In employe's action for injuries, instruction stating that credibility of an employé should be determined by same tests that determine credibility of other witnesses was not reversible error, where there is nothing in the instruction indicating that any part of it has special application to appellant's witnesses. 11. APPEAL AND ERROR 1064(1)-REVIEW-tected, and under these circumstances the plainHARMLESS ERROR-INSTRUCTION. tiff was injured by his failure to so adjust said guard by moving it up against the board to be planed, he is guilty of contributory negligence, and inconvenience suffered by the plaintiff in reasonably adjusting it would not relieve him. Furthermore, if you find from the evidence that said guard could not be readjusted without leaving small portions of the knives exposed, but that the injury to the plaintiff, of which he complains, did not occur by reason of the failure of said guard to cover all portions of the knives, but that on the contrary such injury occurred by reason of the failure of the plaintiff to readjust said guard as a reasonably prudent man, under the circumstances, such failEVI- ure of the guard to cover all of the exposed portions of the knives would not be the proximate 12. APPEAL AND ERROR 928(4)-REVIEWPRESUMPTIONS. In absence of evidence, it will be presumed that refused instructions were not applicable thereto. 13. TRIAL 252(1) DENCE. INSTRUCTIONS Instructions not applicable to the evidence cause of plaintiff's injury, and the failure of were properly refused. said guard to so cover all of such exposed portions of the knives could not be the basis of any Appeal from Superior Court, Porter Coun- liability on the part of the defendant in this ty; Henry L. Crumpacker, Judge. Action by Charles E. Amen against the Standard Steel Car Company. Judgment for defendant, and plaintiff appeals. Affirmed. Following are instructions referred to: Instruction No. 3. If the jury find from the evidence that the guide or fence on such machine could be adjusted by the operator thereof and that it was part of the plaintiff's duty to adjust said guide or fence so as to leave no more than a certain portion of said knives exposed or such portion as was necessary to cut the material being used, in determining the plaintiff's conduct in this regard you have a right to take into consideration the way in which such machine was usually or ordinarily operated,' the device which was furnished, and any other fact and circumstance bearing upon that branch of the case, including the manner in which he operated the machine at the time in question. Instruction No. 6. If defendant being required to furnish a guard which was proper to protect the operator on said buzz planer and the jury finds a guard could have been used thereon which was practicable and would not have interfered with the use of the machine, plaintiff did not assume the risk of using an improper guard if one was furnished. action, unless it is a reasonable conclusion from the evidence that change of the location of said guard would base other portions of said knives, and thereby render them dangerous in the operation which plaintiff was then engaged in. On the other hand, if the guard furnished by the defendant was not a proper guard, and said guard could not have been adjusted by a reasonably prudent man exercising ordinary care and working under conditions such as plaintiff worked so as to have prevented the injury which plaintiff suffered, and the injury was caused, not by reason of plaintiff's failure to adjust said guard or move it from place to place upon the table of the planer, but by reason solely of defendant's failure to furnish a proper guard thereon, he would not be guilty of contributory negligence by reason of his failure to adjust the same by moving it back and forth upon the table. Instruction No. 7. Defendant was not required to furnish the best possible guard that could be obtained for the purpose of guarding the knives on its buzz plane; it was only required to furnish a guard that was reasonably adapted to cover the exposed portions of the knives and to protect the person using it from injury when said guard was used in an ordinarily prudent and careful manner. Instruction No. 8. The defendant was not bound to guard against dangers and injuries in the use of said buzz plane that could not reasonably have been anticipated. It was, however, bound to furnish a guard that was sufficient in its character and would prevent plaintiff from sustaining an injury that might reasonably be anticipated by the defendant when said guard was adjusted with ordinary care by the operator. Instruction No. 62. If the jury find from the evidence that if the guard furnished by the defendant required adjustment, or, in other words, if the guard furnished was of such a character and the practicable use of the machine would necessitate that from time to time it be moved by the operator up against the board to be planed, and the defendant through its agents had theretofore instructed the plaintiff to so adjust it, or if a reasonably prudent man operating Instruction No. 9. The defendant is not liable said machine would have so adjusted it and by reason of the fact that machine in question such adjustment would have prevented the in- was a dangerous one and that there was likelijury which plaintiff suffered, and plaintiff was hood of injury to employés working thereon, injured by reason of his failure to so adjust it providing you find that the guard used and by moving it up against the board, thereby leav- placed thereon by it was such as might reasoning a portion of the knives exposed after hav-ably be expected to prevent injury when used ing been instructed by the defendant to so read- in the usual and ordinary manner such a majust and cover such exposed portion of the knives, or if a reasonably prudent man would have so adjusted it and thereby have been pro chine was intended to be used, and the plaintiff himself must have been injured by reason of the fact that such machine was not properly and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sufficiently guarded within the rules I have given you. complains that instructions 3, 62, 7, 8, 9, 10, and 16, given by the court, are erroneous, and that the court erred in refusing to give instructions 1, 2, and 3 tendered by appellant. Instruction No. 10. If the plaintiff in this action, with a full knowledge of the conditions and dangers incident to the operation of the The complaint is in substance as follows: machine upon which he was working at the time he was injured, voluntarily and without objec- The appellee was, at the time of the accident, tion adopted a dangerous method of doing the a corporation engaged in the manufacture work because it was more convenient when he of railroad cars in the city of Hammond, might easily have adopted a method of doing the Lake county, Ind. In its work it used a work that would have been safe and thereby machine known as a buzz planer, which conhave prevented the injury of which he com- sisted of a table, in the top or flat surface plains in this action, his failure to so adopt the of which were rapidly revolving steel knives, said safe method of doing the work would con- located in an opening extending across said stitute contributory negligence on his part. Instruction No. 16. The jury are the judges table and of a width of about 21⁄2 inches. of the facts, the evidence, and the credibility of On July 18, 1910, the appellant was employed witnesses; they take the law from the court. In to operate said buzz planer, and his duties weighing the evidence the jury may take into were to use his hands to push the boards consideration the interest of any witness in across the table, and over and in contact the event of this suit, and weigh his evidence with the said revolving knives which planed accordingly. They may take into considera- the boards. Appellee, at said time negligenttion the evidence of all the witnesses, and ly and carelessly equipped, and caused apshould weigh their evidence carefully and impartially, their demeanor on the stand, their pellant to use, said buzz planer without promanner of testifying, their apparent candor viding a sufficient guard to prevent appeland fairness, their knowledge of the facts about lant's person from coming in contact with the which they testify, their ability to have seen revolving knives; appellee negligently mainand known and heard the facts about which they tained and operated said buzz planer without testify, and any other circumstance appearing a sufficient guard thereon, the guard covering in evidence which will assist in determining the less than 10 inches of the exposed knives and truth. If the jury believe any witness has will-leaving 12 inches open and unguarded, and fully and knowingly sworn falsely to any material fact, they have the right to disregard the entire evidence of such witness, except when corroborated by other credible evidence or by facts and circumstances appearing in evidence. The jury has no right to disregard the evidence of any unimpeached witness because he is an employé of either party, but should weigh his evidence calmly and dispassionately with the sole effort of arriving at the truth; view the evidence of each witness in the light of all the evidence, determine the credibility of an employé by the same tests that determine the credibility of other witnesses. Both parties to this action are entitled to a fair and impartial trial. Bomberger, Curtis, Starr & Peters, of Hammond, for appellant. said knives so unguarded constituted a dangerous machine. In the operation of the planer the operator, especially his hands, was immediately above and over, and liable to come in contact with, the exposed parts of the knives, and be injured thereby. It was practicable and feasible to place a sufficient guard to cover the knives entirely, except the part immediately under the board being planed. On said day the knives were so exposed, and were liable to injure the appellant. At said time appellant was in the discharge of his duties and in the course of his employment, and was holding a board with the edge on the knives. His hands were necessarily near the knives, that he might hold and push the board and plane the same. While so engaged, said board suddenly, and without any fault or negligence on appellant's part, tipped, turned, and thereby threw appellant's right hand into the knives, which were exposed and unguarded, and thereby appellant's hand was injured. He has suffered great pain and anguish; his hand has been permanently disfigured and his earning power impaired and reduced; The complaint was in one paragraph, to he is unable to follow his occupation as a which the appellee filed an answer in gen- woodworker, and he has no other trade or eral denial. There was a trial and a verdict occupation. There follows an allegation as for the appellee. Appellant filed a motion to his earning capacity, a statement of the for a new trial, which was overruled, and length of time that he remained in the hosjudgment was rendered on the verdict in fa-pital, and a prayer for damages in the sum vor of the appellee. From the ruling and of $10,000. and judgment this appeal is prosecuted. Peter Crumpacker, of Hammond, Grant Crumpacker, of Valparaiso, and Fred Crumpacker, of Hammond, for appellee. NICHOLS, J. Action by the appellant against the appellee for damages sustained in the loss of a part of his hand, occurring while he was working a buzz planer in the appellee's factory. The only error assigned is the error of the court in overruling appellant's motion for a new trial. Under this motion the appellant [1] The evidence is not in the record, and in such a case the judgment will not be reversed because of an alleged erroneous instruction, where such an instruction would be proper under any state of facts provable [ty of contributory negligence by reason of his under the issues. Olds v. Lochner, 57 Ind. failure to adjust the same by moving it back App. 269, 106 N. E. 899; Thompson v. Miller, and forth upon the table." 182 Ind. 545, 107 N. E. 74. [2] Appellant complains of instruction No. 3 given by the court. The force of this instruction depends upon the interpretation given to the evidence in the case by the jury. It tells the jury that, if it should find from the evidence that the guard or fence on such machine could be adjusted by the operator thereof, and that it was part of the plaintiff's duty to adjust the same so as to leave no more than a certain portion of said knives exposed, or such portion as was necessary to cut the material being used, in determining the plaintiff's conduct in this regard the jury had a right to take into consideration the way in which the machine was usually or ordinarily operated, the device furnished, and any other facts or circumstances bearing upon that branch of the case, including the manner in which the machine was being operated at the time. We see nothing wrong with this instruction. The machine, being a planer, was evidently used upon lumber of various widths and thicknesses, and as the width or thickness of the material varied, the guard must have been adjusted to such changes. In determining the conduct of the appellant in the performance of this duty, or any other duty on the part of the appellant, with reference to the operation of the machine, it was proper to consider all surrounding circumstances and conditions. If in any particular it was harmful to the appellant, it must have been because of the evidence which is not in the record. On the face of the instruction it was entirely proper under the rule enunciated in Pinnell v. Cutsinger, 44 Ind. App. 419, 89 N. E. 493. As far as can be determined without the evidence, the instruction seems to be a clear exposition of the law. Instruction No. 6 tells the jury as to the duty of the appellee to furnish a proper guard, and to the effect that the appellant did not assume the risk of using an improper guard. [6] Instruction No. 7 is not erroneous when applied to facts that might have been proven within the issues in this case. If the guard provided was such as could have been safely used, with a proper adjustment, to the varying widths of the lumber planed, then it was reasonably adapted to cover the exposed portions of the knives, and such use of it, adjusting it as conditions required, would have protected appellant, and would only have been in "an ordinary prudent and careful manner." Such evidence would have been admissible as within the issues. Grace v. Globe Stove & Range Co., 40 Ind. App. 326, 82 N. E. 99; Vigo Cooperage Co. v. Kennedy, 42 Ind. App. 440, 443, 85 N. E. 986. [7] Instruction No. 8 tells the jury that the appellee was not bound to guard against dangers and injuries that could not have been reasonably anticipated, but was only bound to furnish a guard sufficient in its character to prevent plaintiff from sustaining any injury that might have been reasonably anticipated, when the guard was adjusted with reasonable care by the operator. This is a correct statement of the law. Appellant complains of instruction No. 9 because it states, in effect, that the appellee was not liable if the guard was sufficient to prevent injury when the machine was used in the usual and ordinary manner. This [3-5] Instruction No. 61⁄2 is not open to the statement of the instruction is within the objection made to it by the appellant. It cor- issues in this case. It appears from the comrectly instructs the jury with reference to plaint that the machine in question was bethe duty of the appellant to adjust the guarding used in the usual and ordinary manner to the varying widths of the lumber being at the time of the accident, but that a board planed, and does not require of the plaintiff which was being planed tipped and turned, that he shall adjust any guard, proper or im- causing the injury. It may have appeared proper. After fully instructing the jury as by the evidence that this was because a propto the duty of the plaintiff in making such er guard furnished by the appellee was not adjustment of the guard, the instruction properly adjusted, as it might have been, / clearly distinguishes the character of the by the appellant. The appellant in his disguard, about which such instruction was cussion of this instruction says that it digiven, from an improper guard by the fol-rected the jury to find for the defendant if lowing language: "On the other hand, if the guard furnished by the defendant was not a proper guard, and said guard could not have been adjusted by a reasonably prudent man exercising ordinary care and working under such conditions such as plaintiff worked, so as to have prevented the injury which plaintiff suffered, and the injury was caused, not by reason of plaintiff's failure to adjust said guard or move it from place to place upon the table of the planer, but by reason solely of defendant's failure to furnish a proper guard thereon, he would not be guil the guard was sufficient to guard against injury when the machine was used in the ordinary and usual manner, whereas the accident was proved to be one as alleged in the complaint of an unusual character. We are unable to say what was proved in this case, because of the absence of evidence. We can only measure the instruction by what might have been proven under the issues in the case, and by this measurement the instruction is not wanting. [8, 9] Instruction No. 10 is complained of By tendering this instruction, the appellant invited the error, if any, of which he complains in instruction No. 10; and, such being the case, he cannot be heard to complain. Terre Haute, etc., Traction Co. v. Frischman, 57 Ind. App. 452, 107 N. E. 296; Indiana Union Traction Co. v. Jacobs, 167 Ind. 85, 78 N. E. 325; Cleveland, etc., R. R. Co. v. Simpson, 182 Ind. 693, 104 N. E. 301, 108 N. E. 9. [11] Instruction No. 16 goes to the question of the credibility of the witnesses, and which, after instructing the jury fully as to the things that may be taken into consideration in determining the credibility, states that the jury should "determine the credibility of an employé by the same tests that determine the credibility of other witnesses." Clearly, this statement in the instruction refers to the standards of credibility that preceded in the instruction and which are of general application. There is nothing in the instruction that indicates that any part of it has special application to any of appellant's witnesses who may have testified in the case, and without such application it is not reversible error. Hess v. Lowrey, 122 Ind. 225, 234, 23 N. E. 156, 7 L. R. A. 90, 17 Am. St. Rep. 355. by appellant as being erroneous because it] omitted the element of knowledge of danger on the part of the servant, and for the further reason that it omitted to advise the jury that the standard of conduct was that of a reasonably prudent person under the circumstances, the court saying that if appellant voluntarily and without objection adopted a dangerous method when he might easily have adopted one which was safe, his failure to adopt one which was safe was contributory negligence. The first objection is not well taken, as the element of knowledge clearly appears in the instruction. As to the second objection we can readily imagine a state of facts provable under the issues that would have made the instruction erroneous as given, because of the omission therefrom of the element of reasonable care; but it might have been proven within the issues in this case that the method adopted by appellant in performing his work exposed him to dangers so obvious, imminent, and glaring that no reasonable man exercising ordinary care for his own safety would have encountered them; to illustrate, it might have been proven under the issues by uncontradicted evidence that the machine was easily susceptible of adjustment, by the move of a hand, so as to have made it entirely safe, and that without such adjustment it was absolutely dangerous, and that, while so operating it while it was so susceptible as aforesaid, appellant was emphatically warned, by his superior, not to so operate it without the proper adjustment, but that he then and there disobeyed, and willfully continued to operate it without the proper adjustment, and was thereby injured. With such evidence in the record uncontradicted, showing absolutely no exercise of reasonable care, the instruction would have been entirely harmless. Jenney Elect. Mfg. Co. v. Flannery, 53 Ind. App. (Appellate Court of Indiana, Division No. 2.. 397, 98 N. E. 424; New York, Chicago & St. Louis R. Co. v. Hamlin, 170 Ind. 20, 83 N. E. 343, 15 Ann. Cas. 988; Grace v. Globe Stove & Range Co., 40 Ind. App. 326, 82 N. E. 99. Appellant cites as additional authorities Kokomo, etc., Co. v. Carson, 119 N. E. 224, Inland Steel Co. v. King, 184 Ind. 294, 110 N. E. 62, and Erie R. R. Co. v. Purucker, Adm'x, 244 U. S. 320, 37 Sup. Ct. 629, 61 L. Ed. 1166, but in each of these cases the evidence or answers to interrogatories appeared in the record, and the facts could be definitely ascertained. [10] The appellant himself tendered his instruction No. 5, a part of which is as follows: "If there are two ways, one safe and the other dangerous, one nown to the servant to be dangerous and the other known to him to be safe, both open to him for doing his work and equally convenient, he must choose the safe way." [12, 13] Appellant tendered three instructions which were refused by the court. In the absence of the evidence it will be presumed that such instructions were not applicable thereto; hence were properly refused. Mace v. Clark, 42 Ind. App. 506, 85 N. E. 1049. We find no available error. Judgment affirmed. (70 Ind. App. 684) WESTERN LIFE INDEMNITY CO. v. COUCH. (No. 9739.)* April 18, 1919.) 1. APPEAL AND ERROR 634 RECORDRULES-SUBSTANTIAL REQUIREMENT. A substantial compliance with the rule requiring appellant to have the record paged and indexed and to have marginal notes made is the appeal. all that is necessary to prevent dismissal of 2. INSURANCE 668(3)—ACTION ON POLICY -QUESTION OF LAW CONSTRUCTION OF CONTRACT. In action upon policy issued by reinsuring one sued on and the reinsurance contract were company, where the original policy and the set out in the pleadings, it is a question of law whether the incontestable clause of the original policy became part of the new policy CONTRACT-REINSURANCE. CONSTRUCTION OF Where a reinsurance contract gave policy holders the option of continuing to pay the same For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. REFUSED INSTRUCTIONS-UNCERTAINTY. premiums, and receiving the amount of insur-¡ 11. APPEAL AND ERROR 699(4)-RECORDance specified in an annexed table, or of making application, with satisfactory proof of insurability, and receiving a new policy, upon surrendering the old for cancellation, the incontestable clause of the old policy does not become part of the new policy issued to one who chose the second alternative. Where appellant contends that it tendered instructions numbered 1 to 19, and that the court erred in refusing to give certain of them, but the bill of exceptions shows that instructions numbered 1 to 20 were tendered, and fails to show which ones were refused, no question 4. INSURANCE 641(2)—ACTION ON POLICY-is presented on appeal. REPLY. 12. INSURANCE 396(6) Where the answer in an action on a policy alleged false warranties by insured that he was A letter by insurer, after it had information in sound health and that he had never been re- of breach of warranty, containing no intimation fused insurance, a reply alleging knowledge of intention not to insist on forfeiture, but reby the insurer that insured had previously ap-questing further proof, which the beneficiary plied for insurance, but not knowledge of his procured at some expense, does not estop insurdisease, or of the refusal of insurance, is in- er from relying on the breach of warranty to sufficient. forfeit the policy where beneficiary knew insurer would probably contest the validity of the policy. 5. INSURANCE 615-FORFEITURE OF POLICY -RETURN OF PREMIUM-REASONABLE TIME. Where insured died April 30th, and insurer learned of breach of warranty August 10th following, a tender of the premiums paid, by payment into court, with accrued costs, on November 30th, after suit was brought, was within a reasonable time. 6. INSURANCE 682-FORFEITURE OF POLICY-RETURN OF PREMIUMS-REINSURANCE. Where a policy holder in an insolvent company exercised his option under a contract of reinsurance to take out a new policy in the purchasing company, the latter company, in forfeiting the policy for breach of warranty, need repay only the premiums paid to it. 7. INSURANCE 266-FORFEITURE OF POLICY -BREACH OF WARRANTY-MEDICAL EXAMINATION. Where an application for new policy under a reinsurance contract referred to the medical examination for the original insurance and warranted the statements therein to be true, the reinsurer could forfeit the new policy for falsity of statement in the medical examination, though it was not made part of the original policy, and was not in itself a warranty. 8. INSURANCE 255, 300-FORFEITURE OF POLICY MISREPRESENTATION-HEALTH INSURED-REFUSAL OF PREVIOUS APPLICA TION. OF A false answer by an applicant for insurance that he had never been refused insurance, if only a misrepresentation, is material to the risk, and entitles the insurer to forfeit the policy. 9. INSURANCE 265-APPLICATION RANTY. WAR Answers to questions in application for insurance will not be construed as warranties, unless so intended by the parties but an expressed intention of the parties to consider them warranties makes them such. 10. APPEAL AND ERROR 757(4)-BRIEFINSTRUCTIONS NOT OBJECTED TO. While appellant must see that all instructions given are in the record, he need set out in his brief only those to which he objects. Appeal from Circuit Court, Grant County; H. J. Paulis, Judge. Action by Ida M. Couch against the Western Life Indemnity Company. Judgment for the plaintiff, and defendant appeals. Reversed, with instructions. Thomas J. Graydon, of Chicago, Ill., Condo & Browne, of Marion, and Blacklidge, Wolf & Barnes, of Kokomo, for appellant. Charles & Gemmill, of Marion, Blaine H. Ball, of Rushville, and Arthur H. Jones, of Indianapolis, for appellee. MCMAHAN, J. This is an action to recov er on a life insurance policy issued by the appellant on the life of Orlando H. Couch. The first paragraph of the complaint alleged that on the 1st day of October, 1913, the appellant issued to Orlando H. Couch its policy of insurance for $5,000, payable at death; that said Orlando H. Couch complied with all the requirements of the policy, and afterwards died; and that the appellee made all necessary proofs of death, but that appellant refused to pay the policy, and demanding judgment. The second paragraph of the complaint alleged that on September 28, 1911, the Monarch Life Indemnity Company of Evansville, Ind., issued and delivered to Orlando H. Couch and the appellee a joint policy of insurance in the amount of $5,000, payable to the survivor on death of either of said parties; that a receiver was thereafter appointed for the said Monarch Company, who sold the business of said company to the appellant, and that a written contract of said sale was entered into between the receiver and the appellant, which, among other things, provided that the holders of policies in the Monarch Company were given the right to continue the payment of the annual premiums which they had formerly paid to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests ard Indexes |