Attack is also made on instruction 26 given by the court at the request of appellee, and which reads as follows: tion 12. It has been held that an appellant ilar objections urged against others of the cannot complain of an inconsistency in in- instructions given. structions which is caused by instructions given at his request and presenting a theory different from that contained in other instructions given, which state the law correctly. Indianapolis Traction, etc., Co. v. Kidd, 167 Ind. 402, 413, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 912; Blanchard V. Jones, 101 Ind. 542, 550. [9, 10] The same rule is applicable where an appellant seeks to read into a proper instruction a statement of law erroneously contained in a charge which has been given at his request. Although this court will not search a record for errors not presented by appellant in order to discover ground for reversal, neither will it ignore points disclosed by the record which will prevent a reversal, even though they are not pointed out by appellee in his brief. Kraus v. Lehman, 170 Ind. 408, 414, 83 N. E. 714, 84 N. E. 769, 15 Ann. Cas. 849; State v. John, 170 Ind. 233, 238, 84 N. E. 1. [11] It is our conclusion that a contract made for a lawful purpose and which requires, as an incident to its performance, that one of the parties shall render certain legitimate services before a legislative body, is not rendered contrary to public policy by the further fact that compensation under the contract is made contingent on the success of the person employed in carrying out the object of the agreement, if such result is not primarily dependent on action by the legislative body. That this distinction was recognized by the trial court in giving instruction 12 is apparent from the fact that it also gave instruction 22, tendered by appellant, which told the jury that: "The contract sued on is legal upon its face, and it cannot be held to be illegal unless you find by a preponderance of the evidence that both parties to it intended at the time it was entered into that the same should contain other stipulations and agreements that would make it illegal. The illegal intent that would defeat this contract must be the common intent of both parties, and, if either the plaintiff or defendant had a lawful and legitimate purpose in making the contract, or if either supposed the other to have a legitimate purpose and has contracted with him upon that supposition, his right to recover upon the contract after performing all of its requirements must be clear." The objections urged against this instruction are: (1) That it makes the intent of the parties at the time the contract was executed the test of the legality of the instrument; and (2) that it permits a recovery for services involving illegal practices in obtaining the passage of legislation. The first of these objections may be disposed of by reference to the authorities which hold: [12] (1) That a contract is not void as against public policy unless the contract itself requires that something be done which adversely affects the public welfare, or is forbidden by law, or its consideration is. illegal or immoral. Callicott v. Allen, 31 Ind. App. 561, 67 N. E. 196; Murray v. White, 42 Mont. 423, 113 Pac. 754, Ann. Cas. 1912A, 1297. v. Smith (C. C.) 13 Fed. 263, 270; Williams v. Tiedemann, 6 Mo. App. 269, 275. [13] (2) That, where an agreement is capable of being performed in a legal manner, the mere fact that one party thereto intended to perform it in an illegal manner will not preclude its enforcement. Whitesides v. "A contract whereby one is employed to per Hunt, 97 Ind. 191, 194, 49 Am. Rep. 441; form services in procuring the passage of an Gregory v. Wendell, 40 Mich. 432, 439; Kottact by the Legislature which leaves the pay-witz v. Alexander, 34 Tex. 689, 708; Bartlett ment of the compensation for such services contingent upon the passage of such legislative act is void as being against public policy. This is true, regardless of whether corrupt practices are resorted to or contemplated by the parties to the contract or not. So in this case, if you believe from a preponderance of the evidence that the services which the plaintiff, Joseph E. Bell, agreed to perform, either in whole or in part, in consideration for the compensation of $20,000 provided for in the contract declared upon in the complaint, was the procuring of the passage of an act of the General Assembly of the state of Indiana, then said contract is void, as being against public policy, and your verdict should be for the defendant." The one instruction told the jury that a contract which contemplates the performance of legitimate services before a legislative body is void in law if compensation therefor is made to depend on the attainment of the desired result, while the other properly authorized a recovery for such services if the contingency which governed compensation did not rest, directly or indirectly, on the passage, amendment, or defeat of legislation. Our conclusions above announced serve to sustain instruction 12 and to dispose of sim [14] (3) That if a contract sued on is legal in its nature, and one which the parties had a right to make, it cannot be rendered invalid by the fact that in its performance one of the parties could or might employ improper means or agencies. Gregory v. Wendell, supra; Cole v. Brown-Hurley Hdw. Co., 139 Iowa, 487, 117 N. W. 746, 18 L. R. A. (N. S.) 1161, 16 Ann. Cas. 846. [15] As to the second objection it is nec essary only to quote from the decision in Russell v. Burton, 66 Barb. (N. Y.) 539, certain language which, as applied to the verdict of the jury in this case, is applicable to the instruction under consideration. The plaintiff in that case rendered certain "lobby" services in carrying out a contract of employment with the defendant, and it was sought to avoid a recovery on that ground. The Supreme Court of New York said, at page 517 of 66 Barb., in the opinion: "These services were doubtless lobby services.' But were they in contemplation of the parties [18, 19] Finally, it is insisted that the amount of the judgment rendered is too large. The jury found that appellee was entitled to recover the sum of $20,000, with interest thereon at the rate of 6 per cent. per annum from July 3, 1913, the date fixed in the complaint, to May 26, 1914, the date of the verdict. In instruction 25 given at the request of appellee the date of demand, Au when the contract was made? Were they services beyond and outside the contract-gratuitous? From the fact that they were performed in furtherance of the general object of the contract, it would not be unfair, perhaps, to infer that the parties understood and expected that they were covered by its provisions; and, had the referee so found, and held the contract immoral and invalid in consequence, his decision would doubtless have been allowed to stand. But this question was for him on all the evidence, and he has found, in effect, that none but legal services were stipulated for or contemplated by the par-gust 7, 1913, is taken as the day from which, interest should be computed, and appellee is bound by that instruction. The interest thus computed from August 7, 1913, to May 26, 1914, is $963.33, and the amount of the judgment therefore should be $20.963.33. The judgment rendered is excessive in the sum of $113.33, but this error may be cured by a a remittitur. First Nat. Bank v. Peck, 180 Ind. 649, 660, 103 N. E. 643. ties." So in the case at bar the jury was expressly instructed at the request of appellant that: If appellee, "as a part of the services which he agreed to perform in consideration of the payment to him of the sum of $20.000 provided for in the contract set out in the complaint, agreed to use his personal influence with any of the members or officers of the General Assembly, or any sinister or corrupt means, to procure the passage of an act by such General Assembly, then the contract set out in the complaint is void as being against public policy, and your verdict should be for the defendant." The verdict of the jury determines that such services, if any, were not contemplated by the agreement of the parties, and their subsequent performance would not affect the validity of the contract. [16] In instruction 23 given at the request of appellee, and now challenged, the court told the jury: "That the presumption is that the contract set out and mentioned in the complaint was entered into for a valuable consideration, and with honest intentions, by the plaintiff and defendant, and without fraud, and that the contract was fair. I further instruct you that the burden of proof is upon the defendant to impeach such contract, and, if the defendant has failed to show by a preponderance of the evidence that said contract was fraudulent or contrary to public policy, then you should find that said contract is free from fraud and is a legal and binding contract." If appellee, within 30 days, shall remit such excess, the judgment will be affirmed; otherwise the same will be reversed for such error. MORRIS, J. (dissenting). I agree with the majority opinion in the conclusion that the act of 1911 did not affect appellant's right to contest his brother's will, except as to the venue of the action. Assuming, without deciding, that the state board of charities is either authorized to accept a devise or execute a charitable trust, it does not follow that the will contest in question constituted an action against the state in its sovereign capacity. Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137. But, were it such a suit, then it must be conceded that the state of Indiana has authorized such action against itself, for the statute (section 3154, Burns 1914) expressly requires all beneficiaries to be made parties to such contest. The right to make a will is not conferred on persons of unsound mind. Section 3112, Burns 1914. The complaint in the contest alleged the invalidity of the will because the testator was of unsound mind. In such event the purported will did not affect the right of the heir to take by descent. Crawfordsville Trust Co. v. Ramsey (1912) 176 Ind. 258, 271, 98 N. E 177; Tindal v. Wesley, supra. If the state is a beneficiary un"It may readily be understood how a party der an invalid will, it may be made a party may, in good faith, believe that testimony giv- in the contest thereof, within the three-year en by his adversary on a particular issue involved has no probative force, but where, as in limit for such actions, regardless of wheththis case, it is apparent that the record con- er it has taken possession of the thing purtains evidence which reasonably tends to supported to be devised or bequeathed to it. port each of the issues on which the winning party had the burden of proof, the verdict of the jury determines the weight and value of that evidence, and its decision thereon is not subject to review on appeal." This instruction properly states the law. Conner v. Robertson, 37 La. Ann. 814, 55 Am. Rep. 521; Pixley v. Boynton, 79 Ill. 351; Williams v. Tiedemann, 6 Mo. App. 269, 276. [17] It is also insisted that the verdict in this case is not sustained by the evidence. As we have recently noted in the case of Portland Foundry, etc., Co. v. Gibson, 111 N. E. 184: I cannot concur, however, in the decision of the majority that no reversible error was committed in the exclusion of evidence offered by appellant. Illegality of consideraSome questions are raised as to other in- tion was not the only defense relied on. structions given and refused, and objection is The third paragraph of answer alleges that made to certain rulings of the trial court rel- the execution of the contract by appellant ative to the admission of evidence. Most of was procured by means of a fraudulent conthese questions are disposed of through our spiracy between appellee and appellant's preconclusions above reached, and an examina- | viously employed attorneys at Marion, Wiltion of the others does not show them to be liam J. Houck and Roscoe A. Hevelin. The of controlling importance. fourth paragraph of answer alleges, among other things, that appellee secured the exe-ed that appellee performed services in relacution of the contract by appellant through tion to the legislative measure. Whether alleged fraudulent acts of said Houck and these services were gratuitous and collateral Hevelin while they were acting as agents for to the employment was the main question on appellee. The contract was signed by appel- the issue of illegal consideration. lant, in the evening, on February 16, 1911. Appellant was living in Grant County, while appellee resided in Indianapolis. They were strangers to each other, and had theretofore had no correspondence. As attorneys for appellant, Houck and Hevelin had commenced a suit in Grant county to contest the will, but the trial court had overruled their demurrer to a plea in abatement. Appellee testifies that Mr. Houck came to Indianapolis and informed him about the status of the contest suit, and also that a bill had been introduced in the lower house of the General Assembly (then in session) to authorize the state to be sued in will contests, but that the passage of the bill was doubtful because of opposition in the Senate. Appellee further testified that Houck stated to him that appellant desired to employ him to assist in the will contest. Appellee replied that he would consider the matter, and, if he decided to accept employment, he would forward to Houck a written proposition, stating terms. Two or three days later appellee prepared the contract sued on, and which contained a blank for acknowledgment before a notary, and forwarded it to Houck by mail. The proposition forwarded was in the possession of Houck and Hevelin for about a week prior to February 16, 1911, when appellant signed it at Hevelin's office. It was acknowledged before a notary in another office on the "opposite side of the square." I am of the opinion that Hevelin's statement about the notary, when the contract was signed, was admissible as a part of the res gestæ. I fail to see why, under the issues, appellant should not have been permitted to testify that he never authorized Houck to negotiate with appellee regarding the latter's employment. An attorney employed to prosecute an action is not thereby authorized to employ other counsel for, the client. I am further of the opinion that what was said by Houck to induce appellant to sign the proposed contract was admissible. For the purpose of procuring appellant's signature it must be conceded that Houck was appellee's agent. The written proposition was sent to Houck for appellant's signature, and, when signed, was delivered to appellee by Houck or Hevelin. I think the exclusion constituted reversible error. Heller v. Crawford, 37 Ind. 279; 10 R. C. L. 173. The fact that the written contract on its face makes no reference to legislative services does not preclude parol evidence that such services were contemplated in the employment. On the evidence admitted the jury found for appellee. Whether the finding would have been the same had the excluded evidence been admitted it is impossible to say, and I think a new trial should be awarded because of such exclusion. (185 Ind. 11) TALGE MAHOGANY CO. The trial court refused appellant's offer to prove by himself that he never gave Mr. CLEVELAND, C., C. & ST. L. RY. CO. v. Houck any authority to negotiate with appellee for the latter's employment. It also refused appellant the privilege of testifying that, when he signed the contract in Heve lin's office, the latter said to him: "You must not acknowledge it before the notary in my office, for the reason that I don't know what trouble may come from this contract, and you must take it out and acknowledge it before some other notary and then return the contract to me.' The trial court also excluded the offered evidence of appellant that on the day the contract was signed by him, and before he signed it, Attorney Houck said: "You must sign the contract to-day, and it must be in Indianapolis to-morrow morning by 9 o'clock, or the bill is killed, or will be killed." A son of appellant testified that he heard a conversation between his father and appellee in the summer of 1913, when appellee demanded payment of the $20,000 provided for in the contract; that on that occasion (Supreme Court of Indiana. May 31, 1916.) 1. COURTS 489(9)—STATE COURTS-INTERSTATE COMMERCE-JURISDICTION. Suits by interstate carriers may be instituted in the state courts to recover the difference between the lawful charge for service as shown by published tariffs under Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, and the amount actually paid for such service. [Ed. Note.--For other cases, see Courts, Dec. Dig. 489(9).] 30-FREIGHT - INTERSTATE 2. CARRIERS COMMERCE COMMISSION-CONSTRUCTION TARIFF. OF In an action to recover railroad tariff, charges for staking and wiring shipments of mahogany logs, the sole object of the service being to prevent accidents, and bearing no relation to the value of the property, the logs shipped were embraced in the class set forth in the tariffs as "lumber, telegraph poles or similar lading." [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. 30.] 3. CARRIERS 30-FREIGHT RATES-INTERSTATE COMMERCE COMMISSION-EFFECT OF ORDER. appellee said that Houck had employed him to put the bill through the Legislature, and that he did not think that it would have passed without his help. Appellee denied An interstate tariff charge, duly filed and having made such statement. It is conced-published with the Interstate Commerce ComFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mission, stands as a lawful charge until abro- [ November, 1907, when, because of the stress gated by the Commission. of the financial panic then existing, appellee was unable to secure money from the banks with which to pay transportation charges. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. 30.] Appeal from Superior Court, Marion Coun- Appellant delivered the logs, however, on an ty; Charles J. Orbison, Judge. Action by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against the Talge Mahogany Company. Judgment for defendant, and plaintiff appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, 1405. Reversed, and new trial granted. Frank L. Littleton and Charles P. Stewart, both of Indianapolis, for appellant. Wilson S. Doan and James C. Mathews, both of Indianapolis, for appellee. MORRIS, J. Action by appellant to recover an alleged railroad tariff charge of $82. The cause was submitted to a jury for trial, and at the close of the evidence the court instructed the jury to find for appellce, and this charge constitutes the alleged error on which appellant relies. Appellee purchased 41 carloads of mahogany logs in Western Africa, agreement to pay in installments. All the charges were subsequently paid to appellant except that for the staking and wiring, and appellant paid the Erie Company for such service. Appellee refused payment on the theory that the charge for the service was not warranted under said tariff, though it concedes that such charge would be proper under a tariff describing property of this character. [1] Suits by interstate carriers may be instituted in state courts to recover the difference between the lawful charge for service as shown by published tariffs under the Commerce Act of February 4, 1887, and the amount actually paid for such service. Louisville, etc., R. Co. v. Maxwell (1915) 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665. [2] We are of the opinion that the logs shipped were embraced in the class set forth in the tariffs, viz., "lumber, telegraph poles or similar lading." The sole object of the service was to prevent accident. The charge bore no relation to the value of the property, or distance of transportation, and in considering the question involved, the purpose of the service must be kept in mind. Appellee invokes the doctrine of ejusdem generis, but we are of the opinion that it is not applicable. U. S. Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69. See, also, National Lumber Dealers' Association v. Atlantic, etc., R. Co., 14 Interst. and shipped them to Weehawken, N. J., whence they were transported over the interstate railroads of the Erie Company and that of appellant to Indianapolis, Ind., where they were delivered to appellee. These logs were hewn square, and were loaded on gondola cars in such way as to extend above the tops thereof. To secure them in place, the Erie Company staked and wired them when loaded at Weehawken, and furnished the materials therefor. The logs were from 22 to 45 inches square at the ends, and from 17 to 22 feet in length. Their average weight was two tons, [3] No question of the reasonableness of the but some of them weighed more than four rate is involved. An interstate tariff charge, tons. At the time of shipment the Erie Com- duly published and filed with the Interstate pany had on file with the Interstate Com-Commerce Commission, stands as the lawful merce Commission the following circular, charge until abrogated by the Commission. which remained in effect: Wabash R. Co. v. Priddy, 179 Ind. 483, 101 N. · E. 724. "General Freight Office New York, N. Y., August 1, 1904. Supplement No. 16 to Circular No. E. R. 1059 I. C. C. No. 3607. Revised Lighterage and Terminal Regulations in New York Harbor and Vicinity, Taking Effect August 1, 1904. Addition. Expense of Bracing Shipments of Lumber, etc. "Rule 37. The expense for staking, wiring, or cleating shipments of lumber, telegraph poles, or similar lading destined to trunk line and Western points will be made a charge upon the lading as follows: When material and labor are furnished by the railroad com pany When the material is furnished by the shipper, and the labor by the railroad company. .$2.00 per car .50 per car "R. M. Parker, "General Freight Agent, New York." The Erie Railroad Company billed out the logs with advance charges of $10,991.45, which sum included $82 representing the staking and wiring at $2 per car, under the above tariff, all of which was to be collected from appellee. The cars arrived at Indianapolis, in Com. Com'n' R. 154, 156. The trial court erred in its peremptory instruction. Judgment reversed, with instructions to sustain appellant's motion for a new trial. (185 Ind. 715) PERROTT et al. v. GLENN. (No. 23090.) Where the transcript was not filed in the Supreme Court during the term of the circuit court from which the appeal from an interlocutory order was taken, it will be dismissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2747, 2749, 3126; Dec. Dig. 627(2).] Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge. Action for an injunction by Thomas Glenn against Samuel V. Perrott and others. Judg. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment for plaintiff, and defendants appeal. defective, the burden was on the latter to prove Appeal dismissed. that he did not know of the defect. William A. Pickens, Paul G. Davis, Walter Myers, and Russell J. Ryan, all of Indianapolis, for appellants. Roach & Ballard, of Indianapolis, for appellee. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 880, 899; Dec. Dig. 265(4).] There cannot be error in withdrawing from the jury, by an instruction, evidence which has already been stricken out on motion. [Ed. Note. For other cases, see Trial, Cent. Dig. § 504; Dec. Dig. 208.] 6. DAMAGES 38-PERSONAL INJURIES-DIMINISHED EARNING CAPACITY. proper. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 237-241; Dec. Dig. 38.] 7. DAMAGES 191 PERSONAL INJURIES MEDICAL EXPENSES OF MINOR. PER CURIAM. Appeal from an interlocutory injunction order. Appellee's complaint was filed February 28, 1916. On March 11, 1916, appellee filed a petition and bond for a temporary injunction. The injunctive order prayed for was granted on March 22, In a servant's action for injuries to his eye 1916, and from which this appeal is prose- from a sliver from a drift pin, allowance of recuted. The prayer for this appeal was grant-covery for diminished ability to earn money was ed, and appeal bond approved, on March 30, 1916. The March term of the Marion circuit court ended March 31, 1916. The transcript was filed here on April 27, 1916. Appellee has filed a motion to dismiss the appeal because the transcript was not filed in this court during the March term of the Marion circuit court. This motion must be sustained. Shedd v. American Maize Products Co. (1910) 175 Ind. 86, 93 N. E. 447; Barney v. Elkhart County Trust Co. (1906) 167 Ind. 505, 79 N. E. 492; Natcher v. Natcher (1899) 153 Ind. 368, 55 N. E. 86. Appeal dismissed. TRINE. FELLOW-SERVANT Doc In an action for injuries to an infant employé, where there was testimony that the docnot in evidence whether the charge was made tor had charged $37 for his services and it was to plaintiff or his father, it was not improper to allow plaintiff to recover for his medical expenses. Cent. Dig. §§ 504, 510; Dec. Dig. 191.] Though a father is liable for necessaries furnished his minor son, such as medical attendance, the obligation is also a debt of the minor, and in his action against his employer for injuries he may recover medical expenses. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 99, 251; Dec. Dig. 46.] Appeal from Circuit Court, Delaware County; Robert M. Van Natta, Judge. Action by Samuel R. Clark, by his next friend, Eli H. Clark, against the Central Indiana Railroad Company. From a judgment for plaintiff, defendant appeals. Af The Employers' Liability Act (Acts 1911, c. 88) § 1, abolishes the fellow-servant doctrine. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 354-358; Dec. Dig.firmed. 179.] 2. MASTER AND SERVANT 293(8)-INJURIES U. C. Stover, of Indianapolis, Thompson TO SERVANT-DUTY TO FURNISH SAFE TOOLS. & Sprague and A. N. Van Nuys, all of An instruction that it was the duty of an Muncie, and James L. Murray, of Indianapoemployer to furnish safe tools and appliances lis, for appellant. Geo. W. Cromer and for its servant to work with was too broad a Harry Long, both of Muncie, and A. E. Gadbury, for appellee. statement of the law. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1150; Dec. Dig. 293(8).] In a servant's action for injuries in driving a drift pin into a boiler, error in an instruction on the employer's duty to furnish safe tools and appliances, which was too broad a statement of the law, was harmless where the jury found, by answers to interrogatories, that such a defective drift pin was furnished that the employer was liable. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4225; Dec. Dig. 1068(1); Trial, Cent. Dig. § 525.] IBACH, J. Appellee recovered damages for injuries alleged to have been caused by appellant's negligence. The errors assigned and argued all arise upon the court's overruling of appellant's motion for new trial. One charge of the complaint was that appellant furnished appellee, an inexperienced minor, with a drift pin made from unsuitable material, which he was ordered to drive through a hole in a boiler, which he was helping to mend, and which broke when he struck it by reason of faulty material, and 4. MASTER AND SERVANT 265(4)—INJURIES ΤΟ SERVANT DEFECTIVE APPLIANCES a piece of the broken pin flew off and hit KNOWLEDGE OF EMPLOYER BURDEN OF his eye, injuring his vision. The cause is PROOF-STATUTE. brought under the act of 1911 (Acts 1911, c. 88, p. 145). Under Employers' Liability Act, § 3, in an action for injuries to a servant, when an appliance furnished him by the employer was proved Objection is first made to the refusal to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |