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Co. v. Meyers, supra: "But conceding, without deciding, that the appellee's intestate had a right to go on the railroad track of appellant for the purposes named, that did not absolve him from the duty to exercise due care for his own safety." The burden was on appellee to show that the deceased exercised such care. Railway Co. v. Howard, 124 Ind. 280, 24 N. E. 892; Railroad Co. v. Hill, 117 Ind. 56, 18 N. E. 461; Railway Co. v. Stommel, 126 Ind. 35, 25 N. E. 862; Railway Co. v. Hammock, 113 Ind. 1, 14 N. E. 737; Railway Co. v. Hedges, 118 Ind. 5, 20 N. E. 530. It was said in Hathaway v. Railway Co., 46 Ind. 25, that: "When a person crossing a railroad track is injured by a collision with a train, the fault is prima facie his own; and he must show affirmatively that his fault or negligence did not contribute to the injury, before he is entitled to recover for such injury." As was said in Railroad Co. v. Butler, 103 Ind., at page 40, 2 N. E., at page 138: "This presumption is at least sufficient to require from him an explanation of his relation to the occurrence, and an affirmative showing that the circumstances were such, and his conduct such, that he was not in fault." Here the evidence shows that the appellant's intestate could have both seen and heard the backing train that collided with him and Boles, and killed them, if he had attentively listened and looked. Under such circumstances the law will assume that he actually saw what he could have seen if he had looked, and heard what he could have heard if he had listened. Cones v. Railway Co., 114 Ind., at page 330, 16 N. E., at page 639. Under such a state of the evidence the trial court did not only not err in directing a verdict for the defendant, but did the only thing which it could do without erring. Hence there was no error in overruling the motion for a new trial. The judgment is affirmed.

HOWARD, C. J., took no part in this deci

sion.

(142 Ind. 276)

HAMILTON v. STATE. (Supreme Court of Indiana. Oct. 15, 1895.) LARCENY-INDICTMENT-SUFFICIENCY OF Evi

DENCE.

1. Under Rev. St. 1894, § 2007 (Rev. St. 1881, § 1934), making the felonious taking of the property of another larceny, an indictment alleging that defendant "feloniously" took the property of another is a sufficient allegation that he took it with the intent to deprive the owner of it.

2. On prosecution for larceny, evidence that complainant was drinking with defendant, one of several tramps congregated in a saloon; that defendant saw that complainant had money, and where he kept it; that when the last drink was taken, before the tramps left, defendant crowded in between complainant and the saloon proprietor; that, three minutes after the tramps left, complainant told the proprietor that his money was taken; that defendant endeavored to escape,-is insufficient to support a conviction.

Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

Daniel Hamilton was convicted of larceny, and appeals. Reversed.

John W. Talbot, for appellant. Oliver M. Cunningham and Wm. A. Ketcham, Atty. Gen., for the State.

HACKNEY, J. The appellant was prosecuted and convicted, in the circuit court, upon an information charging that he, with others, on the 18th day of March, 1895, at, etc., did "unlawfully and feloniously take, steal, and carry away, of the personal property of Jacob Miller, sixteen dollars in money, then and there of the value of sixteen dollars, contrary to the form of the statute," etc.

The action of the circuit court in overruling appellant's motion to quash the information and his motion for a new trial is assigned as error. The sufficiency of the information is questioned because of the absence of an allegation that the money was taken with intent to deprive the owner of it. The charge is substantially in the language of the statute defining the offense. Rev. St. 1894, § 2007 (Rev. St. 1881, § 1934). This ordinarily, is sufficient. Smith v. State, 85 Ind. 553; Bates v. State, 31 Ind. 72; Malone v. State, 14 Ind. 219. The word "feloniously," employed in the charge, as said in Scudder v. State, 62 Ind. 13, “qualified and rendered criminal the * acts." That word, as it is used in the statute defining the offense of larceny, was intended to supply that element of the ordinary definition of larceny implying criminal intent, and its use in the information was, for the same purpose, entirely sufficient.

That the conviction was not supported by the evidence is next pressed upon our attention with much earnestness, and we have carefully read all of the evidence in the record. It was disclosed that the appellant and another young man were tramping through St. Joseph county, when they came upon six other tramps, with whom they remained over the night of March 17th, and the next morning took the road with their newly-chosen comrades. At about 9 o'clock, of the forenoon of that day, the eight men reached the village of Littleton, in said county, and entered Rhinehart's saloon, where they remained until near noon. During their visit to the saloon, the prosecuting witness, Jacob Miller, visited the saloon twice, and on the second visit remained until the tramps went away. Miller and the tramps drank frequently and played cards together; and just before the convivial party dispersed, while standing at the bar, taking the final drink, the appellant pressed in against Miller, on the right, and between him and one Gross, who stood very near. It is not clear that it was necessary for the appellant to do so that he might reach the bar, but at that point he secured his glass and took the drink. When Miller went to the bar on this occasion, he had in a purse,

kept in a pocket on the right hip, from $15 to $17 in money, consisting of one $10 bill, one $2 bill, and some silver money. That Miller had money in that pocket the appellant had an opportunity to know. When this last drink had been taken, the appellant and his comrades left the room, and went to Bremen, a point some six miles distant, leaving Miller and some others in the saloon. After the departure of the tramps, some two or three minutes, Miller went out of the building to an outhouse, and, after he had been there from three to five minutes, he discovered that his purse and money were missing. Returning to the saloon, he remained some time, when he told his friend Gross that the "hobos" had taken his money, whereupon he and Gross drove to Bremen, where a posse was organized and armed, and went out to arrest the tramps. The tramps were soon overtaken, and a number of shots were fired, ranging somewhere from 50 to 400, and whether by the posse only or by the posse and the tramps is in doubt; but, during the storm of shot, the appellant attempted to scale a fence, and reach the nearest thicket beyond. This attempt was frustrated, and the appellant and six others of his comrades were arrested. This, we think, is a fair statement of all of the evidence in the record upon which the state could rely to convict the appellant of the alleged crime, or to prove that a theft was committed. We have not in this statement attempted to weigh conflicts in the evidence, though there are a few which are of but little importance, but we have stated the facts as they appear most favorable to the appellee. In our opinion, the facts fall short of establishing conclusively the appellant's guilt. The facts do coincide with the conclusion of guilt, but they do not exclude every reasonable hypothesis of innocence. They show a possible opportunity to have picked the pocket of Miller, but even this possibility is not enhanced by any fact which points surely and unerringly to the conclusion that the purse was taken from the pocket. The discovery by Miller, after the appellant had forced in between him and Gross, that he had lost his purse, was after the final drink, was after the appellant had gone from the saloon some minutes, and after Miller had gone to an outhouse and remained some minutes longer. If the possible opportunity mentioned had been accompanied by any act indicating an effort on the part of the appellant to hide the purse, or if money of the character of any of that lost had been found in the possession of the appellant when arrested, such fact would have aided the conclusion that the money had been stolen, and that the appellant was the thief. If the evidence had excluded the hypothesis that no other than the appellant had an opportunity to take the money, and that, instead of its having been taken, it had been dropped from Miller's pocket upon the floor, or while going to the outhouse, or in the outhouse, the case could have rested upon a

stronger support. Instead of the evidence so showing, it fails to establish any search for the missing purse, and shows affirmatively that, at the time it is claimed the appellant pressed between Miller and Gross, there were several others crowding about Miller.

Where the evidence leaves standing some reasonable hypothesis of innocence, there can be no conviction; and, when the record discloses that fact to the appellate tribunal, a judgment of conviction cannot be affirmed. It is not the rule that this court will not pass upon the sufficiency of the evidence to support the finding of the lower court, but the rule is, as often declared, that this court will not weigh the evidence to pass upon conflicts therein, and will not disturb a finding which has evidence sufficient to support it when all contradictions and explanations of such evidence are disregarded. The transcript of the evidence in this case does not suggest a careful and accurate stenographic report of the testimony, and possibly there are omissions of evidence, upon which the able and learned judge of the lower court acted. However this may be, we are governed by the record as we find it. The judgment of the circuit court is reversed, with instructions to grant the appellant's motion for a new trial, and the warden of the State's Prison North is directed to return the appellant to the sheriff of St. Joseph county.

HOWARD, C. J., did not participate in this

case.

(142 Ind. 280)

CITY OF HUNTINGTON v. GRIFFITH. (Supreme Court of Indiana. Oct. 16, 1895.) CHANGE OF STREET GRADE-PRIOR ESTABLISHMENT OF GRADE-ACCEPTANCE OF CITY CHARTER BY TOWN-EFFECT-BILL OF EXCEPTIONS.

1. The acceptance of a city charter by a town does not impliedly work an adoption by the city of street grades established by the town, so that the city cannot change such grades without compliance with Rev. St. 1881. §3073 (Rev. St. 1894, § 3508), forbidding a city to change a street grade legally established by it unless the damages are first assessed and tendered to the abutting owners. 41 N. E. 8, affirmed.

2. Where the clerk certifies that the bill of exceptions contains a copy of the longhand manuscript of the evidence, such evidence, though not previously filed, is properly in the record.

On rehearing. Denied.

For former opinion, see 41 N. E. 8. Kenner & Lesh, for appellant. J. M. Hatfield and B. F. Ibach, for appellee.

HACKNEY, J. In her petition for a rehearing the appellee earnestly insists that the evidence disclosed the establishment, prior to September 7, 1877, of a grade for the street in question, both by the action of the former town, adopted impliedly by chartering as a city under the statute, and as proven by the recitals of the ordinance of September

7, 1877. As held in the original opinion, the acceptance of a city charter does not impliedly work an adoption by the city of street grades established by the former town in the sense that, under the statute creating a liability, the city may not establish a grade. City of Wabash v. Alber, 88 Ind. 428. The recitals in the ordinance of September 7, 1877, not only do not establish or purport to establish a grade, but they are far short of the evidence required to show that the city had taken, by corporate action, the steps necessary to establish such alleged prior grade. See Mattingly v. City of Plymouth, 100 Ind. 545. If, prior to September 7, 1877, as the trial court found, the city had established a grade for the street in question, that fact should have been proven by showing the authoritative acts and proceedings of the common council in adopting the former town grade or in designating a new grade.

Again, it is insisted that the evidence is not in the record, first, because the bill of exceptions contains the original longhand manuscript of the evidence, which, it is further claimed, was not filed; and, second, because the only certificate that the bill contains all of the evidence is that of the stenographer. As to the first objection, we will say that the record discloses that the bill of exceptions was filed within the time allowed, and the clerk certifies, not that the record contains the original, but that it contains copies of all proceedings, etc. It is perhaps true, as counsel suggest, that to bring the original longhand manuscript into the record, instead of by a copy of the bill of exceptions, it must appear to have been filed. We must accept, however, the clerk's certificate as conclusive that the bill of exceptions is in the transcript by copying the original, and we are not permitted to take the statements of counsel that the transcript contains the original and not a copy. As to the second objection to the bill, counsel are mistaken. It clearly appears in the certificate of the judge that the bill contains all of the evidence given in the cause. The petition for a rehearing is overruled.

(144 Ind. 1)

WILKEN et al. v. YOUNG et al. (Supreme Court of Indiana. Oct. 16, 1895.)

APPEAL-RETAXATION OF COSTS.

Costs involved in bringing up the transcript will not be retaxed on motion of appellee, after reversal, where it appears that appellant paid the whole expense of bringing it up. Appeal from circuit court, Allen county.

Action by John H. Wilken and others against Mary M. Young aud another. Judgment for defendants, and plaintiffs appealed. The judgment was reversed, and appellees moved for a modification of judgment and a retaxation of costs. Denied.

S. M. Hench and Homer C. Hartman, for appellants. W. G. Colerick and M. V. B. Spencer, for appellees.

PER CURIAM. And afterwards, to wit, on the 16th day of October, 1895, the court, being advised in the premises, overruled the motion to modify judgment and retax costs, with an opinion per curiam, as follows: It being shown to the court that Herman Wilkins, coappellant herein, paid the costs of the transcript in the appeal of said cause to this court, and he having secured a reversal of the judgment, so far as the same affected his interest to the real estate involved, and it further appearing that, in order for said appellant to obtain the relief sought in this appeal, it was necessary for him to have certified to this court the transcript of all proceedings of the lower court, it is therefore ordered that appellees' motion to modify the judgment and retax the costs herein be, and the same is hereby, overruled, at their costs.

(142 Ind. 329)

BEATTY V. COBLE. (Supreme Court of Indiana. Oct. 18, 1895.) CONTRACT NOT TO PRACTICE MEDICINE - INJUNC TION-PLEADING-APPEAL-MOTION

TO DISMISS.

1. Where a physician contracts with another physician to "retire from the practice of medicine and surgery" in a certain city, and ceases to practice for several months, injunction will lie to restrain subsequent practice by him in such city, though the contract contains no express provision against a resumption of prac tice, or any provision as to the length of the retirement.

2. The complaint in an action to enjoin vio lation by a physician of a contract not to prac tice medicine within certain territory need not show that the contract was based on adequate consideration.

3. In an action to enjoin a physician from practicing in a certain city, where the complaint set up a contract not to practice, in consideration of the purchase by plaintiff of defendant's residence for a certain sum, an answer averring that at the time the contract was made defendant was not the owner of such residence, that it belonged to defendant's wife, and that defendant did not receive the consideration paid for the deed, is insufficient as a plea of want of consideration.

4. The fact that pending appeal by a physician in an action to restrain another physician from practicing in a certain city appellant moved to another city, is no ground for dismissing the appeal, where it appears that the two cities are in neighboring counties, and appellant has also retained his practice in the former city.

Appeal from circuit court, Owen county; James H. Jordan, Judge.

Action by William H. Beatty against Jacob Coble for an injunction. From an order overruling a demurrer to the answer, and from a judgment for defendant, plaintiff appeals. Reversed.

Fowler & Spangler, for appellant. Willis Hickam, for appellee.

MCCABE, J. The appellant and appellee are practicing physicians and surgeons. The appellant sued the appellee to enjoin him from a violation of the following contract: "Spencer, Indiana, Nov. 2, 1891. Whereas, I am

contemplating removing from Spencer, and | arable damage to plaintiff in his future prac

whereas, William H. Beatty, a practicing physician of Morgan county, is desirous of locating in Spencer, Indiana: Now, therefore, in consideration of the purchase of my property by said William H. Beatty, I hereby agree that within a reasonable time, and as soon as I can arrange my business and conveniently leave my said field of practice, I will retire from the practice of medicine and surgery at Spencer, Indiana. Jacob Coble." There was a demurrer to the second paragraph of the answer, for want of sufficient facts, overruled. A trial of the issues formed resulted in a finding and judgment for the defendant over appellant's motion for a new trial. Error is assigned on the action of the court in overruling said demurrer and in overruling the motion for a new trial. The sufficiency of the complaint is called in question by the appellee, as he may, in his defense of the ruling on the demurrer to the second paragraph of the answer, as a bad answer is good enough for a bad complaint. Appellee also questions the sufficiency of the complaint by assigning for cross error that the circuit court erred in overruling a demurrer thereto for want of sufficient facts.

tice, the defendant being wholly insolvent. That the plaintiff has duly performed all the conditions of said contract. Prayer for an injunction.

The objection urged to the complaint is that the contract on which it is founded contains no express provision that the appellee shall not afterwards resume his practice as formerly. Appellee's counsel cite us to many au thorities in support of this objection, the substance of all of which is summed up in one of them, namely, High, Inj. § 1169. It is there said: "Some conflict of authority exists upon the question whether, in the absence of an express agreement against resuming business in a given locality upon the sale of a business with its good will, equity should interfere by injunction to prevent defendant from so resuming. The better doctrine, however, is that to warrant a court of equity in interfering by injunction in such cases there must be an actual contract, and the court will not imply a covenant on the part of one who sells the good will of a trade or business not to carry on the same trade or business in that locality. It follows, therefore, that where one has sold the good will of his trade without any express covenant preventing him from resuming the trade in that vicinity, he will not be enjoined from resuming it." It will be found that this principle is the outgrowth of sales of stock in trade in an established house or place of business, with the good will of customers in the habit of doing business at that place. In such a case the sale of the stock in trade and entire business, with the good will attached, puts an end to the business of the seller, at least for the time being, without any other agreement or stipulation than the transfer of the property, both tangible and intangible. It had often been contended that such a sale carried with it an implied agreement that the seller would not resume the same business, or again engage therein, in that locality, and thereby take away from the purchaser that which he had sold to him,-the good will of the habitual customers of such business. finally became settled that the mere sale of the goods, stock in trade, and good will attached, without any express stipulation not to resume or again engage in the business in that locality on part of the seller, were not sufficient to warrant a court of equity in restraining the seller from again engaging in such business in the same locality. 10 Am. & Eng. Enc. Law, 945-947, and authorities there cited; 3 Pars. Cont. 368; Wat. Spec. Perf. § 35; Rawsom v. Pratt, 91 Ind. 9; Beard v. Dennis, 6 Ind. 203; High, Inj. §§ 1169, 1180; Eisel v. Hayes (Ind. Sup.) 40 N. E. 119. But the contract before us, aside from the stipulation in relation to leaving and retiring from appellee's field of practice, caused no interruption of his business, as in case of a sale of an entire stock in trade. That contract must be construed or interpreted from the language

It

The material facts alleged in the complaint are: That both parties were practicing physicians and surgeons, the defendant in Spencer, Ind., and the plaintiff in Morgan county, Ind. And in consideration that plaintiff would purchase of said defendant his residence in Spencer, in Owen county, Ind., for the sum of $1,500, said defendant agreed with plaintiff that he would leave his field of practice which was coextensive with said county, and retire therefrom, and leave the same to the plaintiff, making the written contract above set out an exhibit and a part of the complaint. That, in pursuance of said agreement, he did purchase of said defendant said property for $1,500, and paid said defendant said sum. That said contract was entered into, and said purchase made, with the design and intention of plaintiff engaging in the practice of his profession at said town of Spencer, and in the former field of practice of said defendant, and without having the competition of said defendant therein. That defendant did, within a reasonable time thereafter, to wit, August 15, 1892, retire from his field of practice at said town of Spencer, and did remove from said town and county to a distant part of the state. That plaintiff has ever since been engaged in the practice of his profession, and is now so engaged in the former field of practice of said defendant. But that defendant, wholly disregarding his said contract and agreement with said plaintiff, and in violation thereof, did, on February 1, 1894, remove back to the town of Spencer, and opened an office, and has ever since been engaged in the practice of his profession at said town of Spencer, and in his former field of practice. That such violation of said contract is likely to and will result in great and irrep-employed therein, and from the circumstances

surrounding the contracting parties, and thus get at their intention as expressed in the instrument. It is conceded by the appellee that the express stipulation of the contract required him to retire from the practice at Spencer. But he thinks a good-faith retirement for a year and a half was a sufficient compliance with that stipulation. So that both parties construe the contract to be and contain an express agreement by appellee to leave and retire from that field of practice. The plain meaning and import of that is that the appellee agrees not to engage in the practice in that field, without limitation as to time. Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802. The want of such definite limit is no objection to such a contract. Eisel v. Hayes, supra. If that express stipulation is complied with by a good-faith retirement for eighteen months, then it would be complied with by one month's retirement, and, if one month, then one day, or even a shorter period. So that it is clear that such a construction destroys the stipulation entirely, and defeats the expectation and intent of both parties. Contracts should be so construed as to uphold rather than defeat them. Irwin v. Kilburn, 101 Ind. 113, 3 N. E. 650. The stipulation here means that the appellee will not practice his profession in the territory named. Such contracts have been uniformly enforced by injunction. Cook v. Johnson, 47 Conn. 175; Mallan v. May, 11 Mees. & W. 653; Clark v. Crosby, 37 Vt. 188; Smalley v. Greene, 52 Iowa, 241, 3 N. W. 78; 10 Am. & Eng. Enc. Law, 945, 946, and authorities there cited. It is contended that the complaint is bad because it does not disclose an adequate consideration. It seems to be the settled law now in such cases that the adequacy of the consideration will not be inquired into. It is sufficient if some legal consideration appears. Duffy v. Shockey, 11 Ind. 70; 22 Am. Law Rev. 887, 888, and authorities there cited; Eisel v. Hayes, supra; Greenh. Pub. Pol. 718, 719, and authorities cited. The complaint was therefore sufficient.

The material facts alleged in the second paragraph of the answer are that the appellee, at the making of said contract, was not the owner of the property conveyed to the plaintiff, but the same was the sole and separate property of defendant's wife, Marietta Coble, which was built for and used as a residence, and not a physician's office; and no part of the consideration for said conveyance was ever received by defendant, and that no consideration ever passed between plaintiff and defendant for the execution of the agreement sued on. This pleading does not state facts enough to show a want of consideration, for which it was evidently and confessedly pleaded. Laundry Co. v. Lockwood (Ind. Sup.) 40 N. E. 677, and authorities there cited. A motion is made to dismiss this appeal on the ground, made to appear in affidavits, that since the appeal was taken the appellant has located in the town of Worthington, in Green county,

to practice his profession, which reaches into portions of Owen county, the appellee's former field of practice, in which parts appellant still continues to practice. These facts do not deprive the appellant of the right to continue to prosecute his appeal. No authority is cited to support the motion, and we know of none. The circuit court erred in overruling the demurrer to said answer. The judgment is reversed, with instructions to sustain the demurrer to the second paragraph of the answer.

JORDAN, J., took no part in this decision.

(144 Ind. 196) HARLESS v. HARLESS et al. 1 (Supreme Court of Indiana. Oct. 16, 1895.) COMPETENCY OF EVIDENCE PRIVILEGED COMMUNICATIONS-OBJECTIONS TO EVIDence. 1. The fact that a husband is a party defendant to a suit by his wife to enforce a lien for taxes paid under a void tax deed does not render inadmissible evidence of an agreement made by him as her agent with the holder of the legal title, by which she was to receive the rents and profits, and out of them repay sums paid by her for the tax deed and other taxes.

2. An answer by a witness, responsive to a question put to him, cannot be objected to by the questioner.

3. Under Burns' Rev. St. 1894, § 505 (Rev. St. 1881, § 497), making confidential communications between attorney and client privileged mat ter, the fact that the relation of attorney and client once existed does not preclude such attor ney from giving evidence of nonprofessional communications subsequently made to him by such client.

4. Where the objections on which a motion to strike out all the evidence given by a witness do not cover the entire evidence, the motion is properly denied.

Appeal from circuit court, Madison county; Alfred Ellison, Judge.

Action by Elizabeth Harless against Wesley Harless and others to recover taxes paid under a void tax deed. From a judgment for defendants, plaintiff appeals. Affirmed.

Diven & McMahan, for appellant. F. B. Faster, for appellees.

MCCABE, J. The appellant sued the appellees in a complaint of two paragraphs to quiet her title to certain real estate in Madison county. The issues formed upon the complaint and a cross complaint were tried by the court, resulting in a finding and judgment for the defendants over a motion for a new trial. Overruling the motion for a new trial is the only error assigned here. The errors complained of in the motion for a new trial are that the finding is contrary to law and the evidence, and is not sustained by sufficient evidence, and that the court erred in "permitting Henry C. Ryan, a witness for the defendant, to testify, over objection of plaintiff, as to a conversation he had with Adam Harless * in the absence of the plaintiff, and while said Ryan was attorney for said Harless, and considering matters and 1 Rehearing denied.

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