(123 N.E.) held not to be within the condition of the policy. PER CURIAM. Four judges failing to concur in an opinion in this cause the same The case of Newman v. Standard Accident is hereby transferred to the Supreme Court, Ins. Co., 192 Mo. App. 159, 177 S. W. 803, also under the provisions of section 1399, Burns cited and insisted upon by appellant, is not | R. S. 1914. in point; for in this case also the point of severance was fixed as to its minor limits, and plaintiff was held, as to his injury, not to be within the terms of the policy, the severance having been below the point fixed in the policy. (70 Ind. App. 203) DELASKI v. KOVACICH et ux. (No. 9854.) May 14, 1919.) 1. APPEAL AND ERROR ~1002 QUESTIONS The views we have expressed as to the (Appellate Court of Indiana, Division No. 2. meaning of the clause of the constitution of appellant society (section 2, art. IX) finds support in the following cases: Sneck v. Insurance Co., 88 Hun, 94, 34 N. Y. Supp. 545; Sheanon v. Pacific, etc., Ins. Co., 77 Wis. 618, 46 N. W. 799, 9 L. R. A. 685, 20 Am. St. Rep. 151; Beber v. Brotherhood, etc., 75 Neb. 183, 106 N. W. 168, 121 Am. St. Rep. 782. Complaint is also made of the action of the court in giving certain instructions and the refusal to give others tendered by appellant. The instructions given, taken as a whole, fairly state the law, and are in harmony with the views herein expressed. There was no error in refusing to give the tendered instructions which were refused. We find no reversible error in the record. [2] The death of appellee since the cause was submitted having been suggested in the record, the cause is therefore affirmed, as of the date of the submission. Judgment affirmed. PITTSBURG, C., C. & ST. L. RY. CO. v. MARBALE. (No. 9833.)* Where there is a sharp conflict in the evidence, a finding of the jury thereon is binding on the Appellate Court. 2. HUSBAND AND WIFE 208 - ACTION BY (Appellate Court of Indiana. May 15, 1919.) against the appellant for compensation for the care and support of Louise Delaski, an 8 year old child of the appellant. The appellees in their complaint allege that appellant expressly agreed to pay them for the care and support of said child, and that he has failed and refused to do so. The issues were closed by a general denial. Trial by jury, verdict and judgment for appellees. Appellant filed a motion for a new trial, Appeal from Circuit Court, Clark Coun- which was overruled. ty; James W. Fortune, Judge. Action by Nathaniel Marbale against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From judgment for plaintiff, defendant appeals. Cause transferred to the Supreme Court. M. Z. Staunard and Jonas G. Howard, both of Jeffersonville, for appellant. Frank S. Roby, of Indianapolis, H. W. Phipps, of Jeffersonville, and Burdette C. Lutz, of Charlestown, for appellee. [1] The appellant contends that the verdict is contrary to law. There was a sharp conflict in the evidence as to whether there was an agreement on the part of appellant to pay for the care of said child, but that was a question for the jury, and they, by their verdict, found that there was, and that finding is binding on us. The evidence shows that the appellant is the stepfather of the appellee Helen. Appellant's wife who was the mother of Helen and Louise, died in July, 1911, leaving four For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Transferred to Supreme Court. See 124 N. E. 393. Superseded by opinion 126 N. E. 849. Rehearing denied. (No. 10342.) (70 Ind. App. 182) children, the fruit of her marriage to appellant to wit: Louise aged about 4, another BROWN v. FARMER'S STATE BANK et al. girl aged about 12, and two boys, aged 6 and 15. The appellees were married and living in Hegewish, Ill. On the day appellant's wife was buried, appellant had a talk with appellee Helen in the presence of her husband about the care of the children, in which appellant told Helen to take Louise, and he would pay her, to which Helen agreed. Appellant and appellee Peter had no talk or conversation relating to the care or pay for keeping the child. The conversation was between the appellee Helen and the appellant in the presence of appellee Peter. Following this conversation the appellees took the child home with them, and boarded and clothed her for a period of nearly 5 years, and have received no compensation for such service. [2] The appellant insists that the agreement proved was an agreement between appellant and the appellee Helen, and that there is therefore a variance between the pleadings and the proof; that proof of an agreement to pay one of the appellees will not support a verdict in favor of both of them. Section 255, Burns' R. S. 1914, provides that a married womar may sue alone when the action concerns her personal property. Section 7867, Burns' 1914, provides that a married woman may carry on any trade or business and perform any labor or service on her sole and separate account, and the earnings and profits of any married woman accruing from her trade, business, service, or labor other than for her husband or family shall be her sole and separate property, If the services and labor which appellee Helen performed for the appellant were rendered on her sole and separate account, the earnings became her sole and separate property, and she might have maintained an action in her own name therefor under said section 255. The language of the statute is permissive, and does not prohibit the husband joining with her in the prosecution of an action to recover compensation for her services. As said by the Supreme Court in Martindale v. Tibbetts, 16 Ind. 200: "This statute we regard as rendering it optional to bring the suit in the name of the wife alone, or that of the husband and wife, where the action concerns her separate property." See, also, Ohio, etc., Ry. Co. v. Cosby, 107 Ind. 32, 7 N. E. 373; Roller v. Blair, 96 Ind. 203; City of New Albany v. Lines, 21 Ind. App. 380, 51 N. E. 346. (Appellate Court of Indiana, Division No. 2. May 13, 1919.) 1. INSURANCE 586-RIGHT OF BENEFICIABY-VESTED INTERESTS. The beneficiary in a life insurance policy has a vested interest which cannot be changed without his consent. 2. INSURANCE 208-ORAL ASSIGNMENT. Where a husband or parent takes out a policy of insurance payable to his estate, he can make an assignment thereof either orally or in writing. 3. FRAUDULENT CONVEYANCES 92 SURANCE 214-INFORMAL ASSIGNMENT. IN Where insured and his father, the beneficiary, talked about changing policy so as to make insured's wife the beneficiary, but, on suggestion of the cashier of a bank holding the policy as collateral security that it would be better not to make any change until after the note which the bank held was paid, nothing was done, lutely to the father, although he had told inon death of insured the money belonged absosured that in case of insured's death he would sign the insurance over to the wife, and the father could not, after insured's death, make a gift of such proceeds to insured's wife to the detriment of the father's creditors. MCMAHAN, J. The appellee, the Farmer's State Bank of Ossian, Ind., filed its verified complaint supplemental to execution against the appellee Thomas M. Brown. It was alleged in the complaint that the appellant and the appellee People's State Bank had property and money in their possession belonging to Thomas M. Brown, and asked that they be required to answer concerning the same. The appellees Beatty & Doan Company and Fred N. Sharpe were also named in said complaint as having judgments against Thomas M. Brown, and they were required to appear and answer as to their interests in said money and property. The appellees Beatty & Doan Company and Fred N. Sharpe appeared and filed separate verified cross-complaints supplemental to execution against Thomas M. There was no error in overruling the mo- Brown, and also asking that appellant and tion for a new trial. Judgment affirmed. the People's State Bank be required to answer as to certain money alleged to be in their For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) hands which belonged to Thomas M. Brown. [ debtedness to the Wells County Bank was The cause was tried by the court which owing and unpaid when Irvin Brown died, found that the appellee Thomas M. Brown and the amount due on said policies were was indebted to the Farmer's State Bank in afterwards paid to the Wells County Bank. the sum of $241.32, to Fred Sharpe in the After paying the note to the Wells County sum of $385.55, and to Beatty & Doan Com- Bank there was $1,546.71 left of the proceeds pany in the sum of $412 on the several judg- arising from said insurance policies, which ments mentioned in the complaints; that the appellee Thomas M. Brown turned over to the appellant had prior to the filing of the the appellant, receiving nothing therefor. several complaints received and then had in her possession and under her control $1,546.15 in cash belonging to said Thomas M. Brown; that $796.17 of said money had been deposited by appellant, and was then on deposit in the said People's State Bank, and that an amount sufficient to pay and satisfy said judgments should be paid into court for that purpose. Judgment was rendered in accordance with the findings. The appellant filed a motion for a new trial on the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law. The overruling of this motion is the only error assigned. The facts are in substance as follows: On the 16th day of December, 1913, the Farmer's State Bank of Ossian recovered a judgment for $304.56 against Thomas M. Brown and Fred N. Sharpe on a promissory note executed by Thomas M. Brown and Irvin Brown and indorsed by said Sharpe. The said bank on the same day recovered a judgment against Thomas M. Brown and Beatty & Doan Company for $381.17 on a note executed by Thomas M. and Irvin Brown and indorsed by Beatty & Doan Company; that said bank on the same day also recovered a judgment against Thomas M. Brown for $124.27 on a note executed by Thomas M. and Irvin Brown; that on the 6th day of May, 1914, said bank recovered a judgment against Thomas M. Brown for $154.50 on a note executed by Thomas M. and Irvin Brown. Irvin Brown died intestate August 28, 1913, leaving as his only heirs one child and the appellant who is his widow. All of said notes were filed as claims against the estate of Irvin Brown, said estate was settled as insolvent, and nothing was paid by said estate or by Thomas M. Brown on said notes or judgments. Beatty & Doan Company, on April 5, 1915, paid the judgment based on the note indorsed by them, the amount so paid by them being $411.32, which included the costs. Fred N. Sharpe on April 5, 1915, paid the judgment based upon the note signed by him, the amount so paid by him being $328.69. Irvin Brown some years prior to his death and prior to his marriage to appellant had obtained two insurance policies upon his own life, each calling for $1,000 and being payable in case of death to appellee Thomas M. Brown. Thomas M. Brown and Irvin Brown executed a note to the Wells County Bank, and said insurance policies were assigned to said bank as collateral security. The in123 N.E.-15 A short time before his death and while the policies were so held by the bank, Irvin Brown and the appellee Thomas M. Brown had talked about having the policies signed over to the appellant. Appellee Thomas M. Brown at that time told his son Irvin that in the event of the latter's death he would pay the money over to appellant. Shortly thereafter Irvin and Thomas M. Brown had a conversation with the cashier of the bank about having the transfer made. The cashier advised them to do nothing until the note was paid, and at this time Thomas M. Brown also told Irvin that in case the latter should die he would assign the insurance over to the appellant. No further action was ever taken toward changing the beneficiary named in said policies. Thomas M. Brown was a householder during all this time, entitled to an exemption as such, and did not have any property subject to execution. Appellant, after the death of her husband, promised Thomas M. Brown that she would pay the debts of her husband, and when Mr. Brown turned the proceeds arising from said insurance over to appellant he understood and believed that she would do so. All of the said notes and judgments were for the debts of Irvin Brown and for which Thon as M: Brown was surety. Appellant contends that under the facts there was an oral assignment of the policies and a constructive delivery of them to her. [1] The policies in question were ordinary life insurance policies in which the beneficiary had a vested interest, and which could not be changed without his consent. Holland v. Taylor, 111 Ind. 121, 12 N. E. 116; Mutual, etc., Co. v. Guller, 119 N. E. 173. Appellant's husband, Irvin Brown, was not the owner or beneficiary named in the policies, he did not have possession of them, and he could not assign them to appellant. In Wilburn v. Wilburn, 83 Ind. 55, the Supreme Court said: "In truth, the policy is not the property of the insured in any sense, but is the property of the beneficiary from the day of its issue, for from that time he has the whole beneficial interest." [2] The case at bar is different from those cases wherein a husband or parent takes out a policy of insurance payable to his estate. In the policies payable to his estate, the insured can make an assignment, either orally or in writing. State v. Tomlinson, 16 Ind. App. 662, 45 N. E. 1116, 59 Am. St. Rep. 335; Stewart v. Gwynn, 41 Ind. App. 320, 82 N. E. 1000, 83 N. E. 753. Action by the Baldwin Piano Company against Samuel W. Nicholas. From judgment for plaintiff, defendant appeals. Af Wm. W. Lowry, of Indianapolis, and Samuel L. Trabue, of Rushville, for appellant. John H. Kiplinger and Donald L. Smith, both of Rushville, for appellee. [3] Appellant's husband had talked about changing the policies so as to make the ap-firmed. pellant the beneficiary, but at that time the policies had been assigned to the Wells County Bank as collateral security and on the advice and suggestion of the cashier that it would be better not to make any change until after the note which the bank held was paid, nothing was done in relation to changing the beneficiary in the policies. BATMAN, P. J. This is an action in replevin commenced by appellee against appelOur conclusion is that the proceeds of the lant to recover the possession of a piano and stool. The complaint is in the usual form two policies were the absolute property of Thomas M. Brown, and that he could not, for such an action, and was answered by a after the death of the insured, make a gift general denial. On the trial the court made of such proceeds to appellant to the detri-a special finding of facts, and stated its conment of his creditors. There was no error in overruling the motion for a new trial. Judgment affirmed. (71 Ind. App. 209) NICHOLAS v. BALDWIN PIANO CO.* (No. 9834.) (Appellate Court of Indiana. May 15, 1919.) clusion of law thereon in favor of appellee. From a judgment rendered in accordance therewith, appellant has appealed, claiming that the court erred in its conclusion of law on the facts found. Appellant contends that the finding of facts shows that he had a common-law lien as an innkeeper on the property in question, which gave him a right to the possession thereof, and, that the court erred in its conclusion of law to the contrary. Appellee, on the other hand, asserts that there is no common-law lien in Indiana in favor of innkeepers, and that the conclu 1. INNKEEPERS 13-COMMON-LAW LIEN-sion of law was properly stated. GOODS IN POSSESSION OF GUEST. [1-3] The common law gives an innkeeper his guest, for board and lodging furnished the latter at his request, although the goods may not be the property of said guest, provided the innkeeper is not aware of such fact. This proviso, however, is not applicable under all circumstances where the guest By adoption of common law as part of law of Indiana, innkeepers acquired right to assert a lien upon the goods brought into his inn by their common-law lien on goods brought into the inn by a guest for board and lodging furnished the latter at his request, though the goods were not the property of the guest, provided the innkeeper was not aware of the fact, a proviso not applicable under all circumstances where the guest was the agent or servant of the owner. is the agent or servant of the owner of the 2. STATUTES 239-CHANGE IN COMMON goods. 22 Cyc. 1090. By the adoption of the common law, as a part of the law of this state, innkeepers doing business therein acquired the right to assert such a lien in all proper cases, and such right still exists unless they have been deprived thereof by legislative enactment. It is well settled in this state that it will be presumed that the Legislature does not intend by the enactment of a statute to make any change in the common law beyond what it declares, either in express terms or by unmistakable implication. Chicago, etc., R. Co. v. Luddington (1910) 3. STATUTES 239 ABROGATION OF COMMON LAW-SUBSTITUTION OR REPUGNANCY. An abrogation of the common law will be implied where a statute is enacted which undertakes to cover the entire subject treated and is clearly designed as a substitute, or where the two laws are so repugnant that both in reason175 Ind. 35, 91 N. E. 939, 93 N. E. 273. An may not stand. 4. INNKEEPERS 13 LIEN ON PROPERTY NOT OWNED BY GUEST ABROGATION OF COMMON LAW. abrogation of the common law will be implied, where a statute is enacted which undertakes to cover the entire subject treated and was clearly designed as a substitute for two laws are so repugnant that both in reathe common law in that regard, or where the 8 Cyc. 376; 26 A. & E. son may not stand. Ency. of Law, 665; 1 C. J. 991; 5 R. C. L. 815; Boston Ice Co. v. Boston, etc., Ry. Co., 77 N. H. 6, 86 Atl. 356, 45 L. R. A. (N. Appeal from Circuit Court, Rush County; S.) 835, Ann. Cas. 1914A, 1090; Drady v. Will M. Sparks, Judge. The enactment of Burns' Ann. St. 1914, 88 7848-7850, by implication abrogated the common-law lien in favor of innkeepers in Indiana, so that an innkeeper had no lien on a piano and stool which was not owned by his guest. District Court, 126 Iowa, 345, 102 N. W. 115; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. (123 N.E.) Graves v. I. C. R. Co., 126 Tenn. 148, 148 S. [ which the statute relates is fully covered W. 239; Raleigh County Bank v. Poteet, 74 thereby. It will also be observed that, unW. Va. 511, 82 S. E. 332, L. R. A. 1915B, like the common law, it does not give the inn928, Ann. Cas. 1917D, 359; Young v. Kansas keeper a lien on all property brought into City, etc., Ry. Co., 33 Mo. App. 509. In 1897 his inn by a guest, unless he is aware that the Legislature of this state enacted a stat-the guest is not the owner thereof, but reute for the protection of owners and keepers stricts the property to which the lien may of hotels, inns, restaurants, boarding and eat-attach, by limiting it to the property of the ing houses, which is still in force. It contains person indebted for the services specified. This three sections, the first of which provides may be taken as indicative of a legislative ina penalty for obtaining food, lodging, enter- tent to repeal or abrogate the common law retainment, or other accommodations, at any specting innkeeper's liens. Boston Ice Co. v. of the places named above, with intent to de- Boston, etc., Ry. Co., supra; In re Lord & Polk fraud the owner or keeper thereof. The sec- Chemical Co., 7 Del. Ch. 248, 44 Atl. 775. In ond prohibits any person boarding or lodging, view of these facts it is apparent that the or who has boarded or lodged, at any of the statute creates a remedy in favor of an innplaces named above, from removing any keeper which did not exist before, by giving trunk, valise, or other baggage therefrom, him a lien against the property of a boarder which he may have therein, "until all claims as well as a guest, where such boarder is infor bills, lodging, entertainment or accommo-debted to him for the services specified theredations have been fully paid and satisfied in in. 22 Cyc. 1090; 14 R. C. L. 539. It also accordance with the regular advertised or defines a right which theretofore existed in special contract rates" thereof, and provides his favor by enlarging it in some respects a penalty for its violation. The third sec- and restricting it in another. For the reation provides in part as follows: sons stated it appears clear to us that the "The owner or keeper of any hotel, inn, tion intended to cover the whole subject of Legislature in enacting the statute in quesrestaurant, boarding or eating house, as provided in this act, shall, after demand for payment the lien of innkeepers, and other persons be made of the person or persons owing any mentioned therein, to provide a uniform such claims or bills, as set out in the preceding right of lien for all of such persons, to desection of this act, have a lien against the per- fine the same, and to supply an easy and adesonal property and the wages due of any person quate remedy for its enforcement. We thereor persons who may owe said owner or keeper fore conclude that the enactinent of the statfor food, lodging, entertainment or other accom-ute in question, by implication, abrogated the modation, to the extent only of his said claim common-law lien in favor of innkeepers in and the property may be sold to satisfy such claim, by said owner or keeper after obtaining judgment for the same in any court of competent jurisdiction and posting a written notice on the outer door of his hotel, inn, restaurant, boarding or eating house, at least ten days before the day of sale at public outcry to the highest bidder," etc. Sections 7848-7850, Burns' 1914. this state. This conclusion finds support in "It would bring confusion and uncertainty into the law, to hold that a statute of this character can coexist with the rule of the common law in respect to the lien of an innkeeper." [4] We will now consider whether, under the foregoing facts, a common-law lien has Appellant does not make any contention existed in this state in favor of innkeepers that he had a statutory lien as an innkeeper since the enactment of the statute cited. It on the goods in question, and an examination will be observed that this statute not only of the special finding of facts discloses that designates who shall be entitled to such a any such contention would be unavailing. lien, but also specifies the services for which We therefore conclude that the court did not such lien may be had, the property to which, err in its conclusion of law, and that the and the condition on which it may attach, judgment of the trial court must be susand the manner of its enforcement; that it goes beyond the scope of the common law, by including persons not entitled to a lien thereunder, and by designating services for which a lien may be had, and property to which it may attach, not specified therein. It thus appears that the entire subject to tained. Judgment affirmed. DAUSMAN, C. J., and NICHOLS and REMY, JJ., concur. MCMAHAN and ENLOE, JJ., concur in re sult. |