June, 1911, the traction company filed a pe- rate. 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 riers' 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 susthe 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 outbound products, it should, under the facts disclosed, be accorded the manufacturers' rate, unless precluded by other matters hereafter noted. The complaint assails the validity of the order for reasons hereinafter discussed. Appellee filed an answer, to which appellants demurred. The demurrer was overruled. A trial resulted in a finding and judgment for appellee. Appellants rely on the alleged errors in the ruling on the demurrer and in overruling their motion for a new trial, which asserts that the court's finding is contrary to law. The evidence follows the allegations of the answer, and the errors assigned are considered together. [3] It is next insisted that the order is unreasonable, and impracticable because there is no way for certain ascertainment of the coal consumed that would be entitled to the manufacturers' rate. This question is not without difficulty. The traction company uses its coal for generating electricity for the 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 65-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 Commission, to establish lower rates for coal used for manufacturing purposes than when used for domestic ones. Acts 1907, p. 434; section 5215, Burns 1914. On the subject of lower rates where "milling in transit arrangements" are involved, see 4 R. C. L. 596, 67, and authorities cited. [2] The next point urged by appellant is that the traction company was not, under the evidence, entitled to the manufacturers' with the charges of just rates for transportation, no doubt appears to the carrier as an unjust imposition of a new duty. Surely it is a new duty, but we do not feel inclined to consider it so onerous as to warrant the setting aside of the order. [4] It is finally urged that the Commission did not find the 75-cent rate charged the traction company to be unreasonable. As before noted, the petition of the traction company 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 express statutory authority. Acts 1911, p. 460, 5537, Burns 1914. Judgment affirmed. (185 Ind. 678) of the street; that appellant's right of way, used in the operation of its railroad between Terre Haute and Evansville, adjoins the east line of the highway, its tracks running north and south. In the year 1910 Lash filed with the Commission his petition for an order, re CHICAGO & E. I. R. CO. v. PUBLIC SERV- quiring appellant to construct a switch to a ICE COMMISSION OF INDIANA. (No. 22649.) 1. RAILROADS 225 - REGULATION UTES-ABUTTING." point on its right of way across the street from the mill so as to enable Lash to load and unload cars at such point, he to use an (Supreme Court of Indiana. Dec. 13, 1916.) overhead steel conveyor to transfer merSTAT-chandise across the highway and traction line therein, between the mill and cars on the proposed switch. The Commission made the order requested, but it was vacated in 1911 by the superior court of Vanderburgh county. The petition for the order in question was filed in 1912, and avers that Lash contemplates the erection of a storage elevator, connected with his mill, to front on the west line of the street, and that it is proposed to haul in wagons across the street, to and from the switch prayed for, the merchandise to be received and shipped in car Burns' Ann. St. 1914, § 5533k, providing that a carrier may be required to construct on its property a switch when necessary to accommodate the business of any elevator or mill abutting on its line, where there is no space for the proprietor to construct it on his own premises, does not authorize the Public Service Commission to require a railroad to construct a switch for a mill which is separated from the right of way by a public street, although there was evidence that the millowner owned the fee of the street, since the purpose of the Legislature was the elimination of the necessity of a wagon haul, and there is nothing in the act to indicate 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. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 739; Dec. Dig. 225. For other definitions, see Words and Phrases, First and Second Series, Abutting.] 2. STATUTES 188-CONSTRUCTION-MEAN ING OF WORDS. The legislative purpose shown by the context of a statute should not be defeated by adherence to definitions of words found in dictionaries, however reputable. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 266, 267, 276; Dec. Dig. 188.] Appeal from Superior Court, Vanderburgh County; F. M. Hostetter, Judge. elevator contemplated are and will be so located as to leave no space for Lash to construct a switch on his own property, and that it will be necessary to construct the proposed switch on the right of way of appellant. The order made by the Commission, granting the second petition, was assailed in the court below for various reasons, including the one asserted that the mill does not abut on appellant's line or right of way, and that because thereof the Commission was without lawful power to make the order. The same proposition is urged here. There was evidence which warranted the trial court Action by the Chicago & Eastern Illinois in finding that Lash owns the fee-simple Railroad Company against the Public Serv- title to the land burdened by the street and traction line easements. If the Commission ice Commission of Indiana, to vacate an had jurisdiction to make the order, its poworder 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 the Railroad Commission Act of 1905, as amended in 1907 (Acts 1907, p. 454, § 5533k, Burns 1914). So much of the subdivision of the section as is pertinent here reads as fol new trial. for Homer T. Dick, of Chicago, Ill., and John E. Iglehart, Edwin Taylor, and Eugene H. Iglehart, all of Evansville, for appellant. Brill, Hatfield & Brady, of Evansville, for appellee. MORRIS, J. Action by appellant to vacate an order, made in 1912, by the Railroad Commission, requiring appellant to construct a switch. There was a finding and judgment by the trial court in favor of appellee. [1] The record shows that in 1910 Fred B. Lash owned a flourmill in the town of Farmersburg, Sullivan county; that the mill was and is now located on the west side of and adjoining First street, a public highway running north and south; that then and now the poles and track of the Terre Haute, Indianapolis & Eastern Traction Company lows: "Every such carrier engaged in handling freight in carload lots may be required, upon application therefor by the party having use for the same, to construct upon its property and properly connect with its line, when the same can be done with safety and is reasonably nec essary, all siding, switch, spur or turnout tracks, necessary to accommodate the business of any elevator, mill, hereafter be constructed abutting its line, and that is now, or may where there is no space for the proprietor thereof to construct the same on his property. (Italics ours). * It is contended by appellant that Lash's mill does not abut appellant's right of way, since a public street intervenes between the structure and appellant's line, and that consequently the order is not within the statutory power conferred on the Commission, and FOR PREMIUMS - MASTER'S REPORT - "AL- we are of the opinion that such contention [3. INSURANCE 82-AGENTS-ACCOUNTING should prevail. The word "abutting" as commonly understood, means a touching, meeting, or coming together. 1 C. J. 376. Where the master commissioner's report found and allowed certain amounts as "commis Cent. Dig. 88 107, 108; Dec. Dig. 82. For other definitions, see Words and Phrases, In the absence of the evidence, the mas ter's report of the facts, when adopted by the court, must be presumed to be correct. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3728; Dec. Dig. 931(10).] 5. APPEAL AND ERROR 900 PRESUMP [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 unhis commission. necessary expense and labor in loading and hauling by wagons or trucks, manufactured and other products, in carload lots, between mill or factory and the established place for loading and unloading cars. Such purpose would not be subserved by the order in question. The only saving here, as shown by the record, would be in the length of the wagon haul by reducing it from a quarter of a mile to about 40 feet. We are satisfied that there is nothing in the act which would warrant us in ascribing to it a legislative purpose substantially broader than that indicated by the word "abutting" when given its ordinary meaning. Indianapolis, etc., R. Co. v. Capital Paving Co. (1899) 24 Ind. App. 114, 118, 54 N. E. 1076; Millan v. City of Chariton, 145 Iowa, 648, 124 N. W. 766; 25 Am. & Eng. Ency. Law (2d Ed.) 1190; North. Pac. R. Co. v. Douglas County, 145 Wis. 288, 130 N. W. 246; Kneebs v. Sioux City, Iowa, 156 Iowa, 607, 137 N. W. 944; City of Springfield v. Green, 120 Ill. 269, 11 N. E. 261; Holt v. City Council of Somerville, 127 Mass. 408; Bouvier, Law Dictionary; Lewis v. Johnson (C. C.) 90 Fed. 673; Fralinger v. Cooke, 103 Md. 682, 687, 71 Atl. 529. Judgment reversed, with instructions to grant appellant's motion for a new trial. SPENCER, J., not participating. (63 Ind. App. 250) DOAK-RIDDLE-HAMILTON CO. v. (Appellate Court of Indiana, Division No. 2. TIONS. of the action of the trial court until it is made Appeal from Superior Court, Vigo County; Action by the Doak-Riddle-Hamilton Company against Herman Raabe. From a judgment on the master commissioner's report, in part for plaintiff, plaintiff appeals. Affirmed. Beasley, Douthitt, Crawford & Beasley, of Terre Haute, for appellant. CALDWELL, J. Appellant, an Indiana insurance company, brought this action against appellee, who was formerly its agent, to recover on account of certain expense money advanced to appellee, and certain insurance premiums alleged to have been collected by him and not accounted for. The cause having been placed at issue was referred to a master commissioner, appointed under the provisions of section 1677, Burns 1914, "to hear the evidence, ascertain the facts, and report his findings." The court adopted the report as made, except the eighth specifica 1. APPEAL AND ERROR 931(10)-PRESUMP-tion thereof, and on the report as adopted TIONS MASTER'S FINDINGS-ADOPTION BY COURT. Though the agency contract required the soliciting agent to collect premiums, the court could not presume that he did collect them in the face of the master's finding adopted by the court that he did not collect them. found for appellant in the sum of $69.03, with interest in the sum of $12.42, and rendered judgment for $81.45, the aggregate. Appellant presents, among other questions, that the amount of the recovery is too small. [Ed. Note. For other cases, see Appeal and The eighth specification of the report reError, Cent. Dig. § 3728; Dec. Dig. 931(10).]jected by the court as aforesaid was to the effect that a named sum was due appellant 2. INSURANCE ~83(1) — AGENTS-LIABILITY in cash, if the court placed a certain conFOR PREMIUMS. him. A 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. unpaid by applicants on insurance written by proper construction of the contract determines 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. §§ 107, 109, 110; Dec. Dig. 83(1).] the court. The following abstract of the con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes liable for $8.61 on account of policies canceled and premiums returned. Appellee collected and paid to appellant on applications written by him premiums amounting to $1,241, His commission on such premiums amounted to $291.78, which commissions he did not reserve, but paid to appellant. He wrote other applications on which premiums subject to commission amounted to $215.07. His commission thereon amounted to $70.80. The premiums last named, however, including the commissions thereon, have not been paid to either appellant or appellee, but are due from applicants and unpaid. Respecting the commissions last named, the report of the master is that they are commissions "due or allowed to defendant from plaintiff." tract includes the substance of its provisions | $423. Facts are reported rendering appellee material to the controversy. It specifies that the agent's services should commence February 8, 1910, and that either party might terminate the contract by giving seven days' notice to the other in writing, and that if so terminated, the power of the agent to collect and receive premiums should cease; that if the contract should be terminated by either party for any cause, the compensation which shall then have been paid to the agent, together with the amount then due him under the contract, should be in full settlement of all demands against the company in favor of the agent, except as otherwise provided by the contract. The company agreed to advance to appellee $18 per week for living expenses, commissions as earned to be applied in payment thereof. In the event of the cancellation of the contract by either party, the agent agreed to pay to the company any balance of such advancements remaining unpaid. The agent bound himself diligently to canvass the territory assigned to him, for applications for life, accident, and health insurance, to collect and account for premiums, and to forward applications and report collections to the company. The ninth specification of the report is in substance that if the contract should be construed that by the terms thereof appellee is not chargeable with uncollected premiums, but that such premiums are the property of appellant, then the balance due appellant is $69.03. The eighth specification rejected by the court as aforesaid is in substance that if appellee is chargeable with such premiums, the balance due is $284.10. It will be observed that if appellee be charged with the $423 advanced to him, and with the $8.61 due from him on account of premiums returned, and if he be credited with commissions in the sum of $291.78 and also $70.80, the balance due from him is the amount of the judgment exclusive of interest. It is therefore apparent that the court construed the contract as suggested by the ninth specification of the report. The contract prohibited the agent from extending the time for the payment of premiums and from accepting payment of them other than in current funds and from receiving any money on the company's account, except on policies and receipts sent to him for collection. There is a provision that in the life department "during the continuance of this contract, the company will pay on business transacted by and through the agent, as full compensation for all services," 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 theretract," the stipulated per cent. of commis-on, and that on such hypothesis there is due sions in each case depending on the character of the policy. It is stipulated that "commissions shall be payable only on premiums collected in cash on policies issued on applications procured by the agent and accounted for by him," and also a provision that "no collection fee shall be charged by the company for the collection of premiums subject to commission under this contract"; also a provision that in case the company should return to the insured a premium upon which the agent had been paid a commission, he should return to the company the amount of such commission. from him $139.83, exclusive of interest. Two questions then are presented: First, should premiums? and, second, if not, should he be appellee be charged with such uncollected credited with $70.80 commission thereon? [1, 2] By the terms of the contract, it was appellee's duty, at least primarily, to collect first premiums on applications taken by him, and other premiums also when policies or receipts were forwarded to him for that purpose. We find nothing in the contract, however, evidencing an intention to charge him 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: Appelle'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 appellee did not collect the premiums composing such item, but that they were due from applicants and unpaid. The record does not convince us that the court erred in refusing to charge appellee with such item. It is well to observe that in its relation to premiums the action is predicated on the theory that appellee collected and failed to account for certain premiums, rather than on alleged omission of duty, whereby appellant was damaged. thereby the master reported as a fact that the item of $70.80 was constituted of "commissions due or allowed defendant from plaintiff." While the word "or" is frequently used in an alternative sense, in our judgment it is used here to connect two words expressing the same idea. It is frequently used in such a sense also. 29 Cyc. 1502; Webster's International Dictionary. The word "allow" includes the following meanings: "to concede," "consent to," "to grant," etc. 2 C. J. 1154. The report of the master then may very properly be construed to mean that the appellant conceded or granted such commissions to appellee, or consented to them as a credit in appellee's favor, or that they were commissions which appellant had allowed to appellee. [3] We proceed to determine whether the court erred in crediting appellee with the commission item of $70.80. Commissions on the item of $215.07 of uncollected premiums constitute this item. We are not advised by what arrangement or omission such premiums 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, ascerso 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 The master's however, was placed on the company. It, in Ind. App. 77, 65 N. E. 543. 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 on premiums subsequently returned to insurtract. Such provision contemplated that under some circumstances, the company might ed persons, and respecting the amount of premiums collected by appellee and paid to collect premiums on which the agent was entitled to commission. Such provision is appellant, and the former's commission theretherefore in harmony with a supposition that on, and also the facts respecting uncollected premiums, and that appellant had allowed under some circumstances the company might appellee commissions thereon in the sum of 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 poli- 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 to commission in some cases on premiums collected by the company. The provisions that commission should be payable only on INDIANA QUARRIES CO. v. LAVENDER.* premiums collected in cash, like any other provision of an ordinary written contract, was subject to a subsequent parol modification on sufficient consideration. There are indications of such a modification in the master's report as adopted by the court, in that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-27 *Rehearing denied, 116 N. E. 2. Judgment affirmed. (No. 9168.) (64 Ind. App. 415) (Appellate Court of Indiana, Division No. 1. Dec. 13, 1916.) 1. Master and SERVANT 108-EMPLOYERS' LIABILITY ACTS-PLEADING-SUFFICIENCY. Where a servant shows that he operated a machine, the engine and gearing of which were |