Imágenes de páginas

along the lines just indicated, it is fair for, afterwards, all the parties affected by a judgus to briefly consider what they say.

| ment must be brought before the appellate Courts of appeal consider and dispose of a


[Ed. Note. For cases in point, see vol. 2, case solely upon the record. As affecting

Cent. Dig. Appeal and Error, $$ 1795–1813.) the Pennsylvania Company no question is 2. SAME. presented by the record by which the judg

Acts 1903, p. 340, c. 193, 8 7; Burns' Supp. ment in its favor can be disturbed. The 1905, § 641g, provides that any party desiring a question of its liability, upon the instructions transcript of the record, or any part thereof, of the court and under the evidence, was sub

for appeal may file with the clerk a written

præcipe therefor, and in obedience thereto the mitted to and determined by the jury. That clerk shall include in the transcript every paper judgment must stand, because it is not ques. and entry requested to be included. A judgment tioned in any manner by the record. As to

was rendered against one defendant on a note

and against all defendants for foreclosure of counsel's contention that the action "is a bold

a mortgage. The præcipe filed by the person fraud" and that .appellee's injury was and against whom a personal judgment was taken, is "simulated," it is not sustained by the who alone appealed, called only for certain facts disclosed by the record. Appellee was

parts of the record. Held, that it cannot be

said on appeal that the appellant was the only injured January 18, 1904, by which bis hip

defendant affected by the judgment, and hence joint was dislocated. It was known in medic the appeal must be dismissed. al parlance as a "supracatyloid dislocation." Immediately after the injury he was taken to

Appeal from Circuit Court, Lake County: the office of a surgeon for examination and

J. F. Meeker, Special Judge.

Action by Henry C. Dovenmuehle against treatment. He walked to the surgeon's office, by the assistance of others. The evi

George H. Helberg and others. From a dence shows that a person with a supracat

judgment in favor of plaintiff, defendant yloid dislocation can walk, but the effort

Helberg appeals. Transferred from the Suwill be attended by severe pain. The sur

preme Court. Appeal dismissed. geon treated him, placed his limb in "plaster Jno. O. Bowers, for appellant. Harvey, strips," and it so remained for three weeks. Pickens, Cox & Kohn and A. N. & E. P. The limb was then put in flannel bandages, Eastman, for appellee. and they were kept on three months. The appellee was confined to his bed for about BLACK, P. J. The appellee has moved to three weeks. The case was tried in October dismiss the appeal. Suit was brought by following the accident, and he testified that the appellee alone against George H. Hel. his hip still pained him. He walked lame, berg, the appellant, and five other defendand up to that time had not been able to do ants, named in the title of the cause as any work. The evidence of physicians was "First National Bank of Hammond, Indiana, to the effect that such a dislocation was

John Lienen, Peter Covert, Anna Covert, "very painful," and two of them gave it as his wife, Fidelity Building & Savings Union their opinion that appellee's disability was

No. 2, Marion County, Ind." The complaint permanent. Under this evidence we are un.

contains two paragraphs; the first being upable to agree with counsel that this action on a promissory note made by the appellant, on the part of appellee was a "bold fraud," 'payable to the order of the appellee, and & or that his injury was "simulated," or that mortgage upon real estate executed by the "its continuance is feigned.”

maker of the note to the payee, to secure the We cannot disturb the judgment on the payment thereof. In this paragraph of comevidence. There is nothing in the record plaint it was alleged that the appellee “is to indicate that the jury were influenced by

informed that the defendants First National improper considerations, or that they mis

Bank of Hammond, Fidelity Building Loan understood or misapplied the evidence, and

& Savings Association No. 2, Marion County, hence we cannot say that the damages award Indiana, John Lienen, Peter W. Covert, and ed are excessive.

Anna Covert claim to have some interest in Judgment affirmed.

or lien upon the said mortgaged premises or some part thereof, which interests and liens,

if any, are subsequent and subject to the (37 Ind. App. 377)

lien of the plaintiff's said mortgage." Judg. HELBERG v. DOVENMUEHLE. (No. 5,720.)

ment was prayed in the first paragraph for a (Appellate Court of Indiana, Division No. 1.

certain sum, the foreclosure of the mortgage, Feb. 23, 1906.)

and the sale of the real estate to satisfy the 1. APPEAL-PARTIES.

appellee's claim and costs, "and that all the Under Burns' Ann. St. 1901, $$ 647, 647a, defendants, and all persons claiming under authorizing an appeal by a part of several co them subsequent to the commencement of parties, but providing that in case of a vaca this action, be barred and foreclosed of all tion appeal the parties appealing must serve a written notice of the appeal on the other co

right, claim, and equity of redemption in parties or their attorneys of record, and that said premises,” etc., and for judgment over after such notice, unless the parties notified against the appellant, etc. The second paraappear and decline joining in the appeal, they

graph of complaint need not be specially must be regarded as properly joined, and if they decline to join their names may be struck

noticed, inasmuch as judgment was rendered out on motion and they cannot take an appeal against the appellee, the plaintiff, upon that

paragraph. "The defendant John Trinen" , clerk a written præcipe therefor. “If such and "the defendants Peter W. Covert and party or person desire a transcript of the Anna Covert, his wife," filed disclaimers. entire record, it shall be sufficient to so state The appellant separately filed answers, and in the præcipe; if a complete transcript be the appellee replied thereto. Upon the trial | not desired, then such party or person shall the court found for the appellee upon his indicate in the præcipe the parts of the first paragraph of complaint and that there record desired. * * * Such præcipe shall was due him from the appellant on the note constitute a part of the record, and in obediand mortgage sued on therein a specified ence thereto the clerk shall include in the sum, with costs, and that this mortgage transcript every paper and entry in the cause "should be foreclosed against each and all thereby requested to be included, and every of the defendants in this action,” etc. The paper and entry by this act declared to be a court adjudged that the appellee recover of part of the record shall be considered by the the appellant under the first paragraph of Supreme Court or the Appellate Court on complaint a certain sum and costs, and that appeal, when so included in the transcript, the mortgage in the first paragraph set forth the same as though the matter had been ve “foreclosed against all the defendants in made a part of the record by a bill of excepthis action," etc. This appeal was taken tions. The præcipes shall be copied in the after the term, by notices from the appellant transcript immediately before the certificate alone, served upon the clerk of the court of the clerk,” etc. In the præcipe filed by below and upon the appellee. In the assign-| the appellant in this cause, it was not stated ment of errors Henry C. Dovenmueble is that he desired a transcript of the entire named as the appellee, and George H. Hel- | record. The cause was entitled as in the berg is named as the appellant, by whom complaint, except that among the names of alone the alleged errors are assigned. No the defendants the name "John Trinen" was notice of the appeal appears to have been inserted instead of the name "John Lienen," given by the appellant to his codefendants or as in one of the disclaimers; and in the to any of them.

body of the præcipe the appellant indicated A part of several coparties may appeal to particular parts of the record of which he the Supreme Court or to this court; but if directed the clerk to prepare and certify a it be a vacation appeal, as in this case, the transcript. The clerk's certificate conforms party or parties so appealing must serve a to the præcipe, and the transcript is made to written notice of the appeal upon all the comply therewith. The præcipe contains no other coparties or their attorneys of record, reference to any summons, or to an entry of and file proof thereof with the clerk of the any default, or to any answer except as court to which the appeal is taken. Under above stated, and the transcript does not certain circumstances, not appearing to be show whether or not any summons was ishere involved, the notice may be given by sued or served, or whether or not any default publication. After such notice, unless the was taken and entered, or whether or not parties notified appear and decline to join in there was any other answer or answers than the appeal, they must be regarded as proper those above mentioned. The portions of the ly joined. If they decline to join, their record specified in the præcipe, and containnames may be struck out on motion and they ed in the transcript in compliance therewith, cannot take an appeal afterward. See sec are before us; but we cannot assume that tions 647, 647a, Burns' Ann. St. 1901. The there was no summons duly served, or that appellant in the assignment of errors must there was no default, or that there was no name all who are affected by the judgment answer on the part of any defendant except from which the appeal is taken. Gourley v. as shown in the transcript made under and Embree, 137 Ind. 82, 36 N. E. 846; Rule 6 in compliance with a præcipe calling for only of this court (55 N. E. iv); Ewbank's Manu certain other particular parts of the record. al, 8 126; Brown v. Trexler, 132 Ind. 106, 30 It cannot be said with confidence that no N. E. 418, 31 N. E. 572; Hutts v. Martin, defendant against whom the judgment was 141 Ind. 701, 41 N. E. 329; Garside v. Wolf, rendered, except the appellant, is affected 135 Ind. 42, 34 N. E. 810. All the parties thereby. There can be but one appeal from affected by the judgment must be before this the judgment, and the party taking it must court. It is claimed that there was no judge bring before this court all the parties to the ment against any party but the appellant. judgment, whose interests would be affected The judgment of foreclosure, however, was by the decision upon appeal. against all the defendants, and only one of The appeal is dismissed. them is before this court. Omitting those who filed disclaimers, there still remain other defendants who are affected by the

(37 Ind. App. 381) judgment.

CAMERON V. STATE. (No. 6,050.) The statute of 1903 (Acts 1903, p. 340, c. 193, | (Appellate Court of Indiana, Division No. 1. $ 7; Burns' Supp. 1905, $ 641g) provides that

Feb. 23, 1906.) any party or person desiring a transcript of


OF EXCEPTIONS-FILING the record of any cause or proceeding or any

A recital appearing as a record entry and part thereof, for appeal, may file with the not as a part of a bill of exceptions, and re

ferring to the bill, "which bill of exceptions is , indorsed upon the indictment, but other now tendered to the court, and by the court witnesses may afterward be subpoenaed by signed and filed with the clerk of this court," sufficiently shows that the bill was filed with

the state; but, unless the names of such the clerk.

witnesses be indorsed on the indictment 2. Costs_CRIMINAL PROSECUTIONS-WITNESS at the time it is presented, no continuFEES.

ance shall be granted to the state on account Burns' Ann. St. 1901, § 1740, requires the

of the absence of any witness whose name is names of all material witnesses to be indorsed on the indictment, but permits other witnesses

not thus indorsed. This section permits the to be subpapaed by the state. Section 8103, as use by the state of witnesses whose names modified by section 1907, subsequently enacted, are not on the indictment, and simply preauthorizes the collection of costs from a person

vents the state from having a continuance beconvicted of crime, unless the court or jury expressly find otherwise. Section 1927 provides

cause of the absence of a witness whose name that no cost for mileage or attendance shall be is not on the indictment. Section 1851, taxed against a person convicted for a witness Burns' Ann. St. 1901. See Short v. State, 63 summoned by the state, whose name was not indorsed on the indictment, and who was not

Ind. 376; Siberry v. State, 133 Ind. 677, 33 sworn in the cause, or did not testify to any N. E. 681. material fact in aid of the prosecution. Held, Section 8103, Burns' Ann. St. 1901, provides that where a defendant at first pleaded not

that “in all criminal cases where the person guilty, but at the time set for trial entered a plea of guilty, he was liable, in the absence of accused shall be acquitted, no costs shall be a showing that more witnesses were summoned taxed against such person, nor against the by the state than were necessary, for the cost

state or county, for any services rendered in of mileage and attendance for all of them,

such prosecutions by any prosecuting at. though the names of some were not indorsed on the indictment.

torney, clerk, sheriff, coroner, justice of the

peace, constable or witness; but in all cases Appeal from Circuit Court, Steuben Coun

of conviction such fees and costs shall be ty; C. E. Emanuel, Special Judge.

taxed and collected from the person conRobert Cameron was convicted of selling

victed." This provision is modified by the liquor without a license, and appeals. Trans

subsequent enactment of section 1907, Burns' ferred from the Supreme Court, under Act

Ann. St. 1901, which provides that “when March 12, 1900. Affirmed.

the defendant is found guilty, the court shall Brown & Carlin and Woodhull & Yeagley, render judgment accordingly, and the defendfor appellant. Frank L. Wilsheimer, Pros. ant shall be liable for all costs, unless the Atty., W. E. Heckenlively, Best & Yotter, C.

court or jury trying the cause expressly find W. Miller, Atty. Gen., C. C. Hadley, W. O. otherwise." Under this section the court Geake, and L. G. Rothschild, for the State. may relieve a defendant from the payment

of all costs, but it is not a matter of mere ROBINSON, J. Appellant was indicted for i arbitrary discretion. “What particular facts," selling liquor without a license. On Febru said the court in Welsh v. State, 126 Ind. 71, ary 23, 1905, he was arraigned and entered 25 Y. E. 883, 9 L. R. A. 664, "would authorize a plea of not guilty, and the case was then a court or jury finding a defendant guilty, to set for trial on March 1, 1905. On this date relieve him from the payment of costs, we he entered a plea of guilty, and was fined need not now inquire; but he should not be $30 and adjudged to pay the costs. After- | so relieved without some reason for so doward appellant filed a motion to retax cer ing." See State v. Sevier, 117 Ind. 338, 20 tain witness fees as costs, on the ground that | N. E. 245. the names of some of such witnesses were not ! Section 1927, Burns' Ann. St. 1901, provides indorsed on the indictment; that they were that “in case of the conviction of a defendant, not sworn to any material fact in aid of no cost for mileage or attendance sball be the prosecution; that all of such fees were taxed against such defendant in behalf of taxed for mileage and attendance of such any witness who was summoned by the state witnesses on the trial of the case.

to testify, but whose name was not indorsed It is first claimed that the record does not upon the indictment nor upon the informashow the filing of the bill of exceptions in the tion, and who was not sworn in the cause, or clerk's office. A record entry, after reciting who, if sworn, did not testify to any material the overruling of the motion to retax costs fact in aid of the prosecution." It is also and an exception by appellant and making provided (section 1866, Burns' Ann. St. 1901) mention of the bill of exceptions, states, that witnesses in a criminal prosecution, if “which bill of exceptions is now tendered to subpænaed, may be compelled to attend and the court, and by the court signed and filed testify without their fees being first paid or with the clerk of this court; said bill of ex tendered, and that the court may recognize ceptions being in these words;" this is fol witnesses to attend and testify. Prior to the lowed by a transcript of the bill of excep- enactment of section 1927, supra, the fees of tions. This recital of the filing of the bill is all witnesses subpænaed by the state, whether not in the bill itself, but is a record entry, used or not, or whether they testified to any. and sufficiently shows that the bill was filed thing material or not, were taxed as costs with the clerk.

against the defendant upon conviction, 1 Section 1740, Burns' Ann. St. 1901, requires | Rev. St. 1876, p. 479, c. 113; Schlicht v. State, the names of all material witnesses to be | 56 Ind. 173. And it would seem that the pur

pose of section 1927 was to relieve defendants , in criminal actions, yet we fail to see any from the payment of certain witness fees sufficient reason, upon the facts disclosed, for where there is a trial upon a plea of not applying a different rule in this case from guilty, as relief is given from costs of wit that applied in a civil action. It is quite nesses who are not sworn, or who, if sworn, true that a defendant should be granted redo not testify to some material fact in aid of | lief, where bad faith is shown, or where it the prosecution. Unless there was a trial, it is made to appear that witnesses were uncould not be determined whether a witness necessarily subpænaed; but such a case is had been subpænaed by the state to testify not presented by this record. to any material fact in aid of the prosecution. Judgment affirmed. An issue of fact might arise, during the progress of the trial, that would require additional witnesses, or issues of fact contemplated

(37 Ind. App. 373) when the witnesses were subpænaed might

EQUITABLE LIFE INS. CO. OF IOWA V. not arise during the trial. Only in a contest

HEBERT et al. (No. 5,560.) ed case could it be determined whether the

(Appellate Court of Indiana, Division No. 1. testimony of witnesses subpoenaed would be

Feb. 21, 1906.)


TION AND BURDEN OF PROOF-SUICIDE OF INIn the absence of any showing to the con

SURED. trary, it must be presumed that the prose In an action on a policy of life insurance, cuting attorney acted in good faith, and that providing that it should be void if the insured

should take his own life, whether sane or inno more witnesses were subpoenaed than were

sane, suicide could not be presumed from the necessary to sustain the state's case, and that mere fact of death in an unknown manner, but only such witnesses were subpoenaed as would the burden of establishing the defense of suicide testify to material facts in aid of the prose

is on the insurer.

[Ed. Note. For cases in point, see vol. 28, cution. When appellant was arraigned and

Cent. Dig. Insurance, & 1663.) entered a plea of not guilty, and the case

2. SAME-EVIDENCE-QUESTION FOR JURY. was set for trial, it was the duty for the

In an action on a policy of life insurance, prosecuting attorney to prepare for the trial. evidence held to present a question of fact for The plea of not guilty stood until after these the jury whether the insured had taken his own witnesses were subpænaed, and until the time

life by poisoning.

[Ed. Note.-For cases in point, see vol. 28, they were required by the subpoenaes to be

Cent. Dig. Insurance, 88 1745, 1763.] in court. The plea was then changed, and the testimony of the witnesses was not need

Appeal from Circuit Court, Allen County; ed. Had the plea of guilty been entered at

E. O'Rourke, Judge. the time of the arraignment, no witnesses

Action by Oliver Hebert and others against

the Equitable Life Insurance Company of would have been necessary. But appellant chose to stand upon his plea of not guilty

Iowa. From a judgment in fayor of plainuntil the state was required to prepare for

tiffs, defendant appeals. Affirmed.' trial and had the witnesses in court ready P, B. Colerick and Guy Colerick, for appelfor trial. There is nothing to overcome the / lant. Breen & Morris, for appellees. presumption that the preparation that was made for the trial was necessary and proper.

ROBINSON, J. Appellees sued upon a The names of the witnesses here in ques- policy of insurance issued upon the life of tion were not indorsed in the indictment, and Oliver J. Hebert, on December 8, 1902. The if there had been a trial, and they had not i assured was found dead July 28, 1903. The been sworn and testified to some material policy contained a provision “that, should fact in aid of the prosecution, upon conviction the assured within two years from date theretheir fees could not have been taxed as of take his own life, whether sane or insane, costs against appellant. But there is nothing any policy issued thereon should become void, in the record to rebut the presumption that and all payments made thereon should be forthe prosecuting attorney acted in good faith feited to said company.” The sufficiency of in having them subpoenaed, and that each the evidence to sustain the verdict, the exwas a competent and necessary witness. cluding of certain testimony offered, and the They were present in court and did not giving of a certain instruction, are the only testify because of the act of appellant alone. questions argued by appellant's counsel.

In civil actions, if the attendance of wit- Self-destruction cannot be presumed from nesses is procured in good faith by one of the the mere fact of death in an unknown manner, parties, he will not lose his right to recover The strong instinctive love of life and the the costs of such witnesses by the subsequent uniform efforts of men to preserve life will conduct of the other party in rendering their not permit a presumption of suicide, where attendance unnecessary. Ohio, etc., R. Co. v. death may have resulted from accident or Trapp, 4 Ind. App. 69, 30 N. E. 812; Alexan- mistake. Appellees were entitled to recover, der v. Harrison, 2 Ind. App. 47, 28 N. E. 119; unless appellant has by competent evidence Miller v. De Armond, 93 Ind. 74; Teeple v. overcome this presumption. If the facts are Dickey, 94 Ind. 124. See Deweese v. Smiley, such that death might have resulted from acci1 Ind. App. 81, 27 N. E. 444. While a rule dent, mistake, or suicide, the presumption is in civil actions is not necessarily controlling | against suicide. If the accused committed suicide, the law was against appellees, be- | resulted, the death might have resulted from cause the policy by its terms did not cover accident or mistake, and this would be the self-destruction, whether the assured at the presumption as against suicide. “When the time was sane or insane. As the defense of dead body of the assured," says the author of suicide was relied upon, the burden of proy- | 1 May on Insurance (4th Ed.) 8 325, "is ing it was upon the appellant. See Travelers' found under such circumstances and with Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. such injuries that the death may have re1360, 32 L. Ed. 308; Leman v. Manhattan sulted from negligence, accident, or suicide, Ins. Co., 46 La. Ann. 1189, 15 South. 388, 24 the presumption is against suicide, as conL. R. A. 589, 49 Am. St. Rep. 348; Walcott trary to the general conduct of mankind-a v. Metropolitan L. Ins. Co., 64 Vt. 221, 24 gross moral turpitude not to be presumed in Atl. 992, 33 Am. St. Rep. 923; Supreme a sane man; and whether it was from one or Council, etc., V. Brashears, 89 Md. 624, 43 the other, if there is any evidence bearing Atl. 866, 73 Am. St. Rep. 244; Meadows v. 1 upon the point, it is for the jury, as, for inPacific Mutual, etc., Ins. Co., 129 Mo. 76, 31 stance, whether the taking of an overdose of S. W. 578, 50 Am. St. Rep. 427; Streeter v. laudanum was intentional or by mistake." Western Union Mut. Acc. Soc., 65 Mich. 199, But, as stated, there was evidence that 31 N. W. 779, 8 Am. St. Rep. 882; Cronkhite there was no indication of the presence of the v. Travelers' Ins. Co., 75 Wis. 116, 43 N. W. acid in the stomach, nor did the mouth 731, 17 Am. St. Rep. 184; Mallory v. Travel necessarily indicate that it had been used. ers' Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410; The credibility of the witnesses was a quesHale v. Life Indemnity, etc., Co., 61 Minn. tion for the jury. It cannot be said that there 516, 63 N. W. 1108, 52 Am. St. Rep. 616. is no evidence to support the conclusion they

The defense was that the assured took reached. Whether the assured committed carbolic acid with suicidal intent. The de- l suicide was to be determined as any other ceased was found dead on the bank of a question of fact. Upon a careful considerarailroad right of way, lying on his back at tion of the evidence we do not find it such as full length, his feet crossed at the ankles, one authorizes us to disturb the verdict. See hand at his side and the other across his Travelers’ Ins. Co. v. Nitterhouse, 11 Ind. breast. In his vest pocket was a small vial App. 155, 38 N. E. 1110; Phillips v. Louisiana containing carbolic acid, the contents of Eq. L. Ins. Co., 26 La. Ann. 404, 21 Am. Rep. which were about half gone; and near or 549; Hale v. Life Indemnity, etc., Co., supra; under the body was a large bottle containing Leman V. Manhattan L. Ins. Co., supra; a solution of carbolic acid and water. The Michigan Mut. L. Ins. Co. v. Naugle, 130 Ind. appearance of the face did not indicate that 79, 29 N. E. 393; Northwestern, etc., Ins. Co. there had been any severe pain preceding v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 death. There was a post mortem examination Am. Rep. 192; Supreme Lodge, etc., v. Foster, held, and the testimony of the physicians was 26 Ind. App. 333, 59 N. E. 877; Cochran v. directly contradictory as to the presence of Mut. Life Ins. Co. (C. C.) 79 Fed. 46; Ingercarbolic acid in the stomach, as was also the soll v. Knights of Golden Rule (C.C.) 47 evidence as to whether the mouth showed the Fed. 272; Supreme Lodge, etc. v. Beck, 94 use of carbolic acid. There is evidence that Fed. 751, 36 C. C. A. 467. the assured had some pimples on his face, and The correctness of the tenth Instruction is that his mother had advised him to wash it | questioned, but what we have already said with a solution of carbolic acid; that on the concerning the presumption that the assured morning of his death he went to a drug store took his own life, is applicable to the only and purchased 10 cents worth of carbolic acid, question raised as to this instruction. We secured a large bottle, and filled it with a find no error in the record for which the mixture of the acid and water; that the day judgment should be reversed. on which he died was an excessively warm Judgment affirmed. day; that he bad received a sunstroke a few weeks before he died; and that his physical condition was such that he might easily have

(38 Ind. App. 33) succumbed to the excessive heat. We have not undertaken to give the sub

MEFFORD V. LAMKIN. (No. 5,597.)1 stance of all the testimony, but to show that,

(Appellate Court of Indiana, Division No. 2

Feb. 21, 1906.) while there are indications that point to suicide, there are other facts and circum


TING ASIDE. stances not consistent with that theory. The

Where an administrator procured a final evidence relied upon to establish suicide was settlement on a final report showing that he and circumstantial, and in such case it should be

another were the only heirs at law of the decedsufficient to exclude, with reasonable cer

ent, and procured an order of the court directe

ing the clerk to pay them the amount remaining tainty, any other cause of death. Although for distribution, when in fact a third person the evidence was contradictory as to the was the sole heir and they had no right to the presence of carbolic acid in the stomach, and

fund, the heir had a right to have the final

settlement set aside. as to whether the mouth indicated the use of

(Ed. Note.-For cases in point, see vol. 22, the acid, still, if the evidence had shown with

Cent. Dig. Executors and Administrators, 5 out dispute that the acid was used and death | 2205.1

* Rehearing denied, 77 N. E. 960.

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