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It is also contended on behalf of appellant, have been so kept as to impart notice to that appellee and his predecessors in title those who examine them that are binding. were bound by the notice of the record of the Whatever constructive notice is imparted by town board and were thereby informed of such records must be given effect, even appellant's ownership of the bonds and as though in particular instances hardships resessment in favor of the contractor, O'Brien. sult therefrom. Section 3324, R. S. 1881 ;

It was shown by the town clerk that he section 4346, Burns 1901 ; section 9001, Burns had made search of the office and examined 1914; Byer v. Town of New Castle, 124 Ind. the records from 1901 to 1905 and found no 86–88, 24 N. E. 578; State ex rel. v. Curry, notice or assignment relating to O'Brien's 134 Ind. 133-137, 33 N. E. 685; 21 Am. & assignment to appellant.

Eng. Ency. Law, p. 8. There was other testimony to show that a But, accepting the findings of the court as notice of such assignment had been left in the to the possession of the bond, the notice of office of the town clerk in January 1902, and the assignment, and the assignment itself as it was shown that on April 26, 1909, Jacob above indicated, we must still determine the Briles, town clerk, had furnished an officer legal effect of the undisputed portions of the of appellant a copy of a notice,, which copy record of the town board in this case. was admitted in evidence, and is in substance Appellant contends that the record of the as follows:

proceedings for the improvement of the “To the Board of Trustees, Clerk, and Treasurer street, the report of the assessments, the of the Town of Fairmount:

waiver of appellee's predecessor in title, the "Patrick T. O'Brien has assigned and trans- issuance of the bonds, and the absence of a ferred to the undersigned all money due and record showing payment or satisfaction of coming to him from said town in payment for improvements (which were duly identified), and the assessment affords sufficient constructive all payments therefore are due the undersigned notice to appellees to be binding upon them as evidenced by the written assignment of said and to warrant the foreclosure of the lien O'Brien executed and delivered to said bank March 4, 1901."

upon the real estate in controversy. The

proceedings for the improvement of the The notice was , dated January 23, 1902, street were under the act of 1889, and was signed by “The National Exchange tion 4288 et seq. of Burns' Statutes 1901. Bank of Anderson, Indiana, by John L. Fork. Section 4294, Burns 1901, provides, among ner, Cashier.”

other things, for a lien upon all property asThere was no evidence that the same was sessed for the improvement, and that if the filed as a paper in the proceedings, but, on owner of any lot so assessed shall “promise the contrary, the evidence of the clerk shows and agree, in writing, to be filed with the that no notice or assignment was, ever filed clerk of such city or town and to be spread or made a part of the record or papers in the of record by him in consideration of the proceedings for the improvement of the street right to pay his

assessment, and the issuance of the bonds in controversy. in installments, that he will not make any [3] We find no evidence that indicates the objections

and will pay the same written assignment of O'Brien to appellant,

he shall have the benefit of paying or a copy thereof, was ever left at the office said assessments in ten annual installments”; of the clerk or town board. But if, as appel- also that the proceeds from such assessments lant contends, there is evidence tending to shall constitute a special fund for the pay. prove such fact, it is by no means conclu- ment of the costs of such street improvesive, and the finding of the court to the con- ment "and the bonds and certificates hereintrary is supported by sufficient evidence and after mentioned.”, binding on this court Indeed, the undisput Section 4296 of the statute, supra, provides ed evidence seems to show that no such in- for the issuance of bonds to cover the assessstrument was ever filed as a paper in the ments for which waivers have been filed as proceedings, or in any way made a matter above indicated, and that "all such bonds of record, in such a way as to be notice to a shall be an equal lien upon the property so purchaser of the real estate at the time of the assessed without priority of one over anothseveral conveyances of the lot subsequent to er"; also that the bonds shall bear the name the making of the assessment. It therefore of the street for the improvement of which appears that the court was warranted in find they are issued, "and shall be payable, in ing that neither the assignment nor a copy equal installments, out of the special fund thereof was left at the office of the town *

in 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 clerk.

years from date,

and such bonds, [4] The proceeding of municipal corpora- when issued, shall transfer to the owner tions in street improvements are required by thereof all the right and interest of such law to be duly recorded, and they are public city or incorporated town in and to such asrecords open to inspection. Persons who ac- sessments and

liens thereby creatquire real estate incumbered by assessments ed, with full power to enforce the collection evidenced by such records are bound by the thereof by foreclosure or otherwise." constructive notice given by such records It is also provided by section 4294 of the when duly kept. But it is only records which statute, supra, that when payment is made the law requires to be kept and which in fact | upon any such assessment it is the “duty of

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the treasurer, contractor or owner of the as [6] Where bonds are payable to a named sessments, bonds, or certificates or install person or bearer, the record is notice to ments of assessments, • • receiving such every one that such obligation may rigbtfully payment to enter upon the proper record the be owned and in the possession of some perreceipt of such money, and such receipt shall son other than the one so named without any be a discharge of the lien of such assessment assignment or record of transfer. Melton

and upon the payment of any bonds v. Gibson, 97 Ind. 158-160; Paulman v. Clay. or certificates” so issued under the provisions comb, 75 Ind. 64-67. of the statute the same "shall be surrendered It is not shown that O'Brien delivered the to and canceled by the treasurer" of the mu- original of the bond in suit to Mrs. Gauntt nicipality which issued such bonds. The when he obtained the deed for the lot, or same section provides also that the assess that it was then or at any time surrendered ments for which bonds have been issued shalí to the treasurer of the town board, or what be collected in the same way taxes are col- in fact became of the bond at or prior to the lected, or in such way as the common coun- time of that transaction, though long aftercil or board of trustees may provide by ordi- wards there was a showing made that the

Where bonds have been issued they bond was lost. There is evidence tending to may be, and frequently are, in the hands of show that O'Brien assigned the entire assessdifferent persons. By authority of the stat- ment roll and his right to and ownership of ute or of an ordinance passed as therein pro any bonds issued upon such assessment to vided, assessments are usually and properly the bank on March 11, 1901, and that the paid to the treasurer from whom the bond- bank served a notice on the town board on holder receives payment on surrender of the January 23, 1902, showing that such assignbond held by him.

ment had been executed. The undisputed [5] The question of merger of the lien in record shows that the assessments were apthe title of O'Brien is urged to support the proved in March, 1902; that the bonds were judgment. It appears without dispute that ordered issued in April, and were issued in . bond 47 was the last of the series, and that May, 1902. The deed to O'Brien was not exall other bonds issued had been paid and ecuted until November 10, 1902, and was satisfied. If it also appeared that O'Brien, recorded the next day. It shows a considerawhen he obtained the deed from Mrs. Gauntt, tion of $27.50, and recites that the granwas the actual owner of the bond 47, had tors guaranteed that they had placed no inthe same in his possession, and agreed to re- cumbrance on the lot, and that there was ceipt the record and surrender the bond for none on the same except taxes. cancellation as required by the statute, all The particular bond in controversy bore the other assessments being satisfied, and the same relation to the real estate involved the other bonds paid, it would be reasonable in this suit that it bore to all the other real to contend that the lien on the lot in suit was estate against which assessments had been merged in the title acquired by O'Brien, and levied, and which assessments were the basis that appellant could not now foreclose the of the bond issue of which the one in contro lien against the owners of the real estate versy happened to be the last of the series. who acquired title from Mrs. Gauntt. Swatts The aggregate amount of the issue was $5,V. Bowen, 141 Ind. 322, 325, 40 N. E. 1057; 904.95, and No. 47 was for $500. The assessChase v. Van Meter, 140 Ind. 321, 333, 39 n. ment against appellee's property amounted E. 455; Coburn v. Stephens, 137 Ind. 683, to $350.28. 687, 36 N. E. 132, 45 Am. St. Rep. 218; Artz [7] The law compelled Mrs. Gauntt and v. Yeager, 30 Ind. App. 677, 681, 66 N. E. appellees to know that the particular bond 917; Lagrange v. Greer-Wilkinson Lumber was not issued to cover the assessment on Co., 59 Ind. App. 488, 108 N. E. 373. But it the real estate conveyed except as the amount appears from the record that O'Brien was of such assessment was a part of the ag. not in fact the owner of either the assess- gregate sum for which the bonds were issued. ment or the bond in suit, and that Mrs. The owner of any lot or tract could free the Gauntt relied solely upon his representations same from the lien of the assessment by as to the ownership of the assessment and paying the full amount of the assessment bond, and that his representations were un- against the same, with interest. The proper. true. The lien for the total bond issue cover-ty of appellees was not bound primarily for ed the property of all the owners who signed the payment of this particular bond, and waivers, and the lien of the assessments for the basis of the suit was the unsatisfied as. which such bonds were issued are by the sessment. The bond was only incidentally statute declared equal upon the property as involved. It represented the outstanding sessed without priority of one of such bonds unpaid portion of the assessments for which over any other of such issue. To discharge the series of bonds had been issued. The such lien against any particular tract or lot measure of liability was primarily the unsatthere must be payment in full of the assess-isfied assessment against the lot in suit. The ment against the same to the party lawfully record showed the proceedings for the imentitled to receive the same as proyided in provement of the street, the making of the

issuance of the bonds payable to O'Brien or

(63 Ind. App. 567) bearer, and that as to the lot in suit such as STIMSON V. KRUEGER. (No. 9143.) sessment was unsatisfied.

(Appellate Court of Indiana, Division No. 1. [8] Appellees are charged with construc

Jan. 25, 1917.) tive notice of all the facts shown by such record. Those facts were sufficient to put appel- 1. MASTER AND SERVANT @ww228(1)-EMPLOY

ERS' LIABILITY ACT INJURIES COMPENlees on inquiry, and thereby they became

SATED chargeable with such facts as an ordinarily The Employers' Liability Act (Burns' Ann. diligent search and investigation would have St. 1914, $ 8020a et seq.) does not authorize redisclosed. Hollenbeck v. Woodford, 13 Ind.covery by the employé for injuries resulting from

own independent orders and directions, App. 113, 41 N. E. 348; Oglebay v. Todd, 166 whether given negligently or otherwise. Ind. 250–255, 76 N. E. 238; Reagan v. First

(Ed. Note.-For other cases, see Master and N. Bank, 157 Ind. 623–667, 61 N. E. 575, 62 Servant, Cent. Dig. $ 670; Dec. Dig. Om 228(1).] N. E. 701; Martin v. Cauble, 72 Ind. 67-73; 2. MASTER AND SERVANT Om 261(2)—INJURIES Mettart v. Allen, 139 Ind. 645-649, 39 N. E. TO SERVANT-PLEADING. 239.

A servant's complaint alleging that he was From this it follows that as against appel- logs preparatory to piling them, and that while

ordered by the foreman to put chains around lant appellees hold the lot in controversy sub- he was doing so a fellow servant who was diject to the lien of the unsatisfied assessment rected to haul the logs negligently and without thereon.

warning started a team hitched to the chain and However plausible it may have seemed, showing that the injured servant ordered the

caused injuries, is not defective on its face as Mrs. Gauntt was not in law justified in ac- driver to start. cepting the statements of O'Brien in the face

[Ed. Note.-For other cases, see Master and of the records aforesaid. She and her suc- Servant, Cent. Dig. S 851; Dec. Dig. Om 261(2).] cessors in title were informed by such rec-3. MASTER AND SERVANT 204(1)-INJURIES ord of the unsatisfied assessment and that TO SERVANT-ACTS OF FELLOW SERVANTS. the bonds payable to bearer were enforceable

The fellow-servant rule is eliminated in casagainst the property to the extent of the es brought within the provisions of the Employ.

ers' Liability Act. assessment against the same by the bona fide

(Ed. Note --For other cases, see Master and owner of such assessment and the rightful Servant, Cent. Dig. & 544; Dec. Dig. Om 204(1).] holder of any unpaid bond. Appellant's as- 4. MASTER AND SERVANT 259(4)—INJURIES signment of the assessment preceded the is TO SERVANT-PLEADING. suance of the bonds and the execution of the A servant's complaint alleging that he was deed to O'Brien.

ordered by the foreman to put chains around [9] The record of the deed did not give to she was doing so a fellow servant who was direct

logs preparatory to piling them, and that while appellant notice of any fact that would de- ed to haul the logs negligently and without warnfeat its right to foreclose the lien of the as- ing started a team hitched to the chain and sessment if it was otherwise entitled so to do. caused injuries, is sufficient to bring the case

within the Employers' Liability Act. This suit was begun on October 16, 1913, and

[Ed. Note.-For other cases, see Master and the bonds were issued in May 1902, with the servant, Cent. Dig. & 840; Dec. Dig. Om last installment to run ten years from date 259(4).] before maturity. There is no provision in 5. APPEAL AND ERROB em 1001(3) SCOPE the statutes applicable to this case by which EVIDENCE. all the installments become due on default The Appellate Court can reverse for insuffiin payment of any one or more of such ciency of evidence only where there is no evi

dence to support an element or fact essential installments.

to recovery. (10) Appellees have pleaded the five, six, (Ed. Note.-For other cases, see Appeal and and ten year statute of limitations, as a Error, Cent. Dig. $ 3934; Dec. Dig. Om 1001(3).] complete defense to the whole cause of ac- 6. APPEAL AND ERROR 525(2) SCOPE tion. The dates above given show hat nei RECORD-SUFFICIENCY-INSTRUCTIONS. ther of such statutes is a bar to the cause ing all instructions

requested and all those given

Under Burns' Ann. St. 1914, § 561, requirof action stated in the complaint.

and refused to be filed, they must, to be so For reasons already announced, the deci- brought into the record, be filed, and there must sion of the court is not sustained by sufficient be an entry so showing. evidence, and is also contrary to law. The

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. § 2377; Dec. Dig. Om525(2).] motion for a new trial should therefore have been sustained.


RECORD--SUFFICIENCY INSTRUCTIONS. The judgment is reversed, with instruc

Where the record shows that time was given tions to sustain appellant's inotion for a to file a bill of exceptions, but discloses no such new trial and for further proceedings not bill, instructions objected to, or refusal of others inconsistent with this opinion,

requested, are not brought into the record, under

Burns' Ann. St. 1914, § 660, requiring that Judgment reversed.

when the record does not otherwise show the ground of objection, a bill of exceptions shall be

taken and filed. IBACH, P. J., and DAUSMAN, CALD

[Ed. Note.-For other cases, see Appeal and WELL, BATMAN, and HOTTEL, JJ., concur. Error, Cent. Dig. $ 2376; Dec. Dig. Om525(1).)

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and lodexos



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Appeal from Circuit Court, Pike County ; , being unloaded from cars upon said skidway, John L. Butz, Judge.

and appellee "was directed by said foreman Action by Louis Krueger against Jacob v. to put chains around said logs, and when Stinson. Judgment for plaintiff, and de-said

chains were around said logs fendant appeals. Affirmed.

the said

Collins was directed to R. W. Armstrong, of Huntingburg, for ap- drive up said team and pile said logs upon pellant. R. M. Milburn, M. A. Sweeney, and one another with said team,and while apBomar Traylor, all of Jasper, for appellee.

pellee was thuis engaged in putting a chain

around one of said logs upon said skidicay, HOTTEL, J. This is an appeal from a

which chain was attached to a double tree to judgment in appellee's favor, in an action which two horses of said defendant were brought by him to recover for personal in- hitched, said Collins carelessly and neglijuries alleged to have been caused by ap- warning to appellee. That appellee was at

gently started up said team without any pellant's negligence.

The issues of fact were tendered by a com- said time standing in front of said logs and plaint in one paragraph, and a general

between said log and the pile of logs upon denial. A demurrer to the omplaint for which said log was to be placed, and the want of facts, a motion for judgment on the team was on the other side of said pile. answers to interrogatories, and a motion for That said log to which the chain was being new trial, filed by appellant, were each over. attached was about five feet from said pile ruled, and exceptions properly saved. Each of logs upon which it was to be placed, and of said rulings is assigned as error in this when said team was so carelessly started by court, and relied on for reversal.

Collins and said log began to move appellee The grounds upon which the sufficiency of immediately began to halloo to Collins to the complaint is challenged, as set out in the stop the team, and at the same time attempt. memorandum accompanying said demurrer,

ed to escape by jumping and trying to climb are, in substance, as follows: (1) It appears over said log, but was in some way caught on the face of the complaint that the cause and rolled along with said log to said pile of action therein stated is predicated on the when one arm and leg were caught between act of the Legislature, approved March 2, said log and said pile of logs and broken 1911, commonly known as the "Employers' and crushed, etc. That said injuries were Liability Act," and such act has no applica- caused wholly by the carelessness and neglition to the cause of action described in ap- gence of appellunt's employé in starting up pellee's complaint. Section 8020a et seq., said team without any warning to appellee Burns 1914. (2) The complaint fails to while he (appellee) was in said dangerous show any duty owed by appellant to appellee and precarious position. That when he re which was neglected. (3) The complaint ceived his injuries, appellee was in the line fails to show any order given by appellant of his duty, obeying the orders and directions to appellee that was negligently given. (4) of appellant's said foreman and vice princiThe complaint shows on its face that the pal, to whose orders and directions appellee negligence, if any, responsible for the injury was obliged to conform. was the negligence of a fellow servant.

[1] If we correctly interpret appellant's The averments of the complaint affecting brief, the first three grounds of his objecsaid questions are, in substance, as follows: tion to the complaint set out in his memoranAppellant owns and operates a sawmill in dum, indicated supra, are based upon a conHuntingburg, Dubois county, Ind., and is en- tention that the complaint shows upon its gaged in the purchase and sale of timber, logs face that the orders and directions under and lumber, and in such mill saws and cuts which Collins started the team and caused lumber of all kinds. That in the operation the log in question to be moved by appellant of his said mill and business he employs were orders and directions given by appellee more than 5 persons, to wit, 50 men. That himself. Of course the statute under which logs purchased and delivered to appellant's the action was brought does not authorize said mill are brought in on wagons and recovery by the employé for injuries resulttrains, and are unloaded in said millyard by ing from his own independent orders and diappellant's employés in the following man- rections whether given negligently or otherner, viz.; They are rolled off of the wagons wise, and if the complaint in fact shows that and freight cars on a skidway. A chain is appellee gave the order and direction to Colthen attached to said logs, and a team hitch-lins to start the team, and that such order ed to the other end of the chain pulls and and direction was the proximate cause of his rolls said logs to the place and position de injury, the demurrer thereto should have sired, piling them one upon another, six or been sustained. However, we do not so inseren logs high. On October 9, 1912, appel terpret such averments, nor do we think lee had been employed by appellant about them fairly susceptible of such interpretaone year, and on said day was directed by tion. appellant's foreman and vice principal, one [2] While the language of the first part Harry Maley, to go into the yard and help of the italicized averment, supra, is some

ed and gare the order to Collins to start the the other logs, he (appellee) attached the team, it clearly appears from the other aver chain and went out from between the log and ments, which follow, that at the time of his the pile on which it was to be placed, where Injury appellee did not give any order or he could be seen by. Collins, and would then signal to start the team, but that the team give him the signal or tell him to go ahead; was started by Collins without any warning that this course was pursued at the directo appellee, and at a time when he was still tions of Collins; that while attaching the doing the work and carrying out the order chain to the log which injured him, it began of his superior, which placed him in a posi- to move just as he was starting to get up tion of peril and danger if the log was mov- from attaching the chain, and before any ed before he had performed his work and signal or direction had been given by him to gone to a place of safety.

Collins, and while he was still in front of [3] As to the fourth ground of objection, the log and before he could escape and get supra, it is sufficient to say that the fellow. from between it and the pile on which it was servant rule is eliminated in cases brought to be placed, that he called to Collins to within the provisions of the act of 1911, stop the team, and tried to jump and climb supra. Vandalia R. Co. v. Stillwell, 181 Ind. over the log, but was caught, etc.; that he 267, 104 N. E. 289, Ann. Cas. 1916D, 258; gave Collins no signal or directions to move Chicago, etc., R. Co. v. Mitchell (Sup.) 110 the log; and that Collins gave him no knowlN. E. 680; Central Ind. Ry. Co. v. Clark edge or warning that he was going to move it. (1916) 112 N. E. 892. For interpretation and (5] The jury, both by their general verconstruction of other provisions of said act, dict and by their answers to interrogatories, see S. W. Little Coal Co. v. O'Brien, 113 N. found the facts upon this branch of the case E. 465, and Standard Steel Car Co. v. Mar- to be as testified to by appellee. It is only tinecz, 113 N. E. 244.

in those cases where there is no evidence to [4] The averments of the complaint above support one or more of the facts or elements indicated are, we think, clearly sufficient to necessary and essential to recovery that this br the case within said statute, as con- court can reverse the judgment below bestrued and interpreted in said cases, and suf- cause of insufficient evidence. H. A. Mcficient to meet all the objections of appellant Cowen & Co. v. Gorman, Adm'r, 51 Ind. App. above indicated.

523, 530, 100 N. E. 31, and cases cited. No material or essential fact is found by [6] The action of the trial court in giving the answers to interrogatories that is in and refusing to give certain instructions is irreconcilable conflict with the general ver- challenged by appellant's motion for new dict. Indeed, such answers are in harmony trial, and urged here as error. It is claimwith and tend to support, rather than con- ed by appellee that this alleged error is not tradict, such verdict. It follows that no presented by the record because there is no error resulted from the ruling on appellant's entry showing the filing of said instructions. motion for judgment on such answers. See We have examined the record and find Lake Erie, etc., Co. v. McConkey (1916) 113 that it supports appellee's contention.

In N. E. 24, and cases there cited.

order that the instructions may be brought In support of his contention that error into the record under section 561, Burns resulted from the ruling on his motion for 1914, an entry showing their filing is essennew trial, it is insisted by appellant that tial. Morgan Construction Co. v. Dulin there is no evidence that Collins was direct- (Sup.) 109 N. E. 960; Suloj v. Retlaw Mines ed by anybody other than appellee to start Co., 57 Ind. App. 302, 107 N. E. 18; Peterson the team at the time he (appellee) was in-v. Liddington, 60 Ind. App. 41, 108 N. E. 977. jured, and that the team was in fact started [7] The record shows that appellant asked pursuant to appellee's signal and direction. and was given time in which to prepare and There is evidence which might have justified present a special bill of exceptions containthe trial court or jury in reaching such a ing the instructions tendered and those given conclusion, but the appellee himself testified, and refused by the court, but the record fails in substance, that on the morning of his in- to disclose any such bill, and hence there jury he had been ordered and directed by is a failure to bring the instructions in the appellant's foreman, Mr. Maley, to help Col- record in the manner authorized by section lins double-deck logs; that Maley instructed 660, Burns 1914. him in said matter, and directed him to at The instructions are not brought into the tach the chain to the log to be moved, etc.; record in any way recognized by law, and that they bad moved about two dozen logs hence cannot be considered. before they attempted to move the one by Finding no available error in the record, which appellee was injured; that in moving the judgment below is affirmed.

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