereto, the appellant company pick, to discover whether it was loose and was engaged in mining coal near Linton, in likely to fall down, but upon such sounding Greene county; that on said day, and for the coal appeared to be firm and to adhere more than a year before, appellee was em closely to the roof of the room; that appelployed in the company's mine known as lee's assistant, Sherwood, sounded the top "No. 2," his business being to run a cutting coal in like manner with the handle of a machine, in which work he was assisted by shovel, and also found it firm and adhering one Sherwood; that there were a number of tightly to the roof; that thereupon appellee openings in the mine called "work rooms,” and his assistant placed their machine, and each connected with a passageway or entry, began to cut the side of the room under said the rooms being from 20 to 26 feet in widtlı; top coal, and after they had been at work that after a room was started at a given for an hour and a half the top coal fell upon width it was usual for the miners to work at them; that the weight of the coal that came the face of the vein,--that is, at the end of down was about 800 pounds, being all of the the room furthest from the entry; that coal that adhered to the roof when they bethe vein of coal being mined on said 16th of gan cutting, and it fell a distance of 242 feet; October, 1895, was about five feet in thick that miners determine whether top coal, or ness; that it was mined by the men oper other material adhering to the roof of a ating the machines by cutting away a part room, is likely to fall, by striking it and lisof the lower edge of the vein across the tening to the sound; that, if such material

1 Rehearing pending.

is loose, it will give forth a hollow sound which they might have worked their maon being so struck; that no other method is chine on the morning of the accident, but it shown for determining whether top coal is was necessary for them to operate the maloose; that there is always more or less dan chine under the overhanging coal; that the ger of top coal falling from the roof of a appellee placed his machine under the top mine, and no one can determine by exam coal, knowing that such top coal was there, ination when it will fall; that appellee and in room 8, at the time he so placed his mahis assistant, while running a cutting ma chine, and began work thereunder, because chine in appellant's mine, had eight different of the fact that he had sounded such top working rooms, and changed from one to coal and believed it to be absolutely safe and another, going to a room which the loaders free from danger. had made ready; that rooms were often It is not contended that these facts show shot, cleaned up by the loaders, and again contributory negligence on the part of apentered by the machine men between the pellee; but counsel for appellant do contend regular visits of the mine boss; that appel that the facts so found show that appellee lee and his assistant, Sherwood, when they assumed all risk of danger from the falling went to work in a room, often found top of the top coal. Counsel for appellee, on the coal adhering to the roof which the loaders other hand, contend that the danger was not had not taken down, and it was their custom obvious, but concealed or latent, and that on those occasions to test the condition of as to such danger there is no assumption of such top coal by sounding the same, and risk. It is true that the danger was conthus determining whether it was safe to cealed, but it was concealed from appellant work under; that on this occasion Sherwood

as well as from appellee. And while the sounded said coal all over its surface, and duty of inspection rested upon the company, the coal sounded solid and safe, both when and it was required to furnish a reasonably appellee sounded it and when it was sound safe place for its employés to work, yet we ed by Sherwood; that the pick, used by ap think the facts show that the duty so restpellee, was the best thing for sounding top ing upon appellant was performed as fully coal, and the shovel handle used by Sher as was reasonably possible. It is to be rewood was a good implement for that pur membered that the defect in the roof was pose, either being better than the implement not in the passageways of the mine, but in used by the mine boss in sounding on the the very place where appellee was at work, 14th of October, 1895; that, to judge of the and of which he had a fuller and more comsafety of the top coal, no one could do more plete knowledge than appellant could have. thar listen to the sound when it was struck; The cause of danger was in the immediate that appellee and Sherwood had good hear presence of appellee, and had been thoring when they sounded the top coal in room oughly tested by him and his assistant, and, 8, and both heard the sound given forth on such test, was found by them to be, as when it was struck by the pick and the they believed, perfectly safe. They often shovel handle; that the condition of room 8 found such top coal adhering to the roof when appellee and Sherwood entered it on when they entered a room to work, and the morning of the accident was open to their were in the habit of testing it, as they did observation, but they did not observe its con on this occasion. The jury found that there dition closely or sound the top coal over is always more or less danger of such coal its whole surface; that the reason why top falling, and that no one can tell by any coal was often found adhering to the roofs examination when it will fall. It was also of rooms in which appellee and Sherwood found that such dangers often occur and worked was because the entire vein did not the top coal is removed between the visits always come down when the blast was fired; of the mine boss, and without his suggesthat Newport, the mine boss, had general tion. No doubt, as to permanent openings charge of the safety of entries, rooms, and through which persons pass and repass in other places where employés or others bad the mine, it is the duty of the mine owner, occasion to go in appellant's mine; that, in made so by the common law as well as the the course of the work in mining coal, that statute, to see that the mine is safe from part of the room where work was actually all dangers that may be avoided by removing done often became unsafe by reason of the or propping up loose places in the roof. And manner in which such work was done, and while the statute (section 12 of the act apthe loaders often remedied the trouble which proved March 2, 1891 [Acts 1891, p. 57; Rev. caused danger, by removing the top coal; St. 1894, § 7472]) makes it also the duty of that such dangers often arose and were rem the mining boss to visit and examine every edied between the visits of the mine boss, working place in the mine at least every and without his suggestion; that appellee alternate day, and see that the same is had been a coal miner, a part of the time, properly secured by props or timber, and for 11 years before the accident, and New that safety in all respects is assured, yet port had then been mine boss for about 10 these requirements must be taken in a readays; that there was space in room 8 to the sonable sense. It cannot be intended that north and west of where the top coal that props shall be set up at the very place where fell on appellee was adhering to the roof, in the machine men are at work. The men

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