board to finally accept or reject the recommendations of the viewers and engineer. In this proceeding the petition asked that the broken stone be "combined and firmly held together with a durable binder." This court determined in Metsker v. Whitsell, supra, in speaking of the petitions and roads here in controversy, that: "It is manifest that the Legislature had a purpose in view in providing for 'combinations' of stone and gravel, and it is scarcely to be doubted that such purpose was to prevent or mitigate" disintegration, "and in securing such result to permit the gravel, or broken stone, or both, to be more closely united by binding with coal tar, cement, or other substance adapted to such purpose. As the statute is silent on the subject of binding material, we cannot say that the use of asphalt for such purpose would be unlawful, even if it were conceded that its use might entail unnecessary expense. ** * * We hold that under either act a binder may be used to form a closer union of stone or gravel, and the question of what is the most suitable material is one for the determination of the local authorities." Such is the law of this case. Therefore in this proceeding it was adjudicated that some kind of a binder may be ordered. To apply the language of said adjudication, “as the statute is silent on the subject of binding material, we cannot say that the use of cement and of" metal plates and triangular metal mesh "for such purpose would be unlawful." This statute provides for combinations of gravel and broken stone. The order here is within the statute. The statute contemplates, according to said decision, a binder of "cement or other substance;" the order here is within the statute and the decision; and the petition requests a binder. The statute names no criterion for determining whether cement, as a binder, shall be poured over broken stone and gravel placed on the roadbed and allowed to trickle to needed points for contact, or whether the cement, as a binder, shall be thoroughly mixed with the broken stone and gravel before the same is placed on the roadbed. The statute names no criterion for determining whether the one will construct a bound road, or the other a concrete road. The statute, for that matter, defines no difference between roads constructed by the two methods above mentioned; the statute does not say that the jurisdiction of the board to construct a road of broken stone and gravel bound by cement shall cease and end if the board orders the cement used as specified in the report here considered. Therefore neither the circuit court nor this court can say within the statute that the road ordered is so far different from that petitioned for as to destroy jurisdiction of either the board or the court to make the order. To advise the board is the engineer's special duty for which he is especially qualified. The duty of the board is to provide a durable pavement, and thus economize for those who pay. We are not to be understood as holding that the viewers and engineer can recom mend, and the board order, an entirely dif ferent character of road from that petitioned for, but we do hold that within the bounds of fair and good judgment and engineering needs the board may, if it grants the petition, order that the road petitioned for shall be constructed after approved methods, and under the guidance of engineering and common experience. We hold that the difference between the petition, the report, and the order, shown by the facts specially found, are not such as to justify conclusions 3 and 4. The exceptions thereto should have been sustained. [7, 8] The court's fifth conclusion is that the board had no jurisdiction to order said road constructed under said last report, for that it was not shown, so as to enable this court to find, that the proper steps were taken to give the board jurisdiction to make such order, and therefore the circuit court has no jurisdiction to make any order for such improvements. We assume that this conclusion does not refer to a lack of showing of proper steps to give the board jurisdiction of the petition and proceedings thereunder. The petition was lawful. The three and only contestants voluntarily appeared, and have urged their resistance for over seven years, and at their request the proceeding has been by this court and by two circuit courts renianded to the board for further proceedings. The reference may be to steps taken before the board, or by the board, as to the last report of the viewers, alleged to recommend matters so far beyond the scope of the petition that the board's approval thereof was beyond its jurisdiction. We have found that the board had jurisdiction of the cause and the parties, and therefore on appeal the circuit court had jurisdiction. We have also determined that the character of the road ordered was within the board's jurisdiction. The fifth conclusion may refer to lack of jurisdiction because there was no supplemental report as to damages. The court found as a fact that it does not appear from the record of the board that the viewers and engineer made a supplemental report as to claims for damages, or as to persons under disability who may be damaged by the tak ing of their land. Section 7718, Burns 1914, provides in effect that the viewers' report, when filed, shall stand for ten days, and the viewers shall assess such damages; any one dissatisfied may except to the supplemental report. Section 7719 provides that after all matters of damages have been determined the board shall examine and act on the report as to construction. The court did not find that any claims for damages were filed, or that the lands of any infants or others under disability were taken or affected adversely. The report stood without action thereon for over three months. The appellees did not object to action there on by the board in the absence of a supplemental report as to damages. The appellees, so far as appears, filed no claims for damages. It will, under such circumstances, be presumed that no person or party was adversely affected as to damages, and that there was no occasion for a supplemental report. Metsker v. Whitsell, supra, 181 Ind. 144, 103 N. E. 1078. The objectors were appellants in the circuit court, and the burden rested on them to produce evidence of facts destroying the board's power to proceed; an issue raised by the objectors. Heath v. Sheetz, 164 Ind. 665-668, 74 N. E. 505. Under these circumstances the absence of a finding as to a supplemental report does not justify a conclu sion that the board had no jurisdiction to proceed. The exception to the fifth conclusion should have been sustained. The final conclusion is that the judgment of the court should be in favor of the remonstrators for their costs, and that the cause should be remanded to the board for proceed ings in accord with the mandate in Metsker v. Whitsell, supra, and with the judgment of the circuit court. The direction that the board proceed according to the said mandate of this court is not material, for the reason that all proceedings must be consistent with said mandate. In view of our determination that the circuit court was in error in each of its other conclusions, the mandate that the board proceed in accord therewith was erroThe exception to this conclusion should have been sustained. In view of the conclusions we have reached herein, no ruling need be made on other questions presented by appellants. neous. The judgment of the circuit court is reversed and the cause remanded, with instructions that the court restate its conclusions of law in accord with this opinion, remand the cause to the board of commissioners, with mandate that the board proceed in accord with its final order, and that the auditor advertise for bids under the report of the viewers and engineers. Judgment against the remonstrators for costs in this appeal and costs of last appeal to the circuit court. LAIRY, J., not participating. (187 Ind. 451) UNION TRACTION CO. OF INDIANA v. June 19, 1918.) HARVEY, J. The following reasons emphasize the propriety of concurring in the recommendation of denying the petition for a rehearing: [1] There was evidence tending to show that the operation of the cars close together, as described in the original opinion, distracted appellee's attention to the first and from the second; that the noise of the first drowned that of the second, and may have rendered whistling useless, so far as appellee was concerned. If the jury found the traveler's attention so distracted, then the care required of her is not properly defined by the strict rule ordinarily applied to crossing cases, but was less in proportion to the distracting circumstances, i. e., the degree of care an ordinarily prudent person would apply under like circumstances, or like distraction. To such a situation the rule applies which is announced in Chicago & E. I. R. Co. v. Hedges, 105 Ind. 398, 407, 7 N. E. 801, 805, as follows: "If there was any evidence tending to show that the [appellee] was thrown off his guard by such means as might have such effect upon an ordinarily prudent man-and we think there submit to the jury the question of contributory was some such evidence-it was not wrong to negligence." 171 Ind. 595, 85 N. E. 999, 86 N. E. 1017, quotSee, also, Cleveland, etc., R. Co. v. Lynn, ing from Rodrian v. New York, etc., R. Co. (1891) 125 N. Y. 526, 26 N. E. 741. [2] Appellant claims that instruction No. 2 given is erroneous, in that it is mandatory and undertakes to name all the elements of a case of action justifying such a mandate, but omits an essential element, to wit, that the jury must find that the negligence of the defendant was proximate. Appellant further claims that such a defective mandatory instruction cannot be cured by other instruétions supplying the omission. The instruction The duty of one approaching a railroad was not mandatory in the sense claimed. highway crossing to look and listen is modified See Chicago, etc., R. Co. v. Lain, 181 Ind. 386, and lessened where two cars passed so close 397, 103 N. E. 847. As the instruction did together that the noise of the second approaching the point of collision was drowned by that not pretend to detail or cover all elements of of the first which had passed; the test being a cause of action, the absent element was (Supreme Court of Indiana. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes properly stated in other instructions. Chicago, etc., R. Co. v. Lain, 181 Ind. 386, 398, 103 N. E. 847. The petition for rehearing should be overruled. (69 Ind. App. 75) WESTERN UNION TELEGRAPH CO. v. its allowance was unwarranted, although plaintiff was entitled, under section 7951, to interest on the judgment. Appeal from Circuit Court, Greene County; Theo E. Slinkard, Judge. Action by Nancy Hadley against the Western Union Telegraph Company. From a judgment for plaintiff, and from an order denying motion for new trial, defendant appeals. (Appellate Court of Indiana, Division No. 1. Judgment affirmed, upon condition that plainJune 5, 1918.) 1. TELEGRAPHS AND TELEPHONES 78(3) ACTION FOR PENALTY-COMPLAINT SUFFI CIENCY. AS IF tiff file an offer to remit interest; otherwise reversed, with instructions. Remittitur filed, and judgment affirmed. William M. Louden, of Bloomington, and Pickens, Moores, Davidson & Pickens, of Indianapolis, for appellant. William L. Slinkard and Will R. Vosloh, both of Bloomfield, for appellee. HOTTEL, J. This is an appeal from a judgment in appellee's favor for $129 in an action brought by her against appellant to recover the penalty for the delay of delivery of a telegraph message, in violation of sec In action for penalty for delay in delivery of a telegram, in violation of Burns' Ann. St. 1914, § 5780, averments of complaint, from which absent averment that defendant was engaged in doing a general telegraph business might be reasonably inferred, were sufficient. 2. APPEAL AND ERROR 889(3)-REVIEWPLEADING TREATED AMENDED AGREED STATEMENT OF FACTS. Assuming that in an action for penalty for delay in delivery of a telegram in violation of Burns' Ann. St. 1914, § 5780, plaintiff's complaint was subject to the objection that it failed to aver that defendant was doing a general tion 5780, Burns' 1914. There was an answer telegraph business, where the agreed statement of facts upon which the case was submitted stated that defendant was a common carrier of telegrams over said lines, the court on appeal, if necessary to an affirmance, should treat the complaint as amended to correspond with admitted facts upon which the case was submitted, in view of section 405, permitting the court at any time to direct insertions of a material allegation to conform to the facts proved, when amendment does not substantially change claim. 3. APPEAL AND ERROR 1078(1) ERRORS NOT PRESENTED BY BRIEF-WAIVER. Assigned errors not presented or referred to in briefs are waived. 4. APPEAL AND ERROR 761-BRIEF-STATE MENT OF PROPOSITIONS. Brief, stating general propositions of law and citing authorities under each proposition without in any way applying or attempting to apply either of the propositions to any ruling or action of the court relied on for reversal, presents no question for review. 5. APPEAL AND Error AND AUTHORITIES. 761-BRIEF-POINTS The points and authorities should be sufficient, without reference to argument, to present each and every question which the appealing party desires to have reviewed and determined by the appellate tribunal. 6. TELEGRAPHS AND TELEPHONES 78 (1) · DELAY IN SENDING COLLECT MESSAGE. Where a telegram which was received from sender, who informed defendant's agent that it was to be sent collect, was transmitted and collected for from the addressee only after a delay of over 40 hours, and at a time too late for the information contained therein to accomplish the evident intention of the sender, defendant, assuming that the usual terms required payment in advance, waived such terms and made itself liable to the penalty provided by Burns' Ann. St. 1914, § 5780; said statute not requiring charge to be paid in advance, but merely that the message be received on the usual terms. 7. TELEGRAPHS AND TELEPHONES PENALTIES AND JUDGMENTS. 78(3) There being no statute authorizing interest upon the penalty provided by Burns' Ann. St. 1914, § 5780, for delay in delivery of telegram, in seven paragraphs, viz. a general denial, a verified general denial, and five affirmative paragraphs. For reasons which will later appear herein, we deem it unnecessary to further indicate the contents or nature of said pleadings. A demurrer was filed to each of said affirmative paragraphs, which was overruled to the third and seventh, and sustained as to the other paragraphs. There was a trial by the court and a special finding of facts and conclusions of law. A motion for new trial filed by appellant was overruled. Each of the several rulings on the demurrers to the pleadings adverse to appellant, indicated supra, and the ruling on the motion for a new trial, are separately assigned as error and relied on for reversal. The only objection to the complaint suggested by appellant in his brief is that contained under his first point, which challenges the ruling on the demurrer thereto on the ground that it contains no averment that appellant was engaged in doing a general telegraph business. [1] We think the complaint contains the equivalent of said averment, or, at least, contains averments from which such absent aver ment may be reasonably inferred, and hence is sufficient under the rule recognized and followed by the more recent decisions of both the Supreme Court and this court. [2] However, assuming that the complaint is open to appellant's objection, this court would be justified, and indeed required, by the decided cases, to treat the complaint as amended in said respect. The case was submitted to the court below for trial and determination upon an agreed statement of facts. Such statement, being of controlling influence in the determination of the questions under consideration and of other questions presented by the appeal, is now set out. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Transfer denied. Omitting the caption and preliminary partate in the rate charged, or words or figures thereof, it is as follows: "It is now hereby agreed that the following statement of facts shall be taken by the court, as the evidence and all the evidence in said cause, and that the facts in said statement constitute the evidence, and all the evidence to be given, and that is given in said cause, and that the said facts are hereby agreed to by the parties in lieu of the evidence to be given on the trial of said cause, and it is agreed that upon said statement of facts the court may decide the controversy between these parties as shown by the pleadings in said cause, and which facts and which statement of facts are as follows, to wit: "The defendant, the Western Union Telegraph Company, on November 5, 1910, owned and operated a telegraph line and maintained and had a public telegraph station at Clayton, Ind., and at Bushrod, Ind., and was at said time a common carrier and deliverer for the public, of messages and telegrams over said lines, and at each station above named, as well as other stations. (Our italics.) That on Saturday, November 5, 1910, Lizzie Hadley died near Monrovia, Ind. That her sister Nancy Hadley, is the plaintiff in this action. That the plaintiff lived at said time near her said sister, and all of said parties lived near Monrovia, Ind., a distance of about 7 miles from Clayton, Ind., where the said defendant kept and maintained a public telegraph station. That on Saturday, November 5, 1910 at 7:41 o'clock p. m., the plaintiff called the operator at Clayton, Ind., office, via telephone, and asked to send a telegraphic message to her son, Francis Hadley, at Bushrod, Greene county, Ind., at which station, at Bushrod, the defendant maintained a public station for the transfer and delivery of messages for hire, and the plaintiff gave to the defendant at said time to wit, 7:41 p. m. on said day, the following message: "To Francis Hadley, Railroad Hotel, Bushrod, Indiana. Aunt Lizzie is dead. Funeral eleven o'clock Monday. Nancy Hadley.' charged for, or manner or condition of service, on November 5, 1910, and at the time the plainbetween plaintiff and any of its patrons. That tiff filed the above telegram with defendant at its Clayton, Ind., office for transmission the its business and the filing, receipt, transmission, defendant had rules and regulations governing and delivery of messages and dispatches, and the manner and condition of service and rules payment of charges and rates for receiving and and regulations as to charges, rates, and the transmitting messages and dispatches, and all force and governed all the business and all the of such rules and regulations and terms were in offices of the defendant, and were in force and effect generally, for a number of years past. effect generally, and had been so in force and That said terms, rules, and regulations were as follows: 66 All 'Rule 12. Messages to be Prepaid. messages will be prepaid, except free messages and those covered by rules 13 and 47. "Rule 13. Collect Messages. An answer to a prepaid message, or a message for which livery is guaranteed by a responsible party, payment for transmission, or for special demay be accepted "collect." "Rule 47. Sending Offices. Instructions as fice in regard to the delivery of a message will to Delivery. Instructions from the sending ofbe carefully observed. A request to "report delivery" will be answered by a collect message addressed to the sender of the original message, stating the time of delivery, or if not delivered, the reason why.' "That the above three rules were all the rules and regulations of the defendant in force That "The defendant's agent reduced said message to writing on the regular and usual form of defendant company. That at the time said message was delivered to the defendant, the operator at Clayton, Ind., office asked the plaintiff how she wanted said message sent, and the plaintiff answered, 'Send collect,' and that was all that was said about it. That the usual and regular schedule charge of defendant for transmission and delivery of such message was 25 cents. That the plaintiff did not pay the charge therefor, and did not tender such charge to defendant, and no responsible party guaranteed such charge to the defendant, and plaintiff had no charge account with defendant, and said message was not a free message and not an an- The averment claimed by appellant to have swer to a prepaid message. That said telegram been omitted from the complaint is fully covwas sent by said defendant and transmitted by ered and supplemented by that portion of said it from said station at Clayton, Ind., to said station at Bushrod, Ind., and was received by agreed statement of facts which we have italthe defendant company's agent at Bushrod, icized supra. This statement was not only Ind., at 8:52 o'clock p. m. on November 5, admitted as evidence without objection, but 1910. That said Francis Hadley lived at the Railroad Hotel at Bushrod and within 300 feet was agreed to as the facts upon which the of the said defendant's telegraph office at said trial court should "decide the controversy betime, and was at home all the time from No- tween these parties as shown by the pleadvember 4 to November 8, 1910. That said tele-ings in said cause." This court, therefore, if gram was transmitted by said defendant and retained at said office at Bushrod until it was necessary to the affirmance of the judgment delivered to said Francis Hadley on Monday, November 7, 1910, at 1:41 o'clock p. m. That the said Francis Hadley paid to the defendant at the time of delivery of said message and the defendant accepted 25 cents for the transmission and delivery of said telegram. That defendant, except as above stated, transmitted said telegram with impartiality and in good faith and in the order of time in which it was received, and did not in any manner discrimi below, may, and should, treat the complaint as amended to correspond with such admitted facts. Section 405, Burns' 1914; Laramore v. Blumenthal, 58 Ind. App. 597, 108 N. E. 602, and cases there cited. [3] The appellant, doubtless because of its recognition of the effect of said admitted statement of facts, has not, in its brief, under [4] The only remaining assigned error challenges the action of the trial court in overruling the motion for new trial. In its brief, as originally prepared, appellant had stated general propositions of law numbered consecutively from 11 to 15 and cited authorities under each proposition without in any way applying or attempting to apply either of said propositions to any ruling or action of the court relied on for reversal. Appellee, in her brief, insisted, and correctly so, that no question was presented by either of said general propositions of law. Rule 22 of Supreme and Appellate Court (55 N. E. v.); Smith v. Finney, 56 Ind. App. 93, 104 N. E. 887; Wood v. Rathmar, 58 Ind. App. 229, 108 N. E. 126; Kaufman v. Alexander, 180 Ind. 670, 103 N. E. 481. Appellant, however, since the filing of appellee's brief, has asked and obtained leave of this court to amend its briefs. The only amendment made is by a sticker placed over each of said general propositions, containing the following words: "It was error to overrule appellant's motion for a new trial for the reasons assigned, that the decision of the trial court is not sustained by sufficient evidence, is contrary to law, and that each of the special findings is contrary to law." So that appellant's points from 11 to 15, as now amended, are mere repetition, except as to the authorities cited. It requires a very liberal construction of the rules of the court to say that any question is presented by these points, or either of them. Assuming, however, without so holding that the briefs as so amended are sufficient to present the error predicated on that ground of the motion for new trial which challenges the decision as not being sustained by sufficient evidence, the answer is that the finding follows, and is supported in every respect by, the agreed statement of facts, supra. [5, 6] While the points and authorities should be sufficient in and of themselves, without reference to the argument to present each and every question which the appealing party desires to have reviewed and determined by the appellate tribunal, we have in this case looked to the argument to ascertain appellant's real contention, and find that it predicates its right to a reversal upon its claim that there are absent from the finding of facts two elements made essential by the statute upon which this action is predicated, viz. that there is no finding that the message involved was sent on the "usual terms," or that the same was not transmitted with impartiality and in good faith and in the order of time received, but that, on the contrary, it appears from the finding that the message was sent "collect," which is not the usual terms, and it also appears from the finding that the appellant, except as above stated in failing to deliver said message promptly and holding it from 8:52 p. m. on Saturday, November 5th, until 1:41 p. m. Monday, November 7th, transmitted said telegram with impartiality and in good faith, and in the order of time in which it was received, and did not in any manner discriminate in the rate charged, or words or figures charged for, or manner or condition of service, between plaintiff and its patrons. The questions indicated would be properly presented by appellant's exceptions to the conclusion of law, but there is no independent assignment of error challenging such conclusion. However, again assuming, without so holding, that the questions which appellant seeks to present are properly presented, we think the decisions of the Supreme Court and this court necessitate a conclusion adverse to appellant's contention. Since its amendment in 1885 (Laws 1885, c. 58), the statute involved does not require that the charges be paid in advance, but merely that the message be received on the "usual terms." The facts here found show that appellant's agent, at the time of receiving the message over the phone, inquired of the appellee how she wanted it sent, and she answered, "Send collect"; that the message was received, transmitted, and collected for from the addressee after a delay of over 40 hours, and at a time too late for the information contained therein to accomplish the purpose which the sender evidently had in mind when she sent it. It is manifest, we think, that under such a state of facts, even if it be assumed that appellant's "usual terms" required payment in advance, appellant waived such terms and thereby made itself liable to the penalty provided in the statute for a failure to transmit the message in accord with its provisions. As supporting, or tending to support, this conclusion, see Western Union, etc., Co. v. Yopst, 118 Ind. 248, 20 N. E. 222, 3 L. R. A. 224; Western Union Telegraph Co. v. Troth, 43 Ind. App. 7, 84 N. E. 727; Western Union, etc., Co. v. Grifiin, 1 Ind. App. 46, 49, 27 N. E. 113; Western Union Telegraph Co. v. Sanders, 39 Ind. App. 146, 79 N. E. 406. The facts indicated show negligent and "unreasonable delay" in the delivery of the message. Appellant contends, however, that inasmuch as the statute is a penal one, it must be strictly construed and that mere negligent delay, in the absence of a finding of one of the other elements made essential by the statute, is not sufficient to authorize the infliction of the penalty. It concedes that this court, in the case of Western Union v. Taylor, 57 Ind. App. 93, 104 N. E. 771, held adversely to this contention, but insists that this case is out of harmony with other decisions both of the Supreme Court and this court. We cannot agree with this contention. On the contrary, we think the case of Western Union v. |