Jillson Company was then and there, and at all times mentioned herein, fully aware of such reliance, and the said Knight & Jillson Company at the time of the sale of said tubes and said defective tube impliedly warranted to the said Kingan & Co., Limited, that said boiler tubes and said defective tube was and were free from defects, and fit for the purpose intended for the same, namely, to serve as a part of the boiler system of said Kingan & Co., Limited, in heating and furnishing power for its said plant; that defendant Knight & Jillson Company sold said defective tube to said Kingan & Co., and delivered the same to the latter for the specific purpose of its use in such

boiler, and then and there well knew of such

intended purpose and use; that said defective tube was installed in said boiler by said Kingan & Co., and was used and operated therein as a part of said boiler for a period of time of one week, more or less, and at the end of such period said defective tube burst and exploded, and injured the said William E. King as aforesaid; that by reason of the sale to said Kingan & Co., Limited, by said defendant Knight & Jillson Company of said defective tube, and by reason of its explosion as aforesaid, plaintiff alleges that defendant Knight & Jillson Company breached said implied warranty, by which plaintiff avers that defendant Knight & Jillson Company impliedly warranted to said Kingan & Co. that said tube which exploded was sound, and fit for the purpose intended as herein before described, and by reason such breach plaintiff avers that said Kingan & Co. was rendered liable for said loss from liability, and plaintiff lost and was compelled to pay the said sum of $5,149.25.

of

To this complaint appellee demurred for . want of facts, with which demurrer it duly filed its memorandum of deficiencies.

In the case at bar, what caused the explosion? For aught that is alleged in this complaint, it may have been the negligence of the engineer, in allowing the water in the boiler to get too low, excessive steam pressure, failure of pump to work, etc.

It is not alleged that said "tube" exploded as a result of defective construction. The special damages claimed grow out of the said alleged explosion, and the complaint by its allegations not connecting said alleged defect and said explosion, by proper averments, was not good as against the desaid complaint are urged, but they need not murrer interposed. Other insufficiencies of

be noticed.

APPEAL AND ERROR 766 DISMISSAL
FAILURE TO PRESENT QUESTION.

Where appellant was given notice of filing of appellee's motion to dismiss the appeal, for defects in appellant's brief which exist in fact, but has taken no steps to correct or amend the brief, and has filed no brief in opposition, the appeal will be dismissed.

Appeal from Superior Court, Allen County; Carl Yaple, Judge.

Action by John E. Scott against the Ft. Wayne Mercantile Accident Association. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

The demurrer was sustained, and, appellant refusing to further plead, judgment was rendered against it, that it take nothing by its complaint, and that appellee recover its costs. From this judgment this appeal O. E. Fuelber, of Ft. Wayne, for appelis prosecuted, and the only question involv-lant. ed is the one as to the sufficiency of the complaint.

It will be noted that while the complaint in question alleges a defect in construction of said "tube," it does not seek to recover the usual damages therefor. The damage sought to be recovered is special damage only.

Conceding, without deciding the samefor such decision is not necessary to the decision in this case, and we therefore do not decide the question-that upon proper complaint the present action will lie, yet it is so clear that appellant did not, and under the circumstances alleged it could not, have any greater right in the premises than the purchaser of said "tube," Kingan & Co., had as to need no citation of authority. Appellant is seeking to be subrogated to the alleged rights of Kingan & Co., and to recover thereon against appellee. If Kingan & Co. could not maintain this action, appellant cannot.

Leonard, Rose & Zollars, of Ft. Wayne, and Shirts & Fertig, of Noblesville, for appellee.

MCMAHAN, J. The appellee commenced this action to recover upon a certificate of membership in appellant association insuring him against accidents. Appellant filed a plea in abatement, to which a demurrer was sustained. The issues being closed by the filing of an answer and reply, the cause was tried by a jury, and resulted in a verdict and judgment for appellee.

(7)

Appellant filed a motion for a new trial
for the reasons: (1) That the court erred
in sustaining the demurrer to the plea in
abatement; (2, 3, 4, 5, and 6) that the court
erred in giving certain instructions;
that the court erred in refusing to give a
certain instruction; (8) that the verdict of
the jury is not sustained by sufficient evi-
dence; (9) that the verdict of the jury is

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Motion to reinstate appeal denied 124 N. E. 710.

(123 N.E.)

In an action for specific performance of an agreement to exchange lands, evidence held insufficient to show that defendant delivered the acceptance of the proposal.

contrary to law; (10) that the verdict of 13. SPECIFIC PERFORMANCE 121(4)—ACCEPTthe jury is contrary to the law and the evi- ANCE-DELIVERY. dence; (11) that the amount of recovery is erroneous, being too large; and (12) that the court erred on admitting certain evidence. The errors assigned are the sustaining of the demurrer to the plea in abatement and the overruling of the motion for a new trial.

The appellee, in April of this year, filed his motion, supported by brief, asking that the appeal be dismissed. The reasons set out in the motion are: That appellant has failed to show that it reserved any exception to any ruling or action of the trial court; that

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

On petition for rehearing. Petition overruled, and former opinion affirmed.

For former opinion, see 123 N. E. 23.
Wm. A. Hughes, of Greenfield, and Jas. L.
Murray and U. C. Stover, both of Indian-
apolis, for appellant.

John F. Robbins and Weyl & Jewett, all of
Indianapolis, for appellee.

the complaint is not set out in the brief; that no showing is made as to when the judgment was rendered, or when the motion for a new trial was filed; that it does not appear that the motion for a new trial was NICHOLS, P. J. [1, 2] Counsel for appelever ruled on; that the instructions are not lee state in their brief on petition for rein the record; that the evidence is not in hearing that the court's statement in its opinthe record; and that there is no condensed ion that there was a delivery of the acceptstatement of the evidence in narrative formance by the appellee to the appellant is somein appellant's brief, as required by rule 22 | what remarkable, in view of the fact that of this court (55 N. E. v).

appellant himself testified on the trial of the cause to the delivery of the acceptance to him by the appellee. Counsel then quote from the record to the effect that the appellant stated that he got possession of this contract August 18, 1911, which was the next day after appellant had signed it in the office of appellee. There is no statement of this evidence in appellant's brief. The record in this case consists of over 1,000 pages, and

Although appellant was given notice in April of the filing of this motion to dismiss, it has taken no steps to correct or amend its brief, and has filed no brief in opposition to such motion. Appellant's brief is subject to each and all of the objections pointed out by appellee. No exception appears to have been taken to the action of the trial court in sustaining the demurrer to the plea in abatement, or to the overrul-under rule 22 of the Supreme and Appeling of the motion for a new trial; in fact, it does not appear that the court ever ruled on the motion. No exception appears to have been reserved to the giving or refusing to give any instructions, and an examination of the record shows that neither the instructions nor the bill of exceptions containing the evidence are in the record.

There being no question presented for our consideration, the appeal is dismissed.

(72 Ind. App. 189)

HARTER v. MORRIS. (No. 9730.) (Appellate Court of Indiana, Division No. 2. June 27, 1919.)

1. APPEAL AND ERROR 757(3) BRIEFSSTATEMENT-RECITALS.

Where the record consisted of over 1,000 pages, it was the duty of appellant, under Court Rule 22 (55 N. E. v), to give a condensed recital of the evidence in narrative form. 2. APPEAL AND ERROR 768 BRIEFS STATEMENT OF EVIDENCE.

Statement of evidence in appellant's brief not challenged by appellee is to be accepted as true.

late Courts (55 N. E. v), it was the duty of the appellant to give a condensed recital of the evidence in narrative form in his brief, so as to present the substance clearly and concisely, and this statement is taken to be correct unless challenged by the appellee.

[3] Appellee states in his brief that the contract, was delivered to appellant on the 18th day of August, and that he gave the same to Mr. Hughes, his attorney. The papers that were delivered to Mr. Hughes were delivered under the following written agreement:

"These papers left with Wm. A. Hughes, and not to be returned except upon mutual agreement of Richard R. Harter and J. Edward Morris. This 18th day of August, 1911.

"Richard R. Harter. "J. Edward Morris."

If this contract had been with the papers delivered to Mr. Hughes, such a delivery could not have been construed as a delivery to the appellant. It appears by appellant's brief, as well as by the record, that the appellant on cross-examination, upon having his recollection refreshed, corrected his testimony as to such delivery, and said that he had never had a contract in his possession after he left it with the appellee on the night of August 17, 1911, except to examine it;

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

(Appellate Court of Indiana, Division No. 2. The conductor said he would not stop the car

[1] Appellant contends that the evidence 2. CARRIERS 319(1)—INJURIES TO PASSEN- does not show that the assault and battery GER-EXCESSIVE DAMAGES.

A verdict of $500 for plaintiff physician against defendant traction company for assault by defendant's conductor, not resulting in serious personal injury, held not excessive; plaintiff being entitled to damages for humiliation and wounded feelings, and the evidence fully committed. showing other passengers were on the car at the time.

[2] Appellant next contends that the damages assessed are excessive. The jury assess

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

*Rehearing denied.

(123 N.E.)

CONCLUSIVENESS AS AGAINST INDEMNITOR
OF FORMER ADJUDICATION AGAINST INDEM-
NITEE.

Where city, primarily liable for injuries to

ed appellee's damages at $500. While the | 4. INDEMNITY 14-PERSONAL INJURIES— evidence does not show that appellee was seriously injured in his person, he was also entitled to damages for humiliation and wounded feelings. The evidence as set out in appellant's brief does not show how many passengers were on the car at the time of the assualt and battery, although it does disclose that there were others, some of whom testified as witnesses on the trial. The appellee was a doctor, residing and practicing his profession in the city of Peru, and the damages assessed are not such that we are justified in saying they are excessive.

pedestrian from defective sidewalk, notifies person causing defect of action against it, such party will be bound by the judgment against the city, but will not be estopped to show that he was under no obligation to keep sidewalk in repair, or that it was not defective through his fault.

5. INDEMNITY 13(3)—PERSONAL INJURYDEFECTIVE SIDEWALK LIABILITY OVER

to

WRONGFUL USE OF SIDEWALK.

Where sidewalk was used by saloon keeper roll beer kegs from wagon to elevator in walk, and after four years' wear, combined with travel of pedestrians, a depression was caused which resulted in injury to pedestrian for which city was compelled to respond in damages, held that use of sidewalk was not wrongful so as to render saloon keeper liable over to city.

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action by the City of Indianapolis against the Home Brewing Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions to sustain motion for judgment for defendant on answers to interrogatories.

J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, and Meiks & Hack, of Shelbyville, for appellant.

Wm. A. Pickens, Walter Myers, Russell J. Ryan, and Edward W. Hohlt, all of Indianapolis, Adams & Jones, of Shelbyville, and Paul G. Davis, of Indianapolis, for appellee.

NICHOLS, P. J. This was an action by the appellant, Home Brewing Company, com

HOME BREWING CO. v. CITY OF IN- the appellee, city of Indianapolis, against DIANAPOLIS. (No. 9957.)

(Appellate Court of Indiana, Division No. 2. menced in the Marion circuit court, and

June 25, 1919.)

finally tried on change of venue in the Shelby circuit court. It was to recover $2,000 with interest and costs, which the city of Indianapolis had paid upon a judgment for

that amount which one Mattie Crawford

had obtained against the city as damages for injuries received when she stepped into a depression in the sidewalk in front of lands in Indianapolis owned by the appellant.

The complaint in substance is as follows: The appellant was a corporation engaged in the manufacture and sale of various kinds of beer, and as a part of its operations owned land in the city of Indianapolis, described as 39 South Delaware street, which it occupied with a saloon. On September 5, 1913, Mattie Crawford was injured by means of a defect in the sidewalk immediately in front of said lands by stepping into such defective place, which was about two feet long, a foot and a half wide, and two or three inches deep, and was located about

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 123 N.E.-46

three inches west of an offset in the side- I street, which was two feet long, one foot and walk and an opening in the surface there- a half wide, and three inches deep at its of, which was for an elevator running from deepest point, which was in the middle. It the surface of the sidewalk to the basement sloped up from the deepest point to the of such premises, which was used, owned. edge. This hole started to wear in the sideand controlled by the appellant for the pur-walk about four years before September 5, pose of conveying kegs of beer delivered 1913, and gradually grew larger from wear by the appellant in front of the building on until said date. It was about six inches said lands, such beer being transferred from west of an elevator used for lowering beer delivery wagons by a chute, and carried of and other articles to the basement of said its own motion to the edge of the raised premises. The level of the elevator when place in the sidewalk, and from there plac- raised was about six inches above the sideed on such elevator; and all kegs of beer walk level. The premises were occupied by taken from the premises were raised from Christian Reis, and had been so occupied by the basement to the sidewalk at this point him for eight years prior thereto, for saloon and taken away by the appellant. Said de- purposes. Said Reis bought his beer of the fective place was about seven feet north- appellant, who delivered the same in kegs west of the entrance to said saloon. By by wagon, and unloaded it for said Reis at reason of the use which appellant made of the Delaware street curb. In unloading said sidewalk said hole was caused to exist, the kegs they were unloaded from the wagon with full knowledge of the appellant at all to a mat or cushion on the sidewalk near times of its existence, and appellant allowed the curb, and then rolled six or eight feet the same to remain open and dangerous to across the sidewalk to the elevator opening, persons using the sidewalk for ordinary trav- and then raised and placed on the elevator. el, without attempting to warn them of the The empty beer kegs were raised from the dangerous condition, and appellant contin- basement on the elevator, and were then lowued on and prior to said date to use such ered from the elevator to the sidewalk, and sidewalk in the manner aforesaid. Mattie rolled across the sidewalk and lifted into the Crawford was walking along such sidewalk, appellant's wagon. The deliveries of beer and stepped into such hole or defect, and made by appellant were not by means of a was seriously injured. She gave notice to slide or chute from the delivery wagon to a the appellee of her intention to hold the city point in front of the sidewalk to the eleresponsible for damages for such injuries, vator where the hole was. Soft soap in barand on December 19, 1913, filed her suit rels, pickles in barrels, sauerkraut in baragainst the appellee in the Marion circuit rels, whisky in barrels, bottled wines and court, which cause was assigned to the Mar- liquors, 'and ice in 100 and 200 pound pieces ion superior court, room 1, and there set for were delivered to said Reis at the Delaware trial, notice of which was given to the ap- street curb, and lowered to the sidewalk, pellant by the appellee to appear and de- rolled across the same, and placed on the fend such action, which appellant refused elevator. None of these deliveries were and neglected to do. Appellee defended such made by the appellant. The effect of all action, and on January 14, 1915, said Mattie these deliveries, removals, and uses was to Crawford recovered judgment against the ap-gradually wear the hole complained of in pellee, by reason of the negligence of the appeliant aforesaid, in the sum of $2,000, which appellee was compelled to pay, and did pay, on April 23, 1915, together with 6 per cent. interest and costs, all of which was without the fault or negligence of the appellee.

There was a demand for judgment in the instant case for the amount appellee was compelled to pay as aforesaid

The cause was first submitted to a jury for trial, which disagreed and was discharged, and thereafter on change of venue the cause was sent to the Shelby circuit court, where there was a trial by jury, which returned a verdict in favor of the appellee and against the appellant for $2,245.23. The Jury also answered interrogatories submitted to it, which, in narrative form, found the following facts:

On September 5, 1913, there was a hole in the east sidewalk of South Delaware street in the city of Indianapolis, Ind., in front of the premises known as 39 South Delaware

the sidewalk in front of the elevator. The point where the hole complained of was located is in the business portion of the city of Indianapolis, where a large number of people were walking every day on and over said sidewalk on said east side of Delaware street.

In loading and unloading said elevator it was necessary to use the sidewalk of said Delaware street at the spot where the hole complained of was worn. The appellee was sued February 14, 1914, having been notified of the accident in November, 1913. The appellee undertook to defend such suit, first notifying the appellant that it expected the appellant to pay any judgment that might be rendered against it. This notice was when the appellant participated in the preparation for the trial. The trial began January 8, 1915, and said Mattie Crawford was injured September 5, 1913. It was provided in the lease that the tenant was to make the repairs, such repairs being on the building