The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-11-24
Supreme Court.

Hon. W. E. Niblack. Chief-justce
The following decisions were rendered Nov.
%
No. 1902. Frank Terwilliger vs. Harrison
Murphy ct al Upton c. G. Affirmed Nib
lack, c. I'LL In the construction of contracts
it is a general rule that when one person
another, but without authority sS'I to do
so, he makes himself personally liable as prin-
cipal in the transaction. o. Where an action
before justice of the peace, separate judg-
ment can be rendered against any one Of them.
(R. S. Sections 568 $780,
l22O2. Warren West ct al. vs. Caroline M.
Hays. Dearborn G. c. Affirmed in part re-
versed in part Mitchell, jim suit on a note
executed by husband and wife, where the wife
pleaded that she was covert, and that she signed
as surety for her husband, evidence that she
was covert is admissible.
123OO. Louisa j. Powell VS.. DR.. G. Powell.
Gibson G. G. Affirmed. collars, IA proceed
ing for divorce is civil action within the mean
ing of Sec. Az r. s., and either party may have
change of judge by filing the proper affidavit.
1904 Horace r. Allen vs. Sarah E. Kersey.
Marion S. c. Reversed. Niblack, G. J.
it appears, il a suit for breach of war
two houses on lot; that in doing so
she had Intentionally placed one of
the houses so that it overlapped
one foot and eight inches on the other half of
the lot that she had conveyed half of the lot and
the house that overlapped to defendant, who,
ignorant Of the condition of affairs had recon
veyed it to her-the failure of the reconveyance
to convey the full half lot does not constitute
breach of covenants.
1220l Edward Storms VS.. John Stevens,
Huntington G. G. Affirmed. collars, 1.-THE
owner of an allotment or share for the construc-
ton of ditch under Section 1905 has but one
mode of collecting it, by the auditor placing the
amount upon the duplicate and collecting it as
Ill
an action against the owner of the land therefor.
1926. Daniel Burkett ct al. VS.. Allen w.
Holman Fulton c. G. Reversed. Howk,
J.-Proceedings supplementary to execution is
civil action, within the meaning of Section 412
Revised Statutes 1881, and when party thereto
asks a change of judge upon the ground of bias,
etc. the court has no discretion in granting it,
11702. Chicago etc Railway Company
Ernest Bills. Madison G. c. Reversed. Ell
lott, J.-If the conductor uses unnecessary
pany is liable, although the conductor may
have right to eject him, and to
employ reasonable force therefor The
degree of force necessary is determined
not by results simply. Other facts must be
taken into consideration, chief of which is the
resistance made by the passenger The use Of
unnecessary force is unlawful. The plaintiff,
when unlawful force had been used, must
affirmatively show it to be unlawful;
facts, not epithets, can only show this
plaintiff off, the complaint must show that he
was rightfully on the train, and that the rules of
the company provided that the train on which
he took passage should stop at the station named
on his ticket
1895. James Heap VS.. Martha J. Parish.
action for malicious prosecution it is proper to
inquire of the defendant what his motive was
in instituting criminal proceedings against the
plaintiff.
1906. Samuel Bufkin vs. James Boyce Del
aware G. c. Reversed. Mitchell. 1.-The sufi-
cheney of a complaint in an action in which a re-
ceiver is applied for ordinarily cannot be tested
by demurrer or otherwise at the time of the ap-
plcation or motion for the appoint
ment The appointment of receiver
may be part of the relief asked
in a complaint; but whether this can be the sole
purpose of action is to be questioned. 1t is
no part of the duty of courts to interfere and
take the management of the business of part
ners at the request of one partner, who has the
undlsputed possession and opportunity to man
age it himself Where a dissolution has taken
place. the court will not take upon itself the ad-
mnistraton of the partnership assets unless there
is some msmanagement on the part of partner.
The showing in this case is that the partnership
has expired, and the affairs only to be wound
up Neither partner wishes to continue bust
ness. The defendant denied all suggestions of.
wrong, and offered to surrender stock to which
plaintiff claims to not have time and experience
to attend to it. There is no call for a receiver.
12203. L., N. A & c. Railway Company VS..
Maggie j. Falney. Tppecanoe c. G. Affirmed.
Elliott J.-Action for personal injuries. party
seeking an opinion from an expert witness may
assume in his hypothetical question such facts
AS he deems proved by the evidence and it is for
the jury to determine whether the facts
were or were not justly assumed. Where
some of the facts were eliminated by a subse-
quent ruling of the court but enough facts are
left upon which an opinion may be properly
based it is not error to refuse to strike out the
entire opinion, for it should 60 to the jury for
what it is worth. 1t is competent to ask
medical witness what observations he
made, and what was the condi-
no difference what the purpose of the examina-
ton was, although that fact might affect the
credibility of the witness. medical witness
may be cross examined to test his skill and to
ascertain the grounds upon which he based his
opinion, and this right cannot be abridged by
his statement that he did not take statements of
the patient into consideration AyRo
cross-examiner for this purpose. Declarations
indicative of present pain are admissible Where
medical experts ordered by the court to ex-
anime the plaintiff, and this is done upon mo-
ton Of the defendants. it would seem that what
was said by the plaintiff during the course of the
examination in answer to questions asked by the
experts, should go In evidence. In such case the
plaintiff has right to cross examine as to the
manner of the examination Evidence of such
examination is not rendered incompetent because
the adverse party was absent If the examina-
ton of medical expert is properly made. it is
not to be kept out of evidence because it was
made after the commencement of the action.
An expert cannot testify as to any statement
made to him by the patient of past
here does not show that this was
done. A hypothetical question may incorpo-
crate the result of knowledge obtained by his
examination The opinion of an expert NAV
rest, in part, on statements made by his patient.
An opinion of an expert cannot be based on
opinions of another expert. An expert may be
asked as to the probability of the injury perma-
nently impairing the health of plaintiff. An ex-
pert witness was asked his opinion as to age Of
plaintiff He was then asked the age of
bystander, who, being called gave.his age differ
emily. Facts not otherwise relevant are deemed
to be relevant if they support are inconsistent
with the opinions of experts. One who is in
hxy <1a Ne