State, ex rel. v. Adams-187 Ind. 165.

contract, but our opinion rests on the wording of the instrument which is the basis of this suit. The fact of the completion of the contract and the acceptance of the work by the city, in the absence of a stipulation in the bond to the effect that all claims for materials should then be due and payable, would not necessarily fix the time of payment for materials. Nor does it follow from the finding that the "note was accepted as evidence of said indebtedness and for the purpose of being endorsed and used by Hughes Bros. to secure the money from the bank" that it was accepted in payment to the advantage of the surety on the bond. We doubt if the principal, or appellee, at the time of the execution of the bond, knew when or by whom the materials for the improvement would be supplied, or under what conditions as to time of payment such purchases would be made, or when the bills therefor would be presented for payment. In the very nature of the contract all of these matters are ordinarily left to the contractor.

We have no doubt that a surety, by proper stipulation, may protect himself against unnecessary delay in the

presentation of claims, if the claimant looks to 6. him. There was no attempt to do so in this case. For this omission and because of the character and responsibility a surety assumes in cases of this character-building or improvement contracts—the stringent rule of strictissimi juris cannot be applied, as enforced for the benefit of sureties on commercial paper. United States Fidelity, etc., Co. v. United States (1903), 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 242.

Appellee in his answer avers that on December 18, 1911, relators made a complete settlement with Smith

and Son as contractors, at which time the amount 7. due for the materials furnished by relators was due and payable; and that in payment thereof and, in settlement of the same, James H. Smith and

J. Wooley Coal Co. v. Tevault-187 Ind. 171.

Walter Smith executed to the relators their promissory note. A demurrer to this answer for want of facts was rightly overruled. The averment that the note was accepted in satisfaction and payment of the debt is sufficient to require of relators a reply. American, etc., Machine Co. v. Gurnee (1878), 44 Wis. 49. But the special findings, as we have seen, show that the note was given as evidence of the debt. This does not amount to a finding that the note was accepted in payment of the debt, which is the issue tendered by the answer and reply in denial.

8.

For the reasons stated, the judgment of the trial court is reversed, and cause remanded with instructions to grant appellants a new trial, and for further proceedings not inconsistent with this opinion.

NOTE. Reported in 118 N. E. 680. Principal and surety: (a) what will release or discharge surety, 28 Am. St. 691; (b) effect under negotiable instrument law of extension of time to principal to release a surety or guarantor, 31 L. R. A. (N. S.) 149; (c) discharge of a surety or guarantor by the creditor's acceptance of bill or note from debtor, 4 Ann. Cas. 884, Ann. Cas. 1912B 485. See under (2) 32 Cyc 73; (3) 32 Cyc 191; (4) 30 Cye 1197, 1271, 1272; (5) 32 Cyc 196.

J. WOOLEY COAL COMPANY v. TEVAULT.

[No. 22,962. Filed February 21, 1918.]

1. MASTER AND SERVANT. - Injuries to Servant.· Employers' Liability Act.-The Employers' Liability Act (Acts 1911 p. 145, §§8020a-8020k Burns 1914) is constitutional in all its provisions. p. 177.

· Employers' 2. MASTER AND SERVANT. - Injuries to Servant. Liability Act.-The Employers' Liability Act does not authorize a recovery for injuries to a servant without negligence of the master or of those for whose acts he is responsible, and such negligence still remains the essence of liability in actions under its provisions. p. 178.

3. MASTER AND SERVANT.-Injuries to Servant.-Negligence of Fellow Servant.-Section 1 of the Employers' Liability Act

J. Wooley Coal Co. v. Tevault-187 Ind. 171.

(Acts 1911 p. 145, §8020a Burns 1914) abrogates the commonlaw rule of assumption of risk of injury through the negligence of a fellow servant; and the failure of a fellow servant to exercise reasonable care for the safety of a coworker is deemed to be a breach of duty on the part of the master. p. 178.

4. STATUTES.- Construction.- Intent. The true object of all statutory interpretation is to ascertain the meaning and will of the lawmaking body, and it is not permissible under the pretense of interpretation to make a law, either by extension or restriction, which shall depart from the legislative intent. p. 182.

5. STATUTES.-Construction.-Intended Scope.-Every statute is to be construed with reference to its intended scope and to the purpose of the legislature in enacting it; and where language is used that is ambiguous or that admits of more than one meaning, it is to be taken in such sense as will conform to the scope, and carry out the purpose, of the act. p. 182. 6. MASTER AND SERVANT.-Assumed Risks.-Contributory Negligence.-Employers' Liability Act.—Construction.—The defense of assumed risk is ordinarily regarded as predicated on the theory that the employe, as an element in his contract of employment, has agreed for a consideration to relieve his employer from liability for injuries from inherent or apparent hazards in the employment, while contributory negligence is based on the fact that the employe's manner of meeting such hazards was not consistent with reasonable care; and in order to avoid uncertainty in the practical application of these two rules to the question whether the employe's remaining at work in the presence of a known danger presents an issue of contributory negligence or one of assumed risk, the legislature by provisions in §§2, 3 of the Employers' Liability Act (Acts 1911 p. 145, §§8020b, 8020c Burns 1914), construed by the court as correlative, has treated the question from either angle and has clearly announced that no injured employe whose conduct is characterized by due care shall be denied a recovery under the act because of assumed risk where negligence of the employer, in any of the particulars enumerated therein, caused the risk and proximately contributed to the injury.

7.

p. 183. MASTER AND SERVANT.-Contributory Negligence.—Assumption of Risk.-Employers' Liability Act.-While the Employers' Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914) does not in any manner restrict the defense of contributory negligence in its proper sense, it does declare that the fact alone that the employe took chances in encountering any of the dangers mentioned in the act, whether his act in so doing

J. Wooley Coal Co. v. Tevault-187 Ind. 171.

is denominated contributory negligence or assumption of risk, shall not constitute a defense in an action to recover for resulting injury if it further appears that he used due care for his own safety. p. 184.

8. MASTER AND SERVANT.-Injuries to Servant.-Jury Question. -Under §7 of the Employers' Liability Act (Acts 1911 p. 145, §8020g Burns 1914), which provides that all questions of assumption of risk shall be questions of fact for the jury, the question whether the conduct of the employe, in encountering a hazard that the act declares he did not assume, was characterized by due care still remains an issue of fact. p. 184. 9. STATUTES.-Construction.-Interpretation.-Statutes are to be construed so that full force and effect shall be given to all parts thereof and, where the specific language used comes in conflict with the general, the effort in the first instance must be to harmonize all the provisions by construing all parts of the act together; and the intent of the legislature, as declared in the general enacting parts, is superseded only where the repugnancy of the special provisions to the general language is plainly manifest. p. 184.

10. STATUTES.-Construction.-Interpretation. It is a settled rule of statutory interpretation that, if violence will not be done to the language of the statute, the application of words used in a particular enactment may be enlarged or restrained in order to bring the operation of the law within the intention of the legislature. p. 185.

11. STATUTES.-Employers' Liability Act.-Construction.-Under the rules governing the construction of statutes, the respective provisions of §§2, 3 of the Employers' Liability Act (Acts 1911 p. 145, §§8020b, 8020c Burns 1914) are intended to be correlative and reciprocal rather than exclusive, and are directed toward the broad purpose of the act, which purpose is the abrogation of the doctrine of assumed risks as a defense against negligence in all actions which come within the scope of the act. p. 185.

12. STATUTES. Employers' Liability Act. - Construction.· "Working Place."-In view of the conflict between the commonlaw doctrine that the employe assumes the risk of injury resulting from changing conditions in the working place as a hazard inherent to the employment and the provisions of the Employers' Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), which abrogate the defense that inherent and apparent hazards contributed to the injury complained of in all cases where such injury is a proximate result of the negligence of the employer, the term "working place" as used in §3 of the act is interpreted in its broad sense to include, in

J. Wooley Coal Co. v. Tevault-187 Ind. 171.

all instances, the place of employment, since such interpretation gives effect to the act as a whole and is in accord with the evident purpose. p. 186.

13. MASTER AND SERVANT.-Injuries to Servant.-Safe Place to Work.-Employers' Liability Act.-Under the rules applicable to actions under the Employers' Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914) an employer operating a coal mine is liable for the death of an employe who assisted in undercutting a vein of coal where the negligent failure of other employes to remove coal loosened from the vein rendered the place of work dangerous, the rules being that an employer is liable for the injury or death of an employe where the jury finds that the employer's negligence or that of his agents proximately contributed to such injury or death, and that the employe's conduct in the face of the hazard resulting from such negligence was characterized by due care; but the employer is not liable where the jury finds either that the employe's conduct under the circumstances was not characterized by due care, or that the danger or hazard that caused the injury or death was not known and could not have been known to the employer in time to have remedied the condition or that it was necessarily incident to the employment. p. 188. 14. APPEAL.-Review.-Harmless Error.-In an action under the Employers' Liability Act for the death of a coal miner killed by the fall of coal from a vein which he was assisting to undercut, where the jury was expressly instructed that there could be no recovery unless the employer was negligent, the jury's verdict for plaintiff necessarily determined the absence of the element of assumed risk, and the failure of the court to instruct on that issue was harmless error. p. 189. 15. APPEAL.-Review.-Harmless Error.-In an action under the Employers' Liability Act, an instruction purporting to state the issues presented by the complaint, but which omits the allegation that the master employed more than five men, though incomplete, does not present reversible error, where other instructions referred to the issue and the undisputed evidence shows that the master employed more than 100 men. p. 189.

16. TRIAL.—Instructions.—Cure by Others. In an action under the Employers' Liability Act for the death of a servant, instructions authorizing recovery on proof of the allegations of the complaint were cured by other instructions which fully covered the defense of contributory negligence. p. 190. 17. MASTER AND SERVANT.-Injuries to Servant.-Employers' Liability Act.-The Employers' Liability Act applies to an employe who entered the master's employment before the passage