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agent and superintendent of agents of the application does not appear to have been in pellant, that the amount of premiums so paid the form of a proposal from the person whose be returned to appellee, which was refused life was insured, and it is not shown in what by the appellant. It is shown in relation to connection or for what purpose the name of each policy that an agent of the appellant im- such person was attached, or that there was portuned the appellee to take out an insur- even in the form of the application an indicaance policy upon the life of a person named. tion that it was to be attached. Supposing The persons so named are described, respec- the parties to the contracts to have been the tively, as the minor daughter of appellee, her appellant on the one side and the appellee son-in-law, her brother, her two nieces, and upon the other, the former being represented the mother-in-law of her niece. It is found, in the procurement of the latter's proposal in each instance, that the agent represented for insurance by the appellant's own agent, to the appellee that a policy of life insurance authorized to solicit and forward such procould be had upon the life of the person nam- posals, and it not being necessary, so far as ed without the knowledge or consent of such appears, that the application be signed by person, and that the application for such pol- the persons whose lives were insured; it icy need not be signed by such person; that would seem that the company could not have the appellee relied upon the representations resisted payment of such a policy, in case of made by the agent; that an application of the death of the person whose life was insaid company for insurance was prepared by sured at a time when all premiums had been said agent at that time upon the life of such paid up according to the contract, merely upperson without his knowledge or consent, on the ground that such person had not signand the name of such person was attached ed the application, but the company's agent thereto, but it was not signed by such per- had himself caused the name of such person son or by the appellee; that on a day stated, to be attached to the application, such perin pursuance of the application, the appellant son not being a party to the contract. If issued a Metropolitan Life Insurance Compa- this were an action brought by the appellee ny policy, of a number mentioned, upon the upon one of these policies issued to her, and life of such person and upon said applica- the only defense set up to a sufficient comtion, with a payment of a weekly premium of plaint were that the company's agent for soa specified sum; that said policy was issued liciting proposals, making representations as upon said life without the knowledge or con- in this case, without fraud on the part of sent of such person, who was ignorant of the the appellee, had made out applications as in same up to the time of the bringing of this this case, no violations of any rule or byaction, except that as to said minor daughter, law or other provision of the company or the policy on whose life was issued on the requirement of statute relating to the appli5th of March, 1894, the premiums on which cation appearing, would the company be perwere paid by the appellee to the 15th of April, mitted to escape liability upon its contract on 1895, it was found that about a year after such ground? Inasmuch as the finding the issuing of the policy, and when the showed the issuing of certain policies of indaughter was about 18 years of age, she was surance on the lives of certain persons, it induced by an agent of the appellant to sign, perhaps might be said that the finding shows and did sign, a supplemental application for that there was evidence before the court the policy so issued on her life, upon the rep- from which it might and should have found resentation of the agent that, as the policy to whom the policies were issued, and that, was void because she had not signed the orig- if the finding upon this matter were regardinal application, to make the policy good it ed as necessary to the appellee's recovery, it was necessary for her to sign a supplemental would be our duty to give the appellee an application prepared by the appellant for that opportunity to have another trial of the purpose. There is no finding that there was cause; but the finding is wanting in facts any requirement in the application, or by any necessary to the appellee's case, as to which, rule or by-law or otherwise, that the appli- so far as appears in the finding, there was cation for insurance upon the life of one no evidence. There is no indication that person for the benefit of another, to whom there was any rule or regulation requiring the policy was to be issued, should be sign- the signatures of the persons whose lives ed by the person whose life was to be in- were insured. The burden was upon the apsured. pellee to show that the policies were void ab initio, for a reason stated in the complaint. It is a familiar rule that, where the special finding is silent as to any fact, this is to be treated as a finding against the party having the burden of proving such fact. Under this rule, we must sustain the appellant's exceptions to the conclusions of law. The judgment is reversed, and the cause is remanded, with instruction to state conclusions of law in favor of the appellant, in accordance with this opinion.

If, as is sufficiently shown by the finding, the contracts were made in good faith on the part of the appellee (without which there could be no recovery in such an action as this), the policy issued to her would not be void merely because the persons whose lives were insured did not sign the applications which was the ground of invalidity relied upon in the complaint), in the absence of any requirement that they should so sign. The form of the application is not given. The ap

EVANSVILLE & T. H. R. CO. v. WILSON. (Appellate Court of Indiana. April 19, 1898.) CARRIERS-FAILURE TO STOP TRAIN-PLEADINGEVIDENCE-ACTION IN TORT.

1. Where a railroad makes a special agreement with a passenger purchasing a ticket to a station named and return, good only on the date of sale, that its return train on that day shall stop at such station to allow the passenger to return thereon, it is not a necessary allegation of the complaint, in an action for failure to stop such train, that it was scheduled to stop at such place according to the regulations of the company.

2. The provisions of a railroad ticket may be supplemented by parol to show a special arrangement whereby the company agreed to stop a train at a point at which it was not scheduled to stop.

3. Where a railroad company makes a special arrangement by which it agrees to stop a train at a certain point, a failure to stop the train at such point is a breach of duty, the violation of which will support an action in tort by a person damaged, to which the contract of carriage is an incident.

Appeal from circuit court, Knox county; G. W. Shaw, Judge.

Action by May D. Wilson against the Evansville & Terre Haute Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Iglehart & Taylor and Reily & Emison, for appellant. Cullop & Kessinger, for appellee.

BLACK, J. The complaint of the appellee, May D. Wilson, after its introductory matter, showed, in substance, that on the 6th day of August, 1895, the appellant, by its ticket agent at Vincennes, notified all persons desiring to purchase tickets over its railroad for the purpose of attending a picnic being held in the vicinity of Purcells, that its passenger train going north through that place at about 8:45 or 9 o'clock p. m. on that day would stop and take such persons as desired to be carried as passengers on said train which passed through Purcells for Vincennes at that time; that on that day, and for days previous thereto, it advertised, and suffered to be advertised, by posters put up in public places, and announcements made in the press of Vincennes, that persons wishing to attend the picnic in the vicinity of the Purcells station would be carried from Vincennes to Purcells on said day, and that said train going north through Purcells at said hour would stop and carry said passengers back to Vincennes; that the appellant on said day sold tickets to all persons applying at its offce at Vincennes for Purcells and return upon said train; that its ticket agent so notified them, and authorized persons in charge of the picnic to notify others and the public generally at the time the tickets were purchased that said train would stop, and carry them back to Vincennes; that on said day the appellee, a resident of Vincennes, desiring to go to

Purcells for the purpose of attending said picnic, purchased a ticket therefor and return, which was then and there sold and delivered to her by the appellant for a valuable consideration; that on said evening, at and before the time for the arrival of said train, and after having been notified by the appellant's ticket agent at Vincennes when she purchased her ticket, and as otherwise stated, that said train would stop for her, and carry her back to Vincennes, she went to said station, and the proper place thereat, for the purpose of taking said train to be carried as a passenger to Vincennes, having already provided herself with a return ticket as aforesaid; that a part of her ticket used for her passage from Vincennes to Purcells was taken up by the conductor of the train which carried her from Vincennes to Purcells, and that it remained still in the possession of the appellant; that the return part of her ticket did not provide for her return on any particular train, but it did provide that it was to be good for one return passage from Purcells to Vincennes, if used on date stamped on the back; that it was stamped on the back, "Union Depot, Vincennes, Indiana, August 6th, 1895"; that there was no stipulation concerning her return on any particular train, but the appellant sold it to her for the sole purpose of returning on said train, and no other, and so agreed with her, and notified her to return on the same, and there was no other train on appellant's road that day for her to return upon; that the appellant disregarded its duty, ran its train through said station without stopping to carry the appellee back to Vincennes, and wrongfully and unlawfully failed and refused to stop its said train, and admit her as a passenger thereon; that she hailed said train to stop for her, but it disregarded all signals to stop, and ran by, and left her at said station, and refused to carry her as such passenger, although the appellant well knew that it had agreed to do so; that it was a dark night; that the appellee was some eight miles from home, and without means of being conveyed back to Vincennes; that it was a strange place; that she was in bad health, and among strangers; that she had to secure a conveyance to take her back to Vincennes, her home, at great expense; that she was some four or five hours in being returned to her home; that she was exposed to the night air, and the perils of a journey from said place under said circumstances to Vincennes. There were a number of averments relating to damages, which need not be set out. It was further alleged that said train was the only train which the appellant at that time was running as a regular train on that evening to Vincennes. Issues were formed, the trial of which by jury resulted in a general verdict for the appellee for $30. The jury also returned answers to interrogatories submitted by each party. It was thus specially

found, in substance, that on the 6th of August, 1895, the appellee went from Vincennes to Purcells on a train of the appellant, upon a ticket of which the following is a copy:

"Evansville Route. Evansville & Terre Haute Railroad.

"Vincennes to Purcells. "Good only on date of sale for continuous passage on trains stopping at points named when stamped by selling agent.

"Form F.

"Evansville Route. Evansville & Terre Haute Railroad.

"Good for one return passage.

"Purcells to Vincennes.

"If used on date stamped on back; otherwise void.

"Form F."

It was found that, in addition to the contract contained in the ticket, the appellant contracted to carry appellee to Purcells and back to Vincennes, the additional contract being made with C. N. Cheever, ticket agent of the appellant; that he had no authority from the appellant to make such contract other than that he possessed by reason of his being such ticket agent; that F. P. Jeffres, general passenger agent of the appellant, made a special contract, by which the appellee was to be returned from Purcells to Vincennes on the train passing Purcells going north at 8:45 or 9 p. m.; that said train going north, by the rules and regulations of the railroad, did not stop at Purcells at and for more than one year before said date; that it did not on said evening stop at Purcells for the appellee to take passage to Vincennes; that the appellant had a passenger train at Purcells about 11 o'clock p. m. at said date, and stopped it there for the appellee to ride thereon to Vincennes; that she left Purcells, and returned to Vincennes, before the train sent by the appellant reached Purcells; that it was a warm, pleasant, moonlight night at Purcells, but cool after 9 o'clock; that appellee returned to Vincennes by some means other than a car of appellant on its railroad; that on account of her going home by other means she suffered by taking cold, and was put to expense in the sum of 25 cents; that by reason of appellant's failure to carry her from Purcells to Vincennes she suffered humiliation or indignity; that the defendant notified her that said train would stop at Purcells, the notice being given by C. N. Cheever, on that day, verbally; that the train on which the appellant agreed to carry her back when she bought her ticket was known as train No. 4; that the appellant failed to stop this train at Purcells, because the superintendent of the appellant, William Corbett, neglected to notify the crew in charge of the train to do so; that when she bought her ticket appellant agreed with her that it would stop train No. 4 going north through Purcells at 8:45 or 9 o'clock p. m.

to carry her back to Vincennes on said ticket; that appellant failed to so stop the train, because it neglected to notify the crew in charge of the train to stop at Purcells; that her ticket was sold her for the purpose of her return on said train No. 4; that at the time appellant sold her the ticket, it did not have running on said road any train for her return other than said train No. 4; that appellant sent an engine and borrowed coach to Purcells to bring appellee back to Vincennes because it had forgotten to have train No. 4 stop for her to carry her back to Vincennes.

The appellant's motion for judgment upon the jury's answers to interrogatories, and its motion to tax the costs against the appellee, were overruled. These rulings are assigned as errors, and the question as to the sufficiency of the complaint is for the first time presented by assignment of error. The complaint does not allege that by the rules and regulations of the appellant the station of Purcells was a regular stopping place for the train, upon the failure to stop at which the complaint is based. It is a well-established general rule that, in the absence of statutory provision to the contrary, a railroad company may make rules providing that particular trains shall stop only at certain stations, when it furnishes reasonable means of reaching all stations on its road by some of its trains, and that it is the duty of a person taking passage on a train to inform himself when, where, and how he may stop according to the regulations and time card of the railroad company; and, if he make a mistake, not induced by the company, he has no remedy against the company for its enforcement of such rule. Railway Co. v. Nuzum, 50 Ind. 141; Railroad Co. v. Bills, 104 Ind. 13, 3 N. E. 611; Railway Co. v. Applewhite, 52 Ind. 540; Railway Co. v. Lightcap, 7 Ind. App. 249, 34 N. E. 243; Railroad Co. v. Norris, 17 Ind. App. 189, 46 N. E. 554; Railroad Co. v. Lucas (Ind. App.) 47 N. E. 842. In a complaint by a ticket holder for failure to stop the train on which he is traveling at the station named in his ticket, it is necessary to show that the regulations of the railroad company provided that the train should stop at such place; and so, also, in order to put the railroad company in the wrong, in a complaint for failure to stop a train to receive the ticket holder, it should be made to appear that it was the duty of the company towards the ticket holder to so stop the train. But the company may make a special arrangement for the stopping of a particular train at a certain station at which, under the general rules and regulations, it is not required to stop. Such a contract is not unlawful, and the breach of it, whereby the ticket holder, induced to take passage under it, is prevented from returning to his home as contemplated by the contract, by reason of the failure to stop the train, would entail upon the

railroad company liability for violation of duty. See Railway Co. v. Nuzum, supra; Railway Co. v. Hatton, 60 Ind. 12; White v. Railroad Co., 133 Ind. 480, 33 N. E. 273; Railroad Co. v. Dumser (Ill. Sup.) 43 N. E. 698.

It is suggested in argument that such an arrangement for the stopping of a train contrary to the general rules and regulations cannot be made by a ticket agent. It is sufficiently alleged in the complaint that the special regulation for stopping the train, by way of notice to her and agreement with her, was made by the appellant, and the special findings of the jury are not inconsistent with the general verdict. Whatever

may be the proper view as to whether or not the passenger's ticket or provisions therein should be treated as a contract, we are of the opinion that it may be supplemented by such special matter in parol as the arrangements here shown for the stopping of the train. And while it is doubtless true that it is not within the implied authority of agents for the sale of tickets at its stations to change the duly-established regulations of the company for the stopping of its passenger trains, yet where a ticket has been purchased, and in part used, under the circumstances disclosed in this case, the company is liable for the damages resulting to the passenger for failure to stop the train. The case is not one requiring us to go further, and to decide as to the responsibility of the company for the injurious consequences of the giving of merely false information by a ticket agent to a passenger concerning the running or stopping of trains. There appears to have been a negligent failure to stop the train when and where it was the duty of the company towards the appel lee to stop it.

The appellant moved to tax costs against the appellee, because the verdict was for a sum less than $50; it being assumed that the action was upon contract. Under the relation created by the facts in the case, the appellant owed the appellee a duty, the violation of which was a tort. The contract of carriage was an incident in the creation of the relation from which the duty arose. The action was based upon the violation of the duty, and was in tort. The judgment is affirmed.

FOX et al. v. COX et al. (Appellate Court of Indiana. April 26, 1898.) APPEAL-SUFFICIENCY OF EVIDENCE-EXPERT TESTIMONY--RECEIPT--PAROL EVIDENCE-RES GES

TE-REPLEVIN-EVIDENCE-ADMISSIBILITY.

1. The appellate court will not reverse a judgment, on the ground that it is not sustained by the evidence, when there is some evidence to support the judgment.

2. A witness who had some knowledge of the value of mill machinery, and of the machinery in question, was competent to testify as to its value, although he was not an expert.

3. Whether or not a witness has sufficient knowledge of the value of machinery to render

his testimony as to its value admissible is a question for the trial court, and the appellate court will not interfere with its ruling, unless it appear that there was a total lack of knowledge on the part of the witness, or a palpable abuse of discretion on the part of the court.

4. A receipt, which has none of the elements of a contract, is only prima facie proof of the statements it contains, and may be explained or contradicted by parol evidence.

5. In replevin, in which both parties claimed under a sale from the same person, a receipt was in evidence to show a sale to one of the parties prior to the purchase by the other. Held, that statements of the parties, made at the time of the sale, concerning the transaction and the price paid, were admissible in their own behalf as part of the res gestæ.

6. In replevin to recover mill machinery, a deed of the mill, in which the machinery was located, to one of the claimants, and a record of a cireuit court quieting title in him, were admissible as bearing on the question of ownership and right to possession.

Appeal from circuit court, Parke county; A. F. White, Judge.

Action by Albert B. Fox and others against William Cox and others. Judgment for defendants, and plaintiff's appeal. Affirmed.

Puett & McFaddin, Ayres & Jones, and Caroline B. Hendricks, for appellants. J. M. Johns, for appellees.

ROBINSON, C. J. Appellants brought suit in replevin for certain mill machinery and for damages. Judgment was rendered in appellees' favor. Appellants' motion for a new trial was overruled, and this ruling is the only error assigned. A new trial was asked because the decision was not sustained by sufficient evidence, was contrary to the evidence and the law, and because of the admission of certain evidence set out in the motion. It is not claimed that there was a failure of proof upon any material issue in the case. We have carefully considered the evidence, and find there was some evidence upon which to base the finding. It has been so often held that the preponderance of the evidence is a question for the jury, or trial court, that the citation of authorities to that effect is unnecessary. The fourth and sixth grounds for a new trial were permitting two witnesses to testify as to the value of certain machinery. It is not necessary that a witness should be an expert before testifying in such a case. The extent of a witness' knowledge before being permitted to testify as to values is within the discretion of the trial court, and it is only where there is a total lack of such knowledge, or there is a palpable abuse of discretion, that the appellate tribunal will interfere. It is shown the witnesses had some knowledge of the subject-matter, and of the particular property. The record shows they were competent to testify. The weight of their testimony was for the court. The extent of a witness' knowledge of the subject-matter about which he testifies as to values goes to the weight of his testimony, and not to its competency. See Smith v. Railroad Co., 80 Ind. 233; Railroad Co. v. Crawford, 100 Ind. 550; City of

Lafayette v. Nagle, 113 Ind. 425, 15 N. E. 1. A receipt, that has none of the elements of a contract, may be explained or contradicted by parol evidence. It is only prima facie proof of the statements it contains, and is not conclusive. Railway Co. v. Crumbo, 4 Ind. App. 456, 30 N. E. 434, and cases cited; Adams v. Davis, 109 Ind. 10, 9 N. E. 162; Scott v. Scott, 105 Ind. 584, 5 N. E. 397. A receipt was in evidence to the effect that the property in suit was sold to one of the appellees on March 13, 1895, by one Ekelsberry. Appellants were claiming the property by purchase from the same party at a subsequent date. What the parties said, at the time of the transfer, on March 13th, concerning the sale and the amount paid, was competent evidence as a part of the res gestæ. While it is well settled that a party to a suit cannot prove his own declaration, made in the absence of his adversary, to sustain his cause of action, yet the rule is declared to be that, "where an act is competent, so, also, are the declarations of the persons engaged in its performance and constituting a part of the thing done." Pennsylvania Co. v. Weddle, 100 Ind. 138; Walker v. Steele, 121 Ind. 436, 22 N. E. 142, and 23 N. E. 271; Creighton v. Hoppis, 99 Ind. 369. There was no error in admitting in evidence a deed purporting to convey to appellee Cox the real estate and mill property, in which was situated the milling property in dispute, and also the record of the circuit court quieting title to the same property. We are not informed how such evidence could harm appellants. We think it would tend to show who was entitled to the possession of the mill property, and would have some bearing on the question of title to the personal property. Upon the whole record, we can but conclude that the case was properly decided upon its merits. Judgment affirmed.

HOCH v. STATE.

(Appellate Court of Indiana. April 26, 1898.) CRIMINAL LAW-APPEAL-BILL OF EXCEPTIONSOBSTRUCTING HIGHWAY-PUNISHMENT.

1. A bill of exceptions in a criminal case not filed within 60 days after the rendition of judgment, as provided by Burns' Rev. St. 1894, § 1916 (Horner's Rev. St. 1897, § 1847), is not a part of the record, though, by order of court, 90 days was given in which to file it.

2. A fine of $25 for obstructing a public highway is not excessive, under Burns' Rev. St. 1894, § 2043 (Horner's Rev. St. 1897, § 1964), permitting a fine of not more than $500 and imprisonment therefor.

Appeal from circuit court, Pulaski county; G. W. Beeman, Judge.

Eli Hoch was convicted of obstructing a public highway, and fined $25, and he appeals. Affirmed.

Borders & Borders, for appellant. W. A. Ketcham and Merrill Moores, for the State.

COMSTOCK, J. This is a criminal prosecution for the obstruction of a public high

way. Upon trial, appellant was found guilty, and fined $25. The only error assigned in this appeal is the action of the lower court in overruling his motion for a new trial. Three reasons are specified in said motion: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) the fine is excessive. The only questions discussed in appellant's brief depend upon the evidence.

The attorney general, for the state, contends that there is no evidence before this court, and therefore the questions raised cannot be considered. An examination of the record discloses that on the 6th day of October, 1897, appellant's motion for a new trial was overruled, exceptions taken, and 90 days' time given in which to file a bill of exceptions, and that on the same day judgment was rendered on the verdict. The longhand manuscript of the stenographer's notes of the evidence was filed in the office of the clerk on the 9th day of December, 1897, and was certified by the judge as the general bill of exceptions, on the 11th day of December, 1897, and ordered to be made a part of the record. Burns' Rev. St. 1894, § 1916 (Horner's Rev. St. 1897, § 1847), reads as follows: "All bills of exceptions in a criminal prosecution must be made out and presented to the judge at the time of the trial or within such time thereafter as the judge may allow, not exceeding 60 days from the time judgment is rendered; and they must be signed by the judge and filed by the clerk." It has been held by the supreme and this court that, under this section of the statute, a bill of exceptions not filed within 60 days after the rendition of judgment is not in the record. Houston v. State, 15 Ind. App. 424, 44 N. E. 317; Marshall v. State, 123 Ind. 128, 23 N. E. 1141; State v. Hunt, 137 Ind. 537, 37 N. E. 409; Bruce v. State, 141 Ind. 464, 40 N. E. 1069.

As, under the statute, the jury were authorized to assess as a punishment a fine not exceeding $500, to which they might add imprisonment in the county jail for any period not more than three months nor less than ten days, we cannot say that the punishment was excessive. Burns' Rev. St. 1894, § 2043 (Horner's Rev. St. 1897, § 1964). The bill of exceptions was filed too late. Judgment affirmed.

JOHN CHURCH CO. v. SPURRIER et al. (Appellate Court of Indiana. April 22, 1898.) APPEAL-LONGHAND MANUSCRIPT--FILING--AGREEMENT OF PARTIES-NOTES-NEGOTIABILITY.

1. The evidence is not in the record, where the longhand manuscript was not filed before the bill of exceptions and its incorporation therein.

2. Such an omission cannot be supplied by an agreement of the parties to waive the irregularity.

3. One purchasing a negotiable note of the payee, with knowledge that another is the owner thereof, must account to him therefor.

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