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tained by the receiver as the representative on Trust Co. v. Blish, supra; Sellers v. of such creditors, it is on the theory that they Hayes, 163 Ind. 422, 429, 72 N. E. 119; Ellias members and policy holders dealt with the son v. Ganiard, 167 Ind. 471, 79 N. E. 450 ; company and became members and policy Reel, Receiver, v. Bramner, supra. holders in reliance on the belief that the Other questions presented are disposed of sum of $20,000 involved had been paid on by our discussion of the conclusions of law. applications for insurance as required by the Judgment affirmed. statute, rather than that it had been advanced by appellees as aforesaid. The finding, however, renders the existence of any such belief

(63 Ind. App. 527) impossible as to the greater number of the

EDDY V. HONEY CREEK TP., WHITE members and policy holders. The finding is

COUNTY. (No. 9165.) to the effect that as a general rule, the mem-(Appellate Court of Indiana, Division No. 1 bers and policy holders at the time they ap

Jan. 11, 1917.) plied for insurance, and when the policies 1. PLEADING Cw194(1)—DEMUBBER-STATUTE. were issued were fully and specifically in Under Burns' Ann, St. 1914, $ 351, authorformed respecting the advancing of such izing demurrers to answers not stating facts sum by appellees, and the arrangement by because the facts stated are insufficient to avoid which it was to be repaid. With such knowl-the cause of action stated in the complaint, is edge they became members and policy hold-fatally defective, especially where the answer Under the finding, there were excep

consisted of several partial defenses. tions, but the class that acted with full cent. Dig. & 444, 446, 451; Dec. Dig. w194

[Ed. Note.-For other cases, see Pleading, knowledge was by far more numerous than

(1).) the class that did not have such knowledge. 2. ANIMALS Cw88-LIABILITY OF TOWNSHIP The sum advanced by appellees became a part -NATURE OF. of the fund drawn on for the payment of ties for swine filled or injured by dogs is de

The liability of townships to pay indemnidividends aggregating more than $8,000. The rived wholly from statutes which must be submembers of each class alike received and re- stantially followed by the claimant. tained dividends apportioned to them. It is [Ed. Note.-For other cases, see Animals, Cent. apparent that as to the members of the class Dig. 8 597; Dec. Dig. Om 88.] that had full knowledge of the facts, the 3. ANIMALS O 88–LIABILITY OF TOWNSHIP foundation of the cause of action prosecuted


Under Burns' Ann. St. 1914, § 3269, makin their behalf as beneficiaries has crumbled. ing townships liable to owners of live stock killBy their acquiescence they are estopped. As ed or damaged by dogs upon a report being made having a bearing, see the following: Bent, to the trustees, the requirement regarding such Receiver, v. Underdown, 156 Ind. 516, 60 N. report is mandatory. E. 307; Bruner, Receiver, v. Brown, 139 Ind. Cent. Dig. & 597; Dec. Dig. Om 88.]

(Ed. Note.-For_other cases, see Animals, 600, 38 N. E. 318; Reel, Receiver, v. Bramner,

4. ANIMALS Om 88-LIABILITY OF TOWNSHIP 56 Ind. App. 180, 101 N. E. 1013; Lea v. Iron -STATUTE. Belt Co., 147 Ala. 421, 42 South. 415, 8 L. R. Under Burns' Ann. St. 1914, § 3269, A. (N. S.) 279, 119 Am. St. Rep. 93; First viding that owners of live stock killed or dam. National Bank v. Gustin, etc., Co., 42 Minn. aged by dogs "shall within ten days from the

time thereof" report certain facts to the town. 327, 44 N. W. 198, 6 L. R. A. 676, 18 Am. St. ship trustees to render the township liable, the Rep. 510; Hospes v. Northwestern, etc., Co., report must be made within ten days after the 48 Minn. 174, 50 N. W. 1117, 15 L. R. A. 470, injury, regardless of when the animal died. 31 Am. St. Rep. 637; Hill v. Atlantic, etc.,

[Ed. Note.-For other cases, see Animals, Co., 143 N. C. 539, 55 S. E. 854, 9 L. R. A. Cent. Dig. $ 597; Dec. Dig. Om88.] (N. S.) 606, and note.

Appeal from Circuit Court, White County ; [7] A cause of action exists then, if at all, Henry H. Vinton, Special Judge. in favor of a class of creditors, rather than

Action by Harry C. Eddy against the Honin favor of all the general creditors. A re- ey Creek Township, White County, Ind. ceiver, as trustee for creditors, may prosecute Judgment for defendant, and plaintiff aponly those causes of which all the general peals. Affirmed. creditors are beneficiaries. Interests peculiar Sills & Sills, of Monticello, for appellant. to a class of creditors, and from the benefits E. B. Sellers, of Monticello, for appellee. of which the general creditors are excluded, are not represented by a general receiver BATMAN, J. This was a suit by appellant for purposes of vindicating rights based there against appellee to recover damages under on by litigation. Otherwise would be to per- section 3268, Burns 1914, on account of the mit him to act in antagonism to the bene- killing by a dog of certain swine belonging ficiaries of the trust which he represents. It to appellant. The amended complaint alleg. results that on the assumption that the re-es, among other things, that certain of such ceiver sues as trustee for the creditors, he swine died and was killed on the 10th, 12th, cannot, under the finding, maintain this ac- 14th, and 28th days of July, 1910, respectivetion. It follows that there is no error in the ly; that within ten days from the killing of conclusions of law. See the following: Mari-) each of said swine, the plaintiff filed with


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

It then alleges in substance that the appel 1

the trustee of said township his claim and lant to each the second and third paragraphs report of such killing, alleging and stating of answer, contains the following, as the therein the number, age, and value of each ground thereof: of said swine, in which report and claim he "That the facts stated in each of said parawas joined by John N. Bunnell and Levi graphs of answer are insufficient to avoid the Reynolds, two d’isinterested and reputable

cause of action stated in plaintiff's complaint." freeholders and householders of said town

The Code provides but one form of demur. ship. To this amended complaint the appel- rer to an answer, viz.: That it does not state lee filed a paragraph of answer in general de- facts "sufficient to constitute a cause of denial, which was subsequently withdrawn, and fense." It is found in section 351, Burns two affirmative paragraphs designated as 1914, and must be substantially followed. second and third.

The courts have held the following alleged The second paragraph of answer contains, grounds of demurrer to an answer to be inamong other things, the following allegations: sufficient to present any question, viz.: “The defendant for further answer to so much

"It does not state facts sufficient to make a of said complaint as seeks to recover for the good answer to the complaint." Dawson v. killing of one brood sow, two years old, being Eads (1895) 140 Ind. 208, 39 N. E. 919. plaintiff's amended complaint herein, says that

"That neither of said paragraphs constitutes on the 4th day of July, 1910, the one brood sow, any defense to this action.” Reed et al. v. Higtwo years old, mentioned in the complaint, was gins, Adm'r (1882) 86 Ind. 143.

"That it does not state facts sufficient to conbitten by a dog alliicted by hydrophobia, which dog did not belong to the plaintiff and was not stitute a bar to the plaintiff's complaint." Hil. harbored by him. He further says that said derbrand et al. v. McCrum (1884) 101 Ind. 61. dog was killed on or before July 5, 1910; that

**That neither of said paragraphs of answer said dog did not bite or otherwise injure said state, facts sufficient to bar the plaintiff's ac. hogs later than July 5, 1910; that said sow died of Indianapolis (1891) 4 Ind. App. 573, 31 N.

Angaletos v. Meridian National Bank July 28, 1910.”

E. 368.

It is quite apparent that if a demurrer to lant did not make any report to the trustee a paragraph of answer, which alleges that it of such township of the maiming and killing does not state facts “sufficient to bar the of such hogs until the 2d day of August, 1910, plaintiff's action," is insufficient in form to which was more than ten days after the in- raise any question, one that alleges that the jury had been inflicted upon said animal by facts stated in a paragraph of answer are such dog.

"insufficient to avoid a cause of action," will The third paragraph is likewise a partial likewise not raise any question. This is esanswer, and contains substantially the same pecially true in this case, since each para. allegations as the second, except that it ap- graph of answer to which the demurrer is adplies to the remaining stock mentioned in dressed is a partial answer only, and might the complaint, alleging that the injury was be good as such, without stating facts “sufinflicted on or about the 5th day of July, ficient to avoid the cause of action stated in 1910, fixing the dates on which the same died plaintiff's complaint.” We therefore hold as July 10, 12, and 14, 1910, respectively, and that the demurrer raises no question as to further alleging that no report of the injury the sufficiency of either paragraph of the inflicted on the 4th day of July, 1910, was filed with the trustee of said township until the [2-4] But even if such demurrer had been 16th day of July, 1910, and that as to one of in statutory form, there would have been such hogs, no report was filed until the 2d no error in overruling the same, as each day of August, 1910.

paragraph of the answer to which it is adThe appellant demurred separately to each dressed states facts sufficient to constitute a of said paragraphs of answer, which demur-cause of defense. This conclusion involves rer was overruled and the proper exceptions the construction of section 3269, Burns 1914, reserved. The appellant refused to plead which provides, among other things, that further, and judgment was thereupon render- “the owners of sheep, cattle, swine, horses, ed in favor of the appellee. The appellant and other live stock or fowls killed, maimed assigned as the sole error on which he relies or damaged by dogs, shall within ten days for reversal the action of the court in over- from the time thereof report to the trustee of ruling his separate demurrer to each the his township under oath” certain facts with second and third paragraphs of his answer. reference to such injury and damages. Each

The appellee advances two theories on of said paragraphs of answer state facts which the ruling of the court below was showing that such hogs were injured by beproper: First, that appellant's demurrer was ing bitten by a dog on a certain date, and not in the proper form' to raise any question that no report was made to the trustee of

to the sufficiency of either of such para- such township until more than ten days after graphs of answer. Second, that each of such such injury, but that a report thereof was paragraphs of answer alleges facts which made to the trustee of such township, within show that the reports of such injuries made ten days from the death of such animals, fol. by the appellant to the township trustee were lowing such injury. Appellant claims that it not filed within ten days from the time there is a sufficient compliance with the statute, of, as required by section 3269, Burns 1914. if the required report be made within ten


while appellee contends such report must be animal survives, and another time where made within ten days from the time of the such animal dies, but one time in either infliction of such injury, regardless of the event, viz., ten days from the infliction of time of the death of such animals. It does such injury. The Legislature might have not appear that this particular question has fixed the time otherwise, but it did not see been decided by this court or the Supreme fit to do so, and we are bound by the statCourt. No such decision has been cited, and ute as written. our investigation discloses none. We must It may be, as appellant urges, that the extherefore determine it from the language of tent of the injury inflicted, and the amount the statute itself. In determining this ques- of damages sustained, cannot be accurately tion it would be well to remember that there ascertained until the final result is known, is no common-law right to indemnity from but this fact would not lead to a different the township, for swine killed or injured by construction of the statute. The same fact dogs, but such right is statutory, and must might be urged with equal force as to personbe asserted in substantial compliance with al injuries, and yet all actions for such inthe conditions in the law creating it. Such juries must be brought within a period of requirement as to making such report is man- two years from the time the right accrues, or datory, and there can be no recovery from they are barred, notwithstanding the fact the township until it has been fulfilled. Abell that the result of any such injury may reet al. v. Prairie Civil Township of Henry main more or less uncertain for many years. County (1892) 4 Ind. App. 599, 31 N. E. 477. Resort is had to the common experience of The statute provides that upon such injury men, the opinions of experts, and such like being inflicted, the owner "shall within ten means, to determine the permanency of the days from the time thereof report to the injury and amount of damages, rather than trustee of his township under oath” certain deferring a right of action until the results facts. It is apparent that the words "from are definitely known. the time thereof” refer, and can refer, only We therefore conclude that each of said to the time of the injury, and have no refer- paragraphs of answer alleges facts sufficient ence whatever to whether the animal so in- to constitute a cause of defense. We find jured dies or recovers. It is evidently the in- no error in the record, and the judgment is tention of the Legislature to fix a definite therefore affirmed, time in which such owner should report to the township trustee, in order to receive compensation, so that the matter might be

(219 N. Y. 435) brought to his notice while the facts were

In re COLE'S ESTATE. fresh, in order that he might investigate in re UNION TRUST CO. OF NEW YORK, and protect the fund in his hands from wrongful and excessive claims. Such provi- (Court of Appeals of New York. Dec. 28, 1916.) sions would be of little value if no definite

WILLS Om729_RIGHTS OF LEGATEES-ANNUItime were fixed from which the designated TY-ELECTION. period of ten days should begin to run, so Where an absolute and unqualified annuity the Legislature evidently intended from the is given by a will with instructions to invest à language used that such time should begin to nuitant may elect to take the capital sum, in

sum sufficient to purchase the annuity, the anrun from the infliction of such injury, re- stead of having it invested for the purpose of gardless of the results thereof.

producing the annuity, since, if the testator. Appellant claims that the statute requires deemed it necessary to protect the annuitant

against improvidence, he could have done so certain facts to be stated under oath, in the through the instrumentality of a trust. report of such injury, that can only be (Ed. Note.-For other cases, see Wills, Cent. stated after the results thereof are known, Dig. $8 1781-1784; Dec. Dig. @ 729.) and urges this as a reason for the construction of the statute for which he contends.

Appeal from Supreme Court, Appellate

Division, Second Department. We do not concur in this view. If an own.

In the matter of the estate of William er of stock injured by a dog were not required to make a report until within ten days Washington Cole, deceased. From an order from the time the result of the injury was Second Department (161 N. Y. Supp. 120),

of the Supreme Court, Appellate Division, known, the value of the provision requiring any report at all would be largely destroyed. reversing an order of the Surrogate's Court Under such a construction, if the injured of Queens County, which denied the applianimal died such ten days might begin to cation of Clarissa Sprake for payment to run from such death, but if the animal her by the Union Trust Company of New should survive, after lingering between life York, as executor, of $10,000, which testaand death for weeks or months, when would tor's will directed should be expended in such ten-day period begin to run? Who

the purchase for her of an annuity, the Trust could say when the recovery was sufficient, Company appeals. Afirmed. to set such ten-day period in motion? The Nathan A. Smyth, of New York City, for statute does not provide one time for the ten- appellant. Thomas M. Rowlette, of New day period to begin to run where the injured | York City, for respondent.

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

114 N.E-50


CUDDEBACK, J. The will of the testa "Where an absolute and unqualified annuity tor contained the following provision:

is given, with instructions to invest a sum suffi"VI. I direct my executor to purchase within cient to purchase the annuity, the annuitant one year after my death of some life insurance having it invested for the purpose of producing

may elect to take the capital sum instead of company or other company sound financially the annuity. * doing business in Great Britain of said execu-ed it necessary to protect the plaintiff against

If the testator had deemtor's selection an annuity payable quarterly to herself he could have done so through the instrueach of the following named individuals, said mentality of a trust.” annuity shall be such sum as the amount specified in each case shall procure. There shall be The counsel for the appellant strenuously expended for each one of said annuities as fol- insists that the right of election claimed by lows:

"4. The same sum of ten thousand dollars the petitioner thwarts the clearly expressed shall be expended in each case for an annuity as intention of the testator. I think not. It above provided for each one of the following must be assumed that the will of the tesnamed individuals, viz. :

"a. Clarissa Şprake, of London, England, wife tator providing for the annuity was drawn of Henry Sprake and daughter of my mother's with regard to the law existing on the subbrother Henry Cooke."

ject. The testator knew, it must be assumed, Clarissa Sprake, the person for whom the that the gift of the annuity might be regardforegoing directions requiring the purchase ed as a legacy of the definite sum set aside of an annuity were made, applied to the to purchase the annuity. If he had desired Surrogate's Court for an order authorizing to defeat this power of election, he should the Union Trust Company, the executor, to have followed the suggestion contained in pay her the sum of $10,000 provided in the Reid v. Brown, supra, and placed the $10,will, instead of applying the same to the 000 in trust for the benefit of the annuitant. purchase of an annuity. In her petition the The order appealed from should be affirmapplicant simply shows the provision of ed, with costs to the respondent payable out the will for an annuity, the extent of the of the estate. decedent's estate, and that it is ample to meet all charges against it, and that she has


and filed with the executor a written notice of CHASE, COLLIN, HOGAN, CARDOZO, and her election to take the sum of $10,000 in- POUND, JJ., concur. stead of having the same expended in the

Order affirmed. purchase of an annuity, as directed by the will. The Surrogate's Court made an order denying the application, which on appeal,

(219 N. Y. 420) was reversed by the Appellate Division, and

D'UTASSY v. BARRETT. from the determination of the Appellate Di-|(Court of Appeals of New York. Dec. 28, 1916.) vision the executor of the will has appealed CARRIERS 158(2)—Loss of Goods-AGREED to this court.

VALUATION-TRUE VALUE CONCEALED. It is the settled law of England, and has Where plaintiff concealed true value of exbeen for more than a century, that the gift press packages and paid a lower rate upon an

agreed valuation, the company's rates being filed of an annuity must be regarded as a legacy as required by Interstate Commerce Act Feb. of the definite sum required to purchase the 4, 1887, c. 104, 24 Stat. 379, as amended (U. annuity. The rule was laid down, and the S. Comp. St. 1913, § 8563 et seq.), plaintiff reason for it stated, as long ago as 1797, in could not recover true value from express com

pany, where goods were stolen by its agent. the case of Barnes v. Rowley, 3 Ves. Jr. 305,

[Ed. Note. For other cases, see Carriers, where the chancellor said:

Cent. Dig. 88 665, 708–710; Dec. Dig. "Could I have prevented her selling the an- 158(2).] nuity the next day, if it had been laid out in an annuity for her? The whole 252 pounds would Appeal from Supreme Court, Appellate have been gone. The interference of the court Division, First Department. against the will of the legatee to compel the laying out the money in an annuity for a per

Action by Leo L D’Utassy against William son, her own mistress, would have been perfectly M. Barrett, as president of Adams Express nugatory and vain.

The executor can never Company. Order of the Appellate Division, benefit by it. I cannot raise a doubt upon it.”

First Department (171 App. Div. 772, 157 N. This case has since been followed in an Y. Supp. 916), affirming an order of the Speunbroken line of decisions apparently to the cial Term, which overruled plaintiff's uemur. present time. The last case I find is Matter rer to the partial affirmative defenses set of Brunning, (1909) L. R. 1 Ch. 276. The forth in the amended answer to the amendsame principle prevails in the state of Mased complaint, and plaintiff appeals. Af. sachusetts. Parker v. Cobe, 208 Mass. 260,

firmed. 94 N. E. 476, 33 L. R. A. (N, S.) 978, 21 Ann. Cas. 1100. So far as the decisions of this

Arthur W. Clement and Wilson E. Tipple, state go, the case of Reid v. Brown, 54 Misc. both of New York City, for appellant. Wil. Rep. 481, 482, 106 N. Y. Supp. 27, is the liam D. Guthrie, of New York City, for reonly one cited where the subject has been spondent. considered. That was a decision made at Special Term by Judge Truax, and it is POUND, J. The complaint alleges that the precisely in point. Judge Truax said:

defendant received certain packages from

plaintiff's assignors for Interstate shipment, | 168 N. Y. 533, 61 N. E. 896). A distinction and agreed to carry the same to the con- between a limitation of liability for conversignces thereof, but that said “Adams Ex- sion and for negligence is clearly shown in press Company, its agents, servants, and the cases. employés,” stole said packages and their con The distinction must be borne in mind tents, and have unlawfully disposed of said between a limitation of liability and an property, and have converted the same to agreed valuation in case of liability. When their own use, to plaintiff's damage upwards it is urged that the limitation of value should of $2,000. The answer sets up as a partial not be applied to any case of theft by the defense that it was agreed between the ship- carrier's employés, for the reason that the per and defendant that the value of each company is liable for such acts as if the shipment was not more than $50, and that company had been the thief (Adams Express the defendant should not be liable for more Co. v. B. & W. Co., 35 App. D. C. 208, 31 L. than $50 thereon; that the shipper conceal. R. A. (N. S.) 309), the argument loses sight of ed the true value of the property; that the distinction suggested. When the agent charges were fixed and filed with the Inter- acts within the scope of his employment in state Commerce Commission as required by taking possession of the shipment “in legal the Interstate Commerce Act of Congress of effect it was the same as if the defendant, February 4, 1887, and the acts amendatory personified, had taken it” (Vann, J., in Hasthereof, including the Carmack Amendment; brouck v. N. Y. C. & H. R. R. R. Co., 202 N. that a higher charge would have been made Y. 363, 373, 95 N. E. 808, 812, 35 L. R. A. if the true value had been given; that (N. S.) 537, Ann. Cas. 1912D, 150), but the greater care would also have been taken liability may exist and the valuation of the to prevent the loss or theft of the property shipment in case of liability may be agreed "as well through the acts or omissions of upon when the rates for transportation are the agents or employés of said express com- based on the valuation of the goods intrustpany as through the acts or omissions of oth-ed to the carrier. er persons." To this affirmative partial de The reason for the rule sustaining the defense the plaintiff demurs on the ground of clared and agreed valuation is to prevent the legal insuficiency thereof. The effect of fraudulent practices by shippers in obtainthe pleadings is that the defendant admits ing a lower rate by undervaluation. Kansas that “Its agents, servants, and employés” City Southern Ry. Co. v. Carl, 227 U. S. 639, stole, unlawfully disposed of, and converted 652, 33 Sup. Ct. 391, 57 L. Ed. 683; Pierce the packages' to their own use, and alleges Co. v. Wells, Fargo & Co., 236 U. S. 278, 35 that the value was stipulated as well in case Sup. Ct. 351, 59 L. Ed. 576. While the rule the property was so stolen or converted by should not be extended to permit a carrier the employés of the defendant as in case to realize a profit by converting valuable the loss or theft was due to the acts of shipments, such conversions are so unusual third parties, and therefore claims that if as to be almost negligible. It would be unthe evidence discloses that the property was just and contrary to the policy of the law to so stolen and converted by an agent, servant, permit the agreed valuation to be overthrown or employé of the defendant, the liability of for the purpose of enabling the shipper to the defendant should be limited to $50 on obtain a recovery in excess thereof in a suit each shipment. Proof of actual conversion for loss or damage on any theory of trover by the defendant itself would, under this or conversion for loss of goods by wrongful partial defense, establish full liability, for it deliveries or acts of employés for their own is not pleaded that the value is agreed upon benefit, based, not on the wrongful misconas against such an act. As the defendant duct of the carrier as such, but on the act may act only through agents whose acts in of the employé. Rosenthal v. Weir, 170 N. the scope of their employment are attributed Y. 148, 154, 63 E. 65, 57 L. R. A. 527. The to it, the question narrowly presented is liability of carriers of goods at common law whether the agreed valuation applies to an was that of insurers, and proper care and action for the conversion of the goods by an diligence were insufficient to avoid such liaemployé for his own benefit and amounts to bility. The duty was to carry the goods and a partial defense.

deliver them to the consignee. A breach of Agreements of limited liability are upheld that duty imposed liability. The innocent where the loss is due to ordinary negligence mistakes of the servant in delivering the or to the wrongful act of another (Boyle v. goods, no less than his willful misconduct Bush Terminal R. R. Co., 210 N. Y. 389, 392, in breach of the trust reposed in him, con104 X. E. 933; Boston & Maine R. R. v. stituted a conversion by the carrier. Price Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. v. Oswego & Syracuse R. Co., 50 N. Y. 213, Ed. 1141); but the law remains that the 10 Am. Rep. 475. But the contract in suit carrier may not claim a limitation of lia- does not evade the liability; it merely fixes bility to a certain amount for its affirmative the valuation of the goods when liability wrongdoing (Magnin v. Dinsmore, 62 N. Y. is established. In an action for damages 35, 20 Am. Rep. 442) when the plaintiff makes against the carrier, the shipper is bound by proof thereof (Wamsley v. Atlas S. S. Co., I the terms of the contract, and it is of the

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