In made a holiday by statute, the same should be treated as a dies non juridicus, and therefore excluded from the count in determining whether its transcript was filed in time. other words, appellant's contention is that, the time for filing its transcript having expired on a legal holiday, a filing of the same the succeeding day was in time. We have been unable to find an express holding upon this subject in this state. Appellant has cited several cases from other states which seem to support its contention. We would be inclined to follow these cases and adopt the rule insisted upon by appellant but for the existence of section 1350, R. S. 1908, which we think controlling on this question. This section provides as follows: "The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday it shall be excluded." Appellant cites this statute as supporting its position and insists that inasmuch as Sunday is mentioned with the other holidays, and that under the present law the state offices may be closed on such other holidays the same as on Sunday, that therefore the same reason exists for excluding the other holidays from such computation of time that exists for excluding Sunday, and further that Labor Day was created a holiday since the passage of section 1350, supra, and that therefore it should be read into such act. The latter part of appellant's argument fails when we consider the holiday statute as it existed in 1881 when section 1350 was enacted. The holiday statute then in force was that passed in 1875, and provided as follows: "The following days, to wit: The first day of the week, commonly called Sunday; the first day of January, commonly called New Year's Day; the fourth day of July; the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the President of the United States or the Governor of the state of Indiana as a day of public fast or thanksgiving-shall be holidays within the state of Indiana for all purposes of presenting for payment or acceptance, for the maturity and protest, and giving notice for the dishonor of bills of exchange, bank checks, promissory notes, or other negotiable or commercial paper; and all notes, drafts, checks, or other negotiable or commercial paper, falling due or maturing on either of said holidays, shall be deemed as having matured on the day previous." It will be seen that when said section 1350 was enacted Sunday was then one of the several other holidays mentioned in the above statute, and it alone was by the Legislature expressly excluded from such computation when the last day falls a sach day. Under the familiar maxim, expressio unius est exclusio alterius, the Legislature, by mentioning and including Sunday alone as the holiday to be excluded in the computation, excluded from such provision the other holidays then existing, and of necessity any such holidays afterwards created, in the absence of additional or amendatory legislation on such subject. We recognize that since the passage of section 1350, supra, the Legislature has changed the law then applicable to bank checks, promissory notes, and other negotiable instruments, falling due on a holiday, so as to make the same due the day succeeding, instead of the day preceding, such holiday, and that section 9627, R. S. 1908, has been passed, which authorizes the closing of all state, county, city, and township offices on such days; but, during all this period, section 1350, supra, has remained unchanged. Whether this was the result of oversight or purpose can make no difference in the determination of the question before us. The fact remains that this section of the statute has never been amended or repealed, and is, we think, controlling of said question. Volume 16, Current Law, in discussing this question, says, at pages 2386 and 2387: "Ordinarily, legal holidays are not excluded where the case is not within the express provisions of the statute authorizing their exclusion, even though they follow an excluded Sunday." See cases there cited, one of which, viz., the case of Nebraska National Bank v. Pennock, 59 Neb. 61, 80 N. W. 255, which state has a statute almost identical with section 1350, supra, is directly in point in this case. It is suggested by appellant that to hold that its appeal is not in time is in effect reducing the 60 days which the law gave it in which to file its transcript after the filing of its appeal bond to 57 days. This results, because the last day of its time was Labor Day, the preceding day Sunday, and the next preceding day Saturday, the afternoon of which was also a holiday. Apparent hardship does result in this case, and may in other cases; but, if so, it results from the statute. It is the business of the courts to construe and apply the law as they find it, and not to make or amend it. This appeal is therefore dismissed. (49 Ind. A. 181) BEECHER v. PERU TRUST CO. et al. (No. 7,458.) (Appellate Court of Indiana, Division No. 1. Jan. 10, 1912.) 1. LICENSES (§ 39*) - BUSINESS LICENSEFAILURE TO PAY-CONTRACTS STATUTES. Where a statute forbids the carrying on of a business without procuring a license, the payment of a tax, compliance with prescribed tests, inspection, registration, or the like, contracts made by persons in carrying on such For other cases see saine topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes business without complying with the statute are void, though the statute contains no express provision to that effect. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. & 39.*] 2. CONTRACTS (§ 107*)-BILLS AND NOTES (§ 106*) VIOLATION OF STATUTE MISDEMEANOR. Burns' Ann. St. 1908, § 7939 et seq., requires certain tests, inspection, and registration of stock foods before they are offered for sale within the state, and section 7944 provides that any person who shall offer for sale any such food which has not been registered as required or which does not have affixed to it a tag required by the act shall be deemed guilty of a misdemeanor, etc. Held that, where defendant claimed to have sold stock food to complainant as a consideration of a note without having complied with such act, the note was void, and the fact that violation of the act is made a misdemeanor implies a prohibition, giving to it the same effect as if the statute expressly declared void contracts made in carrying on such business. [Ed. Note. For other cases, see Contracts, Cent. Dig. 8 479; Dec. Dig. § 107;* Bills and Notes, Dec. Dig. § 106.*] 3. SALES (§ 52*)-STOCK FOOD-REGULATION -COMPLIANCE WITH LAW-PRESUMPTIONS. The sale of stock food within the state having been regulated by statute (Burns' Ann. St. 1908, § 7939 et seq.), providing that a sale of such food without complying with the same shall be a misdemeanor, punishable, etc., compliance with the act was a condition precedent to the right of a seller of such food to engage in that business within the state; and hence, in an action involving such sale, compliance cannot be presumed, but must be specifically alleged. [Ed. Note.-For other cases, see Sales, Dec. Dig. & 52.*] Appeal from Circuit Court, Miami County; J. N. Tillett, Judge. Suit by William C. Beecher against the Peru Trust Company and others. Judgment for defendants, and complainant appeals. Reversed, with instructions. (3) Overruling appellant's motion' for a new trial. (4) Rendering judgment in favor of all the appellees and against appellant. The fourth assigument of error presents no question. The complaint is in two paragraphs, and the gist of each is in substance as follows: That appellee Duff was engaged in business under the name of "Pioneer Stock Powder Company"; that appellee Parnell was the agent of said Duff, and on February 4, 1907, procured from appellant a contract whereby he became the local agent of said company for the sale of certain stock food; that after executing said agency contract appellant was informed by said Parnell that he should execute to said Duff a note for $300 as a mere form, which note he, Parnell, would hold until the expiration of his agency contract of one year, and then return it to appellant for cancellation; that said representations were made for the purpose of defrauding appellant and procuring from him said note for $300; that he was thereby induced to sign said note, which was given without any consideration; that said note was procured for the fraudulent purpose of negotiating the same to some innocent purchaser; that appellees were offering to sell the same, and will do so unless enjoined from so doing. The appellees by way of answer aver that appellee Duff is the proprietor of said company, which is a partnership organized under the laws of Illinois; that it is engaged in manufacturing and selling certain stock powder and preparations for the feed of domestic animals; that the sale of said goods is carried on through agents and wholesale and retail dealers; that appel J. T. Cox and Claude Y. Andrews, for ap lant was its agent for two townships in pellant. Miami county, Ind., and the note mentioned in the complaint was given for 4,000 pounds of stock powder and 80 gallons of dip at the price named in the agency contract, and was of the value of $300; that the goods were to be shipped from Bloomington, Ill., at such times and in such quantities as appellant should designate; that said note was given for a valuable consideration fully understood and known to appellant at the time, and is the property of appellees and they are entitled to its possession. The sufficien FELT, C. J. This suit was brought by appellant against appellees, Charles E. Duff, Orrin L. Parnell, and the Pioneer Stock Powder Company, to restrain them from transferring by sale and indorsement a certain promissory note payable at a bank in this state to "C. E. Duff, trading as Pioneer Stock Powder Company," also against the Peru Trust Company, in whose possession the note had been placed by Parnell, to restrain it from delivering said note to Parnell, Duff, or the Pioneer Stock Powder Com-cy of this answer is assailed because it fails pany. Trial by the court with a finding in favor of appellees, from which this appeal is taken. The errors assigned are: to aver that appellees in the sale of their stock food had complied with the act of 1907 (Burns' 1908 Statute, § 7939 et seq.), requiring certain tests, inspection and regis(1) Overruling appellant's demurrer to the tration of such foods before they are offered second paragraph of the answer of appel- for sale in this state. Section 7944 provides lees Duff, Parnell, and the Pioneer Stock in part as follows: "Any person, company, Powder Company to appellant's complaint. corporation or agent that shall offer for sale, (2) Sustaining a demurrer to the second par- sell or expose for sale any package or samagraph of appellant's reply to said answer.ple or any quantity of any concentrated com * mercial feeding stuff which has not been | business or acts must aver facts bringing registered with the state chemist as requir- his complaint or defense within the requireed by section 1 of this act, or which does ments of the law, and not depend upon innot have affixed to it a tag and stamp requir- ference to supply such material facts. ed by section 2 of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in the sum of fifty dollars," etc. We have not been favored with a brief from the appellees. [1] The prevailing weight of authority establishes the proposition that, where a statute forbids the carrying on of a business without the procuring of a license, the payment of a tax, compliance with prescribed tests, inspection, registration, or the like, contracts made by persons in carrying on such business are void though the statute contains no express provision to that effect. [3] This is in harmony with the general rules of pleading in our state. Ordinarily it is true the presumption is in favor of compliance with the law. But where the business, profession, or acts have been made a subject of legislation and penalties have been fixed for failure to comply with the statute, the one who asserts a right based upon such business, profession, or acts is by such law informed that his right depends upon compliance with the statute, and that he cannot rely upon inference. Jackson School Tp. v. Farlow, 75 Ind. 118; Orr v. Meek, Adm'r, 111 Ind. 40, 11 N. E. 787; Cooper v. Griffin, 13 Ind. App. 212-219, 40 N. E. 710; Benham v. State, 116 Ind. 112, 18 N. E. 454; Bedford B. R. Co. v. McDonald, 12 Ind. App. 620, 40 N. E. 821; Hill v. Ward, 45 Ind. App. 458-464, 91 N. E. 38; City of Montpelier v. Mills, 171 Ind. 175, 85 N. E. 6. [2] If the statute prescribes what shall be done before the right to do a certain thing, or carry on a certain business, is granted, | and prohibits such business under penalty, the fact that the violation of the act is made a misdemeanor implies a prohibition, and gives to it the same effect it would have if the statute expressly declared void contracts made in carrying on such business. Mullikin v. Davis, Adm'r, 53 Ind. 206; Skelton v. Bliss, 7 Ind. 76; Madison Ins. Co. v. Forsythe, 2 Ind. 483; Siter v. Sheets, 7 Ind. 132; Winchester E. L. & Co. v. Veal, 145 Ind. 506-511, 41 N. E. 334, 44 N. E. 353; 21 A. & E. Enc. Law, p. 823; Vanmeter v. Spurrier, 94 Ky. 22-29, 21 S. W. 337; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Allen v. Pearce, 84 Ga. 606, 10 S. E. 1015; Johnston Bros. & Co. v. McConnell, 65 Ga. 129; Conley v. Sims & Blalock, 71 Ga. 161; Kleckley v. Leyden, 63 Ga. 215; Baker v. Burton (C. C.) 31 Fed. 401; Pacific Guano Co. v. Mullen, 66 Ala. 582-590; McConnell v. Kitch-censed as a physician. In Jackson School ens, 20 S. C. 430, 47 Am. Rep. 845. The further question remains to be considered, whether the appellees will be presumed to have complied with the law, or must aver compliance to make the answer sufficient as showing a good consideration for the note in question. The complaint alleges that the note was given without any consideration, and also avers facts tending to show that it was procured by fraud, and that appellees had no right to sell or transfer it. Some courts have held that when an act is required by the law to be done, and a failure so to do is made a misdemeanor, the presumption will be indulged that the law had been complied with. On the other hand, the better reason and the weight of authority is to the effect that when the law fixes certain requirements as conditions precedent to the right to carry on a certain business or profession, or perform certain acts, and affixes a penalty for noncompliance, the party seeking a recovery or setting up a defense involving and depending upon such Some of the foregoing cases were suits by physicians to recover for professional services. The act of 1885 expressly provided that a physician could not recover for professional services rendered without a license prescribed by the act. The later act of 1897 (Burns' Statute, § 8400 et seq.) does not contain such provision, but does, like the former act, make it a misdemeanor to practice medicine without a license and fixes a penalty. In Hill v. Ward, supra, decided in 1910, the rule established under the former act is followed, and it was there held that it was a good defense to a note given to a physician, and held by a third party, to aver that the note was given for medical services rendered by a person not duly li Tp. v. Farlow, supra, a school teacher brought bringing him within the statute." When it is disclosed by the pleading that the consideration relied upon for a recovery or as a defense arises out of a transaction or business around which the law has thrown certain restrictions and limitations, and made compliance therewith a condition precedent, under penalty, to the carrying on of such business or transaction, the pleading will be held insufficient if it does not aver facts showing compliance with the statute. In this case the appellees to overcome and meet the averments of the complaint that the note was given without consideration and procured by fraud or under circumstances that did not give to them the right to sell or transfer it averred that the note was given for 4,000 pounds of stock powder sold by appellees to appellant. The pleading thus disclosed that the consideration was either valid or invalid depending upon compliance with the statute. When this appeared, upon the face of the answer, to make it good, it was necessary to remove the element of doubt by positive averments showing compliance with the statute. There is a class of cases that may seem to be in conflict with this conclusion, but on careful analysis they are found to be in harmony with the conclusion here announced. This class of cases deal with notes given to foreign insurance companies doing business in this state, and with similar conditions. In suits upon such notes it has been held that the note alone is the foundation of the action, that it implies a good consideration, and the objection, if any, on account of the consideration, not appearing upon the face of the complaint, must be raised by answer. Black v. E. Insurance Co., 33 Ind. 223; Cassaday v. Am. Ins. Co., 72 Ind. 95. These cases approach the question from a position the reverse of what we have in the case at bar. Here the complaint challenges the validity of the consideration and the right to transfer the note, and the appellees seek to meet these averments by alleging that the consideration is based upon the sale of a commodity of a character that makes the note void unless the statute has been complied with. Certainty and definiteness are requisites of good pleading, and in the answer before us are not satisfied so long as the doubts exist that can be eliminated by direct and positive averments which show that the requirements of the law have been satisfied. Little, 23 Ind. App. 65, 54 N. E. 1069; Peden v. Cavins, 134 Ind. 494, 34 N. E. 7, 39 Am. St. Rep. 276. The questions presented by the motion for a new trial do not require consideration in view of the foregoing conclusions. What we have already said disposes of the controlling questions in the case, and this opinion need not be further extended. The judgment is therefore reversed, with instructions to the lower court to sustain the motion for a new trial, to sustain the demurrer to the second paragraph of answer, and for further proceeding in accordance with this opinion. and death of a servant in a foreign state conWhere a complaint setting up the injury tains no averment to the contrary, it will be presumed that the law of that state as to the liability of a master for an injury caused by the negligence of a fellow servant is the same as the common-law rule of Indiana. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 14-16; Dec. Dig. § 80.*] 2. EVIDENCE (§ 80*) — PRESUMPTIONS-LAWS OF OTHER STATES. The employer's liability act (Burns' Ann. liable for injuries from the negligence of felSt. 1908, $$ 8017-8020), making an employer low servants, has no extraterritorial force, and cannot be invoked to supplement the common law and render sufficient a complaint for the death of a servant in another state, which contains no allegations as to the rule in that state. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80.*] 3. MASTER AND SERVANT (§ 259*)-COMMONLAW RULE--PLEADING. In an action at common law for the death of a servant by the negligence of another in the employ of the same master, the plaintiff must show by affirmative averments that the person whose negligence is alleged to have caused the injury was not a fellow servant of the deceased. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 837-843; Dec. Dig. § 259.*] 4. MASTER AND SERVANT (§ 259*)-COMMONLAW RULE-PLEADING. And the complaint must aver that the negligent employé was in the discharge of a duty which the master owed to the injured servant. [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 837-8143; Dec. Dig. § 259.*] 5. MASTER AND SERVANT § 216*)-LIABILITY FOR INJURIES TO SERVANT-ASSUMPTION OF RISK FELLOW SERVANTS EXISTENCE OF RELATION. This conclusion makes it unnecessary to consider the second assigned error, but we may say that, in view of the ruling of the impliedly agrees to assume all risks ordinarily A servant by his contract of employment lower court on the answer, the reply pro- incident to the employment which he underceeded upon a correct theory, and, if its aver- takes, and, since among such risks is the negments would be insufficient, when directed to ligence of other servants engaged in producing the same general result, the servant would be a a good answer, as the answer in this case fellow servant of such others, whether intiis bad, the reply is sufficient. Beckett v.mately associated in the discharge of their several duties or not, so that a servant employed by a circus proprietor to erect tents, etc., who was carried from place to place on the employer's trains in which the circus was transported, must be held to have assumed by his contract of hiring the risk of injury from the negligence of those in charge of such trains. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 567-573; Dec. Dig. § 216.*] 6. MASTER AND SERVANT (§ 217*)-LIABILITY FOR INJURIES TO SERVANT-ASSUMPTION OF RISK. A circus proprietor is not liable for injuries caused to an employé by reason of old, worn out, and decayed cars, loose and leaky air brakes, pipes, and springs on the cars in which the circus was transported, and of which he was alleged to have knowledge, where the servant knew of such conditions prior to the acci dent. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. 217.*] Hottel, J., dissenting. the erection of tents for performances and in the preparation for transportation of said circus and menagerie from one place to another, on cars which were owned by said Wallace, and transported over the lines of defendant railway company under some agreement between Wallace and said company; and that the duties of plaintiff's decedent under his employment were in no way connected with the operation of said trains. It is further averred that on the date mentioned Benjamin E. Wallace and the defendant railway company were jointly engaged in transporting cars of said Wallace carrying his circus and menagerie over the railroad of the defendant company, and that said cars were made up and operated as two sections. The complaint then proceeds as follows: "Plaintiff further says that while said sections of said train were being so transported over said defendant company's said line of Appeal from Superior Court, Porter Coun- road on the 7th day of August, 1903, as ty; Harry B. Tuthill, Judge. aforesaid, in and throughout the state of Action by William E. Thompson, adminis-Michigan, near the city of Durand, the said trator, against Benjamin E. Wallace and the Grand Trunk & Western Railway Company. From a judgment for plaintiff, Benjamin E. Wallace appeals. Reversed, with directions. Frank B. Parks, Charles A. Cole, and Albert H. Cole, for appellant. N. L. Agnew, J. W. Agnew, and W. G. Todd, for appellee. LAIRY, J. Appellee brought this action in the Porter superior court against the appellant (Benjamin E. Wallace) and the Grand Trunk & Western Railway Company, to recover damages resulting from the death of John Thompson. The issues formed upon the amended complaint were submitted to a jury, which returned a verdict in favor of appellee and against appellant. At the conclusion of the evidence, the defendant railway company moved the court to instruct the jury to return a verdict in its favor, which motion was sustained, and a verdict returned in favor of said defendant. Appellant filed a demurrer to the amended complaint of appellee, which demurrer was overruled by the court, and this ruling presents the first error relied on for reversal. After averring facts showing the appointment of plaintiff as administrator of the estate of John Thompson, deceased, the complaint avers, in substance: That the defendant Benjamin E. Wallace was the owner and proprietor of a circus and menagerie which was traveling on the Grand Trunk & Western Railway, which was a corporation owning and operating a line of railroad from Port Huron, Mich., through the state of Michigan to the city of Chicago, Ill.; that on the 7th day of August, 1903, plaintiff's decedent was in the employ of the defendant Wallace, in connection with his circus and menagerie; that his duties were to assist in decedent, John Thompson, was fatally injured by the negligent, careless, and wrongful acts of defendant, in this, to wit: That said defendant so carelessly and negligently managed and controlled said train, and the two sections thereof into which the same was divided, that they ran the second section of said train into the first section thereof without taking any precaution or making any effort whatever to prevent running said section into said first section; that they negligently ran said sections so close together that, when the first section was stopped, the second could not be prevented from running into the rear end of the first section thereof; that the servants and employés of said defendant, in charge of said trains, negligently failed to take any precaution whatever to prevent said second section from running into said first section without making any effort to prevent so doing; that the engine and cars comprising said second section were old, worn out, and decayed, so that the air brakes were loose and the air-brake pipes, springs, and air brakes were so loose, leaky, and worn out that they would not operate when an attempt was made to stop said section of said train as the defendant well knew when they undertook to transport said decedent, as aforesaid; and that they by reason of said negligence of said trainmen of defendant's, and by reason of the negligence of defendant's servants in charge of said train, and by reason of the worn out and dilapidated and negligent, useless condition of said engine and cars and the air brakes, air pipes, and brakes of said engine and cars of said section, as aforesaid, the second section ran and crashed into the rear end of said first section, on which said decedent was riding, as aforesaid, and crushed, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |