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8. Acker, 18 Barb. (N. Y.) 393-395; McDer., the judgment as awarded the alimony and mott v. Board, etc., 25 Barb. (N. Y.) 635- the custody of the child to appellee be annul647; Thompson v. Brannan, 76 Cal. 618, 18 led and set aside. The transcript was filed Pac. 783; Marcele v. Saltzman, 66 How. in the office of the clerk of this court on the Prac. (N. Y.) 203; Goggs v. Huntingtower, 12 10th day of August, 1916. Appellee moves to Meeson & Welsby's, 502; Griffin v. Board, dismiss on the ground that the appeal was etc., 20 S. D. 142, 104 N. W. 1117.

not perfected within the time fixed by stat[3] The case has been upon the docket of ute. Section 672, Burns 1914. this court since July 21, 1916, and no steps [1] Appellant concedes that under the law have been taken to perfect the appeal except as stated in Kurtz v. Phillips, 113 N. E. 1016 as above indicated. More than 90 days have (October, 1916), he could not have appealed elapsed, and under rule 36 (55 N. E. vii) the from the action of the court in overruling his appeal should be dismissed.

motion to set aside the default. He further Appeal dismissed.

concedes that if his said motion to modify

had been overruled, then under the law as (64 Ind. App. 260)

stated in Thomas v. Thomas, 110 N. E. 573, CHENOWETH v. CHENOWETH.* he could have derived no advantage there (No. 9713.)

from for the purpose of computing the time (Appellate Court of Indiana, Division No. 2. allowed for an appeal from the original judg. Jan. 30, 1917.)

ment. But he contends that the action of 1. APPEAL AND ERROR 346(2) TIME OF the court in modifying the judgment brings APPEAL-EFFECT OF MODIFICATION OF JUDG- him within the case of Johnson v. Foreman,

24 Ind. App. 93, 56 N. E. 254; and therefore Where a judgment for divorce was modified upon appellant's motion, striking out provisions that the statutory period within which his for alimony and giving him custody of the child, appeal might be taken from the original judgand after time allowed by Burns' Ănn, St. 1914, ment should be reckoned from the day on 8 672, he appealed from the remainder of the which the modification was made. This conjudgment, his appeal will be dismissed; his

The case of motion and the modification not extending time tention cannot be sustained. of appeal from original judgment.

Johnson v. Foreman, supra, differs radically [Ed. Note.-For other cases, see Appeal and from the case at bar. The facts of the Error, Cent. Dig. 8 1891; Dec. Dig. em 346(2).] Johnson Case are that Johnson recovered 2. APPEAL AND ERROR C346(2) TIME OF judgment against Foreman; that long afterTAKING APPEAL-MODIFICATION OF JUDG- ward and at a subsequent term Foreman's MENT.

Where a judgment is materially modified, motion to modify was sustained, and the such modification is in effect a new judgment, judgment was so changed as to deprive Johnand time allowed for appeal is to be computed son of his substantial rights as fired by the from date of modification.

terms of the original judgment; that John(Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 1891; Dec. Dig. 346(2).) son treated the motion to modify and the ac

tion of the court thereon as a wholly indeAppeal from Superior Court, Marion Coun- pendent proceeding, from which he appealed ; ty; W. W. Thornton, Judge.

and that his appeal was entertained. In the Action by Blanche E. Chenoweth against case at bar the modification of the judgment Daniel A. Chenoweth. Judgment for plain was by appellant's own procurement, and tiff modified on defendant's motion, and de

was decidedly favorable to him. Apparently fendant appeals from remainder of judg. it relieves him from a judgment in the sum ment. Appeal dismissed.

of $5,000, and favors him with the custody Walker & Hollett, of Indianapolis, for ap- of his child. To presume that appellant is pellant. Smith, Remster, Hornbrook & Smith, | attempting this appeal for the sole purpose of Indianapolis, for appellee,

of reviewing the action of the court in modi.

fying the judgment would be preposterous. DAUSMAN, J. Appellee instituted this ac- However, there is no occasion to indulge a tion against appellant for divorce, alimony, presumption. It appears from his brief on and the custody of their child. There was the motion to dismiss and from his assignpersonal service on appellant. On the 15th ment of error that in fact he is seeking to day of September, 1915, he was defaulted and review only what is left of the original judg. judgment was rendered, granting her a di- ment. In this respect his case is like the vorce and alimony in the sum of $5,000 and case of Joyce v. Dickey, 104 Ind. 183, 3 N. E. the custody of the child. On the 11th day of 252. February, 1916, the court overruled his mo Appellant's motion to modify the judgment tion to set aside the default, and he then is of the class known as collateral motions; filed his motion to modify the judgment by and the rule is that collateral motions do striking out “the judgment for alimony," and not operate to extend the time within which that part of the decree giving her the custody an appeal may be taken from the original of the child. On the 14th day of February, judgment. 1916, at a subsequent term, the court sus [2] Another rule is that where a judgment tained his said motion to modify, and there is modified in some material feature, such upon ordered and decreed that so much of | modification is in effect a new judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

from which new judgment the party aggriev. Judgment for plaintiff, and defendant aped may appeal; and in such case the time peals. Affirmed. allowed for appeal is, of course, computed

Elam, Fesler, Elam & Young, of Indianapfrom the date of the modification. Corpus olis, and White, Crosser & Curtiss, of CleveJuris, vol. 3, p. 1050, $ 1047; Thomas v. land, Ohio, for appellant. Louis Newberger, Thomas, supra; Atkinson v. Williams, 151 Clarence E. Weir, Charles P. Ritter, and Ind. 431, 51 N. E. 721.

Charles W. Richards, all of Indianapolis, for We hold that this appeal, being from the

appellee. original judgment, and the transcript not having been filed within 180 days thereafter,

IBACH, P. J. On March 20, 1912, appelcannot be entertained.

lant, a corporation of the state of Ohio, enAppeal dismissed.

tered into a written contract with appellee, a corporation of the state of Pennsylvania,

wherein it agreed to furnish appellee its re(66 Ind. App. 345)

quirement of magnetos for use on automoK-W IGNITION CO. V. GREENVILLE

biles until December 31, 1912. At the time of METAL PRODUCTS CO. (No. 9187.)*

making the contract and as a part of it, ap(Appellate Court of Indiana, Division No. 2. pellant gave its written guaranty. Five hunJan. 30, 1917.)

dred and two magnetos were furnished, but 1. APPEAL AND ERROR Ow761–PROPOSITIONS it is claimed they did not conform to the -ABSTRACT STATEMENTS.

guaranty, and were worthless. Consequently, Propositions containing mere abstract state- this suit was brought to recover damages ocments of law or fact, not applied to any particular ruling of the court on any cause assigned casioned by the breach of the guaranty. The for a new trial, present no question for review. Gibson Automobile Company, being indebted

[Ed. Note.-For other cases, see Appeal and to appellant at the time the suit was brought, Error, Cent. Dig. $ 3096; Dec. Dig. Om761.) was made garnishee defendant. The com2. APPEAL AND ERROR 728(2) ASSIGN- plaint is in three paragraphs. The first is MENT OF ERRORS-EXHIBIT.

An assignment of error in the admission in predicated on the theory of an offer to return evidence of an exhibit, which does not set out the goods and for a recovery of the purchase the exhibit nor state the nature of the objec-price paid. The remaining paragraphs are tion, presents no question for review.

on the theory of a retention of the magnetos (Ed. Note.-For other cases, see Appeal and and for damages due to a breach of the exError, Cent. Dig. 8 3011; Dec. Dig. Om723(2).], press guaranty. There was an

answer of 3. PLEADING Ew35 – COMPLAINT – SUBPLUS- general denial, also a counterclaim whereby AGE. A complaint, containing the general aver. the unpaid purchase price of the magnetos

appellant sought to recover the balance of ments that there was a warranty accompanying the sale of goods to plaintiff, that there was a and other materials furnished. The last item breach of the warranty, describing the character was also pleaded as a set-off. The case thereof, and that damage resulted therefrom, was tried by the court, with the result that shows that the theory of the action was recovery for breach of warranty, and claims for other appellant's counterclaim and set-off were alitems of damage, not sustainable on that theory lowed, and, after deducting these amounts and not supported by the evidence, do not from the total damages allowed, judgment change the theory, but may be disregarded as

was awarded appellee for $2,002.29. surplusage. (Ed. Note.-For other cases, see Pleading,

A new trial was refused, and this ruling Cent. Dig. 88 76-80; Dec. Dig. Om35.)

is assigned as error.

Appellant's assignment of errors contain 4. SALES O 441(1)-BREACH OF WARRANTYEVIDENCE-INSTRUCTION AS TO USE.

ten separate specifications, some of which we In an action for breach of warranty accom- are not required to consider because they are panying the sale of magnetos, evidence held to not properly presented. show that the magnetos were used in compliance

[1, 2] Propositions, containing mere abwith instruction given by the seller.

[Ed. Note.-For other cases, see Sales, Cent. stract statements of law or fact and not apDig. 88 1277, 1283; Dec. Dig. Ow441(1).)

plied to any particular ruling or action of

the court upon either of the causes assigned 5. SALES Ow442(13)—BREACH OF WARRANTYDAMAGES-RESALE BY BUYER.

for a new trial, present no question. PittsIn an action for the breach of a warranty burgh, etc., R. Co. v. Lightheiser, 168 Ind. of magnetos, the buyer can recover the differ- 438, 460, 78 N. E. 1033; Weidenhammer v. ence between the actual value and the value if they had been as warranted, though it has resola State, 181 Ind. 349, 350, 103 N. E. 413, 104 N. them for the amount which it paid for them E. 577; Schaefer v. Keokuk, etc., Bank, 60 without a warranty, and is not legally liable for Ind. App. 474, 175, 111 N. E. 17. Furtherany defects therein.

more, in the assignment in which complaint (Ed. Note.-For other cases, see Sales, Cent. is made of the admission in evidence of an Dig. $ 1298; Dec. Dig. 442(13).]

exhibit, the exhibit itself is not set out, nor Appeal from Superior Court, Marion Coun- does the nature of the objection appear. No ty; W. W. Thornton, Judge.

question as to the correctness of such ruling Action by the Greenville Metal Products is therefore presented. Conrad v. Hansen, Company against the K-W Ignition Company. 171 Ind. 43, 85 N. E. 710.

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

*Rehearing denied. Transrer denied.

[3] Appellant contends that the proof does a cast-iron base, to use brass screws. Inasmuch not support the theory of the complaint, and as the motor company did not feel that they our attention is directed to some specific to furnish the brass screws gratis, rather than

wished to go to the extra expense, we are going items of damages alleged to have been suf- see the installation turned out in anything but fered by appellee which are not supported by a satisfactory manner." the evidence. The answer to this contention

Arrangements were then made whereby is that the theory of the several paragraphs appellant furnished brass screws, and they of the complaint is not fixed by the separate were used; but this did not remove the specific averments referred to. Each para- | trouble. Other things were suggested, and graph, and particularly the second and third, appellee did everything that was suggested contain the general averments that there was by appellant up to that time; but the trou. a warranty which accompanied the sale of bles were not removed, and it was not until the magnetos; that there was a breach of after all the magnetos had been delivered the warranty, describing the character of that it was suggested that something more the breach; and that damage resulted there than the use of brass screws was necessary from. These are the essential averments to secure proper service from the magnetos. which we hold determine the theory of each At that time other suggestions were made by separate paragraph of the complaint to be as appellant's president. They were also folhereinbefore disclosed. We may add, also, lowed with no better results. When these that the items, which appellant contends con- reports were furnished to appellant, another trol, especially in the first paragraph of the letter was written to appellee, part of which complaint, might be disregarded as being is as follows: mere surplusage, and still the theory remains

"In conclusion the writer wishes to say that apparent from all the other averments. we mean to stick by you through this matter and

[4] There is also some contention that the see that you get the proper attention and servevidence fails to show that appellant's in- ice from us in the ignition and even if we bave

to replace every magneto which you have." structions as to the method of mounting the magnetos were followed. The contract pro- ly shows that the magnetos were installed

It seems to us that the evidence conclusivevides :

Our magnetos are in accordance with the in compliance with the instructions given by printed guaranty furnished in all our literature." appellant, and that the trouble could not And in the literature it is provided:

have been avoided except by the use of other “The Model J. magneto should preferably be magnetos than those furnished. mounted on either brass or aluminum bracket. [5] The provisions of the guaranty which If iron bracket is used brass bolts must be used have to do with this case are: The K-W to secure magnetos to bracket."

magneto will start without batteries any auto The contract further provides:

engine up to 30 H. P. It is a complete igni“Our Model J. magneto furnished with tapertion system within itself. No coil or timer shaft and proper connections, and full set of cables suitable for application to the motor now

or batteries of any kind are necessary. Will being made by Golden Belknap & Swartz Com- run the engine at all times, under all weather pany of Detroit, Mich.," etc.

conditions, evenly and smoothly at all speeds. It thus appears that the magnetos were to Will produce a spark much hotter and fasbe furnished for use on a particular engine. ter than any dry cells, storage battery, or The evidence shows that a contract for the other magneto except larger K-W magnetos. engines to be placed in “Empire” automobiles This magneto is further guaranteed one year was made with such company, and that, from date of purchase against any defect in about the time the contract between the par- worknianship or material, and any part prorties to this suit was made, appellant's presi- ing defective within that time will be redent visited the Detroit factory and saw that placed free of charge, etc. The magnets on cast-iron brackets were being attached to the this magneto will retain their magnetism forengines to support the magnetos and no ob- ever unless battery current is run through jection was made by him at that time. Aft- them or unless they are taken off the magerwards, upon discovering that the magnetos

neto. would not perform the service as guaranteed,

The evidence conclusively shows that the it was observed that steel screws had been magnetos when in use upon the automobiles used in mounting the magnetos; it was stat- wholly failed to conform to the guaranty and ed by appellant's representative that brass wholly failed to operate the motors in the screws should have been used.

Empire cars. But appellant contends that Much correspondence on the subject of the burden was upon appellee, not only to mounting passed between the parties.

We prove the warranty and the failure of the quote from one of the letters written by ap- magnetos to comply therewith, together with pellant, April 12, 1912:

the difference between their value if they "In connection with this installation, Mr. Wil- had been as warranted, but also to allege liams discovered a matter which was overlooked and prove, if they were resold, that such reby the writer when he was in Detroit, viz. that sale was coupled with a warranty or was the magnetos are mounted with steel screws. . It made under such circumstances as that the is customary in order to preserve the magnetism to mount the magnetos on brass or aluminum second purchaser could compel appellee ei.

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money damages on account of their failure "We doubt very much whether this rule of to comply with the warranty. And in effect damages would be affected by proof that the arit is contended that the resale price of an ar: in the case at bar, for the purpose of being de

ticle purchased with warranty was bought, as ticle is conclusive evidence of its value as it livered to a third party under a previous conis, and, if such resale price equals or exceeds tract of sale, even if such resale was made by the contract price, the purchaser cannot re- the original vendee without warranty, so that no

loss or liability whatever would be incurred by cover.

him. The disposition which purchaser makes Upon this branch of the case, the evidence of property is an independent and collateral shows the facts substantially as appellant fact, having no connection with the bargain by claims. Appellee was to assemble cars for which he acquired his title. It is difficult to see the Empire Motor Car Company. The motor damages which another person ought to pay

how it can have any legitimate bearing on the car company was to select the various parts, him for a breach of a wholly distinct and sepaand appellee was not to be held responsible rate contract." Brown v. Bigelow, 92 Mass. if any of the parts proved to be defective. (10 Allen) 242, 244. Appellee was to pay for all of the parts pur The same principle has been announced in chased and was repaid by the motor com- the following language: pany, and in addition thereto was paid for "The proper measure of damages applicable its own services. In short, the contract was to a case like this (one of warranty of binder such that appellee was to pay appellant $17.- of the property at the time of the sale and what

twine) is the difference between the actual value 75 for each magneto furnished and was to its value would have been if it had conformed to receive the same amount from the motor the warranty, # and neither the vendee's car company whether the magneto proved right of recovery, nor the measure of his damsatisfactory or not.

ages, is dependent on a resale by him or upon

the price obtained at a resale. At most, the Appellant is now insisting that these facts price thus obtained may be some, but not conclumake it appear that, if the magnetos had in sive, evidence of the actual value." Union Selall respects conformed to the warranty, ap- ling Co. v. Jones, 123 Fed. 672, 63 C. C. A. 224. pellee would have paid $17.75 for each of In the opinion last quoted, the case of them and would in turn have received a like Muller v. Eno, 14 N. Y. 597, is cited, wherein amount from the motor company and would this language is used: not have made or lost anything, and, since “While therefore the sale was very high eviit received from the motor car company the dence of value, the law does not say it was the full amount paid for the magnetos without a

only evidence." guaranty and with an express agreement that The measure of appellee's damages was it would not be held responsible if any of the difference between the value of the magthe parts placed in the cars were defective, netos as they were at date of sale and their such testimony conclusively showed that ap-value had they been as warranted. Cline v. pellee lost nothing on account of the alleged Myers, 64 Ind. 304; Crist v. Jacoby, 10 Ind. failure of the magnetos to work.

App. 688, 38 N. E. 543; Blacker v. Slown, It seems to us that this question, which is 114 Ind. 322, 16 N. E. 621. The reports from the controlling one in this case, is made dif- most of the magnetos furnished-and they ficult of solution only when the considera- were all of the same type-was that they tion of the contract involved here is as-would not operate the cars to which they sociated with an independent one made be- were attached and that they had been retween appellee and the motor car company. placed with others of a different make, so The disposition which the purchaser of prop- that we have concluded that the evidence, erty makes, either by resale or gift, is wholly when taken as a whole, justified the inferindependent of the transaction by which he ence that all the magnetos were not in acacquired title. As we view the case, this is cord with the guaranty, and that there was a controversy between appellee and appel- ample evidence to warrant the finding for aplant, in which appellee is seeking to recover pellee in the amount adjudged by the trial damages occasioned by the failure of appel- court. lant to deliver what it had agreed to sell. We hold therefore that appellee was enIn the determination of such question it is titled to his bargain made with appellant, and wholly immaterial whether the goods have it will not do to say that he cannot recover been resold, or, if resold, whether the resale simply because he resold the magnetos for a was with a guaranty or not; for in either sum equal to the purchase price and because event appellant's damage would be the dif- the circumstances attending the resale reference between the value of the articles de- lieved him of all liability if the articles faillivered and their value had they been as ed to meet the guaranty. If he was not lewarranted.

gally bound to reimburse the automobile In an early Massachusetts case, the Su- company, there might be other reasons which preme Court, in considering a case very sim- would prompt him to do so. ilar to the present, said:

Judgment affirmed.

(65 Ind. App. 109)

contracted to obtain, and also to safeguard the AMERICAN LIABILITY CO. v. BOWMAN.* company against fraud or imposition. (No. 9139.)

(Ed. Note.--For other cases, see Insurance,

Cent. Dig. § 1310; Dec. Dig. 524.)
(Appellate Court of Indiana.
Jan. 30, 1917.)



An accident insurance policy providing for POLICY-CONSTRUCTION AGAINST INSURER. Accident insurance contracts which are pre- accident, but in a subsequent clause limiting the

indemnity against total disability resulting from pared by the company and are ambiguous are company's liability to four weeks indemnity in strictly construed against the company and giv- the case of disability wholly or in part caused en such reasonable construction as will effectu- by or resulting directly or indirectly in or comate the purpose of the parties and sustain the plicated with neuritis, does not limit the indemobject for entering into the contract, where it nity for total disability resulting solely from the can be done without doing violence to the lan- accident, though during the same period insured guage.

was suffering from neuritis caused by the inju[Ed. Note.-For other cases, see Insurance, ry, which did not change or prolong the total Cent. Dig. § 295; Dec. Dig. Ow146(3).) disability. 2. CONTRACTS 147(2) - CONSTRUCTION OF [Ed. Note. For other cases, see Insurance, POLICY-SITUATION OF PARTIES.

Cent. Dig. $8 1309, 1316, 1317; Dec. Dig. Ono In construing insurance contracts, courts 530.] give the language employed a reasonable con- 8. Insurance 530—ACCIDENT INSURANCE struction, considering the relation and situa

-POLICY-EXCEPTIONS. tion of the parties when the contract was made, If the latter clause be construed to prevent and seek to ascertain the meaning on which the recovery for such disability, it conflicts with minds of the parties may reasonably be said to the insurance laws and renders the policy amhave met.

biguous, and the insurance clause will be given [Ed. Note. For other cases, see Contracts, effect as one on which the minds of the parties Cent. Dig. 8 730; Dec. Dig. Om 147(2).]

met. 3. INSURANCE Cw524-ACCIDENT INSURANCE (Ed. Note.--For other cases, see Insurance,

-CONSTRUCTION OF POLICIES ATTEMPT TO Cent. Dig. $$ 1309, 131, 1317; Dec. Dig. WORK.

530.] Under an accident policy providing for in, 19. APPEAL AND ERROR 1071(2)— HARMLESS demnity for total disability during the period

ERROR-CONCLUSIONS OF LAW-QUESTIONS that the insured was totally and continuously

NOT IN ISSUE. from the day of the accident disabled and pre

In an action for monthly indemnity under vented from performing every duty pertaining to

an accident insurance policy, a conclusion of any business or occupation as a necessary result law by the trial court that the recovery did of the injury received, an injured workman not affect the right to recover for disability can recover for the entire period in which he

subsequent to was, as a matter of fact, totally disabled, though though outside the issues, did not prejudice de

commenceinent of the action, he returned to work for a short time after the

fendant. accident, when he was in such a condition that he could perform only part of his duties and he

[Ed. Note.-For other cases, see Appeal and might reasonably not have attempted to do any Error, Cent, Dig. 8 4235; Dec. Dig. 1071(2).] work, since a construction of the policy which 10. APPEAL AND ERROR 1071(1) HARNwould defeat recovery because of a bona fide

LESS ERROR-FINDINGS OF FACT-IMMATEattempt to work would tend to penalize such at

RIAL ERRORS. tempt and encourage fraud and imposition on the In an action on an accident insurance polcompany by remaining away from work when icy, findings of fact that insured was taken able to perform it.

home in a vehicle after the accident, when the [Ed. Note.-For other cases, see Insurance, evidence showed he walked, and fixing the time Cent. Dig. § 1310; Dec. Dig. 524.)

neuritis developed at a date different than that 4. INSURANCE Om524-ACCIDENT INSURANCE

shown by the evidence, are not prejudicial to asTOTAL DISABILITY.

sured, where the ultimate facts of total disabilThe phrase "total disability” in an accident ity were properly found by the court. insurance policy should be given a practical [Ed. Note.-For other cases, see Appeal and construction, and is a relative term, depending Error, Cent. Dig. § 4234; Dec. Dig. upon the nature of the employment and capabil- | 1071(1).] ities of the injured person and the peculiar cir- 11. Tbial m398_FINDINGS OF Facts-ULTI. cumstances of each case, and it is usually a

MATE AND EVIDENTIARY FACTS. question of fact to be determined by the court

The ultimate issuable facts are proper in or jury trying the case. [Ed. Note.-For other cases, see Insurance, sions of law, since evidentiary facts, though

special findings, and must control the concluCent. Dig. & 1310; Dec. Dig. Om524.

specially found, are improper and unauthorized. For other definitions, see Words and Phrases, [Ed. Note.- For other cases, see Trial, Cent. First and Second Series, Total Incapacity.)


ANCE-EVIDENCE-TOTAL DISABILITY. Insured, under an accident policy, cannot

In an action for total disability indemnity recover for total disability because he failed under an accident insurance policy, evidence as or refused to work when he had an opportunity to the work insured was able to do after the if he was reasonably able to perform such accident held to support the court's finding work.

that he was totally disabled. [Ed. Note.-For other cases, see Insurance,

[Ed. Note.-For other cases, see Insurance, Cent. Dig. $ 1310; Dec. Dig. 524.]

Cent, Dig. $$ 1719, 1721, 1722; Dec. Dig. 6. INSURANCE Cw524-ACCIDENT INSURANCE 665(5).] -ConstrUCTION OF POLICY. Provisions of an accident insurance policy

Appeal from Circuit Court, Madison Counfor total disability indemnity must be liberally ty; Charles K. Bagot, Judge. construed to give the insured the indemnity he Action by Linies E. Bowman against the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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