Page images
PDF
EPUB

appellee; (2) that it was not in fact made, conclusions of law are effective only so far a defendant below, and hence should not be as they are carried into the judgment, and made an appellee in this court.

that only parties to the judgment are neces[2] First addressing ourselves to the second sary parties to the appeal. Lowe v. Turpie, branch of this contention, it is true, as ap- 147 Ind. 652, 692, 44 N. E. 25, 47 N. E. 150, pellant insists, that in determining who are 37 L. R. A. 233, and cases there cited. parties to the ju nent appealed from, "the [6] In this case there is a judgmer that s. appellate tribunal will look through the rec-"take nothing by his action herein." This is ord to the pleadings, and, if necessary, to the necessarily a judgment against S., and in fasummons." Bozeman v. Cale, 139 Ind. 187, 35 vor of all the defendants to his action includN. E. 828; City of Decatur v. Eady, 105 N. E. ing the creamery company. 590.

[7] True, the judgment for costs against S. [3] We are unable to see how appellant is is in favor of the trust company and the rebenefited by this rule. The record entry of ceiver of the creamery company alone, but January 25th, supra, showing the filing of this fact is not of controlling importance in appellant's petition, discloses that he made determining who were parties to the judgboth the creamery company and the receiver ment on the merits. The judgment for costs thereof parties to his petition, and that sum- is merely incidental to the judgment on the mons was ordered for all defendants except merits, and instead of the former controlling said receiver. In his petition appellant com- the latter, it, the judgment for costs, is conplains of both the creamery company and its trolled by and should follow the judgment on receiver, Michael Boland, and the record en- the merits. Neyens v. Flesher, 39 Ind. App. try of March 3d, quoted supra, shows an ap- 399, 403, 79 N. E. 1087, and cases there cited. pearance by both the creamery company [8] As to the first phase, supra, of appeland such receiver. Conclusion of law No. 4, lant's contention, it is sufficient to say that supra, is a conclusion in favor of both the it is not necessary that we should determine creamery company and its said receiver, that whether the creamery company was a necesthey both “recover of said interveners and pe sary defendant to appellant's intervening pe titioners their costs." These affirmative tition. However, we cite the following aufacts, disclosed by the record, leave little thorities as tending to throw some light on ground for appellant's contention that the this question: Kokomo, etc., Co. v. Pittsburg, creamery company was made a defendant etc., Co., 25 Ind. App. 335, 336, 58 N. E. 211; through its receiver alone.

McFarland v. Pierce, 151 Ind, 546, 45 N. E. Appellant attaches importance to the fact 706, 47 N. E. 1; Mueller v. Stinesville, etc., that no summons was asked or had upon the Co., 154 Ind. 230, 56 N. E. 222; Durbin v. creamery company. This fact is consistent Northwestern, etc., Co., 36 Ind. App. 123, 134, with his contention that it was not his inten- | 73 N. E. 297; Henry v. Epstein, 50 Ind. App. tion to make the creamery company a defend- 660, 666, 95 N. E. 275; Pilliod v. Angola, etc., ant to his intervening petition, but it is in- Co., 46 Ind. App. 719, 728, 729, 91 N. E. 829; consistent with the express averment of his Northern Pac., etc., Co. v. Hillin, 83 Fed. 93, petition, indicated supra, and with the rec-94, 27 C. C. A. 460; Ohio, etc., Co. v. Nickless, ord entries, supra, which expressly show that 71 Ind. 271, 276; Chemical, etc., Bank v. such company was made a party to such pe- Hartford, etc., Co., 161 U. S. 1, 16 Sup. Ct. tition and appeared thereto. While it is true 439, 40 L. Ed. 595; Pringle v. Woolworth, 90 that this court, where necessary, will go back N. Y. 502, 510; Johnson v. Southern Co. (C. to the summons to ascertain who were the C.) 99 Fed. 616, 649; Thompson on Corporaparties to the judgment below, there is no tions (1st Ed.) 88 6893–6903; 23 Am, & Eng. necessity to do so in this case, because the Encyc. Law (20 Ed.) pp. 1041 et seq., and record shows an appearance to said petition 1122 et seq. by said creamery company.

The creamery company was, under the au[4] Appellant also attaches some impor- thorities cited, at least a proper party de tance to the fact that no answer was filed fendant, and in any event, in his petition, apby the creamery company; it being insisted pellant included it as one of the parties comthat this shows that the creamery company plained of, and hence is now in no position to was not regarded as a party. While this be heard to say that it was not a proper parfact may lend some support to appellant's con- ty defendant thereto. Clearspring Town. tention, it cannot control said affirmative ship v. Blough, 173 Ind. 15, 88 N. E. 511, 513, facts disclosed by the record. "The volun- 89 N. E. 369. tary submission of a cause for trial waives [9] The creamery company, being a defendthe failure to file pleadings forming an issue." ant below, and a party to and interested in Hose v. Allwein, 91 Ind. 497, 501; Farmers' maintaining the judgment appealed from, is Loan, etc., Co. v. Canada, etc., Co., 127 Ind. a necessary appellee in this court, and the 250, 254, 26 N. E. 784, 11 L. R. A. 740; Pur- failure to make it such leaves this court withple et al, v. Farrington, 119 Ind. 164, 169, 21 out authority or jurisdiction to disturb such N. E. 543, 4 L. R. A, 535.

judgment as to it, and hence necessitates a [5] It is further contended by appellant dismissal of the appeal. that there is no judgment against the cream Assuming, however, that the court has ju

its, the judgment below would have to be af-county of the value of $4,300, and that said real firmed. Appellant, both in oral argument and estate has continued ever since to be and is now in his brief, predicates his right to a reversal above administered, at the death of said dece

That the personal property of the judgment below upon the ground that dent, was of the value of $2,530.20, and continneither the finding nor the evidence shows ued to be of the same value up until the same that the creamery company ever had either a was disposed of as herein shown. That said real legal or equitable title to the real estate in the estate owned or possessed by said decedent

estate and said personal property comprised all controversy. We are convinced that under at the time of his death or in which he had any the law applicable to the facts shown both interest. Wherefore said administratrix asks by the finding and the evidence, the trial that she be allowed credit for said sum of $150 court was warranted in concluding that such (voucher No. 32) for her services as such admin

istratrix, and for the further sum of $150 company at least had the equitable title to (voucher' Nos. 11 & 31) for the services for her the real estate involved.

attorney, and she further asks that said sum of However, for the reasons already indicated, $466.94 (voucher No. 34) be awarded to her on

account of the indebtedness of said estate and the appeal must be and is dismissed.

the expense of administering the same exceeding

the one-fourth of said entire estate." (64 Ind. App. 496)

To this report appellant filed exceptions, QUIRK v. KIRK. (No. 9156.) *

contending that the personal estate, after

paying debts and the expense of settling the (Appellate Court of Indiana, Division No. 1. Nov, 22, 1916.)

same, should be divided, three-fourths to ap

pellee and one-fourth to appellant. To these DESCENT AND DISTRIBUTION 52(1) PER- exceptions the appellee filed a demurrer, SONALTY-RIGHTS OF WIDOW AND MOTHER.

Burns' Ann. St. 1914, § 2848, provides that, which was sustained by the court, and this if the personalty is insuficient to pay debts, is the only question involved in this appeal, the realty shall be sold to pay them, and section by the assignment of errors. 2927 provides that surplus after payment of in

Section 3027, Burns 1914, provides: testate's debts shall be distributed to heirs as of date of his death. Section 3025 provides that, if “If a husband or wife die intestate, leaving no a man die intestate leaving a widow, one-third child, but leaving a fatber and mother, or either of his estate shall go to her, subject to debts. of them, then his or her property, real and perSection 3027 provides that, if husband or wife sonal, shall descend three-fourths to the widow die intestate and the realty and personalty does or widower, and one-fourth to the father and not exceed $1,000, the whole shall go to the mother jointly, or to the survivor of them; prospouse. Held, not to entitle the spouse to all vided, that if the whole amount of property, real the personal property remaining after payment and personal, do not exceed $1,000.00, the whole of debts and expenses; both his personalty and shall go to such widow or widower." realty must have amounted only to $1,000, regardless of the balance remaining after adminis

Appellee insists that, under said section, tration.

she is entitled to three-fourths of the per[Ed. Note. For other cases, see Descent and sonal property left by the decedent against Distribution, Cent. Dig. 88 135–140; Dec. Dig. all persons, except creditors, and that she is 52(1).]

entitled to have appellant's share exhaustAppeal from Circuit Court, Rush County : ed before resorting to her own share to pay Raymond Springer, Special Judge.

debts; and that, inasmuch as the debts and Mary E. Kirk Aled final report as admin- expenses amounted to more than one-fourth istratrix of Bartholomew W. Kirk, deceased, of the personal, appellant is entitled to none and asked for distribution, to which Johan- of said balance. na Quirk filed exceptions. From an order Appellee relies upon the case of Matthews sustaining demurrer to the exceptions, con

v. Pate, 93 Ind. 443, to support her contentestant appeals. Reversed, with instruc- tion. We do not think that the case relied tions.

upon in any way supports appellee's con

tention. John H. Kiplinger, of Rushville, for ap- of section 3027, supra, only so far as it af

That case involves a construction pellant. Howard E. Barrett, of Rushville, fects the rights of a widow, as against a for appellee.

parent in the real estate of a decedent, and

holds that the one-fourth going to the parMENUTT, J. The appellee, Mary E. Kirk, ent, under said section, must first be exas administratrix of the estate of Bartholo hausted before resorting to any part of the mew W. Kirk, deceased, filed her final rewidow's share to pay debts. This holding is port, as such administratrix, in the court fully justified by the statutes regulating the below, showing a balance in her hands of descent of real estate. However, a different $466.94 to be distributed to the heirs. Said rule prevails under the various statutes reg. report further shows that said decedent died ulating the descent of personal property. intestate at Rush county, Ind., leaving, as

Section 2848, Burns 1914, provides: his only heirs at law, his widow, appellee herein, and his mother, appellant herein. insufficient for the payment of the liabilities

If the personal estate of a decedent shall be Said report further alleges:

thereof, the real estate of the deceased, if any, "That said decedent at the time of his death shall be sold to make assets for the payment of was the owner in fee of real estate in Rush such liabilities." Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied. Transfer denied.

1

Section 2927, Burns 1914, provides: ants and to the insurance company shortly after “When the deceased shall have died intestate, he obtained the release from plaintiff, and that the surplus of his estate remaining in the hands the release was produced by defendants at the of the executor or the administrator, after the trial and was relied upon as showing full paypayment of debts and expenses of administra- ment of their liability to plaintiff. tion, shall be distributed to the legal heirs of (Ed. Note.--For other cases, see Appeal and the deceased according to the laws of this state Error, Cent. Dig. $8 4066, 4075, 4101, 4542; in force at the time of his death,

Dec. Dig. Ow1170(3); Parties, Cent. Dig. $ 155.) Section 3025, Burns 1914, provides: 3. PLEADING Omw18_COMPLAINT-REQUISITES. "If a man die testate leaving a widow, one The complaint must state the cause of acthird of his personal estate shall descend to tion in certain and direct terms, sufficient to said widow, subject, however, to its proportion fully inform the defendant of what he is called of the debts of said decedent."

upon to meet, but need not go into an elabora

tion of details not essential to that end. It has been repeatedly held that the per

(Ed. Note.-For other cases, see Pleading, sonal property of a decedent is a primary Cent. Dig. $$ 39, 64; Dec. Dig. Om 18.) fund for the payment of debts and expenses 4. Costs w277(1) COLLECTION STAY OF of settling the estate, regardless of who the

SUBSEQUENT PROCEEDINGS - DISCRETION OF heirs are. Under the plain provisions of the COURT. above statutes there could be no other hold

A stay of proceedings until the payment of ing. Ditton v. Hart, 175 Ind. 585, 95 N. E. costs in a former action generally, if not uni

versally, relates to a second suit on the same 119; LaPlante v. Convery, 98 Ind. 499; New-cause of action as the former suit, and in any comer v. Wallace, 30 Ind. 216; Roberts v. event the stay cannot be obtained as a matter of Dimmett, 45 Ind. App. 566, 88 N. E. 870.

absolute right; but the request therefor presents It is shown by appellee's final report that a question of sound judicial discretion, to be ex

ercised in accordance with the circumstances the decedent left real estate of the value of of each particular case. $4,300 and personal property of the value of [Ed. Note.-For other cases, see Costs, Cent. $2,530.20. In order to entitle appellee to all Dig. $$ 1048, 1058; Dec. Dig. Om 277(1).] the personal property remaining, after the 5. Costs Om 277(1) – COLLECTION STAY OF payment of debts and expenses of settling

SUBSEQUENT PROCEEDINGS DISCRETION OF

COURT. the estate, it would have to appear that the

The refusal to stay proceedings, in an action whole estate left by decedent amounted to on a contract to employ plaintiff as part con. no more than $1,000.

sideration of a release of claim for injuries, till It follows that the court erred in sustain- payment of costs in a former action for the ining the demurrer to the exceptions.

juries, is not an abuse of discretion. The judgment of the court below is re- Dig. sg 1048, 1058; Dec. Dig. Om277(1).]

[Ed. Note.-For other cases, see Costs, Cent. rersed, with instructions to overrule said demurrer and for further proceedings not

6. PRINCIPAL AND AGENT Om123(3)—LIABILI

TIES TO THIRD PERSONS AUTHORITY OF inconsistent with this opinion.

AGENT-SUFFICIENCY OF EVIDENCE,

In an action for breach of a contract to em

ploy plaintiff as part consideration of a release (65 Ind. App. 255)

of claim for injuries, evidence held sufficient to CARTER et al. v. RICHART. (No. 9144.) warrant the jury in finding that the agent who

made the promise had the authority to represent (Appellate Court of Indiana, Division No. 1.

defendants in making the settlement. Nov. 21, 1916.)

[Ed. Note.–For other cases, see Principal and 1. MASTER AND SERVANT Om39(1)--CONTRACT Agent, Cent. Dig. 8 422; Dec. Dig. Omw123(3).)

OF EMPLOYMENT ACTION FOR BREACH - 7. APPEAL AND ERROR Om996 REVIEW
PLEADING.

QUESTIONS OF FACT-SUFFICIENCY OF Evi.
A complaint in an action on agreement of

DENCE. defendants to employ plaintiff as part of the con Facts need not be proven by direct and posisideration for release of claim for injuries, held tive evidence, and if a fact may reasonably be suflicient against demurrer for insufficiency of inferred from the facts and circumstances in evifacts.

dence, it is suflicient on appeal. [Ed. Note.-For other cases, see Master and [Ed. Note. For other cases, see Appeal and

vant, Cent. Dig. $8 12, 45; Dec. Dig. Om Error, Cent, Dig. $$ 3908–3911; Dec. Dig. One 39(1).]

996.) 2. APPEAL AND ERROR Cw1170(3)-REVIEW-8. PRINCIPAL AND AGENT 155(1) - RIGHTS HARMLESS ERROR-RULINGS ON PLEADINGS. AND LIABILITIES AS TO THIRD PERSONS

In an action for breach of a contract to em ACTS EXCEEDING AUTHORITY. ploy plaintiff as part of the consideration for his Where an agent is clothed with apparent aurelease of a claim for personal injuries, while it thority to settle a claim against his principals would have been proper to sustain a motion to for personal injuries, if he exceeded his authormake the complaint more specific by inserting | ity and the claimant was not apprised of that the name of the person who was the agent of de- fact, the loss, if any, would fall on the princifendants in making the alleged contract, yet, pals rather than on the claimant. under Burns' Ann. St. 1914, SS 400, 407, 700, re

[Ed. Note.-For other cases, see Principal and quiring the court to disregard errors or defects not affecting the substantial rights of the parties, Agent, Cent. Dig. 88 574, 578; Dec. Dig. Om

155(1).] the denial of the motion is not ground for reversal where defendants were fully advised be- 9. CONTRACTS 9(2)–CONTRACT OF EMPLOYfore institution of the suit as to who conducted MENT-DEFINITENESS. the negotiations which resulted in the settle An agreement, in part consideration for the ment in question, and it appears that the agent release of a claim for personal injuries, to emin question reported the settlement to defend- | ploy the claimant at his old wages as long as he Om For other cases see same topic and KEY-NUMBER in all Key-Numbeced Digests and Indexes

[ocr errors]

was able to work, where he had received at least | The complaint is in substance as follows: 25 cents per hour as his average wage for sever- The appellants were partners doing business al years, was sufficiently definite to make a under the name of Carter, Lee & Co. and envalid contract.

[Ed. Note. For other cases, see Contracts, gaged in the manufacture of lumber, doors, Cent. Dig. § 16; Dec. Dig. Om 9(2).]

sash, and other materials, in the city of In10. EVIDENCE 419(20) PAROL EVIDENCE

dianapolis; that appellee was employed by AFFECTING WRITINGS-CONSIDERATION.

appellants to operate a ripsaw run by elecBy executing a release of claim for personal tricity, and while so engaged on August 21, injuries, the claimant is not precluded from 1911, was injured by reason of appellants' showing the actual consideration for which it negligent failure to properly guard the saw; was executed. [Ed. Note.-For other cases, see Evidence,

that by reason thereof he lost one finger, and Cent. Dig. § 1928; Dec. Dig. Om419(20).] two others were seriously injured; that at and

prior to such injury he was earning and re11. MASTER AND SERVANT C 44 CONTRACT FOR EMPLOYMENT-ACTION FOR BREACH-IN

ceiving $15 per week for his labor; that on STRUCTIONS.

or about September 1, 1911, appellants recInstructions that where one holds a contractognized their liability for such injury, sent to perform service and the other party wrongful their agent to call upon him, and then and ly refuses to permit the services to be performed; there promised and agreed to pay appellee it is the duty of the one who is to pe services to seek similar employment elsewhere, in full settlement of the damages due him for and if he is unable to procure other employment, said injury, the sum of $300, and further the measure of damages is the wages stipulated promised "to receive him back in their regufor the full term, and if he has been able to se iar employment,” or at such work as he had cure employment, the measure is the diminution between the wages agreed to be paid and those ability to perform, and pay him for such servreceived, that the jury should consider the kind ices the sum of $15 per week "as long as he of work at which the employé had been engaged, was able to perform labor”; that as a condiand when, if at all, he has been able to perform the work he had been engaged in, and assess the tion to such agreement appellants required damages at such amount as will fully compen- appellee to execute a written instrument resate plaintiff not to exceed the sum demanded, leasing them from all liability for damages are proper.

resulting from said injury; that in pursuance [Ed. Note. For other cases, see Master and of such agreement and release appellants Servant, Cent. Dig. $ 59; Dec. Dig. Om44.]

paid him $300 as a part of the consideration 12. TRIAL Cm 256(13) INSTRUCTIONS RE

for said release; that the release was de QUESTS-NECESSITY.

Where instructions as to measure of dam- livered and accepted by appellants; that so ages for breach of contract to employ plaintiff soon as he had sufficiently recovered from his state the rule correctly in general terms, the injuries to be able to work, he called upon failure to direct the jury to deduct interest from appellants and notified them of that fact, the amount allowed for wages to be earned in the future is not ground for reversal in the ab- and that he was ready to go to work; that sence of a tender of a more specific instruction. appellants refused to give him work, and

[Ed. Note. For other cases, see Trial, Cent. have ever since refused to employ him, Dig. § 640; Dec. Dig. 256(13).]

though frequently requested so to do; that Appeal from Superior Court, Marion Coun- when he so notified appellants, and continu

ously since that time, he was, and had conty; Joseph Collins, Judge.

tinued to be, able to work, and ready and Action by William T. Richart against Fred

willing to continue in appellants' employment erick L. Carter and others. From a judg

in pursuance of their agreement aforesaid; ment for plaintiff, defendants appeal. Af

that he has performed all the conditions of firmed.

said agreement by him to be performed, and Elam, Fesler & Elam and Howard S. has been continuously out of work since that Young, all of Indianapolis, for appellants. time; that he had diligently sought, but been White & Jones, of Indianapolis, for appel- unable, to obtain similar employment; that lee.

by reason of appellants' violation of their

agreement to give him employment he has FELT, J. This is a suit for damages for suffered and been damaged in the sum of the breach of an alleged contract of employ- $10,000, for which he demands judgment. ment. Issues were formed by a complaint [1] Appellants assert that the complaint is and an answer of general denial. A trial by insufficient because the averments do not jury resulted in a verdict for $1,000. Appel- show that the minds of the parties ever met lants' motion for a new trial was overruled, on the material and essential features of the and judgment rendered on the verdict. Ap-contract; that its provisions are too indefipellants have assigned as

(1) The nite to constitute an enforceable contract. overruling of their motion to make the com The complaint is clearly sufficient, under plaint more specific; (2) overruling the mo- the decisions as against a demurrer for intion to stay proceedings until certain costs sufficiency of facts. Pa. Co. v. Dolan, 6 Ind. were paid; (3) overruling the demurrer to App. 109-114 et seq., 32 N. E. 802, 51 Am. the complaint; and (4) overruling the motion St. Rep. 289; Indianapolis Union Ry. Co. v. for a new trial.

Haulihan, 157 Ind. 494-507, 60 N. E. 943,

error:

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

54 L. R. A. 787; Stewart v. Chicago, etc., [4, 5] Appellants also contend that the Ry. Co., 141 Ind. 55–59, 40 N. E. 67; Beatty court committed reversible error in overrulv. Coble, 142 Ind. 329-333, 41 N. E. 590; Eisel ing their motion to stay proceedings in this v. Hayes, 141 Ind. 41-43, 40 N. E. 119. case until appellee paid the costs of another

[2] Appellants also contend that the court suit, brought to recover damages for the incommitted reversible error in overruling their jury to his hand while in appellants' employmotion to make the complaint more specific ment which he had dismissed before comby inserting the name of the person who was mencing this action. This suit is for a the agent of appellants in making the alleged breach of an alleged contract to employ apemployment agreement. It would have been pellee, and is therefore a different cause of proper for the trial court to have sustained action from that of the former suit. The appellants' motion, but it does not necessarily trial court evidently concluded that this suit follow that in overruling such motion the was brought in good faith; that it was not court committed reversible error. If no sub-vexatious or without merit. stantial injury results from the ruling, it is A stay of proceedings until the payment of not prejudicial, though technically erroneous. costs in a former action generally, if not uni.

[3] The complaint must state the cause of versally, relates to a second suit based on action in certain and direct terms, sufficient the same cause of action as the former suit. to fully inform the defendant of what he is In any event such stay cannot be obtained called upon to meet, but need not go into an as a matter of absolute right, and the reelaboration of details which are not essential quest therefor presents a question of sound to that end. Section 665, Elliott, App. Pro- Judicial discretion to be exercised by the cedure; P., C., C. & St. L. Ry. Co. v. Simons, court in accordance with the facts and cir168 Ind, 333-339, 79 N. E. 911; Alleman v. cumstances of each particular case. Wheeler, 101 Ind. 141-143; City of Logans Primarily the merits of the former case de · port v. Newby, 49 Ind. App. 674-677, 98 N. pended upon appellants' liability for the inE. 4; Lewis v. Albertson, 23 Ind. App. 147-jury to appellee's hand. The merits of this 151, 53 N. E. 1071; American Fire Ins. Co. case do not depend upon that question, for v. Sisk, 9 Ind. App. 305–309, 36 N. E. 659; this case proceeds on the theory that the parIndiana Stone Co. v. Stewart, 7 Ind. App. ties had agreed upon a settlement for such 563, 564, 34 N. E. 1019.

liability, and that appellants had violated the Furthermore an examination of the whole agreement by refusing to give appellee emrecord shows that before the institution of ployment. this suit appellants were fully advised as to These facts were necessarily before the who conducted the negotiations which re-trial court, and we cannot say there was any sulted in the settlement with appellee; that abuse of discretion in refusing to stay the his name was Cherry, and he reported the proceedings in this case. Kitts v. Willson, settlement to them and to the insurance com- 89 Ind. 95-98; Wait v. Westfall, 161 Ind. pany shortly after he obtained the release 648-651, 68 N. E. 271; Citizens' Street Ry. from appellee; that appellants received the Co. v. Shepherd, 29 Ind. App. 412-414, 62 release and set it up as a defense in a suit N. E. 300. for damages for personal injuries brought [6] Under their motion for a new trial apagainst them by appellee and dismissed be pellants present the question of the sufficienfore this suit was begun; that Cherry was cy of the evidence and alleged error in givpresent at the trial of this case and testified ing and refusing certain instructions. It is as a witness; that appellants retained said asserted that there was no evidence from release and relied upon it as showing full which the jury could infer that the person payment of their liability to appellee and as who made the settlement with appellee had a complete defense to this suit; that there any authority to promise him employment, was no dispute in the evidence as to the or that appellants knew of such contract, or identity of the person who made the settle in any way ratified the same. ment and obtained the release, and the ques The evidence shows that appellants carried tions involved were as fully and fairly tried liability insurance in the General Accident, out as they could have been had the motion Fire & Life Insurance Corporation; that the been sustained and the amendment made in policy issued to them, among other things, conformity with appellants' motion.

provided that the insurance company should In such situation, the ruling, if erroneous, “defend in the name and on behalf of the was not prejudicial, and this court would assured, any suits, • brought against not be warranted in reversing the judgment the assured to recover damages" for personal on account thereof. Sections 400, 407, 700, injuries; that the assured should give writBurns 1914; Shedd v. American Maize Pro- ten notice with full information to the comducts Co., 108 N. E. 610_615; Chicago, etc., v. pany, or its agent, and aid in effecting setGorman, 58 Ind. App. 381-391, 106 N. E. 897; tlements of claims by securing information National Live Stock Ins. Co. v. Wolfe, 59 and furnishing evidence. The evidence also Ind. App. 418-425, 106 N. E. 390; First Na- tends to show that appellee's accident was tional Bank v. Ransford, 55 Ind. App. 663– reported by appellants to the insurance com

« PreviousContinue »