violation of the provisions of the state and In the course of his testimony, and in ex- There was no error in admitting in evidence Appellant says in its statement of points, in quest that it be given. If he fails to do Appellant complains of an instruction that Over the objection of the appellant the ern, etc., Ry. Co. v. Fine, 163 Ind. 617, 622, 623, 72 N. E. 589. Appellant, however, contends that counsel for appellee told the jury how to answer the interrogatories. The bill of exceptions shows that one of the counsel for appellee spoke of 8 interrogatories of the 133 submitted to the jury. If counsel for appellee told the jury how to answer any one of said 8 interrogatories, appellant was only entitled to have the jury sufficiently admonIshed without delay that such statement should not be considered. Counsel for appellant made no request for such admonition, but moved the court to take the case from and discharge the jury. This motion was properly overruled. As the court afterwards instructed the jury to answer the interrogatories according to the preponderance of the evidence, appellant has no just ground of complaint. Southern, etc., Ry. Co. v. Fine, 163 Ind. 622–624, 72 N. E. 589. It is a settled rule of law that courts will not disturb a verdict on the ground of excessive damages, unless the damages are so excessive as to indicate that the jury acted from prejudice, partiality, or corruption. Indiana Car Co. v. Parker, 100 Ind. 181, 196, and cases cited; Louisville, etc., Ry. Co. v. Miller, 141 Ind. 533, 566, 37 N. E. 343; Woollen's Trial Procedure, §§ 4409, 4411. Under this rule we cannot say the damages assessed are excessive. Counsel for appellant insists that Act March 4, 1893, p. 294, being section 7083 et seq., Burns' Ann. St. 1901 (the "Employers' Liability Act"), is in violation of the fifth amendment and the fourteenth amendment to the Constitution of the United States, because it deprives appellant of its property without due process of law; that said act violates the fourteenth amendment, because ft denies to appellant the equal protection of the law, and abridges the privileges and immunities of appellant as a citizen of the United States. The fifth amendment to the Constitution of the United States operates in restriction of federal power, and has no application to the states, and therefore has no application to said act of 1893. Thorington v. Montgomery, 147 U. S. 490, 492, 13 Sup. Ct. 394, 37 L. Ed. 252; Brown v. New Jersey, 175 U. S. 172, 174, 20 Sup. Ct. 77, 44 L. Ed. 119, and cases cited; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 245, 22 Sup. Ct. 120, 46 L. Ed. 171; Fall Brook Irr. Dist. v. Bradley, 164 U. S. 112, 158, 17 Sup. Ct. 56, 41 L. Ed. 369; Barron v. Baltimore, 7 Pet. (U. S.) 243, 247-252, 8 L. Ed. 672; 3 Rose's Notes on U. S. Reports, pp. 267-373, and cases cited; Barton v. Kimmerley, 165 Ind. 609, 610, 76 N. E. 250, and cases cited. Corporations are not citizens of the United States within the meaning of that part of the fourteenth amendment which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Therefore, 78 N.E.-66 that provision of said amendment cannot affect the validity of said act of 1893. Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552; 3 Rose's Supp. to Notes to U. S. Repts. p. 990; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 45, 46, 20 Sup. Ct. 518, 44 L. Ed. 657. It has been held by this court that, while corporations are persons within the meaning of the fourteenth amendment of the Constitution of the United States that as applied to railroads said employers' liability act is not in violation thereof, nor in violation of the Constitution of this state. Pittsburgh, etc., Ry. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301, and cases cited; Indianapolis, etc., Ry. Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787, and cases cited. In Tullis v. Lake Erie Ry. Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192, the Supreme Court of the United States held that, as applied to railroad corporations, said employers' liability act of this state was not in violation of the fourteenth amendment to the Constitution of the United States-citing Missouri Pacific Ry. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Minn. & St. Louis Ry. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed. 109; Chicago, etc., Ry. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675; Pierce v. Van Dusen, 47 U. S. App. 339, 24 C. C. A. 280, 78 Fed. 693; Orient Ins. Co. v. Daggs, 177 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 553, which sustained the constitutional validity of like statutes of other states. It has been uniformly held by the courts of last resort that such laws are constitutional. Mo. Pac. Ry. Co. v. Haley, 25 Kan. 35, 53, and cases cited; Union Pac. Ry. Co. v. Harris, 33 Kan. 298, 302, 6 Pac. 571; Johnson v. St. Paul Ry. Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419; Herrick v. Minn., etc., Ry. Co., 16 N. W. 413, 31 Minn. 11, 47 Am. St. Rep. 771, 775, 776; Ditberner v. Chicago, etc., Ry. Co., 47 Wis. 138, 2 N. W. 69; Callahan v. St. Louis Ry. Co., 170 Mo. | 473, 71 S. W. 208, 94 Am. St. Rep. 746, and cases cited, 60 L. R. A. 249; Powell v. Sherwood, 162 Mo. 605, 63 S. W. 485; Reno's Employers' Liability Acts (2d. Ed.) § 122, and cases cited; Dresser's Employers' Liability, §§ 29-33, and cases cited; 2 Labatt. Master & Servant, §§ 643, 644, 645, 646, and notes. Appellant contends, however, that the statute in question violates said constitutional provision, because it only applies to corporations operating railroads, and not to per sons engaged in operating railroads. Substantially the same objection was made in the case of Pittsburgh, etc., Ry. Co. v. Montgomery, supra, and this court, in that case, citing Bucklew v. Iowa Central Ry. Co., 64 Iowa, 611, 21 N. W. 103, and other cases above cited, held the law valid. The statute in question was not only held valid as to railroad companies in the Montgomery Case, supra, but it was also held that objection to Its validity could not be made by such companies on the ground that it embraced all corporations except municipal, and that there were some corporations whose business would not bring them within the reason of the classification; that is, that said employers' liability act was capable of severance, and thus, by putting railroads in a class by themselves, it might be sustained as to railroads, regardless of its constitutionality as to other corporations. The classification of railroads by themselves was held proper in the cases above cited on account of the dangerous and hazardous character of the business of operating railroads. This classification is based, not on the difference in employers, but upon a difference in the nature of the employment. As was said in Indianapolis, etc., Ry. Co. v. Houlihan, 157 Ind. 494, 501, 60 N. E. 943, 54 L. R. A. 787: "The classification is made on the basis of the peculiar hazard in railroading, relates directly to the object to be accomplished, and applies to all employers within the class. To separate railroading from other business was not an unconstitutional discrimination, because the dangers (the basis of classification) do not arise from the same sources." True, the employers' liability act of this state provides that "every railroad or other corporation, except municipal, operating in this state shall be liable for damages for personal injuries suffered by any employé," etc. But, in 2 Lewis' Sutherland on Statutory Construction, § 347, it is said to be indispensable to a correct understanding of a statute to inquire, first, what is the subject of it-what object it is intended to be accomplished by it. When the subject-matter is once clearly ascertained, and its general intent, a key is found to its intricacies. General words may be restrained to it, and those of narrower import may be expanded to embrace it, to effectuate that intent. When that intention can be collected from the statute, words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsistency with such intention. The subject-matter of the statute in question here, and its intent and purpose so far as applicable to railroads, were to protect employés from the peculiar dangers and hazards in railroading. Union, etc., Ry. Co. v. Houlihan, and cases cited supra. Under the decisions cited the character of the employers is not a controlling factor. The statute is to be given at least a reasonable interpretation. one that will carry into effect the legislative intent. As we have shown, the basis of the classification of railroads by themselves was the hazardous and dangerous character of the employment of operating railroads, and this does not depend upon whether railroads are operated by corporations or by one or more persons. If the character of the employer within the meaning of the statute is not important-and the nature of the employment is the test to be applied in construing-the expression "every railroad or other corporation operating within this state," as applied to railroads, should, under the rule above stated, be enlarged and expanded so as to include any person, company, or corporation engaged in operating a railroad in this state. This interpretation is sustained by the title of said act, which, under our Constitution, “shall embrace but one subject and matters properly connected therewith, which subject must be expressed in the title." Under such a constitutional provision the language of the act should be construed in view of its title and its lawful purpose. 2 Lewis' Sutherland on Statutory Construction, § 340; Cooley's Constitutional Limitations (7th Ed.) p. 202. Said title reads "an act regulating liability of railroads and other corporations, except municipal, for injuries to persons employed by them." The subject of this act as expressed in the title, so far as railroads are concerned, is the regulation of their liability to their employés, regardless of whether they are operated by persons, companies, or corporations. The employers' liability act of Iowa provided that "every corporation operating a railway shall be liable for all damages sus tained by any person, including employés of such corporations, in consequence of the neglect of agents by any mismanagement of the engineers or other employés of the corporation," etc. Code Iowa 1873, § 1307. The objection made by appellant to the statute in this case seems to have been made to said Iowa statute in Bucklew v. Iowa Central Ry. Co., supra, decided in 1884, before the enactment of the statute in this state, where the Supreme Court of Iowa said, on pages 610, 611, of 64 Iowa, page 107 of 21 N. W., "that the business of operating a railroad is pecullarly hazardous and dangerous to employés engaged in the operation of the road must be admitted. Counsel have not called our attention to any business which is equally hazardous, and, as the statute is applicable to all corporations or persons engaged in operating railroads, it seems to us that it does not discriminate in favor of or against any one." In Minnesota the statute provided that "ev ery railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by an agent or servant thereof by reason of the negligence of another agent or servant," etc. The Supreme Court In that state said, in Schus v. Powers-Simpson Co., 85 Minn. 447, 452, 453, 89 N. W. 68, 70, 69 L. R. A. 887, "that as the spirit and purpose of the law was the protection of employés of employers engaged in a hazardous and dangerous work, though the literal language thereof limits its operation to railroad corporations, we hold that it applies to any corporation or person engaged in operating a line of railroad, incident to which operstion are the dangers and hazards to employés the Legislature intended to provide against." The spirit and purpose of the statute must be looked to in interpreting the statute in controversy. As we have seen, the spirit and purpose of said employers' liability act, so far as railroads are concerned, was the protection of employés engaged in the dangerous and hazardous work of operating railroads in this state, and we hold that it applies to every corporation, company, copartnership, or person engaged in the dangerous and hazardous business of operating a railroad, and their employés who are engaged in such dangerous and hazardous work. It is not necessary, therefore, to decide whether or not said employers' liability act would be constitutional, if it only applied "to corporations engaged in operating railroads and not to persons engaged in the same business" as claimed by appellant. Under the fifth clause of rule 22 (55 N. E. vi), no alleged error or point not contained in appellant's statement of points can be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing, but will be considered waived. Under rule 24 (55 N. E. vi), the brief may be followed by an argument, which shall be confined to a discussion and elaboration of the points contained in the briefs. Having determined all the questions not waived, and finding no available error, the Judgment is affirmed. (40 Ind. App. 125) TIPPECANOE LOAN & TRUST CO. v. CARR et al. (No. 5,818.)1 MYERS, J. Appellant commenced this action against appellees, charging appellee Carr with the sale of real estate belonging to ap pellant's decedent, and appropriating the proceeds arising from such sale to her own use. Also with the conversion of personal property, and personal judgment is demanded. The complaint consisted of two paragraphs. A demurrer for want of facts was sustained to the first, and thereafter the second paragraph was dismissed. Judgment In favor of appellees. The ruling of the court in sustaining the demurrer to the first paragraph is the only error assigned. The substance of the paragraph in ques tion shows that appellant is the duly qualified and acting administrator of the estate of J. P. Oglebay, Jr., deceased; that said decedent left, as his only heirs at law, his wife, now Ada May Carr, one of the appellees herein; that no administration was ever had upon said estate; that decedent at the time of his death was the owner of certain real estate in Tippecanoe county, Ind.; that thereafter his said wife sold said lands, and, in payment therefor, received certain promissory notes; that said notes, as well as the proceeds resulting therefrom, belong to the estate of said decedent, and appellant, as administrator, is entitled to the same, to be administered upon as provided by law; that a claim for $1,000 evidenced by a promissory note executed by the said Oglebay in his lifetime has been filed against said estate; (Appellate Court of Indiana. Division No. 1. "that there is now due from said defendants Oct. 30, 1906.) 1. ADMINISTRATORS-ACTIONS COMPLAINT. Complaint in an action by an administrator against decedent's sole heir, charging defendant with the sale of real estate belonging to decedent, and that a certain sum is due from defendant to complainant on account of moneys "and other personal property" wrongfully converted by defendant, does not by the use of the words "and other personal property," sufficiently allege that decedent at the time of his death owned any personal property. 2. SAME ASSETS OF DECEDENT'S ESTATE REAL PROPERTY-PROCEEDS OF SALE. Where the sole heir sold land belonging to decedent's estate, and chargeable with the payment of decedent's debts, the administrator is not entitled to convert the proceeds into assets for the payment of debts, as the sale does not abridge the administrator's right to convert the land into assets for that purpose. 3. APPEAL-HARMLESS ERROR. Where judgment in the main action was for defendant, the sustaining of the demurrer of the garnishee was harmless, as no judgment could be sustained against him. Appeal from Circuit Court, Tippecanoe County; R. P. De Hart, Judge. Action by the Tippecanoe Loan & Trust Company as administrator of the estate of J. P. Oglebay, deceased, against Ada May Carr and another, as garnishee. From a judgment sustaining the demurrers of defendant and garnishee, plaintiff appeals. Affirmed. Will R. Wood and Oglebay & Oglebay, for appellant. Stuart, Hammond & Simms, for appellees. to said complainant, the sum of $2,000, on account of moneys and other personal property, which the said defendant Ada May Carr has wrongfully converted to her own use, which said property belongs to your complainant, as administrator of said estate, as aforesaid; "that the assets above referred to are the only assets to the knowledge of appellant, out of which to pay the liabilities thereof; that appellee Ada May Carr is a nonresident, and the National Fowler Bank of Indiana is made a garnishee defendant, under the belief that it has in its possession, as agent of appellee, said notes or the proceeds thereof. Judgment for $2,000 is demanded. 1. There is no direct averment in this paragraph that appellant's decedent, at the time of his death, owned any personal property. The statement that "other personal property" was converted by Mrs. Carr to her own use, in the absence of a showing of property of that character to appropriate, is of no consequence. The rule is that matters of necessary inference from substantial facts are to be considered on demurrer, although they may be imperfectly or defectively pleaded. Malott v. Sample, 164 Ind. 645, 74 N. E. 245; Wagoner v. Wilson, 108 Ind. 210, 8 N. E. 925; Evansville, etc., R. R. Co. v. Darting, 6 Ind. App. 375, 33 N. E. 636. But the pleader is not entitled to have a substantial or ultimate fact inferred from a mere recital or conclusion in aid of a pleading thus challenged (Greenfield Gas Co. v. Trees, 165 Ind. 'Rehearing denied. Transfer to Supreme Court denied. 209, 75 N. E. 2; Indianapolis, etc., Transit Co. v. Foreman, 162 Ind. 85, 98, 69 N. E. 669; South Bend, etc., Plow Co. v. Cissne, 35 Ind. App. 373, 74 N. E. 282), and this we would be compelled to do if the pleader's statement in this paragraph in regard to personal property is to have any force. The law is well settled in this state that the title to lands upon the death of the owner intestate, immediately vests in the heirs of such deceased owner, subject to be divested should the personal estate prove insufficient to pay the debts of such decedent. Rountree, Adm'x, v. Pursell, 11 Ind. App. 522, 537, 39 N. E. 747; Humphries, Adm'r, v. Davis, 100 Ind. 369; Moore v. Moore, 155 Ind. 261, 264, 57 N. E. 242; Weakley v. Conradt, 56 Ind. 430. The pleading avers that appellee Carr is the sole heir of appellant's decedent. And, being the only heir, it follows that, at common law, and by force of the statute, nothing to the contrary appearing, she took the fee to the land. Rountree, Adm'x, v. Pursell, supra; Haugh v. Smelser, 31 Ind. App. 571, 66 N. E. 55, 506; Walker v. Diehl, 79 Ill. 473. The authority of an administrator to sell real estate to pay debts, in the absence of a testamentary provision to that effect, is statutory, and can be legally exercised only by order of court. Moore v. Moore, supra; First National Bank v. Hanna, 12 Ind. App. 240, 245, 39 N. E. 1054; Walker v. Diehl, supra. At common law, an administrator has no dominion over the real estate of his decedent for any purpose. But, by statute (section 2485 Burns' Ann. St. 1901), the common-law rule has been modified so that now an administrator may sell decedent's real estate to make assets for the payment of debts, when there is an insufficient personal estate (section 2489 Burns' Ann. St. 1901), by first obtaining an order from the court so to do. That proceeding being purely statutory, the procedure and rules of practice thus prescribed must be followed. Seward v. Clark, 67 Ind. 289, 294. It is the land, and not the proceeds derived from the sale thereof by an heir, which the statute authorizes an administrator to convert into assets for the purpose of paying debts of a decedent. As we have seen, Mrs. Carr took the title to the land, and for ought that appears took possession of the same and had the benefit of its use. True, the land was chargeable with the payment of the debts of appellant's decedent; but the fact that it was sold by Mrs. Carr to a third party made it none the less liable to be taken by the administrator for that purpose. The purchaser acquired only the rights of the heir, and was "bound to know that until the estate is finally settled, the sale of the real estate may become necessary for the payment of debts." Moore v. Moore, supra. The sale of the land by Mrs. Carr cannot be regarded as anything more than a sale of her interest or equity therein. The right of the administrator was in no way abridged, nor is it shown that the adminis Transferred to Supreme Court, 79 N. trator in any manner thereby suffered any injury or damage whatever. Therefore, as to such administrator, we cannot say, under the pleaded facts, that the Carr sale was unlawful, or that her possession of the proceeds received from such sale is wrongful. The principle underlying appellant's argument applies to persons characterized by our statute (section 2413 Burns' Ann. St. 1901) as intermeddlers, and is not applicable to the case at bar, for the reason that Mrs. Carr's alleged liability grows out of the exercise of a legal right, while the principle for which appellant contends is effective to create liability against persons "who shall unlawfully intermeddle with any of the property of a decedent." Section 2413, supra. The demurrer of appellee Carr was properly sustained. 2. By proper garnishee proceedings in the court below appellee the National Fowler Bank was made a garnishee defendant. It filed a demurrer to the complaint for want of facts. This demurrer was also sustained to the first paragraph, and this ruling is assigned as error. The purpose of a garnishee proceeding is to furnish a process for the collection of the judgment rendered in the main action. It is a mere incident of that action, and depends upon it. Robbins v. Alley, 38 Ind. 553. Without a valid judg ment against the principal defendant thereof, garnishee proceedings based thereon must fall. Matheney v. Earl, 75 Ind. 531; Debs v. Dalton, 7 Ind. App. 84, 34 N. E. 236; Pick v. Mutual Life Ins. Co., 94 Ill. App. 483; Hauptman & Co. v. Whittle, 85 Mo. App. 188; Brake on Attachment, § 460. In the case at bar Mrs. Carr is the principal defendant, and, as judgment on demurrer was rendered in her favor, the element essential to sustain a valid judgment against the bank, as garnishee, is wanting. This being true, it follows that the ruling on the bank's demurrer is harmless. Judgment affirmed. (39 Ind. App. 701) CHICAGO, I. & L. RY. CO. v. PRITCHARD. (No. 5,071.)1 (Appellate Court of Indiana. Oct. 30, 1906.) COURTS APPELLATE JURISDICTION-TRANSFER OF CAUSE. Under the express provisions of Acts 1901, p. 569, c. 247, § 15, where the six judges of the Appellate Court are equally divided on the determination of an appeal it will be transferred to the Supreme Court. Appeal from Circuit Court, Clay County; Presley O. Colliver, Judge. Action between Walter K. Pritchard, administrator, and the Chicago, Indianapolis & Louisville Railway Company. From the judgment, the railroad company appeals. Transferred to Supreme Court. E. C. Field, G. A. Knight, and H. R. Kurrie, for appellant. S. A. Hays, Coffey & McGreg. or and C. E. Akers, for appellee. E. 508. Rehearing denied, 81 N. E. 78. |