stated, and we are unable to discover them. It is true that different acts of negligence which are alleged to have united in causing the injury complained of are set forth in the one paragraph, but there is no objection to that form of pleading. Wabash R. Co. v. McDoniels, 183 Ind. 104, 109, 107 N. E. 291; Chicago, etc., R. Co. v. Barnes, 164 Ind. 143, 149, 73 N. E. 91; Pittsburgh, etc., R. Co. v. German Ins. Co., 44 Ind. App. 268, 271, 87 N. E. 995. each will serve better to indicate the issues of law which we are required to determine. The first paragraph of complaint alleges that on the day of his injury appellee was at work on a certain automobile truck owned by appellant, and then used by it in the transportation of pianos and other articles of merchandise to various places in the city of Indianapolis; that the duties of appellee's employment required him to ride on said truck in making deliveries to and from appellant's store and to assist in the loading and unload[3] Furthermore, the overruling of a moing of pianos and other articles which it tion to separate a complaint into paragraphs handled; that on the occasion of the acci- is not reversible error. Huntington Light, dent which resulted in his injury said truck, etc., Co. v. Spell, 185 Ind. 30, 32, 107 N. E. with appellee riding thereon, was being driv-741, 111 N. E. 311; Richwine v. Presbyterian en by another of appellant's employés over Church, 135 Ind. 80, 85, 34 N. E. 737; Adand along one of the public streets in said ans v. Antles, 57 Ind. App. 594, 598, 105 N. E. city, when one of the steering knuckles broke and one of the front wheels came off, thus causing the body of the machine to drop to the pavement and throw appellee from the truck, to his resulting injury. It is further alleged that the steering knuckle and axle sufficient weight and strength to sustain the which broke was not made of material of continual jar to which it was subjected under appellant's use of the truck, and that its breaking was due to a crystallization of the metal under that strain. Negligence is charged in appellant's use of the truck for the purpose indicated with knowledge of its insufficient and faulty construction and of the dangers attendant on its use in that con dition. The second paragraph of complaint repeats, in substance, though in somewhat greater de tail, the allegations of the first, and charges further that appellant had actual knowledge of the insufficiency of the steering knuckles and axles on the particular truck in question on account of their breaking under similar conditions on other occasions prior to the injury of appellee. It is alleged also that appellant's agent and servant in charge of said truck frequently drove the same at a high and dangerous rate of speed over streets that were rough and uneven, and over chuckholes and other depressions in said streets, thus increasing the strain and tension to which the weak and insufficient parts of the truck were subjected, all to the knowledge of appellant, and that on the occasion in question said servant was driving said truck over a public street at the negligent, dangerous, and unlawful speed of 25 miles per hour, thereby greatly increasing the strain on the steering knuckles on appellant's truck and causing one of the same, in its weakened and insufficient condition, to break, with resulting injury to appellee. 931. [4, 5] In support of its assignment that a new trial should have been granted by the circuit court, appellant earnestly contends that instruction 8 given at the request of appellee is erroneous. This instruction told the jury, in effect, that if, at the time of the accident in question, appellant's motor truck was being driven at a rate of speed greater than is allowed by law, appellee should not be held to have assumed the risk of any injury occasioned by such unlawful operation. No objection is urged against this instruction as an abstract statement of law, and we are ciency in that particular, but the contention not required, therefore, to pass on its suffiis made that neither paragraph of complaint shows that appellee's injury was proximately caused by the violation, if any, of the statute against fast driving, and that the instruction was therefore outside the issues and harmful. There can be no doubt that the violation of a penal statute or ordinance raises no liability for an injury which another may have suffered, unless the injury was in some material degree the result of such violation. O-Lite Co. v. Skeel, 182 Ind. 593, 601, 106 N. E. 365, Ann. Cas. 1917A, 474; Inland Steel Co. v. Yedinak, 172 Ind. 423, 428, 87 N. E. 229, 134 Am. St. Rep. 389. Prest In this case, however, the second paragraph of complaint unquestionably alleges a causal connection between the unlawful operation of appellant's truck and appellee's injury. It is there charged that the driving of the machine at an excessive speed over rough and uneven streets greatly increased the tension on the weak and insufficient steering knuckle, and finally caused it to break. Under these averments, the operation of the machine was as clearly a contributing factor in the accident which followed as was the light con[1, 2] The first assignment is that the trial struction of the broken parts. The instruccourt erred in overruling appellant's motion tion was proper under the issues. Fox v. to separate the several causes of action con- Barekman, 178 Ind. 572, 577, 99 N. E. 989. tained in appellec's second paragraph of com- [6] A further objection is made that this plaint, but counsel have carefully avoided instruction, and instructions 10 and 17, also any attempt to point out the various causes given at appellee's request, were applicable, of action which, it is claimed, are there if at all, only to the issues presented by the The second paragraph of complaint, but that un- [ and his health permanently affected. der the court's instruction 7 they were di- amount of damages to be awarded under rected to the first paragraph as well. There such circumstances is not susceptible of exis not merit in the latter contention. The issues presented by the two paragraphs of complaint are substantially identical except in so far as the second paragraph is based on an alleged violation of the speed statute, and the application of the instructions which touch that issue is apparent, particularly in view of other instructions given. Instruction 7 clearly refers only to a series of general instructions given by the court on its own motion which are, as the jury was informed, applicable to each paragraph of the complaint. act computation, and we see nothing in the record to indicate that the jury acted out of prejudice, partiality, or corruption. Jeffersonville Mfg. Co. v. Holden, 180 Ind. 301, 311, 102 N. E. 21; Cleveland, etc., R. Co. v. Hadley, 170 Ind. 204, 215, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1; Eichhorn v. Central R. Co. (C. C.) 185 Fed. 624, 634; McCoy v. New York Central, etc., R. Co., 119 App. Div. 531, 535, 103 N. Y. Supp. 1083; Anderson v. Foley Bros., 110 Minn. 151, 156, 124 N. W. 987. Finally, it is contended that the evidence is insufficient to sustain the verdict on the issue of negligence, but, under the record, that contention involves an issue of fact which we cannot determine. Portland, etc., Mach. Co. v. Gibson, 184 Ind. 342, 346, 111 N. E. 184; Nordyke & Marmon Co. v. Whitehead, 183 Ind. 7, 12, 106 N. E. 867. [7] Objection is next urged against the admission of evidence relative to the breaking, on prior occasions and at different places in the city, of parts of the automobile truck in question other than the part which broke at the time appellee was injured. Appellant concedes that evidence of prior accidents is admissible, under proper circumstances, to Our consideration of the case on its merits charge a defendant with notice of unsafe con- renders unnecessary a particular reference ditions (City of Goshen v. England, 119 Ind. to certain preliminary questions of appel368, 375, 21 N. E. 977, 5 L. R. A. 253), but late practice which are suggested by either asserts that in the present case evidence ad-party. It LAIRY and MYERS, JJ., dissent. HARMLESS ERROR-INSTRUCTIONS. missible under that rule must have been con- No error appearing, the judgment is affined to the breaking of the particular part firmed. in question, and that the prior accident should have been shown to have occurred under the same or similar circumstances. is to be noted, however, that the complaint (187 Ind. 32) proceeds, in part, on the theory that appelDUGAN v. STATE. (No. 23326.) lant was negligent in its continued use of the Jan. 8, 1918.) truck under conditions which placed a great- (Supreme Court of Indiana. er strain on each of the steering knuckles 1. CRIMINAL LAW 829(1)-INSTRUCTIONSthan they were designed to meet, and which REQUESTS COVERED BY INSTRUCTIONS. thus rendered such use of the truck unsafe.ed by instructions given may not be complainRefusal of requested instruction fully coverThe evidence to which objection is urged ed of. has reference in each instance to the break-2. CRIMINAL LAW 1172(1) — APPEAL ing of a part of one steering knuckle or the other on the particular truck in question, and at a time when the machine was being used, as in this instance, in the delivery of merchandise from appellant's store to some place in the city of Indianapolis. The application of the rule of evidence which renders such testimony admissible for any purpose is necessarily affected somewhat by the particular conditions in issue, and under the circumstances here presented we think it clear that the evidence to which objection is urged was properly received as tending to show notice to appellant that its truck was not of sufficient construction to meet the strain to which it was subjected. Instructions on prosecution for keeping a place where liquor was unlawfully sold, that it must be found "some one" sold liquors there, is harmless where, under the evidence, "some one" could not apply to a stranger or to any one other than one employed in operation of the place. 3. INTOXICATING LIQUORS 143 - UNLAWFUL SALE-KEEPING PLACE. The rule that for conviction of the proprietor of a licensed saloon of selling to a minor, it must be shown the sale was made by him in person or with his express or implied authority, has no application to a prosecution under Burns' Ann. St. 1914, § 8351, where the gravamen of the offense is the keeping, running, and operating a place where intoxicating liquors are permitted to be sold contrary to law. 4. CRIMINAL LAW 1172(3)-HARMLESS ERROR-INSTRUCTION ASSUMING FACTS. For an instruction to assume facts is harmless, where the evidence is of such a nature that the jury undoubtedly would have found the assumed facts under a proper instruction. [8] Complaint is made of the amount of the recovery. Appellee received a badly broken right leg, which necessitated two operations and its final amputation above the knee, thus crippling him for life. He was confined in a hospital for seven months, and his physical suffering as a result of his injury was severe. His earning capacity is greatly diminished, Affirmed. Appeal from Criminal Court, Marion County; H. C. Austill, Special Judge. Michael Dugan was convicted, and appeals. Eph Inman, J. T. Markey, and Edwin | struction No. 5 in which the jury was told Steers, all of Indianapolis, for appellant. that before it could find the defendant guilty Ele Stansbury, of Indianapolis, Elmer E. Hastings, of Washington, Ind., and Dale F. Stansbury, of Indianapolis, for the State. LAIRY, J. Appellant was convicted in the trial court on an indictment charging him with having unlawfully kept, run, and operated a place where intoxicating liquors were bartered, sold, and given away in violation of section 1 of an act in force March 16, 1907. Acts 1907, p. 689; section 8351, Burns 1914. The overruling of appellant's motion for a new trial is the only error assigned, and the only errors presented by the briefs relate to the action of the trial court in giving instructions to the jury alleged to be erroneous and in refusing to give instruction numbered 1 tendered by appellant. As shown by the evidence appellant held a license for the sale of intoxicating liquor for a room located on the first floor of a building in Indianapolis, Ind., known as the Plaza Hotel, and he operated a bar in the room covered by the license. On the top floor of the building was a café and roof garden. Appellant rented the room in which the bar was operated, and also the café and roof garden rooms, paying as rent therefor $200 a month. The evidence of appellant himself shows that intoxicating liquors procured at his bar were served and consumed with his knowledge and consent in the café conducted on the roof garden. The theory of the state is that appellant was keeping, running, and operating the place designated as the Plaza Café and Roof Garden on the 23d day of December, 1916, and that intoxicating liquors were sold there in violation of law. The theory of the defendant is that no intoxicating liquors were sold in the café, but that they were sold in the licensed barroom of appellant to waiters from the café, who came to the barroom with money of the patrons of the café and purchased such liquors as the agent of such patrons to be served to them in the café. [1] Under the evidence, the jury was required to determine whether the waiters sold and delivered the liquor in the café as the agents of appellant collecting the money in advance for appellant, or whether they purchased the liquor at the licensed bar of appellant as the agents of patrons of the café with money furnished by patrons for that purpose. The decision was adverse to appellant. The issue of fact thus presented was fully and fairly submitted to the jury by the court under instructions No. 9, 10, and 11. Appellant has no just reason to complain of the refusal of the court to give instruction No. 1 tendered by him on the same subject, for the reason that it was fully covered by the instructions to which reference has been made. it must find beyond a reasonable doubt that he kept, owned, and operated a place, and that some one at that place sold, bartered, or gave away intoxicating liquors in violation of law. It is asserted that the words "some one" are too general in their import, being broad enough to include a stranger having no connection with the place, who might carry a flask of intoxicating liquor into the place, and while there give it to a friend. The instruction may be subject to the technical objection urged, but it is not at all likely that the jury so understood it. There was no evidence that any one other than the waiters employed in the café handled any intoxicating liquor in the place, but the evidence shows that if any sales were made there they were made by the waiters. By the words "some one," as used in the instruction, the court meant some one employed in connection with the place; some one of the waiters. The jury no doubt understood the instruction as the court meant it, and under the evidence it could not have applied the words "some one" to any person other than those employed in the operation of the place. Under the evidence the error of which appellant complains could not have been prejudicial. Appellant's testimony shows that he paid the rent for the roof garden where the café was operated, and that he permitted the chef to use the kitchen and serve meals in the café, receiving no rent from the kitchen and no part of the profits on the food served. He states in his evidence that the only income he received from the place was the rent for the checkroom and the profits on the drinks served in the café; that he instructed the waiters repeatedly to always collect pay in advance for drinks to be served in the roof garden; and that he posted notices in the café requesting patrons to pay in advance for drinks ordered. It is appar ent from this evidence that appellant received the profits from the sale of the liquor which was served in the roof garden, and that he furnished it having full knowledge of the conditions under which it was to be served. [3] In the case of Boos v. State, 181 Ind. 562, 105 N. E. 117, it was held that the proprietor of a licensed saloon could not be convicted of selling liquor to a minor, unless it is shown that the sale was made by the proprietor in person, or that it was made with his express or implied authority, and that proof of such a sale made by the bartender in the absence of the proprietor without his knowledge or express or implied authority is not sufficient to sustain a conviction. The case under consideration and those cited to sustain it were decided under statutes which make the sale the gravamen of the offense. [2] Complaint is made of that part of in- Hanson v. State (1873) 43 Ind. 550; O'Leary v. State (1873) 44 Ind. 91; Thompson v. | no authority to sell, held to have support in the State (1874) 45 Ind. 495. evidence, on prosecution under Burns' Ann. St. Appeal from Criminal Court, Marion The gravamen of the offense defined in the statute under which appellant was convicted is the keeping, running, and operating a place where intoxicating liquors are permit-County. ted to be sold contrary to law. The rule announced in Boos v. State, supra, has no application to a case such as this. Rigrish v. State (1912) 178 Ind. 470, 99 N. E. 786. Frank Barry was convicted, and appeals. Affirmed. J. T. Markey and Edwin Steers, both of Indianapolis, for appellant. Ele Stansbury, of Indianapolis, Elmer E. Hastings, of Washington, Ind., and Dale F. Stansbury, of Indianapolis, for the State. [4] The sixth instruction is criticized on the ground that it assumes that appellant visited the place and was present in and about it, and that he exercised supervision and control over the place and persons employed therein. The instruction is open to MYERS, J. This was a the criticism made against it; but, in view prosecution of the evidence, the court does not regard against appellant by indictment alleging that the error as one for which the case should he unlawfully kept, ran, and operated a place be reversed. Appellant testified that he where intoxicating liquors were sold, bartervisited the place, that he had the room deco-ed, and given away in violation of the laws rated with holly, that he employed the musi- of this state, as defined by section 8351, cians and cabaret singer, that he frequently gave instructions to the waiters about collecting in advance for liquors served there, and that he placed cards in the room requesting patrons to make payment in advance for liquors served in the café. It has been frequently held that it is not error to assume in an instruction facts which are admitted or which are established by undisputed evidence. Louisville, etc., R. Co. v. Utz (1892) 133 Ind. 265, 270, 32 N. E. 881; Hindman v. Timme (1893) 8 Ind. App. 416, 420, 35 N. E. 1046; Grand Trunk, etc., R. Co. v. Hodsden (1913) 54 Ind. App. 176, 181, 101 N. E. 834. If there be any question as to the facts assumed by the instruction being admitted or proved by undisputed evidence, still it may be safely said that the evidence on the subject is of such a nature that the jury undoubtedly would have found the assumed facts under a proper instruction. A careful examination of the other instructions given over appellant's objections discloses no reversible error in any of them. Judgment affirmed. (187 Ind. 49) BARRY V. STATE. (No. 23333.) (Supreme Court of Indiana. Jan. 10, 1918.) 1. CRIMINAL LAW 1160-APPEAL-REVIEW -REFUSAL OF NEW TRIAL-WEIGHT OF EVI DENCE. Refusal of new trial moved for on the ground that verdict was not sustained by preponderance of evidence is not reviewable. Burns 1914. A trial by the court resulted in his conviction, and the overruling of his motion for a new trial is assigned as error. Appellant, in support of his motion for a new trial insisted, and still insists, that the finding of the trial court was contrary to law, in that it is not sustained by sufficient evidence. [1] The question as presented to the trial court not only involved the question as here, but also the weight or preponderance of the evidence to sustain a conviction within the meaning of section 2158, Burns 1914, subd. 9. That court passed upon the error of fact, and as said in Deal v. State, 140 Ind. 354, 39 N. E. 930: "When he overrules the motion for a new trial based on that ground, he thereby says to us that with all his superior means of determining ing it, he is of opinion that the preponderance the weight of the evidence after calmly reviewthereof fully sustains the verdict, or finding. In such a case the Legislature has withheld from us the power to review his acts." [2] Appellant asserts, generally, that there is no evidence in this case to support a conviction. If that be true, the error is one of law, and within the jurisdiction of this court. Deal v. State, supra; Luther v. State, 177 Ind. 619, 98 N. E. 640; Combs v. Combs, 56 Ind. App. 656, 105 N. E. 944. Without taking the time and space to point out all the evidence disclosed by the record tending to support the finding of the court, as that is the only evidence proper for this court to consider (Merrill v. State, 175 Ind. 139, 93 N. E. 857, 44 L. R. A. [N. S.] 439; Wilson v. State, 175 Ind. 458, 93 N. E. 609), it will be noticed that on December 23, 1916, appellant was a licensed retail liquor dealer 236(9)—UNLAW- at 206 Indiana avenue, Indianapolis; that he had theretofore leased from the owner 2. CRIMINAL LAW 1134(3)-APPEAL-REVIEW-FAILURE OF PRoof. The question whether there was any evidence to support a conviction is one of law, within the jurisdiction of the court on appeal. 3. INTOXICATING LIQUORS FUL SALE-KEEPING PLACE-PLACE OF SALE (66 Ind. App. 388) SUIT v. HERSHMAN et al. (No. 9497.) (Appellate Court of Indiana, Division No. 1. Jan. 11, 1918.) 1010(1)—REVIEW— QUESTIONS OF FACT. If there is any evidence tending to support the decision of the trial court, the judgment will not be disturbed on appeal. 2. APPEAL AND ERROR 204(4)—RESERVATION OF GROUNDS OF REVIEW-NECESSITY OF OBJECTIONS. The appellate court is not called upon to determine whether the circumstances and the purpose for which an abstract of title was introduced were such as to make it admissible where no objection was made, as the question was waived. 3. APPEAL AND ERROR 209(5)-TRIAL Where, in an action to recover the posses- connected by two large swinging doors. The so served. Parol evidence that plaintiffs were the owners of the entire east half of a quarter section before selling 30 acres off the south end and 50 acres off the north end, was sufficient to sustain a finding of plaintiff's ownership of a small strip between such two tracts in an action to recover its possession. 5. APPEAL AND ERROR 1011(1)—REVIEW— CONFLICTING EVIDENCE. Where, in ejectment against persons claimend of a tract, the evidence that the boundaries ing under a conveyance of 50 acres off the north were pointed out to defendants by plaintiffs' authority, and that, as so pointed out, they included all the land north of a 30-acre tract and were marked by fences, was not free from conflict, the trial court's finding against defendants on this issue was conclusive, there being evidence tending to support it. 6. BOUNDARIES 55- APPORTIONMENT OF EXCESS OR DEFICIENCY. The rule that by congressional survey any excess or deficiency is placed on exterior lots applies to lots in the extreme northern and western tiers of quarter sections of a township, and had no application to a quarter section in section 15, an interior section. [3] In this case, as in the case of Dugan v. State, 118 N. E. 307, decided at this term, the question to be determined from the evi-County; Meade Vestal, Judge. dence was whether the sales of intoxicat Appeal from Circuit Court, Hamilton ing liquor were made at appellant's bar, or in the adjoining room, where he had no authority to sell. Commonwealth v. Burgett, 136 Mass. 450. The trial court evidently found that the sales were made by appellant through the waiters in the room where the money was collected, and the liquors actually delivered to the purchasers. For if the waiters, in the purchase of the liquors, acted as the agents or representatives of the patrons of the café, appellant would not be guilty, and should not have been convicted, but the evidence in this case is not such that we can say, as a matter of law, that the finding of the trial court was not justified. Judgment affirmed. Action by William H. Hershman and another against Thomas A. Suit. From a judgment for plaintiffs, defendant appeals. Affirmed. Ralph K. Kane and Thos. E. Kane, both of Noblesville, for appellant. Roscoe R. Foland and Joel Stafford, both of Noblesville, for appellees. BATMAN, P. J. [1] Appellees filed their complaint against appellant, in which they alleged that they are the owners of the east half of the northwest quarter of section 15, township 20 north, range 3 east, except 50 acres off the north end thereof, and 30 acres off the south end thereof, and asked judgment for possession, and damages. Appel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |