Clevenger v. Matthews-165 Ind. 689. $2,400, with interest at six per cent per annum until paid; that Claude Matthews and appellant joined in the execution of said note as accommodation indorsers by writing their names across the back thereof; that appellant was and has since remained a resident of Ohio, but that the note was executed in the city of Indianapolis, where the principal office of said corporation was at all times, and is now, maintained; that said corporation became insolvent during the year 1893, and has so remained, so that no part of the debt evidenced by said note could have been at any time since the last-named date collected; that appellant had no knowledge of such insolvency, and no notice of the nonpayment of said note, and supposed said note had been paid, until May or June, 1902, when the payee thereof notified him that it was unpaid, and that he would be required to pay it; that said Claude Matthews died intestate in the year 1898, in Vermillion county, Indiana; that an administrator was appointed, and the estate fully settled, the administrator making his final report, which was approved by the circuit court of said county on October 5, 1899, and the administrator discharged; that in final settlement the surplus of said estate for distribution after the payment of debts and expenses of administration was $8,393.88, which sum was equally distributed among appellees; that said Claude Matthews at his death was the owner in fee simple of 1,700 acres of land in said county of the value of $65,000, the title to which land, upon his death, vested in appellees, who then and there became the owners thereof by inheritance, each taking title to one-third thereof; that appellant, after said demand was made upon him for the payment of said note on the 2d day of August, 1902, to prevent suit being brought thereon, and to save the costs thereof, was compelled to and did pay to said Henderson $3,500 in payment of principal and accrued interest thereon; that said Henderson surrendered and delivered up the same to appellant; that no part of said amount has been paid to him by any Clevenger v. Matthews-165 Ind. 689. person, but that there is due from the defendants, as widow and heirs of said Claude Matthews, the sum of $1,750, with interest from the date of payment, and that this action is brought against them for contribution to him of the amount of said note and interest for which said Claude Matthews and his estate were legally liable. Wherefore he prays judgment for $2,000, and that the same be declared a lien upon all property inherited by the defendants as aforesaid. Demurrers were sustained to the complaint, and, the plaintiff declining to amend, judgment was rendered against him for costs. The only question to be decided is this: Under the law of this State, can a nonresident paying surety enforce contribution against the heirs and distributees of a deceased cosurety after the lapse of two years from the final settlement of the latter's estate? A simple-contract creditor, whose debt remains unpaid after the final settlement of his deceased debtor's estate, has no right at common law to proceed against the heirs 1. and distributees of his debtor, even though they have received real estate and assets from the hands of the administrator as inheritances. Fisher v. Tuller (1890), 122 Ind. 31, 35; 14 Cyc. Law and Proc., 184; 8 Am. and Eng. Ency. Law (2d ed.), 1098. All the right, then, that an unpaid creditor of the ancestor has to pursue property in the hands of heirs is conferred by the following statute: "The heirs, devisees, and 2. distributees of a decedent shall be liable, to the extent of the property received by them from such decedent's estate, to any creditor whose claim remains unpaid, who, six months prior to such final settlement, was insane, an infant, or out of the State; but such suit must be brought within one year after the disability is removed: Provided, that suit upon the claim of any creditor out of the State must be brought within two years after such final settlement." $2597 Burns 1901, $2442 R. S. 1881. The Clevenger v. Matthews-165 Ind. 689. right here bestowed by the legislature, being in derogation of the common law, to be enjoyed, the plaintiff must bring himself, without excuse, fully within the conditions upon which the right rests. As said by the court in Fisher v. Tuller, supra, on page 36: "The statute which gives the right contains its own limitations, and we can engraft no exceptions upon it. The language is clear and sweeping, and no exceptions are created; nothing remains for the courts but to apply the law as it is written." Here it is averred that the original debt became due November 8, 1892; that the corporation principal became insolvent in 1893, and paid no part of the note; that 3. five years after the insolvency of the corporation 1898-Matthews died, and in 1899 his estate was finally settled and distributed to the heirs. This suit was begun in March, 1903, more than two years after the final settlement of the cosurety's estate. The averments of appellant that he was a nonresident; that he had no knowledge of the insolvency of the corporation, and no notice of the nonpayment of the note, and supposed until June, 1902, when the payee demanded payment, that the note had been paid, have no effect to regain the right which had been lost because not exercised within the limitations of the statute. The facts are ruled by the law as declared in Fisher v. Tuller, supra. See, also, Cincinnati, etc., R. Co. v. Heaston (1873), 43 Ind. 172; King v. Snedeker (1894), 137 Ind. 503; Ratcliff v. Leunig (1868), 30 Ind. 289; Freeman v. State (1862), 18 Ind. 484. It is contended that in some of our earlier cases, notably Voris v. State, ex rel. (1874), 47 Ind. 345 (against heirs of deceased surety on guardian's bond), Blair v. Allen (1877), 55 Ind. 409 (against heirs for breach of ancestor's warranty), Stevens v. Tucker (1882), 87 Ind. 109 (against heirs of surety on guardian's bond), and also, as following these cases, in Harmon v. Dorman (1893), 8 Ind. App. 461 (against devisces for breach of testator's warranty), Whit 165 694 f166 341 Pittsburgh, etc., R. Co. v. Higgs—165 Ind. 694. tern v. Kirk (1903), 31 Ind. App. 577 (against heirs for breach of ancestor's warranty), a different view of the law has been expressed. Since certain covenants run with the land, we think at least three of the cases mentioned are distinguishable, but, so far as any of them may be said to conflict with the law as declared in Fisher v. Tuller, supra, and in this case, said cases from this court are modified, and those of the appellate court disapproved, to the extent of said conflict. Judgment of the Superior Court of Marion County is affirmed. PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS [No. 20,594. Filed December 5, 1905. Rehearing denied January 1. CARRIERS. Railroads. - Passengers.-Negligence. Contributory. Where the evidence shows that plaintiff, a passenger on defendant's passenger-train, was violently thrown from his seat in the coach and injured by a collision of such train with a freight-train on the same road, and no explanation thereof is made by defendant, its negligence and plaintiff's freedom from contributory negligence are established. p. 701. 2. PLEADING. - Complaint.-Railroads.-Carriers.-Torts.-Contracts. A complaint by a passenger showing that defendant railroad company was a passenger carrier for hire; that he had for a certain consideration purchased a ticket entitling him to ride as a passenger thereon; that by reason of defendant's negligence in permitting a collision of its passenger-train and a freight-train plaintiff was injured, is in tort and not on a contract, no special contract being alleged. p. 701. p. 702. 3. SAME.-Answer.—Carriers.—Railroads.-Contracts.-Limiting Pittsburgh, etc., R. Co. v. Higgs-165 Ind. 694. 5. CARRIERS.-Passengers.-Who Are.-Contracts.-Where a person purchases a ticket for passage on a railroad and is accepted as a passenger thereon, he is invested with all the legal rights of a passenger for hire, and if such ticket contains reasonable conditions assented to by such person it constitutes a contract. p. 704. 6. SAME.-Passengers.-Coupon Tickets.-The purchase of a coupon ticket from the Northern Pacific Railroad Company at Spokane, Washington, to Nicholasville, Kentucky, a part of which entitled plaintiff to ride from Chicago, Illinois, to Cincinnati, Ohio, over defendant's road, constitutes plaintiff a passenger for hire on defendant's road, defendant having accepted such coupon for its road. p. 705. 7. SAME.-Passengers.-Coupon Tickets.-Defendant's Receipt of Part of Price. It is not necessary for plaintiff to prove the exact amount defendant carrier received of the purchase price of a coupon ticket on which he was riding when injured by defendant's negligence. p. 705. 8. PLEADING.-Proof.-While the plaintiff must recover on the cause alleged in his pleadings, he is required to prove only the substance of the material facts constituting his cause of action. p. 705. 9. CARRIERS.-Contracts.-Negligence.-Relief Against.-A common carrier can not by contract relieve itself from its negligence toward its passengers. Payne v. Terre Haute, etc., R. Co., 157 Ind. 616, distinguished. p. 705. 10. TRIAL. Instructions.-Questions Not Before Jury.—Where the verdict is right on the evidence, giving or refusing certain instructions on a question not really involved in the case is harmless. p. 706. 11. CARRIERS. — Railroads. — Collision. — Negligence. — Res Ipsa Loquitur.-Where a passenger proves an injury by a collision of his train with another of defendant company's trains, a prima facie case of negligence is established, and it is defendant's duty to overcome same by proof that such accident could not be avoided by the exercise of the highest practical care and diligence. p. 706. 12. TRIAL.-Burden of Proof.-Carriers.-Negligence.-The burden of proof of defendant carrier's negligence remains on the plaintiff throughout the trial. p. 708. 13. SAME. Instructions.-Misleading.-An instruction which, though erroneous, does not mislead the jury to defendant's injury is not reversible. p. 708. 14. SAME.-Right Result.-Where the trial court reached a right result, its judgment will be affirmed. p. 708. |