The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-05-28
HIGHER COURTS RECORD.
COURT.

HIGHER COURTS RECORD.
APPELLATE COURT.
1923 Wood VS.. Wack Perry c. c. Re-
versed. Comstock, p. il. A contracting
party is bound to use ordinary care and
diligence to guard against fraud and impo-
sition and if he fails to do so he cannot OBJ
tain relief from the courts. 2. A person
dealing with another who is practically
statements of the latter as TO the contents
of written contract to be signed by them.
3. A person seeking to recover upon con-
tract may recover a larger amount than
the general verdict when the answers to in
terrogatories warrant it.
407S. Diamond, etc., Coal Company VS..
Cuthbertson. Clay G. G. Affirmed. Wiley,
il. In an action for damages on account
of personal injuries received by the negli-
gence of the defendant, If the complaint on
its face shows that the defendant was gull
~ OF acuonable negligence, and by its
averments 1t does not affirmatively appear
that the plaintiff was guilty of contributory
negligence, the complaint will be sufficient
against motion to make more specific.
And II the complaint ayers facts that show
that the defendant was guilty of negligence
1t will be good as against a demurrer for
want of sufficient facts to constitute a
cause of action. 2. The knowledge of
mining boss that room in the mine is in
an unsafe condition is knowledge of the
danger on the part of the employer. 3. All
the evidence introduced must be in the rec
ord to determine whether there was suffi-
cient evidence to support the verdict. A. A
map used in trial to enable witnesses to
testify SO the jury can understand the ex-
act situation is evidence in the cause and
should be in the record.
1889. City of Connersville VS.. Snyder.
Fayette G. c. Affirmed. Robinson, G. j.
A city is liable for negligence in emitting
to keep its bridges in repair.
3SlS. Town of Crown Point VS.. Thomp-
son. Porter c. c. Petition for rehearing
overruled. Henley, J.-When appellee does
not appear and file his briefs until after the
cause is reversed it is then too late for him
to discuss the questions argued by ap-
pellant.
Affirmed. Comstock. p. il The office of
a description in a deed is not to identify
the land, but 1T is TO furnish the means of
identification, and such part of deed is to
be construed with the utmost liberality. If
such description is consistent but incom-
plete, and it's completion does not require
the contradiction asi or alteration q, OF that
duced, parol evidence may be received for
its completion. 2. Equity does not view
time as being OF the essence of contract
unless ii appears from its terms or by the
conduct of the parties that the design of
the contractors was to render time" es-
sential.
4446. STAIRS VS.. Hammersmith Clark c.
G. Reversed. Wiley, il. A court is not
warranted in rejecting a complaint as a
sham pleading from the mere fact that
from an examination of plaintiff under the
statute his complaint may appear to be
false. 2. A party seeking TO have plead
ing stricken out as a sham pleading must
proceed in the manner provided by statute.
4371. Dodge VS.. Johnson. Elkhart c. G.
Affirmed. Black, J.-Where one real-estate
owner gives an adjoining owner license
to use a stairway on his premises for in
gress and egress, and they act upon such
license by building in accordance there
with, such license is irrevocable.
1859. Burke VS.. Barrett. Vigo c. c.. Re-
versed. Roby, il. The laws favor the
vesting of estates, and the presumption is
that testator intended that an estate de-
vised should vest at his decease unless an
intention to postpone the operation of the
to postpone the operation of devise must
be clear and manifest and must not arise
by mere inference or construction.
1882. Peoples State Bank VS.. Ruxer.
Spencer c. c. Reversed. Roby, FRAUD
in the procurement of contract for or i'm
connection with the consideration of a ne
gotiable promissory note in the hands of an
innocent holder will not bar his recovery
upon it.
44OS Borkenstein VS.. Schrack Allen s.
c. Reversed Robinson, c. i'll. Punitive
damages cannot be assessed for the COM
mission of a wrong which subjects the
wrongdoer to both a criminal prosecution
and a civil action. 2. Where this court
cannot say from the record that a verdict
is correct ii will not regard an erroneous
instruction harmless.
4s33. Indiana Clay Company VS.. B. & o.
S. w. Railroad Company. Knox c. c. Re-
versed. Comstock, il. person has the
right to construct buildings any part of
his property and enjoy the same without
reference to the proximity of railroad,
clared contributory negligence in an action
against the railrorad company for negli-
gently setting fire to the buildings. 2.
While the owner of property in danger of
loss is charged with the duty.of saving it
from destruction If he can do so with the
exercise of reasonable care and precaution,
yet he Is not bound to use unusual care
and caution in anticipation that II may be
negligently destroyed by another. 3. Where
a railroad company is sued for a loss by
fire it is error TO charge the jury that the
proof of the origin of the fire must depend
entirely upon the question of negligence in
its emission from the locomotive alleged TO
have started the fire. 4. The owner of
building set on fire by another is only re-
quired to make reasonable efforts under the
circumstances to prevent loss 8. Proof of
every averment in a complaint is not al
ways necessary where the recovery de-
ponds upon the negligence of the defendant
1851 Shirk VS.. Stafford. Rush c. C. At
frmed. Roby, IA contract by married
her husband joins in its execution, and is
also void as against the other party to il.
and notes executed upon such contract
have no consideration upon which TO base
an action at law.
1865 L. Z. & w. Ry. Co. VS.. Shelly.
Henry c. C. Reversed. Hanley. il 1t
is part of the duty OF viewers for a pro-
posed highway to lay out and mark the
same, and cannot be aided by the petition
therefor nor the order of the Board of Com
missioners 10 the viewers. 2 Where the
question of damages is an issue In the To-
cation of a highway IL Is error to refuse to
allow a witness, who Is qualified, to testify
to the value of certain of the land appro-
priated.
1914 Hatfield VS.. Delong. Huntington C..
c. Reversed. Black, J.-Where the rule of
church discipline in relation to an appeal
from the action of the church in trying one
of it's members provides that the same per-
son shall not sit In Judgment on the same
case IL contemplates the creation of an ap-
peliate body distinct from the trial body.
and persons who are members of the
church, but who took no part in the trial.
are not competent and eligible to sit as
arbiters on appeal