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June, 1911, the traction company filed a pe frate. We are of the opinion that appellants tition with the Railroad Commission against are in error, The evidence shows that Koappellants, alleging discrimination, and pray- komo is a thriving manufacturing city, with ing for an order, authorizing its participation scores of factories. Many of them are operatin the 65-cent rate. A hearing resulted in an ed by electric power, from current generated order, providing that the traction company on the premises, by means of coal shipped should be accorded the manufacturers' rate at the 65 cent rate. The traction company on that portion of coal which might be used supplies the current to 56 factories, for their by it in generating electric current furnished operation, in fabricating outbound wares. If to its factory patrons making outbound prod. these 56 factories should establish a central ucts. The order provided a method of as- plant for generating current for all, it would certaining the amount of coal used for such be difficult to perceive why they should not purposes by requiring the petitioner to in- be entitled to the same rate as that enjoyed stall electric current meters at the manu- by their competitors in generating power at facturing plants, and subject to the car- their respective plants; and, if so, why Hers' inspection. It further required the should not a third party, furnishing the petitioner to pay a 75-cent rate on all coal same power to the 56 plants, be accorded received, when delivered, but further provid- the same rate? Possibly the central plant ed that at the end of each three-month peri- might not use quite as much coal in genod, after the ascertainment of the amount of erating the current required, but whatever coal consumed for manufacturing purposes, incidental loss the carrier might thereby suisthe carriers should refund to petitioner the tain would probably be compensated by the sum of 10 cents per ton for the coal consum- economy in dealing with one rather than ed by it in generating current for its manu- with numerous shippers. We are of the facturing patrons. To vacate that order this opinion that while the traction company is action was instituted.

not directly engaged in manufacturing outThe complaint assalls the validity of the bound products, it should, under the facts order for reasons hereinafter discussed. Ap- disclosed, be accorded the manufacturers' pellee filed an answer, to which appellants rate, unless precluded by other matters heredemurred. The demurrer was overruled. A after noted. trial resulted in a finding and judgment for [3] It is next insisted that the order is appellee. Appellants rely on the alleged er- unreasonable, and impracticable because rors in the ruling on the demurrer and in there is no way for certain ascertainment of overruling their motion for a new trial, which the coal consumed that would be entitled to asserts that the court's finding is contrary to the manufacturers' rate. This question is law. The evidence follows the allegations not without difficulty. The traction company of the answer, and the errors assigned are uses its coal for generating electricity for the considered together.

use of its traction lines, for lighting purpos(1) Appellant first contends that the Com-es, and for power furnished the factories. mission had no power to establish different There was evidence that by the use of elecrates on coal transported by the same car. tric meters (with the carriers accorded the rier between the same points under substan- right of inspection), it could be ascertained tially like conditions and circumstances. We with accuracy the amount of coal consumed are of the opinion that this record does not in manufacturing the current supplied to the require a decision of such point. The com- factories for power purposes. In view of plaint here did not attack the 60-cent rate. this evidence we do not feel warranted in The petition of the traction company was for setting aside the finding of trial court, alrelief against alleged unjust discrimination though the method of ascertaining the In charging it the 75-cent rate, while accord amount of coal consumed is a complex one, ing to its competitors the 65-cent one. The and might open an avenue to fraud on the order of the Commission, following a hearing carriers in the absence of careful inspection on the petition, did not order or establish any by them of the meters used. But it should new or different rate, but provided that the not be forgotten that the ever-increasing competitioner should be accorded the manufac plexities of modern life, whatever their turers' rate, long before established by appel- cause, necessarily impose new duties on carlants with assent of the Commission. How- riers, as well as on those served by them. ever, a statute of this state expressly author. Inspection of electric meters, in connection izes carriers, with the assent of the Com- with the charges of just rates for transpormission, to establish lower rates for coal tation, no doubt appears to the carrier as an used for manufacturing purposes than when unjust imposition of a new duty. Surely it used for domestic ones. Acts 1907, p. 434 ; is a new duty, but we do not feel inclined to section 5215, Burns 1914. On the subject of consider it so onerous as to warrant the setlower rates where “milling in transit ar- ting aside of the order. rangements are involved, see 4 R. C. L. 596, [4] It is finally urged that the Commission $ 67, and authorities cited.

did not find the 75-cent rate charged the [2] The next point urged by appellant is traction company to be unreasonable. As bethat the traction company was not, under fore noted, the petition of the traction comthe evidence, entitled to the manufacturers' pany was for relief for alleged unjust dis

crimination, and the order was made by the were and are located on the western half Commission on such theory, and pursuant to of the street; that appellant's right of way, express statutory authority. Acts 1911, p. used in the operation of its railroad between 460, § 5537, Burns 1914.

Terre Haute and Evansville, adjoins the east Judgment affirmed.

line of the highway, its tracks running north

and south. In the year 1910 Lash filed with (185 Ind. 678)

the Commission his petition for an order, reCHICAGO & E. I. R. CO. v. PUBLIC SERV- quiring appellant to construct a switch to a ICE COMMISSION OF INDIANA.

point on its right of way across the street

from the mill so as to enable Lash to load (No. 22649.)

and unload cars at such point, he to use an (Supreme Court of Indiana. Dec. 13, 1916.) overhead steel conveyor to transfer mer. 1. RAILROADS w225 - REGULATION STAT-chandise across the highway and traction UTES—"ABUTTING." Burns" Ann. St. 1914, § 5533k, providing the proposed switch. The Commission made

line therein, between the mill and cars on that a carrier may be required to construct on its property a switch when necessary to ac- the order requested, but it was vacated in commodate the business of any elevator or mill 1911 by the superior court of Vanderburgh abutting on its line, where there is no space for county. The petition for the order in questhe proprietor to construct it on his own premises, does not authorize the Public Service Com- tion was filed in 1912, and avers that Lash mission to require a railroad to construct a contemplates the erection of a storage eleswitch for a mill which is separated from the vator, connected with his mill, to front on right of way by a public street, although there the west line of the street, and that it is was evidence that the millowner owned the fee of the street, since the purpose of the Legisla- proposed to haul in wagons across the street, ture was the elimination of the necessity of a to and from the switch prayed for, the merwagon haul, and there is nothing in the act to chandise to be received and shipped in carindicate an intention to use the term "abutting" in any but its ordinary sense of touching, meet- load lots; that the mill in existence and the ing, or coming together,

elevator contemplated are and will be so [Ed. Note.-For other cases, see Railroads, located as to leave no space for Lash to Cent. Dig. § 739; Dec. Dig. Om 225.

construct a switch on his own property, and For other definitions, see Words and Phrases, that it will be necessary to construct the First and Second Series, Abutting.)

proposed switch on the right of way of ap2. STATUTES 188–CONSTRUCTION-MEAN

pellant. The order made by the Commission, ING OF WORDS.

The legislative purpose shown by the con- granting the second petition, was assailed in text of a statute should not be defeated by ad- the court below for various reasons, includherence to definitions of words found in dic- ing the one asserted that the mill does not tionaries, however reputable.

abut on appellant's line or right of way, and [Ed. Note:-For other cases, see Statutes, that because thereof the Commission was Cent, Dig. 88 266, 267, 276; Dec. Dig. 188.)

without lawful power to make the order.

The same proposition is urged here. There Appeal from Superior Court, Vanderburgh

was evidence which warranted the trial court County; F. M. Hostetter, Judge. Action by the Chicago & Eastern Illinois title to the land burdened by the street and

in finding that Lash owns the fee-simple Railroad Company against the Public Service Commission of Indiana, to vacate an had jurisdiction to make the order, its pow

traction line easements. If the Commission order of the Commission. Judgment for the Commission, and plaintiff appeals. Re- er was derived from section 3 subd. "k" of versed, with instructions to grant motion for the Railroad Commission Act of 1903, as

amended in 1907 (Acts 1907, p. 454, $ 5533k, new trial.

Burns 1914). So much of the subdivision of Homer T. Dick, of Chicago, Ill., and John the section as is pertinent here reads as folE. Iglehart, Edwin Taylor, and Eugene H.

lows: Iglehart, all of Evansville, for appellant.

"Every such carrier engaged in handling Brill, Hatfield & Brady, of Evansville, for freight in carload lots may be required, upon appellee.

application therefor by the party having use for the same, to construct upon its property and

properly connect with its line, when the same MORRIS, J. Action by appellant to va- can be done with safety and is reasonably nec. cate an order, made in 1912, by the Railroad essary, all siding, switch, spur or turnout tracks, Commission, requiring appellant to construct necessary to accommodate the business of any

that is now, or may a switch. There was a finding and judgment hereafter be constructed abutting its' line, and by the trial court in favor of appellee. where there is no space for the proprietor [1] The record shows that in 1910 Fred B. thereof to construct the same on his property.

" (Italics ours). Lash owned a flourmill in the town of Farm. ersburg, Sullivan county; that the mill was It is contended by appellant that Lash's and is now located on the west side of and mill does not abut appellant's right of way, adjoining First street, a public highway since a public street intervenes between the running north and south; that then and structure and appellant's line, and that connow the poles and track of the Terre Haute, sequently the order is not within the statuIndianapolis & Eastern Traction Company tory power conferred on the Commission, and

TIONS.

we are of the opinion that such contention 13. INSURANCE M82 AGENTS-ACCOUNTING should prevail. The word "abutting" as com

FOR PREMIUMS MASTER'S REPORT — "AL

LOW"-"OR." monly understood, means a touching, meet

Where the master commissioner's report ing, or coming together. 1 C. J. 376.

found and allowed certain amounts as "commis[2] A legislative purpose, shown by the sions due or allowed the agent from the insurer," context of a statute, should not be defeated the word “or” was used as a connective and not

an alternative, and the word "allow” meant to by mere blind adherence to definitions of concede, consent to, or grant, so that such words found in dictionaries, however reputa- amounts, being for premiums unpaid, the report ble. Spickerman v. Goddard, 182 Ind. 523, could be construed as finding that the insurer

agreed to allow such amounts, though not due, 107 N. E. 2, L. R. A. 1915C, 513. Here, how- in spite of the contract requiring premiums to ever, the dominant purpose of the Legisla- be paid in advance before the agent could have ture was most likely the elimination of un

his commission. necessary expense and labor in loading and cent. Dig. $g 107, 108; Dec. Dig. Om82.

(Ed. Note.-For other cases, see Insurance, hauling by wagons or trucks, manufactured

For other definitions, see Words and Phrases, and other products, in carload lots, between First and Second Series, Allow; Or.] mill or factory and the established place for 4. APPEAL AND ERROR Om931(10)-REVIEWloading and unloading cars. Such purpose

CONCLUSIVENESS OF MASTER'S REPORT. would not be subserved by the order in ques. ter's report of the facts, when adopted by the

In the absence of the evidence, the mastion. The only saving here, as shown by the court, must be presumed to be correct. record, would be in the length of the wagon (Ed. Note. For other cases, see Appeal and haul by reducing it from a quarter of a mile Error, Cent. Dig. 8 3728; Dec. Dig. Om 931(10).] to about 40 feet. We are satisfied that there 5. APPEAL AND ERROR 900 PRESUMPis nothing in the act which would warrant us in ascribing to it a legislative purpose of the action of the trial court until it is made

Presumptions should be indulged in favor substantially broader than that indicated by to appear that the court erred therein. the word "abutting'' when given its ordi [Ed. Note. For other cases, see Appeal and nary meaning. Indianapolis, etc., R. Co. v. Error, Cent. Dig. $$ 3667–3669; Dec. Dig. Om Capital Paving Co. (1899) 24 Ind. App. 114, 900.] 118, 54 N. E. 1076; Millan v. City of Chari Appeal from Superior Court, Vigo County ; ton, 145 Iowa, 648, 124 N. W. 766; 25 Am. John E. Cox, Judge. & Eng. Ency. Law (2d Ed.) 1190; North. Pac. Action by the Doak-Riddle-Hamilton ComR. Co. v. Douglas County, 145 Wis. 288, 130 pany against Herman Raabe. From a judgN. W. 246; Kneebs v. Sioux City, Iowa, 156 ment on the master commissioner's report, in Iowa, 607, 137 N. W. 944; City of Springfield part for plaintiff, plaintiff appeals. Affirmed. v. Green, 120 Ill. 269, 11 N. E. 261; Holt v. Beasley, Douthitt, Crawford & Beasley, of City Council of Somerville, 127 Mass. 408; Terre Haute, for appellant. Bouvier, Law Dictionary; Lewis v. Johnson (C. C.) 90 Fed. 673; Fralinger v. Cooke, 103 CALDWELL, J. Appellant, an Indiana inMd. 682, 687, 71 Atl. 529.

surance company, brought this action against Judgment reversed, with instructions to appellee, who was formerly its agent, to regrant appellant's motion for a new trial.

cover on account of certain expense money

advanced to appellee, and certain insurance SPENCER, J., not participating.

premiums alleged to have been collected by

him and not accounted for. The cause hav(63 Ind. App. 250)

ing been placed at issue was referred to a DOAK-RIDDLE-HAMILTON CO. V.

master commissioner, appointed under the RAABE. (No. 9146.)

provisions of section 1677, Burns 1914, “to

hear the evidence, ascertain the facts, and (Appellate Court of Indiana, Division No. 2. report his findings.” The court adopted the Dec. 14, 1916.)

report as made, except the eighth specifica1. APPEAL AND ERROR Cw931(10)-PRESUMP- tion thereof, and on the report as adopted

TIONS MASTER'S FINDINGS-ADOPTION BY found for appellant in the sum of $69.03, with COURT.

Though the agency contract required the interest in the sum of $12.42, and rendered soliciting agent to collect premiums, the court judgment for $81.45, the aggregate. Appelcould not presume that he did collect them in lant presents, among other questions, that the face of the master's finding adopted by the the amount of the recovery is too small. court that he did not collect them. (Ed. Note.–For other cases, see Appeal and

The eighth specification of the report reError, Cent. Dig. $ 3728; Dec. Dig. Om 931(10).] jected by the court as aforesaid was to the

effect that a named sum was due appellant 2. INSURANCE Om83(1) – AGENTS–LIABILITY in cash, if the court placed a certain conFOR PREMIUMS.

The soliciting agent for insurance held un-struction on the contract of employment exder the evidence not chargeable with premiums ecuted by the parties February 8, 1910. A unpaid by applicants on insurance written by proper construction of the contract deterhim.

mines the entire controversy. It is made a (Ed. Note.--For other cases, see Insurance, part of the master's report as adopted by Cent. Dig. 88 107, 109, 110; Dec. Dig. 83(1).]

the court. The following abstract of the conFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tract includes the substance of its provisions $423. Facts are reported rendering appellee material to the controversy. It specifies that liable for $8.61 on account of policies canthe agent's services should commence Febru. celed and premiums returned. Appellee colary 8, 1910, and that either party might ter- lected and paid to appellant on applications minate the contract by giving seven days' written by him premiums amounting to $1,notice to the other in writing, and that it 241.! His commission on such premiums so terminated, the power of the agent to col- amounted to $291.78, which commissions he lect and receive premiums should cease; did not reserve, but paid to appellant. He that if the contract should be terminated by wrote other applications on which premiums either party for any cause, the compensa- subject to commission amounted to $215.07. tion which shall then have been paid to the His commission thereon amounted to $70.80. agent, together with the amount then due The premiums last named, however, includ. him under the contract, should be in full ing the commissions thereon, have not been settlement of all demands against the com- paid to either appellant or appellee, but are pany in favor of the agent, except as other due from applicants and unpaid. Respecting wise provided by the contract. The company the commissions last named, the report of agreed to advance to appellee $18 per week the master is that they are commissions "due for living expenses, commissions as earned or allowed to defendant from plaintiff." to be applied in payment thereof. In the The ninth specification of the report is in event of the cancellation of the contract by substance that if the contract should be coneither party, the agent agreed to pay to the strued that by the terms thereof appellee is company any balance of such advancements not chargeable with uncollected premiums, remaining unpaid. The agent bound himself but that such premiums are the property of diligently to canvass the territory assigned appellant, then the balance due appellant is to him, for applications for life, accident, and $69.03. health insurance, to collect and account for The eighth specification rejected by the premiums, and to forward applications and court as aforesaid is in substance that if apreport collections to the company.

pellee is chargeable with such premiums, the The contract prohibited the agent from ex- balance due is $284.10. tending the time for the payment of premi It will be observed that if appellee be ums and from accepting payment of them charged with the $423 advanced to him, and other than in current funds and from re- with the $8.61 due from him on account of ceiving any money on the company's account, premiums returned, and if he be credited except on policies and receipts sent to him with commissions in the sum of $291.78 and for collection. There is a provision that in also $70.80, the balance due from him is the the life department “during the continuance amount of the judgment exclusive of interof this contract, the company will pay on est. It is therefore apparent that the court business transacted by and through the construed the contract as suggested by the agent, as full compensation for all services," ninth specification of the report. certain specified graduated per cents. esti. Appellant contends that appellee should be mated on the amounts of the premiums in charged also with such uncollected premiums the first year of insurance, and in the acci- as suggested by the eighth specification, and dent department certain other graduated that as a consequence there is due from him per cents. estimated on premiums “in the $284.10, exclusive of interest; and that if he first year of insurance reported and paid to should not be charged with such premiums he the agent luring the continuance of the con- should not be credited with commission there tract," the stipulated per cent of commis-on, and that on such hypothesis there is due sions in each case depending on the character from him $139.83, exclusive of interest. Two of the policy. It is stipulated that “commis

questions then are presented: First, should sions shall be payable only on premiums col

appellee be charged with such uncollected lected in cash on policies issued on applications procured by the agent and accounted premiums? and, second, if not, should be be

credited with $70.80 commission thereon? for by him," and also a provision that “no collection fee shall be charged by the com

[1, 2] By the terms of the contract, it was pany for the collection of premiums subject appellee's duty, at least primarily, to collect to commission inder this contract”; also a first premiums on applications taken by him, provision that . case the company should and other premiums also when policies or rereturn to the insured a premium upon which ceipts were forwarded to him for that pur. the agent had been paid a commission, he pose. We find nothing in the contract, howshould return to the company the amount of ever, evidencing an intention to charge him such commission.

with the amounts of the premiums which he The material pan of the report of the mas- in fact had not collected. It is urged that ter as adopted by the court is to the fol- in view of certain provisions of the contract lowing effect: Appellou's services as agent making it appellee's duty to collect premiums, commenced February 8, 1910, and terminated we should presume that he did collect the in April, 1911; the cause and circumstances premiums involved in this transaction of the termination not being reported. Ap amounting to $215.07. We cannot indulge

report adopted by the court, to the effect that thereby the master reported as a fact that appellee did not collect the premiums compos- the item of $70.80 was constituted of "coming such item, but that they were due from missions due or allowed defendant from plainapplicants and unpaid. The record does not tiff." While the word "or" is frequently convince us that the court erred in refusing used in an alternative sense, in our judgment to charge appellee with such item. It is well it is used here to connect two words expressto observe that in its relation to premiums ing the same idea. It is frequently used in the action is predicated on the theory that such a sense also. 29 Cyc. 1502; Webster's appellee collected and failed to account for International Dictionary. The word “allow" certain premiums, rather than on alleged includes the following meanings: “to conomission of duty, whereby appellant was dam-cede," "consent to," "to grant,” etc. 2 C. J. aged.

1154. The report of the master then may very [3] We proceed to determine whether the properly be construed to mean that the apcourt erred in crediting appellee with the pellant conceded or granted such commiscommission item of $70.80. Commissions on sions to appellee, or consented to them as a the item of $215.07 of uncollected premiums credit in appellee's favor, or that they were constitute this item. We are not advised by commissions which appellant had allowed to what arrangement or omission such premiums appellee. remained uncollected. It sufficiently appears [4, 5] The evidence is not before us. The that they were premiums on policies issued master by the terms of the order appointing by the company and based on applications him was not required to, and did not, report written by appellee. The contract between it to the trial court. The order was that appellant and appellee, while not expressly the master should "hear the evidence, ascer. 80 stipulating, apparently contemplated that|tain the facts, and report his findings." In applicants for insurance should pay first pre- the absence of the evidence, the master's remiums in cash. As we have indicated, the port of the facts having been adopted by the contract prohibited the agent from extending court must be presumed to be correct. Stanthe time of the payment of premiums, and ton v. State, 82 Ind. 463; Bremmerman v. from receiving payment thereof otherwise Jennings, 101 Ind. 253; McKinney v. Pierce, than in current funds. No such inhibition, 5 Ind. 422; Midland R. Co. v. Trissal, 30 however, was placed on the company. It, in Ind. App. 77, 65 N. E. 543. The master's any case, might have extended credit to any report, excluding therefrom mere conclusions, applicant, or it might have taken a promis- as we are required to do (Smith v. Harris, sory note to represent any unpaid premium. 135 Ind. 621, 35 N. E. 984), includes the As we have said, there was a stipulation in facts respecting the amount of the advancethe contract that the company should not ments made by appellant to appellee, and the charge a fee for collecting premiums which amount with which the latter should be were subject to commission under the con-charged on account of commissions received tract. Such provision contemplated that un

on premiums subsequently returned to insurder some circumstances, the company might

ed persons, and respecting the amount of collect premiums on which the agent was

premiums collected by appellee and paid to entitled to commission. Such provision is appellant, and the former's commission there therefore in harmony with a supposition that on, and also the facts respecting uncollected under some circumstances the company might appellee commissions thereon in the sum of

premiums, and that appellant had allowed extend the time for the payment of such pre- $70.80. It is true that the report is not in miums, and thereafter collect them. It is all respects as full and specific as might be true that there was another provision in the desired, but it is not attacked on such contract that commissions should be payable grounds. The court adopted it as sufficient only on premiums collected in cash on poll- and entered judgment accordingly. Presumpcies issued on applications procured by the tions should be indulged in favor of the acagent and accounted for by him. Such pro tion of the trial court until it is made to apvision, however, does not necessarily mean pear that the court erred therein. Appellant that the agent should be paid commission does not convince us that error was comonly on premiums collected by him in cash, mitted. since such other provision recognized his right

Judgment affirmed. to commission in some cases on premiums collected by the company. The provisions

(64 Ind. App. 415) that commission should be payable only on INDIANA QUARRIES CO. y. LAVENDER.* premiums collected in cash, like any other

(No. 9168.) rovision of an ordinary written contract, (Appellate Court of Indiana, Division No. 1. was subject to a subsequent parol modifica

Dec. 13, 1916.) tion on sufficient consideration. There are 1. MASTER AND SERVANT 108-EMPLOYERS' indications of such a modification in the mas

LIABILITY ACTS-PLEADING-SUFFICIENCY.

Where a servant shows that he operated a ter's report as adopted by the court, in that machine, the engine and gearing of which were

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen 114 N.E.-27

*Rehearing denied, 116 N. E. 2.

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