EVERITT v. EVERITT.

[29 Ind. App. 508, 64 N. E. 892.]

RES JUDICATA-Custody of Infant.-A decree made in a habeas corpus proceeding fixing the custody of a minor child, does not preclude the court from making provision for custody and support of such child in a subsequent divorce proceeding. (pp. 277, 278.)

G. H. Voight and Lawrence & Cain, for the appellant.

L. A. Douglass, for the appellee.

509 COMSTOCK, J. In December, 1898, appellee brought suit in the Scott circuit court against appellant for divorce, praying also for the custody of Lizzie Everitt, their only child. At the succeeding January term of the court appellant filed a cross-complaint, and by agreement of parties the cause was continued until the next term of court. At the time of entering the continuance the court also entered an order giving the appellee the custody of the child until the further order of the court. At the next following term the cause was tried, and the court refused to grant either of the parties a divorce, finding for the appellant upon the complaint and for the appellee on the cross-complaint. Judgment was rendered accordingly. No further order was made at that time in reference to the child. On the eleventh day of July, 1899, and after the rendition of the judgment in the divorce case, the appellee filed with the judge of the Scott circuit court a petition for a writ of habeas corpus, making the appellant and his father and brother defendants, and claiming therein the right to the custody of the child under the order made by the court during the pendency of the divorce suit. The writ was issued, and a trial resulted in an order of the court providing for the care and custody of the child. On October 25, 1899, the appellant filed a motion to modify the order, and the court, upon hearing, entered a modifying order providing definitely for the time the child should spend with each of her parents.

In December, 1899, in the Scott circuit court, appellee filed her present petition for divorce, alleging cruel treatment, drunkenness, and adultery, and praying for the custody of their infant child Lizzie. Upon change of venue the cause was put at issue, and tried in the Clark circuit court, resulting in a decree giving appellee a divorce 510 and the custody of the child. The errors complained of are the action of the court in

overruling appellant's motion for a new trial and in overruling his motion to modify the decree striking out that part relating to the custody of the child. In the original suit for divorce the complaint filed December, 1898, charges appellant with cruel treatment and failure to make suitable provision for her support. In the complaint before us, filed December, 1899, in addition to cruel treatment, appellant is charged with adultery committed with various persons in the year 1899.

The reasons stated in the motion for a new trial are that the decision of the court is contrary to law, and is not sustained by sufficient evidence. There is evidence sustaining the charge of adultery, and to justify the finding that appellee is a suitable person to be entrusted with the custody of the child.

As to that part of the complaint which asks for the custody of the child, appellant, as we have stated, pleads former adjudication. It remains to determine whether the court erred in refusing to strike out of the decree the order awarding appellee the custody of the child; or, differently stated, is the judgment of the Scott circuit court in the habeas corpus proceedings conclusive until set aside or modified in said cause? Section 1058 of Burns' Revised Statutes of 1901 (Horner's Rev. Stats. 1901, sec. 1046) makes it the duty of the court in decreeing a divorce to "make provision for the guardianship, custody, support, and education of the minor children of such marriage."

Since this appeal was taken the supreme court of this state, in Stone v. Stone, 158 Ind. 628, 64 N. E. 86, have held that it is the duty imposed upon the trial court to make such provision irrespective of the issues in the cause or the wishes of the parents, because it springs from the public interest in the proper training and education of children. The opinion further holds that the court has a continuing jurisdiction dur ing the minority of the child to make from time 511 to time such orders and modifications in reference to the care of minor children as are deemed expedient, and that a reservation in a decree so as to modify the order is not essential; overruling Sullivan v. Learned, 49 Ind. 252, cited by appellee's counsel. The case is followed by this court in Tobin v. Tobin, 29 Ind. App. 382, 64 N. E. 624.

It has been frequently held that the decree of a court as to the custody of a minor child is never final. The writ of habeas corpus was asked upon the ground that appellant had disobeyed the order of the court in the former suit for divorce.

The ac

tion was against appellant, his father, and brother upon an alleged disobedience of the order of the court made in the suit for divorce. The issues were not the same in the cause before us, and in the habeas corpus proceeding. The decision in the habeas corpus proceeding was at most only conclusive in respect to the facts and circumstances then existing, and not as to such as might arise afterward: Hurd on Habeas Corpus, 2d ed., 462. A parent shown at one time to be a suitable person to be intrusted with the care of a minor child may at another time, by his subsequent conduct, be shown to be totally unfit for the trust. Certain acts of adultery charged in the complaint beforc us were not in issue in the habeas corpus proceedings. They occurred subsequent to the institution of the proceedings last named. To hold that the right of either the mother or the minor child was concluded by such proceeding in an action affecting the marital relation of the parents would be an unwarranted application of the rule of estoppel.

There was no conflict of jurisdiction between the Scott and Clark circuit courts. Judgment affirmed.

A Former Adjudication on the question of the right to the custody of an infant brought upon habeas corpus may be pleaded as res judicata, unless some new fact has altered the status of the case: In re Sneden, 105 Mich. 61, 55 Am. St. Rep. 435, 62 N. W. 1009; State v. Bechdel, 37 Minn. 360, 5 Am. St. Rep. 854, 34 N. W. 334; Brooke v. Logan, 112 Ind. 183, 2 Am. St. Rep. 177, 13 N. E. 669.

In Ascertaining and Enforcing the Custody of an infant, the court will not establish a permanent custody, but one intended to continue until a change of circumstances shall, in respect to the child's welfare, require a change of custody, or until he has reached an age when he may nominate his own guardian: Green v. Campbell, 35 W. Va. 698, 29 Am. St. Rep. 843, 14 S. E. 212.

ADAMS EXPRESS COMPANY v. CARNAHAN.

[29 Ind. App. 606, 63 N. E. 245, 64 N. E. 647.]

AGENCY-Contract by Agent and Denial of Authority.-If the complaint in an action against an express company for the loss of a package alleges that the contract of transportation was made with one who acted for the plaintiff, the latter cannot deny the authority of the former as his agent to make the contract, although it limits the carrier's liability. (p. 281.)

CARRIERS.-Acceptance of a Receipt by the consignor from an express company for the carriage of a package implies an accession to its terms, thereby creating a contract equally as binding as though signed by both parties. (p. 281.)

CARRIERS-Contract

Limiting Liability.-A contract between a consignor and an express company fixing the value of property to be transported, clearly stipulating against further liability, fairly made upon a good consideration, is valid and enforceable, (p. 282.)

CARRIERS.-Contracts Limiting the Liability of common carriers must be fairly made, clear and explicit in their terms, and must be most strictly construed against the carrier. (p. 282.)

AGENCY-Adoption of Act of Agent.-A principal who adopts the act of one professing to act as his agent must adopt it in toto, and will not be permitted to claim the benefit arising therefrom, and at the same time repudiate the burden. (p. 284.)

AGENCY.-Authority to an Agent to ship goods carries with it authority to accept the bill of lading and enter into a contract limiting the carrier's liability. (p. 284.)

A. Baker and E. Daniels, for the appellant.

R. W. McBride and C. S. Denny, for the appellee.

607 ROBY, J. Appellee brings this action to recover the value, found to be three hundred dollars, of a pair of diamond earrings. Appellant concedes liability to the amount of one hundred dollars, tendered that sum before suit, and keeps its tender good. The special finding shows the execution and delivery, at the time appellant received the articles, of an instrument in terms, so far as relevant, as follows: "Read the mutual conditions of this contract, to which the shipper agrees Adams Exby accepting this receipt containing the same.

press Company. No. 180. (Not negotiable.) Millard Ave. Depot, Illinois, Dec. 23, 1897. Received of Mrs. J. C. Tebbetts, 1 package, valued at $100. Marked, Gen. J. R. Carnahan, Indianapolis, Ind. Which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties 608 to complete

the transportation. The care to be exercised in transporting property, and the reasonable compensation for its carriage, depend largely upon its nature and value, and the company's charges for forwarding are proportioned to the value of the property delivered to it to be forwarded and to some extent based on that value, which is an important element in fixing its charges. It is part of the consideration of this contract, and it is agreed, that the said express company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said express company intrusted, or arising from the dangers of railroad, ocean or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said express company, or their servants; nor in any event, shall the holder thereof demand beyond the sum of fifty dollars, at which the above property forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company. Freight paid, thirty-five cents. For the company, H.

..

O. Ellis."

The special findings further show that appellant received a sealed package containing the earrings, marked before its delivery with the address given in the contract; that the person making the delivery was a sister in law of appellee; that the earrings had been forgotten and left at her house in Chicago by appellee while visiting there; that appellee, through her husband, requested her to send them to him at Indianapolis; that neither appellee nor her husband saw the contract or knew of its contents until the same was sent to them at Indianapolis; that the package was not opened after it was taken to the express office; and that the 609 contract was all in print, except the following portions which were written in ink: "December 23, 1897.. Mrs. J. C. Tebbetts. Gen. J. R. Carnahan, Indianapolis, Ind. . $100. . . It was further found that neither said defendant, at the time . H. O. Ellis." said contract was executed and delivered, nor its said agent, Ellis, knew what said package contained, nor its value, except that he was informed by the sister in law that said package contained a pair of diamond earrings, and was very valuable.