cessive speed, even if the company had knowledge of his incompetency, and the brakeman had not, will not be allowed where it appears that such brakeman being experienced, and with knowledge of the excessive speed, and of the danger of attempting to couple the detached cars to others standing upon the sidetrack, undertook such perilous task as a brakeman, even when acting in pursuance of an order to couple the cars, is not bound to do so under such dangerous conditions.
MISTAKE OF FACT.
See REFORMATION OF INSTRUMENT, 1, 2, 3.
MISTAKE OF LAW.
See REFORMATION OF INSTRUMENT, 3.
See CANCELLATION OF INSTRUMENT, 1, 2; JUDGMENT, 4; PARTIES, 2; RECEIVER, 2; SCHOOL FUND MORTGAGE; TITLE, 5; TRUST, 2.
1. Subrogation.- Foreclosure.— Payment. - Extinguishment. Where the holder of a prior mortgage brings suit to foreclose it, making a junior mortgagee a party, and a decree of foreclosure is given, upon which there is a sale of the mortgaged land to the plaintiff, who takes a certificate of sale, and who, later, believing the junior mortgage cut out by the decree, accepts partial payment of his judgment and takes a new mortgage upon the land for the balance from an intervening purchaser, to whom he assigns the certificate of sale without any knowledge that such purchaser had agreed to pay off the incumbrances, the lien of the first mortgage is not extinguished by the execution of the second one for the same debt, but the former will be kept alive to protect its holder from the intervening lien. And, also, where a still later purchaser of the land, without knowledge of the intervening mortgage, applies for and secures a loan thereon from a third person, who likewise is ignorant of such mortgage and who believes that the second mortgage executed to the senior incumbrancer is the only lien upon the land, and a part of the loan so secured is used in paying off such lien, such last mortgagee is entitled to be subrogated to the rights of the holder of such lien to the extent of the money paid thereon out of the loan made by him, as against the intervening mortgagee and the persons succeeding to his rights with knowledge, and as to so much he is entitled to a first lien. Thompson v. Connecticut Mut. Life Ins. Co., 325 2. By Husband and Wife on Land Held by Entireties.-Subsequent Acquisition of Title to Whole by Husband.-Lien of Mortgage.Divestment of.-If at the time a husband and wife executed a warranty mortgage on certain land, to secure the husband's debt, they held it as tenants by entireties, of which fact the mortgagee was ignorant, and believed the title to be in the husband, but subsequently the husband acquires title to the whole of the land described in the mortgage, such mortgage became a binding lien on the land, and he can not divest such lien by a subsequent conveyThalls v. Smith, 496
See BRIDGE, 2.
MOTION TO QUASH.
See JURY, 1.
MOTION TO STRIKE OUT.
See INTOXICATING LIQUORS, 4.
MUNICIPAL CORPORATION.
1. City.- Improvement Assessment.— Non-Bordering Lot.- Liability
of.-Act Construed.-Under the act of March 8, 1889 (Acts 1889,
p. 237; R. S. 1894, section 4288 et seq.), assessments for street im-
provements can only be made against lots bordering upon the
street as designated by plat or other subdivision, and the liability
of other lots back from the bordering lot and lying within one
hundred and fifty feet of the street improved, arises only in the
event that the bordering lot, against which the whole assessment
must be levied, fails to sell for a sum sufficient to pay the assess-
ment, and then only for the deficit, in the order fixed by the
statute.
City of Terre Haute v. Mack, 99
2. Void Assessment.-Injunction.-Appeal.-The act of the engineer
in apportioning a part of the cost of a street improvement upon a
non-bordering lot, and of the city common council in assessing
such amount against such lot are void, and the collection of such
assessment will be enjoined, particularly as such acts are minis-
terial, from which no appeal has been provided by statute.
3. Primary Liability of First Fifty Feet.-Must be Owned by One Per-
son.—In so far as the first part of the proviso in section 3 of said
act seems to indicate an intention to make the whole of the first
fifty feet back from the front primarily and alike liable, it must
be held to apply only to a case where one person owns the whole
of the first fifty feet.
Ib.
4. City.-Ordinance.- Water Company.—Police Regulation.—An ordi-
nance in relation to a water company, for protection against fire,
is not a police regulation, nor one which the municipality is
under obligation to enact or enforce.
Fitch v. Seymour Water Co., 214
5. City Ordinance.-Governmental Measure.-Water Company.-In-
sufficient Water Pressure.-Loss by Fire.-Liability.—Such an ordi-
nance is a governmental measure which the city might enact or
not as seemed best. There is no public duty under such ordi-
nance, the violation of which would render the city or the water
company liable to any one who might suffer a loss of property by
fire because of an insufficient water pressure, where sufficient
pressure might have been supplied and the loss avoided.
Ib.
6. Water Company.-No Public Duty.-No Privity in Contract, by
Citizens. In such case the water company had undertaken no
public duty which would make it liable to an inhabitant of the
municipality, and the citizen has no privity in the contract of the
city with the company.
See CONTRIBUTORY NEGLIGENCE, 1, 2; NEGLIGENCE, 6, 7.
See BRIDGE, 1; CONTRIBUTORY NEGLIGENCE; RAILROAD, 1, 2, 3.
1. Damages.-Action by Administratrix.-Averment that Plaintiff was
Free from Fault Not Necessary.-It is not necessary to allege in a
complaint by a wife, as administratrix, to recover damages for
negligently causing the death of her husband, that she was free
from fault. Pittsburgh, etc., R. W. Co. v. Burton, Admx., 357
2. Averment as to Inability to See and Hear.-Effect of.-In a com-
plaint to recover for negligently causing the death of the plaint-
iff's decedent at a railroad crossing, an allegation that the de-
ceased was "unable to see or hear any engine or train of cars in
motion on account of" certain described obstructions, is equiva-
lent to an allegation that he did not see or hear the engine or
train.
Ib.
3. Contributory Negligence.-Pleading. When Specific Controls Gen-
eral Allegation.-A specific allegation will not control a general
allegation of freedom from contributory negligence unless the
specific allegation appears to include all of the occurrence and
stands in conflict with that otherwise embraced in the general
allegation.
Ib.
4. Of Fellow Servant.-Vice Principal.-Defective Cars Furnished for
Shipping Purposes.-Master and Servant.-Personal Injury.-Where
cars furnished to a coal and coke company, for shipping pur-
poses, were defective, in that the brakes were worn out, and in
some instances entirely wanting, the cars being placed on the
grade above the "tipple," or place of loading, the defective cars
being placed between other cars, and in moving a car down near
to the "tipple," by servants of the coal and coke company, whose
duty it was to inspect and test the brakes on the cars so as to see
that they could be let down to a point near the "tipple" in safety,
a car with defective brakes, and otherwise unsecured, followed at
a high rate of speed, striking the car in charge of said servants,
and driving it into collision with that upon which another servant
was engaged in loading, thereby inflicting injuries upon him,-
the failure to inspect, to set brakes, or to block the wheels was
negligence in the use of, and not in the supplying of, instrumental-
ities, and was consequently the negligence of fellow servants, and
not of vice principals. The extent of the coal and coke com-
pany's control over the cars was in the use of them for loading
coal, and it was not responsible to the injured servant, or any
one else, for their sufficiency as a means of transportation.
Neutz v. Jackson Hill, etc., Co., 411
5. Sudden Danger.-Conduct of Imperiled Person.-Contributory Neg-
ligence. If one acts naturally in a case of sudden and instant
peril put on him by another, and is injured, he is not guilty of
negligence, although afterwards, out of the presence of danger,
with time to reflect, and in the light of all the known facts, it
may appear that another course of conduct might have led to
safety.
Pennsylvania Co. v. McCaffrey, Admx., 430
6. Natural Gas.-Laying Pipe Line Loose Upon Public Highway.-
High Pressure of Gas.-Pipes Poorly Jointed.-Where it is charged
and established that the defendants laid a three-inch natural gas
pipe loose upon the public highway, and transported through
such pipe natural gas at the dangerous pressure of three hun-
dred pounds to the square inch, the pipe being poorly jointed,
and permitting gas to escape therefrom, negligence on the part
of the defendants is sufficiently shown.
Lebanon, etc., Co. v. Leap, 443
7. Joint Tort Feasors.-Parties to Action.-Natural Gas.-Pipe Line.
Personal Injury. — Explosion. Where the gas wells were
drilled by a sub-contractor, the pipes being furnished by the con-
tractor and put together by the sub-contractor, and after the sub-
contractor had ceased to use the pipes and gas for drilling pur-
poses, the agents of the contractor took up the north and south
line, which connected with the east and west line, leaving one
joint connected with the T, after which the accident happened,
the pipe line being then solely the property of the contractor,
he must thereafter be held to have assumed the sub-contractor's
former charge of caring for the pipe, which, after the accident,
was used as a part of a permanent line. And where, before the
accident, gas was delivered to the company by the contractor,
partly through the pipe line in question, the company, as well as
the contractor, is liable, notwithstanding the fact that the con-
tractor had not, at the time of the accident, fully completed his
contract, nor formally turned over the plant to the company, which
was in actual use of gas which flowed through the pipe in ques-
tion.
8. Licensee.-Trespasser.-Duty to.-Railroad.-Complaint, Theory of.
-Personal Injury.-Where the complaint in an action against
a railroad company, for personal injury, was drawn upon the
theory of negligence by the railroad company causing the injury
to the plaintiff, a servant of C., engaged at the time with C. in
loading hogs in a car furnished by the railroad company for C.
upon his request, while the answers to interrogatories establish
that, without notice to the railroad company of an intention to
load the hogs, such servant and one of his employers pushed a
car, not furnished for C., up to the chute and loaded the same,-
the plaintiff, if not a trespasser, was a mere licensee, to whom the
defendant owed no protection from negligence.
Cleveland, etc., R. W. Co. v. Stephenson, 641
NEW TRIAL.
See BILL OF EXCEPTIONS, 1.
1. As of Right.-Abandonment of.-Right to Commence Action Anew.—
Where parties are entitled to a new trial as of right, they can
not abandon such right by dismissing the cause, and then com-
mence the action anew. Ferris v. Berkshire Life Ins. Co., 486
2. As of Right.-Dismissal of.-Effect on Vacated Judgment.-Restora-
tion and Conclusiveness of.-Case Distinguished.-The dismissal of
a cause of action, after the grant of a new trial as of right, has the
effect of restoring the conclusive character of the vacated judg-
ment, against all the parties and their privies, on the ground that
it was only vacated for the one purpose under the statute, viz., to
allow the defeated party one more trial, if he chose to avail him-
self thereof. Carmikel v. Cox, 58 Ind. 133, distinguished.
Ferris v. Udell, 579
NEW TRIAL AS OF RIGHT.
See NEW TRIAL, 1, 2; REAL ESTATE, 2.
NONRESIDENT.
See TAX SALE.
See APPEAL, 4; BOARD OF CHILDREN'S GUARDIANS, 3; MASTER AND
SERVANT, 5, 6, 7, 9; QUIETING TITLE, 7; RAILROAD, 5; TITLE, 5.
Of Issuance of Precepts for Street Assessments.- Validity of.-Error
in Amount of Assessment.—The notice of the issuance of precepts
for street improvements is not invalid as to an assessment, where
the notice states the amount of assessment at $32.10 instead of
$32.20, the correct amount, as the law does not observe trifles,
and the error not being such as to deceive or control the action of
one of ordinary business capacity.
Burt v. Hasselman, 196
1. Towns.-Power to Abate Nuisance.-Right to Resort to Courts.— The power conferred by statute upon incorporated towns to declare and abate nuisances does not exclude a resort to the courts for such purpose. American Furniture Co. v. Town of Batesville, 77 2. Obstruction of Way.-Insufficient Description.—Decree.- Modification.-Where, in a suit by a town to abate an obstruction in a highway, the complaint and verdict are so uncertain as to the location of the obstruction that no definite order of abatement can be based thereon, a motion to modify the decree so as to eliminate the order of abatement should be sustained. Ib.
OBSTRUCTION OF DITCH.
See MANDAMUS.
OBSTRUCTION OF HIGHWAY.
See NUISANCE, 2.
See MUNICIPAL CORPORATION, 4, 5.
OWNERSHIP.
See EVIDENCE, 3.
PARENT AND CHILD.
See BOARD OF CHILDREN'S GUARDIANS, 3, 4; CONTRACT, 2.
See APPEAL, 1, 2, 3, 4, 6, 7; CORPORATION, 3; NEGLIGENCE, 7; PARTY IN INTEREST; PLEADING, 1; QUIETING TITLE, 1, 3; SUPREME COURT PRACTICE, 5.
1. Necessary Party.-Party in Interest.-Sufficiency of Complaint.— Payment. Multiplicity of Suits.-Insurance Company.-Subrogation. A mortgaged his land to B to secure a loan of $1,000, and as a further security for such sum A procured from C a policy of insurance upon a dwelling house situated upon such land in the sum of $300. Afterwards A conveyed the land to D, without the consent of C and without any assignment of the policy, but upon the agreed consideration, in part, that D should assume and pay the said mortgage. The mortgage clause in the insurance policy provided, among other things, "that whenever this company shall pay to the mortgagee or beneficiary any sum for loss under the policy, it shall at once, and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payment shall be made, under any and all securities held by such party on the property in question, for the payment of said debt; but such subrogation shall be in subordination to the claim of said party for the value of the debt so secured, or this company, at its option, may pay to the mortgagee or beneficiary the whole of the debt so secured, and shall thereupon receive from the party to whom such payment is made an assignment and transfer of said debt, with all securities held by said party, for payment thereof." Soon after the sale to D the dwelling house was destroyed by fire. C paid B the amount of the insurance, $300, and received an assignment of that amount under the note and mortgage, by virtue of the contract of subrogation contained in the policy. C brought suit against D for subrogation, for foreclosure of the mortgage, for personal judgment and for judgment on the note secured by the mortgage to the extent of the assignment and interest, and alleging that the fraction of the debt re
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