(70 Ind. App. 200) new trial, assigning various reasons thereSEITZ V. KOTHE-WELLS & BAUER CO. for, but as the action of trial court in over(No. 9830.) ruling same is not challenged on this appeal, (Appellate Court of Indiana, Division No. 1. the same need not be set out. May 14, 1919.) The only error complained of in this case is the action of the trial court in sustaining APPEAL AND ERROR 151(1)-MATTERS RE- the demurrer to the appellant's second paraVIEWABLE-ABSTRACT QUESTION. graph of answer, and in thereby refusing to hold said mortgage to appellee void. In order that a person may appeal or sue out a writ of error, he must be aggrieved or prejudiced by the judgment or decree. Appeal from Superior Court, Marion County; W. W. Thornton, Judge. Action by the Kothe-Wells & Bauer Company against Charles Seitz and another, to foreclose a chattel mortgage. From an adverse judgment, the named defendant appeals. Affirmed. · Wm. G. White and Arthur J. Jones, both of Indianapolis, for appellant. Wm. A. Pickens, Linton A. Cox, and Earl R. Conder, all of Indianapolis, for appellee. ENLOE, J. This action was begun by the Kothe-Walls & Bauer Company, appellee, to foreclose a chattel mortgage, executed by one Daniel E. Rogers, January 6, 1915, to secure the payment to appellee, when it should become due, of a certain promissory note of even date, for the sum of $206.68 due in 30 days, and upon payment of which a default had been made. In June, 1914, appellant had loaned to said Rogers the sum of $500 and had also indorsed a certain promissory note in the amount of $700 for said Rogers, and to secure the appellant in the matter said Rogers had executed to appellant a chattel mortgage upon the same property afterwards covered by the mortgage in suit. If the appellant had any lien upon, or interest in, the property covered by the mortgage to the appellee, so that he was injured, as to his property, by said decision, he might be in a situation to complain; but here he is not complaining of the action of the court in finding and decreeing such want of interest. He is in the attitude of confessing that the decree is right, and that he has no interest in the property, yet is seeking to question the correctness of the ruling of the court upon the demurrer. If he had no interest in the property, he was not harmed, and he has no legal right to complain. In 2 R. C. L. p. 52, it is said: "In addition to the requirement of a substantial interest in the subject-matter of the litigation, it is essential, in order that a person may appeal or sue out a writ of error, that he shall be aggrieved or prejudiced by the judgment or decree. Appeals are not allowed for the purpose of settling abstract questions, however interesting or important to the public generally, but only to correct errors injuriously affecting appellant"-citing authorities. McFarland v. Pierce, 151 Ind. 546, 45 N. E. 706, 47 N. E. 1; Gavin v. Board, etc., 81 Ind. 480. We have, however, considered said second paragraph of answer. There was no error in sustaining the demurrer thereto. Judgment is affirmed. (70 Ind. App. 161) DEEP VEIN COAL CO. v. WARD. (No. 9754.) The appellant was made a defendant in this suit to answer to his interest in and to the property in question, and he filed an answer in three paragraphs: First, general denial; second, alleging that the mortgage to appellee was void under the provisions of the Bulk Sales Law of this state (Acts (Appellate Court of Indiana, Division No. 1. 1909, p. 122); and, third, setting up a claim under the mortgage of June, 1914, and asked that his mortgage be decreed a prior lien to that of appellee. To the above-mentioned second and third paragraphs of answer demurrers were filed, and sustained as to second and overruled as to the third paragraph, and reply in general denial by appellee closed the issues. A trial was had before the court, which made a general finding in favor of appellee, and against appellant, and that appellant had no interest in or lien upon the property in question, and judgment was rendered accordingly, and property ordered sold to pay appellee's debt. May 9, 1919.) 1. APPEAL AND ERROR 231(2)-REVIEWBRIEF-SUFFICIENCY-OBJECTIONS TO COM PLAINT. Where objections to the complaint which were presented by appellant's brief were not specified in appellant's memorandum filed with the demurrers, they cannot be considered on appeal. Burns' Ann. St. 1914, § 344, cl. 5. 2. TRIAL 256(10)—INSTRUCTION-PROOFIMMATERIAL ALLEGATIONS OF COMPLAINT. that it is not necessary for the plaintiff to An instruction in a personal injury case prove any immaterial allegations of the complaint, though incomplete in form, is not reversible error, in absence of request for instruc The appellant then filed his motion for ation correctly stating the issues. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. MASTER AND SERVANT (123 N.E.) 291(1)-INJURY | in in the operation of what is known as a cutTO SERVANT-EMPLOYER'S LIABILITY ACT- ting machine. The machine was run by elecINSTRUCTION AS TO APPLICATION OF ACT. tric power, and was used to cut under the In an action under Employers' Liability Act face of the coal in the mine so as to expedite of 1911, an instruction that act applied if de- the removal of the coal. While appellee's fendant was employing five or more men in its decedent and a helper were in the line of business of coal mining held not subject to the their employment operating said machine, at objection that the employment of five men was the only prerequisite for the application of the a point in the mine as directed by chalk act, where the evidence showed the operation of marks placed there by appellant, a large a mine employing 250 men, and other instruc- piece of rock or slate forming the roof of the tions informed jury that under the act there mine at said point fell, instantly killing said could be no recovery for employé's death, unless decedent. This action is to recover for the it was shown by the evidence that he met his death of said employé which it is claimed redeath as a result of defendant's negligence. sulted from appellant's negligence. The com4. MASTER AND SERVANT 291(6)—INJURY plaint is based upon the Employers' Liability TO SERVANT-INSTRUCTIONS-NEGLIGENCE. Act of 1911 (Laws 1911, c. 236). Separate An instruction that, if defendant had in demurrers to the three paragraphs of comits employ men to remove loose slate from the plaint were overruled, and the issues joined roof of the mine where deceased lost his life, by appellant's answer in denial. A trial by then their negligence was the negligence of de- jury resulted in a verdict for appellee for fendant held responsive to the allegations of $3,000. The alleged errors relied on for renegligence on the part of defendant, though neg-versal are: (1) The action of the trial court ligence on the part of the mine boss was also in overruling the separate demurrers to the several paragraphs of the complaint; and (2) alleged. 5. TRIAL 260(1)-INSTRUCTIONS-REFUSAL the overruling of the motion for a new trial. OF REQUESTS. Although refused requested instructions stated the law correctly, yet where such law was covered by other instructions given, which, taken as a whole, fairly state the law of the case, their exclusion was not error. 6. TRIAL 129-MISCONDUCT OF COUNSELRETALIATORY STATEMENTS. Where appellee's counsel made statement outside the evidence in his closing argument to the jury, but the record shows that such statement was made in response to equally objectionable remarks made by appellant's counsel, such misconduct is not reversible error. 7. APPEAL AND ERROR 1170(7)-AFFIRMANCE-CORRECT RESULT-STATUTE. Where there is evidence to support every [1] The objections to the complaint which are presented by appellant in its brief were not specified in its memorandum filed with the demurrers, and therefore cannot be considered on appeal. Section 344, cl. 5, Burns 1914. Jackson Hill, etc., Co. v. Van Hentenryck, 120 N. E. 664. [2] Error is predicated upon the action of the court in giving to the jury on its own motion instruction No. 1, also on the giving of 21 several instructions at the request of appellee, and on the refusal of the court to give twelve several instructions tendered by appellant. Instruction No. 1 given by the court on its own motion, told the jury "that it is not necmaterial averment of the complaint, and it essary for the plaintiff, in order to recover, fully appears from the record that the cause to prove any immaterial allegations of the was fairly tried and the correct result reached, complaint." The instruction in the form givthe judgment will be affirmed under Burns' Ann. en is incomplete, but incompleteness in an inSt. 1914, §§ 407, 700, regardless of error in rul-struction presents no reversible error. Apings as to evidence. pellant should have presented, and requested the court to give, an instruction correctly Appeal from Superior Court, Vigo County; stating the issues. Vandalia Coal Co. v. Fred W. Beal, Judge. Action by Anna E. Ward, administratrix of the estate of William Ward, against the Deep Vein Coal Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Judgment affirmed. Coakley, 184 Ind. 661, 111 N. E. 426; Jackson [3] Instruction No. 8, given by the court at appellee's request, to which objection is specially urged, is as follows: "I instruct you that if you find that the Deep C. C. Whitlock, A. R. Owens, and P. O. men on July 12, 1911, in its alleged business Vein Coal Company was employing five or more Colliver, all of Terre Haute, for appellant. of coal mining, the provisions of the EmployP. M. Foley, Thos. J. Roach, Felix Blan-ers' Liability Act of 1911 applies to this case." kenbaker, Thos. F. O'Mara, and J. T. Walker, all of Terre Haute, for appellee. REMY, J. On July 12, 1911, appellee's decedent, William Ward, was in the employ of the Deep Vein Coal Company, appellant here It is urged that by this instruction the jury were told that the only prerequisite to the application of the Employers' Liability Act to the case was the employment of five or more men on the day of the accident, with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes out regard to whether the appellant was en- [objectionable statement was made in regaged in business, trade, or commerce as re- sponse to remarks, equally objectionable, quired by the act, and without regard to which had been made by appellant's counsel. whether decedent's death resulted in whole Misconduct arising under such circumstances or in part from the negligence of appellant is not reversible error. Haskell & Barker or its representatives, or by reason of any de- Car Co. v. Timm, 122 N. E. 788, decided by fect, mismanagement, or insufficiency due to this court April 14, 1919. its negligence. There was no reversible error in the giving of this instruction. The uncontradicted evidence shows that at the time in controversy, appellant was operating a large coal mine, and had in its employ in the mining and marketing of its coal employés to the number of 250 or more; and by other instructions the jury were fully informed that under the Employers' Liability Act there could be no recovery, unless it was shown by a preponderance of the evidence that appellee's decedent met his death as a result of appellant's negligence as averred in the complaint. In fact the court read to the jury, as a part of his instructions, sections 1, 2, and 3 of the Employers' Liability Act. The jury could not have been misled by the instruction. [7] Appellant asserts that the verdict of the jury is not sustained by sufficient evidence, and also complains of numerous rulings of the trial court as to the admission and exclusion of evidence. We have carefully examined the evidence, and inasmuch as there is evidence to support every material averment of the complaint, and since it fully appears from the record that the cause had been fairly tried and a correct result reached, no good purpose would be subserved by extending this opinion to discuss in detail the many rulings of the court on the admission and rejection of evidence. Even though we should find errors, they would have to be disregarded. Harris v. Randolph County Bank, 157 Ind. 120, 138, 60 N. E. 1025. No rule of law is more important, and none is [4] Objection is made to instruction No. 31, more binding on this court, than the rule given by the court at appellee's request. This fixed by the correct result statutes (sections instruction told the jury that if they found 407, 700, Burns 1914), which requires an affrom the evidence that appellant company | firmance if it appears from the record that had in its employ certain day men whose the decision of the trial court has resulted duties were to remove loose slate and other in substantial justice. We find no reversible material from the roof of that part of the error. mine where appellee's decedent was required to work, and where he lost his life, and that such men were in its employ at the time of, and immediately before, the accident, then the negligence of such day men was the negligence of appellant company. It is the contention of appellant that the complaint proceeds upon the theory that the only negligence charged is the negligence of the mine boss, and that it was error to charge the jury that appellée could recover if the evidence showed that the negligence was that of fellow servants. Appellant would give to the complaint too narrow a construction. Each paragraph proceeds upon the theory that the negligence charged was the negligence of appellant. The instruction is within the issues, and the giving of it was not error. [5] We have examined the other instructions of which complaint is made; also all instructions tendered by appellant, and which were by the court refused. The requested instructions which stated the law correctly were covered by others given by the court. The instructions given by the court, when taken as a whole, fairly state the law of the case. [6] It is claimed by appellant that a new trial should have been granted on the ground that appellee's counsel was guilty of misconduct in making a statement outside the evidence in his closing argument to the jury. It appears from the record that the alleged Judgment affirmed. FERRELL v. HUNT. (No. 9801.)* (Appellate Court of Indiana. May 15, 1919.) COURTS 220(5)—APPELLATE COURT-FAILURE OF FOUR JUDGES TO CONCUR-TRANSFER TO SUPREME COURT-STATUTE. Where four judges of the Appellate Court mitted to the entire court, the case must be do not concur in determining an appeal subtransferred to the Supreme Court under Burns' Ann. St. 1914, § 1399. Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge. Action by Albert H. Hunt against Samuel C. Ferrell. From judgment for plaintiff, defendant appeals. Cause transferred to the Supreme Court. James W. Noel and Hiram B. Patten, both of Indianapolis, for appellant. Samuel D. Miller, Frank C. Dailey, and Wm. H. Thompson, all of Indianapolis, for appellee. PER CURIAM. This appeal having been submitted to the entire court and four judges thereof not concurring in the result, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) the case is transferred to the Supreme Court | second paragraph of answer that the appelunder section 15 of "An act concerning ap-lee had notice of such fraud. The appellee peals," etc. Acts 1901, p. 565, § 13370; filed its demurrer to said second paragraph Burns' R. S. 1914, § 1399. (74 Ind. App. 527) of answer, with memoranda, which demurrer was sustained by the court, to which ruling the appellant excepted. Thereupon appellant withdrew his first paragraph of answer, being the general denial, refused to LAPP v. MERCHANTS' NAT. BANK OF plead further, and elected to stand upon his INDIANAPOLIS. (No. 9869.)* second paragraph of answer. Judgment was rendered in favor of the appellee. [1, 2] The negotiable instrument was put in force April 30, 1913. 9089z1, of such statute provides: (Appellate Court of Indiana, Division No. 2. 1. BILLS AND NOTES FIDE HOLDER"-Defenses. Where payee for value received, in due course of business and before maturity of a note, assigned and transferred it to plaintiff, plaintiff was a "bona fide holder" in due course without notice, in view of Burns' Ann. St. 1914, §§ 9089z1, 9089d2, and 9089e2, and holds the note free from defenses available to prior parties among themselves. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Bona Fide Holder.] statute Section "A holder in due course is a holder who has taken the instrument under the following conditions: "(1) That the instrument is complete and regular upon its face; "(2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; "(3) That he took it in good faith and for value; him he had no notice of any infirmity in the "(4) That at the time it was negotiated to instrument or defect in the title of the person 2. BILLS AND NOTES 373-BONA FIDE negotiating it." PURCHASER-FRAUD IN INCEPTION. Fraudulent representations inducing the execution of a note do not constitute a defense against a bona fide purchaser, under Burns' Ann. St. 1914, §§ 9089zl, 9089d2, 9089e2. Appeal from Superior Court, Marion County; W. W. Thornton, Judge. Action by the Merchants' National Bank of Indianapolis against John A. Lapp. Judgment for plaintiff, and defendant appeals. Affirmed. Edward R. Lewis, of Indianapolis, for appellant. Charles A. Dryer, of Indianapolis, for appellee. NICHOLS, J. The complaint in this case, by the appellee against the appellant, was filed October 16, 1916, and is upon a promissory note executed by the appellant August 5, 1915, and due in six months after date, negotiable and payable at the appellee's bank in Indianapolis, Ind., and to the order of the Federal Loan Society, Incorporated. It is averred in the complaint that the payee for value received, in due course of business and before the maturity of such note, assigned and transferred it to the appellee, and that it was past due and unpaid. To this complaint the appellant answered in two paragraphs; the first being a general denial, and the second being an affirmative answer charging fraud against the payee named in the note in procuring the execution thereof. There is no charge in the It is provided by section 9089d2 of such statute that, to constitute a notice of an infirmity in the instrument or defect in the title of person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. Section 9089e2 provides that a holder in due course holds the instrument free from any defect or title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon. By its averments that the payee for value received, in due course of business and before its maturity, assigned and transferred said note to the appellee, such appellee avers that it had no notice of any infirmity in the instrument or defect in the title of the person negotiating it, and that it purchased the same in good faith for value. Such a holder, under the statute, holds the note free from defenses available to the prior parties among themselves. The appellant's second paragraph of answer averring fraudulent representations in the procuring of the execution of this note, without any averments of knowledge by the appellee of the alleged fraud, was insufficient, and the demurrer thereto was properly sustained. There was no error in sustaining the demurrer to the second paragraph of answer. The judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In an action for personal injuries resulting from collision of vehicles upon a street, defendant's requested instruction was properly denied, where it was subject to the construction that if plaintiff failed to signal that she was going to turn as required by ordinance the jury should return a verdict for defendant, regardless of whether such failure contributed to plaintiff's injury. 10. TRIAL 28(3) STREETS COLLISION -VIEWING VEHICLE-DISCRETION Of Court. Burns' Ann. St. 1914, § 564, reposes discretionary power in the court to permit an inspection of an automobile in an action for injuries resulting from its collision with another vehicle on a street; and where the facts could be accurately described by the witnesses, and it is questionable whether an inspection would have served any useful purpose, it was not error to refuse appellant's request therefor. 11. APPEAL AND ERROR 1001(1)-VERDICT -CONCLUSIVENESS-SUPPORTING EVIDENCE. Where there is some evidence tending to support each essential element necessary to plaintiff's right of recovery, the verdict of the jury determined the weight and value thereof, and its decision thereon for plaintiff is not subject to review on appeal. Appeal from Superior Court, Marion County; James L. Leathers, Judge. Action by Mary Hartman against John W. Spickelmeir. Verdict and judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |