"to be prepared and placed on file in the office of the auditor complete and detailed specifications of" such undertaking. There fore, as we see this case, it is not vitally material to the real question here involved which of the above sections of the law shall be declared as controlling, as all require that the bids shall be upon plans and specifications filed with the county auditor. The purchasing of furniture, such as here contemplated, is a matter which concerns in a more or less degree every taxpayer of Huntington county. It is strictly a public undertaking, and such, taxpayers are entitled to have and to compel the board to comply strictly with the provisions of the law before placing the proposed burden upon them. One purpose of the statute in requiring "exact" or "complete and detailed specifications" is to furnish a basis for competitive bidding on the proposed undertaking. Without such basis bidders would be left to speculation and uncertainty in making bids, and the door of favoritism would be open to the board in awarding the contract. The evidence in the case at bar would warrant the finding that the plans and specifications submitted by the board, for lack of detail and specificness, are practically worthless as a basis for competitive bidding. And for this court to sanction the execution of a contract as against the findings the trial court may have made under the evidence disclosed by the record would amount practically to a nullification of the law for competitive bidding, and such ruling could not be supported by either reason or authority. Appellant contends that the contract must be let "to the lowest and best bidder," and that the lowest bidder is not necessarily the best bidder. True, but how is the board to determine the lowest bid without some standard (in this case, specifications) by which to measure such respective bids? In the case at bar the "plans" and "instructions to bidders" were the only plans and specifications filed with the auditor prior to the time of the bidding, and by such instructions bidders were required to submit with their bids detailed specifications of the design, material to be used, construction and ornamentation of the furniture, from information only to be obtained from the plans. The statute requires specifications as well as plans, and bids upon plans furnished by the board, and specifications furnished by the bidder, are not made in compliance with the law in that regard, and the letting of a contract under such facts may be enjoined at the suit of a taxpayer.

In support of the doctrine here announced and the conclusion reached, see Mazet v. City of Pittsburg, 137 Pa. 548, 563, 20 Atl. 693; Ertle v. Leary, 114 Cal. 238, 46 Pac. 1; Fones Hdw. Co. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353; Packard v. Hayes, 94 Md. 233, 51 Atl. 32; Jenney v. City of Des Moines, 103 Iowa, 347, 72 N. W. 550; Gilbert v. United States, 1 Ct. Cl. 28, 34;

High on Injunctions, § 1251; Wrought Iron Bridge Co. v. Board, 19 Ind. App. 672, 48 N. E. 1050.

Judgment affirmed.

(41 Ind. App. 46)

BUSH v. BUSH. (No. 6,136.)

(Appellate Court of Indiana, Division No. 1. Jan. 14, 1908.)

EXECUTORS AND ADMINISTRATORS
ANCE-RIGHTS OF FAMILY.

-ALLOW

Burns' Ann. St. 1901, § 2653, providing that a surviving wife and minor children shall be allowed to occupy the dwelling house of the family, and the fields adjacent thereto, if any, not exceeding 40 acres, free of rent, for one year from decedent's death, does not give the family of a decedent crops that had been harvested, though not removed from the land, prior to his death. [Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 657.]

Appeal from Circuit Court, Whitley County; Jos. W. Adair, Judge.

Catherine Bush excepted to the final report of Albert Bush, administrator of Joseph Bush's estate, and, the exceptions being sustained and he ordered to pay certain proceeds to her, he appeals. Partly reversed and partly affirmed.

Marshall, McNagny & Clugston, for appellant. A. A. Adams, for appellee.

HADLEY, P. J. Appellant's decedent, Joseph Bush, died on the 20th day of July, 1904. Prior to that date his employés had cut and shocked a number of acres of wheat on 40 acres adjacent to the family dwelling. The administrator took charge of this wheat, and in due season sold the same for $227.80, which he made a part of the general funds of the estate. The appellee, the widow of Joseph Bush, excepted to the final report of the administrator, claiming the proceeds of this wheat by virtue of her quarantine rights. The court sustained her exception, and ordered the administrator to pay over to appellee the sum realized from the sale of the property. From this decision of the court the administrator appeals.

The foregoing facts are undisputed, and present the only question in this case. Section 2653, Burns' Ann. St. 1901, provides: "A surviving wife and minor children shall, in all cases, be allowed to remain in the ordinary dwelling house of the family, and to occupy the same and the messuage thereunto appertaining, and fields adjacent, if any, not exceeding forty acres, free of rent, for one year from the death of her husband." This has been construed to mean that the widow and children not only may have the land free of rent, but are entitled to all crops ripening and maturing thereon within the year that they have the right to occupy the same. Henry's Probate Law, § 900; Jones v. Jones, 81 Ind. 292; Swain v. Bartlow, 62 Ind. 546; Tucker v. Murphy, 71 Ind. 576; Hoover v. Agnew, 91 Ind. 370; Willetts v. Schuyler, 3 Ind. App. 118, 29 N.

E. 273. And while we recognize the benefIcent purpose of the statute, and the liberality with which it should be construed, yet we cannot so extend the statute as to hold that it gives to the family of deceased crops that had ripened and matured, and had been harvested, though not removed from the land, prior to death of decedent. If wheat cut and shocked should go to the widow under this section, we can see no reason why wheat cut and stacked should not; and if wheat cut and stacked should be so considered, then hay in the barn or corn in the crib would be in the same category.

In the case before us the widow could have obtained a crop of wheat by sowing it in the fall and harvesting it before her year had expired. The wheat having ripened, and having been harvested before the death of decedent, it belonged to his estate, and not to his widow; and the court erred in ordering the administrator to pay the proceeds over to the widow.

Judgment reversed as to the item concerning the wheat, and affirmed as to the other items mentioned in the judgment, including the item as to costs. Costs in this court to

be taxed to appellee.

2. SAME-TRANSCRIPT.

Under Burns' Ann. St. 1901, § 661, providing that on request of appellant, etc., the clerk shall make a transcript of the record, or so much thereof as appellant in writing directs, where there is no præcipe directing the clerk to certify a portion of the record, it is his duty to make a complete transcript.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2627, 2628, 2665.] 3. NEGLIGENCE ACTIONS CONTRIBUTORY NEGLIGENCE AS A DEFENSE PROXIMATE CAUSE.

To be an effective defense, contributory negligence of the injured party must proximately contribute to his injury, the law distinguishing between the proximate and remote cause of an injury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 112-114.]

4. CARRIERS-STREET RAILWAYS - INJURY TO CONTRIBUTORY NEGLIGENCE

--

PASSENGER INSTRUCTIONS.

In an action against a street railway for injuries to plaintiff through the negligent starting of a car which plaintiff was attempting to board, an instruction under which any act of plaintiff, whether negligent or not, would defeat his recovery, was erroneous.

5. TRIAL INSTRUCTIONS-ERROR CURED BY OTHER INSTRUCTIONS.

In an action against a street railway for injuries to plaintiff through the negligent start

ing of a car which plaintiff was attempting to board, the error in an instruction, under which any act of plaintiff, whether negligent or not, would defeat his recovery, was not cured by a subsequent instruction that, if the evidence appeared to the jury to be evenly balanced on the question whether the injury was proximately caused by plaintiff's fault or that of defendant, the verdict should be for defendant, since plaintiff had the burden of proving that he was in jured in the manner charged, and that the injury resulted proximately from the wrongful act or omission of defendant, this latter instruction still leaving the burden of proof as to plaintiff's contributory negligence in doubt.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.]

6. SAME-CONSTRUCTION.

Instructions are to be considered together, and if, when so considered, they are not misleading, a judgment should not be reversed for error in one or more of them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.]

7. APPEAL-RECORD-QUESTIONS PRESENTEDINSTRUCTIONS-ABSENCE OF EVIDENCE.

Where instructions are wrong under any 'supposable state of evidence that could have been adduced, a judgment will be reversed, even in the absence of the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2933-2935.]

Appeal from Circuit Court, Howard County; J. F. Elliott, Judge.

Action by Sylvester Abney against the Indiana Union Traction Company. Judgment for defendant, and plaintiff appeals. Reversed.

Overson & Manning and B. C. Moore, for appellant. J. A. Van Osdol and Blacklidge, Shirley, & Wolf, for appellee.

COMSTOCK, J. Appellant brought this action against appellee to recover damages for personal injury alleged to have been sustained in attempting to board one of appellee's interurban cars in the city of Kokomo, and alleging that the appellee was negligent in starting said car while appellant was in the act of boarding it. Appellant answered by general denial. Upon trial by jury a verdict for the appellee was returned, and judgment rendered thereon in its favor for costs.

Appellant's motion for a new trial was overruled. The only question attempted to be presented by appellant arises upon the correctness of certain instructions given and others refused. No part of the evidence is in the record. In behalf of appellee it is argued that no question is presented because the evidence is not in the record. The court certifies that all said instructions requested by the plaintiff, and all said instructions requested by the defendant, are applicable to the evidence given upon the trial of said cause, and tended to sustain the theory of the respective parties to said suit. It is claimed by appellant that the record is properly made up under Burns' Ann. St. 1901, § 662, last clause; Elliott's Appellate Procedure, § 193; Shirk v. Mitchell, 137 Ind. 185, 36 N. E. 850; Lynch v. Bates, 139 Ind. 206, 38 N. E. 806. Said clause of section 662, supra, provides that when in any case, an appeal is prosecuted

upon the question of the correctness of the instructions given or refused, or the modification thereof, it shall not be necessary to set out in the record all the evidence given in the cause, but it shall be sufficient in the bill of exceptions to set out the instructions or modifications excepted to, with a recital of the fact that the same were applicable to the evidence in the cause. The Supreme Court has decided that it makes no change concerning a necessity to have the evidence in the record, by the proviso of såid section, on exceptions to instructions given. This upon the ground that an appellate court will presume, unless the contrary appears that there was evidence to which the instructions given were applicable, and that, when the evidence is not in the record, a judgment will not be reversed for an instruction given which would be proper under any state of facts provable under the issues. Adams v. Vanderbeck, 148 Ind. 92, 45 N. E. 645, 47 N. E. 24, 62 Am. St. Rep. 497; Drinkout v. Eagle Machine Works, 90 Ind. 423; Rozell v. City of Anderson, 91 Ind. 591; Shugart v. Miles, 125 Ind. 445, 25 N. E. 551; Kinney v. Dodge, 101 Ind. 573; Thornton Annotated Civil Code (5) p. 457. In a later act the Legislature has relieved parties litigant from the burden of bringing up the evidence. Acts 1903, p. 338, c. 193. Section 4 of said act provides that it shall not be necessary for the bill of exceptions to contain all of the evidence given in the cause or proceeding, unless the decision of the court or the verdict of the jury shall be called into question, as being contrary to law or not sustained by sufficient evidence. Section 5, that in all other civil actions the bill of exceptions shall be sufficient, if it contains a clear statement of the ruling or matter called in question, together with a succinct recital of the substance of such part of the evidence and proceedings as shall be necessary to advise the Supreme Court or Appellate Court as to the pertinency or materiality of the matters sought to be reviewed on appeal. Section 6, that unless the bill of exceptions shall contain matter showing that the order, ruling, action, decision, or matter called in question was harmless to the party appealing, or that the error, if any, was cured or corrected by the trial court, the bill of exceptions prepared as herein provided shall be sufficient to bring the matter thereby presented before the court for review in as ample form as though such bill of exceptions contained all of the evidence and all the proceedings upon the trial.

This

act is remedial. It intends to simplify procedure; to lighten the burdens of litigants without injustice to any one. And what was said of section 662, supra, may, with equal force, be said of the act of 1903. "The object of the statute is clear, for it cannot be doubted that it was intended to enable parties to present questions on instructions without cumbering the record with a mass of evidence." Elliott's Appellate Procedure, § 192.

The appellant, therefore, who shows by a proper bill of exceptions that substantial error was committed against him, is entitled to reversal, unless it is also made to appear that such error was harmless or was cured or corrected by the trial court. It is thus within the power of the parties to present in an inexpensive form the exact question of the law upon which the judgment of the court of appeal is desired. The settling of the bill of exceptions rests with the trial judge, who will not be actuated by any desire except to correct it and fairly state the facts involved. What effect the evidence, or any particular part of the evidence, may have, and what is necessary to render error shown harmless, must be determined in view of the particular facts of each case. Cincinnati, etc., R. Co. v. Stahle, 37 Ind. App. 539, 544, 76 N. E. 551, 77 N. E. 363; Indiana Clay Co. v. Baltimore, etc., Co., 31 Ind. App. 258, 67 N. E. 704; Harrah v. State, 38 Ind. App. 506, 76 N. E. 443, 77 N. E. 747. The absence of a præcipe, authorizing the clerk to certify anything less than a complete transcript of the entire record, is pointed out. Where there is no præcipe directing the clerk to certify a portion of the record, it is his duty to make a complete transcript. Section 661, Burns' Ann. St. 1901; Featherngill v. State ex rel., 33 Ind. App. 684; Rutherford v. Prudential Ins. Co., 32 Ind. App. 423, 70 N. E. 177.

Appellant excepted to and complains of a number of the instructions given at the request of the defendant, but especially of instructions 2, 6, 7, and 12. They are as follows: "(2) If you find from the evidence in this case that the plaintiff was guilty of contributory negligence that resulted in his injury, then the plaintiff cannot, in such case, recover." In the sixth occurs this language: "And if such plaintiff was injured as alleged in the complaint, but you find be was guilty of contributory negligence in attempting to board the defendant's car while the same was in motion, and was injured thereby, then the plaintiff cannot recover. Or if the plaintiff was guilty of any contributory negligence, and that fact is proven by the evidence of the plaintiff or his witnesses, that is just as effective as if proven by the defendant, and will defeat a recovery." The seventh instruction reads: "If you find from the evidence in this case that the plaintiff was negligent in attempting to board the car, and that the defendant was negligent in starting the car, in other words, if the plaintiff and defendant were both negligent, then in such case the plaintiff cannot recover in this case, and your verdict should be for the defendant." The twelfth: "The defendant in this case is not an insurer of the safety of its passengers, either while riding, alighting from, or attempting to get on board, the defendant's cars, and if passengers are guilty of any act that contributes to their injury, that will defeat a recovery for such injury." The law makes a distinc

tion between the proximate and remote cause of an injury. Each of these instructions ignored the rule that contributory negligence of the injured party must proximately contribute to his injury to be an effective defense; but under said twelfth instruction any act of the plaintiff which contributed to his injury, whether negligent or not, would defeat his recovery, and for error in giving said instruction the judgment must be reversed. Said instruction was erroneous under any state of facts that could have been proven under the issues, because it laid down an improper basis upon which to found a verdict. It is the recognized rule, however, that all instructions given are to be considered together, and if, when so considered, they are not misleading, a judgment should not be reversed on account of error in one or more of them. Upon this rule appellee claims that the error, if any, was cured by instruction No. 18 given. It is as follows: "If the evidence appears to you to be evenly balanced upon the question as to whether the injury suffered by the plaintiff was proximately caused by his own fault or that of the defendant, then your verdict should be for the defendant, since the plaintiff has the burden of proving that he was injured in the manner charged in the complaint, and that such injury resulted proximately from the wrongful or careless act or omission of the defendant, described in the complaint." This instruction does not correct the fault in the instructions named, but it leaves the burden of proof upon the question of the contributory negligence of the plaintiff in doubt. It has often been said that an erroneous instruction is presumed to be prejudicial, and the error is only cured by its withdrawal. This was not done in the case at bar, nor were the instructions attacked modified by others subsequently given, either in direct terms or by reference. The instructions given being wrong under any supposable state of evidence that could have been adduced, the judgment must be reversed, in the absence of the evidence, even if the acts of 1903, supra, did not apply.

Other questions discussed may not arise upon a second trial of the cause, and are therefore not considered.

Judgment reversed, cause remanded, with instructions to sustain appellant's motion for a new trial.

ROBY, C. J. I concur fully in the opinion so far as it relates to the act of March 12, 1903 (Laws 1903, p. 338, c. 193), "Concerning Proceedings in Civil Procedure." The conditions which led to the passage of this act are matters of common knowledge. The State Bar Association at its 1902 meeting declared that "our statutes relating to appeals to the Supreme and Appellate Courts need many amendments for the purpose of simplifying the practice and reaching the merits of a cause on appeal, which object under the

present practice is often frustrated by useless technicalities," and a committee of five was appointed for the purpose of preparing and submitting bills upon the subject to the next General Assembly. Proc. Ind. Bar Ass'n 1902, p. 71. That committee prepared and presented to the Sixty-Third General Assembly a bill for the act of March 12, 1903. It thus appears that legislative aid was invoked by the bar of the state for the purpose of rescuing the courts from the system of procedure which they had created and from which they were either unable or unwilling to extricate themselves. It does not need to be said that the act "is in furtherance of justice. It is remedial. It tends to simplify procedure. It lightens the burden of liti gants without injustice to any one, and, when properly followed, questions may be presented to this court unclouded by a mass of verbiage and unobscured by voluminous matters of immaterial evidence." Shugart et al. v. Miles et al., 125 Ind. 445, 449, 25 N. E. 551, 553. The act is a remedial one, and must be liberally construed to effectuate the plain legislative intent. Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76; Jones v. Foley, 121 Ind. 180, 22 N. E. 987; Shugart v. Miles, supra. The statute requires a succinct recital of the substance of such part of the evidence and proceedings as may be necessary to advise the court of appeal of the pertinency or materiality of the matters sought to be reviewed. "It is not for the court in framing instructions to determine the probative force of evidence. If the evidence is material, relevant, and competent, it is for the jury, and instructions bearing upon the evidence without respect to its weight or cred. ibility cannot be deemed irrelevant. Union Mutual, etc., Co. v. Buchanan, 100 Ind. 63, 73. If there was evidence to which the instructions requested were relevant, they should have been given, and the refusal to give them would be error, unless, of course, the record shows that the same ground was covered by instructions given. Such error might or might not be reversible, but the first matter to be determined is whether evidence was introduced making the requested change applicable to the case on trial. That fact is recited in the bill of exceptions. The form of recital might be improved upon, but it is sufficient to convey the necessary information. Section 650 in terms requires a statement that the instruction was "applicable to the evidence in the cause." Such fact is a competent one to be stated by the trial judge. Kinney v. Dodge, supra; Geiger v. Huenneke, 16 Ind. App. 326, 44 N. E. 1117; Adams v. Vanderbeck, 148 Ind. 92, 45 N. E. 645, 47 N. E. 24, 62 Am. St. Rep. 497; Jennings v. Bond, 14 Ind. App. 282, 292, 42 N. E. 957. The same rules apply to an instruction given when an exception is shown. The effect of section 6 is to make such exception available without a complete transcript of the evidence. In setting out bills of exception

involving questions upon the giving of instructions, where the record is made up in accordance with this act, the trial judge should include such matter, if there be any, as may render an erroneous ruling harmless. All instructions given are set out in the bill. Since they are to be considered as a whole, and not in fragments, this is essential. These considerations lead to the examination of the instructions given and refused, action in regard to which is stated as ground for a new trial. I also concur in the reversal of the judgment, for the reason that the twelfth instruction is incurably bad, and I also concur in the statement of the main' opinion relative to instruction No. 18.

CUSHMAN v. CLOVERLAND COAL & MINING CO. (No. 6,150.) *

(Appellate Court of Indiana. Jan. 17, 1908.) CORPORATIONS-ACTIONS AGAINST CORPORATION- CONTRACTS-PLEADING-SUFFICIENCY -ACT OF DEFENDANT-AUTHORITY OF OFFICERS.

A complaint against a mining company, which alleges that C., an employé, was injured while working for defendant; that his wounds were so serious as to create an emergency requiring the immediate attention of a physician and surgeon to save his life; that plaintiff was called and employed to treat C. by defendant, by and through its mine superintendent, who immediately reported to defendant his act; and that defendant by its president and general manager ratified and affirined it, etc., and notified plaintiff to purchase necessary articles for the future treatment of C., and that defendant well knew the plaintiff was continuing to attend and treat C., but did nothing toward notifying plaintiff that it would not recompense him, but notified him that it would recompense him-states a cause of action, since an averment against "the defendant" is ordinarily sufficient, and the defendant could ratify the act of its superintendent through its president and general manager, if he had the authority, and such authority would be presumed in view of Acts 1905, p. 73, c. 50, § 13, requiring operators of mines to make certain provisions for accidents, though it contains no direct reference to medical attendance. Comstock, J., dissenting.

Appeal from Circuit Court, Clay County; P. O. Colliver, Judge.

Action by Daniel W. Cushman against the Cloverland Coal & Mining Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded, with instructions.

A. C. Miller, for appellant. A. W. Knight, for appellee.

ROBY, C. J. A demurrer for want of facts was sustained to the single paragraph of complaint, and the plaintiff appeals.

The action is by a physician against a corporation operating a coal mine, and the complaint contains usual averments preliminary to those upon which its sufficiency depends, which need not be stated. The disputed point is whether the complaint shows a liability on the part of the defendant. Its averments in that regard are: "That on or about the

12th day of March, 1904, one Antone Caglouchas, during his employment by said defendant, and while at work for said defendant, was personally injured; his wounds being of so serious a nature as to create an emergency for the immediate attention of a physician and surgeon in order to save said employé's life, by reason whereof said plaintiff was called and employed to attend and treat said employé by defendant, by and through one Edward Somers, its mine superintendent, which said superintendent immediately reported to said defendant his sald act. That said defendant by its president and general manager, with full knowledge of the employment of this plaintiff, ratified and confirmed the same by then and there stating to said superintendent that "that was all right, that was the thing to do." That thereafter said defendant, by its president and general manager, R. S. Tenant, notified this plaintiff to purchase what was necessary to aid in the further treatment and attention of said injured employé. That said defendant well knew that this plaintiff was continuing to attend and treat said injured employé, and that said defendant did nothing towards giving this plaintiff notice that it would not recompense him for his services, but notified this plaintiff that it would recompense him for the same."

It

The question is a question of pleading. Ordinarily an averment against "the defendant" is sufficient. Ohio & Miss. R. R. Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134; Hildebrand v. Toledo, etc., Co., 47 Ind. 399; City of Lafayette v. Allen, 81 Ind. 166. The averment is that the superintendent who called appellant for the defendant immediately reported his action, to the defendant, and that the defendant ratified and confirmed such employment. It is averred that it acted by its president and general manager. was competent for it to so act. Proof of the fact is, of course, another thing. The power of an agent to bind his principal in matters within the scope of the agency is elemental. In speaking of contracts made by the president of a corporation, it has been said: "When a contract is made in the name of a corporation, by the president, in the usual course of business, which the directors have the power to authorize him to make, or to ratify after it is made, the presumption is that the contract is binding on the corporation until it is shown that the same was not authorized or ratified." National State Bank of Terre Haute v. Vigo Co. Nat. Bank et al., 141 Ind. 352, at page 355, 40 N. E. 799, 800, 50 Am. St. Rep. 330.

Coal mining is recognized as a dangerous occupation and numerous provisions for the protection of persons engaged in it have been made by the General Assembly. In mines employing 10 or more men it is the duty of the operator to "keep always on hand, readily accessible and near the mouth of the mine, a properly constructed and comfortable