JURY.

An employé was ruptured in June, 1916, but the rupture did not immediately disable him. With the aid of a truss he continued to work for the same employer for about six months, his superiors knowing of his condition and recognizing it by giving him lighter work. In January, 1917, because of the aggravated condition of the rupture he became totally disabled and was obliged to quit the work. Held, that the real injury did not develop until January, 1917, and notice of the injury given within 30 days thereafter was in time.

Appeal from Industrial Board. Proceeding under Workmen's Compensation Act by John M. Stewart to obtain compensation for personal injuries, opposed by the Hornbrook-Price Company, employer. Compensation was awarded, and the employer appeals. Affirmed.

Henley & Joseph, of Indianapolis, for appellant. Frank B. Ross, of Indianapolis, for appellee.

DAUSMAN, J. In June, 1916, appellee was, and for a long time prior thereto had been, a workman in appellant's factory. In the latter part of said month-the precise day appellee is unable to state he was engaged in cutting heavy sheet steel with hand shears. The work required severe physical exertion. In order to feed the steel into the shears while cutting he was required to press his abdomen against it with great force. While thus pressing the weight of his body against the metal and pulling down on the handle or lever of the shears, being in a condition of intense muscular strain, he "felt something give way," causing a peculiar sensation in the lower part of his abdomen. He suffered so much pain that he was unable to go on with the work. His helper then took up the work and finished that job for him, Stewart lending such assistance as he was able. The remainder of the evening he did nothing. After that he was given lighter work. For the next day or two he suffered so much that he decided to consult a doctor. The doctor discovered a "right hernia," and procured for him a truss which he has worn continuously since. He continued to work for appellant until some time in January, 1917, when he quit because his rupture had gradually grown worse until he was disabled for manual labor.

of the Workmen's Compensation Act-never heard of it until about two weeks after he quit work. On the 19th day of March, 1917, Stewart filed his application for an award of compensation. On the 11th day of June, 1917, the board made a finding of facts and an award. Among other things the board found:

"That the defendant's foreman, under whom the plaintiff was working, and the defendant's superintendent both had knowledge of the plaintiff's accident and injury within 24 hours after the occurrence."

[1] Counsel for appellant inform this court that:

"There is but one main question in this case, and that is whether or not the Hornbrook-Price Company had knowledge of the accident as was intended by the Legislature so as to excuse the giving of notice."

Their contention is that sections 22 and 23

of the Workmen's Compensation Act should be construed together and in such manner as to make that part of section 22 which refers to knowledge of the injury read as follows:

"Unless it can be shown that the employer, his agent or representative upon whom a summons in civil action may be served under the laws of the state, had knowledge of the injury."

We cannot sustain counsel's contention. The knowledge of the foreman under whose direct and immediate supervision appellee worked from day to day must be regarded as the imputed knowledge of the employer, and for the greater reason the knowledge of the superintendent of the factory who had general supervision of the plant must be held to be the imputed knowledge of the corporation. No other construction can be made to harmonize with the manifest legislative intent as revealed by the statute itself. Allen v. City of Millville, 87 N. J. Law, 356, 95 Atl. 130. The Legislature did not see fit to incorporate the above italicized words in section 22, and we cannot do so by way of construction.

[2] It should be observed that the injury is the thing of which notice is to be given and that the time is to be reckoned from the occurrence of the injury. The accident causing Stewart's rupture occurred the latter part of June, 1916, but was of such a character that it did not immediately disable him. With the aid of a truss he continued to work for the same employer for a period of six months thereafter. During all this period his superiors knew of his condition and recognized it by giving him lighter work. In January, 1917, because of the aggravated condition of his rupture, he became totally disabled and was obliged to quit the work. Under these circumstances it must be held that the real injury did not develop until January, 1917. Evidently the Industrial Board has so Within five or ten minutes after the acci- regarded it, for the award provides that comdent Stewart told his foreman about it, and pensation shall begin on the 15th day of Janthe same evening or the next morning he in- uary, 1917, and makes no allowance for the formed the factory superintendent. He did surgeon's fees for services rendered Stewart not ask his employer to pay for the truss or between the date of the accident and the date for the medical services. He knew nothing of the disability. It appears from appellant's

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(66 Ind. App. 382) WAZNITSKI v. GEORGE B. LIMBORT & insufficiency, due to its carelessness, negli

(Appellate Court of Indiana, Division No. 2. any action prosecuted under its provisions

The complaint, eliminating matters of surplusage and matters not material to the question in controversy, alleges, in substance, IBACH, C. J. This is an action for per- the following: The appellee is a corporation sonal injuries alleged to have been received engaged in the foundry business in this state, by appellant while in the employ of appellee. and employs in such business more than At the close of plaintiff's evidence, and over five men, among them the appellant, who was his objection and exception at the request on March 3, 1913, employed as a laborer of appellee, the court instructed the jury to and was under the orders and directions of

Ind. App. 288, 295, 97 N. E. 192. "Upon a motion for a peremptory instruction, the court is bound to accept as true all facts which the evidence tends to prove, and to draw, against the party requesting such instruction, all inferences which the jury might reasonably draw, and, in case of conflict in the evidence, to consider only that favorable to the party against whom the instruction is asked, that favorable to the party being treated as withdrawn." Lyons v. City of New Albany, 54 Ind. App. 416, 421, 103 N. E. 20, 23; Barker v. Chicago, etc., R. Co., 51 Ind. App. 669, 99 N. E. 136.

a foreman to whose orders and directions he v. Third Presb. Church, 20 Ind. 71; Evanswas bound to conform and did conform. Said ville Gas, etc., Co. v. Robertson, 55 Ind. App. foreman was experienced and understood the 353, 358, 100 N. F. 689; Ochs v. M. J. Carnadangers incident to the employment, which han Co., 42 Ind. App. 157, 76 N. E. 788, 80 N. fact was known to appellant. Appellee had E. 163; New York, etc., R. Co. v. Callahan, 40 constructed a large casting six feet in width| Ind. App. 223, 81 N. E. 670; Indiana Match and thirteen feet in length. After the cast- Co. v. Kennedy, 45 Ind. App. 627, 90 N. E. ing had been made, some defects, or holes, 486; Mercia v. Ft. Wayne, etc., Trac. Co., 49 were discovered in the top near the center which were approximately three inches in depth. The foreman made an examination of said holes after they had been prepared for filling, and instructed and directed appellant to take a hand ladle and fill said holes with molten metal. Pursuant to said instructions and following out the directions of the fore man and relying upon his superior knowledge of said conditions and believing from said instructions that they were in proper condition to receive said molten metal, appellant, without any carelessness or negligence on his part, but in a careful, prudent and painstaking manner, proceeded to and did pour [3] If, after eliminating all evidence favorsaid molten metal into said holes. On ac- able to appellee, there was any evidence recount of the dampness which had formed in maining which, with its legitimate inferences, said holes coming in contact with the molten would have been sufficient to support each of metal as it was being poured in by appel- the facts essential to a verdict for appellant, lant a steam was formed which exploded, if one had been returned in his favor, the throwing the molten iron upon appellant, trial court should not have sustained such thereby injuring him. All of said injuries motion. were received wholly on account of the carelessness, fault, or negligence of appellee and its foreman in requiring appellant to pour said metal into the holes in the top of said casting when the same was not prepared properly for its reception. Appellant did not know of the formation of the steam or that an explosion would result from the same, had had no experience in that class of molding, and did not know that the casting was not in a proper condition to receive said molten metal, but the appellee's foreman made an examination of the casting and stated to appellant that the same was in proper condition and ordered and required appellant BINGHAM v. NEWTOWN BANK (KELLER, to proceed with the work.

"Said injuries were received by plaintiff because said molten metal was poured into said holes when it was not in proper condition, and the same was done by plaintiff under the specific directions and orders of said foreman which was the proximate cause of said injuries to plaintiff."

[1, 2] The proposition contended for by appellee that the sufficiency of a pleading must be determined by its general tenor and scope, that it must proceed upon a definite theory and must be good on that theory, are too well settled to require any comment. But it is clear to us that the complaint in this action proceeds on a clear and definite theory and states a cause of action. Where a complaint is sufficient as against demurrer, and there is proof of enough of the facts alleged to make out a cause of action, other incidental and descriptive facts, or additional acts of negligence, alleged in the complaint, may be ignored and treated as surplusage. Harding

Without narrating the evidence it is sufficient to say that there was some evidence within the rules above announced tending to support each of the material facts set forth in the complaint, and therefore would have been sufficient to support a verdict for appellant, and it was an invasion of the province of the jury for the trial court to direct a ver

dict.

For this error the judgment is reversed, with directions to sustain appellant's motion for a new trial.

(67 Ind. App. 266)

Intervener). (No. 9452.)*

(Appellate Court of Indiana, Division No. 2. Jan. 8, 1918.)

1. BILLS AND NOTES 151-"NEGOTIABLE INSTRUMENTS"-CERTIFICATES OF DEPOSIT. Certificates of deposit when made in negotiable form are negotiable, and subject in general to the rules of negotiable paper.

[Ed. Note.-For other definitions, see Words ble Instrument.] and Phrases, First and Second Series, Negotia

The fact that money was made payable on return of the certificate was not such a contingency as affected the negotiable character of the instrument. 3. BILLS AND NOTES 154-INLAND BILLS OF EXCHANGE-PLACE OF PAYMENT.

A certificate issued by an Indiana bank for money deposited in "this bank," and payable ed," sufficiently showed that it was payable at "upon return of the certificate properly indorsan Indiana bank as an inland bill of exchange,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied.

Appeal from Circuit Court, Fountain Coun- not be doubted that Indiana banks have a ty; Isaac E. Schoonover, Judge.

Bingham & Bingham, of Indianapolis, and Charles M. McCabe, of Crawfordsville, for appellant. C. W. Dice, of Covington, and Adams, Follansbee, Hawley & Shorey, Clyde E. Shorey, and John E. Gavin, all of Chica-94 Me. 348, 47 Atl. 908, 80 Am. St. Rep. 401; go, Ill., for appellee.

bill of exchange, it foliows that the facts set 18. SALES 398-ACTIONS-INSTRUCTION. up in appellee's reply, viz. that he was a purchaser in good faith, before maturity, for value and without notice of any defenses or claims, in due course, was a sufficient answer to the defense alleged by appellant that the certificate was negotiated without the authority of the payee. The court did not err in overruling the demurrer to said reply.

purchase price of tractor warranted by defendIn an action by plaintiff to recover back the ant, an instruction authorizing a verdict for plaintiff in case the jury should find a breach of warranty, but which did not require plaintiff to have complied with the provisions of the warranty which were made a condition precedent, is erroneous, and a verdict based thereon must be reversed.

Appeal from Superior Court, Marion County; W. W. Thornton, Judge.

Since the filing of appellant's brief in this case, the cross-complaint filed by appellee Action by William C. Haueisen against the Keller was brought into the record by cer- International Harvester Company of Ameritiorari and the points under the motion for ca. From a judgment for plaintiff, defendant new trial made upon the theory that no cross-appeals. Reversed, with instructions. complaint was filed are admitted to have no bearing and will not be considered. Other points raised under such motion would re

quire a consideration of the evidence which is not before us, and therefore cannot be considered.

Bernard Korbly and Willard New, both of Indianapolis, for appellant. Whitcomb & Dowden, of Indianapolis, for appellee.

HOTTEL, J. This is an appeal from a

No reversible error being shown the judg- judgment in appellee's favor for $2,410.14 in

ment of the trial court is affirmed.

Judgment affirmed.

(66 Ind. App. 355)

an action brought by him against appellant to recover the purchase price of a tractor engine purchased by appellee from appellant for use on appellee's farm.

The only ruling of the trial court assigned

INTERNATIONAL HARVESTER CO. OF as error and relied on for reversal is the

AMERICA v. HAUEISEN.

(No. 9425.)

overruling of the motion for a new trial. By this motion appellant challenged the action of

(Appellate Court of Indiana, Division No. 1. the trial court in admitting certain evidence, and in giving and refusing certain instructions.

Jan. 9, 1918.)

PAROL EVIDENCE

1. EVIDENCE 441(1)
RULE.
Verbal negotiations and representations are
merged in a written contract.

2. EVIDENCE 450(8) — WARRANTIES DENCE.

EVI

The complaint is very long, and while its sufficiency is not challenged, the parties in their respective briefs differ as to the theory upon which the case was tried below, and as this difference enters largely into their respective contentions affecting the said several rulings relied on by appellant for reversal, it will be necessary to indicate those aver ments of the complaint which are of influence in the determination of its theory and the correctness of said rulings with reference 3. TRIAL 255(4)-INSTRUCTIONS-REQUEST. Where the party desires the court to limit thereto. They are, in substance, as follows: evidence to the particular point for which it is On March 11, 1912, appellee owned a river admissible, he should request an appropriate instruction so limiting the evidence.

Where the seller of a tractor in writing warranted that it would do good work and was well made, parol evidence as to the purpose for which the tractor was intended and with respect to which it would do good work was admissible; the written warranty being uncertain and ambiguous.

4. CONTRACTS 170(1)-CONSTRUCTION—EV

IDENCE.

bottom farm on White River, which was subject to overflow during periods of high water. The soil of said farm is of a sandy Where a written contract is ambiguous, the nature, made so by the sediment and deposits acts of the parties in respect to its fulfillment from the river. Appellant is a manufac are admissible to assist the court in interpretation.

5. CORPORATIONS 410-GENERAL AGENTS— AUTHORITY.

A general agent for a corporation who effected sales has power to bind the corporation by his agreements with respect to sales. 6. SALES 277-ACTIONS EVIDENCE.

turer of tractor engines operated by

kerosene. These tractors were made to be sold to farmers to be used for drawing plows in breaking the soil and for drawing mowers and reapers, in cutting wheat and other grains, and for operating threshing machines Evidence as to the construction of written in threshing wheat and other grains. At warranties embraced in a contract of sale made said time, as well as at all other times involvby defendant's general agent before plaintiff ed herein, J. A. Everson was appellant's executed his note for the purchase price of the general agent, and W. F. Street was its sales tractor bought is admissible as to the construc-agent at Indianapolis, and as such agents had

tion of the contract.

7. SALES 258-WARRANTIES—EXTENSION- full power to represent appellant in the sale CONSIDERATION. of its said tractors and in all matters herein Where plaintiff disputed his liability on a set out. Prior to said date appellant began note given for the purchase price of a tractor, negotiations with appellee to sell him a trachis payment of the note before it was due was sufficient consideration for the extension of the tor to be used on said farm, for furnishing seller's warranty. motive power for plowing the soil, for cutting

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