erty then owned and held by said Hender- | recorded a full and complete release of said son, but which is now claimed by appellant. mortgage on the margin of the record whereThe amended complaint on which the case in such mortgage was recorded; that said was tried is in one paragraph, and was not release is now and has been ever since April challenged below. Its averments material 19, 1905, of record in said mortgage record; to the questions presented by this appeal are that at the time he purchased the real estate in substance as follows: On September 30, said mortgage appeared to be released; that 1902, Henderson executed his note for $1,- he had no notice or knowledge whatever that 300, together with certain coupon interest appellee had or held a mortgage or other lien notes, to appellee and, his wife joining, on such real estate; that he, relying wholly mortgaged the property in dispute to appel- on the correctness and truthfulness of said lee as security. The mortgage was recorded entry of satisfaction, and in good faith and within 45 days from its execution in the of- for valuable consideration, is a bona fide fice of recorder of Marion county, Ind., mort- purchaser and holder of said real estate. gage record 418, at page 121. There is now There was a reply in general denial. due and unpaid on said notes a total sum of A trial by the court upon the issues thus $1,051, with attorneys' fees. After this mort- formed resulted in a judgment in favor of gage was executed and delivered to plaintiff appellee for $1,487.44, and a decree of fore(appellee) Henderson transferred the prop-closure of the mortgage sued on and an orerty to the defendants Puryear and Porter der of sale of the property. for the purpose of securing them as sureties Appellant Greathouse's motion for a new on an appeal bond in an appeal from a judg-trial was overruled, and such ruling is here ment rendered against Henderson in the assigned as error. The only questions preMarion superior court, the judgment in sented by such motion are that the decision which cause has since been reversed and va- of the court is not sustained by sufficient evicated. On March 11, 1912, Evelyn M. Mc-dence, and is contrary to law. Adams executed a quitclaim deed purport- The undisputed facts, arranged in their ing to convey said real estate to defendants sequence, are in substance as follows: On Puryear and Porter, and that said deed was September 30, 1902, William E. Henderson afterwards, on April 23, 1912, recorded. executed his note to appellee for $1,300, toAfter the execution of such deeds the defend-gether with certain coupon interest notes. ants Puryear and Porter and their respective wives executed a quitclaim deed to appellant Greathouse, purporting to convey said real estate to him, which deed was afterwards, on April 23, 1912, recorded. Defendant Henderson paid all the consideration for said transfers of said real estate, or arranged with Greathouse to pay said consideration for him, and Greathouse holds title to said real estate as a volunteer for the use and benefit of said Henderson and for the fraudulent purpose of preventing appellee from enforcing and collecting his lien sued upon herein as against said real estate. The property is in possession of the Hender sons. On the same day, his wife joining, they executed a mortgage on the property in dispute, which Henderson then owned, to secure such note. This mortgage was recorded on October 1, 1902, in record No. 418, page 121 in the recorder's office of Marion county. On April 19, 1905, appellee released said mortgage (by mistake as he claims) by an entry on the margin of said record. On June 19, 1906, Henderson, his wife joining, again mortgaged said real estate to Benjamin Dake to secure Henderson's note for $800, and certain interest notes accompanying it. On January 25, 1908, Thomas McGruder obtained a judgment in tort against Henderson for $600, from which an appeal was taken to this Appellant Greathouse answered the com- court, where it was reversed March 27, 1912. plaint by general denial and a paragraph of On March 6, 1909, Henderson and wife, by special answer, in which he avers in sub- a warranty deed, conveyed said real estate stance that as to so much of the complaint as to John A. Puryear and Jacob M. Porter. seeks to foreclose the mortgage set out there- On the same day Henderson, Puryear and in he is the owner in fee simple of the real Porter entered into an agreement by which estate described; that he became the owner Puryear and Porter were to have the prop of said real estate by a deed executed to erty free from all claims in case the McGruhim on March 11, 1912, by Puryear and der judgment was affirmed and they were Porter and their respective wives, which compelled to pay it; but in case the judg deed was recorded within 45 days in the ment was reversed, they were to reconvey deed records of Marion county; that in con- the property to Henderson's wife. On March sideration of the execution of such deed, he 30, 1911, the sheriff of Marion county deedpaid the full cash value of said real estate ed the property in question to Evelyn Mcand took the title thereto; that appellee's Adams-such deed reciting, among other mortgage was executed on September 30, things, that on November 24, 1908, in "the 1902, and afterwards recorded in mortgage | Appellate Court of the state of Indiana, in record No. 418 on page 121 of the records of Marion county; that on April 19, 1905, and long before the purchase of the real estate by him, appellee executed. and caused to be cause No. wherein Absent Bivers and Thomas McGruder are plaintiffs and William E. Henderson is defendant, the said plaintiff recovered judgment against the said defend ant William E. Henderson for the sum of one hundred and fourteen 05/100 dollars and costs, and also an order for the sale of the real estate hereinafter described, all without relief from valuation and appraisement laws"; a sale of said property by the sheriff to Jennie McGruder on January 29, 1910, the issuance of a certificate to her; the assignment of this certificate to Evelyn McAdams; and that said real estate was sold as the property of William E. Henderson. On March 3, 1912, Greathouse gave Puryear and Porter a certified check on the Fidelity Trust Company for $1,060.31 in satisfaction of the Dake mortgage. On March 11, 1912, Evelyn McAdams conveyed and quitclaimed the property to Puryear and Porter. Afterwards on the same day Puryear and Porter, their respective wives joining, released and quitclaimed their interest in said property to appellant Greathouse. On March 12, 1912, the defeasance contract was assigned to appellant Greathouse by Henderson and wife. As indicated by the facts above set out, appellant was the apparent holder of the legal title to the property in dispute. He was a remote grantee of Evelyn McAdams, and held all the title acquired by her by virtue of the sheriff's deed. He was also the grantee of Puryear and Porter and derived all title and interest vested in them by virtue of the deed from Henderson and wife, and was also the assignee of the contract of defeasance executed by Henderson and Puryear and Porter. [1] Under the averments of the complaint, in order to defeat appellant's title, appellee was required to show either that Greathouse held such title as a mere volunteer, or that it was held fraudulently, or that the consideration was paid by Henderson. There has not been pointed out to us a scintilla of evidence on either of the above essentials that would even tend to support such allegations. mortgage and the assumed liability on the appeal bond which ceased to exist on the reversal of the judgment. Conceding that appellee's contention as to the credit to be given this testimony is correct, we think it apparent that this falls short of affirmative proof necessary to defeat the legal title shown in appellant. It follows that the evidence is insufficient, and the cause must be reversed. Judgment reversed, with instructions to the lower court to grant the motion for a new trial, and for further proceedings not inconsistent with this opinion. STANDARD STEEL CAR CO. v. MARTIN- 1. MASTER AND SERVANT 276(1)—INJURIES Where plaintiff, in an action for injuries to or death of a servant, has proven a defect in the working place, tool, implement, or appliance furnished by the employer, and the consequent injury, a prima facie case is made against the employer. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950, 954; Dec. Dig. 276(1).] 2. MASTER AND SERVANT 204(1)—INJURIES TO SERVANT-ASSUMPTION OF RISK. Under Burns' Ann. St. 1914, § 8020c, providing that the burden of proof of an employer's employer, and section 8020b, providing that an knowledge, actual or constructive, is on the employé shall not be held to have assumed the risk of defects in the place of work, tool, imployer, where the employer had actual or conplements, and appliances furnished by the emstructive knowledge of the defect in time to have made repairs, the contention that the defense of assumption of risk is available when the employer has proven want of knowledge is immaterial, since such proof shows absence of negligence, defeating the cause of action. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. 204 (1).] [2] A deed fair and valid upon its face is evidence of an honest transaction; and until it is assailed by evidence, effective as proof, that it was obtained by the fraud of the grantee, he is not required to adduce any evidence in its support. Ewing v. Gray, 12 Ind. 64, 67. See, also, Western Union J. Lotz, both of Hammond, for appellee. Telegraph Co. v. Krueger, 36 Ind. App. 348, 74 N. E. 25; Sheets v. Dufour, 5 Blackf. 549. But aside from the presumption arising from the deeds there is uncontradicted evidence to show that appellant purchased the property in good faith, without notice of appellee's mortgage, and paid a valuable consideration therefor. Appellee contends, however, that it was within the province of the court to disbelieve the testimony of Henderson and of Greathouse as to an agreement for rent and the payment of a consideration other than the payment of the Dake Appeal from Superior Court, Lake County; Johannes Kopelke, Judge. On petition for rehearing. Petition denied. For former opinion, see 113 N. E. 244. Crumpacker & Crumpacker, of Hammond, for appellant. George B. Sheerer and Walter CALDWELL, C. J. Appellant in its brief, in support of a petition for a rehearing, contends that our construction of the second sentence of the third section of the act of 1911 (Acts of 1911, p. 145; section 8020c, Burns 1914), as indicated by our original opinion, is erroneous. That sentence is set out in the original opinion, and is to the effect that in actions brought under the act, the employé involved shall not be held to have assumed the risk of defects in the place of work, tool, implement or appliance furnish For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed him by the employer, where the employ- | without practical value even though theoer had actual or constructive knowledge of retically it be well grounded Under apthe defect in time to have made repairs or to have discontinued the use of such defective place, etc., by the exercise of reasonable diligence. Appellant assumes that we held that in all cases brought under the act wherein negligence is predicated on defects in place, etc., the prior right of the employer to appeal to the principle of assumed risk to defeat the action is, by the language of that part of the enactment under consideration, eliminated. Appellant's argument is that such language, literally interpreted is to the effect that the right to resort to the principle of assumed risk is destroyed only in those cases where the employer fails to establish that he did not have knowledge actual or constructive as aforesaid, and that in all other cases, as where the employer does establish his want of such knowledge, the potency of the principle of assumed risk remains unaffected. It may be conceded that as a mere theoretical proposition appellant is right in its construction of the provision of the statute now under consideration, considered alone. Such concession, however, if made, does not militate against anything said in the original opinion. As bearing on the statutory provision now under consideration, together with certain provisions of the second section of the act, we there said: pellant's construction of that part of the statute now under consideration, the employer may have recourse to the doctrine of assumed risk under some circumstances where the complaining party has failed to prove that the employé did not have either actual or constructive knowledge of the defects, or that he did not understand, and that he was not chargeable with an appreciation of, the perils arising therefrom. Appellant so contends, for the assigned reason that under some circumstances the employer's right to resort to such principle is not eliminated by the statute. Appellant concedes that such circumstances are confined to a case where the employer has proven his want of knowledge as above indicated. It thus appears, if appellant's contention and concession be considered together, that that status of the case which, when reached, defeats the complainant's case also gives rise to a right to resort to the principle of assumed risk to defeat it; that in order that the employer may appeal to such principle to defeat the action, he must first, by his proof, defeat it on other grounds. We, therefore, conclude that appellant's contention, if well grounded, is without any practical value. As applicable here, we quote the following from note to Scheurer v. Banner Co., 28 L. R. A. (N. S.) 1207, at page 1216: "As negligence on the part of the employer is the essence of liability under all the provisions of the act, the question of assumed risk master for an injury to a servant, it is ele"In every case involving the liability of the becomes unimportant in its relation to inherent or apparent dangers or hazards, and likewise mental that there can be no recovery unless the in its relation to defects in place, tool, imple- some breach of duty owing by him to the servmaster has been negligent-has been guilty of ment, etc., unless such dangers, hazards, or defects are the result or exist by reason of the ant. At least, there can be no recovery in the absence of some special contract or statute exemployer's negligence. The question of asConsequently, if sumed risk becomes unimportant under the cir- pressly providing therefor. cumstances indicated, for the reason that the the servant fails to show that the master has absence of negligence on the part of the em-marily because he has assumed the risk of the been negligent, he cannot recover; not priployer would defeat any action brought under the act, and as a consequence there would be no occasion to resort to the defense of assumed risk to that end." [1] Amplifying what is there said, where the employé, or the complaining party, in case the employé's injuries resulted in death, has proven a defect in the working place, tool, implement, or appliance furnished by the employer for the use of the employé and the consequent injury, a prima facie case has been made against the employer. Deer v. Suckow, 110 N. E. 700. injury, or in any way waived his rights, or failed to exercise due care, but because the master has incurred no liability. If the servant fails to show some breach of duty on the part of the master, he fails to establish even a prima facie case. In most, if not in all, employments, some full duty in furnishing the place, appliances, dangers remain after the master has fulfilled his and tools, and in all other ways; and it is a very convenient mode of expression to say, as the courts almost universally do, that the servant assumes the risk of all such dangers, but it seems illogical, at least, to say that the servant's inability to recover for injuries due to such dangers rests upon his assumption of the would appear to rest peculiarly upon the abrisks thereof, since the master's nonliability sence of any breach of duty upon his part. In view of this, it is unfortunate that some courts have considered it necessary in some cases to discuss at length both the question of assumption of risk and of contributory negligence or lack of due care on the part of the servant, when they have expressly found that the master was not negligent." [2] By the express provisions of section 3 of the act (8020c), the burden of proof on the question of the employer's knowledge, actual or constructive, is on the employer. If the employer establishes the absence of such knowledge on his part in time to have made repairs, etc., he thereby successfully meets the charge of negligence made against him, and he thereby also defeats the action, In the original opinion, we endeavored to because negligence is its gist. It, therefore, distinguish between the principle of assumed seems to us that a contention that, as ap- risk and the doctrine of contributory negliplicable to such situation the principle of as-gence, as those terms are used in and affected sumed risk is not eliminated by the statute, by the act. Appellant does not take issue but remains available to the employer, is with our deduction as drawn, and concedes that the third sentence of section 2 of the act, if it were considered alone, is broad enough to eliminate from causes brought under the act the defense of assumed risk as to all dangers inherent or apparent in the employment. Such second sentence is as follows: out a jury, is simply a restatement of the law in relation to trials by jury as it existed before its enactment, and does not in effect provide that under no circumstances is contributory negli gence a question for the court. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1089; Dec. Dig. 289(1).] Appeal from Circuit Court, Gibson County; Simon L Vandeveer, Judge. On petition for rehearing. Petition over "In actions brought against any employer under the provisions of this act for the injury or death of any employé, it shall not be a defense that the dangers or hazards inherent or apparent in the employment in which such in-ruled. jured employé was engaged, contributed to such injury." Appellant contends, however, that such sentence must be construed with the second sentence of the third section, set out in the original opinion, and that, when so considered, the latter modifies or limits the former, to the effect that, as to inherent or apparent dangers growing out of defects in the place, tool, appliance, or equipment, the latter provision governs. For former opinion, see 113 N. E. 465. Embree & Embree, of Princeton, for appellant. S. E. Dillin, of Petersburg, Ely & Corn, and T. Morton McDonald, of Princeton, for appellee. a petition for a rehearing argues: First, that CALDWELL, C. J. Appellee in support of in actions brought under the act of 1911 (Acts 1911, p. 145; section 8020a et seq., Burns 1914) contributory negligence is in no case Assuming for purposes of discussion that the latter provision is in modification of lim- a complete defense; and, second, that if in itation of the former, rather than a con-existence as a controlling factor is under all any case it is a defense, the question of its crete application of it, as stated in the orig- circumstances one of fact for the jury, and inal opinion, and as a consequence, that in that under no circumstances is it a question the relation of employer and employé there may be inherent and apparent dangers other of law for the court. [1] Appellee's first contention is based on than those growing out of place, tool, applicertain provisions of the first section of the ance, or equipment, then we are simply brought to the proposition first above discus- act, to the effect that liability against the sed, that is, in actions predicated on de- employer may be established, the other cirfects in place, etc., the employer defeats the cumstances existing, "when such injury or action by proving that he did not have knowl-death resulted in whole or in part from the edge, etc.; and if, in cases where he does not have knowledge, the principle of assumed risk theoretically remains available, the right to resort to it is an empty right, as the action is otherwise defeated. negligence of such employer or his, its or their agents, servants, employés or officers," etc. The argument is that, since the statute prescribes liability against the employer where the injury or death results only in We have carefully considered other ques-part from the negligence of the employer, tions presented in the petition for a rehearing, but find no reason why we should depart from our original conclusion. The petition is overruled. (63 Ind. App. 504) etc., a case wherein the negligence of the employer concurs proximately with the negligence of the employé to produce an injury to or the death of the latter comes within the act, and hence that the existence of contributory negligence is not a defense, where it concurs with the negligence of the em S. W. LITTLE COAL CO. v. O'BRIEN.*ployer to produce the injury or death. The (No. 9012.) decided cases recognize that contributory negligence is not under all circumstances eliminated as a defense by the act. Where not expressly abolished, it remains available. See Vivian Collieries Co. v. Cahall, 110 N. E 672; Vandalia R. Co. v. Stillwell, 181 Ind. 267, 104 N. E. 289, Ann. Cas. 1916D, 258; Chicago, etc., Co. v. Mitchell, 110 N. E. 680. The second section of the act recognizes the defense by providing that the burden of proof on that issue rests on the defendant. Said [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 670; Dec. Dig. section provides, also, in substance, that an 228(1).] injured employé shall not be held to have 2. MASTER AND SERVANT 289(1)—INJURIES been guilty of contributory negligence, where TO SERVANT-ACTIONS-QUESTIONS FOR JURY. the injury complained of resulted from the Acts 1911, c. 88, § 7, providing that all ques-employe's conformity or obedience to any ortions of contributory negligence in actions for injuries to employés shall be questions of fact der or direction of the employer, etc. If the for the jury unless the cause is being tried with-injury resulted from a conformity or obediFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes comply with the rules and present some question, the court, on proper showing and upon notice to the opposite party, will permit any reasonable amendment necessary to present the merits of the appeal, subject to costs, etc.; but, if the briefs filed failed to present any question as to the merits of the appeal, appellant will not be permitted to amend after the time for taking an appeal and filing briefs, except where the necessity for an amendment results from acts of appellee or some cause for which the appellant was not to blame. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. 766.] ence to the order, the effect of the act is amendments to those he may have filed within that the employé shall not be held guilty of such time, on notice to the opposite party and contributory negligence, by reason of the leave of court, and, after such time, he may, in certain contingencies, obtain leave to amend his mere fact that he did conform or was obedi-briefs; and, where the briefs filed substantially ent to the order. See Doan v. Atkins Co., 111 N. E. 312. His manner of carrying out the order, however, rather than the fact that he did carry it out, might not be characterized by due care, and he might be injured by reason of the manner in which he carried out the order, rather than from the mere fact that he carried it out. As applied to such a case, the act does not eliminate the defense of.contributory negligence. See Vivian Collieries Co. v. Cahall, supra, 110 N. E. 677, 678. It is true that the effect of the statutory provision to which appellee directs our attention is not discussed in the decisions holding that contributory negligence is restricted rather than abolished as a defense by the act of 1911. Respecting such provision, it may be said, however, that the negligence of an employer may concur with the negligence of some third person, other than an agent, servant, employé, or officer of the employer, to produce the injury or death complained of. In such a case, such injury or death might be said to result only in part from the employer's negligence. The employer, however, in such a case is not relieved from liability in actions ruled by the common law. Hoosier Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956; Cooley's Torts (2d 2. APPEAL AND ERROR 766, 773(2)—BRIEFS -AMENDMENT-TIME-DISMISSAL. Where the time for taking an appeal had passed, and it appeared from appellant's briefs and motions that he had wholly failed to present any question under the rules of the Supreme Court and the Appellate Court, he had no right to amend his briefs, and appellee on a timely presentation of his motion therefor was entitled to a dismissal of the appeal. Error, Cent. Dig. §§ 3101, 3104, 3108, 3126; [Ed. Note.-For other cases, see Appeal and Dec. Dig. 766, 773(2).] 3. COURTS 85(1) - RULES OF COURT FECT. EF The rules of the court have the force and effect of law binding alike upon litigants and the court. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 294, 298, 299, 301; Dec. Dig. Ed.) p. 823; Fliege v. Kansas, etc., Co., 82 [2] Appellee's second contention is based on the seventh section of the act, which is, in part, as follows: "All questions of contributory negligence shall be questions of fact for the jury to decide, unless the cause is being tried without a jury, in which case, such questions shall be ques tions of fact for the court.' Respecting such section, the Supreme Court, in Kingan Co. v. Clements, 110 N. E. C6, say: "We are of the opinion that section 7 is simply a restatement of the law in relation to trials by jury, as it existed prior to its enactment." Other questions are discussed, but we discover no reason why we should not adhere to our original conclusion. Petition for rehearing overruled. (63 Ind. App. 606) BINGHAM v. NEWTON BANK et al.' (No. 9454.) (Appellate Court of Indiana, Division No. 1. June 2, 1916.) Replevin suit by James Bingham, as receiver of the Columbia Casualty Company, against the Newton Bank, in which by intervening petitions Rudolph C. Keller and one Richards were admitted as parties to the suit, and in which Keller filed a cross-complaint. Judgment for Keller, finding that Richards had no right, title or interest, that the bank was entitled to one certificate, and that Keller should have judgment against the bank for the amount of one certificate, and the plaintiff appeals. Appeal dismissed. James Bingham and Remster A. Bingham, both of Indianapolis, and Charles M. McCabe, of Crawfordsville, for appellant. C. W. Dice, of Covington, Adams, Follansbee, Hawley & Shorey, of Chicago, Ill., John B. Martin, of Covington, and Clyde E. Shorey and John E. Gavin, both of Chicago, Ill., for appellees. FELT, J. Appellee Rudolph C. Keller has moved to dismiss this appeal. The record shows that the judgment overruling appellant's motion for a new trial was rendered September, 7, 1915. The appeal was submitted in this court on December 6, 1915. ApWithin the time allowed for the filing of pellant by procuring an extension of time briefs an appellant will be permitted to file had until April 10, 1916, in which to file his amended briefs, or to make any reasonable briefs. The briefs were filed on that day, 1. APPEAL AND ERROR 766 BRIEFS AMENDMENT-NOTICE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-7 |