next prior thereto, for the purpose of visiting and examining such place, then that the operator thereby complied with the statute requiring that a competent mine boss who is an experienced miner be employed, and that he visit and examine the working place, etc., at least every alternate day, etc. Perhaps prima facie a mine boss with the qualifications indicated may be a competent mine boss, but we do not believe it can be said as a matter of law that he is such. It is possible that one with such qualifications may in fact be incompetent, or he may at one time have been competent and subsequently become incompetent. As to the other element of the tendered charges, the statute by the use of the phrase "at least" prescribes the minimum of visits. It cannot be said as matter of law that, regardless of the circumstances or the danger to be anticipated, a visit each alternate day will satisfy the statute. By the terms of the statute, properly construed, it is the duty of the mine boss to visit and examine as frequently as the situation reasonably demands, but in any event at least every alternate day. and that it could have been safely and easily | pening thereof, or on either the two days taken down. There was evidence also that in a room extending north and south the roof was more likely to become loose than in rooms extending in the opposite directions. There was evidence also that decedent's fellow workman, after the props were removed, called the attention of the mine boss to the situation and requested him to support the roof with crossbars and props, and that workmen came into the room thereafter for that purpose under the direction of the mine boss, but failed to secure the roof because they did not have timbers of the proper size. Appellant at no time took any steps to ascertain the condition of the roof otherwise than by a visual inspection. We regard this evidence as abundantly sufficient to establish that the condition of the roof was discoverable by the exercise of reasonable diligence, and also to charge appellant with at least constructive knowledge of its condition. Under the statute, it was the imperative duty of the appellant, through its mine boss, to visit this room at least every alternate day when miners were working therein, and to make a reasonable inspection of the roof. Such duty is not discharged by mere visual examination, where the nature of the material forming the roof is of a kind that such an inspection will not be effective. Appellant stood charged with whatever knowl-eral verdict. Appellant requested also the edge such a reasonable inspection would have brought to it. It was the duty of appellant also to remove or to secure by the use of timbers all loose coal, slate, or rock discovered by such an inspection or otherwise, a sufficient quantity of which timbers it was required to keep on hand. Section 8580, Burns 1914; Domestic Coal Co. v. DeArmey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99; Princeton Coal Co. v. Downer, 48 Ind. App. 136, 93 N. E. 1009. The evidence is sufficient to sustain the verdict as against the Princeton Coal Company. [10-12] Said appellant challenges the correctness of a number of instructions given, and also insists that the court erred in re fusing others tendered. We should not be warranted in considering specifically each instruction respecting which complaint is made. As affecting the Princeton Coal Company the jury were instructed with substantial accuracy, both as to instructions given and the refusal of others tendered. Of the latter, to the extent that they were correct and applicable, they were included in substance in those given. However, in some particulars instructions refused should be specifically considered. Thus, several instructions tendered and refused were to the effect that if the operator employed as a mine boss an experienced coal miner duly licensed under the laws of the state, and if such mine boss visited and examined the place where decedent was working either on the day of the accident and before the hap [13, 14] The court in submitting interrogatories to the jury charged, at appellant's request, that they be answered upon a consideration of the evidence in the event of a gen thirty-fifth instruction, which was refused by the court. It is as follows: "The law does not prescribe when you shall will be submitted to you, and you are at liberty consider and answer the interrogatories that to take them into consideration and answer them either before or after you have agreed upon a general verdict." In Wabash Co. v. Gretzinger, 182 Ind. 155, 104 N. E. 69, the trial court submitted interrogatories and delivered them to the jury sealed in an envelope, with instructions that the jury should not open the envelope until they had agreed on a general verdict. The Supreme Court in that case condemned such a practice, but held it to be harmless under the particular circumstances there presented. In the course of the opinion the following language is used: "While it is true that the statute does not require the interrogatories to be answered in the absence of an agreement on the general verdict, we perceive no good reason why they should not be considered by the jury in deliberating on the general verdict; for it is obvious that such consideration might better enable the jury to make a conscientious general finding." See, also, Southern Ry. Co. v. Weidenbrenner, 109 N. E. 926. The process by which a general verdict is reached, where the jury properly performs its full function, is as follows: First, the determining of all the material facts; second, the application of the law to such facts pursuant to the court's instructions. The result so arrived at is the general verdict. It is possible that in a given case the facts may be so numerous and so complicated that the jury is the value to the owner under all the circumstances, based on actual damages sustained by being deprived of his property, not including any mere sentimental or fanciful value he may place upon it, though the general measure of damages in cases of conversion of personalty is the market value at the time and place of conversion, with interest from the date. [Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 265, 268, 272; Dec. Dig. ~47.] 2. DAMAGES 55 - PLEADING "GENERAL and proximately result from the wrong com"General damages" are such as naturally plained of, which the law implies or presumes to result from such wrong, while "special damages" are such as actually result from the wrong done, but which do not necessarily result therefrom, are not implied by law, and must be specially alleged and proven. [Ed. Note. For other cases, see Damages, Cent. Dig. § 4; Dec. Dig. 5. For other definitions, see Words and Phrases, 3. TROVER AND CONVERSION 39-PLEADING may be unable to keep them in mind in or-equipping a home and of wearing apparel in use der that they may be marshaled into the general verdict. A proper interrogatory deals with a single question of fact, necessarily considered also in properly arriving at the general verdict. A number of such interrogatories deals with a number of or all such essential facts. It follows, as a practical proposition, that interrogatories may perform the office of suggesting to the recollection of | the jury material questions of fact which otherwise might be overlooked in arriving at the general verdict. It would, therefore, seem to be not only proper but also a commendable practice for the jury to be left freely to consider the interrogatories at such a time in the course of their deliberations as will best enable them not only to answer such interrogatories truthfully and accurately, but also to arrive at a just general verdict. Such a rule would authorize the jury to consider the interrogatories either before or after the general verdict had been agreed on, or during the deliberations respecting the same, as the jury itself should determine. It is therefore our judgment that the tendered instruction might very properly have been given to the jury. In the present case, however, it is not necessary that we determine whether the refusal of such instruction was error, for, if error, it was harmless as against the Princeton Coal Company. The other instructions given by the court to guide the jury in an-eral allegations of damages of the complaint. swering interrogatories are substantially the same as those on that subject in the Gretzinger Case, supra. Moreover, by the interrogatories, the facts respecting but a single 4. TRIAL 260(1) - INSTRUCTIONS branch of the case are called for. swers in the main are in harmony with what appellant claims such facts to be-that is, that the Princeton Coal Company, as lessee, rather than the Deep Vein Coal Company, was operating the mine. Other facts found, tending to show that the latter was a joint tort-feasor with the former, are more favorable to the Princeton Coal Company than it claims the facts to be. Under such circumstances the refusal of such instruction, if error, was harmless. We find no error in the record justifying a reversal of the case as to the Princeton Coal Company. The an The judgment is therefore reversed as to the appellant Deep Vein Coal Company, with instructions to the court to sustain its motion for a new trial, and also its demurrer to the complaint, and for other proceedings in harmony with this opinion, and is affirmed as to the appellant the Princeton Coal Company. (64 Ind. App. 149) AUFDERHEIDE v. FULK. (No. 8974.)* (Appellate Court of Indiana, Division No. 1. April 25, 1916.) 1. TROVER AND CONVERSION OF DAMAGES CLOTHING. 47-MEASURE HOUSEHOLD GOODS AND In suit for conversion and trespass, where plaintiff's complaint showed that defendant unlawfully broke into her home and removed her property to her damage, under such averments plaintiff could prove the value to her of the property situated in her house as it was when taken by defendant, proof of the value of the property to plaintiff being proof of the damages defendant's unlawful act, proper under the genwhich naturally and proximately resulted from [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 229-231; Dec. Dig. 39.] TION. - REPETIInstructions given by the court need not be repeated on request. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. ~260(1).] 5. TRIAL ~~139(1), 140(1)-WEIGHT OF TESTIMONY - CREDIBILITY OF WITNESS QUESTIONS FOR JURY. The weight of testimony and the credibility of a witness are for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332-334, 338-341; Dec. Dig. 139(1), 140(1).] Appeal from Superior Court, Marion County; Clarence E. Weir, Judge. Suit by Emma B. Fulk against John H. Aufderheide. From a judgment for plaintiff, defendant appeals. Judgment affirmed. Philip Wilkinson and Elias D. Salsbury, both of Indianapolis, for appellant. G. R. Estabrook and C. W. Appleman, both of Indianapolis, for appellee. FELT, P. J. This is a suit for trespass, and conversion of goods, and for breaking up appellee's home and subjecting her to shame and humiliation. The complaint is in four paragraphs. The gist of the first paragraph is that appellee was the absolute owner of certain personal The measure of damages for the conversion property, consisting of household furniture, of articles in actual use in furnishing and pictures, ornaments, and wearing apparel, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes situate in her home in the city of Indian- | December 26, 1911; that at that time there apolis, Ind.; that appellant was engaged in was an open market in Indianapolis for the chattel loan business, and on December goods and property of the same kind and 17, 1910, loaned to W. T. Fulk a sum of mon- quality as the property in controversy; that ey, and took from him a mortgage upon ap- the value of said goods in the market at that pellee's said property, without her knowledge time was $136; that on April 29, 1913, apor consent; that W. T. Fulk was then the pellee, before bringing this suit, demanded husband of appellee, but they were not liv- of appellant the return of all the property ing as husband and wife; that on or about he had taken from her house; that the goods January 1, 1912, when appellee was absent and property set out in appellant's third parfrom her home, appellant, in the daytime, in agraph of answer included articles covered the presence, sight, and hearing of appellee's by the aforesaid mortgage and also articles neighbors, wrongfully and unlawfully, with that had not been mortgaged by appellee's force and violence, broke into appellee's former husband, and said property, at the house, and wrongfully and unlawfully took last of April or first of May, 1913, was not and carried away all of appellee's household in the same condition that it was when taken goods, chattels, personal property, wearing from appellee's home by appellant, but they apparel, pictures, and private papers, which were then worth, on the market in Indianproperty is particularly described; that ap- apolis, $136; that appellant, at the beginpellant thereby subjected appellee to shame, ning of this trial, offered to return the prophumiliation, worry, nervous prostration, se- erty to appellee. Appellant claims that the rious sickness, which confined her to her bed answer to the interrogatories, which show for three months, and deprived her of the that there was a market in Indianapolis for use and enjoyment of her home and of said | property of the kind involved in this contropersonal property; that by and on account versy, and that on such market for secondof said wrongful and unlawful actions of ap-hand goods the property was worth $136, are pellant, appellee was injured and damaged in the sum of $25,000, for which she demands judgment. The second paragraph is for the wrongful and unlawful taking of the property from appellee's home and converting it to appellant's use. The property is alleged to have been of the value of $1,500 at the time and place of conversion, and damages are asked in the sum of $25,000. The third and fourth paragraphs are similar to the second, but it is averred that the property was destroyed or otherwise disposed of by appellant. The complaint was answered by gen-applicable to all kinds of property under all eral denial and by special answers, which sought to justify the taking on the ground of estoppel and ratification, and by an offer to return the property to appellee. During the pendency of the suit appellee obtained an order of court to carry on the litigation in the name of Emma B. Dehne. The case was tried by a jury, and a general verdict of $2,000 was returned and with it answers to in-ping a home, and wearing apparel in use, even terrogatories. [1] Appellant has assigned as error the overruling of his motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict, overruling his motion for a new trial, overruling his motion to docket different paragraphs of the complaint, as separate actions, and to require appellee to elect upon which cause of action she would go to trial. The substance of the answers to the interrogatories is as follows: Appellee was and is the owner of all the property described in her complaint, and entitled to the possession thereof; that her house was broken open by the State Loan Company, under which name appellant did business, and the property was removed from appellee's home by employés of appellant acting under his direction, on December 23, and inconsistent with and overcome the general verdict; that appellant's motion to render judgment on the answers for $136 and interest from the date the property was taken should have been sustained; that the measure of damages for the conversion of personal property is the market value at the time and place of conversion, with interest thereon from the date of conversion. It is true that the measure of damages in cases of conversion is as stated in many instances, but such rule, while generally recognized, is not conditions, and is subject to some exceptions. The underlying principle of universal application is that of fair and just compensation for the loss or damage sustained. 1 Sutherland on Damages, § 12; 4 Sutherland on Damages, § 1109; Barker v. Lewis Storage, etc., Co., 78 Conn. 198-200, 61 Atl. 363, 3 Ann. Cas. 889. Articles in actual use in furnishing and equip though they may have some secondhand market value, are not governed by the general rule of market value, for the law recognizes that they have a value when so used in the home that is not fairly estimated by their value as secondhand goods on the market. Where subordinate rules for the measure of damages run counter to the paramount rule of fair and just compensation, the former must yield to the principle underlying all such rules. For the loss of such property so situated and used, the measure of damages in case of conversion is the value to the owner under all the circumstances, based on actual damages sustained by being deprived of his property, not including any mere sentimental or fanciful value he may for any reason, place upon it. Loesch v. Koehler, 144 Ind. 278–286, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682; erty [stereotype plates] in market would be worth comparatively nothing, but to the owner it might be of great value, and that would be a very inequitable and harsh rule that limited his recovery, against a person converting it. to its market value, which would really be but little, if anything, more than the value of the material. In such cases it is held that the measure of the recovery is the fair value of such property to the plaintiff." Lovell v. Shea (Super.) 18 N. Y. Supp. 193-195 | is the just rule. The jury may consider the cost Such propand cases cited; Barker v. Lewis Storage, etc., of replacing the property. Co., supra; Mathews v. Livingston, 86 Conn. 263-270, 85 Atl. 529, Ann. Cas. 1914A, 195; Martinez v. Vigil, 19 N. M. 306, 142 Pac. 920, L. R. A. 1915B, 291-294; 8 R. C. L. § 48, p. 487; Sell v. Ward, 81 Ill. App. 675-678; Iler v. Baker, 82 Mich. 226-232, 46 N. W. 377; Barbrick v. White Sewing Mach. Co., 180 Mich. 535-538, 147 N. W. 493; Farrel v. Colwell, 30 N. J. Law, 123-127; Green v. Boston, etc., Ry. Co., 128 Mass. 221-226, 35 Am. Rep. 370; Stickney v. Allen, 10 Gray (Mass.) 352356; Swank v. Elwert, 55 Or. 487-499, 105 Pac. 901; 1 Sedgwick on Damages (9th Ed.) § 252 et seq.; 11 Sedgwick, § 433 et seq.; 4 Sutherland on Damages, § 1117; 38 Cyc. 2093, and cases cited; Head v. Becklenberg, 116 Ill. App. 576, 580. The case of Barker v. Lewis Storage & Transfer Co., 78 Conn. 198, 61 Atl. 363, 3 Ann. Cas. SS9, was a suit for damages for the conversion of household goods and personal effects. It was claimed that the measure of damages was their market value at the time and place of conversion, with interest; that there was a secondhand market value for such articles, and the court was asked to in struct the jury accordingly. In passing on the question it is said: In Mathews v. Livingston, 86 Conn. 263270, 85 Atl. 529, 532 (Ann. Cas. 1914A, 195), the court considered a case of damages for the wrongful eviction of a tenant from a house, and instructed the jury that if the tenant was unlawfully evicted she might recover "all the damages which she suffered directly on account of the defendants, or either of them, and it would include the mental suffering, the exwrongfully taking possession of her premises; posure, the time which she had lost, and the expense she was put to in endeavoring to recover possession; and also, if in connection with this unlawful eviction she lost her property, she can recover her property also." In passing on the instruction the court say: of were subjects of damage which might properly "The elements specified which are complained, have followed as a consequence of an eviction and conversion, and as these are alleged, they were proper subjects of recovery so far as proved." "The court was correct in refusing to instruct the jury as requested and in excluding said tes[2] Appellant also contends that if the rule timony. The cardinal rule is that a person in- for the measure of damages in this case be jured shall receive fair compensation for his as above announced, such damages are in the loss or injury and no more. Baldwin v. Porter, 12 Conn. 473. Commonly in cases of conversion nature of special damages, and the pleadings the loss is the value of the property. Baldwin in this case are insufficient to admit the proof v. Porter, supra. Commonly the value of the or warrant a recovery of such damages. property as representing the owner's loss is its General damages are such as naturally and market value, if it have one, since thereby is indicated the cost of replacing. Hence the sub-proximately result from the wrong comordinate rule of general application appealed to plained of, which the law implies or presumes by the defendant. But the principal rule, to result from such wrong. Special damages which seeks to give fair compensation for the loss, is the paramount one, and ordinarily, when the subordinate one fails to accomplish the desired result, it yields to an exception or modification. 1 Suth. on Dam. (3d Ed.) § 12. It is now generally recognized that wearing apparel in use, and household goods and effects owned and kept for personal use, are articles which cannot, in any fair sense, be said to be marketable and have a market value, or, at least, a market value which is fairly indicative of their real value to the owner and of his loss by being deprived of them. So it has been frequently, and we think correctly, held that the amount of his recovery in the event of conversion ought not to be restricted to the price which could be realized by a sale in the market, but he should be allowed to recover the value to him, based on his actual money loss, all the circumstances and conditions considered, resulting from his being deprived of the property, not including, however, any sentimental or fanciful value he may for any reason place upon it." are such as actually result from the wrong done, but which do not necessarily result therefrom, and for that reason are not implied by law, and to be recovered must be specially alleged and proven. 13 Cyc. pp. 13, 176; Lindley v. Dempsey, 45 Ind. 246-249; Muncie Pulp Co. v. Keesling, 166 Ind. 479486-488, 76 N. E. 1002, 9 Ann. Cas. 530; Cleveland, etc., Ry. Co. v. Case, 174 Ind. 369-377, 91 N. E. 238. [3] The complaint, in the case at bar, shows that appellant unlawfully broke into appellee's home and removed her property therefrom to her damage. Under such averments she was entitled to prove the value to her of the property situated in her house as it was when taken by appellant. She is not seeking to recover special and peculiar damIn Lovell v. Shea, supra, the court say: ages for heirlooms or the like, but the loss sustained by her by the wrongful taking of "They had a special value to the plaintiffs in her property from her home. Proof of the the business in which they were engaged. The witness had shown himself competent to testify value of the property to her in the home as to their special value, and, in our opinion, it at the time it was unlawfully taken therewas the correct measure of damages. from was proof of the damages which naturIt is manifest that the value placed on the plates ally and proximately resulted from such by the witness was the actual value to the own* 'If the property have little or no unlawful act, and was proper under the marketable value, the actual value to the owner general allegations of damages contained in 112 N.E.-26 er. ** * * * amount does seem large as compared with the secondhand market value, in view of the testimony of several apparently disinterested witnesses, we are not warranted in setting aside the verdict as excessive. The judgment is sustained by sufficient We find no reversible error. (61 Ind. App. 640) the complaint. Ohio & Miss. Ry. Co. v. Selby, I weight of this testimony and the credibility 47 Ind. 471-497, 17 Am. Rep. 719; Loesch of the witness were for the jury. While the v. Koehler, supra, 144 Ind. 285, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682; Union Traction Co. v. Sullivan, 38 Ind. App. 513-528, 76 N. E. 116. There was no evidence tending to show a market value for such goods situate and used in a home, as appellee's goods were when taken, while there was evidence to show, and the jury found, the secondhand value of the property in controversy, on the general market for such property in Indianapolis, yet such proof and finding do not preclude appellee's recovery of the value to her of the property in her home at the time, and the actual loss sustained by her by the wrongful taking of such property from her home. The market value was an element which might be considered in assessing her damages but to hold that it was the absolute limit of her recovery would be to depart from the rule of fair and just compensation for the actual loss or damage occasioned by the wrongful and unlawful taking and conversion of the property. Lovell v. Shea, supra; Loesch v. Koehler, supra, 144 Ind. 286, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682; 38 Cyc. 2092 et seq.; Ellis v. Wire, 33 Ind. 127, 128, 5 Am. Rep. 189; 1 Sedgwick on Damages (9th Ed.) § 252 et seq.; 11 Sedgwick on 'Damages, § 433. We, therefore, hold that the court did not err in overruling appellant's motion for judgment on the answers to the interrogatories notwithstanding the general verdict. It likewise follows that the court did not err in overruling appellant's motion to modify the judgment by striking out the amount of the general verdict and inserting in lieu thereof the amount the jury found to be the secondhand market value of the property with interest added. [4] Appellant also complains of certain instructions given by the court and of its refusal to give certain instructions tendered by him. The vital points raised on the instructions have been disposed of by our discussion of the measures of appellee's damages. The instructions given, when read in their entirety, are as favorable to appellant as the law warrants. Those refused, in so far as they state the law applicable to the case, are covered by others given by the court. [5] The averments of the first paragraph of complaint are suflicient to warrant the recovery of some elements of damages other than the value of the property alleged to have been taken and converted. But we are not driven to the necessity of basing our conclusions on the elements of damages provable under that paragraph, for there is evidence in the record which shows the property taken from appellee's home to have been worth to her, in her home at the time it was taken, the full amount of the verdict. The WENGER et al. v. CLAY TP. OF ST. JOS- 1. PLEADING DUM. 201-DEmurrer-MEMORAN A demurrer to an affirmative answer not having a memorandum attached, as required by Burns' Ann. St. 1914, § 351, raises no question. [Ed. Note.-For other cases, Cent. Dig. §8 473-479; Dec. Dig. 201.] see Pleading, 2. LICENSES 50-PROFIT À PRENdre—Va LIDITY OF CONTRACT. An instrument signed by both parties, acknowledged and recorded, providing that the to the second party the right to take gravel, party of the first part conveys and warrants sand, and soil from any part of described lands, it to be taken in such quantities, from such points, and at such times as the second party desires, he to pay first party a certain amount per cubic yard therefor as it is taken, the agreement to run with the land perpetually from date, whether considered a contract or deed, is valid, as passing a present interest in land, a profit à prendre, as against the objections of want of consideration and mutuality. [Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 106, 107; Dec. Dig. 50.] Appeal from Circuit Court, St. Joseph County; Walter A. Furch, Judge. Suit by Susanna Wenger and others against Clay Township, of St. Joseph County, and others. From an adverse judgment, plaintiffs appeal. Affirmed. Hubbell, McInerny, McInerny & Yeagley and J. Elmer Peak, all of South Bend, for appellants. Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellees. IBACH, C. J. Appellant Susanna Wenger entered into a written contract with appellee township in the year 1903 whereby she conveyed and warranted to appellee "the right to take gravel, sand, and soil" from certain lands owned by her at that time, and in which the remaining appellants acquired an interest afterwards. The remaining provisions of the contract material to the question we are called upon to determine are: "The said gravel, sand, and soil to be taken in such quantities, from such points, and at such times as said second party [appellee] desires. The said second party agrees to pay first party the sum of ten cents per cubic yard for such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |