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+"{\"id\": \"10819413\", \"name\": \"HOOSIER INSURANCE COMPANY, Appellant-Plaintiff, v. AUDIOLOGY FOUNDATION OF AMERICA and American Speech-Language Hearing Association, Appellee-Defendant\", \"name_abbreviation\": \"Hoosier Insurance Co. v. Audiology Foundation of America\", \"decision_date\": \"2001-04-09\", \"docket_number\": \"No. 79A04-0004-CV-144\", \"first_page\": \"300\", \"last_page\": \"312\", \"citations\": \"745 N.E.2d 300\", \"volume\": \"745\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:22:25.085170+00:00\", \"provenance\": \"CAP\", \"judges\": \"DARDEN and RILEY, JJ., concur.\", \"parties\": \"HOOSIER INSURANCE COMPANY, Appellant-Plaintiff, v. AUDIOLOGY FOUNDATION OF AMERICA and American Speech-Language Hearing Association, Appellee-Defendant.\", \"head_matter\": \"HOOSIER INSURANCE COMPANY, Appellant-Plaintiff, v. AUDIOLOGY FOUNDATION OF AMERICA and American Speech-Language Hearing Association, Appellee-Defendant.\\nNo. 79A04-0004-CV-144.\\nCourt of Appeals of Indiana.\\nApril 9, 2001.\\nRehearing Denied June 6, 2001.\\nJohn T. Hume, III, Edward F. Harney, Jr., Hume, Smith, Geddes, Green & Simmons, LLP, Indianapolis, IN, Robert F. Johnson, Lee Anne N. Conta, Cook & Franke S.C., Milwaukee, WI, Attorneys for Appellant.\\nRobert M. Gippin, Karen Kelly Grasso, Thompson, Hine & Flory, LLP, Cleveland, OH, Thomas H. Busch, Hoffman, Lubman & Busch, Lafayette, IN, Attorneys for Ap-pellee. & '\", \"word_count\": \"5222\", \"char_count\": \"32691\", \"text\": \"OPINION\\nROBB, Judge.\\nCase Summary\\nHoosier Insurance Company (\\\"Hoosier\\\") appeals the trial court's order denying its motion for summary judgment and granting Audiology Foundation of America's (\\\"AFA's\\\") cross-motion for partial summary judgment. We affirm.\\nIssues\\nHoosier raises three issues for our review which we restate as whether the trial court erred when it denied its motion for summary judgment and granted AFA's cross-motion for partial summary judgment with respect to:\\n1. Whether the advertising injury provisions of Hoosier's policy provide coverage to AFA for claims of false advertising, false designation of origin, and unfair competition;\\n2. Whether coverage is excluded under the policy's \\\"knowledge of falsity\\\" provision; and\\n3. Whether AFA can proceed on a bad faith claim against Hoosier based on Hoosier's denial of coverage or the stipulation it entered into with the American Speech Language Hearing Association (\\\"ASHA\\\").\\nFacts and Procedural History\\nThe Insurance Policy\\nAFA is a not-for-profit corporation based in West Lafayette. At one time, AFA promoted a re-credentialing program where, for a fee, it would review documentation from a practicing audiologist and confer a credential of Doctor of Audiology, or Au.D., upon him or her based on his or her education and practical experience. The re-credentialing program was intended to be temporary, lasting only until the time that AFA anticipated that the Au.D. would be the standard entry-level degree for audiologists. AFA obtained an insurance policy with Hoosier which contained coverage and exclusions with respect to business liability, including advertising inJury liability. There were a total of three policies issued, one for each of the following policy periods: August 1, 1995 to August 1, 1996; August 1, 1996 to August 1, 1997; August 1, 1997 to August 1, 1998.\\nThe coverage portion of the policy stated that \\\"[Hoosier] will pay those sums that [AFA] becomes legally obligated to pay as damages because of . 'advertising injury' to which this insurance applies. [Hoosier] will have the right and duty to defend any 'suit' seeking those damages. [Hoosier] may at our discretion investigate any 'occurrence' and settle any claim or 'suit' that may result.\\\" R. 85. Further, the policy stated that the insurance applied to an \\\" 'advertising injury' caused by an offense committed in the course of advertising [AFA's] goods, products or services....\\\" Id. However, the policy also identified exclusions, and stated that the insurance did not apply, among other things, to an advertising injury that arose \\\"out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity....\\\" R. 89.\\nAn advertising injury was defined in the policy as meaning:\\n[Injury arising out of one or more of the following offenses:\\na. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;\\nb. Oral or written publication of material that violates a person's right of privacy;\\nc. Misappropriation - of _- advertising ideas or style of doing business; or d. Infringement of copyright, title or slogan.\\nR. 98.\\nThe Underlying Action, ASHA v. AFA\\nAs a result of its re-credentialing program, AFA was sued by ASHA in the United States District Court for the District of Maryland. In its complaint against AFA, ASHA alleged that the activities engaged in by AFA constituted \\\"false advertising, false designation of origin, and unfair competition in violation of Section 48(a) of the federal Lanham Act and the common law of the State of Maryland.\\\" R. 44.\\nThe Declaratory Judgment Action, Hoosier v. AFA\\nAFA notified Hoosier of ASHA's suit against it. Thereafter, Hoosier issued a preliminary letter to AFA which stated, \\\"[blased upon a review of the policies issued by Hoosier, the complaint and the applicable facts provided to date, the poli-cles do not provide coverage for the claims alleged in the complaint.\\\" R. 96. Hoosier additionally informed AFA in this letter that there were a number of reasons that coverage could be reduced or excluded, among them, the fact that the complaint did not seek damages; that there was not an advertising injury; that the policy excluded an advertising injury that arose out of material done by or at the direction of the insured with knowledge of its falsity or the willful violation of a penal statute or ordinance committed with the consent of the insured; and that the claims alleged in the complaint were barred to the extent that they seek indemnity in excess of the applicable limits of the policies. The letter also directed that in order for Hoosier to complete its evaluation of the claim, AFA needed to provide Hoosier with specific information and documents. AFA did forward basic information about AFA and copies of its newsletters to Hoosier.\\nHoosier responded to AFA by stating that none of the offenses listed under the definition of advertising injury were alleged in ASHA's complaint and therefore, its initial position remained unchanged and it was denying coverage. After further correspondence between AFA and Hoosier, Hoosier filed a complaint for declaratory judgment against both AFA and ASHA seeking a determination that the policies did not provide coverage for the claims alleged by ASHA and thus, Hoosier did not have a duty to defend or indemnify AFA in the underlying action.\\nBefore AFA filed an appearance in the declaratory judgment action, Hoosier entered into a stipulation with ASHA which stated that ASHA was not seeking money damages in the underlying action. The stipulation was filed with the trial court and ASHA was dismissed from the declaratory judgment action. AFA was not a party to the stipulation.\\nAFA filed an answer and a counterclaim alleging that Hoosier had the duty to defend and indemnify AFA for the claims asserted in the underlying action and that Hoosier acted in bad faith in denying AFA a defense or indemnification.\\nHoosier filed a motion for summary judgment, asserting that there was no genuine issue of material fact in that: none of the claims fell within the coverage of the Hoosier policies, the knowledge of falsity exelusion applied, and ASHA was not seeking damages within the meaning of the policies; thus, Hoosier contended that it did not have a duty to defend or indemnify AFA and was entitled to judgment in its favor on its complaint as a matter of law. Additionally, Hoosier requested summary judgment in its favor on AFA's counterclaim for bad faith. AFA subsequently filed its motion in opposition to Hoogier's motion for summary judgment and its cross-motion for partial summary judgment. AFA asserted that there was no genuine issue of material fact in that: the claims alleged by ASHA constituted advertising injuries of either misappropriation of style of doing business or infringement of copyright, title or slogan, the knowledge of falsity exclusion did not apply, and ASHA did seek money damages in the underlying action; therefore, AFA contended that Hoosier was obligated to defend or indemnify AFA in the underlying action and AFA was entitled to judgment as a matter of law. Further, AFA asserted that it should be allowed to pursue its bad faith claim against Hoosier.\\nAfter oral argument before the trial court, the trial court denied Hoosier's motion for summary judgment and granted AFA's cross-motion for partial summary judgment on Hoosier's complaint for declaratory judgment. The trial court stated, in its order, that it found \\\"no genuine issues of material fact concerning the coverage to be afforded to AFA under the Hoosier policy, but [found] such issues concerning AFA's allegations of bad faith concerning Hoosier.\\\" R. 214. Essentially, the trial court granted summary judgment in favor of AFA on Hoosier's complaint and denied summary judgment to Hoosier on AFA's counterclaim regarding bad faith. Thus, the only remaining claim between the parties is the bad faith claim. Hoosier now appeals.\\nAdditional facts will be provided as nee-essary.\\nDiscussion and Decision\\nI, Standard of Review\\nThe purpose of summary judgment is to end litigation where no factual dispute exists and which may be determined as a matter of law. Choung v. Iemma, 708 N.E.2d 7, 11 (Ind.Ct.App.1999). On review of a trial court's decision to grant or deny summary judgment, our standard of review is well settled. We apply the same standard of review as the trial court: we must decide whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Fawcett v. Gooch, 708 N.E.2d 908, 909 (Ind.Ct.App.1999).\\nSummary judgment is appropriate only if \\\"the evidence sanctioned by Ind. Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law.\\\" Id. (citing Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 169 (Ind.1996)). The party moving for summary judgment has the burden of making a pri-ma facie showing that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Choung, 708 N.E.2d at 11. Onee these two requirements are met by the moving party, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. Any doubts as to any facts or inferences to be drawn therefrom will be resolved in favor of the non-moving party. Id.\\nAdditionally, the trial court's specific findings of fact and conclusions of law are not required in the summary judgment context, and although they offer valuable insight into the trial court's rationale for its judgment and facilitate our review, they are not binding on us. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App.2000), trans. denied. Further, the fact that the parties make cross-motions for summary judgment does not alter our standard of review. Freidline v. Civil City of South Bend, 733 N.E.2d 490, 493 (Ind.Ct.App.2000).\\nII. Grant of Summary Judgment-Advertising Injury Provision\\nHoosier argues that the trial court's decision that Hoosier had a duty to defend and indemnify AFA was erroneous because the policy held by AFA does not provide liability coverage for the claims alleged by ASHA in the underlying action. Hoosier contends that the claims ASHA asserted against AFA did not arise out of an advertising injury offense enumerated in the policy, and thus, the policy does not provide coverage for AFA's claim. Therefore, Hoosier argues that summary judgment in its favor on this issue was appropriate.\\nAn insurance company's duty to defend is broader than its coverage for liability or its duty to indemnify. Indiana Farmers Mut. Ins. Co. v. Ellison, 679 N.E.2d 1378, 1381-82 (Ind.Ct.App.1997), trans. denied. \\\"The duty to defend is determined from the allegations of the complaint and from the facts known or ascertainable by the insurer after an investigation has been made.\\\" Id. at 1382. If the pleadings fail to disclose a claim within the coverage limits, or one which is clearly excluded under the policy, and investigation reveals that the claim is outside the coverage of the policy, no defense is required. Id. As a matter of law, however, the insurer has a duty to conduct a reasonable investigation into the facts underlying the complaint before it may refuse to defend the complaint. Monroe Guar. Ins. Co. v. Monroe, 677 N.E.2d 620, 624 (Ind.Ct.App.1997), trans. dismissed.\\nIn the underlying action, ASHA alleged complaints against AFA for false advertising, false designation of origin, and unfair competition under the Lanham Act and Maryland common law. ASHA claimed that AFA used the terms \\\"Doctor of Audiology\\\" or \\\"Au.D.\\\" in commercial advertising of its credentialing services in brochures, newsletters, booklets, on its web site, and in the dissemination of material like lapel pins, and that the use of the term Doctor of Audiology is a commercial advertisement. ASHA asserted, among other things, that the use of the term \\\"Doctor of Audiology\\\" misrepresents the nature of AFA's credentialing services because it imparts a false message that the AFA credential is an academic degree. Further, ASHA alleged that the use of the word \\\"doctor\\\" in connection to one who had not earned the degree falsely leads one to believe that the audiologist did earn his or her doctoral degree. ASHA also alleged that AFA's use of \\\"Doctor of Audiology\\\" is a deliberate attempt to pass off its ereden-tial as an earned degree and thus constitutes a false designation of origin. With respect to its unfair competition allegations, ASHA claimed that the use of the term \\\"Doctor of Audiology\\\" gave AFA an unfair advantage in its competition with ASHA.\\nHoosier's \\\"advertising injury\\\" policy provision provides that \\\"[Hoosier] will pay those sums that [AFA] becomes legally obligated to pay as damages because of . \\\"advertising injury' to which this insurance applies. [Hoosier] will have the right and duty to defend any 'suit' seeking those damages.\\\" R. 85. The policy later defines an advertising injury as an:\\ninjury arising out of one or more of the following offenses:\\n*o oto\\nc. Misappropriation - of - advertising ideas or style of doing business; or\\nd. Infringement of copyright, title or slogan.\\nR. 93.\\nBecause insurance policies are contracts between parties, the law of contracts applies when determining policy liabilities. Davidson v. Cincinnati Ins. Co., 572 N.E.2d 502, 505 (Ind.Ct.App.1991), trans. denied. Ambiguous terms in an insurance policy are to be construed - against the insurer. American States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind.1996). \\\"This is particularly true where a policy excludes coverage.\\\" Id. (citation omitted). Our Supreme Court was clear in its holding, stating that \\\"[this strict con-strual against the insurer is driven by the fact that the insurer drafts the policy and foists its terms upon the customer. 'The insurance companies write the policies; we buy their forms or we do not buy insurance.'\\\" Id. (quoting American Econ. Ins. Co. v. Liggett, 426 N.E.2d 136, 142 (Ind.Ct.App.1981)). Therefore, the insurer is bound by the plain, ordinary meaning of the words as viewed from the perspective of the insured. Cincinnati Ins. Co. v. BACT Holdings, Inc., 723 N.E.2d 436, 439 (Ind.Ct.App.2000), trans. denied.\\nThe analysis of an advertising injury liability provision presents a case of first impression in Indiana state courts. However, after the trial court issued its summary judgment order in this case, the Federal Court for the Southern District of Indiana issued an opinion addressing the definition of \\\"advertising injury\\\" in an insurance policy, specifically the provisions of \\\"misappropriation of advertising ideas or style of doing business\\\" and \\\"infringe, ment of copyright, title or slogan.\\\" Heritage Mut. Ins. Co. v. Advanced Polymer Technology, Inc., 97 F.Supp.2d 913 (S.D.Ind.2000). The provision at issue in Advanced Polymer was, in relevant aspects, identical to the provision in the Hoosier policy.\\nIn Advanced Polymer, coverage under an advertising injury liability provision was denied for patent infringement, unfair competition, and false designation of origin claims. 97 F.Supp.2d at 987. With respect to \\\"misappropriation of . style of doing business,\\\" Advanced Polymer acknowledged that courts often disagree about the breadth of the term \\\"misappropriation.\\\" Id. at 926. Some courts have construed it narrowly, to track the common-law tort of misappropriation, while others broadly define it in its lay sense to mean \\\"to take wrongfully.\\\" Id. (citations omitted). The Advanced Polymer court concurred \\\"with the vast majority of courts\\\" that style of doing business is defined as \\\"a company's comprehensive manner of operating its business.\\\" Id. at 928.\\nHoosier alleges that the claims alleged by ASHA in the underlying action do not fall within the \\\"misappropriation of style of doing business\\\" provision of the policy. Based on the Advanced Polymer decision, Hoosier argues that ASHA is not complaining that AFA misappropriated its style of doing business, or its comprehensive manner of operating its business. Rather, Hoosier asserts that ASHA's allegations refer to the fact that AFA was conferring a Doctor of Audiology credential as a valid academic degree, when in actuality, it was not. Further, Hoosier claims that ASHA could not have been complaining that AFA had misappropriated its manner of doing business because ASHA is not in the business of selling or advertising degrees. We disagree.\\nASHA is a non-profit professional association and has been issuing credentials since 1952. These credentials are issued by ASHA to individuals for entry-level practice in audiology and speech-language pathology. AFA, also a not-for-profit corporation, was established in 1988. AFA, its members, and other audiologists seek to raise the entry-level degree of audiologists to that of a doctor of audiology, or Au.D. Thus, AFA also issued credentials. Neither ASHA nor AFA issue degrees, only credentials. Based on dates alone, it is clear that AFA was an upstart, created years after ASHA.\\nBased on the Advanced Polymer definition of style of doing business, a company's comprehensive manner of operating its business, it is clear that ASHA's complaint about AFA and its issuance of the Au.D. credential would reasonably fall under the policy provision of \\\"misappropriation of . style of doing business.\\\" AFA was started after ASHA. Both are professional associations which issue credentials to audiologists.\\nAlthough Advanced Polymer found no coverage under the misappropriation of style of doing business provision under the facts presented therein, the case at hand is distinguishable in that we are dealing with claims by and against two yery similar associations. - The Advanced Polymer court, with respect to the misappropriation of style of doing business, dealt primarily with patent infringement and unfair competition; there, none of the allegations fell within the ambit of style of doing business, unlike the case at hand. In Advanced Polymer, the court noted that nowhere in the underlying complaint was the court informed of nature of the business, the number of products produced, whether the product advertised represents a similar product, or how the company operates its business or presents itself to the public, among other things. Here, ASHA clearly described both itself and AFA in its complaint, explained that both issue ereden-tials, and further, complained specifically about the credential that AFA was issuing. Thus, we hold that AFA was entitled to coverage based on the policy provision of misappropriation of style of doing business.\\nFurther, we note that although the insurance policy was not in fact illusory, it would seem that AFA had paid for insurance that appeared to cover almost nothing. Hoogier's assertions with respect to the misappropriation of style of doing business stated that essentially, in order for coverage to be extended, AFA would have had to been nearly identical to ASHA in all respects. We disagree, and hold that a \\\"style\\\" of doing business is not so restrictive.\\nHaving held that coverage should have been extended to AFA pursuant to the misappropriation of style of doing business provision of the policy, we must turn to the issue of whether the knowledge of falsity exclusion should apply in order to determine if summary judgment for AFA was proper.\\nIII. Grant of Summary Judgment-Knowledge of Falsity Exclusion\\nHoosier argues that the trial court's decision that Hoosier had a duty to defend and indemnify AFA was also erroneous because the policy's knowledge of falsity exclusion applied. Hoosier contends that AFA, in promoting its \\\"Doctor of Audiology\\\" credential, did so knowing that the meaning people would attach to the title was false. We disagree,.\\n- Generally, insurers are allowed to limit liability in any manner which is not inconsistent with public policy and an unambiguous exclusionary clause is ordinarily entitled to enforcement. American Family Life Assurance Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind.Ct.App.1998), trans. denied. However, exclusions, exceptions, and limitations must be plainly expressed in the policy and the ary clause must bring within its seope the particular act or omission that will bring the exclusion into play. Id. Any doubts as to the coverage under the policy will be construed against the insurer in order to further the policy's basic purpose of indemnity. Id. \\\"Generally, a coverage exclusion is an affirmative defense, proof of which is the insurer's burden.\\\" Rozek v. American Fomily Mut. Ins. Co., 512 N.E.2d 232, 234 (Ind.Ct.App.1987).\\nHere, Hoosier's policy included a knowledge of falsity exclusion which stated that the insurance did not apply to an advertising injury \\\"[alrising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.\\\" R. 89. Hoosier alleges that the trial court erred in granting summary judgment in favor of AFA based on the knowledge of falsity exclusion because AFA deliberately advertised a false degree and the underlying complaint specifically alleges AFA's deliberate use of the false and misleading title Doctor of Audiology designation.\\nHere, the knowledge of falsity exclusion, to apply, requires that an advertising injury arise out of materials published by AFA, and that AFA have knowledge of the material's falsity. AFA was engaged in a re-credentialing program. It would confer the credential doctor of audiology. AFA was not conferring academic degrees, but credentials, and its materials never claimed otherwise. As such, there was nothing false published by AFA and no way for AFA to have knowledge of any such falsity. Therefore, we hold that the trial court did not err in granting summary judgment in favor of AFA with respect to the knowledge of falsity exelusion.\\nBecause the trial court was correct in interpreting both the advertising injury provision and the knowledge of falsity exclusion, summary judgment for AFA on Hoosier's complaint was proper.\\nIV. Denial of Summary Judgment-Bad Faith Claim\\nHoosier claims that AFA should not be entitled to pursue its bad faith claim and that summary judgment should have been entered in favor of Hoosier with respect to the bad faith claim asserted by AFA because: 1.) Hoogier acted in accordance with Indiana law when it investigated the claim, advised AFA of its coverage position, and filed a declaratory judgment action; 2.) AFA waived its right to argue that the stipulation entered into between AHSA and Hoosier was procured in bad faith; and 3.) regardless of AFA's waiver, the stipulation was obtained and entered prior to AFA's appearance in the declaratory judgment action.\\nAn insurer has a duty to deal with its insured in good faith, and there is a cause of action for the tortuous breach of that duty. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind.1993), see also County Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind.Ct.App.1999), trans. denied. \\\"The insurer's obligation of good faith and fair dealing includes an obligation to refrain from causing an unfounded delay in making payment; making an unfounded refusal to pay policy proceeds; exercising an unfair advantage to pressure an insured into settlement of his claim; and deceiving the insured.\\\" County Line Towing, Inc., 714 N.E.2d at 291. Therefore, an insured who believes an insurance claim has been wrongly denied may have two distinct legal theories available, one for breach of the insurance contract and one in tort for the breach of the duty of good faith and fair dealing. Id. These two theories have separate, although often overlapping, elements, defenses, and recoveries. Id. '\\nA good faith dispute about the amount of a valid claim or whether the insured has a valid claim at all will not supply the grounds for recovery in tort for the breach of the obligation to exercise good faith. Becker v. American Family Ins. Group, 697 N.E.2d 106, 108 (Ind.Ct.App.1998). \\\"This is so even if it is ultimately determined that the insured breached its contract. That insurance companies may, in good faith, dispute claims, has long been the rule in Indiana.\\\" Id. Additionally, \\\"the lack of diligent investigation alone is not sufficient to support an award. On the other hand, for example, an insurer which denies liability knowing that there is no rational, principled basis for doing so has breached its duty.\\\" Id. Thus, poor judgment and negligence do not amount to bad faith; the additional element of conscious wrongdoing must also be present. Colley v. Indiana Farmers Mut. Ins. Group, 691 N.E.2d 1259, 1261 (Ind.Ct.App.1998), trans. denied. \\\"A finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will.\\\" Id. As such, a bad faith determination inherently includes an element of eulpability. Id. Finally, fact issues may preclude summary judgment in favor of an insurer on an insured's bad faith claim. See Gooch v. State Farm Mut. Auto. Ins. Co., 712 N.E.2d 38 (Ind.Ct.App.1999), trans. denied.\\nA. Denial of Coverage\\nAn insurance company's duty to defend is broader than its duty to indemnify. . Employers Ins. Of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1025 (Ind.Ct.App.1999), trans. denied. And, as stated earlier, as a matter of law, the insurer has a duty to conduct a reasonable investigation into the facts underlying the complaint before it may refuse to defend the complaint. Monroe Guar. Ins. Co., 677 N.E.2d at 624. When an insurer questions whether an insured's claim falls within the seope of its policy coverage or raises a defense that its insured has breached a policy condition, the insurer has two options: 1.) file a declaratory judgment action for a judicial determination of its obligations under the policy, or 2.) hire independent counsel to defend its insured under a reservation of rights. Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1227 (Ind.Ct.App.1999). Thus, an insurer, after making an independent determination that it has no duty to defend, must either file a declaratory judgment for determination of its obligations or defend under a reservation of rights. Employers Ins. of Wausau, 716 N.E.2d at 1025.\\nHere, we agree that an insurance company has the right to a good faith dispute with its insured with respect to coverage, primarily where the coverage presents an issue of first impression. We recognize that Hoosier has the right to a good faith dispute and once it denied coverage, Hoosier properly filed for declaratory judgment. What troubles us, however, is the manner in which Hoosier acted in its dispute with AFA. Specifically, the numerous broad reasons Hoosier gave in explaining that coverage was excluded or denied in whole or part. Again, we are not saying that Hoosier acted in bad faith because it was challenging whether or not coverage existed. We are, however, saying that there is a genuine issue of material fact as to whether bad faith existed in the way in which Hoosier sought to secure its position, including the stipulation discussed below. It is not our role to determine whether Hoosier acted in bad faith; however, we hold that there is a genuine issue of material fact present and that the trial court did not err in denying summary judgment with respect to AFA's bad faith claim.\\nB. Stipulation\\nHoosier and ASHA entered into a stipulation which stated that ASHA was not seeking money damages in the underlying action against AFA and that ASHA waived its right to any benefit under the Hoosier insurance policies. Thus, ASHA also waived its rights to participate in the declaratory judgment action and the complaint for declaratory relief was dismissed against ASHA.\\nWith respect to this stipulation, Hoosier alleges that AFA has waived any argument because it did not raise the stipulation as an example of bad faith until it filed proposed findings of fact and conclusions of law to the trial court. Waiver notwithstanding, Hoosier alleges that the stipulation cannot constitute bad faith. Hoosier claims that because the stipulation was entered into prior to AFA's appearance in the declaratory judgment action, AFA's argument should be rejected. Hoosier additionally claims that the stipulation actually benefits AFA in the underlying action, although Hoosier does concede that the stipulation would lead to a finding of no coverage from the date of the stipulation forward.\\nThe fact that Hoosier and ASHA entered into the stipulation at issue here creates a genuine issue of material fact regarding whether Hoosier acted in bad faith in dealing with AFA. It is not necessary to determine whether or not AFA's argument with respect to the stipulation was waived. The fact that Hoosier entered into the stipulation without AFA's knowledge, particularly when it states that ASHA was not seeking monetary damages when indeed, the underlying action was never amended to reflect this fact, clearly creates a genuine issue of material fact. Essentially, Hoosier entered into a stipulation with ASHA, which would ereate no coverage, and that stipulation was false: it stated that ASHA sought no monetary damages in the underlying action; however, the complaint was never changed and thus, ASHA was seeking monetary damages. A genuine issue of material fact exists, and thus, the trial court properly determined that AFA's bad faith claim against Hoosier could proceed.\\nConclusion\\nWe hold that the trial court did not err in granting summary judgment in favor of AFA and denying Hoosier's motion for summary judgment in that the advertising injury provision does provide coverage to AFA and the knowledge of falsity exclusion does not apply. Further, the trial court did not err is finding that AFA's bad faith claim against Hoosier may proceed because there remains a genuine issue of material fact regarding whether Hoogier's actions in dealing with AFA constitute bad faith,. Accordingly, we affirm.\\nAffirmed.\\nDARDEN and RILEY, JJ., concur.\\n. Oral argument was held in Indianapolis, Indiana on March 8, 2001.\\n. Additionally, it appears that each of the three policies were identical with respect to the advertising injury liability coverage and exclusion provisions. Because the policies appear before us numerous times, we will cite to the first policy provided to us in the record.\\n. According to AFA's brief, the action between ASHA and AFA was settled and \\\"[nlo judgment was taken by either party and neither party paid the other's costs.\\\" Brief of Appellee Audiology Foundation of America at 7. i\\n. Because we hold that coverage was proper under the misappropriation of style of doing business provision, we need not address whether or not coverage would also exist under the infringement of copyright, title, or slogan provision.\\n. Because AFA only alleges that the claims fall within the misappropriation of style of doing business, we will not discuss the misappropriation of advertising ideas. Advanced Polymer noted that the clause actually incorporated two separate injuries. Id. at 926.\\n. In its counterclaim, AFA asserted in Counts I and II that Hoosier had the duty to defend and indemnify AFA, respectively. Count III was with respect to the bad faith claim AFA asserted. Here, although actions with respect to defense and indemnification may arise, specifically whether or not Hoosier acted in bad faith when denying to defend or indemnify, the issue is with respect to whether Hoosier acted in bad faith generally. Whether summary judgment was appropriate with respect to the duty to defend and indemnify was addressed above.\\n. Although not specifically raised in its bad faith section, AFA had presented the trial court with information pertaining to the stipulation entered into between Hoosier and ASHA in its cross-motion for summary judgment and its brief in support.\"}"
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+"{\"id\": \"10840930\", \"name\": \"Brenda GUNTER, Appellant-Plaintiff, v. VILLAGE PUB and Carol Reed Miller, Appellee-Defendants\", \"name_abbreviation\": \"Gunter v. Village Pub\", \"decision_date\": \"1993-01-25\", \"docket_number\": \"No. 10A01-9207-CV-244\", \"first_page\": \"1310\", \"last_page\": \"1314\", \"citations\": \"606 N.E.2d 1310\", \"volume\": \"606\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:00:27.446101+00:00\", \"provenance\": \"CAP\", \"judges\": \"ROBERTSON, J., concurs.\", \"parties\": \"Brenda GUNTER, Appellant-Plaintiff, v. VILLAGE PUB and Carol Reed Miller, Appellee-Defendants.\", \"head_matter\": \"Brenda GUNTER, Appellant-Plaintiff, v. VILLAGE PUB and Carol Reed Miller, Appellee-Defendants.\\nNo. 10A01-9207-CV-244.\\nCourt of Appeals of Indiana, First District.\\nJan. 25, 1993.\\nMitchele J. Harlan, Harris, Harlan & Merideth, Jeffersonville, for appellant plaintiff.\\nSandra W. Lewis, Smith, Bartlett, Heeke & Carpenter, Jeffersonville, for appellee-defendants.\", \"word_count\": \"1908\", \"char_count\": \"11875\", \"text\": \"BAKER, Judge.\\nPlaintiff-appellant Brenda Gunter appeals the trial court's grant of summary judgment in favor of defendant-appelliee Village Pub. Gunter raises one issue for our review which we restate as: whether the trial court erred when it granted Vil lage Pub's motion for summary judgment because there are material questions of fact about Village Pub's duty to protect Gunter from Carol Miller's attack. Because we find there are material questions of fact, we are required to reverse the grant of summary judgment.\\nFACTS\\nThe facts most favorable to Gunter, the non-movant, follow. On the night of August 14, 1987, Gunter arrived alone at the Village Pub sometime after 10:00 p.m. She ordered an alcoholic beverage, spoke to an old friend, Mike Sowders, and then sat down at a table by herself. Sowders was in the pub with Carol Miller. Gunter had been involved previously with Miller's former husband, and, although Gunter did not know Miller, Miller made it no secret that she disliked Gunter. Demonstrating her animosity, Miller approached Gunter's table two or three times to deliver harassing remarks. The first time Miller approached Gunter's table, Miller called Gunter a \\\"bitch,\\\" and suggested Gunter must \\\"want\\\" Mike Sowders since she already had had one of Miller's men. Later, Miller advised Gunter that as a New Albany Police Department employee, she was going to have Gunter arrested when Gunter left the pub. Miller also laughed at Gunter and said Gunter was making a fool of herself by dancing with an unidentified man in the bar.\\nAngered by Miller's behavior, Gunter summoned the Village Pub's manager, Kamran Javid, and told him about Miller's comments and threat to have her arrested. Gunter claims Javid assured her he would talk to Miller, although Gunter never saw him do so. Sometime later, Gunter left her table and walked towards the restroom. As she strolled past Miller's table, a chair was pushed into her path. Gunter admits she looked directly at Miller, called her a \\\"hussy,\\\" and walked into the restroom. Record at 188. Miller followed Gunter into the restroom and socked Gunter in the face. The blow broke Gunter's nose.\\nGunter's complaint alleged the pub negligently breached its duty to keep its property in a safe condition. Village Pub moved for summary judgment, and the trial court granted the motion. Gunter now appeals.\\nDISCUSSION AND DECISION\\nStandard of Review\\nGunter argues the trial court erroneously granted Village Pub's motion for summary judgment because there were material questions of fact regarding the pub's duty to make its business premises safe for Gunter. In reviewing the propriety of 'the grant of summary judgment, this court applies the same standard employed by the trial court. Hamilton v. Roger Sherman Architects Group, Inc. (1991), Ind.App., 565 N.E.2d 1136, 1137. Summary judgment is proper when the designated pleadings, depositions, answers to interrogatories, admissions, and affidavits show no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Indiana DPW v. Hupp (1992), Ind.App., 605 N.E.2d 768; Ind.Trial Rule 56(C). We resolve any doubt against the proponent of the motion, taking all facts properly asserted by the party opposing the motion as true.\\nDUTY\\nGunter's action hinges on Village Pub's duty of care, and we begin with a brief summary of duty law in Indiana. Before a defendant can be held liable in an action for negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from the harm suffered. T.S.B. v. Clinard (1990), Ind.App., 553 N.E.2d 1253, 1255. Whether a duty existed is a question of law for the court, although questions of fact may be interwoven with this determination. Douglass v. Irvin (1990), Ind., 549 N.E.2d 368, 369 n. 1. When addressing the duty issue, we must consider the nature of the relationship between the parties and whether the party being charged with negligence had knowledge of the situation or circumstances surrounding the relationship. T.S.B., supra, at 1256.\\nA duty may also be created by gratuitous or voluntary assumption. Robinson v. Kinnick (1989), Ind.App., 548 N.E.2d 1167, 1168, trans. denied. The assumption of a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person. Id. Whether a party assumed a duty and the extent of that duty are questions for the fact-finder. Id. Similarly, whether a party breached its duty is a factual question generally not appropriate for summary disposition. See Douglass, supra, at 370.\\nBusiness Invitees\\nIn Indiana, landowners have a duty to exercise reasonable care to make their premises safe for business invitees. Burrell v. Meads (1991), Ind., 569 N.E.2d 637, 639. When the landowner is the pro-prictor of a tavern, the duty includes protecting patrons from reasonably foreseeable disorderly acts of other patrons. Welch v. Railroad Crossing, Inc. (1986), Ind.App., 488 N.E.2d 383, 388. The proprietor is not the insurer of his or her patrons' safety, however. Id. \\\"A duty to anticipate and to take steps to protect against a criminal act arises only when the facts of a particular case make it reasonably foreseeable that a criminal act is likely to occur.\\\" Id. at 388 (original emphasis). Relevant facts may include the assailant's behavior either on the day of the injury or on previous occasions. Id.\\nAs Village Pub's invitee, Gunter asserts the pub had a duty to exercise reasonable care to make its business premises safe for her. That duty, she argues, included the duty to protect her from Miller's foreseeable attack. Even if Village Pub did not already have a duty to protect her from the attack, Gunter contends the pub assumed that duty when Javid promised to talk to Miller after Gunter told him about Miller's threats.\\nWe agree with Gunter the evidence she designated to preclude summary judgment demonstrates issues of material fact which make summary judgment inappropriate in this case. Gunter stated in her deposition that she told Village Pub's manager that a \\\"blond headed lady,\\\" later identified to be Miller, had \\\"threatened to have [Gunter] arrested and she called [Gunter] a bitch and she [approached Gunter's] table several times and [Gunter] didn't want any problems.\\\" Record at 187. Gunter also stated that upon reporting Miller's behavior to the manager, the manager assured her he would talk to Miller.\\nThis evidence creates questions of fact about whether Village Pub assumed a duty to protect Gunter from Miller's blow and whether it was foreseeable the attack was likely to occur. Regardless of this court's assessment of Gunter's likelihood of sue-ceeding at trial, and without intentions of making Village Pub strictly liable for bar room brawls, the existence of the factual issues in this case make the grant of summary judgment in Village Pub's favor erroneous. See Tucher v. Brothers Auto Salvage Yard (1991), Ind.App., 564 N.E.2d 560, 562 (summary judgment is not appropriate merely because the non-movant appears unlikely to prevail at trial).\\nProvoked Attack\\nFinally, we address Village Pub's argument it had no duty to protect Gunter from Miller's attack because Gunter provoked the attack when she called Miller a \\\"hussy.\\\" In support of its theory, the pub cites Prosser on Torts \\u00a7 61 at 401 (3rd Ed.) cited with approval in Broadhurst v. Davis (1970), 146 Ind.App. 329, 331, 255 N.E.2d 544, 545-46, for the proposition that a landowner has \\\"no obligation to protect the invitee against dangers which are known to him, or which are so obvious or apparent to him that he may reasonably be expected to discover them.\\\" Applying Professor Prosser's analysis here, Village Pub argues summary judgment was proper because Gunter assumed the risk of Miller's attack when Gunter disregarded the ill will she knew Miller felt towards her and provokingly called Miller a \\\"hussy.\\\"\\nVillage Pub's argument is unpersuasive. First, the pub misinterprets Indiana law. As our supreme court has enunciated, the duty of care a commercial business owes its invitees is not extinguished by its invitees' knowledge of the potential risks existing on the premises. Douglass, supra, at 370. While the comparative knowledge of the landowner and invitee is relevant when determining whether the landowner breached his or her duty, the invitee's knowledge is not relevant when determining whether a duty existed. Id. Accordingly, Gunter's knowledge of the risk Miller posed may be properly considered when determining whether Village Pub breached its duty of care towards Gun-ter. Contrary to Village Pub's artful argument, however, Gunter's knowledge of that risk cannot be used to extinguish the duty of care Village Pub owed Gunter in the first instance.\\nVillage Pub's argument also fails because its assertions are replete with questions of material fact inappropriate for summary disposition. In light of the designated facts before us, for example, the issues of whether Gunter's name-calling was a provocative act, and, if it was, whether Gunter voluntarily incurred the risks of that act when she called Miller a \\\"hussy'\\\" are both questions for the fact finder. See Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934, 936, trams. denied (the defense of incurred risk is normally a question for the trier of fact).\\nThe trial court's grant of summary judgment in Village Pub's favor is reversed, and the cause is remanded for further proceedings consistent with this opinion.\\nROBERTSON, J., concurs.\\nHOFFMAN, J., dissents with separate opinion.\\n. As defined in Webster's Ninth New Collegiate Dictionary 588 (1988), a \\\"hussy\\\" is a \\\"a lewd or brazen woman\\\" or \\\"a saucy or mischievous girl\\n. We disagree with Judge Hoffman's assessment of the facts in his dissenting opinion. Specifically, the record reveals Miller's threat of arrest was not the only information about Miller's behavior that Gunter reported to Village Pub. Gunter also told the pub that Miller called her a \\\"bitch,\\\" approached her table several times, and Gunter did not want any problems. Record at 187. Based on this testimony, we believe there is a question of fact about whether Miller's attack was foreseeable.\\nTo the extent Judge Hoffman argues a business owner must have knowledge of a patron's specific physical threats before that patron's attack will be considered foreseeable, we believe that standard is much too limiting, and is inconsistent with the case law. As this court enunciated in Welch, supra, at 388, evidence of ill will, belligerence, or even boisterousness may be sufficient to provide notice or warning that an attack is imminent.\"}"
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+"{\"id\": \"10846613\", \"name\": \"Dennis Dewayne GEANS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Geans v. State\", \"decision_date\": \"1993-11-09\", \"docket_number\": \"No. 20A05-9301-CR-002\", \"first_page\": \"435\", \"last_page\": \"439\", \"citations\": \"623 N.E.2d 435\", \"volume\": \"623\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:48:53.881704+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, C.J., and CONOVER, J., concur.\", \"parties\": \"Dennis Dewayne GEANS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"Dennis Dewayne GEANS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 20A05-9301-CR-002.\\nCourt of Appeals of Indiana, Fifth District.\\nNov. 9, 1993.\\nThomas A. Murto, Murto & Holbrook, Goshen, for appellant-defendant.\\nPamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plain-tiff.\", \"word_count\": \"1612\", \"char_count\": \"10066\", \"text\": \"RUCKER, Judge.\\nDennis D. Geans was charged with three counts of Nonsupport of a Child, a Class D felony-one count for each of his three minor children. After a trial by jury Geans was convicted of all charges and received three consecutive eighteen month sentences. Geans now appeals raising three issues for our review which we restate as:\\n1) Whether the evidence was sufficient to sustain the convictions?\\n2) Whether Geans received effective assistance of counsel?\\n3) Whether the trial court erred in imposing sentences on each of the three counts?\\nWe affirm.\\nThe facts most favorable to the judgment reveal that Pamela and Dennis Geans were married September 11, 1971 and divorced July 20, 1990. Pamela Geans was granted custody of the three minor children of the parties, Sean, Aubrea and Lindsay. Dennis Geans was granted the right of reasonable visitation and ordered to pay $199.00 a week in child support. For the first three months after the divorce Geans paid child support on a fairly consistent basis. However, for a nine month period from November, 1990 to July, 1991 he paid no child support. Thus, in August, 1991, Geans was charged with three separate counts of Nonsupport of a Child.\\nAt trial, Geang' ex-wife testified that Ge-ans did not pay child support as ordered by the court although he did purchase various items of clothing and toys for the three children. Geans' son Sean testified that Geans gave him small amounts of money, a pair of boots, and other clothing. Geans' daughter Aubrea testified that she received a dress from her father. Geans took the stand in his own defense and testified that he did not pay court ordered child support during the disputed period because he was unable to do so. Geans confirmed that he purchased various items of clothing for all three children. Geans was convicted as charged and this appeal ensued in due course.\\nI.\\nGeans first contends the evidence is insufficient to support the convictions. According to Geans the State has failed to carry its burden and thus the conviction should be reversed.\\nOur standard of review for sufficiency of the evidence is well-settled. We will neither reweigh the evidence nor judge the credibility of witnesses. We examine only the evidence most favorable to the state along with all reasonable inferences to be drawn therefrom, and, if there is substantial evidence of probative value to support the conviction, it will not be set aside. Litel v. State (1988), Ind., 527 N.E.2d 1114.\\nThe State appears to argue that Geans' failure to pay court ordered child support is sufficient to sustain the convictions. We cannot agree. \\\"Support\\\" in the context of a divorce proceeding is substantially different than \\\"support\\\" in the context of a eriminal proceeding for Nonsupport of a Child. In the former it is strictly a matter of money, dollars and cents. The intentional nonpayment is punishable by contempt of court and could result in the violator's incarceration. See Ind.Code \\u00a7 31-1-11.5-13; Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279. In the latter, money is not directly in issue. Rather, Ind.Code \\u00a7 35-46-1-1 clearly dictates \\\" 'support' means food, clothing, shelter, or medical care.\\\" The distinction is critical.\\nThere is no question that faced with a dissolution order to pay a sum certain in child support, a noncustodial parent cannot discharge that obligation by making voluntary financial contributions to the custodial parent, by paying support directly to the dependent child or by paying expenses for the dependent child. See Bendix v. Bendix (1990), Ind.App., 550 N.E.2d 825, trans. denied (payments made directly to children are non-conforming and do not offset support obligations) O'Neil v. O'Neil (1989), Ind., 535 N.E.2d 523 (father not entitled to credit against support arrearage by reason of his direct contributions to daughter's educational costs). On the other hand, that same parent may escape criminal liability by doing that for which he or she would find no refuge in a dissolution court, namely, providing a dependent child with food, clothing, shelter or medical care. However, to escape criminal liability the parent must provide more than a mere token amount of support. Shuttleworth v. State (1984), Ind.App., 469 N.E.2d 1210, 1214.\\nThe record reveals that Geans provided some support in the form of clothing to each of his dependent children. The total amount of support provided however was minimal at best. Although substantial amounts of food, clothing and shelter may preclude criminal liability, the token amounts provided in this case are simply not enough to avoid prosecution. The State presented sufficient evidence to show that Geans failed to support his dependent children.\\n18\\nNext, Geans contends the trial court erred in imposing sentences on each of the three convictions. According to Ge-ans his alleged failure to provide support is a single act and thus only one offense was committed. We disagree. Ind.Code \\u00a7 85-46-1-5 dictates in relevant part, \\\"[A] person who knowingly or intentionally fails to provide support to his dependent child commits nonsupport of a child, a Class D felony.\\\" The test for determining whether separate sentences may be imposed upon multiple counts is whether the charged offenses are themselves the same and not whether they arose from the same criminal act or course of conduct. Henderson v. State (1989), Ind., 534 N.E.2d 1105, 1106. Here, the charged offenses are not the same. There are three separate victims, Sean, Aubrea, and Lindsey, each of whom is entitled to support. Three separate crimes were committed. It was not error for the trial court to impose separate sentences for each offense.\\nIIL\\nFinally, Geans contends that he was denied effective assistance of counsel. In support of his claim Geans directs our attention to portions of his ex-wife's testimony accusing him of battery, residential entry, theft and harassment. According to Geans this evidence of prior bad acts was inadmissible and his trial counsel rendered ineffective assistance for not objecting to it.\\nWhen reviewing a claim of ineffective assistance of counsel, we initially presume that counsel's representation was within the wide range of reasonable professional assistance. Dillon v. State (1986), Ind., 492 N.E.2d 661. On appeal of a criminal conviction the defendant has the burden to rebut the presumption of competency with strong and convincing evidence. Burr v. State (1986), Ind., 492 N.E.2d 306. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show 1) counsel's representation was deficient and 2) the deficient performance so prejudiced the defendant as to deprive him of a fair trial. Steele v. State (1989), Ind., 536 N.E.2d 292, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We will not reverse unless defendant established that but for counsel's errors, the result of the proceeding would have been different. Steele, 536 N.E.2d at 293.\\nWhen an ineffective assistance claim is based on counsel's failure to object, the defendant must show the objection would have been sustained if timely made. Grigsby v. State (1987), Ind., 503 N.E.2d 394. In this case Geans has not made the requisite showing.\\nThe record here reveals the testimony concerning Geans' battery of Pamela was introduced to explain her reason for obtaining a divorcee. The testimony concerning Geans' alleged harassment of his ex-wife and his possible residential entry, which involved Geans allegedly taking property belonging to his ex-wife, was part of the story explaining Geans' reason for refusing to pay court ordered child support. Apparently, Geans' ex-wife asked a male companion to live in her home. Geans learned of the companion's presence and discontinued paying the court ordered support. According to the ex-wife, her actions were motivated by fear of Geans; he apparently had been harassing his ex-wife, had broken into her home, and had removed items belonging to her.\\nWhere evidence of prior bad acts completes the story of events surrounding the commission of an offense, then the evidence may be properly admitted as part of the res gestae of the crime. Benefiel v. State (1991), Ind., 578 N.E.2d 338, 346, cert. denied (1992), \\u2014 U.S. \\u2014, 112 S.Ct. 2971, 119 L.Ed.2d 591. Thus, even if trial counsel had objected to the now challenged testimony, the objection would have been properly overruled. However, even assuming the testimony was properly objectionable, Geans' argument must nonetheless fail. Geans has not shown that but for counsel's errors, the result of the proceeding would have been any different. Steele, 536 N.E.2d at 293. The evidence in this case overwhelmingly shows that Geans did not support his children during the disputed period. Geans focused his defense on his inability to pay. The jury apparently rejected the defense. Accordingly, Geans has failed to demonstrate that he received ineffective assistance of counsel.\\nJudgment affirmed.\\nSHARPNACK, C.J., and CONOVER, J., concur.\\n. The statement of facts in Geans' brief is a summary of each witnesses' trial testimony. We have repeatedly stated that the appellate rules contemplate a narrative statement of the facts; a witness by witness summary of the testimony is not a statement of facts within the meaning of Ind.App. Rule 8.3(A)(5). Hoover v. State (1991), Ind.App., 582 N.E.2d 403, adopted (1992), Ind., 589 N.E.2d 243. We admonish counsel that failure to abide by the rules of procedure may result in waiver of issues presented for review.\\n. Ind.Code \\u00a7 35-46-1-5(d) dictates in relevant part \\\"[IJt is a defense that the accused person was unable to provide support.\\\"\"}"
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diff --git a/ind/10878118.json b/ind/10878118.json
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+"{\"id\": \"10878118\", \"name\": \"Billy W. EDRINGTON and Christine L. Edrington, Appellants-Plaintiffs, v. RUSH COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant\", \"name_abbreviation\": \"Edrington v. Rush County Board of Commissioners\", \"decision_date\": \"1995-03-30\", \"docket_number\": \"No. 70A01-9410-CV-339\", \"first_page\": \"397\", \"last_page\": \"399\", \"citations\": \"648 N.E.2d 397\", \"volume\": \"648\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T18:46:38.217835+00:00\", \"provenance\": \"CAP\", \"judges\": \"NAJAM and CHEZEM, JJ., concur.\", \"parties\": \"Billy W. EDRINGTON and Christine L. Edrington, Appellants-Plaintiffs, v. RUSH COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant.\", \"head_matter\": \"Billy W. EDRINGTON and Christine L. Edrington, Appellants-Plaintiffs, v. RUSH COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant.\\nNo. 70A01-9410-CV-339.\\nCourt of Appeals of Indiana, First District.\\nMarch 30, 1995.\\nRonald L. Wilson, Badell & Wilson, Rush-ville, for appellants.\\nDavid E. Northam, Earnest, Foster, Eder, Levi & Northam, Rushville, for appellee.\", \"word_count\": \"1045\", \"char_count\": \"6348\", \"text\": \"OPINION\\nBAKER, Judge.\\nAppellants-plaintiffs Billy and Christine Edrington appeal the trial court's grant of summary judgment in favor of appellee-de-fendant Rush County Board of Commissioners (Board).\\nFACTS\\nThe undisputed facts are that the Edring-tons are the owners of real estate located in the Stackhouse Park subdivision in Rush County, Indiana. The streets and alleys in the subdivision, including Elizabeth Street which intersects the Edringtons' property and an alley adjacent to their property, were dedicated to public use upon the recording of the plat in 1898 by a distant prior owner.\\nOn August 24, 1998, the Edringtons filed an action for declaratory relief, seeking a judicial determination that Elizabeth Street and the alley adjacent to their property had been vacated due to non-use for over six years, pursuant to IND.CODE \\u00a7 8-20-1-16 (the six-year statute). The complaint was filed against the Board, which is the local governing body having jurisdiction over roads and alleys located in Rush County. Subsequently, the Edringtons filed a motion for summary judgment claiming that the street and the alley were vacated due to non-use by operation of the six-year statute. In response, the Board filed a cross-motion for summary judgment asserting that the statute was inapplicable. After a hearing, the trial court granted the Board's motion for summary judgment and denied the Edringtons' motion for summary judgment, holding that the six-year statute does not apply to the facts of the case.\\nDISCUSSION AND DECISION\\nThe Edringtons appeal the denial of their motion for summary judgment and the grant of the Board's motion for summary judgment. Summary judgment shall be granted where the designated evidentiary matter shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C), Hermann v. Yater (1994), Ind.App., 631 N.E.2d 511, 518. On appeal, we are bound by the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage. Id. Since the parties do not dispute any material facts, our review is confined solely to a question of law. Ed Wiersma Trucking Co. v. Pfaff, (1994), Ind. App., 648 N.E.2d 909, 910.\\nThe question of law which the trial court determined and which we now review is whether the six-year statute operates to vacate the street and the alley on the Edring-tons' property. IC. \\u00a7 8-20-1-16 provides:\\nEvery public highway already laid out, or which may hereafter be laid out, and which shall not be opened and used within six (6) years from the time of its being so laid out, shall cease to be a highway for any purpose whatever; but if any distinct part thereof shall have been opened and used within six (6) years, such part shall not be affected by the provisions of this section, nor shall this section be applied to streets and alleys in any city or town.\\nThe Edringtons contend that pursuant to LC. \\u00a7 8-20-1-16, Elizabeth Street and the alley are no longer public roadways because they have not been used or developed for over six years. In support of their contention, the Edringtons presented an affidavit of John Wilson in which he stated that the street and the alley had not been used or developed between 1970 and 1990 when he owned the property. Recognizing that the six-year statute was repealed in 1988, the Edringtons assert that because the street and the alley were not used between 1970 and 1988, a period obviously exceeding six years, they have ceased being public roadways by operation of law under the statute.\\nThe parties do not dispute that Elizabeth Street and the alley adjacent to the Edringtons' property were voluntarily dedicated to public use upon the recording of the plat by the property owners in 1898. However, the six-year statute does not apply when a landowner voluntarily dedicates his land to public use as in the present case. Smith v. State, (1940), 217 Ind. 648, 29 N.E.2d 786. Rather, the statute applies where the property in question was laid out as a public roadway by the Board of County Commissioners through condemnation proceedings. Id.; Columbia Realty Corp. v. Harrelson, (1978), 155 Ind.App. 604, 614, 298 N.E.2d 804, 810. As our supreme court noted in Smith, the six-year statute is \\\"a part and parcel of a statute authorizing the con demnation of real estate by proceedings had on petition filed with the board of commissioners of the county....\\\" Smith, 217 Ind. at 647, 29 N.E.2d at 788. See also, Smolek v. Board of County Comm'rs of Pulaski County, (1979), 179 Ind.App. 608, 606, 386 N.E.2d 997, 1000 (the six-year statute does not apply where the roadway was established by public usage rather than through the actions of the Board of Commissioners).\\nAs our supreme court held in 1940, we reiterate today that I.C. $ 8-20-1-16 does not apply where a landowner has voluntarily dedicated his land to public use. Thus, because the street and the alley were established by a landowner's voluntary dedication of the property to public use, rather than by an action of the Board, the six-year statute does not apply. Accordingly, the trial court properly granted the Board's motion for summary judgment and denied the Edring-tons' motion for summary judgment.\\nJudgment affirmed.\\nNAJAM and CHEZEM, JJ., concur.\\n. This statute was repealed in 1988.\\n. LC. \\u00a7 8-20-1-16 refers to use \\\"within six (6) years from the time of its being so laid out\\\". Thus, if the statute were to apply in this case, the relevant six-year time period would be 1893-1899. There is no evidence in the record, however, regarding the use of the street and the alley during that time period.\\n. However, as the trial court noted, landowners such as the Edringtons are not without a remedy. IND.CODE \\u00a7 36-7-3-12 provides procedures for the vacation of a public way or public place upon petition. These procedures include notice to interested parties and a hearing on the petition.\"}"
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diff --git a/ind/10914090.json b/ind/10914090.json
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index 0000000000000000000000000000000000000000..9e6a06482ac1be67b654b93c7022b8a2e4dd6c86
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+"{\"id\": \"10914090\", \"name\": \"OSCO, INC., Appellant-Defendant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee-Plaintiff\", \"name_abbreviation\": \"Osco, Inc. v. St. Paul Fire & Marine Insurance Co.\", \"decision_date\": \"1995-10-25\", \"docket_number\": \"No. 46A03-9503-CV-95\", \"first_page\": \"548\", \"last_page\": \"550\", \"citations\": \"656 N.E.2d 548\", \"volume\": \"656\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:47:33.309509+00:00\", \"provenance\": \"CAP\", \"judges\": \"BAKER and KIRSCH, JJ., concur. |\", \"parties\": \"OSCO, INC., Appellant-Defendant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee-Plaintiff.\", \"head_matter\": \"OSCO, INC., Appellant-Defendant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee-Plaintiff.\\nNo. 46A03-9503-CV-95.\\nCourt of Appeals of Indiana.\\nOct. 25, 1995.\\nLaurence A. McHugh, Joseph R. Fullen-kamp, Kimberly D. Finlaw, Barnes & Thorn-burg, Indianapolis, for appellant.\\nJohn C. Hamilton, Doran, Blackmond, Ready Hamilton & Williams, South Bend, Stephen M. Kelley, Timothy J. Clarke, Donald J. Parthum, Jr., Kelley, Casey, & Clarke, P.C., Grosse Pointe Woods, Michigan, for appellees.\", \"word_count\": \"1052\", \"char_count\": \"6708\", \"text\": \"OPINION\\nROBERTSON, Judge.\\nOsco Inc., a business engaged in hauling waste oil, became Hable for pollution damage/environmental contamination to two Superfund sites under the Comprehensive Environmental Response Compensation and Liability Act [CERCLA]. Osco's insurer, the St. Paul Fire and Marine Insurance Company, initiated the present declaratory judgment action arguing Osco's claim was exelud-ed under the pollution exclusions of the insurance policies in question.\\nThe trial court entered judgment in favor of St. Paul on the issue of its duty to indemnify Osco for its CERCLA lability, and Osco appeals. The trial court entered judgment in favor of Osco on the issue of St. Paul's duty to defend Osco in the CERCLA matter and St. Paul appeals.\\nWe affirm the judgment in favor of St. Paul on the issue of the duty to indemnify. We reverse the judgment in favor of Osco on the issue of the duty to defend and reverse and remand with instructions that the trial court enter judgment in favor of St. Paul.\\nFACTS\\nThe operative facts are not disputed. Osco became obligated to pay damages under CERCLA with respect to environmental contamination at two Superfund sites for its part in hauling waste oil to these sites over the years. Both Superfund sites had been contaminated by the storage of waste oil in unlined lagoons and other storage methods that permitted the release of hazardous waste into the environment over a period of years.\\nOver the relevant years, Osco had had several insurance policies issued by St. Paul. Several of the policies involved in the present case had a standard pollution exclusion clause which read as follows:\\nThis insurance does not apply:\\n*# a\\nto bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalies, toxic chemicals, liquids, contaminants or pollutants into or on land, the atmosphere or any water course or body of water; but this exelusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.\\n(Emphasis added). One policy had the following exclusion:\\nPollution. We won't cover injury or damage caused by the discharge, dispersal, release or escape of pollutants such as.... This exelusion won't apply to sudden accidents involving pollutants.\\n(Emphasis added).\\nSt. Paul refused to defend or indemnify Oseo for the CERCLA liability and initiated the present declaratory judgment action. The matter was submitted to the trial court on cross motions for summary judgment. As noted above, the trial court entered judgment in favor of St. Paul on the issue of indemnification and entered judgment in favor of Osco on the issue of the duty to defend. Both parties have appealed (or cross-appealed) the respective judgments entered against them.\\nDECISION\\nOsco urges that the pollution exclusion does not operate because the term \\\"sudden\\\" does not involve a temporal element {does not mean \\\"quick\\\") and simply means an \\\"unexpected\\\" loss. Osco points out that some jurisdictions have adopted this interpretation and urge us to implement this interpretation.\\nHowever, the parties agree that Tennessee law governs the interpretation of the insurance policies in question. As such, the case of United States Fidelity & Guaranty Company v. Murray Ohio Manufacturing Company (M.D.Tenn.1988), 693 F.Supp. 617, affirmed 875 F.2d 868 (6th Cir.1989), guides our decision in the present case. The Murray eourt held that, with respect to the type of standard pollution exclusions involved in the present case, the term \\\"sudden\\\" combines both the idea of \\\"unexpected\\\" and the idea of \\\"quick.\\\" Id. at 621. The Murray court declined to read the temporal connotation out of the term \\\"sudden\\\" that it possesses in its everyday use. Id. Accordingly, the Murray court held that the pollution exclusion operated such that the insurance company had neither the duty to indemnify or defend the company faced with CERCLA lability for environmental contamination that had taken place over a period of years. Id. at 628.\\nOsco argues that it is covered under some of the St. Paul policies due to a \\\"broadening endorsement\\\" that provides coverage for personal injury claims due to wrongful entry or eviction, or other invasion of the right of private occupancy. We disagree. The pollution damage involved in the present case is not the type of personal injury covered under the endorsement and, in any event, the pollution exclusion of the policies in question nevertheless operates to deny coverage for the type of pollution damage involved in the present case. See Titan Corporation v. Aetna Casualty and Surety Company (1994), 22 Cal.App.4th 457, 27 Cal.Rptr.2d 476 (Pollution damage does not equate to personal injury an occupier of land might suffer when his right of occupancy was disturbed; such interpretation would negate the pollution exclusion); Accord O'Brien Energy Systems v. American Employers' Insurance Company (1993), 427 Pa.Super. 456, 629 A.2d 957, appeal denied; Gregory v. Tennessee Gas Pipeline Company (5th Cir.1991), 948 F.2d 203; American Universal Insurance Company v. Whitewood Custom Treaters, Inc. (D.S.D.1989), 707 F.Supp. 1140 (pollution exclusion carries over into the endorsement providing \\\"personal injury\\\" liability coverage).\\nCONCLUSION\\nThe pollution damage at the Superfund sites involved in the present case was caused by the storage of waste oil in unlined lagoons and other areas which permitted the oil to contaminate the environment over a period of years. Accordingly, the pollution exclusions of the St. Paul policies operate and St. Paul has neither the duty to defend nor indemnify Osco with respect to the CERCLA claims involved in the present case. Therefore, we affirm the judgment of the trial court with respect to the issue of the duty to indemnify. We reverse the judgment with respect to the issue of the duty to defend and reverse and remand with instructions that the trial court enter judgment in favor of St. Paul.\\nBAKER and KIRSCH, JJ., concur. |\\n. Indiana law requires the same result. Seymour Manufacturing Company, Inc. v. Commercial Union Insurance Company (1995), Ind.App., 648 N.E.2d 1214, 1219-20, trans. pending.\"}"
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+"{\"id\": \"10929590\", \"name\": \"In re The Marriage of Vickie G. (Taylor) FRIAR, Appellant (Petitioner), v. Joel L. TAYLOR, Appellee (Respondent)\", \"name_abbreviation\": \"Marriage of Friar v. Taylor\", \"decision_date\": \"1989-11-02\", \"docket_number\": \"No. 18A02-8902-CV-040\", \"first_page\": \"599\", \"last_page\": \"601\", \"citations\": \"545 N.E.2d 599\", \"volume\": \"545\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:07:53.353733+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONOVER, J., concurs.\", \"parties\": \"In re The Marriage of Vickie G. (Taylor) FRIAR, Appellant (Petitioner), v. Joel L. TAYLOR, Appellee (Respondent).\", \"head_matter\": \"In re The Marriage of Vickie G. (Taylor) FRIAR, Appellant (Petitioner), v. Joel L. TAYLOR, Appellee (Respondent).\\nNo. 18A02-8902-CV-040.\\nCourt of Appeals of Indiana, Second District.\\nNov. 2, 1989.\\nL. Ross Rowland, Lapin, Rowland & Doyle, Muncie, for appellant.\\nDonald H. Dunnuck, Dunnuck, Teagle & Hunt, Muncie, for appellee.\", \"word_count\": \"1351\", \"char_count\": \"8202\", \"text\": \"BUCHANAN, Judge.\\nCASE SUMMARY\\nPetitioner-appellant Vickie Friar (Vickie) appeals from the dissolution of her marriage to Joel Taylor (Joel), elaiming the trial court erred when it granted custody of Vickie's two youngest children to Joel, claiming they were not children of the marriage within the meaning of Ind.Code IC 81-1-11.5-2(c) (1988).\\nWe reverse.\\nFACTS\\nThe facts most favorable to the judgment reveal that the parties were married on February 5, 1970. Two children were born to the parties, and one died in 1981. The surviving child, Curtis, was born July 27, 1974. Joel underwent a vasectomy after Curtis was conceived. The vasectomy was checked one month after it was performed, and again a year later, and was found to have taken effect.\\nOn April 28, 1981, Vickie gave birth to her first daughter. On December 17, 1983, Vickie gave birth to her second daughter. Vickie admitted she committed adultery, and admitted Joel was not the father of the children. Vickie claimed that Joel had agreed to her plan to become impregnated by a third party, but Joel vehemently denied that claim.\\nVickie petitioned for dissolution on January 4, 1988, alleging all three children were children of the marriage. On January 15, 1988, Vickie was given provisional custody of the children and Joel was ordered to pay $80 per week in child support.\\nOn April 18, 1988, Joel filed for a blood grouping test of the children and the parties. On August 3, 1988, Joel filed a motion for relief from the January 15th temporary support order, claiming he was not the father of the two youngest children, and submitted the results of the blood test which showed a 00.00 percent probability he was the father of the two youngest children. On August 4, Vickie amended her petition for dissolution to reflect only one child of the marriage. On August 29, a judge pro-tem granted Joel's motion for relief, and reduced Joel's child support obligation to $40 per week. At a hearing on Joel's motion, both parties agreed Joel was not the father of the two youngest children.\\nA final hearing was held on September 26, 1988, and Joel indicated at that time he was not seeking custody of his child, Curtis. The trial court issued its findings on September 28, and signed the decree of dissolution on October 14, 1988. In the decree, the trial court determined that all three surviving children were \\\"born of the marriage,\\\" and gave custody of all three to Joel. The court also divided the property, giving the marital residence to Joel and a lien on the residence to Vickie to the extent of her equity in the property.\\nISSUE\\nVickie raises several issues. Because we reverse we only consider:\\nWhether the trial court erred when it awarded Joel custody of the two youngest children?\\nDECISION\\nPARTIES' CONTENTIONS-Vickie argues that the two children were not children of the marriage under the statute, and therefore the trial court could not determine their custody. Joel responds that equitable considerations support the custody award and therefore the trial court's action was proper.\\nCONCLUSION-The trial court committed reversible error in granting custody of the two youngest children to Joel.\\nThe statute defining the term \\\"child\\\" is a model of clarity for our purpose. It, IC 81-1-11.5-2(c), provides:\\n\\\"The term 'child' means a child or children of both parties to the marriage and includes children born out of wedlock to the parties as well as children born or adopted during the marriage of the parties.\\\" (Emphasis supplied.)\\nWe need no rule of construction to interpret such plain meaning. \\\"Both\\\" means both. To conclude otherwise is to mutilate the statute beyond recognition.\\nThis statute, enacted in 1985, was interpreted by the Indiana Supreme Court in 1987. Speaking for a unanimous court in State ex rel. McCarroll v. Marion County Superior Court No. 1 (1987), Ind., 515 N.E.2d 1124, 1125, Justice Givan said:\\n\\\"In the case at bar, Heather is not a child of both parties. She was not born out of wedlock to the parties nor had she been adopted by Kenneth at the time the respondent ordered custody to Virginia Brundage.\\nTherefore, we find that Heather is not 'a child' of the marriage of relator and Kenneth under Ind.Code \\u00a7 31-1-11.5-2 and 31~-1-11.5-7. Consequently, the respondent court exceeded its jurisdiction by ordering the custody of Heather to Virginia Brundage.\\\"\\nThus they concluded that the term \\\"child\\\" referred only to a child of both parties.\\nIn his motion for relief from the temporary support order, Joel asserted that the results of the blood tests ordered by the court revealed that there was a 00.00 percent probability that he was the biological father of the two youngest children. Record at 59-60. He testified that the blood tests conclusively determined he was not the biological father of the two youngest children, record at 166, and he concedes on appeal that he is not the biological father of the two youngest children. Appellee's Brief at 9. The trial court could not award Joel custody of the two youngest children under these cireumstances.\\nJoel argues that the equitable doctrines discussed in R.D.S. v. S.L.S. (1980), Ind.App., 402 N.E.2d 30 (Buchanan, J. dissenting), give the trial court the authority to award custody to him. While Joel makes a compelling argument that the burden of supporting the children should be imposed upon him, we cannot conclude these equitable doctrines extend the jurisdiction of the trial court and allow it to determine the custody of the two youngest children.\\nHis argument is that because he assumed the position of in loco parentis the trial court could award him custody. That doctrine, however, was developed to impose the obligation of support upon a man who intends to continue his relationship with children with whom he has assumed a parental status. The supreme court, in McCarroll, in effect determined that the trial court in a dissolution proceeding lacks the jurisdiction to determine the custody of children who are not children of both parties.\\nLastly, we must consider Vickie's contention as to the property division. In this regard there is IC 81-1-11.5-11(c)(8) (1988):\\n\\\"'The economic cireumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the fomily residence or the right to dwell in that residence for such periods as the court may deem just to the spouse having custody of any children.\\\" (Emphasis supplied.)\\nThe trial court in awarding custody of all of the children to Joel also gave him the family residence. In view of this error the whole property division question should be redetermined.\\nThe trial court's judgment is reversed and this cause is remanded for further proceedings consistent herewith.\\nCONOVER, J., concurs.\\nSULLIVAN, J., concurs with opinion.\\n. Ind.Code 31-6-6.1-8 (1988) provides, in pertinent part:\\n\\\"(a) Upon the motion of any party, the court shall order all the parties to the action to undergo blood testing. The tests shall be performed by a qualified expert approved by the court.\\n(b) The results of the tests, together with the finding of the expert constitute conclusive evidence if the results and finding exclude a party as the biological father of the child. The results and finding are admissible in all paternity proceedings, unless the court excludes the results for finding for good cause....\\\"\"}"
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+"{\"id\": \"10932270\", \"name\": \"Jerry W. KELLY, Appellant, v. STATE of Indiana, Appellee\", \"name_abbreviation\": \"Kelly v. State\", \"decision_date\": \"1989-06-01\", \"docket_number\": \"No. 52S02-8906-CR-433\", \"first_page\": \"25\", \"last_page\": \"26\", \"citations\": \"539 N.E.2d 25\", \"volume\": \"539\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:29:10.933528+00:00\", \"provenance\": \"CAP\", \"judges\": \"~ SHEPARD, CJ., and DICKSON, J., concur.\", \"parties\": \"Jerry W. KELLY, Appellant, v. STATE of Indiana, Appellee.\", \"head_matter\": \"Jerry W. KELLY, Appellant, v. STATE of Indiana, Appellee.\\nNo. 52S02-8906-CR-433.\\nSupreme Court of Indiana.\\nJune 1, 1989.\\nSusan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, India napolis, for appellant.\\nLinley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.\", \"word_count\": \"450\", \"char_count\": \"2795\", \"text\": \"DeBRULER, Justice.\\nAppellant Kelly was convicted on two counts and received consecutive eight (8) and (4) year sentences. The first was for operating while intoxicated, resulting in death, I.C. 9-11-2-2 and I.C. 9-11-2-5, the other for operating while intoxicated causing injury, I.C. 9-11-2-4. The Court of Appeals, Second District, affirmed the former and reversed the latter in an opinion appearing as Kelly v. State (1988), Ind.App., 527 N.E.2d 1148. Both parties have filed petitions to transfer. They are granted.\\nThe trial below was to the court upon a stipulation of facts. Kelly was intoxicated and, in such state, drove his semi-tractor into a small convoy consisting of two tractors and a pickup truck, each being driven by a member of the Wood family, killing one and injuring another.\\nOn appeal, Kelly made the following claims:\\n1. His consent to trial on the Stipulation as to Testimony was involuntary,\\n2. He received ineffective assistance from trial counsel,\\n3. His sentences were improper.\\nIn resolving the challenge to the sentences, the Court of Appeals concluded that there had been but a single accident that had resulted in the death and the personal injury, and that there had been but a single violation of 1.C. 9-11-2-2, the statute defining the crime of operating a vehicle while intoxicated. The court concluded that the legislative intent found in the language and construction of the statute is that where multiple egregious results are produced in a single accident by an intoxicated driver, such results do not increase the number of crimes, only the severity of the penalty. This interpretation of the statute and this application of the statute by the Second District is a true reading of the statute.\\nThe Second District also resolved the remaining claims of appellant Kelly against him in a correct manner. Accordingly this Court does now, per Justices DeBruler and Dickson and Chief Justice Shepard, pursuant to Appellate Rule 11, order that the opinion of the Second District not be vacated or held for naught, but instead that it be and now hereby is in all respects summarily affirmed. Justices Givan and Pivarnik vote to grant transfer and affirm the trial court in all respects, as they read the provisions of this same statute as calling for multiple crimes where multiple injuries or deaths occur as they did in this instance.\\nSummary affirmance ordered.\\n~ SHEPARD, CJ., and DICKSON, J., concur.\\nGIVAN and PIVARNIK, JJ., dissent.\"}"
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+"{\"id\": \"10935211\", \"name\": \"In the Matter of the ESTATE OF Elizabeth D. COOK, Deceased\", \"name_abbreviation\": \"In re the Estate of Cook\", \"decision_date\": \"1988-10-25\", \"docket_number\": \"No. 70A01-8805-CV-170\", \"first_page\": \"853\", \"last_page\": \"855\", \"citations\": \"529 N.E.2d 853\", \"volume\": \"529\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:58:41.559688+00:00\", \"provenance\": \"CAP\", \"judges\": \"RATLIFF, C.J., and SULLIVAN, J., concur.\", \"parties\": \"In the Matter of the ESTATE OF Elizabeth D. COOK, Deceased.\", \"head_matter\": \"In the Matter of the ESTATE OF Elizabeth D. COOK, Deceased.\\nNo. 70A01-8805-CV-170.\\nCourt of Appeals of Indiana, First District.\\nOct. 25, 1988.\\nLinley E. Pearson, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellant.\\nRobert J. Eder, Earnest, Foster, Eder, Levi & Northam, Rushville, for appellee.\", \"word_count\": \"1055\", \"char_count\": \"6572\", \"text\": \"NEAL, Judge.\\nSTATEMENT OF THE CASE\\nThe Indiana Department of State Revenue, Inheritance Tax Division (the State), appeals an adverse judgment entered by the Rush Circuit Court denying its petition for rehearing and redetermination of tax.\\nWe affirm.\\nSTATEMENT OF THE FACTS AND ISSUE\\nElizabeth D. Cook (the decedent) died testate after which her last will and testament naming her only heir, her son, Charles E. Cook (Cook), as sole beneficiary and executor was admitted to probate on October 2, 1986. The court appointed Cook executor and authorized administration without supervision. During the administration of the estate, Cook, acting under his authority as executor, sold the decedent's real estate located in Rushville, Indiana, utilizing the services of a realtor and an abstractor. The expenses for the services of the realtor and abstractor, $3,850 and $290 respectively, were listed as a deduction under Schedule D in the schedule of all property. Cook stated that the reason for the sale was that he lived in Crown Point and the Rushville property was of no use to him as he had no experience in handling rentals. The proceeds of 'the sale were ultimately distributed to Cook personally upon final settlement of the estate.\\nThe State challenges the inclusion of the realtor and abstractor's fees in Schedule D. Exclusion of those fees would increase the estate tax liability $207.\\nDISCUSSION AND DECISION\\nWhere a personal representative is authorized to proceed with unsupervised administration, he has the power to sell estate real estate at public or private sale and employ agents and persons to assist him. He has the power to pay all expenses incurred in the administration of the estate. IND. CODE 29-1-7.5-8. Under IND. CODE 29-1-15-21 a personal representative may employ a broker and incur abstract fees in selling real estate. Making distribution of the estate or any part thereof is a proper basis for a sale of real estate. IND. CODE 29-1-15-3(f). The power of the unsupervised personal representative to employ personnel to assist him in disposing of estate property is limited only to that which the court determines to be reasonable. 1B G. Henry, Probate Law and Practice at 605 (Tth ed. 1978).\\nIND. CODE 6-4.1-8-18 permits certain deductions from the gross estate for inheritance tax purposes.\\n(a) For purposes of this section, the term \\\"property subject to the inheritance tax\\\" means property transferred by a decedent under a taxable transfer.\\n(b) The following items, and no others, may be deducted from the value of property interests transferred by a resident decedent under his will, under the laws of intestate succession, or under a trust:\\n(9) Expenses incurred in administering property subject to the inheritance tax, including but not limited to reasonable attorney fees, personal representative fees, and trustee fees;\\nConceding that Indiana has no statute or case which so holds, the State argues that a sole heir-executor may not deduct the expenses of selling real estate where the sale was for his benefit and not for the benefit of the estate. It argues that an ambiguity exists in the statutory scheme, in which case we must construe it against the party claiming the deduction. Matter of Estate of Pfeiffer (1983), Ind.App., 452 N.E.2d 448. The State further claims that an expense that is not actually necessary for the settlement of the estate does not constitute an administrative expense for tax purposes. Hence, it concludes that the expenses incurred here were for the benefit of the sole heir and not the estate. Thus, it does not qualify as a Schedule D deduction.\\nWe accept the argument that costs and expenses of administration are generally considered those necessary in the administration of the estate, and that only proper expenses are eligible for Schedule D deductions. We agree that excessive expenses or those incurred in matters not connected with the estate are not deductible: However, we reject the contention that reasonable expenses incurred in selling the property of the estate are deductible only if the sale is absolutely necessary in order to pay the decedent's debts, expenses of administration, taxes, expenses necessary to preserve the estate, or to effect distribution.\\nIn order to resolve this case we need not engage in statutory construction or analyze minutely the cases from other jurisdictions and the statutes upon which they were decided, for the statutory scheme in Indiana is clear and unambiguous. In re Estate of Coffman (1979), 181 Ind.App. 348, 391 N.E.2d 861. The determination and collection of inheritance taxes and the rights and obligations of both the Department of State Revenue and the taxpayers are governed exclusively by statute. Indiana Department of State Revenue v. Estate of Rogers (1984), Ind.App., 459 N.E.2d 69.\\nIn this instance the executor was empowered by statute to sell the real estate in order to make distribution. The statute does not, as urged by the State, impose any limitation upon that power because only one beneficiary existed instead of several. The statutes authorize him to incur these expenses. The fees charged are not al leged to be unreasonable. In plain words, the statute provides that expenses incurred in administering property subject to inheritance tax are deductible, Consequently, realtor and abstract fees are deductible.\\nAll experienced probate practitioners are aware that in the administration of estates decisions are commonly made which reflect the personal desires of the beneficiaries and are not governed by some stark necessity. Such decisions include the desire of a widow or heir or multiple heirs, to distribute a going business in kind or sell it, cash securities or keep them, and sell real estate or personal property where retaining it is inconvenient, cumbersome, or impractical. The interest of the estate normally parallels that of the beneficiaries. If the legislature had desired that expenses incurred as a result of these judgment matters be excluded from Schedule D deductions, it would have said so. It did not. It is not our prerogative to enlarge upon the legislative policy. ~\\nFor the above reasons, this cause is affirmed.\\nJUDGMENT AFFIRMED.\\nRATLIFF, C.J., and SULLIVAN, J., concur.\"}"
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+"{\"id\": \"10975637\", \"name\": \"DEARBORN FABRICATING AND ENGINEERING CORP., INC,, Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below)\", \"name_abbreviation\": \"Dearborn Fabricating & Engineering Corp. v. Wickham\", \"decision_date\": \"1990-03-27\", \"docket_number\": \"No. 71S03-9003-CV-228\", \"first_page\": \"1135\", \"last_page\": \"1139\", \"citations\": \"551 N.E.2d 1135\", \"volume\": \"551\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:46:05.706343+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur.\", \"parties\": \"DEARBORN FABRICATING AND ENGINEERING CORP., INC,, Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below).\", \"head_matter\": \"DEARBORN FABRICATING AND ENGINEERING CORP., INC,, Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below).\\nNo. 71S03-9003-CV-228.\\nSupreme Court of Indiana.\\nMarch 27, 1990.\\nR. Kent Rowe, Jerry E. Huelat, Martin J. Gardner, Rowe, Foley & Huelat, South Bend, for appellant.\\nDouglas A. Mulvaney, Stutsman Law Office, Elkhart, for appellees.\", \"word_count\": \"2273\", \"char_count\": \"14151\", \"text\": \"DICKSON, Justice.\\nThis case presents a question of first impression in Indiana: whether a minor child has an independent claim for loss of parental consortium when a parent is negligently injured by a third person. The trial court and the Court of Appeals held that minor children may assert such a claim. Dearborn Fabricating and Eng'g Corp. v. Wickham (1988), Ind.App., 582 N.E.2d 16.\\nWilliam D. Wickham; his wife, Pamela; and their two children, Le Ann and Jennifer, filed a complaint against Dearborn Fabricating and Engineering Corp. seeking damages for personal injuries William sustained when he fell through a hole in a catwalk. Count VII alleged a cause of action on behalf of Le Ann and Jennifer for the loss of the support, services, society and companionship of their father. < Dear-born filed a motion to dismiss Count VII for failure to state a claim for relief. The trial court granted the motion in part by striking the word \\\"support\\\" (which the Wickhams do not challenge) and denied the motion as to the balance of the allegations. Id.\\nWriting for the Third District Court of Appeals, Judge Staton, with Judges Gar-rard and Miller concurring, noted that seven states since 1980 have recognized the action, but that thirty-three jurisdictions still refuse to do so. Id. See also Annotation, Child's Right of Action for Loss of Support, Training, Parental Attention, or the Like, Against a Third Person Negligently Injuring Parent, 11 AL.R.Ath 549 (1982). After identifying five arguments advanced by those courts declining to recognize the cause of action, the Court of Appeals opinion succinetly evaluated each argument with sound reasoning and concluded that Indiana should recognize a minor's cause of action for loss of consortium when the parent is negligently injured by a third party. Since its decision in Dear-born, the Third District Court of Appeals, comprised of a panel of judges different from those in Dearborn, decided Bourton-Malow Co., Inc. v. Wilburn (1989), Ind. App., 547 N.E.2d 1128, in which Judges Hoffman and Shields (Staton, J., dissenting on this issue) declined to follow Dearborn, preferring to leave the issue for legislative resolution. To the contrary, we find the question of whether the common law should recognize a child's action for loss of parental consortium to be entirely appropriate for judicial determination. We grant transfer to review this new question of law.\\nOne of the strongest arguments favoring the recognition of damages for loss of parental consortium is its similarity to damages customarily allowed for others with analogous claims. In the converse of the present facts, injuries to a child will entitle a parent to seek damages for loss of the child's services, society, and companionship. School City of Gary v. Claudio (1980), Ind.App., 418 N.E.2d 628. Similarly, an injured person's spouse may bring an action for loss of consortium. Troue v. Marker (1969), 258 Ind. 284, 252 N.E.2d 800 (wife's claim)} Burk v. Anderson (1952) 282 Ind. 77, 109 N.E.2d 407 (husband's claim). Absent overriding considerations, relationship losses suffered by a child of an injured person should receive comparable treatment.\\nThe appellant-defendant Dearborn argues that one such consideration is the childbearing and sexual relations aspect of the spousal relationship not present in that of parent and child. The \\\"predominant element\\\" in the concept of consortium has been described as the loss of the sexual relationship. - Nee Salin v. Kloempken (1982), Minn., 822 N.W.2d 786, 738 (quoting Thill v. Modern Erecting Co. (1969), 284 Minn. 508, 510-11, 170 N.W.2d 865, 867-68).\\nThere are significant differences between the marital relationship and the parent-child relationship that support the limitation of a cause of action for loss of consortium to the marital relationship. As we stated above, the spousal action rests in large part on the deprivation of sexual relations and the accompanying loss of childbearing opportunity, which does not exist as an element of damages in the child's action.\\nSalin, 822 NW.2d at 789. However, we view such deprivation as but one component of a spouse's consortium action. \\\"The other elements-love, companionship, affection, society, comfort, services and solace-are similar in both relationships and in each are deserving of protection.\\\" Berger v. Weber (1981), 411 Mich. 1, 14, 808 N.W.2d 424, 426.\\nAnother difference often discussed is that actions by children for loss of parental consortium create problems of multiplication of actions and damages not present in the spousal context.\\nIf the claim were allowed there would be a substantial accretion of liability against the tortfeasor arising out of a single transaction (typically the negligent operation of an automobile). Whereas the assertion of a spouse's demand for loss of consortium involves the joining of only a single companion claim in the action with that of the injured person, the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant's burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a single accident might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole.\\nBorer v. American Airlines, Inc. (1977), 19 Cal.3d 441, 449, 568 P.2d 858, 868, 188 Cal.Rptr. 302, 307 (quoting Russell v. So-lem Transportation Co. (1972), 61 NJ. 502, 506, 295 A.2d 862, 864).\\nThe Supreme Court of Michigan responded to such an argument by noting that \\\"[m jultiplicity of actions arising out of the same tortious act are a present reality in tort law. - Multiple actions may result whenever a single tortious act injures more than one person or property owned by more than one person.\\\" Berger, 411 Mich. at 14, 308 NW.2d at 426. Although our Court of Appeals found that \\\"concern for multiple claims and protracted litigation can be minimized by requiring joinder of the minor's consortium claim with the injured parent's claim unless it is not feasible in a particular case[,]\\\" 582 N.E.2d at 17, it did not discuss the effect of Ind.Code \\u00a7 34-1-2-5, which tolls the statute of limitations during minority. As noted by the Supreme Court of Minnesota, such a tolling statute \\\"establishes a roadblock to joinder in parental consortium cases that could be removed only by enactment of legislation creating a uniform limitations period for both the parent's action for personal injuries and the child's action for loss of parental consortium.\\\" Salin, 822 N.W.2d at 740.\\nMore significant to us than this possible roadblock to consolidation created by the minors' statute of limitations, is the potential harm to the family which may be generated in children's actions for loss of consortium. We are particularly concerned that each claim for such damages will invite defendants to minimize the claim by seeking to prove inadequacy and weakness of a child's familial relationships, resulting in pretrial investigation, depositions, trial testimony, and final argument attacking the quality of parent-child relationship enjoyed by the child before the parent's injuries. Many loving children heretofore content would thus be likely to suffer significant emotional harm inflicted by the litigation process itself, in addition to that already resulting from the parent's injuries.\\nWhile the parent-child relationship may presently be attacked in the litigation of a parent's claim for loss of services, society, and companionship resulting from tortious injuries to a child, we perceive such efforts as directed more at the adult parent claiming the loss, with negligible potential for personal attack upon a child's values and perceptions. Furthermore, an adult pursuing a claim for loss of society and companionship or spousal consortium takes on the risk of litigation assault upon the familial relationship knowingly and voluntarily. But this is not so for a child. The parent's attorney will likely include the child's claim with that of the parent as a matter of course.\\nIt is this consideration which persuades us that a child's loss of consortium claim may be distinguished and treated differently from that of a parent or a spouse.\\nHowever, we acknowledge that this distinction has not been applied to preclude a child's damage claims in actions for the wrongful death of a parent. In actions brought under Ind.Code \\u00a7 34-1-1-2, recovery is allowed for loss of care, love and affection sustained by a decedent's spouse and the loss of parental care, training and guidance sustained by a decedent's children during their minority. See Andis v. Hawkins (1986), Ind.App., 489 N.E.2d 78, 82. The Supreme Court of Arizona noted:\\n[O]ften death is separated from severe injury by mere fortuity. [citation omitted| Both may cause a deleterious impact on the quality of consortium. It would be inconsistent to allow recovery for loss of consortium resulting from death but to deny recovery when the loss results from severe injury.\\nVillareal v. State, Dept. of Transportation (1989), 160 Ariz. 474, 479, 774 P.2d 213, 218.\\nOther courts have recognized \\\"two significant distinctions between the child whose parent is killed and one whose parent is disabled, both of which flow from the fact that in the latter case the living victim retains his or her own cause of action.\\\" Borer, 19 Cal.3d at 452, 563 P.2d at 865, 138 Cal.Rptr. at 309. The first distinction relates to the historical purpose of wrongful death statutes. At common law, the heirs of a deceased victim could not bring a cause of action against the tortfeasor.\\nThis loophole in the law curtailed the deterrent function of tort recovery, providing to tortfeasors a substantial incentive to finish off their victims. The wrongful death statutes thus met an obvious logical and social need.\\nSimilar policy reasons led the courts to permit the bereaved to recover for the loss of the affection and society of the deceased.... Recovery for loss of affection and society in a wrongful death action thus fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim.\\nId. at 452, 563 P.2d at 865, 138 Cal.Rptr. at 309. Where the parent is injured but not killed, the tortfeasor cannot \\\"escape with impunity,\\\" because the immediate victim retains a cause of action for his injuries; the child's claim is not essential to prevent the tortfeasor from totally escaping liability. Id. at 452, 563 P.2d at 866, 183 Cal.Rptr. at 310.\\nThe second distinction is that the wrongful death action serves as the only means by which the family unit can recover compensation for the loss of parental care and services when a parent is tortiously killed. \\\"While the parent lives, however, 'the tangible aspects of the child's loss can be compensated in the parent's own cause of action.[']\\\" [emphasis in original] Id. at 452, 563 P.2d at 866, 138 Cal.Rptr. at 810 (quoting Suter v. Leonard (1975), 45 Cal. App.3d 744, 748, 120 Cal.Rptr. 110, 112).\\nBut where the parent dies, compensation for loss of parental care and services can be recovered only through a wrongful death action. Whether or not this compensation encompasses recovery for the child's loss of society and companionship in addition to more pecuniary items such as lost wages from which support would have been furnished, the availability of some reparation for disadvantage to the child and to the victim's family furnishes a sufficient basis for allowing the child to recover for lost society and companionship in the case of a parent's death but not in the case of parental injury.\\nBerger, 411 Mich. at 48, 808 N.W.2d at 441-42 (Levin, J., dissenting).\\nFurthermore, we perceive a distinguishing difference between the relationship harm which could result from the litigation of a child's claim for the wrongful death of a parent and that from a child's loss of consortium claim when the parent is not fatally injured. In the latter event, the parent-child relationship continues and may well be negatively affected by litigation damage, perhaps resulting in enhanced emotional harm. In the former, the relationship is but a memory and not generally subject to consequential alteration. In addition, common decency would likely dampen any inclination to attack the quality of the relationship enjoyed by a surviving child with his late parent.\\nIt is therefore our conclusion that, apart from wrongful death actions, a child may not maintain an action for loss of parental consortium when the parent is negligently injured by a third person. We therefore vacate the opinion of the Court of Appeals, reverse the trial court's denial of the defendant's motion to dismiss Count VII, and remand this case to the trial court for further proceedings not inconsistent with this opinion.\\nSHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur.\\nPIVARNIK, J., not participating.\\n. Since the Court of Appeals decision, an additional jurisdiction recognized the cause of action, Villareal v. State, Dept. of Transportation (1989), 160 Ariz. 474, 774 P.2d 213, and two others declined to do so. Gaver v. Harrant (1989), 316 Md. 17, 557 A.2d 210; Vaughn v. Clarkson (1989), 324 N.C. 108, 376 S.E.2d 236.\\n. This holding applies only to a child's action for loss of parental consortium. It does not preclude recovery for psychological or medical expenses, or other special damages, incurred by or on behalf of a child which proximately results from tortious injuries to a parent.\"}"
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+"{\"id\": \"11023350\", \"name\": \"George F. POTEET, Appellant (Defendant Below), v. Monica BETHKE and Daniel Bethke, Appellees (Plaintiffs Below)\", \"name_abbreviation\": \"Poteet v. Bethke\", \"decision_date\": \"1987-05-18\", \"docket_number\": \"No. 46A04-8608-CV-263\", \"first_page\": \"652\", \"last_page\": \"657\", \"citations\": \"507 N.E.2d 652\", \"volume\": \"507\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:55:02.527512+00:00\", \"provenance\": \"CAP\", \"judges\": \"RATLIFF, C.J., and CONOVER, PJ., concur.\", \"parties\": \"George F. POTEET, Appellant (Defendant Below), v. Monica BETHKE and Daniel Bethke, Appellees (Plaintiffs Below).\", \"head_matter\": \"George F. POTEET, Appellant (Defendant Below), v. Monica BETHKE and Daniel Bethke, Appellees (Plaintiffs Below).\\nNo. 46A04-8608-CV-263.\\nCourt of Appeals of Indiana, Fourth District.\\nMay 18, 1987.\\nFred M. Stults, Jr., Stults, Custer, Ku-tansky & McClean, Gary, David L. Zoss, Stults, Custer, Kutansky & McClean, Valparaiso, for appellant.\\nDonald E. Transki, Michigan City, for appellees.\", \"word_count\": \"3068\", \"char_count\": \"18713\", \"text\": \"YOUNG, Judge.\\nGeorge Poteet appeals the partial denial of his \\\"Motion to Vacate Default Judgment.\\\" The only issue presented by his appeal is whether the trial court abused its discretion in not vacating the entire judgment on the basis that it was void for lack of personal jurisdiction. We reverse.\\nOn February 28, 1984, an automobile accident occurred involving vehicles driven by George Poteet and Monica Bethke. Monica and her daughter sustained injuries as a result of the accident. At the time the accident occurred, Poteet was living at 806 Liberty Street in Westville, Indiana and he gave that address to the investigating officer.\\nDue to marital difficulties, Poteet moved in September of 1984 from the Liberty Street address to 111 South Porter Street in Michigan City, Indiana. He did, however, apparently receive a letter from the Bethkes' attorney which had been sent to the Liberty Street address in October of 1984.\\nBy December 13, 1984, Poteet's insurer, Metropolitan, apparently had reached a settlement with the Bethkes' as to Monica's claim and had sent a $50,000 draft and a \\\"Release of All Claims\\\" form to the Bethkes. Although the Bethkes' cashed the draft, they failed to return the release form. On December 14, 1984, Poteet filed a form with the U.S. Post Office requesting that his address be changed from the Liberty Street address in Westville to the Porter Street address in Michigan City. Al though Poteet still resides in Michigan City, he moved from the Porter Street address to 107 Nevada Street in March of 1985. He did not file a change of address request when he made this move.\\nOn July 8, 1985, the Bethkes filed suit against Poteet. Service upon Poteet was made by sheriff who attached the summons and complaint to the door of 806 Liberty Street in Westville. A copy of the summons was sent to that same address by registered mail. Although Poteet's ex-wife, Jeanne Loane, had vacated the premises on July 1, 1985, she found the documents when she returned to prepare the house for sale. Not knowing what to do with the documents or where to locate Po-teet, Loane placed the documents in her car until later in the summer when she happened to see a county police officer. Loane gave the documents to the officer who said that he would take care of the matter. On August 7, 1985, the Bethkes obtained a default judgment against Poteet in the amount of $1,000,000.\\nOn or about August 10, 1985, Poteet's roommate at the Porter Street address received a copy of the summons and complaint. He stated in an affidavit that he delivered them to Poteet the same day he received them. Poteet claims to have received the documents on August 11, 1985. On August 19, 1985, Poteet was contacted at his place of employment by Fred Stults who had been hired as Metropolitan's attorney on August 15, 1985. Stults had located Poteet through the Westville Post Office and Poteet's former Porter Street landlord. Stults filed a motion to vacate the default judgment on behalf of Poteet on September 9, 1985. Except as to the issue of damages, the motion was denied.\\nPoteet claims that because he was not properly served with notice of the suit, the judgment against him was void for lack of personal jurisdiction and the trial court should therefore have vacated the entire judgment. Where the trial court lacks personal jurisdiction, the judgment is void. Smith v. Tisdal (1985), Ind.App., 484 N.E.2d 42. A void judgment is of no force or effect, Id., and must be set aside whether the party seeking relief does so by separate action or by a motion pursuant to Trial Rule 60(B)(6). Harvey, 4 Indiana Practice 215 (1971). Therefore the only issue we must resolve is whether the service upon Poteet was insufficient to render him subject to the trial court's jurisdiction.\\nService upon an individual may be made by leaving a copy of the summons and complaint at his dwelling house or usual place of abode. Ind. Rules of Procedure, Trial Rule 4.1(A)(8). The Bethkes rely upon Grecco v. Campbell (1979), 179 Ind.App. 530, 386 N.E.2d 960, for the proposition that 306 Liberty Street was Poteet's dwelling house or usual place of abode and therefore service upon him was properly made. As the court in Grecco noted, however, \\\"[what is or is not a party's 'dwelling house or usual place of abode' within the context of T.R. 4.1 is a question that must be determined on the particular facts of each case.\\\" Id. at 533, 386 N.E.2d at 962. The facts of this case are clearly distinguishable from those presented in Grecco.\\nIn Grecco, the summons and complaint were left at a house owned by the defendant while the defendant was staying with relatives due to illness and marital problems. The defendant found the documents upon his return to the house. He had been absent for approximately a month Default judgment was not entered until two weeks after the defendant had found the documents and sent them to his insurance company. In holding that the residence constituted the defendant's dwelling house or usual place of abode, the court specifically noted that the defendant was living in the house both prior to and after his problems and that he referred to his return as \\\"returning home.\\\" Id.\\nIn this case, Poteet had left the Liberty Street address approximately ten months before the summons and complaint were left there. Furthermore, Poteet's absence from that address was not temporary as was the case in @receo. Poteet had left the address permanently. Under these facts, we cannot conclude that the Liberty Street address was Potecet's dwelling house or usual place of abode. The service upon Poteet was therefore defective.\\nThe Bethkes argue that even if the service was defective it should not be set aside because it was reasonably calculated to inform Poteet of the action being instituted against him. (Appellee's Brief, p. 6 citing Ind.Rules of Procedure, Trial Rule 4.15(F) ). They essentially base their ar gument on the fact their attorney sent a copy of the complaint to Poteet's insurer and therefore it was aware of the suit. Apparently, the Bethkes are contending that Metropolitan was Poteet's agent for service of process or that giving notice to a liability insurer is reasonably calculated to inform the defendant of the pending litigation. We find both contentions unpersuasive in this case.\\nIn order for service to be based upon an agency relationship, the agent must have been designated to receive such service by or pursuant to a statute or a valid agreement. Ind.Rules of Procedure, Trial Rule 4.7. There is no evidence that such a designation existed in this case.\\nWe have found no Indiana cases which address whether a plaintiff may serve a defendant's liability insurer absent a statutory or contractual designation of the insurer as the defendant's agent for the purpose of service of process. The cases from other jurisdictions which have addressed the issue have done so in terms of a specific procedural rule which gave the trial court the discretion to permit a method of service not provided by other rules. Krueger v. Williams (1981), 410 Mich. 144, 300 N.W.2d 910 (interpreting GCR 1963, 105.8); Silvas v. Kelly (1984), 136 Mich.App. 790, 357 N.W.2d 772 (interpreting GCR 1963, 105.8); Feuchtbaum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161 (interpreting R. 4:4-4(i)); Austin v. Millard (1978), 164 N.J.Super, 219, 395 A.2d 1267 (interpreting R. 4:4-4(i); Ledbetter v. Schnur (1969), 107 N.J.Super. 479, 259 A.2d 237 (interpreting R. 4:4-4(); Young v. Bunny Bazaar, Inc. (1969), 107 N.J.Super. 320, 258 A.2d 158 (interpreting R. 4:4-4); Rudikoff v. Byrne (1968), 101 N.J.Super. 29, 242 A.2d 880 (interpreting R. 4:4-4(}) in conjunction with New York CPLR 808(4)); Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 286 N.E.2d 451 (interpreting CPLR 8308(4)); Lerman v. Church (N.Y. Supreme Ct.1967) 54 Misc.2d 402, 282 N.Y.S.2d 622 (interpreting CPLR 308(4)); Pieret v. Murray (1969) 59 Misc.2d 201, 298 N.Y.S.2d 201 (interpreting CPLR 808(4)).\\nIndiana has a rule similar to those addressed in the aforementioned cases. This rule provides:\\nUpon application of any party the court in which any action is pending may make an appropriate order for service in a manner not provided by these rules when such rule is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.\\nInd.Rules of Procedure, Trial Rule 4.14(B). The Bethkes, however, did not apply for a court order permitting them to serve Po-teet's insurer. Furthermore, an order permitting such service would have been inappropriate in this case.\\nIn determining whether service may be made upon the defendant's insurer, courts generally have considered four factors: 1) the plaintiff's need, 2) the public interest, 3) the reasonableness of the plaintiff's efforts to inform the defendant, and 4) the availability of adequate safeguards for the defendant. See eg. Krueger v. Williams (1981), 410 Mich. 144, 300 N.W.2d 910; Feuchtbaum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161; Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 286 N.E.2d 451. The plaintiff's need has been found to be apparent from the widespread potential for damage by motorists which exists due to our mobile population. Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 169, 236 N.E.2d 451, 459. The public interest generally has been evidenced by proof of financial responsibility requirements, state recovery funds and provisions for service upon non-resident motorists. Id. but see Ledbetter v. Schnur (1969), 107 N.J.Super. 479, 259 A.2d 237 (public interest is best protected by discouraging the deliberate or inadvertent evasion of service). Adequate safeguards for the defendant's interests have been found to be available to the defendant by his ability to leave a forwarding address with the postal authorities, the police, his employer, his insurer or the plaintiff, Feuchtbaoum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161, and a requirement that motorists inform the state licensing agency of any change in address. Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451. The New Jersey Supreme Court, however, has noted that the opportunity for relief from judgment is an available safeguard for the defendant's interest. Feuchtboum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161. In all of the cases which have discussed the issue, the issue was determined on the basis of the reasonableness of the plaintiff's efforts to inform the defendant.\\nWhere the court has held that service upon the defendant's insurer was proper, it was apparent that the plaintiff had undergone extensive efforts to inform the defendant. Krueger v. Williams (1981), 410 Mich. 144, 300 N.W.2d 910 (the plaintiff made diligent efforts to locate the defendant by hiring investigators who checked various locations); Feuchtbaum v. Constantint (1971), 59 N.J. 167, 280 A.2d 161 (the plaintiff apparently tried to locate the defendant through postal authorities, the police, the defendant's employer, and the defendant's insurer); Ledbetter v. Schnur (1969), 107 N.J.Super. 479, 259 A.2d 237 (the plaintiff made inquiries at the defendant's former New Jersey address, sent letters to that address which were returned marked \\\"moved leaving no forwarding address,\\\" made inquiries at the defendant's last known place of employment, the New Jersey Department of Motor Vehicles, the Maryland Department of Motor Vehicles and the Maryland police); Young v. Bunny Bazaar, Inc. (1969), 107 N.J.Super. 320, 258 A.2d 158 (the plaintiff made \\\"numerous attempts\\\" to locate defendant); Rudikoff v. Byrne (1968), 101 N.J.Super. 29, 242 A.2d 880 (the plaintiff made \\\"diligent inquiry\\\" which apparently included inquiry with New York authorities of which the defendant was legally obligated to inform of a change in his address); Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (the plaintiff inquired about the defendant's whereabouts with the defendant's former neighbors, former employer, the New York Bureau of Motor Vehicles and the defendant's insurer. The plaintiff also sent mail to the defendant's new residence in California which was returned marked \\\"Moved-Left No Address.\\\" \\\"Further attempts\\\" were also unsuccessful); Lerman v. Church (N.Y.Sup.Ct.1967), 54 Misc.2d 402, 282 N.Y.S.2d 622 (\\\"efforts at personal service upon the defendant at last known address were futile,\\\" the process server was informed that the defendant had moved leaving no forwarding address despite the fact that the owner of automobile in which the plaintiff was a passenger had managed to serve the defendant on an earlier occasion).\\nFurther, the cases which have held that an order allowing such service was improper have done so on the basis that the plaintiff failed to show he made reasonable efforts to locate the defendant. Silvas v. Kelly (1984), 136 Mich.App. 790, 357 N.W.2d 772 (case remanded for determination of whether the affidavit of the plaintiff's investigator stated a sufficient factual foundation for obtaining the order despite the appellate court noting that extensive investigation apparently had taken place); Austin v. Millard (1978), 164 N.J. Super. 219, 395 A.2d 1267 (the plaintiffs failed to show they made any efforts to locate defendant or that such efforts would be futile); Pieret v. Murrey (1969), 208 Misc.2d 201, 298 N.Y.S.2d 201 (the plaintiff failed to show that service as provided by rules was impracticable; the court would grant order with the following information: affidavit by the plaintiff stating how long she knew the defendant and whether she ever knew where he worked; affidavit by the process server setting forth the names and addresses of the defendant's neighbors to whom he had spoken; a copy of the police blotter; copy of envelope returned by the post office stating that the defendant had moved and left no forwarding address; a letter from the motor vehicle department indicating whether their records showed the defendant had a driver's license and if so, under what address; a statement by the plaintiff's attorneys as to what they did to obtain information arising out of the deposition by the criminal court as to the issuance of a summons by the police to the defendant for operating a vehicle without a license).\\nIn this case, the Bethkes would not have been entitled to an order permitting them to serve Poteet's insurer even if they had applied for one under T.R. 4.14. The evidence shows that they made only one attempt to serve Poteet and fails to disclose any inquiries of Poteet's former neighbors, the postal authorities, or the motor vehicle department as to Poteet's current residence. While the Bethkes argue that Poteet would have received notice had he not violated federal regulations by failing to leave a change of address request with the postal authorities upon moving from Porter Street to Nevada Street, we find the argument unpersuasive. The Bethkes provide no authority for the proposition that citizens are required to inform postal authorities of a change of address. Rather, they merely cite to a Postal Bulletin which informs post office employees of how such requests are to be handled.\\nAlthough one court has noted that it is not unfair to allow service on the insurer because a defendant can avoid not receiving personal notice by keeping the state licensing agency, his insurer or the other party informed of his address, the court also noted that these things should be done until the defendant is reasonably assured that no claim will be asserted against him. Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 169, 236 N.E.2d 451, 459. In this case, Poteet was reasonably assured that a claim by the Bethkes would not be asserted against him for Monica's injuries. Seven months prior to the suit, the Bethkes had cashed a $50,000 insurance draft which stated it was \\\"final payment for claims arising from [the] accident on 2/28/84.\\\" Under these circumstances, it would have been unfair to permit the Bethkes to serve Metropolitan under T.R. 4.14.\\nThe Bethkes failed to properly serve Po-teet with the summons and complaint. The Liberty Street address was not Poteet's \\\"dwelling house or usual place of abode\\\" for the purpose of service under T.R. 4.1(A)(8). Metropolitan was not Poteet's agent for service under TR. 4.7. The Bethkes did not request nor would they have been entitled to a court order allowing them to serve Metropolitan under TR. 4.14. As service upon Poteet was never properly effected, the trial court lacked personal jurisdiction of Poteet and therefore its default judgment was void. Where the judgment is void, the court must grant relief from it under T.R. 60(B)(6). The trial court therefore erred in granting relief only as to damages.\\nReversed and remanded with instructions to grant relief from the judgment in its entirety.\\nRATLIFF, C.J., and CONOVER, PJ., concur.\\n. It is unclear from the record how Poteet received this letter. Given that an apparent settlement was reached after the letter was received and that suit was not filed until approximately nine months later, we do not consider the fact that Poteet received the letter to be of importance in deciding the issue presented.\\n. This release pertained only to Monica's and her husband's claims for Monica's injuries. The Bethkes and Metropolitan apparently had agreed, however, on a $3,500.00 settlement as to the Bethkes' claim for injuries sustained by their daughter.\\n. It is unclear from the record whether the complaint Poteet's roommate received was forwarded from Liberty Street or was delivered by a sheriff after Loane turned over the documents she found at that address.\\n. This rule provides:\\nNo summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.\\n. Even though the Bethkes' claim for their daughter's injuries had not been formally set tled, a figure was apparently agreed upon. Po-teet therefore could have been reasonably assured that the entire matter had been taken care of and that no claim would be asserted against him.\"}"
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+"{\"id\": \"11027296\", \"name\": \"Ronald JONES, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, David L. Adams, and Joe A. Harris, as Members of and Constituting the Review Board of the Indiana Employment Security Division, and U.S. Steel, Appellees (Employer Below)\", \"name_abbreviation\": \"Jones v. Review Board of the Indiana Employment Security Division\", \"decision_date\": \"1987-06-15\", \"docket_number\": \"No. 93A02-8611-EX-394\", \"first_page\": \"1322\", \"last_page\": \"1330\", \"citations\": \"508 N.E.2d 1322\", \"volume\": \"508\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:55:08.557367+00:00\", \"provenance\": \"CAP\", \"judges\": \"RATLIFFE, C.J., concurs.\", \"parties\": \"Ronald JONES, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, David L. Adams, and Joe A. Harris, as Members of and Constituting the Review Board of the Indiana Employment Security Division, and U.S. Steel, Appellees (Employer Below).\", \"head_matter\": \"Ronald JONES, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, David L. Adams, and Joe A. Harris, as Members of and Constituting the Review Board of the Indiana Employment Security Division, and U.S. Steel, Appellees (Employer Below).\\nNo. 93A02-8611-EX-394.\\nCourt of Appeals of Indiana, First District.\\nJune 15, 1987.\\nElizabeth Gail Tegarden, Legal Services Program of Greater Gary, Inc., Gary, for appellant.\\nLinley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees.\", \"word_count\": \"5308\", \"char_count\": \"33177\", \"text\": \"ROBERTSON, Judge.\\nRonald Jones (Jones) seeks judicial review of the decision of the Review Board of the Indiana Employment Security Division (Review Board) denying his request for training under the Trade Act of 1974, 88 Stat.1978, 19 U.S.C. \\u00a7 2101 et seq. (Act).\\nWe reverse and remand.\\nJones, a former employee of U.S. Steel for twenty-five years, is a worker adversely affected by competition from foreign imports. He has been certified by the Secretary of Labor to be eligible for benefits and training provided by the Trade Adjustment Assistance Program. Jones was working toward an Associate Degree in Public Affairs with a concentration in criminal justice at Indiana University in May of 1985. He applied for training in the area of criminal justice. A deputy with the Indiana Employment Security Division determined that paralegal training would be a viable alternative within the program and excluded other cccupations within the criminal justice occupational area which were of interest to Jones, for \\\"lack of employment opportunities.\\\" Jones requested a hearing before an appeals referee, appeared pro se and presented evidence to rebut the deputy's determination. The appeals referee affirmed the denial of Jones's request for training, entering findings of fact and conclusions of law which the Review Board adopted. We remanded with instructions to the Review Board to enter findings and conclusions which would facilitate judicial review. 505 N.E.2d 881. The Review Board having entered specific findings of fact and conclusions of law in support of its decision, we must now consider whether Jones was denied training in accord with the Trade Act of 1974.\\nThe Review Board made the following entry:\\nFINDINGS OF FACT:\\n1. Claimant is a former employee of U.S. Steel having worked for said employer for 25 years (1-22-60 to 5-83-85). (Division Exhibit #1 TR pg 7).\\n2. A request for determination of entitlement to TRA (Trade Readjustment Act) benefits by Claimant was initiated on April 4, 1986, and processed as petition number 14767 (Division Exhibit # 1 TR pg 7 & 8).\\n8. A determination of eligibility was completed by the Gary Employment Security office on July 24, 1986, based on Claimant's request for training which would lead to an associate degree in public affairs with concentration in criminal justice. (Division Exhibit #8 TR pg 11.)\\n4. Claimant's requested program of training was determined to be excluded \\\"for lack of employment\\\" opportunities (Division Exhibit #8 TR pg 11) and a \\\"reasonable expectation of employment after training does not exist\\\". (Id.)\\n5. Claimant completed a Combined Report on Disputed Claim form on August 1, 1986 and filed the same with the Gary employment service office on the same date. (Division Exhibit #4 TR pg 12)\\n6. A notice of appeals referee hearing was issued to all parties on August 8, 1986. (Division Exhibit #5 TR pg 183 & 14); and the appeals hearing was conducted on August 19, 1986, (see referee docket Division Exhibit #6 TR pg 15) at Gary, Indiana. (TR pg 15)\\n7. The position of the Gary employment service office was presented by Mr. Freeman Franks, an Employment Service Specialist, TRA (TR pg 16) and stated that one of the requirements for determining eligibility for a TRA training program is that \\\"the person must have a reasonable expectancy of securing suit able employment in the occupation upon completion of training.\\\" (TR pg 19, lines 20-21); that the desired training pro gram was within the possibilities of Claimant's abilities as evidenced by the result of Claimant's aptitude test scores (TR pg 16, lines 14-24), and that the training requested was part of the minimum requirements in obtaining a position in that field sought (TR pg 19, line 38, TR pg 20, line 10).\\n8. Claimant noted that he had enrolled in a college and was doing B-grade level work (TR pg 28, lines 1-2). That he was over \\\"half-finished with this program\\\" (TR pg 28, line 10); that he had one more year to complete in order to receive or be awarded a criminal justice degree (TR pg 28, line 12-14). Claimant further stated \\\"there will be more jobs in security in the future and also criminal justice jobs outlook favorable today,\\\" (TR pg 24, lines 26-28). Claimant's Exhibit #1 and #2 (TR pg's 89-42) were offered to substantiate his contention that the potential for employment in the criminal justice field was favorable today; however, no correlation was shown between the course of training sought by Claimant at Indiana University in Gary, Indiana and the minimum requirements of jobs for guards, police officers, correction officers, juvenile correction officers, or any of the other positions detailed in related law enforcement areas in addition to others who work as judges, bailiffs, clerks, public defenders, prosecutors and investigators.\\n9. Claimant's pro-offered course list of classes at Indiana University, Gary, Indiana, was determined by the TRA Specialist to be an \\\"over view type\\\" of course, (TR pg 19, lines 1-7), which was not aimed or directed toward any specific or determinable class within the general classification of the criminal justice field; and a reasonable expectancy of employment at the completion of the training was not shown. Claimant's Exhibits 1 and 2 indicated an increase in employment possibilities within the broad spectrum of the \\\"Criminal Justice\\\" field, but showed not one bit of existing need for Claimant or others like him who may complete the course of study sought at Indiana University, Gary, Indiana.\\nThe general field of criminal justice as presented by Claimant as evidenced by Claimant's exhibits 1 and 2 (TR pg's 39-42) shows a wide range of positions (i.e. from city police to judges and prosecutors) that vary in requirements from a high school diploma to college and law degrees. Claimant did narrow his stated desire of job attainment to insurance investigator (TR pg 28, lines 22-283) when he said at the appeals hearing, \\\"I would like to do special investigator's work with insurance companies.\\\" However, there has been no showing by Claimant that such a position requires any skills or training program requirements beyond a high school diploma if that much, or that the course sought was programed for that position.\\n10. The TRA Specialist did conduct a survey, albeit not one of professional standards, of the local market regarding the general course of study for criminal justice associate degree sought by Claimant and found no need for persons so trained (TR pg 18, lines 7-81).\\nThe TRA Specialist, in his discussion with Claimant, explained that most areas of law enforcement and correctional officers did not require training beyond a high school diploma; and that the specific police training beyond that was conducted in-house or at the state facility at Plainfield, Indiana. (TR pg 20, lines 1-10).\\n11. Claimant's request for TRA funding could be interpreted as a request to study and take courses in a very general field of employment possibilities whereas the TRA program was designed to approve training of a worker eligible for trade adjustment assistance; [see 19 U.S.C. See. 2296(a) (1976) ] if suitable employment was available for the worker and if the worker received appropriate training. All of which is further conditioned upon the base premise that there is a reasonable expectation of employment following completion of such training.\\nA fair definition of \\\"reasonable\\\" would eliminate extreme possibilities when con sidering employment consideration for any applicant for TRA funding; and a reasonable definition of \\\"expectancy\\\" is anticipation of a probable occurrence such as an expectant number of years of life for a male or female based on statistical probabilities. Thus, in our particular order of TRA training, the program is aimed at providing training to eligible workers in programs with an anticipated probability that employment of the worker would follow upon completion of the training program.\\n12. Claimant's chosen field of study toward acquiring an associate degree in public affairs with a concentration in criminal justice has not been shown to meet the needs in a well-determined class of the work force with a reasonable expectation of employment following Claimant's completion of such training. Thus, in view of the above, the determination to deny claimant's request for training in his chosen field of study is a reasonable interpretation of the parameters of the program and is not too strict a view of the statutes intent. Further, the matter of whether the use of \\\"two years\\\" rather than \\\"104 weeks\\\" in speaking of the length of any such approved programs is not dispositive to the issues of the instant matter.\\nCONCLUSIONS OF LAW:\\n1. The act for Trade Adjustment Assistance is intended to approve training up to 104 weeks for eligible unemployed workers in areas of employment available to the worker in the event he receives appropriate training; and if there is a reasonable expectation of employment upon completion of this training.\\n2. Claimant, Ronald Jones, a former employee of U.S. Steel is one of a group of unemployed workers for which the TRA program is intended to help.\\n8. Claimant timely filed for assistance within the TRA program, and submitted himself and completed an aptitude test for purposes of attempting to determine a well defined area of the work foree for which Claimant might reasonably. expect employment after the completion of a readjustment training course programmed toward that defined field.\\n4. A review of Claimant's eligibility request and aptitude test results by the Employment Service Specialist, TRA, indicated Claimant would be eligible for TRA training in the general category of law aimed at the para-legal field of employment and there was a reasonable expectation of employment in that field at the conclusion of the course program by the Claimant and that said program was within the approved program list anticipated for completion within the time established by the Act.\\n5. Claimant's requested course of study toward acquiring an associate degree in public affairs with a concentration in criminal justice did not meet requirements of the TRA program which would reasonably lead to Claimant securing employment after completion of the course. 6. Claimant's requested course of study can best be described as sort of a \\\"liberal arts degree\\\" course of study that provides a fair foundation for any individual completing such program in a wide spectrum of employment possibilities but no reasonable expectation of employment in any one well defined area within the parameters of the intended assistance available in the TRA program benefits.\\n7. Thus the decision to deny Claimant his specific request for assistance to take courses at Indiana University at Gary, Indiana, toward acquiring an associate degree in public affairs with a concentration in criminal justice, was proper as there is no anticipated probability that such a program would provide suitable employment for Claimant upon completion of such a program.\\nL.\\nStandard of Review\\nWe review the Board's determination by applying the standard of review employed in the review of unemployment cases because eligibility determinations, when entrusted to State agencies administering state unemployment insurance pro grams, are to be reviewed \\\"in the same manner and to the same extent as determinations under the applicable state law and only in that manner and to that extent.\\\" 19 U.S.C. \\u00a7 2311(a); International Union, United Auto., Aerospace & Agricultural Implement Workers v. Brock (1986), 477 U.S. 274, 106 S.Ct. 2523, 2526, 91 L.Ed.2d 228; York v. Review Board (1981), Ind. App., 425 N.E.2d 707, 710.\\nIn determining whether the Board erred, our sole function is to determine whether the Review Board's findings of fact contain all specific facts relevant to the contested issue and whether the Board resolved those issues in conformity with law. Quillen v. Review Board (1984), Ind.App., 468 N.E.2d 238, 241. A contention that the Review Board's decision is contrary to law presents two questions: first, whether the evidence is sufficient to sustain the findings of fact; and, second, whether the findings of fact are sufficient to sustain the Review Board's decision. Citizens Gas & Coke Utility v. Review Board (1984), Ind.App., 471 N.E.2d 1175, 1176, trans. denied.\\nI.\\nThe Act\\nThe Trade Adjustment Assistance Program provides benefits and training to workers certified by the Secretary of Labor to have been adversely affected by competition from foreign imports. Under the program's scheme, the Secretary shall approve training for the certified worker, to the extent approved funds are available, if the Secretary determines that:\\n(A) there is no suitable employment (which may include technical and professional employment) available for the worker;\\n(B) the worker would benefit from appropriate training;\\n(C) there is a reasonable expectation of employment following completion of such training;\\n(D) training approved by the Secretary is available to the worker from either governmental agencies or private sources (which may include area vocational schools, as defined in \\u00a7 195(2) of the Vocational Education Act of 1968, and employers), and\\n(E) the worker is qualified to undertake and complete such training,. .\\n19 U.S.C. \\u00a7 2296(a). 'Upon approval, the worker is entitled to have payment of the costs of training paid by the Secretary on his behalf. Id.\\nFormerly, the Trade Act of 1974 authorized the Secretary of Labor to approve training of a worker eligible for trade adjustment assistance if the Secretary determined (1) that there was no suitable employment available for the worker, and (2) that suitable employment would be available for the worker if the worker received appropriate training. 19 U.S.C. \\u00a7 2296(a) (1976). However, the Act was substantial ly amended in 1981, requiring a more exhaustive and focused inquiry. Congress refined the simpler standard, that suitable employment be available after training, into an individualized determination involy-ing the five criteria recited above. See 19 U.S.C. \\u00a7 2296(a)(1)(B)-(E) (Supp. V, 1981). Moore v. Review Board (1983), Ind.App., 444 N.E.2d 910. The intent was to make assistance more accessible by easing the eligibility tests. See S.Rep. No. 1298, 93d Cong., 2d Sess. 131 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 7186, 7205; DeWhirst v. Review Board (1981), Ind.App., 419 N.E.2d 150, 151, trans. denied. The Act's most recent amendments were consider\\u00e9d with the expectation that with the changes, suitable and reasonably available training could be located or generated for most workers. See, S.Rep. No. 146, 99th Cong., 2d Session 349 (1986); 1986 U.S.Code Cong. & Ad.News 42, 311.\\nAgain, among the qualifying criteria is the requirement that there be a reasonable expectation of employment following the approved training. The Act no longer explicitly requires that the expected employment be \\\"suitable\\\" as defined previously under the Act's older formulation.\\nNeither the Trade Act of 1974 as amended nor the regulations issued by the Secretary of Labor affirmatively defines the language \\\"reasonable expectation of employment.\\\" The Act does provide that \\\"[fjor purposes of applying paragraph (1)(C), a reasonable expectation of employment does not require that employment opportunities for a worker be available, or offered, immediately upon the completion of training....\\\" 19 U.S.C. \\u00a7 2296(a)(2) (Supp. 1986) (effective April 7, 1986). The Secretary of Labor has instructed state agencies that the criterion concerning reasonable expectation of employment does not mean employment immediately upon completion of training. Dept. of Labor, General Administration Letter No. 7-86, 51 FR. 21027, 21028, (June 10, 1986).\\nAccording to the Secretary of Labor, if suitable employment is not available to an individual, it is the responsibility of the state agency to explore, identify, develop and secure training opportunities. 20 C.F.R. \\u00a7 685.28(a), 48 FR. 9444, 9454 (proposed March 4, 1983.) The state agency is responsible for the selection and approval of training which offers a reasonable expectation of employment following such training, 20 CRF. \\u00a7 635.26(d), and must document the standards and procedures used to select occupations and training institutions. Id.\\nWith respect to the selection of occupational areas in which training may be provided, the state agency is directed by the Secretary of Labor to \\\"approve training in occupations for which an identifiable demand exists either in the local labor market or in other labor markets for which relocation planning has been implemented.\\\" 20 C.F.R. \\u00a7 635.23(d)(1). The state agency must exclude certain occupations, among them, those for which a\\n(i) [IJack of employment opportunities as substantiated by job orders and other pertinent labor market data [exists]; or\\n(ii) [olecupations which provide no reasonable expectation of permanent employment; or\\n(iii) [sJelfemployment and occupations for which remuneration is wholly or primarily in the form of a commission.\\n20 C.F.R. \\u00a7 623.23(d)(8).\\nTo briefly summarize the Act's requirements as implemented by the Department of Labor and as relevant to the instant case, the state agency is to approve training which offers, from an objective perspective, a reasonable expectation of employment upon completion. Training is to be approved in occupations where a demand can be identified in the labor market. An occupation must be excluded from consideration for training, again upon an objective basis (job orders and pertinent labor market data), when the occupation lacks employment opportunities.\\nIIL.\\nDecision\\nAdopting the Review Board's definition of an expectation of employment and applying the requirements of the Act, we believe the central question to be addressed by the Review Board was whether, objectively, the claimant could anticipate probable employment following training in the area of criminal justice. We agree with Jones that the Review Board's findings and conclusions indicate that the Review Board did not give proper consideration to the requirements of the Act and the regulatory guidelines established to implement it in resolving this question. Moreover, we agree that the Review Board has relieved the state agency of the responsibility of documenting standards and procedures used to evaluate occupations and training institutions.\\nAs we read the entry, the Review Board found that while the outlook for employment in criminal justice was favorable, finding 8, and evidence in the record \\\"indicated an increase in employment possibilities within the broad\\\" criminal justice field, finding 9, Jones's choice of course work was too general in nature to qualify him for training assistance; it was not directed toward a specific occupation. Furthermore, Jones had not shown \\\"one bit of existing need for Claimant or others like him who may complete the course of study sought\\\" by Jones, finding 9; neither had Jones shown an \\\"anticipated probability that such a program would provide suit able employment . upon completion of such a program.\\\" Conclusion 7, emphasis added. As far as an objective basis for excluding various criminal justice occupations, the Review Board made only one finding: \\\"[the TRA Specialist did conduct a survey, albeit not one of professional standards, of the local market regarding the general course of study for criminal justice associate degree sought by claimant and found no need for persons so trained (TR pg 18, lines 7-31)\\\" Finding 10.\\nAs an initial matter we note that the record contains no evidence that the state agency considered any occupation within the criminal justice field other than paralegal or legal assistant, occupations in which Jones expressed no interest. The record indicates that the state agency surveyed five local attorneys for purposes of determining whether law offices would hire an individual studying criminal justice through the Indiana University Public and Environmental Affairs program. The agency concluded from this sampling that law offices would have more use for a paralegal. This is the only evidence in the record which has any tendency to show a lack of opportunity for individuals with an Associate Degree in Criminal Justice. Clearly, it is not a reliable, statistical basis under the facts of this case for concluding that there is no demand whatsoever in any of the occupations in which Jones expressed interest, particularly in light of the evidence presented by Jones, dated December 1984, predicting an increase in opportunities in the criminal justice field.\\nWe believe it was incumbent upon the state agency to make greater efforts to obtain the information necessary for mean ingful review of the petition and to develop a methodology which will elicit complete and accurate data. This responsibility cannot be shifted to the claimant by finding that there was no showing of \\\"existing need\\\" for persons with the training sought by Jones. Jones appeared pro se. When a claimant appears without representation of counsel at an unemployment compensation hearing in Indiana, the referee is required to insure a complete presentation of the case. 640 I.A.C. 1-11-3; Lucas v. Review Board (1981), Ind.App., 416 N.E.2d 906, 907 n. 5; DeWhirst v. Review Board (1981), Ind.App., 419 N.E.2d 150, 151 n. 4. As the Employment Security Division has been given the role of actively pressing the parties to produce all relevant proofs at their command, and, when necessary, to independently take steps to get the facts, the lack of evidence cannot be used against the claimant. Lucas, supra. This is particularly true in this case where the Secretary of Labor has specified that it is the responsibility of the state agency to explore and identify training opportunities, and to select, with the use of documented standards and procedures, the occupations which offer a reasonable expectation of employment.\\nWith respect to those of the Board's findings which suggest that Jones must entertain a reasonable expectation of obtaining \\\"suitable\\\" employment, we again point out that the Act no longer explicitly requires a determination that suitable employment be available. However, since it is apparent that training will only be approved if \\\"suitable\\\" employment is not available for the worker, 19 U.S.C. \\u00a7 2296(a)(1)(A), we believe it would be reasonable for the Board to consider whether the training requested can be expected to ultimately result in \\\"work of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less than 80 percent of the worker's average weekly wage\\\", 19 U.S.C. \\u00a7 2296(f) (1986), as \\\"suitable\\\" employment is defined by the Act. The Review Board made no findings with respect to the comparative skill and wages levels; moreover, the record indicates that no evidence was taken directly on this point. In the absence of evidence of this nature, the Review Board could not have given proper consideration to the question of \\\"suitable\\\" employment; consequently, we must conclude that the Review Board's findings which incorporate this element are not supported by substantial evidence, and are therefore contrary to law.\\nFinally, we note that Congress anticipated that for some occupations and types of training, workers may need to commute or relocate. It specifically provided for subsistence payments, job search allowances and relocation allowances to assist the adversely affected worker to return to work in equivalent or better employment as quickly as possible. See eg., 19 U.S.C. \\u00a7 2296(b); \\u00a7 2297, \\u00a7 2298. We conclude from the provision of these benefits that a worker may entertain a reasonable expectation of employment in labor markets other than the local market. Hence, in determining whether an identifiable demand exists in a particular occupation, the state agency should factually determine whether relocation planning might be implemented.\\nIn light of the absence of a factual basis in the record to support the Review Board's determination that no reasonable expectation of employment following completion of the training requested exists for Jones, we must conclude that the Review Board's decision is contrary to law. We reverse and remand to the Review Board for reconsideration and factual determination in accord with the directives of the Secretary of Labor and the provisions of the Act. To the extent that the Review Board's definition of a reasonable expectation of employment incorporates a requirement of expecting \\\"suitable\\\" employment, it will be necessary for the Review Board to factually develop the record on that question as well.\\nReversed and remanded.\\nRATLIFFE, C.J., concurs.\\nMILLER, J., concurs in part and dissents in part with separate opinion.\\n. Created by the Trade Expansion Act of 1962, Pub.L. No. 87-794. The program was substantially expanded and modified by the Trade Act of 1974, Pub.L. No. 93-618, 88 Stat.1978.\\n. Examining the Board's findings of fact and conclusions of law, we observe that under the heading \\\"Conclusions of Law\\\", some of the preliminary comments are in essence a continuation of the Board's factual findings rather than legal conclusions. Similarly, we note that the Board has characterized legal conclusions as findings of fact. Recognizing that as a general rule we must accord the Board's findings of fact substantial deference, we will not exalt form over substance. See, Public Service Co. of Indiana, Inc. v. Review Board (1983), Ind.App., 451 N.E.2d 371, 374. Accordingly, where we determine that the Board has resolved questions of law, we will not accord that degree of deference granted a question of fact. The question whether the Board conformed to the statutory standards and legal principles involved in producing its order, i.e. whether the Board considered some factor or element which it is apparent improperly influenced the result, is purely a legal question and one properly for the courts to determine in any judicial review. Public Service Commission of Indiana v. City of Indianapolis (1956), 235 Ind. 70, 82-83, 131 N.E.2d 308, 312-313.\\n. Regulations implementing the Trade Act of 1974 have been codified at 29 C.F.R. \\u00a7 91 et seq. The Secretary of Labor proposed revised regulations following the program's revision by the Omnibus Reconciliation Act of 1981. The revised regulations, published at 48 FR. 9444 (March 4, 1983) were never finally promulgated. Similarly, subsequent to the Act's amendment in 1986 by the Consolidated Omnibus Reconciliation Act of 1984, Pub.L. 99-272, the Secretary issued General Administration Letter No. 7-86, 51 F.R. 21027 (June 10, 1986), providing operating instructions to state agencies for implementing and administering the amendments to the program. Formal rule-making procedures have not been instigated for these instructions either. The parties agree that the proposed regulations do not have the force and effect of law given legislative rules issued by an agency pursuant to statutory authority to create new law, rights or duties. See, Batteron v. Francis (1977), 432 U.S. 416, 425 and n. 9, 97 S.Ct. 2399, 2405 and n. 9, 53 LEd.2d 448. However, it is well settled that an agency charged with a duty to enforce or administer .a statute has inherent authority to issue interpretative rules informing the public of the procedures and standards it intends to apply in exercising its discretion. American Medical Association v. Heckler (S.D.Ind.1985), 606 F.Supp. 1422, 1440; Production Tool Co. v. Employment & Training Administration (7th Cir.1982), 688 F.2d 1161, 1166. Even interpretative rules are binding on the regulated parties in the sense that they set, for the time, the legal minima of behavioral standards, and inform the parties that actions not in conformity with an agency's interpretation of a statute may be viewed by the agency as a violation of the statute. AMA v. Heckler, supra; Alcaraz v. Block (9th Cir.1984), 746 F.2d 593, 614. The legislative /interpretative rule distinction is relevant to the extent it guides courts in determining the standard of judicial review. Alcaraz id. In Indiana, an agency's interpretations of the statute are to be afforded great weight and are not to be disturbed so long as they have a rational basis. Hearing & Speech Clinic v. Ind. Dept. of Welfare (1984), Ind.App., 466 N.E.2d 462, 464-465; Ind. Dept. of Pub. Welfare v. Crescent Manor (1981), Ind.App., 416 N.E.2d 470, trans. denied. Neither party has argued that these regulations, as written are irrational.\\n. Generally, administrative decisions must be based upon ascertainable standards to insure that agency action will be orderly and consistent. Standards should be stated with sufficient precision to provide those having contact with the agency fair warning of the criteria by which they will be judged. Midwest Street Erection Co. v. Commissioner of Labor (1985), Ind.App., 482 N.E.2d 1369, 1371, trans. denied.\"}"
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+"{\"id\": \"11060901\", \"name\": \"Mary C. KRANDA, Appellant (Plaintiff Below), v. HOUSER-NORBORG MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below)\", \"name_abbreviation\": \"Kranda v. Houser-Norborg Medical Corp.\", \"decision_date\": \"1981-05-05\", \"docket_number\": \"No. 3-480A107\", \"first_page\": \"1024\", \"last_page\": \"1044\", \"citations\": \"419 N.E.2d 1024\", \"volume\": \"419\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:09:31.266759+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOFFMAN, P. J. (sitting by designation), and MILLER, J., concur.\", \"parties\": \"Mary C. KRANDA, Appellant (Plaintiff Below), v. HOUSER-NORBORG MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below).\", \"head_matter\": \"Mary C. KRANDA, Appellant (Plaintiff Below), v. HOUSER-NORBORG MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below).\\nNo. 3-480A107.\\nCourt of Appeals of Indiana, Fourth District.\\nMay 5, 1981.\\nDaniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, P. C., Kokomo, Edward A. Zych, Matthews-Petsche & Associates, South Bend, for appellant.\\nEdward A. Chapleau, Chapleau, Mclner-ny, Minczeski & Farabaugh, South Bend, for appellees.\", \"word_count\": \"9306\", \"char_count\": \"56971\", \"text\": \"YOUNG, Presiding Judge.\\nMary C. Kranda, appellant-plaintiff, appeals from a negative judgment in a medical malpractice action against Houser-Nor-borg Medical Corporation and Dr. Keim Houser, M. D. The trial court granted judgment on the evidence as to the issue of informed consent and the issue of the defendant corporation's liability. The jury returned a verdict for Dr. Houser and judgment was entered accordingly.\\nOn appeal, Kranda raises a number of issues for our consideration. For purposes of review, we have consolidated similar questions.\\n(1) Whether the trial court erred in permitting members of the review panel to testify and in admitting each individual panel members' written opinion into evidence.\\n(2) Whether the opinion of the Medical Review Panel should be excluded because it was rendered pursuant to the Indiana Medical Malpractice Act which Kranda contends is unconstitutional.\\n(3) Whether the trial court erred in refusing to admit into evidence the deposition of Dr. Roseman who testified at trial and the minutes of the Medical Review Panel meeting.\\n(4) Whether the trial court erred in withdrawing the issue of informed consent from the jury's consideration.\\n(5) Whether the trial court erred in the imposition of a \\\"one pass rule.\\\"\\n(6) Whether the trial court erred in giving certain instructions and in refusing certain requested instructions.\\n(7) Whether the trial court erred in granting judgment on the evidence in favor of defendant Houser-Norborg Medical Corporation.\\nWe affirm.\\nIn October 1975 Kranda consulted Dr. Keim Houser, an obstetrician-gynecologist employed by Norborg-Houser Medical Corporation, concerning problems she was having with vaginal warts. At this time, Dr. Houser also noted a Bartholin cyst deep within the tissue on the left side of her vagina. From Kranda's medical history, Dr. Houser knew that a similar cyst had been surgically removed from the same area in 1972 and that Kranda suffered from Crohn's disease which had resulted in a number of hospitalizations.\\nAfter several attempts to treat the warts with medication, Dr. Houser recommended and scheduled the surgical removal of them. Before this surgery, Kranda developed problems with the Bartholin cyst. She consulted Dr. Norborg about this problem, who prescribed antibiotics and hot baths. When this treatment caused the cyst to fill with pus and open, Dr. Norborg stated that he would schedule removal of the cyst on the same date as her other surgery.\\nOn January 28, 1976 Dr. Houser did a preoperative examination and discussed the possibility of removing the cyst during the surgery for the warts. At this time he did not discuss her Crohn's disease or the risks associated with it in surgery. Dr. Devet-sky, Kranda's treating physician for her Crohn's disease, discussed with Dr. Houser the use of steroids and stated that he would order the necessary steroids. Neither doctor discussed the effect of steroids on the healing process with Kranda.\\nSurgery was performed on February 6, 1976 by Dr. Houser. During the surgery, he removed the remaining part of the Bar-tholin gland and the cyst. In this process, Dr. Houser brought the cyst up and did a rectal exam to determine the location of the scar tissue from the prior surgery. He peeled the tissue away from the cyst. Dr. Houser testified that he could not see where the rectum was because of tissue fibrosis and scarring. As he was removing the cyst, he recognized a small rent (tear) in the. rectal mucosa. Dr. Houser repaired this rectal laceration by sutures placed close to the rectum. That evening Dr. Houser told Kranda of the rectal entry and the repair and stated that he did not think there would be any problems.\\nOn February 10, 1976 Kranda was released. That evening she felt gas escaping from the incision. Fecal matter escaped from a hole not present prior to surgery. The following day she saw Dr. Houser who could find no fecal matter escaping from a hole. The deep rectal sutures were still intact. On the 13th of February she again went to see Dr. Houser for the same problem. Because Dr. Houser was not in the office his father, also an obstetrician-gynecologist, saw her and upon examination recognized a fistula. He recommended heat treatment until he could consult with his son, Dr. Keim Houser. On the same day, Kranda saw her internist. In view of her underlying illness, he immediately recommended going to Chicago for repair surgery. She entered Rush-Presbyterian-St. Lukes Hospital in Chicago the next day. At St. Luke's, Dr. Roseman, a surgeon, performed a temporary colostomy which diverted the fecal matter from the rectum to promote the healing of the fistula. Following this operation, a bowel obstruction developed as a result of her Crohn's disease and part of the bowel had to be removed. She underwent another operation for an ileostomy. In January 1977 Dr. Roseman eliminated the ileostomy and made the colostomy partial. Kranda then improved; however, several days later she developed an abscess which was lanced several times before she returned to St. Luke's Hospital for a complete colostomy. Other than activation of her Crohn's disease, Kranda has had no further complications. She currently has a complete colostomy.\\nAppellant Kranda first claims error in the trial court allowing two panel members to testify regarding their decisions and in admitting each panel member's written opinion because each opinion was based upon casual conversations with other physicians. Kranda refers to Indiana Code 16-9.5-9-4 to support her contention that the only information to be considered under this act is evidence submitted in writing by the parties. While Section 4 might leave that impression if read alone, Section 6 of the same act permits the panel to consult with medical authorities. Kranda argues, however, that this language means only that the panel may consult treatises, journals, medical textbooks and similar medical authorities. Therefore, she contends the panel member's opinions were not formulated in accordance with the statute and members should not be able to testify or have their opinions admitted. We disagree. In construing a statute words used are to be given their usual and ordinary meaning; a court should not so construe a statute as to willfully and unnecessarily narrow its provisions. Evansville-Vanderburgh School Corporation v. Roberts, (1979) Ind.App., 395 N.E.2d 291. To assign Kranda's meaning to the statutory term \\\"medical authorities\\\" would unnecessarily narrow this provision. The ordinary meaning given to \\\"authorities\\\" includes both written materials and individuals qualified in the field. See e. g. Webster's Third New International Dictionary 146 (1976). In addition, the term appears to refer to individuals when read in the context of the section which states that \\\"[t]he panel may consult with medical au thorities.\\\" IC 16.9.5-9-6. Ordinarily one consults with a person rather than a book or written materials.\\nKranda further claims that these consultations are impermissible because she had no opportunity to cross-examine these consulted physicians, had no knowledge of these conversations and could not offer rebuttal evidence. However, Section 5 of the same act provides either party with the opportunity to convene the panel and question members concerning any matters relevant to the issues to be decided by the panel. Thus, she had access to this information in her opportunity to question members as to whether and what consultations were made. She then had the opportunity to offer rebuttal evidence. Her claim is therefore without merit and the admission of testimony and the opinions were not error in this respect.\\nIn addition, Kranda contends that these opinions are inadmissible because panel members were not advised of the law of evidence or legal standards applicable to a medical malpractice case. The record does not support this contention. Dr. Cook, one member of the panel, testified that the panel had a copy of the malpractice statute which the chairman went through in detail in the panel's introductory preparation. Furthermore, the statute contemplates that the panel will function in an informal and reasonable manner. Johnson v. St. Vincent's Hospital, Inc., (1980) Ind., 404 N.E.2d 585. The panel does not conduct a hearing or trial and does not render a decision or judgment. Rather than adjudicate the merits of the claim, its purpose is to conduct a rational inquiry into the extent and source of the patient's injuries for the purpose of forming its expert opinion. Id. at 596. The chairman acts in an advisory capacity only, supervising the panel to assure that each party has a reasonable opportunity to present its evidence and authorities. See, e. g. Johnson, supra. Nothing in the record suggests that the chairman did not fulfill his duty. Furthermore, we find nothing in the statute requiring the panel to comply with the formal rules of evidence in conducting its inquiry. Therefore we cannot find the opinions inadmissible on this basis.\\nKranda also argues that each individual panel member's testimony and written opinion are inadmissible because they are hearsay and are contrary to IC 16-9.5\\u2014 9-7 and IC 16-9.5-9-9 which she con tends provides only for a collegial opinion. We reject the hearsay argument. First, an expert witness can draw upon all sources of information coming to his knowledge or through the results of his investigation, in order to enable him to formulate an opinion. Trinity Universal Insurance Co. v. Town of Speedway, (1965) 137 Ind.App. 510, 210 N.E.2d 95. The fact that the expert consulted with other individuals does not render his testimony hearsay and therefore inadmissible. Id. In Rosenbalm v. Winski, (1975) 165 Ind.App. 378, 332 N.E.2d 249, this court restated the rule in Trinity. The hearsay \\\"considered\\\" must be of a type normally found reliable and customarily relied upon by the expert in the practice of his profession. Rosenbalm, supra. Applying the foregoing to the present case, any hearsay considered by panel members consisted of information from other doctors \\u2014 a source of information normally found reliable and customarily relied upon by experts in the medical profession. In addition Sections 4 and 6 of the Medical Malpractice Act, referred to above, permit consultations with other doctors and also requires panel members to testify if they are called. To accept Kranda's argument would be contrary to the case law of Indiana, as well as this statutory scheme. Thus, the testimony was not inadmissible because the opinions may have been based, in part, on hearsay.\\nKranda finally argues that these opinions are inadmissible because they were not in the form of a collegial opinion which she insists the statute requires. In the present case each panel member submitted his own opinion as part of the panel opinion. We cannot agree that the trial court erred in admitting these separate opinions as part of the whole opinion. Indiana Code 16-9.5-9-9 permits any report of the expert opinion reached by the panel to be admitted and states that such is not conclusive. Further, Kranda's contention would prevent a panel member from dissenting. The statute does not prohibit individual panel member-opinions nor does it indicate that the Legislature contemplated a unanimous concensus in the opinion. In fact Section 10 of the Act contemplates the possibility of not having a majority opinion. Just as this court may issue its opinion in the form of three concurring opinions, so also may the medical review panel issue its opinion in such a manner. Even assuming error in this respect, we could not determine if such was harmful error because Kranda has not provided us with these opinions to review in making this determination. For these reasons, we reject this contention.\\nKranda next argues that the Indiana Medical Malpractice Act, IC 16-9.5-1-1 et seq. is unconstitutional for the following reasons:\\n(a) The Act has a \\\"substantially chilling effect\\\" on the exercise of constitutionally protected rights including the right to redress for injuries, access to the courts, and trial by jury because it requires submission of the claim to the review panel.\\n(b) The Act is vague to the point of being capable of an interpretation violative of constitutionally protected rights by requiring a procedure to be followed that does not provide a method of resolving legal, procedural and evidentiary disputes.\\n(c) The Act violates Article 1 Section 12 of the Indiana Constitution which states in pertinent part: \\\"Justice shall be administered . speedily, and without delay.\\\" by creating a quasi-judicial procedure which results in extended delay before a case can be filed in a Court of Law and which does not provide any method of resolving the controversy.\\n(d) The Act violates equal protection of laws under the Fourteenth Amendment of the United States Constitution and Article 1, Section 23 of the Indiana Constitution for it creates an artificial, arbitrary, and unreasonable legislative classification between persons subjected to its provisions.\\n(e) The Act violates Article 7, Section 1 of the Indiana Constitution in that it constitutes an improper delegation of Judicial Power to the Indiana Department of Insurance.\\n(f) The monetary limitation upon a plaintiff as provided by the Act is an unwarranted violation of the plaintiff's constitutional right to trial by jury in that a jury is not permitted to assess reasonable compensation on an individual basis and the limitation on damages creates an impermissible irrebuttable presumption by depriving an injured person of the right to prove that his individual claim is not excessive, even though it exceeds the Statutory Limitation.\\n(g) The Act violates the due process rights found in the United States and Indiana Constitutions by preventing a patient from recovering reasonable damages commensurate with the injury incurred.\\n(h) The Act violates the right to trial by Jury as guaranteed by the Seventh Amendment of the United States Constitution and Article 1, Section 20 of the Indiana Constitution by increasing the burden of proof imposed upon plaintiffs in overcoming the Medical Review Panel opinion.\\n(i) The Act violates the plaintiff's constitutional right to a trial by an impartial Jury, in that the Medical Review Panel is composed of fellow-doctors and colleagues of the defendant doctor; that these fellow-doctors and colleagues already benefit by the very existence of the Medical Malpractice Act; and that these fellow-doctors and colleagues also benefit directly and indirectly by a finding of no Malpractice in this case since this will serve to keep down the insurance premiums paid by the members of the Medical Review Panel as well as keep down the amount of any future judgment in any possible unrelated Malpractice actions against the Members of this Medical Review Panel.\\nOur Supreme Court in Johnson, supra has upheld the constitutionality of this Act. In Kranda's reply brief, she concedes that Johnson, supra is dispositive of many of these constitutional issues. However, she claims that several issues were not directly discussed in Johnson. Although we disagree, we will briefly address these issues separately.\\nKranda first claims that the court did not address the Act's \\\"chilling effect\\\" on constitutionally protected rights. Kranda urges us to find that the Act has a \\\"substantial chilling effect\\\" on her right to redress for injuries, access to courts and trial by jury because it requires submission of the claim to the review panel. As was noted in Whitaker v. St. Joseph's Hospital, (1981) Ind.App., 415 N.E.2d 737, this argument was indeed specifically rejected when our Supreme Court in Johnson, supra at 591-596, 604 upheld the constitutionality of the Act on this point.\\nKranda next contends that the Act creates a procedure prohibitively costly in time and money without corresponding benefits. The court in Johnson discussed the expense and delay when it said:\\nDelay in the commencement of a trial and the expense of investigating and marshalling evidence are part and parcel of the preparation of any piece of civil litigation. Delay routinely occurs between the decision to prosecute a claim and the trial. Expenses for investigation and preparation attend the pre-trial prep aration of all claims. The panel submission requirement generates evidence admissible at a future trial of the claim. The delay in the trial occasioned by this process and the cost attendant to it are in major part like those to be expected in any case. The participation by the parties in the panel processes will satisfy to a great extent their preparation needs. Such satisfaction will tend to reduce total aggregate time for trial preparation. Thus, the delay complained of will be offset to an appreciable extent. The cost to the party in whose favor the opinion is rendered would be in the range that such party would expect to pay to develop such evidence individually. And the cost to the party against whom the opinion is rendered has been subjected to a cost by the process which would be much the same as he expects to pay to discover his opponent's evidence.\\nJohnson, supra at 592. Our Supreme Court has, therefore, upheld the procedure as not being unduly costly in time or money.\\nKranda also claims that the Act creates a quasi-judicial procedure without an administrative remedy. She relied upon a portion of the Indiana Constitution, Article 1, Section 12 which states \\\"Justice shall be administered . speedily, and without delay.\\\" This procedure was thoroughly analyzed in Johnson, supra at 591-596; Whitaker, supra at 746. Further, the right to trial is fully accorded to the plaintiff after the delay occasioned by the panel submission requirement; her remedy is provided through this adjudicative process in court. Thus, this argument is rejected.\\nHer contention that the Act gives judicial power to the Department of Insurance must also fail. She claims that the Act allows the Department to determine the jurisdiction of the court and that it ousts the civil courts of jurisdiction until the \\\"medical review panel\\\" hands down its opinion which has no force of law. Despite assertions to the contrary the legislature has not delegated judicial power to the Indiana Department of Insurance through this Act. Whitaker, supra, at 746. As this court stated:\\nSuch power clearly resides with the courts. Neither the Indiana Department of Insurance nor the medical review panel makes an adjudication on the merits of a claim. Neither conducts a hearing or a trial and neither renders a decision or a judgment on the claims before it. The Department of Insurance is merely to advise those who inquire as to the status of the health care providers. The medical review panel is to conduct a rational inquiry into the source and extent of the patient's injury for the purpose of forming its expert medical opinion. Johnson, supra at 596. These are not judicial functions.\\nId. The procedure requiring filing of a proposed complaint with the Commission and submission of the claim to the panel before the filing of suit has been upheld in Johnson, supra and requires no further discussion.\\nFinally Kranda claims that the Act violates the separation of powers doctrine. Because the Act permits the panel opinion to be admitted into evidence, she contends that the Legislature has usurped the courts' judicial authority to rule on the admissibility of evidence. This argument was also discussed and rejected in Johnson, supra at 597, 598. Additionally, she makes an argument based on hearsay which we have rejected earlier in this opinion. Therefore, this claim of a violation of the separation of powers doctrine fails as did her other constitutional attacks.\\nWe now turn to Kranda's assignment of error relating to the trial court's refusal to admit certain items into evidence. Kranda first claims the court erred when it refused to permit the entire deposition of Dr. Roseman to be read into evidence. Dr. Roseman testified for Kranda at trial. Notwithstanding his trial testimony, Kranda argues that Roseman's deposition should have been read to the jury because the two panel members who testified considered it in formulating their opinion. The authorities cited by Kranda do not support her contention nor does the Medical Malpractice Act require or even suggest the admission of materials submitted to the panel. Therefore we must consider whether the exclusion was an abuse of discretion. A trial judge has considerable latitude in the admission or rejection of evidence. Lovko v. Lovko, (1978) Ind.App., 384 N.E.2d 166. Because the same facts and opinion were covered in the doctor's trial testimony, the jury already had the information before it which the panel had considered. The trial court's exclusion of the deposition was within its discretion inasmuch as the contents of it were put into evidence through the doctor's trial testimony. See e. g. Auto-Teria, Inc. v. Ahern, (1976) 170 Ind.App. 84, 352 N.E.2d 774; Killion v. Updike, (1974) 161 Ind.App. 577, 316 N.E.2d 837. Therefore the trial court committed no error in excluding the deposition.\\nWe also find no abuse of discretion in the court refusing to admit the panel minutes. The Act does not require their admission. In addition, Kranda first offered them for evidence on recross of a defense witness. As the court correctly noted, the minutes were beyond the scope of the redirect of the witness. The second time the minutes were offered into evidence, defense counsel objected, because they were not listed in the pretrial order. While the pretrial order can be amended, see e. g. Colonial Mortgage Co. of Indiana, Inc. v. Windmiller, (1978) Ind.App., 376 N.E.2d 529, Kranda did not move to have it amended. The court committed no error in sustaining the objection and refusing to admit the minutes.\\nKranda further argues trial court error in granting a judgment on the evidence in favor of defendants Houser and the medical corporation as to the issue of informed consent. In considering a motion for judgment on the evidence, the trial court must look only to the evidence and the reasonable inferences drawn therefrom most favorable to the nonmoving party. To sustain a TR. 50(A) judgment for a defendant, the evidence must be susceptible of but one inference in favor of the moving party and without conflict. Ind.Rules of Procedure, Trial Rule 50(A); Stockberger v. Meridian Mut. Ins. Co., (1979) Ind.App., 395 N.E.2d 1272.\\nIf reasonable persons might differ or if there is any, evidence or legitimate inference to support the plaintiff's allegations, a judgment on the evidence is improper. Id.; Huff v. Travelers Indemnity Company, (1977) 266 Ind. 414, 363 N.E.2d 985. Such a motion \\\"may properly be granted only if there is no substantial evidence or reasonable inference derived therefrom supporting an essential element of the claim: a complete failure of proof.\\\" Ortho Pharmaceutical Corp. v. Chapman, (1979) Ind.App., 388 N.E.2d 541, 544.\\nKranda contends she gave no informed consent because Dr. Houser and the medical corporation failed to warn of the risk of untoward consequences. With the above standard for judgment on the evidence in mind, we must examine Kranda's evidence, if any, relating to necessary disclosures. An action prefaced on the doctrine of informed consent is one based on negligence; therefore, the plaintiff must show (1) a duty owed to her, and (2) a breach of that duty (by falling below the set standard of care) (3) which proximately caused a compensable injury. See e. g. Revord v. Russell, (1980) Ind.App., 401 N.E.2d 763, at 766. Indiana recognizes the duty of a physician to make a reasonable disclosure of material facts relevant to the decision which the patient is requested to make. Id. (citing Joy v. Chau, (1978), Ind.App., 377 N.E.2d 670, 676-77).\\nThe general rule is that expert medical testimony is required to establish the content of such \\\"reasonable disclosure\\\" unless the situation is clearly within the realm of laymen's comprehension as where the disclosure is so obvious that laymen could recognize the necessity of such disclosure. Revord, supra (citing Annot., 52 A.L.R.3rd 1084 (1973)). Experts are ordinarily indispensable to identify and elucidate for the fact finder the risks of therapy and the consequences of leaving existing maladies untreated. Revord, supra at 766 (quoting Canterbury v. Spence, (C.A.D.C.1972) 464 F.2d 772, 786). Because Bartholin cyst surgery is not a matter within the common knowledge or experience of laymen, medical testimony was required to establish a prima facie case under informed consent. Kranda presented two medical witnesses, neither of whom were gynecologists or physicians devoting special attention to Bartholin cyst treatment. Even assuming each to have been competent to testify as to a \\\"reasonable disclosure\\\" for a gynecologist, neither testified that a \\\"reasonable disclosure\\\" would include the risk of injury to the rectum. In fact all medical testimony indicated that such an injury would not be expected. All expert witnesses, including defendant Houser, testified that they had never seen the rectum entered in this type of surgery. Therefore, Kranda failed to show that even if Houser had made a full disclosure, the risk of injury actually suffered (entering the rectum and resulting fistula) should have been among the risks disclosed.\\nKranda did testify that had she known this risk (of cutting the rectum), she would not have submitted to the treatment. However, there is no evidence that revelation of any other risk would have changed her consent. Thus, the only evidence that she would have foregone the treatment was based upon a risk which defendant had no duty to disclose. Because proximate cause is a necessary element in any tort case, there must be a causal relationship between the physician's failure to inform and the injury to plaintiff. Revord, supra. There is no proximate cause if the plaintiff would have submitted to the treatment even if full disclosure had been made. Revord, supra (citing Natanson v. Kline, (1960) 186 Kan. 393, 350 P.2d 1093, modified, 187 Kan. 186, 354 P.2d 670). Because there is no evidence that any risk, other than cutting the rectum, would have negated her consent and because that risk was not established as one which the doctor had a duty to disclose, Kranda has failed to establish that she would not have consented if a full disclosure had been given. Therefore, the judgment on the evidence was proper because there is no evidence to support the element of proximate cause.\\nKranda next contends that Local Rule 7(C) of the Rules of the St. Joseph Superior Court regarding jury selection is an abuse of discretion. The right of a civil litigant to peremptory challenges is granted by Ind.Code 34-1-20-7. However, a trial court, in the exercise of its discretion, may to some extent direct the manner of conducting the impanelling of juries and the manner of exercising the right of peremptory challenges. Cochran v. State, (1978) 269 Ind. 157, 378 N.E.2d 868. Reasonable limitations on such right may be fixed so long as the right of challenge is not taken away, and reasonable opportunity is given to challenge. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Veach v. McDowell, (1962) 133 Ind.App. 628, 184 N.E.2d 149. Local rule 7(C) permits counsel for each party to examine the panel once \\\"without passing\\\" . Each counsel reserves peremptory challenges until all counsel have examined the panel once. When the party is required to exercise his challenges, he has heard the examination by his opponent and has had an opportunity to conduct his own examination. As was noted in Wasy v. State, (1955) 234 Ind. 52, 123 N.E.2d 462, a party then has at hand all the requisite information for making an intelligent choice of whether to challenge those before him. Thus the rule itself is proper.\\nWe have no record of the voir dire examination of the jury or objections made, therefore, we are unable to make a determination as to whether or not the court properly, applied the rule. Appellant has the duty to bring a record which supports his claimed errors and which is sufficient to permit an intelligent decision of the issues. Ind. Rules A.P. 7.2(A)(2); Anderson v. Indiana State Emp. Appeals Commission, (1977) 172 Ind.App. 529, 360 N.E.2d 1040. Thus the issue of whether the rule was properly applied is waived.\\nKranda challenges several instructions given by the trial court. The trial court gave the following instruction over objection:\\n\\\"You are instructed that expert testimony is necessary in this case to establish the standard of care to be exercised by physicians and surgeons. In determining what the standard of care was in the treatment rendered, you will be guided solely by the experts who have testified on the subject and you may not define a standard of care of your own.\\\"\\nA similar instruction was accepted in Davis v. Schneider, (1979) Ind.App., 395 N.E.2d 283. See, also Long v. Johnson, (1978) Ind.App., 381 N.E.2d 93. Kranda argues that such an instruction misleads the jury because it gives the impression that the panel member's opinion is conclusive. No such impression exists. The instruction was given to instruct the jury concerning the establishment of an appropriate standard of care owed by Houser to Kranda. The instruction is sufficiently clear and we do not believe that it would have misled the jury into believing the only experts to consider in determining this standard were the panel members. The general rule in malpractice cases is that, in determining whether the physician and surgeon have exercised ordinary skill and care in the diagnosis of the disease, the treatment of the patient, and the result obtained thereby, the jury must be guided solely by the testimony of physicians and surgeons because of the scientific nature and character of the questions usually involved in such cases. The jury cannot set up standard of skill and care of its own. Davis, supra at 288 (quoting Adkins v. Ropp, (1938) 105 Ind.App. 331, 335, 14 N.E.2d 727, 729). Kranda argues further in her brief that the instruction is defective because expert evidence is not required in that the treatment warranted an inference of lack of care. Because this argument was not the same basis that she argued to the trial court; we need not address this issue. TR. 51(C); Davis, supra.\\nKranda's next allegation of error concerning instructions arises from the court giving the following:\\nIn determining the weight to which the testimony of any expert witness is entitled, you should consider the experience of the witness in the field with respect to which he has testified, how recently he has actively practiced or participated in such field, whether he is familiar with the advanced state of medical practice in such field in the community wherein the defendants have practiced or in similar communities, whether said witness is permitted or prohibited from practicing the specialty, regarding which he testified, in hospitals in the community wherein the defendants practice or in similar communities.\\nIn her brief, Kranda raises only two objections to this instruction which were also raised at trial. She first claims that whether or not the expert witness had experience in the field with respect to which he testified or whether he practiced in it or was familiar with such a field should not be considered in determining the weight to be given to that testimony. We disagree. To qualify as an expert witness on a subject, the witness must have sufficient skill, knowledge or experience in that field in order for his opinion to be of any value to the jury. Davis, supra at 290. The jury may consider what experience or familiarity the witness has in the field about which he testified in determining the weight to be given to such testimony.\\nKranda further argues that the reference in the instruction to \\\"in such field in the community . or in similar communities\\\" applies the \\\"locality rule\\\" which is not applicable to a medical specialist, in particular a Board Certified physician in obstetrics and gynecology where expert testimony suggested a national standard in this field. The \\\"modified locality rule\\\" is accepted as the law in Indiana. Joy v. Chau, (1978) Ind.App., 377 N.E.2d 670. The Supreme Court of Indiana approved an instruction applying the \\\"modified locality\\\" rule to physicians practicing a medical spe-ciality in Worster v. Caylor, (1953) 231 Ind. 625, 110 N.E.2d 337. Id. The rule recently received approval in Bassett v. Glock, (1977) Ind.App., 368 N.E.2d 18. Further, the only expert who was not from the same community was from Chicago. The expert testimony suggested that Chicago was a similar community as related to the practice of gynecology. Thus, even if such instruction were erroneous we do not feel that the instruction could have been the basis of the verdict. Therefore, the giving of it would be harmless error.\\nKranda also challenges the following instruction:\\nYou are instructed in this case that if you find from a fair preponderance of the evidence that the defendants in this case exercised that degree of skill and knowledge in their treatment which was ordinarily possessed by physicians and surgeons in similar circumstances and in similar fields of specialty at the time of this incident, then the plaintiff cannot recover in this action.\\nShe claims that this instruction is improper because it is argumentative, negative and repetitious. Although stated in the negative, it is a correct statement of the law and not argumentative. While we recognize mandatory instructions are not the best type of instructions to give a jury, cases reversing on this ground generally have more than one such instruction urging the jury repeatedly to return a verdict for one of the parties. See White v. Evansville American Legion Home Ass'n, (1965) 247 Ind. 69, 210 N.E.2d 845. In White, supra the court told the jury eighteen different times, in substance, that the plaintiff could not recover. In the present case, we find no other mandatory instruction. Thus, we do not have the situation in White, supra, where the jury could easily conclude that the trial judge is repeatedly urging them to return the verdict for the defendant.\\nFurther, we do not find this instruction unduly repetitious with the Court's Instruction Number 4. The court's instruction is a general statement defining negligence whereas this instruction applies the law to the particular facts of this case. Even if the instruction was repetitious, this court is reluctant to reverse a judgment solely on that ground. Keeshin Motor Express Co. v. Glassman, (1942) 219 Ind. 538, 38 N.E.2d 847. We recognized the principle that unnecessary repetition may be reversible error; however, in any set of instructions there is apt to be some reiteration of the applicable rules of law. Id. [0]nly in exceptional cases, and particularly where from the whole record we cannot fairly say that a correct result was reached, will we attempt to reverse. Keeshin, supra.\\nInstruction Number 11 which is also raised as error reads as follows:\\nYou are instructed that a physician is not bound to use any particular method of treatment; if, among physicians and surgeons of ordinary skill and learning, more than one method of treatment is recognized, it is proper for a doctor to adopt any recognized method of treatment. The fact that another method of treatment existed, or that another physician would have used a different method does not establish negligence.\\nThe chief objection appears to be that the jury was not informed that it must consider the facts and circumstances of this particular case in determining if Dr. Houser selected an appropriate method of treatment. The same objection was raised and rejected in Joy v. Chau, (1978) Ind.App., 377 N.E.2d 670 when it accepted a similar instruction. Kranda's second argument is that the instruction confuses the jury by pointing to one issue. It is elementary that the instructions to the jury must be viewed as a whole and construed in harmony with each other and it is not necessary for any one instruction to contain all the law applicable to the case. Joy, supra (citing Evans v. Breeden, (1975) 164 Ind.App. 558, 330 N.E.2d 116). Other instructions established the duty owed to plaintiff and the standard of care required. When construed together, the instructions adequately address the issue of negligence in making the decision concerning treatment and in performing the surgery. Additionally, the jury was instructed that it must construe all the instructions as a whole and in harmony with each other, and that it must consider the evidence in light of the law as contained in the instructions. When these instructions are read as a whole, they do not mislead the jury.\\nKranda also claims that the court's instruction defining negligence was misleading because it allowed the jury to apply it equally to the plaintiff as well as to the defendants. The instruction provides:\\nNegligence is the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances, or the doing of something which a reasonably careful and prudent person would not have done under the same or like circumstances; in other words, negligence is the failure to exercise reasonable and ordinary care.\\nReasonable and ordinary care is such care as a reasonable, careful and ordinarily prudent person would exercise under the same or similar circumstances.\\nWe do not see how this instruction could cause the jury to consider any contributory negligence of plaintiff. It does not refer to plaintiff. When read in context with the other instructions, it is clear that the instruction is referring to the defendant's basis of liability. Without more we can find no error in the court giving this instruction.\\nThe court's instruction defining proximate cause is claimed to be defective because it refers to proximate cause in the singular; thereby, foreclosing the jury's consideration of more than one cause. Kranda's problem is that she did not object to this instruction when it was read as a Preliminary Instruction. To permit Kranda to contest the rereading of a Preliminary Instruction after it became a Final Instruction would effectively void the statutory language of TR. 51(A) unless the evidence presented or events occurring at trial have changed the possible application of the instructions. See, e. g. Cochrane v. Lovett, (1975) 166 Ind.App. 684, 337 N.E.2d 565. This specific objection was available at the time the preliminary instruction was given and was not affected by the evidence or events at trial. Therefore, this question is waived. Even if not waived we would find no error because Final Instruction Number 10 adequately covered the law of proximate cause, and that defendant's negligence need not be the sole proximate cause. Thus when read as a whole, the instructions defeat this objection.\\nThe objection to the court's instruction number 11 was based on the unconstitutionality of the Medical Malpractice Act which has been held constitutional by our Supreme Court in Johnson v. St. Vincent's Hospital, supra. Therefore, we need not discuss this contention.\\nThe court's instruction number 12 was given which was a peremptory instruction removing the issues of informed consent and liability of the medical corporation from the jury. A peremptory instruction may be given when there is absence of evidence to establish one or more of the elements essential to plaintiff's right to recover. Gibson v. Froman, (1966) 138 Ind.App. 497, 212 N.E.2d 25. Because we have decided the issue of informed consent was properly withdrawn from the jury, this instruction as to that issue was not error. The part of the instruction concerning the medical corporation, although error, was harmless error in view of the verdict in favor of the defendant doctor and our decision that the granting of the TR. 50 motion was harmless error.\\nKranda next contends that the court erred in refusing to give her tendered instructions numbered 1, 2, 3, 4, 5, 12, and 13. In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; (3) whether the substance of the tendered instruction is covered by other instructions which are given. Dahlberg v. Ogle, (1978) Ind., 373 N.E.2d 159, 165 (quoting Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836).\\nKranda's tendered instruction number 1 outlined Houser's duty to use reasonable skill and diligence ordinarily exercised by other members of Houser's profession. The substance of this instruction was specifically set forth in Final Instructions numbered 2, 3, and 6. It is not error to refuse an instruction if the substance is covered by other instructions which are given. Dahlberg v. Ogle, supra.\\nKranda tendered an instruction on res ipsa loquitur which, although a correct statement of the law, was refused because evidence of specific acts of negligence were presented. Presentation of evidence of specific acts of negligence is no longer recognized as a valid basis for removal- of the doctrine of res ipsa loquitur from a lawsuit. New York, Chicago & St. Louis R. Co. v. Henderson, (1957) 237 Ind. 456, 146 N.E.2d 531. However, we must affirm a trial court's action if there is any legal ground upon the record for affirmance, even if the reason given by the trial court is erroneous. Elmore v. City of Sullivan, (1978) Ind.App., 380 N.E.2d 108. Thus we must determine if there was a proper ground for rejecting this instruction.\\nIn Carpenter v. Campbell, (1971) 149 Ind.App. 189, 271 N.E.2d 163 this court discussed the use of this doctrine in a medical malpractice case:\\nAs a general proposition it may be stated that the doctrine of res ipsa loquitur permits negligence to be inferred from the unusual character of an injury suffered when it occurs while a patient and his actions or reactions are under a doctor's care and exclusive control. For the doctrine to be applicable, the injury must be of a character which would not occur but for an act of negligence and it must be caused by an agency or instrumentality within the exclusive control of the physician. In the last analysis, res ipsa loquitur is an evidentiary doctrine \\u2014 a mere method of proof. It is premised upon an assumption that in certain instances an occurrence is so unusual that absent a reasonable justification those in control of the situation should be held responsible.\\nThe doctrine may be invoked in medical malpractice actions, when a layman is able to say that as a matter of common knowledge the consequences of the professional treatment are not those which ordinarily result if due care is exercised when there is no basis of common knowledge for such a conclusion, application of the doctrine may be grounded upon expert testimony. Id. at 271 N.E.2d 167. From the evidence presented, there is no question that the injury occurred while Kranda was under Dr. Houser's care and exclusive control. The issue, then, is whether the injury was of such character which would not ordinarily occur but for an act of negligence. Brook v. St. John's Hickey Mem. Hosp., (1977) Ind.App., 368 N.E.2d 264 (rev'd on different grounds 269 Ind. 270, 380 N.E.2d 72). In the present case, there is no basis of common knowledge for such a conclusion; therefore, we must determine if there is expert testimony to support this conclusion.\\nDr. Cook and Dr. Plain testified that in their combined seventy-five years of clinical experience they had never seen a fistula following a Bartholin gland excision. Dr. Houser stated that he had never entered the patient's rectum in thirty prior Bartholin cyst operations. In addition Dr. Roseman testified that he had not heard of a surgeon entering the rectum via the vagi na. Generally, this evidence would support the conclusion that this injury is one which does not ordinarily occur. However, this evidence is defective in that no expert testified that this injury would not ordinarily occur but for negligence. Furthermore, no one testified that this would not ordinarily occur in Bartholin cyst surgery on a Crohn's disease patient who had one prior surgery and resulting scar tissue. Each, in fact, testified that the situation made the surgery more complicated and more difficult. No one was familiar with a similar situation. Thus, we find no evidence to support the conclusion that the injury was one which would not ordinarily occur in the exercise of due care and the refusal of Kranda's instruction on this subject was proper.\\nKranda next alleges error in the court's refusal of the following tendered instruction:\\nIf you find from a greater weight of the evidence that the symptoms and physical conditions existing in the plaintiff, Mary Kranda, were such as to require a careful and prudent physician and surgeon to make further investigation or more and different tests before making a diagnosis, and if you find from the evidence that the defendant, Keim T. Houser, M.D. did not make such investigations or tests, and if you further find from the evidence that as a direct and proximate result of such failure, if any, the plaintiff Mary Kranda received improper treatment from which she later suffered, then you may find the defendant Keim T. Houser, M.D liable for all the damages and injuries suffered by the plaintiff Mary Kranda as a result of such failure.\\nThis instruction incorrectly states the law. It would permit the jury to consider any evidence to determine if a careful and prudent physician and surgeon would have made further investigation and tests before diagnosis. A court instruction correctly stated that the only evidence to be considered on such an issue is medical expert testimony. Davis, supra; therefore this instruction could mislead the jury, Further, the required care must relate to physicians and surgeons who devote special attention to the ailment, its diagnosis and treatment in similar localities. Bassett, supra. The refusal of a defective instruction is not error. Smith v. State, (1979) Ind., 388 N.E.2d 484. In addition, we note that the substance of this instruction was covered by other court instructions. See, e. g. Evans v. Breeden, (1975) 164 Ind.App. 558, 330 N.E.2d 116. Therefore, the refusal of this instruction was proper.\\nKranda also tendered an instruction that if a physician or surgeon, such as Dr. Houser, knows or should know that a specialist in another field of medicine is required in order to effectuate proper treatment to the patient, it is the duty of the doctor to so advise the patient. As Kranda notes in her brief, this instruction sets out the duty of a doctor to refer a patient to a specialist when the patient's ailment is beyond the doctor's abilities. Rahn v. United States, (1963) 222 F.Supp. 775, 780, 35 A.L.R.3d 349. No expert testified that Dr. Houser should have referred Kranda to another doctor. Dr. Cook testified that he consults with an internist or gastroenterologist when he has a gynecology patient with Crohn's disease. While this testimony could support an instruction concerning a duty of consultation, it does not provide probative evidence of a duty of referral in this case. Therefore, the trial court did not err in refusing this instruction. Furthermore, the legal principle contained in this instruction was also covered in other court instructions given by the court. See e. g. Evans, supra.\\nKranda argues that her tendered instructions concerning the doctor's limited liability for an occurrence of malpractice and the fact that any recovery in excess of the $100,000.00 limitation is recovered from the Patient Compensation Fund should have been given in light of publicity surrounding the medical malpractice \\\"crisis\\\" and the extravagant claims of financial disaster made by the health care industry. While these tendered instructions are correct statements of the law, they are not relevant to the issues at hand. Instructions must be relevant to the issues as formulated at trial, and this requirement is not necessarily satisfied by a correct statement of the law. Hotz v. Gelsthorpe, (1979) Ind.App., 387 N.E.2d 78. The purpose of instructing jurors is to advise them of a particular question they are to determine and to inform them as to the law and how to apply it to the facts as they find them to be from the evidence. Coleman v. Chapman, (1966) 139 Ind.App. 385, 220 N.E.2d 285. There is no question before the jury concerning the subject of these instructions. In addition, the instructions are objectionable not only because they are irrelevant but because they tend to prejudice the jury against the defendant as do other collateral sources of compensation instructions. See, e. g. Miller v. Alvey, (1965) 246 Ind. 560, 207 N.E.2d 633. The instruction was properly refused.\\nKranda finally argues that the trial court erred in granting judgment on the evidence in favor of defendant Houser-Norborg Medical Corporation. The trial court sustained this motion on the basis that a medical corporation cannot be liable for malpractice because it cannot practice medicine. In Birt v. St. Mary Mercy Hosp. of Gary, Inc., (1977) Ind.App., 370 N.E.2d 379 this court held that the corporate entity organized under the Indiana Medical Professional Corporation Act is liable for malpractice committed by one of its members. Therefore, the trial court did err in granting judgment on the evidence as to the corporation when it had also ruled that Kranda had made a prima facie case against defendant Dr. Houser. However, this error was harmless because of the jury's verdict for defendant Houser.\\nKranda argues for the first time in her reply brief that the corporation's liability need not be based on vicarious liability. Rather the corporation can be liable for its own acts of negligence. Because this argument was not included in her motion to correct errors or her original brief and because she failed to direct us to any part of the record which would support this proposition, she has waived this issue. A.R. 8.3(A)(7); see, e. g. Clow Corp. v. Ross Tp. School Corp., (1979) Ind.App., 384 N.E.2d 1077; Highland v. Williams, (1975) 166 Ind.App. 492, 336 N.E.2d 846; Saloom v. Holder, (1974) 158 Ind.App. 177, 307 N.E.2d 890.\\nThe judgment of the trial court is affirmed.\\nHOFFMAN, P. J. (sitting by designation), and MILLER, J., concur.\\n. Her Crohn's disease was first discovered in 1969. Crohn's disease is an inflammation of the ileum of the small bowel and large colon. As a result of this disease, Kranda had already had three feet of her intestine in the right colon removed.\\n. Indiana Code 16.-9.5-9-4 reads in part:\\nThe evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only. The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties and any other form of evidence allowable by the medical review panel. Depositions of parties and witnesses may be taken prior to the convening of the panel. The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in section 7 [16-9.5-9-7], A copy of the evidence shall be sent to each member of the panel....\\n. IC 16-9.5-9-6 provides:\\nThe panel shall have the right and duty to request all necessary information. The panel may consult with medical authorities. The panel may examine reports of such other health care providers necessary to fully inform itself regarding the issue to be decided. Both parties shall have full access to any material submitted to the panel.\\n. IC 16-19.5-9-5 provides:\\nEither party, after submission of all evidence and upon ten [10] days' notice to the other side, shall have the right to convene the panel at a time and place agreeable to the members of the panel. Either party may question the panel concerning any matters relevant to issues to be decided by the panel before the issuance of their report. The chairman of the panel shall preside at all meetings. Meetings shall be informal.\\n. IC 16-9.5-9-3 provides in part:\\nThe attorney shall act as chairman of the panel and in an advisory capacity but shall have no vote. It is the duty of the chairman to expedite the selection of the other panel members, to convene the panel, and expedite the panel's review of the proposed complaint. The chairman may establish a reasonable schedule for submission of evidence to the medical review panel but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities.\\n. IC 16-9.5-9-7 provides:\\nThe panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within [30] days, render one or more of the following expert opinions which shall be in writing and signed by the panelists:\\n(a) The evidence supports the conclusion that defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.\\n(b) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.\\n(c) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.\\n(d) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered: (1) any dis ability and the extent and duration of the disability, and (2) any permanent impairment and the percentage of the impairment.\\n.See note 7 on page 1034.\\n7. IC 16-9.5-9-9 provides:\\nAny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications,' findings, opinions, and conclusions made in the course and scope of duties prescribed by this article.\\n. IC 16-9.5-9-10 provides in part:\\nFees of the panel including travel expenses and other expenses of the review shall be paid by the side in whose favor the majority opinion is written. If there is no majority opinion, then each side shall pay one-half [V2] of the cost.\\n. Local Rule 7(C) of the St. Joseph Superior Court reads in part:\\n\\\"Where counsel conduct some portion of the examination, counsel for each party may examine the panel once without passing. Counsel may be permitted to reopen the examination of passed jurors, on motion, in the discretion of the Court. Counsel shall reserve preemptory (sic.) challenges until all counsel have examined the panel once. All counsel shall then approach the bench and make their challenges in the manner and sequences that.the Judge directs, and shall then pass. Jurors who are not thus excused will be deemed accepted by all parties and may not be examined further by counsel without leave of Court.\\\"\\n. From the context of the rule, \\\"without passing\\\" appears to be used in this paragraph to mean \\\"without accepting.\\\" Thus, counsel can pass the jury once to the opponent for examination without exercising any peremptory challenges.\\n. The objections to this instruction were the same as those considered in determining the propriety of withdrawing these issues from the jury and, therefore, are discussed fully elsewhere in this opinion.\\n. IC 16-9.5-2-2 generally provides that a physician found negligent \\\"is not liable for an amount in excess of $100,000.00 for an occurrence of malpractice\\\" and that any amount in excess of $100,000.00 is recoverable from the patient's compensation fund.\"}"
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+"{\"id\": \"11063612\", \"name\": \"William COWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)\", \"name_abbreviation\": \"Cowell v. State\", \"decision_date\": \"1981-02-23\", \"docket_number\": \"No. 680S166\", \"first_page\": \"839\", \"last_page\": \"842\", \"citations\": \"416 N.E.2d 839\", \"volume\": \"416\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:53:35.702228+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIVAN, C. J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.\", \"parties\": \"William COWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\", \"head_matter\": \"William COWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\\nNo. 680S166.\\nSupreme Court of Indiana.\\nFeb. 23, 1981.\\nHarriette Bailey Conn, Public Defender of Indiana, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.\\nTheodore L. Sendak, Atty. Gen. of Indiana, Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.\", \"word_count\": \"1333\", \"char_count\": \"8474\", \"text\": \"HUNTER, Justice.\\nThe petitioner is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He was convicted by a jury of first-degree murder and sentenced to life imprisonment. The conviction was affirmed by this Court in a unanimous opinion, Cowell v. State, (1975) 263 Ind. 344, 331 N.E.2d 21. His petition now raises this sole issue:\\n1. Whether the defendant was denied his right to effective assistance of counsel.\\nIn post-conviction proceedings, the burden of proof rests with the petitioner to establish his grounds for relief by a preponderance of the evidence. Laird v. State, (1979) Ind., 385 N.E.2d 452; Davis v. State, (1975) 263 Ind. 327, 330 N.E.2d 738. It is the responsibility of the judge hearing the petition to weigh the evidence and judge the credibility of witnesses, and his determination denying relief will be reversed only where the evidence is without conflict and leads unerringly to a result other than that reached by the trial court. Baker v. State, (1980) Ind., 403 N.E.2d 1069; Riner v. State, (1979) Ind., 394 N.E.2d 140.\\nFirst, defendant contends that his representation was inadequate due to a conflict of interest on the part of his trial attorney. The evidence discloses that after defendant's arrest, his wife contacted a local law firm and secured counsel for defendant, paying the firm with her own money. Several days after obtaining legal representation for defendant, she approached this same firm and secured representation for herself concerning some civil matters and an unrelated criminal charge against her.\\nAt the time of defendant's trial, his attorney represented both the defendant and his wife. The wife and her daughter (defendant's stepdaughter) were subpoenaed by the state and testified as witnesses for the prosecution. It is undisputed that the firm was also retained by defendant's wife for the purpose of protecting her daughter whom the wife feared might be culpable as an accessory after the fact for transporting and harboring defendant following the murder.\\nDefendant postulates that there was some sort of a deal between the state and these witnesses that they would testify in exchange for nonprosecution of the respective criminal liabilities facing them. Defendant does not expand upon this argument but we assume he means that whether his trial attorney was actively involved in the alleged \\\"deal\\\" or not, he was probably aware of it and was therefore restrained in his cross-examination of these witnesses, not wanting to jeopardize the chance of favorable treatment for them.\\nEven assuming that such a deal did exist, there are several problems with defendant's argument. First, the wife's testimony as a prosecution witness did not implicate the defendant in any way. Therefore, there was nothing on which to cross-examine which might have placed defendant's attorney in a position of conflict. Second, and most important, while the daughter's testimony did implicate defendant, defendant at no time denied that he had committed the murder. Rather, having made a confession to police and admitting his guilt on the stand, his defense was that of insanity.\\nOn cross-examination, defendant's attorney elicited from the daughter that at the time of the offense, she thought defendant was \\\"sick\\\" and \\\"disturbed.\\\" In addition, although defendant's wife did later give testimony implicating defendant, it occurred during her role as a defense witness in which she described defendant's mental instability consistent with the insanity defense.\\nWe certainly do not dispute case precedent which holds that a defendant is denied his constitutional right to effective assistance of counsel when his trial attorney, without defendant's knowledge and consent, concurrently represents a prosecution witness who gives damaging testimony and whose interests are adverse to those of defendant. Stephens v. United States, (5th Cir. 1979) 595 F.2d 1066; Castillo v. Estelle, (5th Cir. 1974) 504 F.2d 1243; United States ex rel. Williamson v. LaVallee, (E.D.N.Y. 1968) 282 F.Supp. 968; Scott v. District of Columbia, (D.C.Mun.App.1953) 99 A.2d 641, aff'd, (1954) 94 U.S.App.D.C. 227, 214 F.2d 860. However, as noted in United States ex rel. Williams v. LaVallee, supra:\\n\\\"The mere fact of dual representation, standing alone, does not create a Sixth Amendment violation. A conflict of interest must first be established.\\\" Id. at 974.\\nWe agree with the judge presiding at the post-conviction hearing that there was no conflict of interest under the facts of this case. Defendant admitted at the post-conviction hearing that he had told his trial attorney he had done the killing and that he had never proclaimed his innocence to him. Defendant asserted for the first time at the post-conviction hearing that he did not commit the murder. There having been no actual or possible conflict at the time of trial, we are not inclined to view defendant's previously unrevealed claim of innocence as grounds for establishing a conflict of interest and ineffective representation on the part of his attorney. See Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60, cert. denied, (1975) 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841.\\nNext, defendant maintains that his right to effective assistance of counsel was violated because his trial attorney failed to obtain a psychiatrist to examine him and present evidence in his favor in time for trial. He also notes that due to his lawyer's failure to comply with statutory requirements, his motion for a continuance, in which more time was sought in order to secure the services of a particular psychiatrist, was denied. Cowell v. State, (1975) 263 Ind. 344, 331 N.E.2d 21.\\nThe record of the original trial proceedings reveals that defendant's trial attorney represented to the court several days before trial that about a week prior to that, he first learned that several psychiatrists, who had submitted reports earlier indicating that they thought defendant was insane at the time of the crime, had reversed their opinion. He stated that attempts had been made to locate other psychiatrists who would be willing to examine defendant but that these attempts had been fruitless. In the motion for a continuance, defense counsel mentioned the name of a particular psychiatrist whom he thought would agree to examine defendant, but he was currently out of town. The motion was denied, and trial proceeded without any psychiatric testimony being offered on behalf of defendant.\\nEven assuming that defense counsel could have been more diligent in securing a psychiatric examination for defendant, we are not prepared to hold that defendant's representation was so inadequate as to reduce the trial, taken as a whole, to a mockery of justice. Baker v. State, (1980) Ind., 403 N.E.2d 1069; Huggins v. State, (1980) Ind., 403 N.E.2d 332. This Court has consistently sought to determine if and how a defense attorney's alleged inadequacies have harmed defendant at trial. Huggins v. State, supra; Crisp v. State, (1979) Ind., 394 N.E.2d 115.\\nHere, defendant presented no proof at the post-conviction hearing that the psychiatrist whose attendance was sought via the continuance, or any other psychiatrist, would have testified in support of the insanity defense. Besides defendant himself, defense counsel called two lay witnesses who testified as to defendant's mental instability. Also, on cross-examination, defense counsel elicited from two lay witnesses for the state testimony very favorable to the insanity defense. Furthermore, we note that defendant was examined by two court-appointed psychiatrists. They testified that defendant was sane, but defendant's attorney extensively cross-examined them as well as the psychiatrist called by the state. We hold that defendant's contention that he was denied effective assistance of counsel is without merit.\\nFor all the foregoing reasons, there was no trial court error and the judgment of the trial court should be affirmed.\\nJudgment affirmed.\\nGIVAN, C. J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.\"}"
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+"{\"id\": \"11063776\", \"name\": \"ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below)\", \"name_abbreviation\": \"Aluminum Co. of America v. City of Lafayette\", \"decision_date\": \"1980-11-19\", \"docket_number\": \"No. 2-879 A 252\", \"first_page\": \"312\", \"last_page\": \"314\", \"citations\": \"412 N.E.2d 312\", \"volume\": \"412\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:54:28.305034+00:00\", \"provenance\": \"CAP\", \"judges\": \"BUCHANAN, C. J., and SULLIVAN, J., concur.\", \"parties\": \"ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below).\", \"head_matter\": \"ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below).\\nNo. 2-879 A 252.\\nCourt of Appeals of Indiana, Second District.\\nNov. 19, 1980.\\nJohn J. Dillon and William T. Rosenb-aum, Dillon, Hardamon & Cohen, Indianapolis, Thomas L. Ryan, Stuart, Branigan, Ricks & Schilling, Lafayette, for appellant.\\nRichard T. Heide, Kristin F. Magneson and Robert L. Bauman, Lafayette, for ap-pellee.\", \"word_count\": \"857\", \"char_count\": \"5356\", \"text\": \"SHIELDS, Judge.\\nAppellant Aluminum Company of America (Alcoa) appeals from a denial of a remonstrance to annexation by the City of Lafayette (City).\\nWe reverse in part.\\nIC 18-5-10-25 (Burns Code Ed.), which specifies the findings required to sustain the annexation of land by a city, provides in pertinent part:\\n\\\"If the evidence establishes that:\\n(c) The annexing city has developed a fiscal plan and has established a definite policy to furnish the territory to be annexed within a period of three [3] years, governmental and proprietary services substantially equivalent in standard and scope to the governmental and proprietary services furnished by the annexing city to other areas of the city which have characteristics of topography, pattern of land utilization and population density similar to the territory to be annexed; the court shall order the proposed annexation to take place notwithstanding the provisions of any other law of this state.\\\"\\nIn Sedlak v. Town of St. John, Lake County, (1980) Ind.App., 403 N.E.2d 1126 and Stallard v. Town of St. John, Lake County, (1979) Ind.App., 397 N.E.2d 648, it was held that IC 18-5-10-32, which sets out the findings required to sustain the annexation of land by a town and which is substantially identical to IC 18-5-10-25, requires a written fiscal plan and definite policy. We hold that IC 18-5-10-25 also makes this requirement.\\nIn the case at hand, the trial court specifically found:\\n\\\"2. The City developed no specific fiscal plan or definite policy, as such, to furnish the requisite services within three years, contending that it was capable of providing all such services within the time limit.\\\"\\nThe City does not challenge this finding which conclusively establishes the lack of written fiscal plan and definite policy to furnish governmental and proprietary services. Furthermore, the trial court's determination that City had the capability to provide the required services necessarily falls short of a written fiscal plan and definite policy to in fact provide the required services. A finding of capability is not an acceptable substitute in light of the rationale for the requirement of a written fiscal plan and definite policy as set forth in Stallard:\\n\\\"This interpretation of IC 1971, 18-5-10-32(c) is necessary to preserve for landowners of the annexed area the protection intended to be afforded them by the Legislature when, in 1974, it passed IC 1971, 18-5-10-32.5 (Burns 1979 Supp.). That statute authorizes an owner of annexed land to institute proceedings against an annexing town that fails to implement its plan for providing services. As indicated in Harris v. City of Muncie, supra (163 Ind.App. 522, 325 N.E.2d 208), if a written plan duly reflected in the official town records were not required under IC 1971, 18-5-10-32, a landowner filing suit under IC 1971, 18-5-10-32.5 would be faced with attempting to establish a failure to implement a plan whose existence he might be incapable of proving in the first instance. Thus, he would be relegated to tilting with windmills.\\\"\\nStallard at 650.'\\nThe judgment of the trial court denying the remonstrance, therefore, is contrary to law and hereby reversed.\\nThe City, on cross-appeal, asserts the trial court erred in dismissing its counterclaim alleging malicious prosecution and libel for a failure to state a claim upon which relief can be granted. We disagree and affirm the dismissal.\\nThe essential elements of a malicious prosecution action are:\\n\\\"... the prosecution of some legal proceedings by, or at the instigation of, defendant, the absence of probable cause to do so, malice in instituting the proceedings, the termination of such proceedings in plaintiffs favor, and damages sustained by plaintiff.\\\"\\n19 I.L.E. Malicious Prosecution, Ch. 1, \\u00a7 I-\\nDwyer v. McClean, (1961) 133 Ind.App. 454, 461, 175 N.E.2d 50, 53. The subject counterclaim for malicious prosecution on its face complains of the initiation and \\\"continued malicious prosecution\\\" of the remonstrance by Alcoa. Therefore, City pled itself out of court by affirmatively alleging its claim for malicious prosecution had not yet matured. Hunter v. Milhous, (1974) 159 Ind.App. 105, 305 N.E.2d 448. Furthermore, this issue is made moot by our reversal of the trial court's judgment in favor of the City.\\nWe further hold the trial court did not err in dismissing the City's claim for libel. A governmental entity cannot maintain an action for defamation in its own right even if a defendant maliciously publishes the defamatory statements knowing them to be false and with an intent to injure. New York Times Company v. Sullivan, (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Louisiana v. Time, Inc., (1971) La.App., 249 So.2d 328; City of Chicago v. Tribune Co., (1923) 307 Ill. 595, 139 N.E. 86.\\nJudgment reversed in part and affirmed in part.\\nBUCHANAN, C. J., and SULLIVAN, J., concur.\"}"
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+"{\"id\": \"11065855\", \"name\": \"Eileen ALWOOD and Kent Alwood, Appellants-Plaintiffs, v. Claude E. DAVIS, M. D., Appellee-Defendant\", \"name_abbreviation\": \"Alwood v. Davis\", \"decision_date\": \"1980-10-30\", \"docket_number\": \"No. 3-1279A338\", \"first_page\": \"759\", \"last_page\": \"761\", \"citations\": \"411 N.E.2d 759\", \"volume\": \"411\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:10:40.539312+00:00\", \"provenance\": \"CAP\", \"judges\": \"YOUNG, P. J., and MILLER, J., concur.\", \"parties\": \"Eileen ALWOOD and Kent Alwood, Appellants-Plaintiffs, v. Claude E. DAVIS, M. D., Appellee-Defendant.\", \"head_matter\": \"Eileen ALWOOD and Kent Alwood, Appellants-Plaintiffs, v. Claude E. DAVIS, M. D., Appellee-Defendant.\\nNo. 3-1279A338.\\nCourt of Appeals of Indiana, Fourth District.\\nOct. 30, 1980.\\nRehearing Denied Nov. 24,1980.\\nVernon J. Petri and John J. Fuhs, Petri & Fuhs, Spencer, for appellants-plaintiffs.\\nWilliam F. McNagny and John F. Lyons, Barrett, Barrett & McNagny, Fort Wayne, for appellee defendant.\", \"word_count\": \"1351\", \"char_count\": \"8171\", \"text\": \"CHIPMAN, Judge.\\nEileen Alwood brought this medical malpractice action against Dr. Claude Davis. Her husband also brought a loss of consortium action against Davis. The trial court granted Davis' Motion for Summary Judgment as to both actions and Mrs. Alwood brings this appeal. We affirm.\\nAlwood has raised the issue of whether the statute of limitations for medical malpractice is tolled until the patient discovers or has a reasonable opportunity to discover the essential elements of the cause of action.\\nFACTS\\nThe facts, summarized in a light most favorable to the non-moving party, Al-wood, show that in 1965 Alwood, then 16 years old, broke her ankle in a skateboard accident. Davis treated her for this injury by using two screws to set the fracture. Alwood alleges Davis negligently placed the screws and failed to remove them when he should have, causing her injured left leg to grow one and one quarter (IV4) inches longer than her right leg. This difference in length caused Alwood to experience severe back pain.\\nAfter the ankle had healed Alwood complained to Davis on more than one occasion that she experienced pain and swelling of the ankle. Davis instructed her to learn to live with the discomfort and in response to her inquiry, informed her the pain would not be reduced by removing the screws. In 1970 or 1971, while with her husband who was stationed in Texas, she visited doctors for her back pain. They took x-rays of her ankle but did not tie it in with the continued back pain. Alwood last visited Davis in 1973.\\nIn 1975 Alwood visited Dr. Olmsted hoping he could determine the source of her back pain. She then learned about the differing lengths of her legs and Olmsted attributed this difference to the alleged improper treatment ten years earlier of her fractured ankle. Alwood filed this suit within two years of her visit to Olmsted.\\nDavis moved for summary judgment arguing the claim was barred by the two year statute of limitations. The motion was granted by the trial court. On appeal, Al-wood petitions us to interpret or construe the applicable limitation statute to mean the two year period began to run in 1975, when she discovered her cause of action.\\nIn her brief, Alwood does not argue the fraudulent concealment exception found in Guy v. Schuldt, (1956) 236 Ind. 101, 138 N.E.2d 891, accordingly, we will not consider the possible application of that exception.\\nTHE STARTING DATE OF THE LIMITATION PERIOD\\nThe alleged malpractice in this case occurred in 1965 and therefore the applicable limiting statute is IC 34-4-19-1.\\n\\\"34-4-19-1 Malpractice \\u2014 Limitation of actions. \\u2014 No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two [2] years from the date of the act, omission or neglect complained of.\\\"\\nThis statute is not ambiguous. It does not say \\\"within two years from the date of discovery of the act, omission or neglect complained of.\\\" This statute is an occurrence rule, not a discovery rule. The two year period begins to run from the date of the act, omission, or neglect complained of.\\nA1 wood's brief cites several jurisdictions which now employ the discovery rule but with the exception of one case, all of the cases cited deal with jurisdictions whose limiting statutes speak in terms of \\\"within two years after such claim accrues,\\\" or \\\"within two years from the date on which the claimant knew or through the use of reasonable care should have known of the injury,\\\" etc. Our legislature has not seen fit to allow the residents of Indiana this amount of protection.\\nIn Carrow v. Streeter, Ind.App., 410 N.E.2d 1369 (1980), the Second District recently stated, \\\"Indiana courts have ex pressly rejected the so-called 'discovery rule' .\\\" citing Toth v. Lenk, (1975) 164 Ind.App. 618, 330 N.E.2d 336. We disagree with this statement and with this interpretation of the Toth majority opinion. In deciding this case as we have, we find IC 34 \\u2014 4-19-1 cannot reasonably be construed as a discovery rule. We have not though, ruled out the possibility of deciding in a future case that this occurrence rule must be applied as though it was a discovery rule due to the questionable constitutionality of the occurrence rule.\\nThe constitutionality of this limiting statute, as applied to patients unaware of the existence of their cause of action against a professional included within the statute, was not raised nor argued at the trial or appellate levels. Therefore we are prevented from deciding the constitutionality of this statute as it may apply to the situation where the statute of limitations has run on a person before she has any knowledge, either actual or constructive, that her doctor has malpracticed.\\nIn 1974 the Supreme Court in Chaffin v. Nicosia, (1974) 261 Ind. 698, 310 N.E.2d 867, expressed a concern that this statute may violate Article 1, \\u00a7 12 of our constitution guaranteeing open courts and redress for injury for every man. Later, in City of Fort Wayne v. Cameron, (1977) 267 Ind. 329, 370 N.E.2d 338, the Supreme Court refused to strictly apply an occurrence rule in a situation analogous to this case.\\nAlthough the 1975 Medical Malpractice Act, and its similarly worded limiting statute, recently survived constitutional attack in Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585, we do not believe this specific constitutional objection was made by the parties nor was it addressed by the Court. In that case, the appellants Bovas raised an equal protection challenge to the limiting statute based on the classification of claimants by age and by the nature of their actions. In upholding the constitutionality of this section, the Court proceeded from the premise that a manifestation of the malpractice occurred within the two year statute of limitation, or in the case of a child, before its eighth birthday. The Court in Johnson does not address the issue presented in this case.\\nIt is interesting to note that testimony given in one of Johnson's companion cases sheds some light on the number of plaintiffs who are left without a legal remedy under the occurrence rule interpretation of the two year statute of limitations. William J. Davy, a former State Insurance Commissioner, is the President of Medical Protective Company which is the largest insurer of doctors in the state. He testified that when they insure a doctor in year one, by the end of year two they will know of approximately five to seven percent of the claims arising from year one against that doctor. By the end of year three, they will know of approximately 28-29% of the claims. Even accounting for lag time and plaintiffs who could take advantage of the fraudulent concealment exception, this occurrence rule statute still seems to turn away a considerable number of plaintiffs who may have valid claims.\\nThe constitutionality of this result will have to be determined when it is properly presented.\\nThe judgment of the trial court is affirmed.\\nYOUNG, P. J., and MILLER, J., concur.\\n. The Medical Malpractice Act and its similarly worded limiting statute, IC 16-9.5-3-1, applies only to acts of malpractice occurring after June 30, 1975.\\n. The one case cited that does not involve a statutorily mandated discovery rule was Dyke v. Richard, (1973) 390 Mich. 739, 213 N.W.2d 185. In that case the Michigan Supreme Court chose to ignore the clear intent of the Michigan legislature by reasoning the legislature misspoke in an attempt to codify one of its decisions.\\n. Mansur v. Carpenter, (1980) Ind., 404 N.E.2d 585.\"}"
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+"{\"id\": \"11193933\", \"name\": \"Guadalupe A. SANCHEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Sanchez v. State\", \"decision_date\": \"2000-06-05\", \"docket_number\": \"No. 92A03-9908-CR-322\", \"first_page\": \"165\", \"last_page\": \"175\", \"citations\": \"732 N.E.2d 165\", \"volume\": \"732\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:32:51.318126+00:00\", \"provenance\": \"CAP\", \"judges\": \"DARDEN, J., and FRIEDLANDER, J., concur.\", \"parties\": \"Guadalupe A. SANCHEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"Guadalupe A. SANCHEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 92A03-9908-CR-322.\\nCourt of Appeals of Indiana.\\nJune 5, 2000.\\nTransfer Granted Sept. 5, 2000.\\nSusan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.\\nJeffrey A. Modisett, Attorney General of Indiana, Barbara Gasper Hines, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.\", \"word_count\": \"5877\", \"char_count\": \"36238\", \"text\": \"OPINION\\nVAIDIK, Judge\\nAppellant, Guadalupe A. Sanchez, appeals his convictions for Rape, a Class A felony, and Confinement, a Class B felony. Specifically, he contends that the trial court instruction, informing the jury that it could not consider evidence of his voluntary intoxication, violates the Due Course of Law provision of the Indiana Constitution. In 1996, the United States Supreme Court held that states could prevent defendants from presenting evidence of voluntary intoxication to show that they did not have the requisite intent to commit the charged offense. Sanchez acknowledges this holding but argues that the right is preserved under the Indiana Constitution and in particular, the Due Course of Law provision. Our review of the history at the time of the 1851 convention does not reveal that the drafters intended to guarantee a defendant the right to present evidence of intoxication under the Indiana Constitution. Additionally, subsequent case law, analyzing claims under the Due Course of Law provision, have utilized federal due process analysis. Therefore, we disagree that Sanchez is entitled to present evidence of intoxication under the Due Course of Law provision. Moreover, we conclude that even if our constitution does preserve such a right, because Sanchez was not entitled to an instruction on voluntary intoxication, no error can arise from the instruction given. We affirm.\\nFacts and Procedural History\\nOn July 6, 1998, seventeen-year-old H.S. went to the birthday party of Caesar Montezuma at a trailer situated on a horse farm. Sanchez was a guest at the party that began around 9:30 p.m. During the evening, Sanchez drank alcoholic beverages. After a while, the guests, including Sanchez, began dancing. While dancing with some of the female guests, Sanchez began touching their buttocks and between their legs. As a result, Montezuma's girlfriend, Jessica Alvarez, asked Sanchez to leave the party.\\nAround 11:30 p.m., most of the guests left the party. H.S. remained behind with two of her friends. Shortly thereafter, Sanchez returned and knocked on the door of the trailer. Montezuma opened the door and saw Sanchez carrying a 25 caliber semi-automatic handgun. Although H.S., Jessica and another girl attempted to flee, they were summoned back to the trailer. Sanchez then questioned them concerning the whereabouts of another girl who had been at the party. Although they informed Sanchez she was not there, he continued to ask about her. Sanchez then instructed them to bring him all of the telephones in the trailer. Jessica complied with this instruction. Shortly thereafter, Sanchez became convinced that the young woman he was looking for was not at the trailer. Consequently, he grabbed H.S. and forced her at gunpoint to leave with him. He then informed the others that if they moved, he would kill them.\\nSanchez led H.S. to a cornfield where he ordered her at gunpoint to take off her clothes. The defendant then took off his clothes, except for his pants which were at his ankles. Still holding the gun, Sanchez ordered H.S. to lie on the ground where he forced her to engage in sexual intercourse. Sanchez then performed oral sex on H.S. and kissed her. In disgust, H.S. spit which made Sanchez angry. He told her that if she spit again, he would kill her. Sanchez then lay on top of H.S. and began to have sexual intercourse with her again. Before he was finished, he instructed H.S. to get on her hands and knees and penetrated her from behind. Sanchez then ordered H.S. to straddle him and forced her to engage in sexual intercourse again.\\nFollowing the series of rapes, Sanchez allowed H.S. to get dressed. Once H.S. dressed and stood up, Sanchez began kissing her again. He then ordered her to lie on the ground, took off her clothes and engaged her in sexual intercourse again. Sanchez placed his penis in H.S.'s face and taunted her by asking, \\\"You want, you want?\\\" Record at 382.\\nAt that point, H.S., believing that the police would be looking for them, suggested that Sanchez take her to his house. Sanchez agreed and led H.S. by foot to his home which was about three and half miles away. They followed a road for most of the way. Whenever a car approached, Sanchez would hide H.S. in the bushes or ditch. At one point, when they were close to Sanchez's house, H.S. attempted to escape by suggesting that they take different routes to the house. Sanchez refused.\\nEventually they entered Sanchez's house. Sanchez took H.S. to the basement. Because H.S. was cold, she asked Sanchez for a blanket. While Sanchez was upstairs retrieving the blanket, H.S. heard him say to another occupant of the house, \\\"I have a b \\u2014 ch downstairs, Don't mess with us.\\\" Record at 390. When Sanchez returned with the blanket he again forced H.S. to engage in sexual intercourse. At one point during the night, both Sanchez and H.S. saw flashing lights and believed that the police had arrived. When this occurred, Sanchez responded, \\\"Oh \\u2014 it, [t]he f \\u2014 ing cops,\\\" and instructed H.S. to tell the police that she was his girlfriend. Record at 392. Shortly thereafter, Sanchez and H.S. fell asleep.\\nDuring the early morning hours, the police arrived and found Sanchez and H.S. asleep in the bed. The gun, which Sanchez had been carrying, was positioned on the bed near Sanchez's right hand. Sanchez's other hand was positioned under H.S.'s head and neck. Sanchez was placed under arrest and charged with rape and confinement.\\nA jury trial commenced on June 15, 1999. During the trial, the jury was instructed, over Sanchez's objection, that voluntary intoxication was not a defense to the charged offenses. The jury was further instructed that it was not permitted to consider Sanchez's intoxication in determining whether he acted knowingly or intentionally. Thereafter, the jury found Sanchez guilty as charged.\\nDiscussion and Decision\\nSanchez challenges the trial court's instruction which prohibited the jury from considering evidence of voluntary intoxication. That instruction provided as follows: \\\"Voluntary intoxication is not a defense to the charge of rape and confinement. You may not take voluntary intoxication into consideration in determining whether the defendant acted knowingly or intentionally as alleged in the information.\\\" Record at 766. According to Sanchez, the instruction improperly removed consideration of his voluntary intoxication from the jury in violation of the Due Course of Law provision of Article 1, Section 12 of the Indiana Constitution.\\nThe instruction given by the trial court is based upon Ind.Code \\u00a7 35-41-2-5, which went into effect in July 1997. That statute provides that \\\"[ijntoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of IC 35-41-3-5.\\\" I.C. \\u00a7 35^1-2-\\n5. Those requirements include becoming intoxicated without the person's consent or not knowing that the substance might cause intoxication. I.C. \\u00a7 35-41-3-5(l)(2). Sanchez does not suggest that either exception applies. Rather, he argues that our constitution, and in particular, the Due Course of Law provision, guarantees a defendant the right to present evidence of voluntary intoxication.\\nIn support of his argument, Sanchez relies on our supreme court's decision in Terry v. State, 465 N.E.2d 1085 (Ind.1984). There, the court concluded that the legislature could not prohibit a defendant from offering evidence of voluntary intoxication in his defense. At issue was a prior version of I.C. \\u00a7 35-41-3-5, which provided that voluntary intoxication was a defense only to the extent it negated an element of an offense \\\"referred to by the phrase 'with intent to' or 'with an intention to.' \\\" Id. at 1087. Relying primarily on Sills v. State, 463 N.E.2d 228 (Ind.1984) and incorporating the rationale of that opinion, our supreme court concluded that the statute violated both the state and federal constitutions because it prevented the jury from considering a factor which tended to show whether the defendant possessed the requisite mens rea. Id. at 1088. The court explained its decision as follows:\\nIn order to form intent in any event the perpetrator must be acting consciously and competently. Any situation which renders the perpetrator incapable of forming intent frees him from the responsibility of his acts.... [I]f intoxication, whether it be voluntary or involuntary, renders that individual so completely non compos men-tis that he has no ability to form intent, then under our constitution and under the firmly established principles of the mens rea required in criminal law, he cannot be held accountable for his actions, no matter how grave or how inconsequential they may be.\\nId. (quoting Sills, 463 N.E.2d at 242) (emphasis in original) (citations omitted). The court further explained:\\nAny factor which serves as a denial of the existence of mens rea must be considered by a trier of fact before a guilty finding is entered. Historically, facts such as age, mental condition, mistake or intoxication have been offered to negate the capacity to formulate intent. The attempt by the legislature to remove the factor of voluntary intoxication, except in limited situations, goes against this firmly ingrained principle.\\nId. Finally, the court concluded by stating that \\\"a defendant in Indiana can offer a defense of voluntary intoxication to any crime.\\\" Id.\\nIn 1996, the United States Supreme Court held that a state could prohibit a criminal defendant from offering evidence of voluntary intoxication to negate the requisite mens rea without violating the Due Process Clause of the Fourteenth Amendment. Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). In that case, the defendant was charged with purposely or knowingly causing the death of another. During trial, the jury was instructed under Minnesota law that it could not consider the defendant's intoxicated condition in determining whether he acted with the requisite intent. Id. at 41, 116 S.Ct. 2013. In determining whether the statute violated the Due Process Clause, the Court initially noted that the right to introduce relevant evidence is not absolute and that a state is permitted to restrict certain evidence under its rules of evidence. Id. at 42-43, 116 S.Ct. 2013. The Court then set forth the following analysis to determine whether the statute violated the Due Process Clause:\\n\\\"Preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and . we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally 'within the power of the State to regulate procedures under which its laws are carried out,' . and its decision in this regard is not subject to proscriptions under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' \\\"\\nId. at 43, 116 S.Ct. 2013 (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)) (citations omitted). Accordingly, the Court stated that in order to find a violation of the Due Process Clause, the defendant was required to show that his right to present evidence of voluntary intoxication is a fundamental principle of justice. Id.\\nTo make that determination the Court engaged in a historical analysis of the intoxication defense and found that although \\\"by the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged,\\\" at early common law, evidence of intoxication was emphatically disallowed. Id. at 46-47, 116 S.Ct. 2013. The Court concluded that because the intoxication defense had not gained \\\"sufficiently uniform and permanent allegiance, to qualify as fundamental\\\" the right to present evidence of intoxication was not protected under the Due Process Clause. Id. at 51, 56, 116 S.Ct. 2013.\\nSanchez acknowledges the United States Supreme Court's holding and concedes, as has been noted by our supreme court, that Terry is no longer good law to the extent it found that prohibiting evidence of voluntary intoxication violates the Due Process Clause. See State v. VanCleave, 674 N.E.2d 1293, 1303 n. 15 (Ind.1996) (noting that \\\"to the extent [Terry ] suggested Ind. Code \\u00a7 35-41-3-5(b) violates federal due process guarantees\\\" Terry was no longer good law in light of Montana v. Egelhoff), reh'g denied, on reh'g in part, 681 N.E.2d 181, cert. denied, \\u2014 U.S. -, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998); Horan v. State, 682 N.E.2d 502, 508 n. 5 (Ind.1997) (reiterating the comments from VanCleave but also noting that VanCleave did not further comment on \\\"the precedential value of Terry in light of Egelhoff\\\" and that therefore \\\"that question remains open\\\"), reh'g denied. See also Bassie v. State, 726 N.E.2d 242, 243 n. 1 (Ind.2000) (again recognizing that Terry had been overruled by Egelhoff with regard to federal due process claims but declining to further comment on the viability of Terry). Accordingly, Sanchez raises his claim under the Indiana Constitution and in particular the Due Course of Law provision of Article 1, Section 12. Although Terry did not refer to a specific part of the Indiana Constitution, because Sanchez appears to be arguing that it should be based upon the Due Course of Law provision, we focus our analysis on that provision to determine whether it provides greater protection than its federal counterpart.\\nWhen interpreting a provision under the Indiana Constitution, we \\\"search for the common understanding of both those who framed it and those who ratified it.\\\" Collins v. Day, 644 N.E.2d 72, 75 (Ind.1994). We examine the language of the provision in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution and the cases interpreting the provision. Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996). \\\"The intent of the framers of the Constitution is paramount in determining the meaning of a provision.\\\" Eakin v. State ex rel. Capital Imp. Bd. of Managers of Marion County, 474 N.E.2d 62, 64 (Ind.1985). Thus, we examine the history of the times and the state of things when the constitution was framed and adopted. Richardson v. State, 717 N.E.2d 32, 38 (Ind.1999). The court's goal is to ascertain \\\"what the particular constitutional provision was designed to prevent.\\\" Northern Ind. Bank and Trust Co. v. State Bd. of Finance of Ind., 457 N.E.2d 527, 529 (Ind.1983).\\nInitially, we note that we were unable to locate any meaningful discussions from the convention debates or journals regarding the Due Course of Law provision itself. We were able, however, to locate discussions concerning the common law from which the intoxication defense originated and public sentiment concerning intoxicating liquors. In order to understand the full impact of those discussions, we must first examine the history of the intoxication defense. We will then turn to the specific comments made with regard to the common law and the public sentiment concerning intoxicating liquors.\\nAt early common law, intoxication was not a defense because it was considered a \\\"gross vice\\\" and a crime in itself. Egelhoff, 518 U.S. at 44-46, 116 S.Ct. 2013 (citation omitted). This viewpoint prevailed until the late 1800s. Id. at 47, 116 S.Ct. 2013. Although the emergence of the \\\"new rule\\\" allowing evidence of intoxication in specific intent crimes was first raised in an 1819 English case, that viewpoint was not embraced outright, with the majority of the states refusing to allow evidence of intoxication as a defense until the end of the 19th century. Id. at 46-47, 116 S.Ct. 2013.\\nIndiana followed the early development of the common law. Carter v. State, 408 N.E.2d 790, 797 (Ind.Ct.App.1980). It was not until 1860 that our supreme court first recognized that evidence of intoxication might be permitted for crimes involving \\\"certain grades of homicide.\\\" O'Herrin v. State, 14 Ind. 420, 1860 WL 4131 (1860). That first pronouncement, however, was dicta in that the defense was not allowed because the defendant was appealing a conviction for larceny. Id. In 1890, our supreme court specifically recognized that evidence of intoxication was admissible in a homicide prosecution to reduce a conviction from first to second degree murder. See Aszman v. State, 123 Ind. 347, 24 N.E. 123, 126-27 (1890). Eventually, in 1901, our supreme court extended that ruling to allow evidence of intoxication in all specific intent crimes. See Booher v. State, 156 Ind. 435, 60 N.E. 156, 160 (1901). With this history in mind, we now turn to the discussions regarding the common law and intoxicating liquors made during the constitutional convention.\\nAt the convention, a proposal was made to abolish the common law of England. JOURNAL OF THE CONVENTION OF THE PEOPLE of the State of Indiana to Amend the Constitution 276 (1936) [hereinafter Convention JOURNAL]. This proposal was not seriously considered, and therefore, did not pass. 1 Report of the Debates of the Convention for the Revision of the Constitution of the State of Indiana 722-24 (1851) [hereinafter Convention Debates]. Thus, the common law was preserved. One aspect of the common law, however, was changed - the requirement of indictment by a grand jury. Under the constitution of 1816, the use of the grand jury, which originated in England, was retained. Constitution Making in Indiana 251 (1916); 1 Convention Debates at 137. Under the 1851 constitution, the legislature was given the prerogative to abolish its use. Ind. Const, art. 7, \\u00a7 17. During the debates on the abolishment of the grand jury, it was noted:\\nI am aware that the Grand Jury is a secret and ex parte tribunal, and that its origin is English, and comes from an age of despotism; but it is equally true that but two governments in the world know anything of Grand Juries . I refer to England and the United States. It is true, we long since separated ourselves from, and dissolved all connection with the British Crown; but it is equally true, that there are many valuable laws and institutions which we have derived from the mother country.\\n1 Convention Debates at 142. The proposal to abolish the common law and the abolishment of the grand jury, as well as the comments made in relation thereto, are important for several reasons.\\nFirst, the comment recognizing the \\\"many valuable laws and institutions\\\" from England shows that the drafters were well acquainted with the common law of England and considered it sound with regard to many areas of the law. Thus, it is reasonable to assume that the drafters in 1851 were familiar with the early common law rule prohibiting use of intoxication as a defense. Second, the decision to abolish the grand jury shows that the drafters knew how to change parts of the common law with which they did not approve. Had they disapproved of the early common law rule prohibiting evidence of voluntary intoxication, a proposal to change that law could have been made. Finally, the refusal to abolish the common law in its entirety reveals the drafters' intent to preserve those parts of the common law as they existed at the time. In particular, by failing to abolish the common law rule with regard to voluntary intoxication, they preserved the majority rule at the time which was to disallow that evidence as a defense.\\nPublic sentiment regarding intoxicating liquors at the time of the convention also aids this court in understanding the state of things existing at the time of the convention. Drunkenness was condemned as evidenced by the proposals and petitions made during the convention. For example, proposals to insert a clause in the constitution, prohibiting the legislature from \\\"passing any law permitting license for the sale of spirituous liquors\\\" were made. 2 Convention Debates at 1434; Convention Journal at 193. The purpose of the proposals was to prevent the State from benefiting in any way from the sale of liquor. See 2 Convention Debates at 1434 (desiring \\\"that the State should not receive one farthing of the profits accruing from your accursed business\\\"). The following comments were also made with regard to one of the proposals: \\\"We say to the community at large, to the philanthropist and the Christian, the field is clear, gird on your armor, harness yourselves for the contest; go forth, and if you can, with the great lever of public opinion, level to the ground every grog shop in the country.\\\" Id. Petitions to prohibit the traffic of alcoholic beverages were also presented by the citizens of Harrison and Jefferson Counties and the Indiana Conference of the Methodist Episcopal Church. Convention Journal at 123, 164, 322. In light of these petitions, comments and proposal, it is difficult to imagine that the drafters seriously considered preserving a defendant's right to present evidence of voluntary intoxication as a defense to a charged offense.\\nIt is also important to note that our state provision was enacted before the federal provision. Our constitutional provision was enacted in 1851. The Fourteenth Amendment to the United States Constitution, which contains the Due Process Clause, was not ratified by the states until 1868. U.S. Const, amend. XIV, \\u00a7 1 (West's Ind.Code Ann.). Because the federal provision was not even in existence at the time our Due Course of Law provision was enacted, the drafters could not have intended to provide protection analogous to or greater than that provided under the Due Process Clause. Recently, our supreme court pointed out that the term \\\"due process\\\" does not even appear in the Indiana Constitution. See Board of Zoning Appeals, Bloomington, Ind. v. Leisz, 702 N.E.2d 1026, 1028 (Ind.1998). Thus, it is questionable whether the Due Course of Law provision should even be considered analogous to the Due Process Clause.\\nNevertheless, numerous decisions following the enactment of the Due Course of Law provision have done so. See Kizer v. Town of Winchester, 141 Ind. 694, 40 N.E. 265, 267 (1895) (reviewing challenge to statute under Due Process Clause and Due Course of Law provision using single analysis); Vandalia R. Co. v. Stilwell, 181 Ind. 267, 104 N.E. 289, 290-91 (1914) (treating constitutional challenge under Employers' Liability Act of 1911 similarly under Due Process Clause and Due Course of Law provision), abrogated on other grounds; Wright v. House, 188 Ind. 247, 121 N.E. 433, 437 (1919) (\\\"The discussion of the 'due process of law* provision of the federal Constitution is applicable to [Article 1, Section 12] of the state Constitution.\\\"); Mack v. State, 203 Ind. 355, 180 N.E. 279, 283 (1932) (noting that the \\\"[d]ue process of law, or 'due course of law' in the courts is guaranteed by section 12, art. 1, Indiana Constitution . to 'every man, for injury done him in his person, property or reputation' \\\"); Dowd v. Harmon, 229 Ind. 254, 96 N.E.2d 902, 905 (1951) (finding no violation of due process under \\\"either the Constitution of Indiana or the Federal Constitution\\\"); State ex rel. Evansville City Coach Lines, Inc. v. Rawlings, 229 Ind. 552, 99 N.E.2d 597, 604 (1951) (treating procedural due process claims under the Fourteenth Amendment and Article 1, Section 12 similarly); Rader v. State, 181 Ind.App. 546, 393 N.E.2d 199, 203 (1979) (using same analysis to address claims under Due Process Clause and Due Course of Law provision); Scalf v. Berkel, Inc., 448 N.E.2d 1201, 1203 (Ind.Ct.App.1983) (finding that the Due Course of Law provision is a \\\"constitutional provision analogous to the due process clause of the Fourteenth Amendment\\\"); Wilhoite v. Melvin Simon & Associates, Inc., 640 N.E.2d 382, 387 (Ind.Ct.App.1994) (\\\"Indiana courts have construed the 'due course of law' protection of Article 1, Section 12 of the Indiana Constitution as analogous to the federal due process clause.\\\"); Shook Heavy and Envtl. Constr. Group v. City of Kokomo, 632 N.E.2d 355, 361 (Ind.1994) (analysis used under Due Process Clause of Fourteenth Amendment is applicable to Due Course of Law provision of Indiana Constitution); Haimbaugh Landscaping, Inc. v. Jegen, 653 N.E .2d 95, 104-05 (Ind.Ct.App.1995) (stating that the Indiana Due Course of Law provision of Article 1, Section 12 is analogous to Due Process Clause of Fourteenth Amendment), reh'g denied, trans. denied; Indiana High Sch. Athletic Ass'n, Inc. v. Carlberg, 694 N.E.2d 222, 241 (Ind.1997) (same analysis is applicable to claims brought under Due Process Clause of United States Constitution and Due Course of Law provision of Indiana Constitution), reh'g denied; Reynolds v. State, 698 N.E.2d 390, 392 (Ind.Ct.App.1998) (\\\"Both the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Indiana Constitution prohibit state action which deprives an individual of life, liberty or property without due process.\\\"), trans. denied; Martin v. Richey, 711 N.E.2d 1273, 1283 n. 10 (Ind.1999) (\\\"Indiana jurisprudence also includes another line of cases which focus on the phrase 'due course of law,' and have construed this phrase as affording procedural rights analogous to those afforded by the Due Process Clause of the Fourteenth Amendment of the United States Constitution.\\\").\\nHaving noted the long line of cases treating the provisions similarly, we also recognize some cautionary language set forth by Justice Dickson in a dissenting opinion in Carlberg. In that case, Justice Dickson noted that although the court in Shook seemingly extended federal due process analysis to Article 1, Section 12 claims, the analysis should not necessarily be treated as coextensive with federal due process jurisprudence. Carlberg, 694 N.E.2d at 247. This statement was indeed prophetic, as most recently a plurality of our supreme court attempted to set forth the similarities and differences between the federal Due Process Clause and Article 1, Section 12 and seemingly rejected the long line of cases which had treated the two provisions similarly in all cases. See McIntosh v. Melroe Co. (2000), 729 N.E.2d 972, 974-975, 975-976. In particular, the plurality drew lines with regard to procedural and substantive claims brought in civil and criminal cases. With regard to criminal cases, the plurality seemed to indicate, in dicta, that procedural claims should be raised, not under Article 1, Section 12, but under other provisions of the state constitution and that substantive due course of law claims would be \\\"analogous to federal substantive due process.\\\" McIntosh, 729 N.E.2d at 976. Despite these broad pronouncements, the plurality still recognized, without approval or disapproval, that there have been numerous criminal claims raised under Article 1, Section 12 under the guise of \\\"due process.\\\" McIntosh, 729 N.E.2d at 976 n. 2. Although it is not entirely clear what remains of due course of law claims raised in criminal cases, there still is no indication that Article 1, Section 12 or, in particular the Due Course of Law provision, provides greater protection or a different analysis than the federal Due Process Clause with regard to the claim Sanchez brings. Further, we are unable to find anything in our history at the time of the convention which suggests a different analysis should be applied under the Due Course of Law provision. Moreover, Sanchez does not suggest what that analysis might be. Rather, he argues only for a different result because of other state constitutional provisions.\\nDeveloping a constitutional argument under the Indiana Constitution requires an explanation as to how the state provision should be analyzed apart from the federal provision, not just that the result should be different. Absent argument or authority demonstrating a different analysis, this court will apply the federal analysis. See Rynerson v. City of Franklin, 669 N.E.2d 964, 966 n. 1 (Ind.1996) (where defendant fails to provide argument or authority that analysis under Due Course of Law Provision is different than analysis used under Due Process Clause, issue will be analyzed under Due Process Clause).\\nHere, the analysis used by the United States Supreme Court to determine whether prohibiting evidence of voluntary intoxication violated the Due Process Clause is whether prohibiting the evidence offends a principle of justice so rooted in the traditions and conscience of our people so as to be ranked fundamental. Sanchez's duty on appeal, therefore, was not only to explain why the Due Course of Law provision requires a different result but to set forth a different analysis. As Sanchez has failed to do so, and we are not convinced that a separate analysis exists, we apply the analysis used by the Egelhoff court and conclude that precluding such evidence does not violate the Due Course of Law provision.\\nIn light of the U.S. Supreme Court's analysis in Egelhoff and our state's reliance on the early common law, we are constrained to disagree with the Terry court statement that allowing evidence of intoxication is a \\\"firmly ingrained principle.\\\" Further, as subsequent Indiana case law has applied federal due process jurisprudence to analyze Indiana Due Course of Law claims, we can conclude only that Terry is also no longer good law with regard to its holding under the Indiana Constitution in light of Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). Thus, the current version o\\u00ed I.C. \\u00a7 35^41-3-5 does not violate the Due Course of Law provision of the Indiana Constitution. As a result, the trial court did not err by instructing the jury that it could not consider evidence of Sanchez's intoxication in determining whether he acted with the requisite intent. While we recognize that there may well be sound reasons based in justice and fair play to permit evidence of voluntary intoxication, as set forth in our 1851 Constitution, the Due Course of Law provision does not preserve that right.\\nFinally, even if the state constitutional right to present evidence of voluntary intoxication is still viable under the Due Course of Law provision or otherwise, the trial court's decision to disallow the jury from considering evidence of voluntary intoxication is harmless error. In Terry, after concluding that evidence of voluntary intoxication could be offered as a defense to any crime, the court provided the following comments concerning the limitations of the intoxication defense:\\nThe potential of this defense should not be confused with the reality of the situation. It is difficult to envision a finding of not guilty by reason of intoxication when the acts committed require a significant degree of physical or intellectual skills. As a general proposition, a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill.\\nTerry, 465 N.E.2d at 1088. Applying that proposition, the court concluded that although there' was evidence that the defendant had been drinking, there was also evidence that he drove a car, directed other people and made decisions to follow a course of action. Thus, the court concluded that the trial court did not err by refusing the defendant's tendered instruction on voluntary intoxication \\\"as no reasonable doubt existed that the appellant had the intent to commit the act for which he was charged.\\\" Id.\\nThus, an adequate evidentiary basis for an intoxication instruction exists only if the evidence could create a reasonable doubt in the jury's mind that the accused had the intent to commit the charged offense. Gibson v. State, 516 N.E.2d 31, 32 (Ind.1987). The degree of intoxication is immaterial as long as the defendant was able to form the requisite intent. Id. at 33. Therefore, even if a defective instruction is given, if the evidence does not support an instruction on voluntary intoxication, there can be no error. See Horan v. State, 682 N.E.2d 502, 509 (Ind.1997) (finding that defendant was not entitled to instruction on voluntary intoxication where defendant devised plans, operated equipment, instructed others and carried out acts requiring physical skill, and therefore, giving defective instruction could not result in error), reh'g denied; Babbs v. State, 621 N.E.2d 326, 330 (Ind.Ct.App.1993) (concluding that there was no error in giving instruction where defendant was not entitled to instruction on voluntary intoxication as evidence revealed drinking did not impair defendant's ability to obtain rope, tie up victim, commit the robbery in a secluded area of the store, search for money, warn his accomplice when the police arrived and escape, and recall events at trial), trans. denied.\\nHere, the evidence of voluntary intoxication could not create a reasonable doubt in the jury's mind that Sanchez had the intent to commit the charged offense, despite the fact he may have consumed large amounts of alcohol. Sanchez was able to hold four people at gunpoint while inquiring as to the whereabouts of one of the girls who attended the party. Prior to taking H.S. hostage, he had the wherewithal to take both phones so no one could call for help. He led his victim to a secluded place, away from detection, to carry out the rapes. He had the physical ability to rape H.S. several times in different positions. After the rapes occurred, he was able to lead his victim out of the cornfield and to his home which was three and a half miles away. While walking, he avoided detection by hiding from approaching cars. Sanchez also had the capacity to know that H.S. was attempting to escape as they neared his house. Three to four hours after he abducted H.S., he still had the ability to rape H.S. again. When San chez thought that the police had detected him, he made statements which revealed that he knew what he was doing and was able to devise a story to avoid arrest. Finally, before they fell asleep, he had the foresight to place the gun near his right hand and his left hand under the victim's head to prevent her from escaping. Under these circumstances, there is no doubt that the alcohol did not impair Sanchez's ability to think and function, regardless of Sanchez's state of consciousness following his arrest. As Sanchez was not entitled to a jury instruction on voluntary intoxication, any instruction given could not have amounted to error.\\nJudgment affirmed.\\nDARDEN, J., and FRIEDLANDER, J., concur.\\n. Ind.Code \\u00a7 35-42-4-1.\\n. Ind.Code \\u00a7 35-42-3-3(1).\\n. The majority opinion was written by Justice Scalia with whom Chief Justice Rehnquist, Justice Kennedy and Justice Thomas concurred. Justice Ginsburg concurred in the judgment with separate opinion.\\n. See Reply Brief at 3 (\\\"[W]hile both federal and state analyses may be the same . the result under the state constitution is different because the Indiana Constitution grants procedural rights different from those provided by the federal bill of rights.\\\").\\n. Specifically, Sanchez argues that the Due Course of Law provision, when read together with Article 1, Section 13, which guarantees a defendant the right to be heard by himself and counsel, Article 1, Section 19, which gives the jury the right to determine law and facts, and Article 1, Section 23, which prohibits the legislature from granting to any class of citizens privileges or immunities which do not equally belong to all citizens, guarantees a defendant the right to present evidence of voluntary intoxication.\"}"
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+"{\"id\": \"11197991\", \"name\": \"Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)\", \"name_abbreviation\": \"Spears v. State\", \"decision_date\": \"2000-10-06\", \"docket_number\": \"No. 49S00-9908-CR-430\", \"first_page\": \"1161\", \"last_page\": \"1169\", \"citations\": \"735 N.E.2d 1161\", \"volume\": \"735\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:25:27.286784+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.\", \"parties\": \"Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\", \"head_matter\": \"Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\\nNo. 49S00-9908-CR-430.\\nSupreme Court of Indiana.\\nOct. 6, 2000.\\nKathleen M. Sweeney, Indianapolis, Indiana, Attorney for Appellant.\\nKaren Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.\", \"word_count\": \"3331\", \"char_count\": \"20334\", \"text\": \"BOEHM, Justice.\\nJoshua E. Spears was convicted of murder, felony murder, conspiracy to commit robbery, and robbery as a Class A felony. The trial court merged the felony murder and the murder convictions and the conspiracy to commit robbery and the robbery convictions, and sentenced Spears to sixty-five years for murder to be served consecutively with fifty years for robbery. In this direct appeal, Spears contends that (1) the Indiana Double Jeopardy Clause requires that his Class A felony robbery conviction be reduced to a Class C felony, and (2) the trial court found an improper aggravating circumstance, failed to find significant mitigating circumstances supported by the record, and imposed a manifestly unreasonable sentence. We remand to the trial court with instructions to reduce the robbery conviction to a Class C felony and otherwise affirm the judgment of the trial court.\\nFactual and Procedural Background\\nIn August of 1998, Jeremy Gross was an employee of the Convenient Food Mart in Indianapolis. Gross planned to rob the store and invited Spears and James Learned to join him. Learned declined, but at approximately 2:40 a.m. on August 26, Spears and Gross approached the Convenient Mart where Christopher Beers was the sole employee on duty. The doors of the store were locked from 12:00 a.m. to 6:00 a.m., but Beers could allow people to enter by \\\"buzzing\\\" them in. Immediately after Beers allowed Gross and Spears to enter, Gross, who was following Spears, raised a handgun, shot Beers in the abdomen, and continued shooting at the fallen clerk as he walked behind the counter. Spears initially stood beside Gross when he opened fire but then ran to the video recorder serving four surveillance cameras. When the eject button did not work, Spears took the entire VCR. Spears and Gross then grabbed $650 from the cash register, disabled the two telephones in the building, and fled. Beers followed outside and attempted to use the payphone. He managed to take the phone off the hook, but then collapsed on the sidewalk, where he died of multiple gunshot wounds.\\nSpears and Gross disposed of the VCR and gun in a nearby pond. They then went to Learned's trailer to count their money. Witnesses, including a passing motorist, led police to Gross, who later confessed and implicated Spears. Spears was charged with murder, felony murder, conspiracy to commit robbery, and robbery as a Class A felony. A jury found him guilty of all counts. The trial court merged the felony murder and murder convictions, also merged the conspiracy to commit robbery and robbery convictions, and then sentenced Spears to sixty-five years for murder and fifty years for robbery, to be served consecutively.\\nI. Double Jeopardy\\nSpears contends that his dual convictions for murder and robbery as a Class A felony violate the Indiana Double Jeopardy Clause. He bases his claim on the \\\"actual evidence test\\\" enunciated by this Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). The Indiana Double Jeopardy Clause prohibits multiple convictions if there is \\\"a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.\\\" Richardson, 717 N.E.2d at 53; accord Wise v. State, 719 N.E.2d 1192, 1201 (Ind.1999). Serious bodily injury differentiates the Class A felony from robbery as a Class C felony. Ind.Code \\u00a7 35-42-5-1 (1998). Where a robbery conviction is elevated to a Class A felony based on the same serious bodily injury that forms the basis of a murder conviction, the two cannot stand. Logan v. State, 729 N.E.2d 125, 136-37 (Ind.2000); Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind.2000); Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.1999); Hampton v. State, 719 N.E.2d 803, 808-09 (Ind.1999).\\nHere, the jury was instructed that to find Spears guilty of robbery as a Class A felony the State had to prove that he knowingly took property from another person by putting that person in fear or using .or threatening the use of force and that serious bodily injury resulted to the other person. The State argues that Spears' claimed violation of the actual evidence test should fail because \\\"the jury could have reasonably applied different evidence to support each offense.\\\" Specifically, the State points to the fact that Gross fired several shots at Beers. However, the charging information, which was read to the jury as part of the instructions, alleged that the serious bodily injury was the \\\"death\\\" of Christopher Beers. Moreover, no other serious bodily injury was asserted as a basis for the elevation of the robbery during closing argument. Under these circumstances there is at least a reasonable possibility \\u2014 if not a near certainty\\u2014 that the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing an essential element of robbery as a Class A felony. The fact that more than one shot was fired does not alter this conclusion. Absent a specific instruction requiring the jury to base a Class A felony robbery conviction on a serious bodily injury other than death, there is a reasonable possibility that the jury used the same evidentiary facts to support a murder conviction and a Class A robbery conviction. Accordingly, the robbery conviction must be reduced to a Class C felony.\\nThe State argues that the Indiana Double Jeopardy claim should fail for a number of novel reasons, none of which have merit. First, the State contends the state constitutional argument is waived because Spears \\\"failed to make any separate analysis based on the state constitution and failed to provide an analysis of the 'statutory elements' component in Richardson.\\\" Spears cited the applicable provision of the Indiana Constitution \\u2014 Article I, Section 14 \\u2014 and this Court's landmark opinion in Richardson interpreting that provision. Spears noted that the \\\"actual evidence\\\" test set forth in Richardson and a comparison of the statutory elements were alternative means of reviewing a state constitutional double jeopardy claim. He presented a cogent argument citing cases that have applied the \\\"actual evidence\\\" test. There was no need to provide any analysis of the alternative ground based on the statutes alone. Spears' dual convictions do not violate the statutory elements test, and Spears made no such claim. His contention based on the actual evidence test was argued and preserved.\\nNext, the State contends that this case should be remanded to the trial court \\\"for the trial court's ruling on whether the two crimes are the same for double jeopardy purposes.\\\" The State contends that this \\\"intensely factual determination\\\" is best made by the trial court, then reviewed by this Court for an abuse of discretion. It is true that a determination of the \\\"reasonable possibility\\\" component of the Richardson test turns on an analysis of the evidence. The instructions and the arguments of counsel are also relevant to that determination. Although we have not expressly ruled on the standard of review in double jeopardy cases, we have frequently treated reasonable possibility as a matter of law for de novo review by the appellate courts. See, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind.2000); Cutter v. State, 725 N.E.2d 401, 410 (Ind. 2000). The State points out that we have deferred to trial courts' findings as to the existence vel non of a \\\"serious evidentiary dispute\\\" for the purpose of instructions on lesser included offenses. See Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998). Here, we have no finding by the trial court. Even if we were to adopt a standard of review analogous to that applied to the instruction issue, de novo review is appropriate where the trial court made no finding. Cf id.\\nFinally, the State argues that, should this Court find a double jeopardy violation, the proper remedy is remand for a retrial on the robbery count. The State cites no double jeopardy precedent for this result, nor do we find any. To the contrary, both before and after Richardson, the remedy for double jeopardy violations has routinely been to reduce or vacate one of the convictions. Turnley v. State, 725 N.E.2d 87, 91 (Ind.2000); Cutter, 725 N.E.2d at 410, State's pet. for reh'g denied ; Wise, 719 N.E.2d at 1201; Richardson, 717 N.E.2d at 55; Bunch v. State, 697 N.E.2d 1255, 1257 (Ind.1998). The State was given one opportunity to try Spears on the charges it' selected, the evidence it presented, and the closing argument it chose to make. It is not entitled to a second bite of the apple.\\nII. Sentencing\\nSpears attacks the trial court's findings of aggravating and mitigating circumstances in its sentencing statement. He also contends that the aggregate sentence is manifestly unreasonable.\\nA. Sentencing Statement\\nThe trial court found four aggravating circumstances, no mitigating circumstances, and imposed maximum, consecutive sentences. The trial court found the following aggravating circumstances: (1) a prior history of juvenile delinquency, (2) prior attempts at rehabilitation had failed, (3) Spears' involvement with street gangs, and (4) \\\"the facts of this particular case.\\\" The trial court further explained that the last of these was based on (1) \\\"the degree of planning that was involved before the commission of the crime,\\\" (2) the crime being \\\"an absolute brutal execution of Chris Beers and that it was done in connection with a Robbery,\\\" and (3) \\\"the substantial steps [that] were taken to conceal the involvement of this crime.\\\" Spears contends that the trial court erred in finding the facts of the crime to be an aggravating circumstance and in failing to find any mitigating circumstances.\\nWhen a trial court relies on aggravating or mitigating circumstances to deviate from the presumptive sentence, it is required to (1) identify all of the significant mitigating and aggravating circumstances, (2) state the specific reason why each circumstance is considered to be mitigating or aggravating, and (3) articulate the court's evaluation and balancing of the circumstances to determine if the mitigating circumstances offset the aggravating ones. Carter v. State, 711 N.E.2d 835, 837-38 (Ind.1999) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986)). The same aggravating circumstance or circumstances may be used to both enhance a sentence and order sentences to be served consecutively. Taylor v. State, 710 N.E.2d 921, 925 (Ind.1999); Brown v. State, 698 N.E.2d 779, 781 (Ind.1998).\\n1. Improper Aggravating stances Circum-\\nSpears is correct that a trial court may not use a factor constituting a material element of an offense as an aggravating circumstance. Angleton v. State, 714 N.E.2d 156, 160 (Ind.1999). To the extent that the trial court relied on the planning in the parking lot, an essential element of the conspiracy conviction, to aggravate Spears' conspiracy sentence, it erred. However, the trial court did not err in finding that the fact that the killing occurred \\\"in connection with a Robbery\\\" was an aggravating circumstance. Cf. Workman v. State, 716 N.E.2d 445, 448-49 (Ind.1999) (enhancement of a murder sentence based in part on abuse of the corpse was proper). Spears contends that the \\\"in connection with a Robbery\\\" factor was the basis for the felony murder charge, but the trial court did not enter judgment of conviction as to the felony murder count. Moreover, the trial court's finding of the facts of the crime as an aggravating circumstance was also based on the fact that the killing was in the form of an \\\"absolute brutal execution.\\\" This is a permissible aggravating circumstance. The substantial post-crime steps to conceal the crime are also matters the trial court could find to be an aggravating circumstance. Although Spears contends there is no evidence that \\\"definitively proves\\\" that he removed telephone wires, it was within the trial court's discretion to draw this reasonable inference based on the evidence presented at trial. Noojin v. State, 730 N.E.2d 672, 678-79 (Ind.2000). In sum, although some components of the nature and circumstances of the offense aggravator were improper, \\\"[t]he remaining components of that aggravator were proper, and a single aggravating circumstance may be sufficient to enhance a sentence.\\\" Angleton, 714 N.E.2d at 160.\\n2. Failure to Find Mitigating Circumstances\\nThe finding of mitigating circumstances lies within the trial court's discretion. Hackett v. State, 716 N.E.2d 1273, 1277 (Ind.1999). The trial court is not obligated to find a circumstance to be mitigating merely because it is advanced by the defendant. Id. Rather, on appeal, a defendant must show that the proffered mitigating circumstance is both significant and clearly supported by the record. Carter, 711 N.E.2d at 838, If the defendant does not advance a factor to be mitigating at sentencing, this Court will presume that the factor is not significant and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal. Cf. id. (\\\"Trial counsel did not view either factor as significant enough to warrant any mention at either sentencing hearing.\\\"); see generally Wurster v. State, 715 N.E.2d 341, 347-48 (Ind.1999) (a party may not assert one ground at trial and a different ground on appeal).\\nThe only two mitigating factors raised on appeal that were also argued to be mitigating by Spears at sentencing were his youthful age \\u2014 eighteen\\u2014and his expression of remorse. The trial court did not abuse its discretion in concluding that neither of these was a significant mitigating circumstance. As this Court recently observed in Sensback v. State, 720 N.E.2d 1160, 1164 (Ind.1999), an eighteen-year-old defendant is \\\"beyond the age at which the law commands special treatment by virtue of youth.\\\"\\nAdditionally, Spears stated at sentencing:\\nI'd like to express how very sorry I am for the horrible crime I was involved in on the early morning of August 26th, 1998, and for the terrible loss of Christopher Beers. I would also like to say that my intentions that night was to get a fountain drink, not to rob the Convenient or to wish neither Christopher Beers nor anyone else be killed.\\nThe trial court, who had heard all the witnesses testify at trial, was not convinced. It responded,\\nI'm sure that this soda fountain story is something maybe you've convinced yourself of in order to live with what you've done.... But as far as whether that story defies logic, sir, you're asking the Jury and -the Court to have the logic of somebody that just flew into town on the noon balloon, and we didn't.\\nAlthough Spears expressed sympathy for the victims of his crimes, in the same breath he disclaimed responsibility despite substantial evidence to the contrary. Spears' statement is very similar to that of the defendant in Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.1999), who apologized to the decedent's family and then said he\\nwas just in the wrong place at the wrong time because I didn't \\u2014 I didn't tell nobody; I didn't pay nobody. I was just going to talk to the guy about getting my mother's car back. I'm sorry about what all happened. I just don't know what went wrong.\\nWe held in Bonds that this statement did not qualify as a significant mitigating circumstance that the trial court was required to take into account. Id. The same is true of Spears' equivocal apology coupled with a disclaimer of accountability for his role in the crime.\\nB. Manifestly Unreasonable\\nAs a final point, Spears contends that his maximum, consecutive sentences for murder and robbery are manifestly unreasonable. Although this Court has the constitutional authority to review and revise sentences, Ind. Const, art. VII, \\u00a7 4, it will not do so unless the sentence imposed is \\\"manifestly unreasonable in light of the nature of the offense and the character of the offender.\\\" Ind. Appellate Rule 17(B). This review is very deferential to the trial court: \\\"[T]he issue is not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so.\\\" Bunch v. State, 697 N.E.2d 1255, 1258 (Ind.1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)); accord Brown v. State, 698 N.E.2d 779, 783-84 (Ind.1998).\\nSpears was eighteen at the time of the offense and his criminal record consisted of two juvenile delinquency adjudications: disorderly conduct in 1995 and misdemeanor battery in 1996. The nature of the offense \\u2014 entering a convenience store to rob and kill the cashier \\u2014 is severe and troubling. Although Spears points to his \\\"lesser role in the offenses,\\\" the surveillance video and witness testimony strongly suggest that Spears was not an unwitting participant in a robbery in which Gross harbored an intent to kill unbeknownst to Spears. The trial court was within its discretion in so concluding. In cases in which a defendant had a limited role in a murder, coupled with other mitigating circumstances, this Court has, on occasion, found the maximum sentence to be manifestly unreasonable. E.g., Baxter v. State, 727 N.E.2d 429, 436 (Ind.2000) (noting the defendant's \\\"limited involvement\\\" in a murder as the one who drove a car from which another man shot the victim); Brown v. State, 720 N.E.2d 1157, 1160 (Ind.1999) (noting defendant's \\\"role as a follower\\\" of a codefendant twice his age); Widener v. State, 659 N.E.2d 529, 534 (Ind.1995) (observing that defendant who participated in a murder and robbery did not formulate or initiate the planned offenses). That is not the case here, however. To gain entry to the convenience store, Spears blocked the victim's view of Gross, who was carrying a gun. He stood beside Gross when the first shot was fired, and ran immediately to the store surveillance system. The maximum sentence of seventy-three years is not manifestly unreasonable for these offenses and this offender.\\nConclusion\\nThis case is remanded to the trial court with instructions to reduce the robbery conviction to a Class C felony and impose a sentence of eight years on that count to be served consecutively with the previously imposed sentence of sixty-five years for murder.\\nSHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.\\n. Gross was charged with the same offenses and tried separately.\\n. Although the State contends that the Class A felony robbery conviction does not violate the actual evidence test, it does not dispute that, if there is a violation, the proper remedy is reduction to a Class C felony. As this Court explained in Hampton, robbery as a Class B felony (for the use of a deadly weapon) is not necessarily a lesser included offense of robbery as a Class A felony. 719 N.E.2d at 809 n. 1. That is true here where the instructions to the jury gave the elements of robbery as a Class C felony and further stated that the charge could be enhanced to a Class A felony if the State proved beyond a reasonable doubt that Spears caused serious bodily injury to the victim. There was no instruction on the use of a deadly weapon, and thus reduction to a Class C felony is the proper remedy.\\n. The State also contends that Spears waived this Court's review of any federal double jeopardy claim by failing to cite the applicable provision of the United States Constitution and failing to provide any authority in support. As Spears notes in his reply brief, he did not raise a federal double jeopardy claim. Thus, the State is incorrect that the claim is waived; it was never raised.\\n. The trial court imposed the maximum sentence of 115 years, but as explained in Part I, the Class A felony robbery conviction must be reduced to a Class C felony. There is no need to remand for resentencing where it is sufficiently clear that the trial court would impose the maximum sentence for the Class C felony and order it served consecutively. Cutter v. State, 725 N.E.2d 401, 409 n. 3 (Ind.2000).\"}"
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+"{\"id\": \"11685419\", \"name\": \"STATE of Indiana and the Speedway Police Department, Appellants-Petitioners, v. Thomas PERSON, Appellee-Respondent\", \"name_abbreviation\": \"State v. Person\", \"decision_date\": \"1998-09-25\", \"docket_number\": \"No. 49A02-9711-CV-793\", \"first_page\": \"783\", \"last_page\": \"786\", \"citations\": \"699 N.E.2d 783\", \"volume\": \"699\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T18:19:54.510564+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, C.J., and GARRARD, J\\u201e concur.\", \"parties\": \"STATE of Indiana and the Speedway Police Department, Appellants-Petitioners, v. Thomas PERSON, Appellee-Respondent.\", \"head_matter\": \"STATE of Indiana and the Speedway Police Department, Appellants-Petitioners, v. Thomas PERSON, Appellee-Respondent.\\nNo. 49A02-9711-CV-793.\\nCourt of Appeals of Indiana.\\nSept. 25, 1998.\\nJeffrey A. Modisett, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellants-Petitioners.\\nBryan L. Cook, Indianapolis, for Appellee-Respondent.\", \"word_count\": \"1990\", \"char_count\": \"12656\", \"text\": \"OPINION\\nSTATON, Judge.\\nThe State of Indiana and the Speedway Police Department (\\\"the State\\\") appeal an order requiring them to pay attorney's fees incurred by Thomas Person in a civil forfeiture proceeding. The dispositive issue presented is whether, following an unsuccessful civil forfeiture action, the trial court had the authority to assess attorney's fees against the State under Indiana's General Recovery Rule.\\nWe reverse.\\nThis case arose when, on October 30, 1996, Speedway Police Officer James Hornaday stopped Person for speeding. An examination of Person's driving record revealed that his license had been suspended, and Officer Hornaday arrested Person. While conducting a search incident to the arrest, the officer discovered that Person was carrying two pagers and $2,929.00 in United States currency. A second Speedway police officer testified that Person admitted he had obtained the money from a \\\"pea-shake house,\\\" apparently a gambling establishment.\\nOn December 31, 1996, the State filed a complaint seeking forfeiture of the $2,929.00. At trial, Person explained he was carrying the cash from two payroll checks totaling approximately $1,300.00 and taking it \\\"downtown\\\" to settle a disagreement about a child support arrearage. Person did not explain the source of the other funds but testified his reported 1996 gross income was $12,689.86. The trial court ruled in favor of Person, stating:\\nThe evidence I heard from that police officer was that the defendant said he got the money in a pea-shake house. There's no testimony he got it gambling, stealing it, selling drugs or any illegal activity. Being in a pea-shake house is not sufficient.\\nRecord at 128. The court then ordered the $2,929.00 released to Person.\\nOn June 30, 1997, Person filed his unverified Motion to Tax Attorney's Fees against the State pursuant to Indiana's General Recovery Rule which reads in part:\\nIn any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if it finds that either party:\\n(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;\\n(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or\\n(3) litigated the action in bad faith.\\nInd.Code \\u00a7 34-l-32-l(b) (1993), recodified at Ind.Code \\u00a7 34-52-l-l(b) (Supp.1998). Without entering findings, the trial court ordered the State to pay Person $1,000.00 for reasonable attorney fees. After its motion to reconsider was denied, the State initiated this appeal, claiming it is immune from payment of the attorney's fees.\\nThe Indiana Supreme Court has considered the assessment of costs against the State of Indiana pursuant to Indiana Appellate Rule 15(G) due to \\\"demonstrated bad faith.\\\" State v. Denny, 273 Ind. 556, 406 N.E.2d 240 (1980). Holding the assessment impermissible, the Denny court quoted Ind. Code \\u00a7 34-4-16.5-4 of the Indiana Tort Claims Act, which provided, \\\"A governmental entity is not liable for punitive damages,\\\" and then reasoned, \\\"[s]uch Act should be considered as a statement of public policy by the legislature that the State is not to be considered as being liable for punitive damages in cases such as this.\\\" Id. at 557, 406 N.E.2d at 241. The court further rationalized, \\\"The concept of the State not having a state of mind or not being deterred by punitive damages should be the basis for the prohibition of such punitive damages in all cases applicable to the State.\\\" Id.\\nDenny did not involve an award of attorney's fees per se. However, our court relied upon the policy advanced in that case to disallow awards of punitive attorney's fees when assessed against the State of Indiana and its agencies. See, e.g., Indiana State Highway Comm'n v. Curtis, 695 N.E.2d 143 (Ind.Ct.App.1998) (reversed assessment of attorney's fees against the State of Indiana and the Indiana State Highway Commission for the costs of bringing suit to enforce a settlement agreement), trans. pending; State v. Carter, 658 N.E.2d 618 (Ind.Ct.App.1995) (reversed assessment of mediation costs and attorney's fees against the State of Indiana for fading to mediate a personal injury claim in good faith); State v. Hicks, 465 N.E.2d 1146 (Ind.Ct.App.1984) (reversed award of attorney's fees and costs against the State of Indiana for its employees' \\\"obdurate behavior\\\"); State v. Ziliak, 464 N.E.2d 929 (Ind.Ct.App.1984) (reversed determination that State of Indiana was liable for treble damages, attorney's fees and costs under Ind. Code \\u00a7 34-4-30-1, a statute enacted to provide civil remedies to crime victims), reh. denied, trans. denied.\\nIn a recent case, a nursing home characterized the Indiana Family and Social Services Administration's refusal to award Medicaid benefits while mandating the nursing home to provide care for a patient as unreasonable, groundless and in bad faith. Family and Social Servs. Admin, v. Calvert, 672 N.E.2d 488 (Ind.Ct.App.1996), trans. denied. The nursing home requested attorney's fees pursuant to Appellate Rule 15(G) and Ind. Code \\u00a7 34-1-32-1, the same statute under which Person now seeks to recover fees. In refusing the nursing home's request, the court observed that trial courts award attorney's fees to punish alleged oppressive conduct and to prevent further misconduct; however, public policy dictates that the bad faith exception is inapplicable against a State entity. Id. at 495. The court embraced the rationale that the State entity does not have a mind that can be deterred by an award of punitive damages and that the citizen taxpayers would bear the burden of such an award. Id.\\nPerson urges that we deviate from this well-settled policy and permit the recovery of attorney's fees from the State in the unique context of an unsuccessful civil forfeiture proceeding. He argues that, because police departments raise millions of dollars each year in seized property, public funds need not be used to pay attorney's fees awarded to innocent citizens. Person further maintains that \\\"[pjublie policy mandates that citizens not be subjected to harassing and expensive litigation brought by police and prosecutors who are blinded by the 'gold fever' of prospective forfeiture.\\\"\\nThe judiciary has acknowledged the broad new powers granted to law enforcement authorities under modern forfeiture statutes. See United States v. Ursery, 518 U.S. 267, 300, 116 S.Ct. 2135, 2153, 135 L.Ed.2d 549, 576 (1996) (Stevens, J., concurring in part and dissenting in part) (\\\"In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools.\\\"); see also Katner v. State, 655 N.E.2d 345, 347 (Ind.1995) (under the current forfeiture statutes the State may seize \\\"a broad range of personal assets and real property\\\") (quoting Caudill v. State, 613 N.E.2d 433, 435 (Ind.Ct.App.1993)). The government's financial stake in these forfeiture proceedings is also evident. See United States v. James Daniel Good Real Property, 510 U.S. 43, 56 n. 2, 114 S.Ct. 492, 502 n. 2, 126 L.Ed.2d 490, 504-05 n. 2 (1993) (1990 memo from Attorney General urging United States Attorneys to increase the number of forfeitures in order to meet the Department of Justice's targeted annual budget); Caudill v. State, 613 N.E.2d 433, 436 (Ind.Ct.App.1993) (action for forfeiture is a \\\"relatively quick procedure and broad in scope. It can also be highly profitable for the State.\\\").\\nWe agree that \\\"it makes sense to scrutinize governmental action more closely when the State stands to benefit.\\\" Harmelin v. Michigan, 501 U.S. 957, 979 n. 9, 111 S.Ct. 2680, 2693 n. 9,115 L.Ed.2d 836, 854 n. 9 (1991) (Sealia, J., joined by Rehnquist, C.J.). However, there are competing public policy considerations. Illegal activities support a sizable untaxed private industry. Forfeitures do compensate the Government, but are primarily designed \\\"to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.\\\" Ursery, 518 U.S. at 284, 116 S.Ct. at 2145, 135 L.Ed.2d at 565; see also Katner, 655 N.E.2d at 347-48 (describing \\\"broad remedial characteristics\\\" of forfeiture actions). The General Assembly has balanced these competing interests when it enacted the forfeiture statutes but declined to include disincentives in the form of attorney fee assessments. Barring constitutional difficulties, that choice was within the purview of the legislature. Shook Heavy and Envtl. Const. Group v. City of Kokomo, 632 N.E.2d 355, 359 (Ind.1994). We are not persuaded that our well-established precedent immunizing these governmental entities from the assessment of punitive attorney's fees should be reversed when there is no specific statutory provision authorizing those fees.\\nPerson next insists that, even if the State of Indiana and its agencies are not subject to sanctions, the Speedway Police Department should be liable for his attorney's fees. We reject Person's argument. The Speedway Police Department is part of the Town of Speedway, a governmental unit, and was necessarily named as a party in this action because the State of Indiana was not the employer of the officers making the seizure. See supra note 1. Adoption of Person's position would leave State law enforcement agencies immune but all other police departments susceptible to the assessment of punitive fees. The reasons that compel us to find the State of Indiana should not be required to pay punitive attorney's fees also apply to the Speedway Police Department. See World Productions, Inc. v. Capital Improvement Bd. of Managers, 514 N.E.2d 634 (Ind.Ct.App.1987) (board comprised of members appointed by executive of city and county board of commissioners was entitled to immunity from punitive damages), reh. denied, trans. denied; In re Wardship of Turrin, 436 N.E.2d 130 (Ind.Ct.App.1982) (attorney's fees under the bad faith exception could not be assessed against the Department of Public Welfare of Allen County). Precedent dictates that punitive attorney's fees should not be assessed against the Speedway Police Department absent a specific legislative determination allowing such. Accordingly, we vacate the award of attorney's fees against both the State of Indiana and the Speedway Police Department.\\nReversed.\\nSHARPNACK, C.J., and GARRARD, J\\\" concur.\\n. Under the prevailing statute, a forfeiture proceeding must be brought \\\"in the name of the state or the state and the unit that employed the law enforcement officers who made the seizure if the state was not the employerf.]\\\" Ind.Code \\u00a7 34-4\\u201430.1\\u20143(a)(1) (1993), recodified at Ind.Code \\u00a7 34\\u201424\\u20141\\u20143(a)(1) (Supp.1998).\\n. App. R. 15(G) reads:\\nIf the court on appeal affirms the judgment, damages may be assessed in favor of the appel-lee not exceeding ten per cent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution.\\n. The identical provision is presently codified at Ind.Code\\u00a7 34-13-3-4 (Supp.1998).\\n. The statute is presently codified at Ind Code \\u00a7 34-24-3-1 (Supp.1998).\\n. In Indiana, not only does the sale of property seized defray some of the law enforcement expenses incurred, but the court may permit the law enforcement agency which seized the property to use the property for a period not to exceed three years. Ind.Code \\u00a7 34-4\\u201430.1-3 and -4 (1993), recodified at Ind.Code \\u00a7 34-24-1-3 and -4 (Supp.1998).\\n. The United States Supreme Court recently acknowledged that, for Eighth Amendment purposes, a modern statutory forfeiture is a \\\"fine\\\" if it constitutes punishment even in part. United States v. Bajakajian, \\u2014 U.S. -, -, 118 S.Ct. 2028, 2035 n. 6, 141 L.Ed.2d 314 (1998). The Court decided that a punitive forfeiture violates the Excessive Fines Clause of the Eighth Amendment if it is \\\"grossly disproportional to the gravity of a defendant's offense.\\\" - U.S. at -, 118 S.Ct. at 2036. Applying that rule, the Court held that forfeiture of $357,144 where the defendant failed to report the transportation of more than $10,000 outside the United States in contravention of statute violated the Excessive Fines Clause. Id. at -, 118 S.Ct. at 2041.\"}"
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+"{\"id\": \"11825216\", \"name\": \"Donna RATLIFF, Appellant (Plaintiff), v. Edward COHN, Appellee (Defendant)\", \"name_abbreviation\": \"Ratliff v. Cohn\", \"decision_date\": \"1998-03-27\", \"docket_number\": \"No. 49S02-9710-CV-529\", \"first_page\": \"530\", \"last_page\": \"548\", \"citations\": \"693 N.E.2d 530\", \"volume\": \"693\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:17:49.659046+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C. J., and SULLIVAN, SELBY and BOEHM, JJ., concur.\", \"parties\": \"Donna RATLIFF, Appellant (Plaintiff), v. Edward COHN, Appellee (Defendant).\", \"head_matter\": \"Donna RATLIFF, Appellant (Plaintiff), v. Edward COHN, Appellee (Defendant).\\nNo. 49S02-9710-CV-529.\\nSupreme Court of Indiana.\\nMarch 27, 1998.\\nRichard A. Waples, JauNac M. Hanger, Waples & Hanger, Indianapolis, Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, for Appellant.\\nJeffrey A. Modisett, Attorney General, Phillip D. Hatfield, Deputy Attorney General, Jon Laramore, Deputy Attorney General, Indianapolis, for Appellee.\\nGreta M. Rowland, Indianapolis, Juvenile Justice Task Force, Inc., Wayne 0. Adams, III, David D. Robinson, Johnson, Smith, Pence, Densborn, Wright & Heath, Indianapolis, for Amicus Curiae Indiana Advocates For Children, Inc.\", \"word_count\": \"10943\", \"char_count\": \"68680\", \"text\": \"ON PETITION TO TRANSFER\\nDICKSON, Justice.\\nOn May 8, 1995, the appellant-plaintiff, fourteen-year-old Donna Ratliff, set fire to her family home, killing her mother and sixteen-year-old sister. Charged as an adult, she pled guilty to arson, a class A felony, and two counts of reckless homicide, class C felonies. The trial court ordered her to serve concurrent sentences of twenty-five years for arson and four years for each reckless homicide conviction. Although the trial court recommended placement in an alternative facility, the Indiana Department of Corrections (\\\"DOC\\\") instead placed her in the Indiana Adult Women's Prison (\\\"Women's Prison\\\"). Once inside the Women's Prison, Ratliff was placed in the Special Needs Unit, separated from the general prison population.\\nIn her civil complaint against the Commissioner of the Indiana Department of Corrections (\\\"the Commissioner\\\"), Ratliff contended that the conditions of her incarceration violated the Indiana and United States Constitutions. She sought declaratory and in-junctive relief requiring the Department of Corrections (\\\"DOC\\\") to transfer her from the Indiana Women's Prison to a rehabilitative juvenile treatment facility.\\nThe Commissioner moved to dismiss the complaint under Trial Rules 12(B)(6) (failure to state a claim upon which relief can be granted) and 12(B)(1) (lack of subject-matter jurisdiction). Without specifying the basis for its ruling, the trial court granted the motion. Ratliff appealed and, in a cursory opinion, the Court of Appeals reversed, holding that Article 9, Section 2 of the Indiana Constitution \\\"prohibits the incarceration of juveniles with adult prisoners.\\\" Ratliff v. Cohn, 679 N.E.2d 985, 988 (Ind.Ct.App.1997). We granted transfer.\\nA. Trial Rule 12(B)(6) Dismissal for Failure to State a Claim upon which Relief Could be Granted\\nRatliff contends that her complaint sufficiently alleges valid claims and, therefore, the trial court should have denied the defendant's motion to dismiss. In reviewing a dismissal under Trial Rule 12(B)(6), an appellate court must determine whether, in the light most favorable to the plaintiff and with every inference drawn in her favor, the complaint stated any set of allegations upon which the trial court could have granted relief to the plaintiff. Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind.1997). Dismissals under Trial Rule 12(B)(6) are \\\"rarely appropriate.\\\" Obremski v. Henderson, 497 N.E.2d 909, 910 (Ind.1986).\\nOn appeal, Ratliff presents five state constitutional grounds and three federal constitutional grounds upon which she contends a trial court could grant relief. We address these grounds accordingly.\\n1. Institutions for Juvenile Offenders\\nRatliff contends that Article 9, Section 2 of the Indiana Constitution, \\\"[t]he General Assembly shall provide institutions for the correction and reformation of juvenile offenders,\\\" requires the State to place all juvenile offenders \\u2014 irrespective of their crimes or background \\u2014 in institutions separate from adult prisons.\\nQuestions arising under the Indiana Constitution are to be resolved by \\\"examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our Constitution, and ease law interpreting the specific provisions.\\\" Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996) (citing Ind. Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind.1994)). See also Collins v. Day, 644 N.E.2d 72, 76 (Ind.1994); Price v. State, 622 N.E.2d 954, 963 (Ind.1993); Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992). In construing the Constitution we \\\"look to the history of the times, and examine the state of things existing when the Constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy.\\\" Sonnenburg, 573 N.E.2d at 412 (citing State v. Gibson, 36 Ind. 389, 391 (1871)).\\nAt Indiana's constitutional convention in 1850-51, the following text for Article 9, Section 2 was proposed: \\\"The General Assembly shall have the power to provide Houses of Refuge for the correction and reformation of juvenile offenders.\\\" Comments of Delegate Bryant (Dec. 18, 1850), in 2 Report of the Debates and PROCEEDINGS of the Convention for the Revision of the Constitution of the State of Indiana, 1203 (Indiana Historical Collections Reprint, 1935). When this provision was subsequently discussed at the convention, Delegate James Bryant of Warren County moved to amend the proposed language to state that the General Assembly shall provide Houses of Refuge, \\\"so as to make it obligatory upon the General Assembly to provide houses of refuge for juvenile offenders, instead of referring the subject to the discretion of that body, as proposed by the reported section.\\\" Id. at 1903 (Jan. 29, 1851). He justified this amendment by stating, \\\"Since this Convention assembled, we have had a state of facts presented to us, such as I had previously no conception of.\\\" Id. That previously unknown information involved the fact that \\\"more than one-eighth of the whole number\\\" of convicts committed to the Indiana State prison from September, 1822, to November, 1850, \\\"were minors within the age of twenty-one years, and some of these as young as eleven years of age.\\\" Id. (emphasis in original). Delegate Bryant described this as an \\\"outrage upon civilization and humanity,\\\" concluding that he was \\\"persuaded that if these facts had been spread before the public, such a deep disgrace to the character of Indiana would long since have been swept away by the fierce indignation of the people.\\\" Id.\\nDelegate Bryant then concluded that \\\"the object of all punishment\\\" was \\\"two-fold: the prevention of crime and the reformation of the offender.\\\" Id. He questioned how the framers could \\\"propose to diminish crime\\\" or \\\"reform offenders\\\" with a system which sends \\\"the children of the State, perhaps the victims of dissolute parents and neglected education, to this school of vice and infamy, where they cannot fail by means of the associations into which you thrust them, to be irretrievably ruined?\\\" Id. He urged, \\\"There is in this Convention, I am sure, but one feeling in regard to this matter, and that is, that this outrage upon all propriety and humanity shall no longer be.\\\" Id. He concluded, \\\"With such facts before us, it is the imperative duty of the Convention to arrest this evil, to prevent this iniquitous system from being any longer tolerated, and to compel the General Assembly to provide institutions where these juvenile offenders can be restrained, and at the same time reformed.\\\" Id.\\nDelegate James Lockhart of Posey and Vanderburgh Counties echoed Delegate Bryant's indignation, arguing that \\\"there is no question that can be presented for the consideration of this Convention, that is of more importance than this.\\\" Comments of Delegate Lockhart (Jan. 29, 1850), in 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1903 (Indiana Historical Collections Reprint, 1935). He noted that, \\\"Having occupied for several years past a high judicial position, I have often been pained to see the youth, the mere boy, branded as a felon, under our laws, and sent for a series of years to that worst of all prisons in the United States \\u2014 the Jeffersonville State prison.\\\" Id.\\nDelegate Bryant's amendment was adopted and the convention approved Article 9, Section 2. The resulting Constitution was thereafter ratified and became effective on November 1, 1851. Governor's Proclamation Declaring Constitution in Force (Sept. 3, 1851, in 1 Constitution Making in Indiana 1780-1850, \\u00a7 149, at 420 (Charles Kettleborough, 1916)).\\nClearly, there was strong support at the convention for significant change from the then-existing state of affairs regarding juvenile incarceration. We agree with Ratliff that Article 9, Section 2 \\\"is unambiguous in requiring the legislature to provide institutions for the correction and reformation of juvenile offenders.\\\" Brief of Appellant at 11.\\nHowever, while the Constitution clearly requires the General Assembly to create a House of Refuge to provide alternative reformation and incarceration opportunities for juvenile offenders, what is not clear is whether the framers intended that every ju venile convicted of an adult crime be sent to the House of Refuge.\\nOur review of the debates of the constitutional convention reveals no discussion of whether the House of Refuge should be the exclusive place for all juvenile offenders without regard to the nature of the juvenile's crime or the background of the juvenile offender. Noticeably absent from the text of Article 9, Section 2 is any adjective designating inclusivity, such as \\\"all juvenile offenders,\\\" \\\"every juvenile offender,\\\" \\\"any juvenile offender,\\\" or \\\"each juvenile offender.\\\" This absence is despite the fact that such adjectives were employed in many, if not most, other constitutional provisions. Further, we find no historical evidence of contemporaneous public expectation that the new constitution was intended to prohibit the incarceration of any and every juvenile offender in an adult prison. In fact, other than replicating the constitutional debates entries, our search in several contemporaneous newspapers uncovered no mention of any public debate or constituent reaction to Article 9, Section 2.\\nThe General Assembly initiated the implementation of Article 9, Section 2 four years after ratification with legislation declaring that, \\\"[t]he Constitution of the State of Indiana requires that the General Assembly shall provide houses of refuge, for the correction and reformation of juvenile offenders, and whereas, common sense and common humanity demand that some steps should be taken at once within this State to separate the youthful convict from the veteran and hardened criminal_\\\" 1855 Ind. Acts Ch. XCIII, Preamble. The Act provided that \\\"the Governor, Treasurer of State, and Superintendent of Public Instruction . are hereby authorized and directed to select and purchase for the State of Indiana . an eligible site for a House of Refuge.\\\" Id. (\\u00a7 1). These state officials were directed to: (1) \\\"procure plans, specifications, and estimates, for the building or buildings necessary for such House of Refuge;\\\" (2) \\\"prepare and mature a system for the management and government of such House of Refuge;\\\" and (3) \\\"ascertain what laws will be necessary to put the [House of Refuge] into successful operation.\\\" Id. (\\u00a7 3). The General Assembly provided some guidance to these officials, directing them to design the House of Refuge as \\\"not simply a place of correction, but a reform school, where the young convict, separated from vicious associates may, by careful physical, intellectual, and moral training, be reformed and restored to the community, with purposes and character fitting him for a good citizen, an honorable, and honest man.\\\" Id. (\\u00a7 4). The resulting statutory scheme created \\\"an Institution to be known as the House of Refuge for Juvenile Offenders.\\\" 1867 Ind. Acts Ch. LX[V]II, \\u00a7 1. Its Superintendent was to \\\"employ such methods of discipline as will, as far as possible, reform [the infants'] characters, preserve their health, promote regular improvement in their studies, trades and employments, and secure to them fixed habits of industry, morality and religion.\\\" Id. (\\u00a7 7).\\nSignificantly, this legislation did not require that all youthful offenders be excluded from the state prison in favor of the House of Refuge. The statute provided the various \\\"modes\\\" by which the Institution would \\\"receive into [its] care and guardianship infants under the age of eighteen years committed to their custody.\\\" Id. (\\u00a7 10). These modes were:\\n1. Infants committed by any Judge of a Circuit Court or Common Pleas Court on the complaint and due proof thereof, by the parent or guardian of such infant, that by reason of incorrigible or vicious conduct such infant has rendered his or her control beyond the power of such parent or guardian, and made it manifestly requisite, that irom regard to the future welfare of such infant, and for the protection of society, he or she should be placed under such guardianship.\\n2. Infants committed by the authorities aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of said institution, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity, or otherwise, of the parent or guardian in whose custody such infant may be, such parent or guardian is incapable or unwilling to exercise the proper care or discipline over such incorrigible or vicious infant.\\n3. Infants who are destitute of a suitable home and of adequate means of obtaining an honest living, or who are in danger of being brought up to lead an idle and immoral life, and who may be committed to the guardianship of said Institution by the Trustees of the township where such infant resides, or by the mother, when the father is dead or has abandoned his family, or is an habitual drunkard, or does not provide for their support.\\nId.\\nIn addition to these enumerated \\\"modes,\\\" the statute also provided one other means by which an infant could be sent to the Institution:\\nAny infant under the age of eighteen years, who shall under [state] laws . be liable to confinement in the jail [or] penitentiary . may, at the discretion of the Court or Jury trying the cause, be placed in such Institution, until of legal age, under the exclusive control and guardianship of the . Institution.\\nId. (\\u00a7 11) (emphasis added).\\nIn creating the House of Refuge, the General Assembly required that, before an infant could be placed in the Institution, \\\"the person or persons having charge of said infants, shall ascertain from the Superintendent whether they can be received.\\\" Id. (\\u00a7 15) (emphasis added). In situations when the infants could not be received into the Institution because they did not fall into one of the designated placement modes, the Act provided: \\\"[If the infants] cannot be received into said Institution, the cases of such infants shall be disposed of as if this act had never been passed and no proceedings taken under it.\\\" Id. (\\u00a7 15).\\nIt is clear from these statutes \\u2014 the first enacted to initiate the implementation Article 9, Section 2 and the second enacted to fulfill that constitutional mandate \\u2014 that the General Assembly did not believe that its constitutional mandate required every infant to be housed in the Institution rather than in the State Prison. Furthermore, we find nothing in our review of contemporaneous writings and reports to indicate any public protest'\\u2014 or even any discussion \\u2014 regarding the fact that the House of Refuge would not serve as the exclusive place for juvenile incarceration.\\nIt also appears from our independent review of prison records that significant numbers of youthful offenders continued to be incarcerated in adult prison even after the creation of the House of Refuge. The \\\"Annual Reports of the Officers and Directors of the Indiana State Prison\\\" and the original Department of Correction Indiana State Prison logs reveal that, from 1836 through 1850 \\u2014 before the constitutional convention\\u2014 at least two twelve-year-olds, three fourteen-year-olds, three fifteen-year-olds, five sixteen-year-olds, and thirteen seventeen-year-olds were sentenced to incarceration in the Indiana State Prison. Indiana State Prison Logs: Descriptive List of Convicts on the State Prison of Indiana, Volume B, 1836-1855 (original logs located in The Indiana Commission on Public Records, Indiana State Archives).\\nSignificantly, during the five years after the House of Refuge was created, a substan-. tial number of juvenile offenders were still being sentenced to the adult prison. In fact, in the five years after the House of Refuge was created, those juveniles who were sentenced to the adult prison were even younger and greater in number than those sentenced during the fourteen years preceding the constitutional convention. New incarcerations included at least 129 juveniles: three eleven-year-olds, two twelve-year-olds, four thirteen-year-olds, ten fourteen-year-olds, eleven fifteen-year-olds, thirty-four sixteen-year-olds, and sixty-five seventeen-year-olds. Annual Report of the Officers and Directors of the Indiana State Prison, Documentary Journal of Indiana (1867-1872); Indiana State Prison Logs: Desgriptive List of CONVICTS ON THE STATE PRISON OF INDIANA, Volume 1,1869-1877 (original logs located in The Indiana Commission on Public Records, Indiana State Archives).\\nSeveral other items hold particular historical significance. Of these 129 juveniles sentenced to adult prison after the House of Refuge opened, only 22 were thereafter transferred to the House of Refuge after serving part of their sentences in prison.\\nAdditionally, as the framers intended, the ratification of Article 9, Section 2 and the ultimate creation of a House of Refuge had a substantial impact on juveniles incarcerated in adult prisons, despite the fact that all juveniles were not incarcerated in juvenile institutions. Prior to the ratification of Article 9, Section 2, juveniles who committed relatively minor offenses were incarcerated with adult criminals who had committed much more serious offenses. In fact, from 1836 to 1850, the most common crime leading to juvenile incarceration in the adult prison was the minor offense of petit larceny. However, after the House of Refuge was created in 1867, the numbers of juveniles incarcerated in adult prisons for minor offenses dropped dramatically, with juveniles incarcerated in adult prisons primarily for more serious offenses, such as grand larceny and burglary.\\nCiting Acts 1945, Chapter 356, Section 22, Ratliff asserts that, \\\"[i]t was not until 1945 that the Indiana General Assembly finally fulfilled its constitutional mandate by statutorily prohibiting the placement of juveniles in adult institutions.\\\" Brief of Appellant at 11. This is an inaccurate representation of the Act of 1945. While one sentence of the Act provides that juveniles should not be detained in prison, the next sentence specifically provided exceptions to this prohibition: \\\"[AJ child, whose habits or conduct are deemed such as to constitute a menace to other persons, may . be placed in jail or other place of detention for adults, but in a room or ward separate from adults.\\\" 1945 Ind. Aots 346 \\u00a7 22 (emphasis added). Since the Constitution was ratified in 1851, there has never been a comprehensive statutory prohibition against incarcerating certain juveniles in adult prisons.\\nFurther, in 1982 and 1983, successive resolutions by the 102nd and the 103rd General Assemblies recommended that Article 9, Section 2 be amended, substituting \\\"institutions\\\" for \\\"Houses of Refuge.\\\" See Pub.L. No. 231-1982; Pub.L. No. 383-1983. The amended Article 9, Section 2 was adopted at the general election held Nov. 6, 1984. At the time the amended Article 9, Section 2 was ratified, the Juvenile Code did not prevent the incarceration of juveniles who were waived to adult court. See Ind.Code \\u00a7 31 \\u2014 6\\u2014 1-1 et seq. (1982). Despite the opportunity to include language in the new provision reflecting that \\\"all,\\\" \\\"every,\\\" \\\"any,\\\" or \\\"each\\\" juvenile must be incarcerated only in juvenile institutions, no such language was included.\\nConsidering the absence of all-inclusive language in the constitutional text, the debates at the constitutional convention, the implementing legislation enacted shortly after the adoption of the Constitution, and the language retained when the provision was amended in 1984, we hold that, although Article 9, Section 2 clearly requires that the General Assembly provide institutions for juvenile offenders, it does not require that all juveniles \\u2014 irrespective of their crimes or background \\u2014 be housed only in such institutions. Accord Hunter v. State, 676 N.E.2d 14 (Ind.1996) (addressed in detail infra under Article 1, Section 18). We are cognizant that, \\\"in our role as guardian of the constitution, we are nevertheless a court and not a 'supreme legislature.' \\\" Bunker v. Nat'l Gypsum, 441 N.E.2d 8, 11 (Ind.1982). \\\"The legislature has wide latitude in determining public policy, and we do not substitute our belief as to the wisdom of a particular statute for those of the legislature.\\\" State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992).\\nThis case is analogous to Y.A. Fleener v. Bayh, 657 N.E.2d 410 (Ind.Ct.App.1995), trans. denied, wherein the plaintiffs challenged the state's practice of not providing appropriate residential placements for all children who are mentally ill, in violation of Article 9, Section 1 of the Indiana Constitution. Similar to the provision at issue here (Article 9, Section 2), Article 9, Section 1 provides that, \\\"It shall be the duty of the General Assembly to provide, by law, for the support of institutions . for the treatment of the insane.\\\" Ind. Const, art. 9 \\u00a7 1. The Indiana Court of Appeals rejected the plaintiffs argument that \\\"the constitution places upon the General Assembly the absolute duty to care for the members of this class.\\\" Y.A. Fleener, 657 N.E.2d at 417. The court found that:\\nAt the risk of being too simplistic in our response to this argument, we merely state that the constitutional provision is not without limitations. These limitations may be imposed by common sense, and by the constraints placed upon government to wisely distribute and apportion available funds among the various needs and programs which exist and which must be established for the welfare of all citizens. In short, the constitutional provisions are to be construed in the light of reason and the logical intendment of the framers.\\nThe General Assembly, however, may not avoid the very real intendment of the constitutional mandate to care for the mentally ill and disturbed, by refusing to raise and appropriate adequate funds to provide not unlimited care, but adequate care. In the same vein, if the General Assembly has appropriated adequate funds and has appropriately delegated to the executive branch of state government the duty and responsibility for implementing an[d] carrying out the programs to meet the needs, then the executive may not refuse to carry out its responsibility.\\nId. The court then found that the \\\"unlimited care sought by plaintiffs in this lawsuit\\\" was not required. Id. at 418 (emphasis added).\\nBecause Article 9, Section 2 does not require the placement of all juveniles in a separate juvenile facility, Ratliffs claim that her incarceration in the Women's Prison vio lates this provision does not state a claim upon which relief could be granted.\\n2. Confinement with Unnecessary Rigor\\nRatliff contends that her incarceration in the Women's Prison violated Article 1, Section 15 of the Indiana Constitution, which provides that, \\\"No person . confined in jail, shall be treated with unnecessary rigor.\\\" Ind. Const, art. 1 \\u00a7 15.\\nThe essence of Ratliffs complaint is that her placement in the Special Needs Unit of-the Women's Prison \\\"deprived her of adequate rehabilitative treatment, during her incarceration.\\\" Record at 16 (Complaint of Donna Ratliff, \\u00b6 23). Ratliff contends that she was \\\"physically, sexually, and emotionally abused by various family members since the age of four.\\\" Id. 13 (\\u00b6 7). She contends that the Special Needs Unit is comprised of women who \\\" 'display severe psychological disorders' and are incapable of functioning in an open population setting\\\" and that the inmates in this Unit are \\\"seriously mentally ill or . have severe anger problems.\\\" Id. at 14-15 (\\u00b6 15).\\nHer treatment in adult prison included \\\"ninety minutes a month in individual consultation with the prison psychologist\\\" and of participating in two one-hour group therapy sessions, one dealing with \\\"sexually-abused women who have unresolved issues contributing toward criminal behavior\\\" and another dealing with \\\"issues of personal responsibility, behavioral change and complicated grief among women who have taken the life of a significant other.\\\" Id. at 15 (\\u00b6 17). Although she does not take issue with the individualized treatment she has received in her consultations with the prison psychologist, she contends the group sessions have been \\\"inappropriate for dealing with [her] psychological problems and have had an adverse impact on [her] rehabilitation\\\" because she \\\"does not share like experiences with these adult offenders, or have the benefit of sharing therapy with her peer group\\\" and that others \\\"have shown hostility and resentment toward [her] when she has participated in the group, and prison officials have admonished her to refrain from sharing her experiences as a victim of child abuse with the group.\\\" Id. at 15 (\\u00b6 18). .\\nCases recognizing violations of Article 1, Section 15 involve situations where a prisoner was tortured, had a tooth knocked out, was repeatedly beaten, kicked, and struck with a blackjack and beaten with a rubber hose while he was stretched across a table, Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938), where a prisoner was beaten with police officer's fists in both eyes, cut on the top of his head, and beaten with a rubber hose bn the head' and ears, Bonahoon v. State, 203 Ind. 51, 178 N.E. 570 (1931), and where a. prisoner w\\u00e1s severely injured after being shot by police during a protest, Roberts v. State; 159 Ind.App. 456, 307 N.E.2d 501 (1974).\\nRatliffs treatment in prison, as asserted in her complaint, does not rise to the level of the \\\"unnecessary rigor\\\" contemplated by Article 1, Section 15. Ratliffs complaint has not stated a claim under Article 1, Section 15 upon which relief can be granted.\\n3. . Penal Code, Reformation, and Vindictive Justice\\nEmphasizing the constitutional debates, Ratliff contends that her incarceration in the Women's Prison contravenes the rehabilitation principle of our penal laws as mandated by Article 1, Section 18, which provides. \\\"The penal code shall be founded on the principles of reformation, and not of vindictive justice.\\\" Ind. Const, art. 1 \\u00a7 18.\\nWe recently addressed this claim in Hunter v. State, 676 N.E.2d 14 (Ind.1996), wherein a sixteen-year-old boy contended that \\\"his incarceration with older, hardened criminals violates Article I, \\u00a7 18 of the Indiana Constitution . [maintaining] that the debates of Indiana's constitutional convention of 1850 reveal that this provision was meant to prevent the incarceration of young offenders under the age of twenty-one years with older, hardened criminals.\\\" Id. at 16. We rejected this contention under both Article 1, Section 18 and Article 9, Section 2, finding that:\\n[T]he comments of the delegates reflect a patent intent to accommodate reformation of youths by separating them from hardened criminals who are purportedly not as susceptible to redemption. The legislature has not frustrated this intent by setting up a statutory scheme that prohibits most youths from being confined to an adult correctional facility. The only youths who are not subject to this general rule are youths alleged to have committed the most serious and violent crimes. We find it well within the legislature's purview to conclude that this system better accommodates the purposes behind Article I, \\u00a7 18 and Article 9, \\u00a7 2, because it segregates younger and less violent offenders from the most violent offenders, regardless of age.\\nId. at 17.\\nRatliff contends that reliance upon Hunter is inappropriate for several reasons. Citing the same debates at the convention as we noted above, she argues that Hunter should be overruled because \\\"[t]he historical record does not support\\\" its conclusion. Appellant's Brief in Response to Petition to Transfer at 6. She is incorrect.\\nRatliff also argues that Hunter should be overruled because it has no limiting principle, as it \\\"does not provide this Court with a principled basis to approve or disapprove any particular class of excluded juveniles.\\\" Id. In the alternative, she argues that Hunter should be distinguished because the defendant in Hunter was a sixteen-year-old male, was a violent offender with a criminal record, and was convicted of murder and burglary, whereas Ratliff is a fourteen-year-old female, a first-time offender, and was convicted of arson and two counts of reckless homicide.\\nHowever, such particularized, individual applications are not renewable under Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges. Lowery v. State, 478 N.E.2d 1214, 1220 (Ind.1985) (Article 1, Section 18 \\\"applies to the penal laws as a system to insure that these laws are framed upon the theory of reformation as well as the protection of society.\\\") (emphasis added), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). See also Driskill v. State, 7 Ind. 338, 342-43 (1855).\\nArticle 1, Section 18 does not prevent juveniles from being placed in the Women's Prison. As to this issue, Ratliff has failed to state a claim upon which relief may be granted.\\n4. Cruel and Unusual Punishment\\nRatliff contends that her incarceration in the Women's Prison violates Article 1, Section 16 of the Indiana Constitution, which provides that \\\"Cruel and unusual punishments shall not be inflicted,\\\" Ind. Const, art. 1 \\u00a7 16, and the Eight Amendment to the United States Constitution, which also prohibits \\\"cruel and unusual punishments.\\\" U.S. Const, amend. VTII.\\nArticle 1, Section \\u00cd.6 of the Indiana Constitution does not entitle a person convicted of a crime in Indiana to any identifiable right to assignment to a particular institution. Barnes v. State, 435 N.E.2d 235, 242 (Ind.1982) (rejecting a defendant's claim that, because he previously had been a police informant, which could result in his being killed by other prisoners, his confinement in a state prison was cruel and unusual). \\\"Generally, the constitutional prohibitions against cruel and unusual punishments . are proscriptive of atrocious or obsolete punishments and are aimed at the kind and form of the punishment, rather than the duration and amount.\\\" Wise v. State, 272 Ind. 498, 502, 400 N.E.2d 114, 117 (1980). Punishment violates Article 1, Section 16 only if it \\\"makes no measurable contribution to acceptable goals of punishment, but rather constitutes only purposeless and needless imposition of pain and suffering.\\\" Douglas v. State, 481 N.E.2d 107, 112 (Ind.1985) (rejecting the argument that the imposition of a thirty-year sentence for a sixteen-year-old boy constituted cruel and unusual punishment).\\nRatliffs complaint contends that her incarceration in the Women's Prison was cruel and unusual punishment because she has been abused her whole life, was isolated from her peers in the prison, and her primary treatment was group therapy sessions with adult \\\"sexually-abused women who have unresolved issues contributing toward criminal behavior.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 17).\\nConsidering the serious offenses which Ratliff committed \\u2014 setting fire to her home and killing her mother and sister \\u2014 her isolation from peers and the counseling sessions she attends contribute to acceptable goals of punishment. Thus, her incarceration in the Women's Prison was not devoid of any \\\"measurable contribution to acceptable goals of punishment,\\\" Douglas, 481 N.E.2d at 112, nor was it \\\"atrocious or obsolete punishment ].\\\" Wise, 272 Ind. at 502, 400 N.E.2d at 117. Under these eases, Ratliff has not established an Article 1, Section 16 violation. Thus, she has failed to state a claim upon which relief may be granted.\\nRatliff also contends that the Eighth Amendment to the Constitution of the United States was violated because community standards are moving away from incarcerating juveniles under sixteen years of age in adult prisons. A 1995 United States Department of Justice study indicates that, while a majority of the states currently incarcerate juvenile offenders with adults (58%), only 38% of those states actually incarcerate juvenile offenders under the age of sixteen in adult prisons. Ratliff argues that, \\\"once a punishment has been rejected by a sufficiently large number of state legislatures, it can no longer be said that it is consistent with society's standards of decency\\\" and, therefore, violates the Eighth Amendment. Brief of Appellant at 16. In response, the State cites several articles and contends that the opposite is true, arguing that \\\"the national trend has been toward harsher penalties for juveniles and toward incarcerating juveniles convicted of adult crimes away from other juveniles.\\\" Brief of Appellee In Support of Transfer at 11.\\nWe remain unconvinced that the practice of incarcerating juvenile offenders under the age of sixteen in the adult prison necessarily violates the Eighth Amendment. Of the majority states which incarcerate juveniles in prison, close to 40% also incarcerate in adult prison those under the age of sixteen. This is hardly a \\\"reject[ion] by a sufficiently large number of state legislatures.\\\" Id. We find that, \\\"[t]his is a question of public policy rather than a constitutional question and thus is an argument to be made to the legislative body rather than to a judicial tribunal.\\\" Miller v. State, 623 N.E.2d 403, 411 (Ind.1993) (rejecting an Eighth Amendment cruel and unusual punishment challenge).\\nRatliff also contends that the incarceration of \\\"a young girl who has been abused her whole life . where her primary treatment is group therapy sessions with adults who have been convicted of abusing children,\\\" constitutes cruel and unusual punishment in violation of the Eighth Amendment. Brief of Appellant at 15. This was extensively addressed by the Federal District Court for the Eastern District of California in Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal.1995), mandamus denied sub nom., Wilson v. U.S. Dist. Court for the E. Dist. of Cal., 103 F.3d 828 (9th Cir.1996), cert. denied, \\u2014 U.S. -, 117 S.Ct. 1823, 137 L.Ed.2d 1031 (1997), a ease where prison inmates brought a civil rights action alleging, among other things, that the state denied them adequate mental health treatment.\\nThe court began by noting that, under the Eighth Amendment, \\\"It is firmly established that 'medical needs' include not only physical health needs, but mental health needs as well.\\\" Id. at 1255 (citations omitted). \\\"As far back as 1977, the Fourth Circuit observed that there is 'no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.' \\\" Id. (citing Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir.1977)).\\nTo establish an Eighth Amendment violation, Ratliff \\\"must demonstrate that prison officials are 'deliberately indifferent' to [her] 'serious' medical needs....\\\" Id. (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, 261 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987)).\\n[T]o prove deliberate indifference, plaintiffs must demonstrate not only that the levels of medical and mental health care are constitutionally inadequate from an objective standpoint . but also that defendants (1) knew the risk to inmate health that this inadequacy posed, and (2) acted with disregard for this risk. In short, plaintiffs must show that defendants \\\" 'consciously disregarded]' a substantial risk of serious harm\\\" to plaintiffs' health or safety. Accidental or inadvertent failure to provide adequate care will not suffice.\\nMadrid, 889 F.Supp. at 1256 (citing Farmer v. Brennan, 511 U.S. 825, 839, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811, 824 (1994); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239).\\nTrial Rule 12(B)(6) requires that the complaint state any set of allegations upon which the trial court could have granted relief. Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind.1997). Ratliffs complaint alleges that she was \\\"physically, sexually, and emotionally abused by various family members since the age of four\\\" and that she had been hospitalized for psychiatric treatment on two separate occasions in the two years prior to her offense. Record at 13 (Complaint of Donna Ratliff, \\u00b6 7). According to her complaint, a court psychologist recommended that she be placed in an alternative setting because \\\"important aspects of her rehabilitation might not occur if she were placed in an adult prison_\\\" Id. at 14 (\\u00b6 10). Ratliff alleges that the Commissioner, despite knowledge of this information, \\\"rejected concerns made by numerous concerned citizens and affirmed Donna's placement at the Indiana Women's Prison.\\\" Id. at 14 (\\u00b6 10).\\nHer complaint asserts that she was placed in the Special Needs Unit of the Women's Prison, which is comprised of women who \\\" 'display severe psychological disorders' and are incapable of functioning in an open population setting\\\" and that the inmates in this Unit are \\\"those who are seriously mentally ill or who have severe anger problems.\\\" Id. at 14 (\\u00b6 15). She complains that her group therapy sessions have been \\\"inappropriate for dealing with [her] psychological problems and have had an adverse impact on [her] rehabilitation.\\\" Id. at 15 (\\u00b6 18). She alleges that \\\"prison officials have admonished her to refrain from sharing her experiences as a victim of child abuse with the group,\\\" that she \\\"has been subjected to hostility and threats by adult inmates participating in these therapy sessions . and fears for her safety,\\\" and that \\\"She has been sexually propositioned and hai'assed by older inmates.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 18,19).\\nAs previously noted, although we express no opinion as to the merits of Ratliffs claims, our review of the trial court's dismissal requires that we view it in the light most favorable to the plaintiff and with every inference drawn in her favor. Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind.1997). Because Ratliffs complaint essentially alleges that prison officials have been deliberately indifferent to her serious medical needs, her complaint is sufficient to withstand a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim as to this aspect of her Eighth Amendment claim.\\n5. Privileges, Immunities, and Equal Protection\\nRatliff contends on appeal that, because she was not provided age-appropriate counseling and peer group therapy, her incarceration in the Women's Prison has violated Article 1, Section 23 of the Indiana Constitution, which provides that, \\\"The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens,\\\" Ind. Const, art. 1 \\u00a7 23, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which provides that states cannot \\\"deny to any person within its jurisdiction the equal protection of the laws.\\\" U.S. Const, amend. XIV. She did not argue this claim before the trial court.\\nThis is an appeal from the grant of a Trial Rule 12(B)(6) motion and our review on appeal is limited to whether the complaint stated any set of allegations upon which the trial court could have granted relief. In her appellate brief, Ratliff bases her constitutional claims upon factual comparisons between the treatment that she received while confined in an adult prison and the treatment received by juveniles confined in juvenile institutions. However, in her complaint, she makes no such factual assertions regarding the treatment received by juveniles confined in juvenile institutions. Thus, on the face of her complaint, she has not stated a claim under which relief could be granted.\\n6. Due Process\\nRatliff contends that her complaint alleged facts sufficient to state a claim under the Due Process Clause of the Fourteen Amendment to the United States Constitution, which provides that no state shall \\\"deprive any person of life, liberty, or property, without due process of law.\\\" U.S. Const, amend. XIV.\\nCiting Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), she argues that \\\"[cjhildren in custody of the state have the right to minimally adequate care and treatment under the Fourteenth Amendment.\\\" Brief of Appellant at 19. The plaintiff in Youngberg was involuntarily committed to a state institution for the mentally retarded and brought a Section 1983 claim contending, in essence, that his substantive due process rights were violated by: (1) the institution's lack of safe conditions of confinement; (2) its practice of restraining him for long periods of time; and (3) the lack of appropriate treatment for his mental retardation. Id. at 311, 102 S.Ct. at 2455, 73 L.Ed.2d at 34. The Court noted that it had already held that involuntarily committed and incarcerated individuals have a Fourteenth Amendment liberty interest in adequate food, shelter, clothing, and medical care. Thus, Youngberg addressed the new question of whether liberty interests for such individuals also exist in safety, freedom of movement, and treatment. Id. at 315, 102 S.Ct. at 2458, 73 L.Ed.2d at 37.\\nThe Court quickly found that the first two claims involved general liberty interests recognized by its prior decisions and that \\\"involuntary commitment proceedings do not extinguish\\\" those interests. Id. However, rather than address whether a broad liberty interest in treatment existed under the Fourteenth Amendment, the Court addressed only the more specific claim for treatment \\\"to ensure safety and freedom from undue restraint.\\\" Id. at 319, 102 S.Ct. at 2460, 73 L.Ed.2d at 39 (\\\"[T]his case does not present the difficult question whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training [treatment] per se.... \\\"). Thus, the Court held that, in addition to previously recognized liberty interests in adequate food, shelter, clothing, and medical care, an involuntarily committed person also enjoys constitutionally protected due process interests in: (1) conditions of reasonable care and safety; (2) reasonably nonrestrictive confinement conditions; and (3) such treatment as may be required to secure these conditions of reasonable care and safety and nonrestrictive confinement. Id. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43.\\nOn appeal, Ratliff contends that her due process rights have been violated because the treatment provided her in the adult prison \\\"is without rehabilitative purpose and is having a detrimental impact on her psychologically and emotionally.\\\" Brief of Appellant at 19. However, despite her general claim of entitlement to minimally adequate care and treatment while in custody, the Supreme Court has not extended such entitlement beyond the treatment required to ensure reasonable care and safety and reasonably nonrestrictive confinement. Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43. As a result, to survive a Trial Rule 12(B)(6) motion to dismiss, Ratliffs complaint must present a claim that she has been denied treatment which would lead to her reasonable care and safety or freedom from restrictive confinement.\\nAs we have noted above, Ratliff contends that she was physically, sexually, and emotionally abused. Record at 13 (Complaint of Donna Ratliff, \\u00b6 7). She contends that the treatment she receives in the Women's Prison is inadequate because her groups include women with whom she does not share \\\"like experiences\\\" and that she does not have the benefit of being in therapy \\\"with her peer group.\\\" Id. at 15 (\\u00b6 18). These complaints allege only inadequate treatment generally, not that she has been denied treatment which would lead to her reasonable care and safety freedom from restrictive confinement. Thus, dismissal as to this claim was appropriate.\\nNonetheless, Ratliff did raise a general Due Process Clause violation in her complaint and also alleged that she \\\"has been subjected to hostility and threats by adult inmates . and fears for her safety\\\" and that \\\"she has been sexually propositioned and harassed by older inmates.\\\" Id. at 15 (\\u00b6 19). Although this allegation does not al-\\nlege that she has been denied treatment which would lead to protection from these specific occurrences, Youngberg also recognizes a \\\"constitutionally protected interest! ] in conditions of reasonable care and safety. .\\\" Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43, and her complaint need only state any set of allegations upon which the trial court could have granted relief. Cram v. Hoiuell, 680 N.E.2d 1096, 1096 (Ind.1997). While we express no opinion as to the merits of the claim, her allegation that she has been subjected to hostility and threats by adult inmates and fears for her safety is sufficient to withstand a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim.\\nB. Lack of Subject-Matter Jurisdiction\\nBecause we have found two claims which are sufficiently raised in Ratliffs complaint to withstand dismissal under Trial Rule 12(B)(6), we address the second ground on which the trial court's opaque order granting dismissal may have been based. The Commissioner requested dismissal, in part alleging lack of subject-matter jurisdiction under Trial Rule 12(B)(1).\\nIn a memorandum in support of its motion to dismiss, the Commissioner argued, in a single sentence, that the trial court lacked jurisdiction to entertain the plaintiffs claims \\\"because administrative decisions made by the Indiana Department of Correction are expressly exempt from judicial review. Indiana Code \\u00a7 4-21.5-2-5(6).\\\" Record at 23. This statute provides that the Administrative Orders and Procedures Act \\\"does not apply to . An agency action related to an offender within the jurisdiction of the department of correction.\\\" Ind.Code \\u00a7 4-21.5-2-5(6) (1993). There is nothing in this statute to support the Commissioner's broad statement that courts lack the power of judicial review over alleged violations of an inmate's right to medical treatment under the Eighth Amendment and an inmate's constitutionally protected interests in conditions of reasonable care and safety under the Fourteenth Amendment. The grounds urged by the Commissioner in support of his challenge to the trial court's jurisdiction are insufficient to undermine the Marion Superior Court's general subject-matter jurisdiction. See Ind. Code \\u00a7 33-5.1-2-1, 4 (1993).\\nWe find no lack of subject-matter jurisdiction. The trial court's dismissal cannot be affirmed upon such a claim.\\nC. Conclusion\\nRatliffs complaint contending that her incarceration in adult prison violates Article 9 Section 2, Article 1, Section 15, Article 1, Section 16, Article 1, Section 18, and Article 1, Section 23 of the Indiana Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution fails to state a claim upon which a trial court could grant relief. Her complaint does state a claim upon which a trial court, after proper and sufficient proof at trial, could grant relief under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment to the United States Constitution.\\nThe trial court is affirmed in part and reversed in part. This cause is remanded for further proceedings consistent with this opinion.\\nSHEPARD, C. J., and SULLIVAN, SELBY and BOEHM, JJ., concur.\\n. A transcript from the sentencing hearing was not included in the record on appeal. These factual allegations arc from Ratliffs complaint. As this appeal involves a Trial Rule 12(B)(6) motion to dismiss, we \\\"take as true all well-pled material facts alleged in the complaint.\\\" Culver-Union Township Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind.1994).\\n. Ratliff's appeal raises only the constitutionality of the DOC's original decision to place her in the Women's Prison. She does not ask us to consider whether, outside of these constitutional arguments, the DOC decision was appropriate. Accordingly, our opinion today addresses only the constitutional arguments regarding the DOC's decision placing her in the Women's Prison.\\n. At oral arguments on December 9, 1997, the Deputy Attorney General noted that Ratliff is no longer in the Women's Prison. After the decision of the Court of Appeals that placement in the Women's Prison violated the Indiana Constitution, the DOC transferred custody of Ratliff to a private juvenile facility in Fort Wayne.\\n. Ind. Const, art. 9 \\u00a7 2; Ind. Const, art. Ind Const, art. I \\u00a7 16; Ind. Const, art. and Ind. Const, art. 1 \\u00a7 23.\\n. U.S. Const, amend. XIV \\u00a7 1 (Due Process Clause); U.S. Const amend. XIV \\u00a7 1 (Equal Protection Clause); and U.S. Const, amend. VIII.\\n. When adopted in 1851, the Indiana Constitution used the phrase \\\"Houses of Refuge.\\\" It was amended in 1984 to delete \\\"Houses of Refuge\\\" and replace it with \\\"institutions.\\\"\\n. The General Assembly fulfilled this mandate, opening the first House of Refuge in 1867. Such institutions remain in existence today and house many juvenile offenders.\\n. Ind Const, art. I \\u00a7 1 (\\\"WE DECLARE that all people are created equal . that all power is inherent in the People; and that all free governments are....\\\"); Ind. Const, art. 1, \\u00a7 2 {\\\"All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences.\\\"); Ind. Const, art. 1, \\u00a7 3 (\\\"No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.\\\"); Ind. Const, art. 1, \\u00a7 5 (\\\"No religious test shall be required, as a qualification for any office of trust or profit.\\\"); Ind. Const, art. 1, \\u00a7 9 (\\\"No law shall be passed . restricting the right to speak . on any subject whatever; but for the abuse of that right, every person shall be responsible.\\\"); Ind. Const, art. 1 \\u00a7 10 (\\\"In all prosecutions for libel, the truth of the matters alleged to be libellous, may be given in justification.\\\"); Ind. Const, art. 1 \\u00a7 12 (\\\"All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.\\\"); Ind Const. art. 1 \\u00a7 13 (\\\"In all criminal prosecutions, the accused shall have the right to a public trial... .\\\"); Ind. Const, art. 1, \\u00a7 14 (\\\"No person, in any criminal prosecution, shall be compelled to testify against himself.\\\"); Ind. Const, art. 1 \\u00a7 16 {\\\"All penalties shall be proportioned to the nature of the offense.\\\"); Ind. Const, art. 1 \\u00a7 19 (\\\"In all criminal cases whatever, the jury shall have the right to determine the law and the facts.\\\"); Ind. Const, art. 1 \\u00a7 20 (\\\"In all civil cases, the right of trial by jury shall remain inviolate.\\\"); Ind Const art. 1 \\u00a7 23 (\\\"The General Assembly shall not grant to any citizen . privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.\\\"); Ind Const. art. 2 \\u00a7 1 {\\\"All elections shall be free and equal.\\\"); Ind. Const art. 2 \\u00a7 2 {\\\"Every citizen of the United States, of the age of eighteen (18) years or more . shall be entitled to vote in that precinct.\\\"); Ind. Const art. 2 \\u00a7 6 {\\\"Every person shall be disqualified from holding office, during the term for which he may have been elected, who shall have given or offered a bribe, threat, or reward, to procure his election.\\\"); Ind. Const. art. 2 \\u00a7 11 (\\\"In all cases in which it is provided that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.\\\"); Ind. Const. art. 2 \\u00a7 12 (\\\"In all cases, except treason, felony, and breach of the peace, electors shall be free from arrest, in going to elections, during their attendance there, and in returning from the same.\\\"); Ind Const, art. 2 \\u00a7 13 {\\\"All elections by the People shall be by ballot; and all elections by the General Assembly, or by either branch thereof, shall be viva voce.\\\"); Ind. Const, art. 2 \\u00a7 14 {\\\"All general elections shall be held on the first Tuesday after the first Monday in November....\\\"); Ind. Const art. 4 \\u00a7 1 (\\\"The style of every law shall be: 'Be it enacted by the General Assembly of the State of Indiana;' and no law shall be enacted, except by bill.\\\"); Ind Const, art. 4 \\u00a7 8 (\\\"Senators and Representatives, in all cases except treason, felony, and breach of the peace, shall be privileged from arrest, during the session of the General Assembly, and in going to and returning from the same....\\\"); Ind. Const. art. 4 \\u00a7 18 {\\\"Every bill shall be read, by title, on three several days, in each House . and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays.\\\"); Ind. Const, art. 4 \\u00a7 20 {\\\"Every act and joint resolution shall be plainly worded, avoiding, as far as practicable, the use of technical terms.\\\"); Ind. Const, art. 4 \\u00a7 23 (\\\"In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.\\\"); Ind. Const, art. 4 \\u00a7 27 {\\\"Every statute shall be a public law, unless otherwise declared in the statute itself.\\\"); Ind Const, art. 5 \\u00a7 14 {\\\"Every bill which shall have passed the General Assembly shall be presented to the Governor.\\\"); Ind. Const, art. 5 \\u00a7 21 (\\\"The Lieutenant Governor shall . have a right . to vote on all subjects....\\\"); Ind. Const art. 6 \\u00a7 6 {\\\"All county, township, and town officers, shall reside within their respective counties, townships, and towns....\\\"); Ind Const, art. 6, \\u00a7 7 {\\\"All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office....\\\"); Ind Const, art. 6 \\u00a7 8 {\\\"All State, county, township, and town officers, may be impeached. .\\\"); Ind. Const, art. 7, \\u00a7 4 (\\\"The Supreme Court shall have, in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed.\\\"); Ind. Const art. 7 \\u00a7 11 {\\\"Every such justice and judge shall retire at the age specified by statute....\\\"); Ind. Const art. 7 \\u00a7 18 {\\\"All criminal prosecutions shall be carried on in the name, and by the authority of the state; and the stylo of all process shall be: 'The State of Indiana.' \\\"); Ind Const, art. 15 \\u00a7 4 {\\\"Every person elected or appointed to any office under this Constitution, shall . take an oath or affirmation, to support the Constitution of this State, and of the United States...\\n. Including The Indiana State Sentinel, The Indiana State Journal, The Evansville Weekly Journal, The Fort Wayne Times, and The Fort Wayne Sentinel.\\n. That the enactment was a product of study and efforts following the 1855 legislative directive is evidenced by the Governor's message to the General Assembly during the 1867 term, in which he discussed the constitutional mandate to create a House of Refuge and noted that there had been \\\"much attention and labor upon the subject\\\" and that he had been given \\\"valuable communications, which I herewith lay before you, together with reports and documents setting forth the character and operations of the Reform Schools in New York, Ohio, and Illinois.\\\" Address of Governor Conrad Baker (January 11, 1867) Journal of the House of Representatives of the State of Indiana during the forty-fifth regular session of the general Assembly, Part 1 at 30 (1867).\\n. 1855 Ind. Acts Ch. XCIII; 1867 Ind. Acts Ch LX[V]II.\\n. The juveniles were incarcerated for murder (two), manslaughter (three), arson (one), rape (one), burglary (two), grand larceny (six), Obstruction (one), stealing from a post office (one), petit larceny (nine).\\n.These juveniles were incarcerated for murder (two), manslaughter (two), arson (one), rape (three), burglary (fifteen), forgery (one), robbery (five), grand larceny (eighty-four), assault and battery with intent to rape (one), receiving stolen goods (one), and petit larceny (fourteen).\\n.In his article reviewing the historical context in which juvenile courts were created in Indiana, Justice Sullivan noted the non-exclusive nature of sentencing juveniles in the years after the constitutional convention:\\nAt the end of the 19th century, this country's courts treated children accused of crimes the same as adult offenders.... Like the rest of the country, Indiana made no distinction between the adult and the child. Indiana made no special provision for separate confinement for children pending trial, the hearing of their cases, or their final disposition. If guilty, children might share incarceration with men and women in jail or a workhouse. In more serious cases, they might be transferred to the criminal court or be sentenced to the Indiana Boys' School or the Industrial School for Girls.\\nFrank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 Ind.L.Rev. 279, 279 (1997) (footnotes omitted). In 1889, the General Assembly began revising its treatment of juveniles, culminating in 1903 with the creation of our juvenile court by virtue of Indiana Juvenile Court Act. See 1903 Ind.Acts ch. 237, \\u00a7 4. This Act specifically provided that, \\\"If the child was found guilty of the offense charged and appeared to the court to be 'wilfully wayward and unmanageable,' send the child to [the Houses of Refuge] or to any state penal or reformatory institution.\\\" Id. at 298 (emphasis added).\\n. In the five years after a House of Refuge was opened, 77% of the juvenile population was incarcerated for either grand larceny or burglary and only 10% was incarcerated for petit larceny, compared to years prior to 1850 when the most common juvenile crime leading to incarceration was petit larceny (35%).\\n. The current provision reads, \\\"The General Assembly shall provide institutions for the correction and reformation of juvenile offenders.\\\" Ind Const, art. 9 \\u00a7 2.\\n. The conclusions of the Fleener court are also applicable to this case:\\nWhile we might agree with plaintiffs that provision for only 400 of the some 7,000 children needing residential care, seems, on its face woefully inadequate, we are not at liberty to fashion a degree of care for a particular segment of the class, nor arc we enabled to direct the General Assembly to raise funds adequate for the executive to care for all members of the class in an unlimited fashion. While it may be of little or no consolation to an emotionally disturbed youngster who needs but cannot obtain state funded care, the answer seems to lie in the elective process. The citizens of the state who select the legislators and the public officials who implement and direct the various programs required, may make their voices heard.\\nY.A. Fleener, 657 N.E.2d at 417-18.\\n. As wc noted above, Ratliff is no longer in the Women's Prison. She is in a private juvenile facility in Fort Wayne.\\n. Additionally, Hunter was not a fact-specific challenge to the named juvenile's incarceration in adult prison. Hunter rejected the plaintiff's broad and generalized claim that \\\"under Article 1, \\u00a7 18 of the Indiana Constitution, all youths under the age of twenty-one years must be confined in a separate facility.\\\" Hunter, 676 N.E.2d at 16.\\n. However, we note that she also received \\\"ninety minutes a month in individual consultation with the prison psychologist.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 17).\\n. Ratliff also cites Conner v. State, 626 N.E.2d 803 (Ind.1993) for the proposition that, \\\"Article I, \\u00a7 16 provides even broader protection against cruel and unusual punishment than does the Eighth Amendment.\\\" Brief of Appellant at 17. As the State correctly notes, this is not an accurate reading of Conner, nor of our Article 1, Section 16 jurisprudence. In Conner we addressed a portion of Article 1, Section 16 not at issue here: \\\"All penalties shall be proportioned to the nature of the offense.\\\" Ind. Const, art 1 \\u00a7 16. This particular provision has no counterpart in the federal constitution. Thus, we noted, \\\"This provision goes beyond the protection against cruel and unusual punishment contained in the Eighth Amendment to the U.S. Constitution.\\\" Conner, 626 N.E.2d at 806. In the case before us, we are not faced with a proportionality challenge. Thus, case law cited by Ratliff addressing Article 1, Section 16 in that context is inappropriate.\\nIn addition, citing Reed v. State, 479 N.E.2d 1248 (Ind.1985), Ratliff mistakenly asserts that this Court has interpreted Section 16 to require the State \\\"to take reasonable precautions to preserve the life, health and safety of its prisoners.\\\" Brief of Appellant at 18. The defendant in Reed argued that, due to his age (18) and slight build, sentencing in a maximum security facility would be cruel and unusual punishment in violation of Article 1, Section 16. This Court found the issue waived for failure to raise the question at trial. Id. at 1254.\\nFinally, Ratliff argues that, when \\\"construed in combination with the prohibition of unnecessary rigor contained in Article I, \\u00a7 15, the requirement in Article I, \\u00a7 18 that the state's penal laws shall be based on principles of rehabilitation and not vindictive justice, coupled with the explicit requirement for juvenile institutions contained in Article IX, \\u00a7 2,\\\" Article 1, Section 16 \\\"should provide greater protections in her case.\\\" Brief of Appellant at 18. Because we have rejected her claims regarding each of the above provisions, this argument fails.\\n. Even were there a strong trend, we addressed a similar argument in Harrison v. State, 644 N.E.2d 1243 (Ind.1995), wherein the defendant contended that the death by electrocution is cruel and unusual punishment, arguing that public sentiment towards electrocution had changed in recent years. Id. at 1258. We held, \\\"While we recognize the strong national trend toward lethal injection as the most appropriate form of capital punishment . execution of a death sentence by electrocution does not violate the Eighth Amendment of the United States Constitution or Article 1, \\u00a7 16, of the Indiana Constitution.\\\" Id. (footnote omitted).\\n. In her complaint, Ratliff states that her claim is a \\\"civil rights action to enforce the . federal constitution[].\\\" Record at 12 (Complaint of Donna Ratliff, \\u00b6 3). She sued the Commissioner of the Department of Correction \\\"in his individual and official capacities under plaintiff's federal claim.\\\" Id. at 13 (\\u00b6 5). She alleged that his actions \\\"were taken under color of state law,\\\" id. at 16 (\\u00b6 22) and that the Due Process Clause of the Fourteenth Amendment was violated. Id. at 12, 14 (\\u00b6\\u00b6 1, 14). As in Madrid, this is sufficient to raise this claim. See Matter of Tina T., 579 N.E.2d 48, 62 (Ind.1991) (\\\"A claim for relief under \\u00a7 1983 need allege only that some person acting under color of state law has deprived the claimant of a federal right.\\\").\\n. However, \\\"[t]he Eighth Amendment does not require that prison officials provide the most desirable medical and mental health care; nor should judges simply 'constitutionalize' the standards set forth by professional associations such as the American Medical Association or the American Public Health Association.\\\" Madrid, 889 F.Supp. at 1256 (citations omitted).\\n. \\\"Indicia of 'serious' medical need include '[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain....' \\\" Madrid, 889 F.Supp. at 1255 n. 201.\\n. Her treatment in prison consists of participating in two one-hour group therapy sessions, one dealing with \\\"sexually-abused women who have unresolved issues contributing toward criminal behavior\\\" and another dealing with \\\"issues of personal responsibility, behavioral change and complicated grief among women who have taken the life of a significant other.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 17). She also receives ninety minutes a month in individual consultation with the prison psychologist. Id.\\n. The terms treatment, training, habilitation, and programs are used synonymously throughout the opinion. See Youngberg, 457 U.S. at 311, 102 S.Ct. at 2455, 73 L.Ed.2d at 34 (\\\"[Plaintiff] uses 'treatment' as synonymous with 'habilitation' or 'training.' \\\"). The Court primarily used the words \\\"training\\\" and \\\"habilitation\\\" in its opinion, noting that \\\"The word 'habilitation,' . is commonly used to refer to programs for the montally-retarded because mental retardation is . a learning disability and training impairment rather than an illness. [T]hc principal focus of habilitation is upon training and development of needed skills.\\\" Id. at 309, 102 S.Ct. at 2454, 73 L.Ed.2d at 33.\\n. The Court found that, with regard to this third liberty interest, the State must provide such treatment \\\"as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints.\\\" Id. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43.\\n. Ratliff's additional citations to K.H. Through Murphy v. Morgan, 914 F.2d 846, 856 (7th Cir.1990) and Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal.1995), mandamus denied sub nom., Wilson v. U.S. Dist. Court for the E. Dist. of Cal., 103 F.3d 828 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1823, 137 L.Ed.2d 1031 (1997), arc not persuasive.\\nRatliff cites Murphy as requiring \\\"the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.\\\" Murphy, 914 F.2d at 851. This is not entirely accurate. Murphy involved the placement of foster children in scxually-abu-sivc homes. The Seventh Circuit found, \\\"Young-berg v. Romeo made clear . that the Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.\\\" Murphy, 914 F.2d at 851. The Seventh Circuit did not grant a new liberty interests regarding a general right to treatment \\u2014 as Ratliff contends \\u2014 but, rather, the statement is inherently limited by Youngberg to situations where the physical or psychological deterioration is caused by the deprivation of the \\\"constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrcstrictive confinement conditions, and such training [treatment] as may be required by these interests.\\\" Young-berg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43 (emphasis added). This limitation is entirely consistent with Murphy itself, as the plaintiff's complaint focused on her placement in the care of foster homes and she claimed her deterioration was not the result of the state's failure to provide generalized treatment, but rather was the result of the state's failure to provide conditions of reasonable care and safety. See Murphy, 914 F.2d at 851 (\\\"Ours is the . case in which the state places the child in a private foster home or sequence of such homes and fails to take steps to prevent the child from deteriorating physically or psychologically as a result of either mistreatment by one or more sets of foster parents or the frequency with which the child is moved about within the foster-home system or, as in this case, both.\\\"). See also Barichello v. McDonald, 98 F.3d 948, 953 (7th Cir.1996) (rejecting plaintiff's \\\"liberty interest in rehabilitative treatment\\\" because \\\"Youngberg only held . that mental patients had liberty interests in 'safety' and 'freedom from bodily restraint.' \\\").\\nRatliff also cites Madrid for the proposition that, \\\"This duty to prevent deterioration has been extended to protect inmates with psychological problems in correctional settings.\\\" Brief of Appellant at 19. However, Madrid is not persuasive in this context because it involves an Eighth Amendment claim, not a Fourteenth Amendment claim.\"}"
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+"{\"id\": \"11838505\", \"name\": \"Robert BRYANT and Richard Boucher, Appellants-Plaintiffs, v. INDIANA STATE DEPARTMENT OF HEALTH, Appellee-Defendant\", \"name_abbreviation\": \"Bryant v. Indiana State Department of Health\", \"decision_date\": \"1998-05-21\", \"docket_number\": \"No. 49A05-9706-CV-250\", \"first_page\": \"975\", \"last_page\": \"979\", \"citations\": \"695 N.E.2d 975\", \"volume\": \"695\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:29:49.714849+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, C.J., and RUCKER, J., concur.\", \"parties\": \"Robert BRYANT and Richard Boucher, Appellants-Plaintiffs, v. INDIANA STATE DEPARTMENT OF HEALTH, Appellee-Defendant.\", \"head_matter\": \"Robert BRYANT and Richard Boucher, Appellants-Plaintiffs, v. INDIANA STATE DEPARTMENT OF HEALTH, Appellee-Defendant.\\nNo. 49A05-9706-CV-250.\\nCourt of Appeals of Indiana.\\nMay 21, 1998.\\nDennis K. Frick, Claire E. Lewis, John T. Greiner, Legal Services Organization of Indiana, Indianapolis, for Appellants-Plaintiffs.\\nJulia Blackwell Gelinas, David E. Jose, Locke Reynolds Boyd & Weisell, Indianapolis, for Evergreen Healthcare Ltd. d/b/a Beech Grove Healthcare Center.\\nJeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Indiana State Department of Health.\", \"word_count\": \"2082\", \"char_count\": \"13601\", \"text\": \"OPINION\\nRATLIFF, Senior Judge.\\nCase Summary\\nPlaintiffs Robert Bryant and Richard Boucher appeal from the trial court's findings of fact and conclusions of law on judicial review affirming the Indiana State Department of Health's administrative .determination that the plaintiffs' involuntary transfer from the Beech Grove Healthcare Center (the \\\"Center\\\") was in compliance with Indiana's regulations. .We affirm.\\nIssue\\nPlaintiffs raise one issue for our review which we restate as whether the Center proved by a preponderance of the evidence that it could not meet its ventilator-dependent residents' needs and that transfer to other facilities was necessary for the resi dents' welfare due to the closing of the Center's ventilator unit.\\nFacts and Procedural History\\nIn 1990, the Center established a ventilator unit and began accepting residents who were ventilator-dependent. An outside contractor provided specialized respiratory care twenty-four hours a day for those residents. The Center was reimbursed by Medicaid for the cost of having two respiratory therapists present twenty-four hours a day for the Center's seven ventilator-dependent residents. In 1995, Medicaid reimbursement rules were changed, reducing the hours for which the Center could be reimbursed for ventilator care to cover the cost of only one therapist for twelve hours a day. Both the Center and its outside contractor believed that ventilator-dependent residents required twenty-four hour specialized care, and therefore, the Center decided to close its ventilator unit. The Center issued the notices required for involuntary transfer to its residents, stating that \\\"this facility is closing the ventilator unit. Therefore we can no longer meet your medical needs.\\\" R. 824, 834. Although the unit was to officially close on March 10, 1995, the Center was willing to continue to provide ventilator care on an emergency basis until all residents had been transferred to appropriate facilities.\\nPlaintiffs filed a notice of appeal with the Department of Health requesting a hearing on the proposed transfer. Following the hearing, the hearing officer determined that the Center had proven by a preponderance of the evidence that its transfer of the ventilator-dependent residents was within the confines of 410 Ind.Admin.Code 16.2 \\u2014 2\\u20143(i)(4), which defines the reasons for which nursing facility residents can be transferred or discharged.\\nPlaintiffs then requested an administrative appeal of the hearing officer's decision. The Department of Health appointed an administrative law judge, who held a hearing and then issued a recommended order upholding the hearing officer's decision. The ALJ specifically adopted the hearing officer's findings of fact, and added the following finding: \\\"The facts as stated in the foregoing findings of fact substantiate the need for transfer of the resident under 410 IAC 16.2-2-3(i)(4)(A).\\\" The ALJ also adopted the hearing officer's conclusions of law, adding the following conclusion: \\\"The termination of ventilator services effectively renders Beech Grove Healthcare Center incapable of meeting the resident's needs within the meaning of 410 IAC 16.2-2-3(i)(4)(A).\\\" R. 354-56. The ALJ's recommended order was adopted by an Appeals Panel as the final order of the Department of Health. R. 409-10.\\nPlaintiffs then filed a petition for judicial review. After oral argument, the trial court issued its Findings of Fact and Conclusions of Law entering judgment in favor of the Department of Health and the Center. This appeal ensued in due course.\\nDiscussion and Decision\\nA nursing facility cannot transfer or discharge a resident from the facility unless, among other reasons, \\\"the transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility-\\\" 410 Ind.Admin.Code 16.2-2-3(i)(4)(A). Plaintiffs argue that the Center did not prove that their needs could not be met in the facility and that transfer was necessary for their welfare. Plaintiffs base their argument upon a literal interpretation of the word \\\"cannot\\\" as used in the regulation: they urge us to construe the regulation such that once a nursing facility has undertaken to provide an optional service, it cannot choose at a later time to discontinue that service, because it is able to continue to meet its residents' needs, as evidenced by its past provision of the service. Both the Center and the Department of Health respond that, because no state or federal law requires a nursing facility to provide ventilator services, the Center could close its ventilator unit at any time, and especially once a change in the reimbursement rules made it either financially burdensome or medically unsafe to continue to provide the service. The Center and the Department of Health assert that upon deciding to close the unit, the Center became unable to meet its residents' needs and transfer was necessary for their welfare, and the only restriction upon the Center's decision was that it follow the proper procedures for an involuntary transfer of its ventilator-dependent residents, as found in 410 Ind.Admin.Code 16.2 \\u2014 2\\u2014B(i).\\nA court reviewing an administrative decision is limited to determining whether the agency possessed jurisdiction over the subject matter, and whether the agency's decision was made upon substantial evidence, was not arbitrary or capricious, and was not in violation of any constitutional, statutory or legal principles. Ind.Code \\u00a7 4-21.5-5-14; Indiana Dep't of Natural Resources v. United Refuse Co., 615 N.E.2d 100, 103 (Ind.1993). The trial court proceeding is not intended to be a trial de novo, but rather the court simply analyzes the record as a whole to determine whether the administrative findings are supported by substantial evidence. Natural Resources Comm'n v. Sugar Creek Mobile Estates, 646 N.E.2d 61, 64 (Ind.Ct.App.1995), reh'g denied, trans. denied. Courts that review administrative determinations, at both the trial and appellate level, are prohibited from reweighing the evidence and judging the credibility of witnesses and must accept the facts as found by the administrative body. Id. Although a reviewing court owes some deference to an administrative agency's findings of fact, no such deference need be accorded an agency determination of a matter of law. Indiana Dep't of Public Welfare v. Payne, 622 N.E.2d 461, 465 (Ind.1993).\\nThis case turns on the construction of the phrase \\\"cannot meet the resident's needs\\\" as used in the regulation governing involuntary transfer. .Rules of statutory construction are also applicable to the interpretation of administrative regulations. State v. Carmel Healthcare Management, Inc., 660 N.E.2d 1379, 1386 (Ind.Ct.App.1996). \\\"The cardinal rule of statutory construction is to ascertain the intent of the drafter....\\\" Id. We ascertain intent by giving effect to the ordinary and plain meaning of the language used. Clifft v. Indiana Dep't of State Revenue, 660 N.E.2d 310, 316 (Ind.1995). We give words their common and ordinary meaning, without \\\" 'overemphasizing a strict literal or selective reading of individual words.' \\\" Spaulding v. Int'l Bakers Serv., 550 N.E.2d 307, 309 (Ind.1990) (quoting Foremost Life Ins. Co. v. Dept. of Ins., 274 Ind. 181, 186, 409 N.E.2d 1092, 1096 (1980)). When a regulation is susceptible to more than one interpretation, we may consider the consequences of a particular interpretation. Carmel Healthcare Management, Inc., 660 N.E.2d at 1386.\\nIn support of their argument that the Center was required to continue providing ventilator services because it was able to, Plaintiffs cite In the Matter of the Involuntary Discharge or Transfer of J.S. by Hall, 512 N.W.2d 604, 612 (Minn.Ct.App.1994). In J.S., the Commissioner of Health determined that a nursing facility could not involuntarily transfer a resident because the facility had failed to prove that the transfer was necessary for her welfare and that it could not m\\u00e9et her needs. The Minnesota Court of Appeals affirmed the Commissioner's determination, but noted that it was a \\\"close case.\\\" Id. at 612. The facility had attempted to transfer J.S. because \\\"it was not equipped to care for unstabilized mentally ill residents.\\\" Id. at 608. However, the facility had a duty under both federal and state law to provide mental health services, and under federal law, was required to conduct periodically a comprehensive assessment of each resident's functional capacity and develop a comprehensive plan to meet the resident's needs. Id. at 609, 611 (citing 42 C.F.R. \\u00a7 483.20). The Commissioner determined that the facility had not adequately proven that it had properly assessed J.S.'s mental and physical health or that it had developed a care plan for J.S. and therefore, had not proven that it could not meet her needs. The court upheld this determination, stating that in the absence of clinical evidence that the facility had exhausted all required avenues of assessment, it was not entitled to elect the \\\"last resort\\\" \\u2014 transfer. Id. at 612. Had the facility conducted the required assessment, the care plan could have included transfer, however. Id.\\nJ.S. does not provide clear support for the plaintiffs' position. In contrast, the evidence in the record before us demonstrates that ventilator-dependent residents require specialized, around-the-clock care, because ventilators are life-support devices. A ventilator-dependent resident's condition could change significantly at any time, and specially-trained personnel are required to assess the situation and respond accordingly. This evidence supports the Department of Health's determination that the closing of the ventilator unit effectively rendered the Center incapable of meeting its ventilator-dependent residents' needs within the meaning of the regulation. No state or federal regulations required the Center to provide the ventilator services. The Center provided to each resident the notice required by regulation in order to involuntarily transfer him or her from the facility. Each resident's doctor had documented that transfer was medically necessary due to the closing of the unit. R. 833, 842. Further, in contrast to the Plaintiffs' assertion that their welfare was not considered in the transfer decision, it was the welfare of the residents which in part prompted the closing of the unit \\u2014 the Center believed that anything less than twenty-four hour respiratory care for its ventilator-dependent residents would be medically inadequate. The choice presented to the Center by the change in Medicaid reimbursement rules was either to provide only that care for which it would be reimbursed and put its residents at risk, or provide the care it believed necessary and suffer financially.\\nWe do not believe that the use of the phrase \\\"the resident's needs cannot be met\\\" in the regulation defining the limited instances in which a resident may be involuntarily transferred was intended to force a nursing facility to provide care which it is theoretically able to provide, regardless of the consequences. The Center was entitled to make the decision to close its ventilator unit, subject only to the requirements of 410 Ind.Admin.Code 16.2-2-3\\u00a9 regarding documenting the residents' clinical records, giving adequate notice and an opportunity for an appeal hearing, and preparation of and assistance in implementing a relocation plan. Having made that decision, the Center became medically unable to care for its ventilator-dependent residents, and transfer of the residents to other facilities was necessary for their welfare. Plaintiffs' transfer from the Center was accomplished in compliance with 410 Ind.Admin.Code 16.2-2-3\\u00ae, and the decision of the Department of Health and the trial court that such transfer was allowed was not in error.\\nAffirmed.\\nSHARPNACK, C.J., and RUCKER, J., concur.\\n.All seven ventilator-dependent residents of the Center were parties to the informal appeal hearing. Mr. Bryant, Mr. Boucher and two other residents, Georgetta Wood and Nancy Brown, then appealed the hearing officer's decision to the Department of Health. Ms. Wood was dismissed from the administrative appeal after her death. Thereafter, Mr. Bryant, Mr. Boucher and Ms. Brown petitioned for judicial review of the administrative decision. Ms. Brown was dismissed from that case after her death. For purposes of this opinion, all references to the \\\"plaintiffs\\\" refer only to Mr. Bryant and Mr. Boucher at all stages of the proceedings.\\n. The \\\"transfer\\\" of a resident from a nursing facility is defined as the movement of a resident from a skilled nursing facility to another institutional setting. 42 C.F.R. \\u00a7 483.202. A \\\"discharge\\\" is the movement of resident from a skilled nursing facility to a noninstitutional setting. Id. Therefore, although the applicable regulation addresses both, this proceeding is concerned with a \\\"transfer\\\" rather than a \\\"discharge.\\\"\\n. Plaintiffs' request for Oral Argument is denied.\"}"
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+"{\"id\": \"11872143\", \"name\": \"Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants\", \"name_abbreviation\": \"Smith v. Standard Life Insurance\", \"decision_date\": \"1997-10-31\", \"docket_number\": \"No. 06A01-9609-CV-293\", \"first_page\": \"214\", \"last_page\": \"219\", \"citations\": \"687 N.E.2d 214\", \"volume\": \"687\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:34:23.423869+00:00\", \"provenance\": \"CAP\", \"judges\": \"BAKER and KIRSCH, JJ., concur.\", \"parties\": \"Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants.\", \"head_matter\": \"Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants.\\nNo. 06A01-9609-CV-293.\\nCourt of Appeals of Indiana.\\nOct. 31, 1997.\\nPaul S. Kruse, Anthony W- Patterson, Parr Richey Obremskey & Morton, Lebanon, for Appellants-Plaintiffs.\\nTodd J. Kaiser, Nicholas C. Pappas, Sandra Boyd Williams, Locke Reynolds Boyd & Weisell, Indianapolis, for Appellees-Defen-dants.\", \"word_count\": \"2151\", \"char_count\": \"13196\", \"text\": \"OPINION\\nNAJAM, Judge.\\nSTATEMENT OF THE CASE\\nAlice Jean Smith (\\\"Smith\\\") slipped and fell on an icy sidewalk outside of Hook Drugs, Inc. (\\\"Hook's\\\"). Smith was an employee of Hook's-at the time of her fall. She and her husband, Richard Smith, filed a complaint against Standard Life Insurance Company of Indiana (\\\"Standard Life\\\"), the owner and lessor of the premises. The trial court entered summary judgment in favor of Standard Life, and Smith now appeals. The dis-positive issue presented for our review is whether Smith, as an employee of the tenant, qualifies as a \\\"third person\\\" under the public use exception to the general rule of non-liability for landlords.\\nWe affirm.\\nFACTS\\nIn 1979, Standard Life purchased a building from Hook's in Zionsville and immediately leased it back to Hook's. Under a twenty-year written lease, Standard Life surrendered complete possession and control of the entire premises to Hook's. Standard Life did not participate in the design or construction of the building, which was erected in 1975. Hook's sublet an area to Pizza King Village Station (\\\"Pizza King\\\"). Pizza King is located in a part of the building adjacent to and set back from that part occupied by Hook's.\\nHook's hired Smith in 1979, and she worked as a cashier in the Zionsville location continuously except for one four-month period. Smith would frequent Pizza King for lunch and always walked the same route. During Smith's employment, the manager of Hook's had consistently removed snow and ice from the sidewalk. Smith had also performed that task on occasion. However, Smith and her co-workers removed snow and ice only from the area directly in front of the Hook's store.\\nOn February 23, 1993, Smith was injured when she slipped and fell on an icy area of the sidewalk between Hook's and Pizza King. Subsequently, Smith filed a complaint against several defendants, including Standard Life. Smith alleged that Standard Life had breached its duty of reasonable care when it knew or should have known at the time of the lease that a dangerous condition existed on the premises and was negligent because it had failed to remove accumulations of snow and ice from the sidewalk. Specifically, Smith alleged that a drain spout had directed water onto the sidewalk in- a concentrated area, which caused ice to form, and that Standard Life either knew about or should have discovered the condition.\\nStandard Life filed a Motion for Summary Judgment, which the trial court granted. Smith now appeals.\\nDISCUSSION AND DECISION\\nStandard of Review\\nThe purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Monon Corp. v. Townsend, 678 N.E.2d 807, 809 (Ind.Ct.App.1997), trans. denied. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. Id. The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in the light most favorable to the non-movant. Ramon v. Glenroy Constr. Co., 609 N.E.2d 1123, 1127 (Ind.Ct.App.1993), trans. denied.\\nWhen reviewing a decision upon a motion for summary judgment, this court applies the same standard as the trial court. Miller Brewing Co. v. Bartholomew Co. Beverage Co., Inc., 674 N.E.2d 193, 198 (Ind.Ct.App.1996), trans. denied. We stand in the shoes of the trial court and liberally construe all designated evidentiary material in favor of the nonmoving party. Rotec, Div. of Orbitron, Inc. v. Murray Equip., Inc., 626 N.E.2d 533, 535 (Ind.Ct.App.1993). In order to prevail on appeal when a summary judgment motion has been granted in favor of an opposing party, the appealing party must establish the existence of a genuine issue of material fact from materials designated to the trial court. Thompson v. Murat Shrine Club, Inc., 639 N.E.2d 1039, 1040 (Ind.Ct.App.1994), trans. denied. Where the facts are not in dispute, summary judgment is inappropriate only when the fact-finder may reasonably draw conflicting inferences from the undisputed facts. Nobles v. Cartwright, 659 N.E.2d 1064, 1071 (Ind.Ct.App.1995).\\nPremises Liability: General Rule of Non-Liability for Landlords\\nSmith's complaint \\u2022 alleges that Standard Life breached its duty of reasonable care when it knew or should have known of the dangerous condition at the time of the lease. Smith further asserts that Standard Life was negligent for failing to remove accumulations of snow and ice and for permitting the dangerous condition to continue. The tort of negligence is comprised of three elements: (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, (3) which proximately causes the plaintiffs damage. Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d 412, 414 (Ind.Ct.App.1991). Whether a duty exists is a question of law for the court to decide. Id. The duty that a landlord owes to tenants or third parties lawfully upon the leased premises was discussed in Rogers v. Grunden, 589 N.E.2d 248 (Ind.Ct.App.1992), trans. denied, in which we stated:\\nThe law of this jurisdiction is clear; as a general rule, in the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be hable for personal injuries sustained by the tenant or other persons lawfully upon the leased property. Generally, once possession and control of property have been surrendered, a landlord does not owe a duty to protect tenants from defective conditions.\\nId. at 254 (citations omitted).\\nThe parties do not dispute that Standard Life had relinquished complete possession and control of the premises to Hook's. Specifically, pursuant to the lease, Hook's accepted \\\"the premises in their [sic] present condition\\\" and agreed to \\\"keep [it] in good condition and repair.\\\" Hook's also retained the right to alter the premises. Consequently, Hook's was responsible for the maintenance and repair of the building and typically dispatched its own maintenance workers to make improvements or repairs. Further, Hook's employees removed the snow and ice from the sidewalk, and the store manager made certain that the sidewalk in front of Hook's was clear of snow and ice prior to opening for business each day. Given these undisputed facts, under the general rule of non-liability for landlords, Standard Life did not owe Smith a duty.\\nThe Public Use Exception\\nStill, Smith asserts that summary judgment is precluded in that the \\\"public use\\\" exception to the general rule of landlord non-liability applies and creates a duty owed by Standard Life to Smith. Specifically, Smith maintains that Standard Life leased the property to Hook's for a public purpose and that a material issue of fact exists as to whether, at the time of the lease, a dangerous condition existed which rendered the premises unsafe for public use. Smith further alleges that Standard Life knew about or should have discovered the condition by the exercise of reasonable care. Finally, Smith contends that she qualifies as a \\\"third person\\\" protected by the public use exception.\\nThe public use exception, which we first recognized in Walker v. Ellis, 126 Ind.App. 353, 129 N.E.2d 65 (1955), trans. denied, provides:\\nWhere premises are leased for public or semi-public purposes, and at [the] time of lease[,] conditions exist which render premises unsafe for purposes intended, or constitute a nuisance, and landlord knows or by exercise of reasonable care ought to know of conditions, and a third person suffers injury on account thereof, landlord is liable, because [the] third person is there at invitation of landlord, as well as of tenant.\\nId. at 73 (citations omitted). In order for the public use exception to apply, Smith must designate evidence of the following facts in the record: (1) the property was leased for a public purpose, (2) a condition existed at the time of the lease which rendered the premises unsafe and the landlord knew or should have known of the condition by the exercise of reasonable care, and (3) a third person was injured because of the existing condition. Id. The parties dispute whether the premises were leased for a public purpose and whether Standard Life knew or should have known of the alleged dangerous condition. We need not consider whether these are disputed issues of material fact because the dispositive issue in this case is whether Smith qualifies as a \\\"third person\\\" under the public use exception.\\n\\\"Third Person\\\" Requirement\\nIn order to invoke the public use exception, Smith must demonstrate that as an employee of Hook's she qualifies as a \\\"third person.\\\" Smith argues that she is a third person because she was .injured on the sidewalk outside of the area occupied by Hook's. Standard Life counters that Smith was injured during the course of her employment and does not qualify as a third person under the exception. We agree with Standard Life.\\nIn Walker, the leading Indiana case that discusses the public use exception, we recognized that a landlord may be liable to a \\\"third person\\\" when premises are leased for public use because the third person is there at the invitation of both the landlord and the tenant. Walker, 129 N.E.2d at 73. The plaintiff in Walker was a customer of the tenant. Here, in contrast, Smith was on the premises as an employee of Hook's and not at the invitation of Standard Life.\\nThe parties dispute whether in Place v. Sagamore, 604 N.E.2d 671 (Ind.Ct.App.1992), trans. denied, we decided that an employee of the tenant did not qualify as a \\\"third person\\\" under the public use exception. Although we expressed our doubts that the exception applied, our decision in Place was based primarily on other grounds, namely, that Place had failed to allege any facts indicating that the landlord had leased the premises to Place's employer for a public purpose. Id. at 675. Thus, we consider this a case of first impression.\\nThe definition of a third person on business premises that are open to the public is found in the Restatement (Second) of Torts:\\nb. \\\"Third persons\\\" include all persons other than the possessor of the land, or his servants acting within the scope of their employment. It includes such servants when they are acting outside of the scope of their employment, as well as other invitees or licensees upon the premises, and also trespassers on the land, and even persons outside of the land whose acts endanger the safety of the visitor.\\nRestatement (Second) of ToRts \\u00a7 344 emt.b (1965). Both our supreme court and this court have previously relied on the Restatement (Second) of Torts in resolving premises liability questions. See Burrell v. Meads, 569 N.E.2d 637, 642 (Ind.1991) (incorporating Restatement (Second) of Torts \\u00a7 332 in adopting the \\\"invitation test\\\" for use in determining who qualifies as an invitee in premises liability actions); see also Frye v. Rumbletown Free Methodist Church, 657 N.E.2d 745, 750 (Ind.Ct.App.1995) (adopting Restatement (Second) of Torts \\u00a7 330 in determining that Indiana recognizes the privilege to enter another's land implied by custom). We agree with the Restatement (Second) of Torts \\u00a7 344, comment b, and adopt the Restatement definition of who qualifies as a \\\"third person\\\" under the public use exception.\\nSmith argues that she is a \\\"third person\\\" because her injury occurred outside the area occupied by Hook's rather than inside the store. We are not persuaded by her argument. While Standard Life owns the premises, the lease gave Hook's complete possession and control. Regardless of the exact location where her injury occurred, Smith was on the premises controlled by Hook's when she was injured, and there is no dispute that she was acting within the scope of her employment at the time she sustained her injury. Thus, Smith is not a stranger to the lease and does not qualify as a third person under the Restatement (Second) of Torts \\u00a7 344 definition.\\nWe conclude that Smith has failed to meet the \\\"third person\\\" requirement of the public use exception, and, therefore, that the exception does not apply. Standard Life owes no duty to Smith under the exception. The trial court did not err in granting summary judgment in favor of Standard Life.\\nAffirmed.\\nBAKER and KIRSCH, JJ., concur.\"}"
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+"{\"id\": \"12169658\", \"name\": \"Olive H. Jones, Administratrix of the Estate of Dareld James Jones, Deceased v. Indianapolis Power & Light Co., Combustion Engineering, Inc.\", \"name_abbreviation\": \"Jones v. Indianapolis Power & Light Co.\", \"decision_date\": \"1973-12-13\", \"docket_number\": \"No. 2-672-A26\", \"first_page\": \"676\", \"last_page\": \"691\", \"citations\": \"158 Ind. App. 676\", \"volume\": \"158\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:45:27.477647+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan and White, JJ., concur.\", \"parties\": \"Olive H. Jones, Administratrix of the Estate of Dareld James Jones, Deceased v. Indianapolis Power & Light Co., Combustion Engineering, Inc.\", \"head_matter\": \"Olive H. Jones, Administratrix of the Estate of Dareld James Jones, Deceased v. Indianapolis Power & Light Co., Combustion Engineering, Inc.\\n[No. 2-672-A26.\\nFiled December 13, 1973.\\nRehearing denied February 21, 1974.\\nTransfer denied May 17, 1974.]\\nPaul G. Smith, Smith, Pearce & Barr, of Noblesville, Gleason, Woods & Johnson, of Indianapolis, for appellant.\\nErie A. Kightlinger, Howard J. DeTrude, Jr., John T. Lorenz, Kightlinger Young Gray & DeTrude, of Indianapolis, for appellee.\", \"word_count\": \"4167\", \"char_count\": \"25845\", \"text\": \"CASE SUMMARY\\nBuchanan,\\nP.J.\\u2014Plaintiff-Appellant Olive Jones (Jones) appeals from a judgment on the evidence entered by the trial court in a Wrongful Death action brought by her against Defendant-Appellee Indianapolis Power and Light Company (Ipalco), claiming that sufficient evidence was presented from which the jury could have found Ipalco negligent in causing the death of her husband (decedent), who was employed by a contractor retained by Ipalco to supply and install steam generating equipment.\\nWe affirm.\\nFACTS\\nThe evidence most favorable to Jones' case is:\\nIn March of 1968 Ipalco completed construction of Unit I of a power plant on land it owned in Petersburg, Indiana. Thereafter, construction began on Unit II, and on March 25, 1968 the accident occurred which resulted in the death of Jones' husband, Dareld James Jones (Decedent).\\nIn connection with this construction project, Ipalco retained the services of Stone and Webster Engineering Corporation to prepare plans and specifications and act as supervisors of construction. As between Ipalco and Stone and Webster, Ipalco retained the power to award contracts and direct the progress of construction.\\nIpalco contracted directly with several contractors to erect Unit II, including Combustion Engineering, Inc. (Combustion), Decedent's employer. Combustion was employed to sup ply and install steam generating equipment (boiler and ash hopper). Two contracts were executed between Ipalco and Combustion\\u2014one a \\\"material only'' contract by the terms of which Combustion was to furnish boiler equipment, and the second contract provided for the installation of the boiler equipment.\\nThese two contracts and purchase orders issued thereunder contained provisions that:\\nAll work to be done under the general supervision of Ipalco's engineers (Stone & Webster).\\nAll work to comply with local ordinances, rules, regulations and statutes of the State of Indiana which were incorporated by reference.\\nAll Combustion and Stone & Webster's employees to comply with all regulations of Ipalco regarding admission to the property.\\nWork to be performed under the direction and to the satisfaction of Ipalco and/or its engineer (Stone & Webster). Combustion to conduct its operation so as to provide maximum safety for all employees and comply with all safety regulations of applicable laws as prescribed by Ipalco or its engineer, and promptly correct any unsafe conditions when directed to do so by the engineer.\\nWork coordination and scheduling to be subject to check by Stone & Webster.\\nCombustion to furnish and maintain all labor and special tools necessary for complete installation, including hoisting and hauling equipment.\\nTo assist in installation of the generating equipment, Combustion installed a man and materials hoist on the exterior of the plant under construction. This hoist, or electrically operated elevator, was owned by Combustion and was inspected and maintained and used exclusively by its employees.\\nDecedent was employed by Combustion to operate this hoist.\\nOn the morning of March 25, 1968, Decedent commenced operation of the hoist at about 8:00 A.M. and about 9 :00 A.M., after he had taken a load of men approximately 100 feet above the ground, the hoist stuck. Because the voice communication system was not operative, Decedent signaled by the use of gestures to Combustion ground-level employees that the hoist would not move. They then manipulated master override controls at the base of the hoist which caused the hoist car to descend about six feet where it came to rest upon Decedent, crushing him between the top of the car and the floor landing. Apparently he was trapped, with part of his body inside the hoist car and part on the floor landing when the car descended.\\nDecedent subsequently died from injuries thus received on April 18, 1968.\\nIt was determined that the hoist stuck because a limit control switch on top of the hoist car became clogged with ice and snow; when cleaned away the hoist operated properly.\\nNo warning devices were installed in the hoist car nor was a Combustion-owned public address system functional.\\nAll persons involved in this episode were Combustion employees. The protective fencing around the base of the hoist carried the sign \\\"C. E. Employees Only.\\\"\\nIpalco's sole employee on the job site, the field engineer, was not present when Decedent sustained his injuries nor had he ever inspected or examined the hoist for safety although he did have some knowledge of prior malfunction of the hoist due to the frozen limit control switch.\\nJones, as the Administratrix of this Estate, brought this Civil Action under the Indiana Wrongful Death Statute against Ipalco alleging its negligence both directly and by imputation from Combustion.\\nThe case was tried before a Jury and at the conclusion of Plaintiff's evidence, Ipalco moved for judgment on the evidence which motion the trial court granted. This appeal followed.\\nISSUES\\nThe issues raised by the parties may be consolidated thusly:\\nISSUE ONE. Was there any evidence that Ipalco retained sufficient control over the manner and means of the performance of work under the contracts so as to render Ipalco liable for Combustion's negligence?\\nISSUE TWO. Was there any evidence which could sustain Ipalco's liability under any exception to the rule exempting it from liability for the death or injury to a servant of an independent contractor ?\\nAs to ISSUE ONE, Jones contends that under the contracts between Ipalco and Combustion, Ipalco retained sufficient control over Combustion's work to render it liable for Combustion's negligence.\\nIn response, Ipalco contends that the contract did not give Ipalco the right to control the manner and means of Combustion's performance of the work. Because of this absence of control, Ipalco argues, Combustion was an independent contractor and not a mere servant of Ipalco, and therefore its negligence (if any) may not be imputed to Ipalco.\\nAs to ISSUE TWO, Jones maintains that, even if Combustion's role was that of an independent contractor, the evidence would warrant allowing the case to go to the jury because of certain exceptions to the general rule of non liability of an employer of an independent contractor for the latter's torts. These exceptions impose liability upon the employer (1) if the contract requires the performance of work intrinsically dangerous or (2) if the employer is charged by law or contract with the specific duty in question or (3) if the act to be performed will probably cause injuries to others unless due precaution is taken to avoid harm.\\nUnder exception two Jones claims Ipalco was obligated under a specifically legally imposed duty to provide Decedent a safe place to work which duty was breached. Also, the Dangerous Occupation Act and certan administrative regulations obligated Ipalco to insure that the hoist equipment conformed to the specifications set out therein. And last, that the contract imposed a specific duty upon Ipalco to require precautions to be taken to assure the safety of the hoist.\\nIn response to these allegations, Ipalco contends that no evidence was presented from which a jury could find that a duty was owed by it to the Decedent under any of these exceptions.\\nJones raises other questions in her brief which are either unsubstantial or have been waived pursuant to Rule AP. 8.3(A).\\nDECISION\\nAs consideration of the issues raised by this appeal necessarily involves the propriety of entering a judgment on the evidence in favor of a Defendant (Ipalco) at the close of Plaintiff's (Jones) case, a statement of the appellate rule governing our review of the trial court's action is appropriate:\\n\\\" 'On appeal we will consider only the evidence most favorable to the party against whom the Motion for Directed Verdict was made and all reasonable inferences from such evidence. (Citations omitted.)'\\n\\\"The quantum of evidence necessary for a plaintiff to avoid a directed verdict at the close of his evidence has been determined by our Supreme Court to be any evidence or legitimate inference therefrom tending to support at least one of the plaintiff's allegations. Specifically, our Supreme Court held in Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N.E.2d 315, 318, that:\\n\\\" 'It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a preemptory instruction ' \\\" (Emphasis supplied.) Mamula v. Ford Motor Company (1971), 150 Ind. App. 179 at 181-82, 275 N.E.2d 849 at 851. See also: Wallace v. Doan (1973), 155 Ind. App. 316, 292 N.E.2d 820; Hammond v. Allegretti (1972), Ind. App., 288 N.E.2d 197; Adkins v. Elvard (1973), 155 Ind. App. 672, 294 N.E.2d 160.\\nSo, we may only reverse if after considering the evidence most favorable to Jones, there is some evidence in support of the claimed negligence of Ipalco.\\nISSUE ONE.\\nCONCLUSION\\u2014It is our opinion that there was no evidence from which a jury could find that Ipalco retained sufficient control over Combustion's work to render Ipalco vicariously liable for Combustion's negligence (if any) on the basis of respondeat superior.\\nJones grapples with the acknowledged principle that a person employing an independent contractor is usually not liable for the torts of that contractor. As such, the independent contractor's liability usually is not transferable to the employer. Gibbs v. Miller (1972), 152 Ind. App. 326, 283 N.E.2d 592; Stewart v. Huff (1938), 105 Ind. App. 447, 14 N.E.2d 322.\\nIf the employer retains sufficient right to control the work, the relationship of master-servant may arise.\\nIndiana courts have been explicit as to the control which will confer the status of independent contractor upon persons hired to do certain work. The oft-cited case of Prest-O-Lite Company v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, is instructive:\\n\\\"It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is let. An independent contractor is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer except as to the product or result of the work. When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer, does not render the person contracted with to do the work a servant.\\\" (Emphasis supplied.) (182 Ind. at 597, 106 N.E. at 367.) See also: Gibbs v. Miller, supra; Nash v. Meguschar (1950), 228 Ind. 216, 91 N.E.2d 361; The Vincennes Water Supply Co. v. White (1890), 124 Ind. 376, 24 N.E. 747; Clark v. Hughey (1954), 233 Ind. 134, 117 N.E.2d 360; Marion Shoe Co. v. Eppley (1914), 181 Ind. 219, 104 N.E. 65; Craybill v. Livengood (1967), 142 Ind. App. 624, 231 N.E.2d 854; Petzold v. McGregor (1931), 92 Ind. App. 528, 176 N.E. 640.\\nThe court in Prest-O-Lite also offered the following warning against an overly-restrictive contractual analysis in the determination of what form of controls the owner-contractee retained:\\n\\\"The difference between an independent contractor and a mere servant is not to be determined solely by the pretention (sic) of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole,\\u2014by its spirit and essence,\\u2014and not by the phraseology of the single sentence or paragraph.\\\" (182 Ind. at 598, 106 N.E. at 367).\\nWhether viewed separately or as a whole, the provisions of the contracts between Ipalco and Combustion are subject to only one reasonable interpretation, i.e., Ipalco retained supervisory control of the work done by Combustion. It controlled what was done but not who did it or how it was done. Combustion's performance was required to measure up to the plans and specifications and to be coordinated with overall construction progress. Nor is there any evidence that Ipalco or its agents possessed any power to control the specific means and details of Combustion's work.\\nJones failed to present any evidence that Decedent was under the power and control of Ipalco and subject to its orders and directions in operating the hoist at the time he sustained his fatal injuries\\u2014a factor recognized as the ultimate test of control in actions of this sort. Marion Shoe Company v. Eppley, supra.\\nHaving failed to make an evidentiary showing of Ipalco's right to control, the manner and means of Combustion's or Decedent's work, Decedent was nothing more than an employee of an independent contractor. Vicarious liability may not, therefore, be imposed upon Ipalco as a matter of law. Stewart v. Huff, supra.\\nISSUE TWO.\\nCONCLUSION\\u2014It is our opinion that there was no evidence which could sustain Ipalco's liability to Jones on the basis of any exception to the general rule insulating a con-tractee from responsibility for the death or injury to a servant of an independent contractor.\\nEngrafted on the general rule that \\\"where an injury has been done by a party exercising an independent employment, the person employing him will not be liable in damages for injury or death resulting from the wrongful acts or omissions of such party, or of the servants of such party,\\\" are certain exceptions. They are enumerated in: Denneau v. Indiana and Michigan Electric Company (1971), 150 Ind. App. 615 at 620, 277 N.E.2d 8 at 12.\\n\\\"There are five (5) exceptions to the general rule that a contractee is not liable to an independent contractor's servants for injuries:\\n(1) where the contract requires the performance of work intrinsically dangerous;\\n(2) where a party is by law or contract charged with the specific duty;\\n(3) where the act will create a nuisance;\\n(4) where the act to be performed will probably cause injury to others unless due precaution is taken to avoid harm;\\n(5) where the act to be performed is illegal.\\\"\\nJones seeks to impose liability on Ipalco by virtue of these exceptions to the general rule immunizing the employer of an independent contractor from responsibility for death or injury to a servant of an independent contractor. So, we consider the exceptions claimed by Jones one by one.\\nException One. This exception applies if \\\"the contract requires the performance of work intrinsically dangerous.\\\" (Emphasis supplied.) Denneau v. Indiana and Michigan Electric Company, supra; Stewart v. Huff, supra.\\nThe contracts between Combustion and Ipalco provided for the installation of steam generating equipment. They are silent as to the erection of a man and material hoist. So there is no contract provision requiring the performance of intrinsically dangerous work, assuming such a hoist to be intrinsically dangerous.\\nHad the contracts required Combustion to install a man and materials hoist, such a device is not \\\"inherently\\\" or \\\"intrinsically\\\" dangerous within the meaning of that term. Intrinsic or inherent danger possesses a special meaning in the law. It can not be used to describe circumstances and conditions which are not natural, ever-present components of the instrumentality itself, but are merely dangers arising from casual or collateral negligence of others. Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280; Black's Law Dictionary, P. 921 (West 4th Ed. 1951).\\nUndisputed evidence indicated the danger attending Decedent's work was not a natural, ever-present one. It was a danger arising from an ice clogged limit switch which caused the manipulation of override circuitry by Decedent's fellow employees that rendered the hoist car dangerous.\\nException Two. Again Jones fails. There is no evidence, or inference therefrom, demonstrating that Ipalco was obligated to Jones under a specific duty imposed by law or contract, the breach of which would subject Ipalco to liability.\\nContrary to Jones' argument, Ipalco's duty to provide Jones with a safe place to work did not extend or relate to operation of a hoist which was owned, erected and maintained solely by Jones' employer, an independent contractor, for the exclusive use of the contractor's employees.\\nThe law of this state is that a party in the position of Ipalco is obligated to take necessary steps to prevent injury to an independent contractor's employee only when such injury is reasonably foreseeable in light of the hazardous nature of instrumentalities maintained by the party on his premises. Denneau v. Indiana and Michigan Electric Company, supra; Hoosier Cardinal Corporation v. Brizius (1964), 136 Ind. App. 363, 199 N.E.2d 481. No evidence was presented which could give rise to a reasonable inference that Ipalco ever assumed control over the maintenance or operation of the hoist, or had superior knowledge of potential danger involved in its operation by Combustion. Ipalco's sole employee on the premises admittedly had some knowledge that the limit control switch had previously caused the hoist to stick\\u2014knowledge that he shared with Combustion. Ipalco had no duty to Decedent under these circumstances. Hoosier Cardinal Corporation v. Brizius, supra, at 374, 199 N.E.2d 481.\\nThere is no specific duty imposed on Ipalco by the Dangerous Occupation Act or Administrative Regulations (cited above).\\nCases are legion in this state holding that the Dangerous Occupation Act imposes no statutory duty upon a contractee who is not in charge of the work or instrumentality in ques tion. The common law rule exempting the owner from liability for the negligence of an independent contractor is therefore unaffected by this legislation. Leet v. Block (1914), 182 Ind. 271, 106 N.E. 373; Switow v. McDougal (1916), 184 Ind. 259, 111 N.E. 3; Prest-O-Lite Company v. Skeel, supra; Kawneer Manufacturing Company v. Kalter (1918), 187 Ind. 99, 118 N.E. 561; Bedford Stone and Construction Company v. Hennigar (1918), 187 Ind. 716, 121 N.E. 277; Zainey v. Rieman (1924), 81 Ind. App. 74, 142 N.E. 397.\\nThe Administrative Regulations relied on by Jones were adopted by the Indiana Department of Labor and are assembled under the Department's \\\"Construction Industry Safety Code,\\\" Burns Administrative Rules and Regulations, \\u00a7 JO-2139 L 1 ei seq. These regulations do specify certain safety devices and procedures in the operation of material hoists. As Jones admits, in order for a \\\"specific duty\\\" to be imposed on Ipalco by these regulations, Ipalco must be classed as a \\\"prime contractor.\\\" Section L 1 (6) of the Safety Code covers this subject :\\n\\\"The prime contractor of the project shall be deemed as being responsible for compliance with the provisions of this code. In the event there is more than one (1) prime contractor on the project, each shall be responsible for compliance of this code within the area of his jurisdiction.\\\" (Emphasis supplied.)\\nA prime contractor is then defined by Section LI (8) :\\n\\\"The term 'prime contractor' shall be interpreted as being the person, firm or corporation that is responsible to the awarding unit for direct or indirect completion of all or part of the overall project.\\\" (Emphasis supplied.)\\nThis verbiage contemplates the classic arrangement of owner (contractee), a prime or general contractor in overall charge of the project, and subcontractors responsible to the prime contractor. No such arrangement existed in the construction of Ipalco's power plant.\\nThis definition of prime contractor merely recognizes the existence of a legal relationship comprised of two distinct entities: (1) the Contract or, i.e., one who undertakes to perform certain work for another, and (2) the Contractee, i.e., the \\\"awarding unit\\\" or person for whom such work is performed. See, 9 Words and Phrases 576 et seq., and cases thereunder.\\nIpalco's exclusive place in this relationship was that of \\\"Contractee,\\\" not \\\"Contractor.\\\" No duty was placed upon it by operation of a regulation which was addressed to prime \\\"Contractors.\\\"\\nThis distinction is not only a fair interpretation of the words of the prime contractor definition section, but is consistent with the statute which authorizes these regulations. It reads in part as follows:\\n\\\" the commissioner of labor is hereby authorized (a) To adopt rules , applicable to either employers or employees, or both (Emphasis supplied.) IC 1971, \\u00a722-1-1-11, Ind. Ann. Stat. \\u00a740-2140 (Burns 1965 Repl.). (40-2140 herein.)\\nThis statute, 40-2140, limits the application of rules and regulations to \\\"employers\\\" or \\\"employees.\\\" Ipalco was not an employer of Decedent and the prime contractor definition section cannot magically transform Ipalco into an \\\"employer\\\" by an interpretation that would ignore a contractee-owner's status as an awarding unit. Differently stated, a narrow interpretation of the prime contractor definition sections of the regulations is consistent with the limits of the regulations issued under the enabling statute (40-2140).\\nIn reaching this conclusion we have interpreted the words \\\"employer\\\" and \\\"employee\\\" in their ordinary and usual meaning.\\nFurthermore, to reach a different conclusion would permit a major departure from the common law rule insulating a contractee from liability to an employee of an independent contractor. Stewart v. Huff, supra. A statute must, if possible, be strictly construed to prevent such a derogation from that settled doctrine. See, Chicago and Erie Railroad Co. v. Luddington (1910), 175 Ind. 35, 91 N.E. 939.\\nTherefore, as with the Dangerous Occupation Act, the doctrine which protects Ipalco from liability is unaffected by these regulations in the Safety Code.\\nJones also relies on the contract itself to charge Ipalco with a specific duty to see that adequate precautions were taken to operate the hoist. There are no such provisions. There are contractual references to safety requiring Combustion to conduct its operations in a safe manner. Because Ipalco and its engineer, Stone and Webster, had the power to prescribe safety regulations under the contract did not give rise to a specific duty to do so.\\nException Four. Jones cannot impose liability on Ipalco on the basis that the act to be performed would probably cause injury to others unless due precaution was taken to avoid harm.\\nAs Judge Staton observed in Denneau:\\n\\\"Foreseeability is an essential element in exceptions one and four.\\\" (Our emphasis.) Denneau v. Indiana & Michigan Electric Co., supra at 12.\\nAnd further:\\n\\\"The nature of the performance of the work assigned to the servant which has caused the injury must be foreseeable by the contractee at the time of making the contract. (Our emphasis.) Scott Construction Co. v. Cobb (1928), 86 Ind. App. 699, 707, 159 N.E. 763; See also 23 A. L. R. 1016.\\\" Denneau v. Indiana & Michigan Electric Co., supra at 12.\\nThere was no evidence that, at the time Ipalco contracted with Combustion, Ipalco could foresee or should have foreseen that the limit control switch atop a man and materials hoist operated by an independent contractor for exclusive use of its employees would become clogged with ice and snow causing the hoist to stick\\u2014and that employees of such independent contractor would undertake to manipulate the hoist circuitry so as to cause death or injury. Such harm was not foreseeable \\\"at the time of making the contract.\\\"\\nThe policy underlying the foreseeability exception is aptly summarized in 41 Am. Jur. 2d Independent Contractors \\u00a7 35:\\n\\\"It is apparent that virtual abrogation of the general doctrine of an employer's nonliability for acts of an independent contractor or the latter's servants would result if the law were to predicate, under all circumstances, the existence of an absolute duty on the employer's part to guard against all accidents, probable as well as improbable, that might happen, to the damage of third persons, while stipulated work is being performed by an independent contractor. If, therefore, recovery is sought on the ground that an employer should have adopted certain precautionary measures for the purpose of preventing the injury complained of, the action must fail unless the plaintiff can at least show that in view of the nature of the work and the conditions under which it was to be executed, the defendant should have foreseen that the actual catastrophe which occurred was likely to happen if those precautionary measures were omitted.\\\" (Emphasis supplied. )\\nThere is an absence of evidence or legitimate inferences from evidence submitted which could support Jones' claim against Ipalco. Therefore, the judgment on the evidence entered by the trial court must be and is affirmed.\\nSullivan and White, JJ., concur.\\nNote.\\u2014Reported at 304 N.E.2d 337.\\n. Ind. Ann. Stat. \\u00a7 20-304 (repealed) (Burns 1964 Repl.) ; for present law, see IC 1971, \\u00a7 22-8-1.1-1 et seg., Ind. Ann. Stat. \\u00a7 40-1020 to 40-1068 (Burns 1968 Repl.).\\n. Burns Administrative Rules and Regulations, \\u00a7 40-2139, L 262 L 269, L 1.\\nJones makes no attempt to come within exceptions 8 and 5.\\nJones makes no attempt to come within exceptions 3 and 5.\"}"
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+"{\"id\": \"12327432\", \"name\": \"Gransbury v. State\", \"name_abbreviation\": \"Gransbury v. State\", \"decision_date\": \"2017-05-26\", \"docket_number\": \"41A05-1606-CR-1422\", \"first_page\": \"238\", \"last_page\": \"238\", \"citations\": \"86 N.E.3d 238\", \"volume\": \"86\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:41:35.676082+00:00\", \"provenance\": \"CAP\", \"judges\": \"MAY, J.\", \"parties\": \"Gransbury v. State\", \"head_matter\": \"Gransbury v. State\\n41A05-1606-CR-1422\\n05/26/2017\\nMAY, J.\\nBROWN, J.\\nPYLE, J.\", \"word_count\": \"14\", \"char_count\": \"101\", \"text\": \"Affirmed\\nConcurs\\nConcurs\"}"
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+"{\"id\": \"12362388\", \"name\": \"Carla S. ARTHUR, as Special Representative of the Estate of Mitch Arthur, deceased, Appellant-Plaintiff, v. MACALLISTER MACHINERY CO., INC., and MacAllister Rental, LLC, Appellees-Defendants\", \"name_abbreviation\": \"Arthur v. MacAllister Machinery Co.\", \"decision_date\": \"2017-09-18\", \"docket_number\": \"Court of Appeals Case No. 42A01-1610-CT-2307\", \"first_page\": \"783\", \"last_page\": \"789\", \"citations\": \"83 N.E.3d 783\", \"volume\": \"83\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:36:36.402312+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kirsch, J. and Mathias, J., concur.\", \"parties\": \"Carla S. ARTHUR, as Special Representative of the Estate of Mitch Arthur, deceased, Appellant-Plaintiff, v. MACALLISTER MACHINERY CO., INC., and MacAllister Rental, LLC, Appellees-Defendants\", \"head_matter\": \"Carla S. ARTHUR, as Special Representative of the Estate of Mitch Arthur, deceased, Appellant-Plaintiff, v. MACALLISTER MACHINERY CO., INC., and MacAllister Rental, LLC, Appellees-Defendants\\nCourt of Appeals Case No. 42A01-1610-CT-2307\\nCourt of Appeals of Indiana.\\nSeptember 18, 2017\\nAttorney for Appellant: Joseph E. All-man, Indianapolis, Indiana\\nAttorneys for Appellees: Kevin C. Schi-ferl, Darren A. Craig, Indianapolis, Indiana\", \"word_count\": \"2745\", \"char_count\": \"17359\", \"text\": \"Altice, Judge.\\nCase Summary\\nCarla S. Arthur, as Special Representative of the Estate of Mitch Arthur, (the Estate) appeals from the trial court's order granting summary judgment in favor of MacAllister Machinery Co., Inc., and MacAllister Rental, LLC (collectively, MacAllister). On appeal, the Estate argues that the trial court improperly granted summary judgment on its negligence claim against MacAllister.\\nWe affirm.\\nFacts & Procedural History\\nMacAllister operates approximately twelve equipment rental facilities from which its customers, primarily industrial concerns, rent or lease heavy equipment. In 2008, MacAllister began leasing heavy equipment to Scepter Inc., which operated a secondary aluminum recycling facility in Bicknell, Indiana. Over the years, MacAl-lister had leased over twenty different aerial boom lifts to Scepter for use in various applications. On January 23, 2012, MacAl-lister delivered yet another boom lift leased by Scepter to the Bicknell facility.\\nWith every rental, MaeAllister performed an inspection of the equipment and completed an Equipment Condition Report (ECR). Those ECRs were presented to, reviewed by, and signed by receiving personnel upon delivery of the equipment. The ECR for the boom lift at issue reflected that an inspection of the boom lift, including checking its'fluid levels, tire condition, safety features, decals, manuals, and fuel level, had been performed. It is further indicated on the ECR that the operating controls and safety devices were working properly at the time of delivery. In this same portion of the ECR is a place to acknowledge that \\\"Only properly trained personnel (see back of form) shall operate this equipment.\\\" Appellant's Appendix Vol. 2 at 176 (underlining in original). Next to this statement, the box indicating \\\"yes\\\" is marked. Id. On the reverse side of the ECR, the responsibilities of the boom lift's user/operator are set out, including that:\\n\\u2022 the user shall ensure only properly trained individuals will operate the aerial platform\\n\\u2022 the operator be trained on the equipment\\n\\u2022 the user and their operators shall perform work place inspections prior to use of the aerial platform, and\\n\\u2022 the user shall direct his operating personnel and supervise their work to ensure operation of the aerial platform.in compliance with the provisions as outlined in the manual.\\nSee id. at 28,177.\\nMitch Arthur (Arthur) had been a maintenance worker at Scepter's Bicknell facility for over thirty years. During the afternoon of February 3, 2012, Arthur and Dave Overton, a maintenance crew coworker, were tasked with replacing part of a smelting furnace. The furnace was surrounded by a shrouding/hood and Arthur was using the boom lift to move up inside the hood. Overton was on the ground, operating a telehandler to hold the piece that Arthur was removing. Arthur and Overton had engaged in this process of using a boom lift to access the inside of a furnace hood on numerous occasions prior to February 3. After Arthur completed his final cuts, he began to move the boom lift out from under the hood using the lift's basket controls. Overton reported that. Arthur, suddenly became trapped between the lift's basket controls and the furnace hood. As a result, Arthur suffered fatal injuries.\\nIn the days after Arthur's death, a representative from JLG and an investigator with the Indiana Occupational Safety and Health Administration (IOSHA) inspected the. boom lift. The JLG representative determined that. the lift was functioning properly at the time of the accident. The IOSHA investigator initially determined that MaeAllister had violated industry standards when the driver who delivered the boom lift to Scepter \\\"did not offer training to the receiving company employee(s).\\\" Appellant's Appendix Vol. 5 at 43. MaeAllister petitioned for review of this determination, informing IOSHA that MacAIIister's employee responsible for the Scepter account had \\\"offered both individualized and group training to the Scepter management\\\" \\\"at the inception of MacAIIister's relationship with Scepter.\\\" Id. at 46, 47. MacAllister asserted that it \\\"stands ready to offer any and all training its customers request,\\\" but that Scepter had not requested any such training. Id. at 47. Based on this information, IOSHA cleared MacAl-lister of any violation of industry standard.\\nOn January 25, 2013, the Estate filed its complaint against JLG and MacAllister, asserting claims for products, liability and negligence, MacAllister filed a motion for summary judgment on March 23, 2016. The trial court held a summary judgment hearing on July 8, 2016. On September 30, 2016, the trial court issued its order granting summary judgment in favor of MacAl-lister. The Estate now appeals. Additional facts will be provided as necessary.\\nDiscussion & Decision\\nThe Estate argues that the trial court improperly granted summary judgment in favor of MacAllister. We review summary judgment de novo, applying the same standard as the trial court: \\\"Drawing all reasonable inferences in favor of . the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' \\\" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). \\\"A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.\\\" Id. (internal citations omitted).\\nThe initial burden is on the summary-judgment movant to \\\"demonstrate . the absence of any genuine issue of fact as to a determinative issue,\\\" at which point the burden shifts to the non-movant to \\\"come forward with .contrary evidence\\\" showing an issue for the trier of fact. Id. at 761-62 (internal quotation. marks and substitution omitted). Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court. Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied,. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.\\nThe Estate claims that MacAllister was negligent in providing rental services to Scepter, and as a direct result of that negligence, Arthur suffered fatal injuries while operating the boom lift. Citing industry standards, the Estate alleges that Ma-cAllister had an affirmative duty to inquire as to the application in which the boom lift was going to be used and to train, or offer to train, Scepter employees on how to properly operate the boom lift. In response, MacAllister argues that it was not obligated, by industry standards or general negligence principles, to make such' inquiry or-to train Scepter's employees as to the proper operation of the lift.\\n\\\"[T]o prevail on a claim of negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant's breach of duty.\\\" Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)). Here, the issue before us'is one of duty. Whether a duty exists is a question of law for the court to decide. Id. at 386-87 (citing Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004)). Absent a duty there can be no negligence or liability based upon the breach. Id. at 386. Thus, when it is determined that no duty exists, summary judgment is appropriate. See Reed v. Beachy Const. Corp., 781 N.E.2d 1145, 1148-49 (Ind. Ct. App. 2002) (noting that a defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one element of plaintiffs negligence claim).\\nThe Estate directs us to the American National Standard for Boom-Supported Elevating Work Platforms, ANSI/SIA A92.5-2006 (ANSI A92.5) as the source of MacAllister's duty as an owner/dealerAessor of aerial lifts such as the lift at issue. Pursuant to Section 5.7 of ANSI A92.5, dealers \\\"shall offer appropriate training to facilitate owners, users, and operators to comply with requirements\\\" set forth in ANSI A92.5. Appellant's Appendix Vol. Ill at 99 (emphasis supplied). The Estate maintains that this provision creates an affirmative duty on MacAllister to train Scepter's employees, including Arthur, on the safe operation of the boom lift. We disagree. Section 5.7 does not establish a duty on MacAllister to actually provide training, but only that MacAllister offer to provide training. Further, this provision does not affirmatively obligate MacAllister to offer training directly to Scepter's employees who might operate the lift. This provision does not create a duty owed by MacAllister to Arthur. We further note that as an owner, MacAllister had a duty to offer training only \\\"[u]pon request of the user.\\\" Id. at 100. There is no indication in the designated evidence that Scepter requested any training so as to trigger MacAllister's duty to offer training.\\nThe Estate also cites Section 5.8 of ANSI A92.5, which obligated MacAllister to familiarize \\\"the person designated by the receiving entity\\\" to accept the aerial platform with certain features, including identification 'of the weather resistant compartment where the manual is stored and the manual itself,' and to review control functions and safety devices specific to the equipment being delivered. Id. It is not alleged that Arthur-was the person designated to accept delivery of the boom lift at issue. Further, this section does not extend MacAllister's duty in this regard to all employees of Scepter who might operate the boom lift. Thus, contrary to the Estate's claim, MacAllister did not owe' a duty to familiarize Arthur with the boom lift:\\nThe Estate also cites Section 5.1 of ANSI A92.5 as support for its allegation that MacAllister owed a duty to determine whether the boom lift was proper for the intended use/environment. Section 5.1 provides:\\nSound principles of safety, training, inspection, maintenance, application, and operation consistent with all data available regarding the parameters of intended use and expected environment shall be applied in the training of operators, in maintenance, application, safety provisions and operation of the aerial platform with due consideration of the knowledge that the unit will be carrying personnel.\\nId. at 98. The Estate misreads this section as creating an affirmative duty on behalf of MacAllister to train Arthur. Section 5.1 does not require\\u2014explicitly or implicitly\\u2014 that MacAllister inquire into the intended use/environment for the boom lift. Rather, MacAllister only had to use the information available regarding the intended use/expected environment when training employees. And, even though such \\\"[sjound principles\\\" should be applied in training, such does create a duty on behalf of MacAllister to provide training to Scepter's employees, including Arthur. Id.\\nSupporting our interpretation that Sections 5.1, 5.7, and 5.8 do not impose a duty upon MacAllister as the dealer/owner/lessor to provide training to Scepter employees or to inquire into the application for the boom lift are those sections defining the responsibilities and obligations of users. A \\\"User\\\" is defined as \\\"[p]erson(s) or entity(ies) that has care, control, and custody of the aerial platform,\\\" which may also be \\\"the employer of the operator, a dealer, employer, owner, lessor, lessee, or operator.\\\" Id. at 97. Here, Scepter is the only entity that falls within the definition of user as Scepter had care, control, and custody of the boom lift and served as Arthur's employer. Section 7.6 of ANSI A92.5 provides that Scepter, as the user, \\\"shall ensure\\\" that the person directed to operate the aerial platform has been trained and familiarized with the equipment. Id. at 101. Section 7.7 provides that the user \\\"shall permit only properly trained personnel to operate an aerial platform\\\" and \\\"shah ensure\\\" that the operator is familiar with the boom lift being used. Id. at 102. A dealer \\\"shall assume the responsibilities of users\\\" only when the dealer \\\"directs personnel to operate an aerial platform.\\\" Id. at 99.\\nThe distinction between the responsibilities owed by Scepter as the \\\"user\\\" and MacAllister as the \\\"dealer\\\" makes practical sense. Scepter was in the best position to know which of its employees might be operating the aerial lifts and in what applications/environments the equipment would be used. MacAllister's obligations were to offer training and familiarize a \\\"designated person\\\" with the safety features of the boom lift it was renting to Scepter. Only if MacAllister had directed Arthur in the use of the boom lift would MacAllister have assumed the greater duties imposed on users. In short, the provisions that apply to MacAllister as a dealer do not create a duty owed by Ma-cAllister to Arthur in terms of training and knowledge of the application in which the boom lift was to be operated.\\nWe also find unpersuasive the Estate's argument that ANSI A10.42, which applies to rigging applications, places a duty on MacAllister to train Scepter's employees on the operation of aerial lifts. ANSI A10.42 requires training of personnel designated to operate rigging tools, but provides that the \\\"employer or other entity responsible for supervising the lifting, hoisting, or movement of a load shall assess the knowledge, skills, and abilities of individuals designated as qualified riggers.\\\" Id. at 108. MacAllister is not Arthur's employer and had no responsibility for supervising the operation.\\nIn addition to citing ANSI standards, the Estate also argues that Ma-cAllister was negligent in rendering its rental services to Scepter as a matter of common law. Even under a theory of common law negligence, the Estate must establish that MacAllister owed a duty to Arthur. The cases cited by the Estate do not support a finding of duty on the part of MacAllister. Here, MacAllister did not undertake the rendering of services and did not by its actions or inactions increase the risk of harm. The Estate has cited no authority that imposes a duty on MacAllis-ter to inquire into the intended use of the boom lift or to train Scepter's employees. Indeed, no Indiana court has determined that a lessor of equipment has a duty to ensure that employees of the lessee are trained in its use.\\nThe accident in question had a very tragic ending. We, however, agree with the trial court that as applied to the undisputed facts, the law does not place the responsibility for the loss on MacAllister. Because MacAllister owed no duty to Arthur to inquire as to the application for the boom lift or to train or offer to train him regarding operation of the lift, MacAllister is entitled to summary judgment.\\nJudgment affirmed.\\nKirsch, J. and Mathias, J., concur.\\n. The boom lift was manufactured by JLG Industries, Inc. and JLG-MHD Indiana, Inc. (collectively JLG).\\n. The copy included in the appendix of that part of the ECR setting forth these responsibilities is Of poor quality and only partly legible. We can, however, decipher enough to be confident with the trial court's findings. We further note that the Estate does not dispute the trial court's findings in this regard.\\n. On July 12, 2013, the product liability claim against JLG was dismissed with prejudice upon the Estate's motion after it was revealed during discovery that JLG manufactured the boom lift more than ten years prior to the accident. The , claim against JLG was thus precluded by the products liability statute of repose, In response to MacAllister's summary judgment motion, the Estate conceded that any product liability claim against MacAllister was likewise barred by the statute of repose and explained that its only claim against Ma-cAllister was in negligence,\\n. MacAllister acknowledges that it qualifies as a dealer for purposes of ANSI A92.5. Per the definitions contained within ANSI A92.5, Ma-cAllister also seemingly qualifies as an owner and lessor and would thus be subject to the obligations associated therewith. For our purposes, the obligations of an owner or lessor are essentially the same as those imposed upon a dealer. \\u2022\\n. The Estate asserts that \\\"this duty is doubly applied\\\" to MacAllister because the same provision is also contained in ANSI standards relating to lessors of aerial equipment. Appellant's Brief at 24.\"}"
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+"{\"id\": \"12538145\", \"name\": \"Farrell HAYCRAFT, Appellant v. STATE of Indiana\", \"name_abbreviation\": \"Haycraft v. State\", \"decision_date\": \"2018-10-15\", \"docket_number\": \"\", \"first_page\": \"1016\", \"last_page\": \"1016\", \"citations\": \"111 N.E.3d 1016\", \"volume\": \"111\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-27T21:02:27.904211+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Farrell HAYCRAFT, Appellant\\nv.\\nSTATE of Indiana\", \"head_matter\": \"Farrell HAYCRAFT, Appellant\\nv.\\nSTATE of Indiana\\nSupreme Court of Indiana.\\nOctober 15, 2018\\nTransfer Denied.\", \"word_count\": \"19\", \"char_count\": \"129\", \"text\": \"All Justices concur.\"}"
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+"{\"id\": \"12542166\", \"name\": \"AMERISTAR CASINO EAST CHICAGO, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants, v. Joseph FERRANTELLI, Sr., Appellee-Plaintiff\", \"name_abbreviation\": \"Ameristar Casino E. Chi., LLC v. Ferrantelli\", \"decision_date\": \"2019-03-08\", \"docket_number\": \"Court of Appeals Case No. 18A-CT-1174\", \"first_page\": \"1021\", \"last_page\": \"1029\", \"citations\": \"120 N.E.3d 1021\", \"volume\": \"120\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-27T21:02:32.088564+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"AMERISTAR CASINO EAST CHICAGO, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants,\\nv.\\nJoseph FERRANTELLI, Sr., Appellee-Plaintiff\", \"head_matter\": \"AMERISTAR CASINO EAST CHICAGO, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants,\\nv.\\nJoseph FERRANTELLI, Sr., Appellee-Plaintiff\\nCourt of Appeals Case No. 18A-CT-1174\\nCourt of Appeals of Indiana.\\nFILED March 8, 2019\\nAttorney for Appellants: Edward W. Hearn, Johnson & Bell, P.C., Crown Point, Indiana\\nAttorneys for Appellee: David W. Westland, Carolyn A. Thiess, Westland & Bennett, PC, Hammond, Indiana\", \"word_count\": \"3390\", \"char_count\": \"21286\", \"text\": \"Crone, Judge.\\nStatement of the Case\\n[1] This case illustrates the dangers of noncompliance with our liberal and self-effectuating discovery process. Ameristar Casino East Chicago, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc. (collectively \\\"Ameristar\\\"), bring this interlocutory appeal from the trial court's denial of a motion to set aside a default judgment entered against Ameristar and in favor of Joseph Ferrantelli, Sr., on Ferrantelli's negligence claim against Ameristar. A default judgment on Ameristar's liability was entered by the trial court as a sanction based on the court's finding that Ameristar engaged in a continuous, ongoing, and purposeful lack of cooperation with the discovery process. On appeal, Ameristar contends that the trial court abused its discretion both in issuing the default judgment and in declining to set it aside. Finding no abuse of discretion, we affirm and remand for further proceedings.\\nFacts and Procedural History\\n[2] On March 8, 2016, eighty-six-year-old Ferrantelli was injured when he fell while getting on an escalator with a wheelchair at the Ameristar Casino in East Chicago. On October 16, 2016, Ferrantelli filed his complaint against Ameristar claiming that Ameristar \\\"failed to properly advise him\\\" and \\\"failed to clearly mark the elevators, among other things.\\\" Appellants' App. Vol. 2 at 22-23. Ameristar filed its answer denying the allegations in the complaint, and asserting affirmative defenses including comparative fault and assumption of risk.\\n[3] In November 2016, Ferrantelli sent written discovery requests to Ameristar requesting, among other things: (1) all statements made by Ferrantelli and obtained by Ameristar; (2) every written statement and document obtained from any person having personal knowledge of the accident; and (3) the identity of each Ameristar employee or agent, or other person with knowledge of the accident. In response, Ameristar produced one incident report and identified only four individuals with knowledge of the accident. Ameristar indicated that it was not in possession of any statement made by Ferrantelli.\\n[4] On May 4, 2017, Ferrantelli sent Ameristar a written request for deposition dates for the four identified individuals as well as Ameristar's Trial Rule 30(B)(6) representative. Ameristar did not respond. On May 10, counsel for both parties discussed by telephone the request for deposition dates; however, dates were not provided by Ameristar. On May 24, Ferrantelli again sent a written request for deposition dates and received no response from Ameristar. Between July 6 and July 31, 2017, numerous additional oral and email requests were made by Ferrantelli to obtain deposition dates. Ameristar did not respond other than to provide the identity of its 30(B)(6) representative. On August 7, 2017, Ferrantelli sent a third written request for deposition dates. Ferrantelli advised Ameristar that he would be filing a motion to compel if Ameristar failed to set deposition dates within ten days. Ameristar did not respond.\\n[5] Almost one month later, on September 5, 2017, Ferrantelli filed a motion to compel discovery that included a request for attorney's fees. Ameristar did not file a response to the motion. Discovery closed on September 28, 2017. The trial court held a hearing on the motion to compel on December 13, 2017. Ferrantelli's counsel explained and produced documentation to the trial court regarding his countless attempts over a protracted period to get depositions scheduled to no avail. He argued that Ameristar was purposely evading and delaying discovery (specifically the depositions) due to Ferrantelli's advanced age, and that the continued delay could ultimately result in Ferrantelli being unable to see the case go to trial. Ameristar's counsel \\\"[k]ind of apologized\\\" but essentially \\\"gave no reason for [Ameristar's] failure to cooperate.\\\" Tr. Vol. 2. at 37. Following the hearing, the court reopened and \\\"straightened the discovery problems, received promises [from Ameristar] of future compliance with the discovery process, set the matter for a compliance hearing, and held open the attorney fee request pending cooperation moving forward.\\\" Appellants' App. Vol. 2. at 66. The trial court ordered Ameristar to provide deposition dates by January 1, 2018, noting that it appeared that the case \\\"has been sandbagged with an older Plaintiff.\\\" Tr. Vol. 2 at 8. The court warned Ameristar's counsel that the court expected Ameristar to be \\\"extremely cooperative here\\\" and also twice declared, \\\"This Judge hates discovery fights.\\\" Id. at 9, 10.\\n[6] Ameristar did comply, at least in part, with the court's order, and the depositions of four of the five requested witnesses were completed on January 16, 2018. However, during those depositions, Ferrantelli's counsel learned the identities of several witnesses not previously disclosed by Ameristar, and it was further revealed that Ameristar was in possession of multiple documents, as well as recorded statements, that were responsive to Ferrantelli's earlier discovery requests but never produced. As a result of the information obtained during the depositions, on January 26, 2018, Ferrantelli sent correspondence to Ameristar requesting the additional discovery. Ameristar did not respond. Accordingly, Ferrantelli filed a second motion to compel and request for sanctions on February 16, 2018. Ferrantelli argued that Ameristar continued to \\\"purposefully hindering the progression of this case\\\" with its \\\"abuse of the discovery process, and continuous failure to comply with [Ferrantelli's] discovery requests, as well as instructions given by [the trial court.]\\\" Appellants' App. Vol. 2 at 61. Accordingly, Ferrantelli requested, among other things, entry of an order striking Ameristar's answer to the complaint and an order entering a default judgment in favor of Ferrantelli. Ameristar filed no response to the motion to compel.\\n[7] On March 6, 2018, the trial court entered its order on Ferrantelli's second motion to compel and for sanctions. Specifically, the court noted that Ameristar had filed no response to Ferrantelli's allegations of \\\"withholding of discovery, the purposeful creation of the passage of time between reporting and disclosure to again 'slow play' the discovery process, and a refusal to follow-up these late disclosures with reasonable information related to witnesses that have since left [Ameristar's] employment.\\\" Id. at 66. As such, the court found \\\"a continuous, on-going, and purposeful lack of cooperation with the discovery process\\\" by Ameristar, and ordered in relevant part:\\n1. [Ameristar's] answer of November 8, 2016 is hereby STRICKEN .\\n2. DEFAULT JUDGMENT is hereby entered against [Ameristar] in favor of FERRANTELLI.\\n3. The facts of this case are ACCEPTED as alleged in the complaint.\\n4. Attorney for FERRANTELLI shall file an Order within twenty-one days setting a coordinated status conference for the purpose of:\\nA. setting a damages hearing; and\\nB. setting a hearing on contempt/for attorney fees.\\nId. at 67. On March 8, 2018, Ameristar filed a Trial Rule 60(B)(8) motion to set aside default judgment and request for hearing. Additionally, on March 9, 2018, Ameristar filed an amended motion to set aside and request for hearing.\\n[8] The trial court held a hearing on Ameristar's motion to set aside on April 10, 2018. Based upon the argument of counsel, and a review of all prior proceedings and correspondence, the trial court entered its order denying the motion to set aside. Specifically, the trial court concluded that \\\"there was an interference with discovery\\\" by Ameristar that the court \\\"just can't tolerate.\\\" Tr. Vol. 2. at 39. Indeed, the court repeatedly noted that it had \\\"never seen anything even close to this\\\" as far as abuse of the discovery process. Id. The trial court explained that usually warnings, as were made by the court in granting the first motion to compel, cause the noncompliant party to \\\"snap right to\\\" without further issue, but unfortunately that \\\"didn't happen\\\" with Ameristar. Id. at 40. Accordingly, the trial court declined to set aside the default judgment and set the matter for a damages hearing. The trial court certified its order for interlocutory appeal, and this Court accepted jurisdiction and stayed the trial court proceedings pending resolution of this appeal.\\nDiscussion and Decision\\n[9] We begin by emphasizing that the decision whether to set aside a default judgment is given substantial deference on appeal. Huntington Nat'l Bank v. Car-X Assoc. Corp. , 39 N.E.3d 652, 655 (Ind. 2015). Our appellate review is limited to determining whether the trial court abused its discretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. Upon review, we will not reweigh the evidence or substitute our judgment for that of the trial court. Id. In order to be granted relief pursuant to Indiana Trial Rule 60(B)(8) as Ameristar seeks here, the moving party must demonstrate some extraordinary or exceptional circumstances justifying equitable relief. State v. Collier , 61 N.E.3d 265, 268 (Ind. 2016).\\n[10] It is well settled that the purpose of the discovery rules is to allow for minimal trial court involvement and to promote liberal discovery. Whitaker v. Becker , 960 N.E.2d 111, 115 (Ind. 2012). \\\"Although concealment and gamesmanship were [once] accepted as part and parcel of the adversarial process, we have unanimously declared that such tactics no longer have any place in our system of justice.\\\" Id. (citations and quotation marks omitted). \\\"Today, the purpose of pretrial discovery is to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.\\\" Id. (citations and quotation marks omitted). When discovery breaks down or the trial court determines that the discovery process has been abused, the court may, in its discretion, impose various sanctions including, but not limited to, an award of costs and attorney fees, exclusion of evidence obtained through misuse of the discovery process, or entry of dismissal or judgment by default. Ross v. Bachkurinskiy , 770 N.E.2d 389, 392 (Ind. Ct. App. 2002). The purpose of allowing a trial court to impose sanctions is \\\"not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.\\\" Whitaker , 960 N.E.2d at 115 (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc. , 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) ). Therefore, we vest trial courts with wide discretion in dealing with discovery matters and will reverse a trial court's decision regarding discovery only for an abuse of discretion. Prime Mortg. USA, Inc. v. Nichols , 885 N.E.2d 628, 648-49 (Ind. Ct. App. 2008).\\n[11] The sole limitation on the trial court in determining an appropriate discovery sanction is that the sanction must be just. Id. (citing Bankmark of Fl., Inc. v. Star Fin. Card Servs., Inc. , 679 N.E.2d 973, 978 (Ind. Ct. App. 1997) ). In determining whether a sanction is just, we have recognized that,\\n[a]lthough a default judgment plays an important role in the maintenance of an orderly, efficient judicial system as a weapon for enforcing compliance with the rules of procedure and for facilitating the speedy determination of litigation, in Indiana there is a marked judicial deference for deciding disputes on their merits and for giving parties their day in court, especially in cases involving material issues of fact, substantial amounts of money, or weighty policy determinations.\\nCharnas v. Estate of Loizos , 822 N.E.2d 181, 185 (Ind. Ct. App. 2005). While an order granting a default judgment is the ultimate sanction a trial court may use, the court is not necessarily required to first issue a lesser sanction. Prime Mortg. , 885 N.E.2d at 649. Indeed, imposing intermediate sanctions is not obligatory when a party's behavior is particularly egregious. Id.\\n[12] Before arguing the merits of the default sanction imposed by the trial court, Ameristar points to several claimed procedural deficiencies regarding the trial court's consideration of Ferrantelli's second motion to compel. Namely, Ameristar contends that neither the motion to compel nor the trial court's grant thereof complied with certain applicable local court rules. Our supreme court has noted that \\\"Indiana trial courts may establish local rules for their own governance so long as the local rules do not conflict with the rules established by this Court or by statute.\\\" Gill v. Evansville Sheet Metal Works, Inc. , 970 N.E.2d 633, 646 (Ind. 2012) (citations omitted). \\\"As a general matter, local rules are procedural and 'are intended to standardize the practice within that court, to facilitate the effective flow of information, and to enable the court to rule on the merits of the case.' \\\" Id. (quoting Meredith v. State , 679 N.E.2d 1309, 1310 (Ind. 1997). \\\"Once made, the court and all litigants subject to the local rules are bound by them.\\\" Id. However, a trial court should not blindly adhere to all of its rules because in \\\"rare cases, such blind adherence to rigid procedural requirements may defeat justice instead of serving the rules' intended function as a means of obtaining the end of orderly and speedy justice.\\\" Id. That said, a trial court should not set aside its own rules lightly and, \\\"before doing so, 'the court must assure itself that it is in the interests of justice to do so, that the substantive rights of the parties are not prejudiced, and that the rule is not a mandatory rule.' \\\" Id. (quoting Meredith , 679 N.E.2d at 1311 ).\\n[13] We chose not to belabor the specifics of the procedural deficiencies alleged by Ameristar, as we are confident upon review that, even assuming any technical noncompliance with certain procedural rules, Ameristar's substantive rights have ultimately not been prejudiced. The crux of Ameristar's claims of procedural noncompliance is that it was denied the opportunity to present to the trial court its arguments in opposition to Ferrantelli's second motion to compel. However, Ameristar was afforded a full opportunity to present those arguments to the trial court, and in fact did so, during the hearing on its motion to set aside. Accordingly, we conclude that any technical noncompliance with certain procedural rules was harmless in the instant case.\\n[14] Turning to the merits of the default judgment entered here, Ameristar asserts that the entry of a default was an unwarranted sanction, and therefore the trial court abused its discretion both in issuing that sanction and in declining to set it aside upon Ameristar's motion. The record indicates that Ameristar failed to respond and/or was entirely uncooperative with regard to numerous discovery requests, over a protracted period of time, which caused the trial court to intervene and issue its first order to compel discovery. In entering that order, the trial court held the issue of monetary sanctions under advisement and warned Ameristar that it expected full compliance and cooperation moving forward. Although Ameristar complied, for the most part, with that order, it was later revealed that Ameristar had withheld certain witness information, and further that many of Ameristar's prior discovery responses had been, in the trial court's opinion, intentionally incomplete and misleading. Our supreme court has specifically acknowledged that, under appropriate facts, a trial court may enter dismissal or default judgment if it determines that a party has responded to discovery but has done so in an incomplete or misleading way. Whitaker , 960 N.E.2d at 116. To make matters worse, when Ferrantelli again tried to obtain complete discovery, Ameristar continued to be noncooperative and unresponsive. Even a second motion to compel filed by Ferrantelli, which included a request for more severe sanctions, failed to get Ameristar's attention, in that it did not even garner a response. Under the circumstances presented, the trial court determined that a default judgment was warranted based upon the \\\"continuous, on-going, and purposeful lack of cooperation with the discovery process\\\" by Ameristar. Appellants' App. at 67. Indeed, the court found Ameristar's behavior particularly egregious, repeatedly noting that it had \\\"never seen anything even close to this.\\\" Tr. Vol. 2. at 39.\\n[15] To be clear, the entry of a default judgment is the ultimate sanction. Still, we must be mindful that \\\"[t]rial judges stand much closer than an appellate court to the currents of litigation pending before them, and they have a correspondingly better sense of which sanctions will adequately protect the litigants in any given case[.]\\\" Wright v. Miller , 989 N.E.2d 324, 327 (Ind. 2013). It is not the place of this Court to substitute our judgment for that of the trial court, as we must presume the trial court acted in accord with what was fair and equitable in the specific case. Id. at 330. The trial court here made a detailed oral record explaining its frustration with Ameristar's behavior, as well as its prior warnings to counsel to stop what the court viewed as the intentional sandbagging of the case considering the plaintiff's advanced age. We conclude that the trial court did not abuse its discretion in determining that the sanction of default judgment was warranted. Moreover, the trial court was well within its discretion to reject Ameristar's equitable demands for the court to set aside the default judgment pursuant to Trial Rule 60(B)(8). Therefore, we affirm the trial court's orders and remand for further proceedings on the issue of damages.\\n[16] Affirmed and remanded.\\nVaidik, C.J., and Mathias, J., concur.\\nIn his deposition, Ferrantelli explained that he and a \\\"lady friend\\\" of his went to the casino because they had heard about a \\\"crab leg deal\\\" and they wanted \\\"to gamble a little bit.\\\" Appellants' App. Vol. 2 at 100. When they arrived, Ferrantelli's friend requested a wheelchair, and Ferrantelli was instructed by \\\"one of the attendants at a booth\\\" to take the escalator down to the first level to retrieve the wheelchair. Id. at 103. Ferrantelli took the escalator down, and a casino employee gave him the wheelchair. That employee then \\\"pointed toward the escalator\\\" and said, \\\"Take the escalator.\\\" Id. at 104. As Ferrantelli was putting the wheelchair on the escalator to go back up, \\\"it caught the front wheels and flipped [him] backwards, and [he] landed flat on [his] back.\\\" Id. at 105.\\nIndiana Trial Rule 30(B)(6) provides in relevant part that a party may \\\"name as the deponent an organization,\\\" and \\\"[t]he organization so named shall designate one or more officers, directors, or managing agents, executive officers, or other persons duly authorized and consenting to testify on its behalf.\\\"\\nCounsel for Ameristar originally designated Edward Spearman as the 30(B)(6) representative. However, rather than getting a deposition date scheduled for Spearman, counsel later claimed to still be in the process of deciding who would best serve as the 30(B)(6) representative.\\nAmeristar made numerous arguments and excuses for its dilatory behavior that the trial court did not find credible. Specifically, regarding its failure to respond to the second motion to compel, counsel for Ameristar implied that it had its response ready to file, but that its response was due the same day the trial court issued its order entering a default judgment. Counsel argued, \\\"It would make no sense for us to file a response once you entered the order.\\\" Tr. Vol. 2 at 19. The trial court did not believe that a response was planned or would have been forthcoming. The court stated, \\\"I gotta be honest, but for my Order, I wouldn't have received anything. I truly believe that . I entered that order in the morning . [i]f [you] had a response sitting there ready, I would have got it that afternoon and I didn't. I don't think a response was ever going to be filed.\\\" Id. at 38-39.\\nSpecifically, Ameristar asserts noncompliance with Lake County Local Rule 45-TR26-8(C) regarding attorney conferences to resolve discovery disputes and Rule 45-TR7-4 addressing motions practice.\\nAs noted earlier, the trial court did not find credible Ameristar's assertion that it would have filed a response but for the trial court's \\\"premature\\\" ruling on the motion to compel. Appellant's Br. at 23. We will not reassess credibility on appeal.\\nWe note that Ameristar's continued denial of and lack of contrition for its discovery abuses was not well taken by the trial court.\"}"
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+"{\"id\": \"12544195\", \"name\": \"Hane C. HARRIS, Appellant v. STATE of Indiana\", \"name_abbreviation\": \"Harris v. State\", \"decision_date\": \"2019-03-14\", \"docket_number\": \"\", \"first_page\": \"44\", \"last_page\": \"44\", \"citations\": \"124 N.E.3d 44\", \"volume\": \"124\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-27T21:02:36.877396+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Hane C. HARRIS, Appellant\\nv.\\nSTATE of Indiana\", \"head_matter\": \"Hane C. HARRIS, Appellant\\nv.\\nSTATE of Indiana\\nSupreme Court of Indiana.\\nMarch 14, 2019\\nDenied.\", \"word_count\": \"25\", \"char_count\": \"153\", \"text\": \"All Justices concur.\\nVaidik, C.J., Mathias, J., Crone, J.\"}"
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+"{\"id\": \"1319032\", \"name\": \"Fleece v. O'Rear et al.\", \"name_abbreviation\": \"Fleece v. O'Rear\", \"decision_date\": \"1882-05\", \"docket_number\": \"No. 9806\", \"first_page\": \"200\", \"last_page\": \"204\", \"citations\": \"83 Ind. 200\", \"volume\": \"83\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:46:31.745949+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fleece v. O\\u2019Rear et al.\", \"head_matter\": \"No. 9806.\\nFleece v. O\\u2019Rear et al.\\nPromissory Note.\\u2014 Payment.\\u2014 Decedents\\u2019 Estates.\\u2014 The application of money belonging to an estate by an administrator upon Ms individual note, which money is afterwards recovered from the payee, does not operate as a payment of the note.\\nSame.\\u2014 Vendor\\u2019s Lien. \\u2014 Husband and Wife. \\u2014 Where land for which such note is given is conveyed by the payee to the wife of the maker at the time of such application, and such wife pays no other consideration for the land, and has notice of all the facts, the payee of such note, notwithstanding such attempted payment, retains a vendor\\u2019s lien upon the land against such wife for the amount due upon such note, and this lien may be enforced against the land, notwithstanding the fact that the payee may also have the right to recover from the administrator the amount of money recovered from the payee.\\nFrom the Hendricks Circuit Court.\\nJ. V. Hadley, E. G. Hogate and R. B. Blake, for appellant..\\nL. M. Campbell, for appellees.\", \"word_count\": \"1472\", \"char_count\": \"8305\", \"text\": \"Best, C.\\nThis action was brought by the appellant against the appellees, to recover the balance due upon a note made by Robert F. O'Rear, and to enforce a vendor's lien upon certain real estate for which the note was given, against both of theappellees.\\nIssues were formed, a trial had, and a finding made against Robert F. O'Rear upon the note, and in favor of the appellee\\u00bb upon the lien.\\nAt the request of the appellant, the court found the facts, specifically, and stated its conclusions of law thereon. The facts found are in substance these: That Clinton B. Fleece-owned the lots in the complaint described, and that he sold them to the appellant in May, 1875, but did not convey them, to him; that on the 26th day of August, 1875, the appellant sold said lots to Robert F. O'Rear for $450, and said O'Rear ou that day made him the note in suit, for said sum, payable-on the 25th day of December, 1875, with interest at ten per cent., without relief, and with attorney fees, which note was given for the purchase-money of said real estate; that prior to this time said Robert F. O'Rear had been appointed administrator of the estate of William Bamish, deceased, who-left as his only heirs John Bamish, his son, and Mary O'Rear,, his daughter; that certain real estate owned by said decedent, had been sold for $3,500, and the residue divided between said John and said Mary, with an agreement that all of such money, not necessary to pay the decedent's debts, should belong to Mary O'Rear; that afterwards all the debts of said decedent were paid so far as known, and after their payment,, more than enough of money remained in the hands of the administrator, arising from such fund, to pay the note made by Robert F. O'Rear to the appellant; that thereupon it was agreed between the appellant Robert F. O'Rear and Mary O'Rear, that the appellant should cause said lots to be con veyed to Mary O'Rear, and that the note should be paid with the money in the hands of Robert F. O'Rear, supposed to belong to Mary O'Rear; that, in pursuance of such agreement, Clinton Fleece conveyed the lots to Mary O'Rear, and Robert F. O'Rear paid with said money the note to appellant, who surrendered the same; that afterwards other creditors of said decedent compelled the sureties of said administrator, of which the appellant was one, to pay a claim of $256.60, and the other sureties afterward, to wit, on the 27th day of June, 1878, recovered a judgment against the appellant for $192.45, a part of the $450 so paid by Robert F. O'Rear, upon the note of appellant as aforesaid, to reimburse them for the amount so paid by them upon said claim; that afterwards the appellant fully paid said j udgment, principal, $192.45, interest, $31.30, and costs, $22.35, in all, $246.10; that the purchase-money of said realty has not been paid otherwise than as above stated; that sufficient assets of said decedent had come into the administrator's hands with which to pay all of the decedent's debts, and leave a surplus of more than $450, which the administrator had converted to his own use, but of which the appellant and Mary O'Rear were ignorant when said arrangement was made; and that said Mary O'Rear agreed to the application of said sum to the payment of said realty, upon the condition that it should be conveyed to her.\\nUpon the foregoing facts, the court concluded, first, that .there was due and unpaid upon said note the sum of $246.10, for which the appellant was entitled to judgment against Robert F. O'Rear; and, second, that the appellant was not \\u2022entitled to a lien upon said real estate.\\nThe appellant excepted to these conclusions of law, and Robert F. O'Rear excepted to the first conclusion of law.\\nThe questions raised by these exceptions are of easy solu-tion. The application of money, which did not belong to \\u2022either Robert F. O'Rear or Mary O'Rear, in payment of appellant's note, did not operate as a payment. When the appellant was compelled to pay the money to the persons to whom it belonged, the note, though surrendered, remained in force precisely as though the application had never been made. The application of money upon the note, that did not belong to the payor, neither transferred the title to the money, nor did it extinguish the note. This conclusion was reached by the court, and hence Robert F. O'Rear was liable, for the balance due upon the note.\\nAs the note, was given for the purchase-money of the lots, and as it remains unpaid, of which Mary O'Rear had notice when she accepted the conveyance, we know of no reason why the appellant can not enforce his lien upon the land against her. Where a husband purchases real estate, executes his note for the purchase-money, and causes the real estate to be \\u2022conveyed to his wife, the vendor has a lien upon the land for the purchase-money. Martin v. Cauble, 72 Ind. 67; Humphrey v. Thorn, 63 Ind. 296.\\nThe fact that the appellant was only the equitable owner of the land, did not deprive him of the right, to enforce a vendor's lien for the purchase-money. Johns v. Sewell, 33 Ind. 1.\\nThe money applied upon the note, and subsequently recovered from the appellant, did not belong to Mary O'Rear, nor had the husband any authority to apply it upon the note in suit, and, therefore, the note was unpaid at the time the conveyance was made to Mary O'Rear, of which she had notice. Under these circumstances, 'she took the land burdened with the lien, precisely as though no payment had been attempted to be made.\\nThe fact that the husband may have been liable to the appellant for such portion of the $256.60, which he was compelled to pay to the creditors of the decedent, does not preclude him from recovering such portion of the $450 received upon his note, which he was compelled to refund to his co-sureties, to reimburse them for such portion of the $250.60 they were compelled to pay. The husband was liable to all the sureties, but this was not their only remedy. They could subject the assets of the estate, in the hands of any person with notice, to the payment of their claim. Fleece v. Jones, 71 Ind. 340. This the other sureties did, and when they compelled the appellant to refund a portion of the money paid him, he had the undoubted right to treat his note as unpaid, and enforce, if necessary, his lien for purchase-money. He may also have had the right to treat the whole sum paid by the sureties as having been paid by him, and to hold the administrator for the amount; but, clearly, he was not compelled to pursue this remedy. Nor does the fact, if such is the fact, that he is liable upon the administrator's bond, preclude him from recovering in this action.\\nUpon the facts found, we think the court erred in its second! conclusion of law, and, for this reason, the judgment should be reversed.\\nPer Curiam. \\u2014 It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things reversed, at the appellees' costs, with instructions to state conclusions of law thereon in favor of appellant, for the sum of $192.45, with interest' thereon from the 27th day of June,, 1878, and that the lots in the complaint described are subject to sale upon execution to satisfy the same, in the event that no property of Robert F. O'Rear can bo found with which to satisfy the same.\"}"
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+"{\"id\": \"1320590\", \"name\": \"Whiteman v. Harriman et al.\", \"name_abbreviation\": \"Whiteman v. Harriman\", \"decision_date\": \"1882-11\", \"docket_number\": \"No. 8944\", \"first_page\": \"49\", \"last_page\": \"55\", \"citations\": \"85 Ind. 49\", \"volume\": \"85\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:38:05.684610+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Whiteman v. Harriman et al.\", \"head_matter\": \"No. 8944.\\nWhiteman v. Harriman et al.\\nPbincipae and Stjbety.- \\u2014 Contribution.\\u2014 Subrogation. \\u2014 Moiigage.\\u2014A. was indebted by promissory notes to a number of persons, on one of which B. and O. were his sureties, on several others B. only was surety, and on others D. only was surety. Afterwards A. made to B. and D. a chattel mortgage, to secure the payment of all his said debts, reserving the right to possess the property and to sell it, applying the proceeds in payment of said debts, which was done in part. C. was compelled to pay the demand on which he and B. were joint sureties. Suit by C. against B. and D. for the amount he had paid.\\nHeld, that the acceptance of the mortgage did not impose upon B. and D\\u201e any joint obligation as sureties upon all the debts mentioned in the-mortgage.\\nHeld, also, that the mortgage was a security for all said debts, pro rota, so-that 0., having paid the debt on which he and B. were co-sureties, became entitled to the share applicable to that demand.\\nHeld, also, that B. was liable to O. for contribution, as a co-surety.\\nHeld, also, that D. was not so liable to C., and, not having received more than his proper share of the mortgaged goods, was not liable at all to him. IIabmless Ebbob,. \\u2014 There can be no available error in sustaining a demurrer to one paragraph of a complaint, where the plaintiff has the full benefit of the facts properly pleaded therein, under an issue formed on another paragraph.\\nProm the Newton Circuit Court.\\nW. H. H. Graham and S. P. Thompson, for appellant.\\nJ. T. Sanderson, for appellees.\", \"word_count\": \"1980\", \"char_count\": \"11513\", \"text\": \"Black, C.\\nOn the 13th of July, 1876, one William H, Harrison, as principal, and George M. Harriman and Amos O. Whiteman as sureties, executed to the First National Bank oPWatseka, Illinois, a promissory note for $309.30, payable three months after date. Said Harriman was surety for said Harrison on a number of other notes, and one Bluford Light was Harrison's surety for certain other debts, but he was not a co-surety with Harriman or Whiteman for any debt. Harrison, Harriman and Light resided in Newton county, Indiana, and Whiteman resided in Illinois.\\nOn the 17th of August, 1876, Harrison executed to Harriman and Light a mortgage upon certain personal property,, being the mortgagor's interest in a paid-up lease of a certain farm for three years from the 1st of March, 1876, the crop on said farm, certain farm products, live-stock, agricultural implements, household furniture and utensils, and one note for ninety dollars; the condition of the mortgage being, \\\" that whereas the said William H. Harrison is justly indebted to said George M. Harriman and Bluford Light, in the sums hereinafter named, as evidenced by certain promissory notes, which the said Harriman and Light have secured the payment of, to wit, one note of $310, of June 13th, 1876,, at the National Bank at Watseka, with interest thereon; one note of $340, of Eebruary 1st, to Joseph Law, and ten per cent, interest; one note of $218, of October 1st, 1875, to George M. Harriman, with ten per cent, interest; one note of $300, date about March 1st, 1874, to Thomas Askew, with seven per cent.; one note of $100, date about July 6th, 1874,, to Aletho Crowl, with ten per cent.; one note of $55, date about November, 1875, to Samuel H. Benjamin; one note of $267.65, at the bank of Ade, McCray & Co., in Kentland, and about $200, a balance due the estate of Benjamin Harrison, deceased; amounting in all, with interest, to about $2,000, all without any relief from valuation or appraisement laws; it is agreed and understood by the parties hereto, that said William H. Harrison shall retain possession of said property hereby sold, until said notes and debts hereby secured become due; the said Harrison shall have the rightto sell and dispose of any part of said property, with the consent of said Harriman and Light, and apply the proceeds of such sale or sales to the payment of said notes; and when said notes and debts have been paid in. full, and said Harriman and Light released from said security, then this obligation to be void, otherwise to remain in full force and virtue, in law; the whole, to be settled within two years from March. 1st, 1877, and if not paid within that time the said Harriman and Light shall then have the right to take and keep possession of said property wherever it may be found, without any process of law, and the same shall become the absolute property of said George M. Harriman and Bluford Light;: and the said William H. Harrison hereby expressly agrees, not to remove the said property from the place where it nor is, without the consent of said Harriman and Light, and' then to sell the same and apply the proceeds towards paying-the debts as hereinbefore stated,\\\" etc.\\nThere were various renewals of the note so made to said Watseka bank, and, a portion of it having been paid by said Harrison and Harriman, a final renewal was made November 6th, 1878, by the execution to said bank of a note for $250, clue ninety days after date, by Harrison as principal and Harriman and Whiteman as sureties. Whiteman paid this note in full soon after its maturity, and it was thereupon surrendered to him by the payee, said bank. On the 4th of March, 1879, this action was brought, by said Whiteman, the appellant, against said Harriman and Light, the appellees.\\nThe complaint was in three paragraphs. The appellees demurred -separately, for want of sufficient facts, to each paragraph of the complaint; and the demurrers were sustained to the first paragraph and overruled as to the other paragraphs. Appellees answered separately, by general denials. The cause was tried by a jury, who found for the appellant in the sum of $128.43, against appellee Harriman, and found in favor of appellee Light. Appellant moved for a new trial; and the court offered to grant him a new trial as against Harriman, but not as against Light. Appellant having declined this offer, the court overruled his motion, and rendered judgment in accordance with the verdict.\\nSustaining th\\u00e9 demurrer to the first paragraph of the complaint, and overruling the motion for a new trial, are assigned as errors.\\nThe first specification of the assignment of errors is not much pressed in argument; but we have examined the first paragraph of the complaint, and we think it showed a right of contribution against appellee Harriman, for it alleged his co-suretyship with appellant, the payment by appellant of the debt for which they were sureties, after its maturity, and the insolvency of Harrison, the principal. The paragraph also counted upon a promise and agreement of Harriman and Light, said to have been contained in a chattel mortgage, but the mortgage was not made part of this paragraph, which was, therefore, insufficient as to Light.\\nBut appellant was not harmed by the ruling on the demurrer, for the same right of contribution against Harriman was shown in the third paragraph of the complaint, and there under appellant had the benefit of his claim for contribution against Harriman as fully as he could have had it under the first paragraph.\\nThe note first mentioned in the mortgage was the note first executed, as aforesaid, to the Watseka bank, on which Harriman and appellant were sureties. Harriman was also surety on all the other items of Harrison's indebtedness mentioned, in the mortgage, except the note to Ade, McCray & Co., and the debt to the Harrison estate; and Light was surety only on said note to Ade, McCray & Co., and said indebtedness to the Harrison estate.\\nThe mortgaged property was left in the possession of Harrison, as stipulated in the mortgage, and some of the debts were paid in full and some in part. About the 1st of February, 1879, Harrison removed from the State, without the knowledge of either of the appellees. -Harriman and Light procured appraisers, who, appellant being present, appraised the mortgaged property left by Harrison upon his removal.\\nThe second paragraph of the complaint was based upon a charge of negligence of the appellees in leaving the pi'operty in the possession of Harrison, and in permitting it to be wasted and destroyed.\\nHarrison had in the mortgage reserved the right to retain possession, and the appellees do not appear, from the evidence, to have been wanting in diligence in causing the application of the property to the payment of the debts secured thereby, as provided in the mortgage, or in preserving what Harrison left behind when he removed.\\nAt the time of Harrison's removal there were unpaid by him debts mentioned in the mortgage, amounting to about \\u00a7963. Of this amount Light had paid on the note to Ade, McCray & Co., \\u00a7243. The indebtedness to the Harrison estate had been paid by Harrison. The property left by Harrison was worth about \\u00a7192. Light received, of the property so left goods worth about \\u00a749, the remainder being taken by Harriman.\\nThe third paragraph of the complaint, besides showing a cause of action against Harriman for contribution, charged Harriman and Light with having taken possession of the mortgaged property, and having appropriated it to their own use, and with failing to apply its value to the payment of the note paid by appellant.\\nCounsel for appellant insist that by the acceptance of said mortgage the appellees were jointly bound foi the application of the mortgaged property to the debts mentioned in the mortgage.\\nWithout determining whether or how far this question was involved in the issues tried, it may be said that, in giving this security to the appellees, Harrison reserved to himself the right of possession and of sale for the payment of the debts, and Light, who was not a surety for the indebtedness to the Watseka bank,- or co-surety with appellant before the execution of the -mortgage, did not become such by its acceptance ; that it was a security to each of the mortgagees for his particular liabilities, and they did not, by acceptance of the mortgage, become jointly bound to all the creditors, whose claims were further secured by the mortgage, or become sureties for each other as to those claims. As to the remnant of the property abandoned to them, each mortgagee was interested in it in proportion to the unpaid portion of the debts on which he was liable as surety; and the unpaid creditors, for whom Harriman and Light respectively were sureties, were interested in such remnant as their respective sureties were interested, and in the proportion of their respective claims, and Whiteman, having paid one of those claims, was subrogated to the right of the creditor whose claim he had paid. See Burnett v. Pratt, 22 Pick. 556; Constant v. Matteson, 22 Ill. 546.\\nLight does not appear to have received more than his reasonable proportion of the goods. Appellant may have been entitled to recover a larger amount from Harriman than was awarded by the jury, and he assigned as one ground for a new trial, that the damages were too small; but he expressly declined a new trial as to Harriman alone.\\nThe alleged grounds for a new trial, as against >Light, and the argument thereon, relate to appellant's theory of the joint liability of the mortgagees above stated, and to the question of the sufficiency of the evidence.\\nIt does not appear that the result reached as to Light was substantially incorrect, and we find no error for which the judgment should be reversed. *\\nPer Ctjriam. \\u2014 It is ordered, upon the foregoing opinion, that the judgment be and it is hereby affirmed, at the costs of the appellant.\"}"
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+"{\"id\": \"1324456\", \"name\": \"Groves v. Cook\", \"name_abbreviation\": \"Groves v. Cook\", \"decision_date\": \"1882-11\", \"docket_number\": \"No. 10,503\", \"first_page\": \"169\", \"last_page\": \"171\", \"citations\": \"88 Ind. 169\", \"volume\": \"88\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:23:52.025947+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Groves v. Cook.\", \"head_matter\": \"No. 10,503.\\nGroves v. Cook.\\nStatute oe Fbauds.\\u2014 Gontract not to be Performed within One Year. \\u2014 Part' Performance. \\u2014 A contract not in writing, whereby the owner of a stallion furnishes the use of the horse to the mare of another and agrees to pay the latter a sum named for the resulting foal when five months old, is; in respect to the sale of the foal, within the statute, and can not be enr forced by reason of the part performance of the contract.\\nFrom the Rush Circuit Court.\\nW. A. Cullen and B. L. Smith, for appellant.\\nJ. Q. Thomas and J. J. Spann, for appellee.\", \"word_count\": \"592\", \"char_count\": \"3171\", \"text\": \"Woods, C. J.\\n\\u2014 The appellant sued the appellee for the price of a colt. The question in the case arises under that clause . of the statute of frauds which requires that contracts not to be performed within one year be put in writing. The facts, as specially found by the court, are, in substance, that the appellant, being the owner of a breeding mare, and the appellee of a stallion, it was agreed that the latter should furnish the use of his horse, and pay to the appellant $50 for the colt upon delivery of the same to him when it should be five months old. The agreement was made and the horse let to the mare on the 10th day of August, 1880; the foal was produced on the 10th day of July, 1881, and on the 12th day of December, 1881, the plaintiff offered to deliver the colt to the defendant, who refused to accept it and to pay the stipulated price. The contract was not in writing, and was plainly within the inhibition of the statute, because, according to its terms, and in the course of nature, it could not be performed within one year from the time it was made. Browne Stat. Frauds (4th ed.), chap. 13; Wilson v. Ray, 13 Ind. 1; Shipley v. Patton's Adm'r, 21 Ind. 169; Goodrich v. Johnson, 66 Ind. 258; Pierce v. Paine's Estate, 28 Vt. 34; Lockwood v. Barnes, 3 Hill (N. Y.) 128. The case last cited is distinctly in point.\\nIt is claimed that there was such a part performance as to take the case out of the statute; but the authorities cited show that this position is not tenable. In section 285 of Browne, supra, it is said: \\\" One thing is well settled and admitted in all 'Cases; that the contract must be capable of entire and complete \\u2022execution within one year. It is not enough that it may be commenced, or ever so nearly completed in that space of time.\\\"\\nIf in this case it may be said that there was a partial performance of the agreement, it was entirely to the advantage of the appellant, in that he had the use of the appellee's horse free ,cf charge, and'without liability therefor so long as he him self was guilty of no breach of the contract, or was willing to \\u2022comply with it. It is not found as a fact, and the court can not judicially say, that he suffered any loss or inconvenience, or parted with any advantage or value in the transaction. There is, therefore, no ground for saying that the refusal of the appellee to comply with the agreement operated as a fraud upon \\u2022the appellant; and without this there is neither reason nor authority for saying that the case does not come within or \\u00a1should be excepted from the operation of the statute.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1324532\", \"name\": \"Pollock v. Hastings\", \"name_abbreviation\": \"Pollock v. Hastings\", \"decision_date\": \"1882-11\", \"docket_number\": \"No. 10,385\", \"first_page\": \"248\", \"last_page\": \"251\", \"citations\": \"88 Ind. 248\", \"volume\": \"88\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:23:52.025947+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pollock v. Hastings.\", \"head_matter\": \"No. 10,385.\\nPollock v. Hastings.\\nSlander. \\u2014 Words which do not impute a crime are not slanderous per ser as \\u201c swindler,\\u201d \\u201c cheat,\\u201d or other words charging fraud.\\nSame. \\u2014 Complaint.\\u2014Words actionable per se, if shown by the complaint to have been spoken and understood of a transaction not criminal, are not actionable, and the complaint is bad on demurrer.\\nSame. \\u2014 Innuendo.\\u2014Where it appears by the complaint that the words were spoken of a transaction not criminal, their meaning can not, by innuendo, be so enlarged as to make the complaint good.\\nSame. \\u2014 Special Damage. \\u2014 Where recovery is sought for words actionable because spoken of the plaintiff in his special calling or trade, his business must be alleged as a traversable fact.\\nFrom the Kosciusko Circuit Court.\\nC. Clemans and A. C. Clemans, for appellant.\\nL. H. Haymond and L. W. Royse, for appellee.\", \"word_count\": \"1219\", \"char_count\": \"7043\", \"text\": \"Elliott, J.\\n\\u2014 The complaint of the appellant, omitting the formal parts, is as follows: \\\"On the 15th day of April, 1880, the defendant spoke of and concerning the plaintiff, to andi in the presence of Frank Me Alpine, John G. Waldo, Nelson R. Galbreath, and other persons resident of said county and State, of and concerning a certain contract that plaintiff had of and from the director of district number nine, in Washington School Township, to Darius Pollock in October, 1879, that is to say, that in October, 1879, that he, said Andrew Pollock meaning, had in October, 1879, at a regular school meeting of the citizens of said district, met for the purpose of selling or letting the contract to the lowest bidder to furnish the wood for said district for the year 1880, to be furnished and delivered at the school-house in said district on or before the first day of April, 1880, and that plaintiff, at said meeting, was the lowest bidder and took said contract, and was to furnish twenty-five cords of good wood to said district for one dollar per cord, and the said plaintiff avers that on the 10th day of April, 1879, as before stated, and while speaking of said contract. and the circumstances connected therewith, as above stated, the defendant then and there, as a part of his said statement of said transaction, well knowing the premises, but maliciously and wilfully and wickedly intending to injure and ruin the plaintiff's fair name and fame for honesty and fair dealing among his friends and neighbors and the community in which he resided, and to deprive the plaintiff of procuring a livelihood by means of procuring such contracts, as a part of the details of said transaction then and there on said-day publicly spoke of and concerning the plaintiff the following false, defamatory, and slanderous words, to wit, that is to say, that, instead of the plaintiff, Andrew Pollock meaning, delivering good wood, as said contract called for, at said school-house, as above stated, the said Andrew Pollock, plaintiff meaning, had furnished a part of said wood that was worthless and rotten and not fit for use, and that Andrew Pollock, plaintiff meaning, had piled up the ranks with good wood on the outside and rotten and worthless wood on the inside and so covered it up that it could not be seen, and that Andrew Pollock, plaintiff meaning, had so furnished said rotten and worthless, wood for the purpose of defrauding school district number nine, by falsely pretending and representing that all of said wood was good; and further, that Andrew Pollock, plaintiff' meaning, intended when he took said contract to furnish rotten and worthless wood with the express intention of cheating, swindling and defrauding Samuel Hastings, defendant meaning, and the rest of the citizens of said school district; and the said defendant further said of the plaintiff that he was a swindler; that he was dishonest; that he would defraud any person whenever he could procure an opportunity to do so; that he was a swindler and a cheat. And the plaintiff avers that when the said words were taken together, and at the time and place when and where spoken, they had a provincial meaning, in this, to wit, that when spoken of a person in said district they were understood to mean, among the citizens of said district, that the person thus spoken of was a swindler and a cheat, .and that ho would defraud whenever he had an opportunity to do so, and that the person of whom they were spoken would obtain money and chattels by false pretences, and had obtained \\u2022money and chattels by false pretences; that the said plaintiff was greatly injured and damaged by reason of the speaking of said -words, and that said defendant intended to injure the \\u2022said plaintiff and bring him into disrepute, shame and disgrace, to his great injury and damage in the sum of two thousand dollars.\\\"\\n' We have not copied this complaint as a model of good ipleading, but for the reason that it is impossible to dispose of the questions arising in the case without setting out all of the averments of the complaint.\\nThe complaint does not set forth any words that are slanderous per se. It is not slander per se to charge a man with fraud, or to say of him that he is a cheat or a swindler. The defamatory words charged in the complaint can not be deemed to do more than characterize the appellant as a cheat and a \\u2022swindler; they do not assert that he has been guilty of any crime. There is no charge in any of the language used, that the appellant was guilty of a crime, and, therefore, the words are not actionable per se. Odgers Libel & Slander, 53.\\nIf words actionable in themselves are spoken of a transaction which is not a crime, and of which the hearers have full knowledge, they are not actionable. It clearly appears from the statements of the pleading before us that the appellee was speaking of a transaction which did not, as, all who heard him knew, constitute a crime, and therefore, even if words descriptive of a crime had been used, there would have been no actionable slander. Hotchkiss v. Olmstead, 37 Ind. 74 (see authorities, p. 80); Odgers Libel & Slander, 100, n.\\nThe allegation in the complaint that the words used had a provincial meaning, signifying that the person of whom they were spoken had obtained money or property by false pretences, does not make the complaint good. The pleading shows that the,, transaction of which they were spoken could not have constituted a crime, and that the persons who heard the words could, not have understood them as charging a crime. \\\"Where the complaint fully discloses facts showing that the words did not charge a crime, their meaning,can not be changed by the innuendo. Hotchkiss v. Olmstead, supra; McFadin v. David, 78 Ind. 445; S. C., 41 Am. R. 587, vide auth. n.\\nWhere a recovery is sought because of special injury in the way of office, profession, or business, the business or profession must be pleaded as a substantive and traversable fact. There is in the complaint before us no allegation that the business of the appellant was that of selling wood.\\nThe demurrer to the complaint was properly sustained.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1327495\", \"name\": \"Quick, Administrator, v. Durham\", \"name_abbreviation\": \"Quick v. Durham\", \"decision_date\": \"1888-04-10\", \"docket_number\": \"No. 13,031\", \"first_page\": \"302\", \"last_page\": \"306\", \"citations\": \"115 Ind. 302\", \"volume\": \"115\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:35:50.613437+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Quick, Administrator, v. Durham.\", \"head_matter\": \"No. 13,031.\\nQuick, Administrator, v. Durham.\\nSet-Off. \\u2014 Judgments.\\u2014 Decedent\\u2019s Estate. \\u2014 Insolvency. \\u2014 Tort. \\u2014 A. and B. effected an exchange of lands. Subsequently B.\\u2019s administrator, in an action originally commenced by B., obtained a judgment against A. for deceit as to the value of the land received in the transaction. After-wards A. recovered a judgment against the estate of B. for money which he had been compelled to pay by reason of a breach of the warranty against encumbrances contained in the deed to him.\\nHeld, that A. is entitled to have his judgment set off against the judgment in favor of the estate, although the estate is insolvent.\\nHeld, also, that the judgment against A. was not for a tort, within the proper meaning of that term, but that even if it were, the circumstances make a case for an equitable set-off.\\nFrom the Montgomery Circuit Court.\\nN. P. H. Proctor, J. Wright and J. M. Seller, for appellant.\\nP. S. Kennedy, S. G. Kennedy, G. W. Paul and J. E. Humphries, for appellee.\", \"word_count\": \"1434\", \"char_count\": \"8203\", \"text\": \"Niblack, J.\\nThis was a proceeding to have one judgment set off against another, and was based upon a motion in writing, having the form and similitude of a complaint, upon which an issue was formed by an answer in denial.\\nAt the hearing the'following facts were seemingly well established :\\nOn the 2d day of June, 1883, Marquis L. Bass, then a resident of the city of Crawfordsville, in this State, conveyed to William H. Durham, the appellee in this appeal, and, also, a resident of the same city, a lot of ground, with buildings thereon, situate in said city of Crawfordsville, by warranty deed, for the alleged consideration of nine thousand and five hundred dollars. In part payment of this sum Durham conveyed to Bass several tracts of land in the State of Iowa. The transaction was in fact an exchange of lands, in which a certain difference was to be paid by Durham. Bass had never seen the Iowa lands thus conveyed to him, but accepted them solely upon the representations of Durham as to their location, quality and surroundings, as well as their value. A few months later, Bass, complaining that all the most material representations which Durham had made concerning these lands had proven to be untrue, commenced an action in the Montgomery Circuit Court against the latter for the alleged deceit which had been thus practiced upon him. Before the cause came on for trial Bass died, andStebbins Quick, the appellant here, was appointed his administrator.\\nThe subsequent proceedings were conducted in Quick's name, and he, as such administrator, on the 3d day of November, 1884, obtained a judgment against Durham for the sum of two thousand dollars in damages. During the pend-ency of this suit, and after Bass had died, that is to say, on the 8th day of September, 1884, Durham, alleging that he had been compelled to pay a large sum in excess of what he had agreed to pay, to relieve the property conveyed to him by Bass from encumbrances of various kinds, filed a claim in the same court against the estate of Bass for the gross sum so alleged to have been overpaid.\\nUpon issue joined and a trial, Durham, in January, 1885, obtained an allowance and judgment against the estate of Bass, in the hands of Quick to be administered, for the sum of eleven hundred and ten dollars.\\nDurham thereupon proceeded to make payments from time to time upon the judgment so rendered against him in favor of the estate of Bass, until he reduced the balance due upon it to about the sum of eleven hundred and twenty dollars, and then commenced this proceeding to have his judgment against the estate set off against, and applied to the extinguishment of, the balance so due upon the judgment against him. The court below, after hearing the evidence, came to the conclusion that the amount due for principal and interest on the judgment in Durham's favor, was greater than the balance remaining unpaid on the judgment against irim, and that, notwithstanding the admitted insolvency of the estate of Bass, the former judgment should be set off against, and applied to the extinguishment of, the latter, and ordered accordingly.\\nIt was contended below, first, through the medium of a demurrer to the complaint, secondly, by answer filed to the complaint, and thirdly, under the form of a motion for a new trial, that, owing to the insolvency of Bass's estate as well as to the difference between the nature and character of the two judgments, one was not a proper set-off against the other, and that contention is continued by this appeal and renewed in this court.\\nIt has been decided, and that is now the accepted law on the subject, that a proceeding of this kind is a summary proceeding, and may be commenced by, and proceeded with, as upon a mere motion. Hence that no formal pleadings are necessary, but that the parties may, as in analogous cases, mutually resort to formal pleadings and present questions of law for decision in that way. Puett v. Beard, 86 Ind. 172 (44 Am. R. 280).\\nIt has been said, and we have no doubt rightly said, in some of our decided cases, that the question as to whether a judgment in favor of an estate ought to be set off and can-celled by one against it, is not affected by the solvency of the estate on the one hand, or its insolvency on the other. Convery v. Langdon, 66 Ind. 311; Carter v. Compton, 79 Ind. 37.\\nIf at the time of the death of the decedent the equities existing between him and one of his seeming debtors are such that the judgments which may be rendered on their respective claims ought to be set off one against the other, and that is accordingly done, then the judgment against the supposed debtor does not really constitute assets in the hands of the administrator, and the creditors have no lawful cause of complaint. This is upon the familiar principle that where items in an account against one apparently indebted to an estate are absorbed and cancelled in the settlement of mutual accounts between him and the decedent, such items do not become assets of the estate, and the creditors have no claim upon them as such, either legal or equitable. If, in such a case, nothing is left for the creditors, they are in no worse \\u2022condition than are other unfortunate creditors who have no means of enforcing payment from those indebted to them.\\nIt is true, as contended, that one judgment can properly be set off against another only when equity and good conscience shall require that such an adjustment shall be made. Puett v. Beard, supra; Beard v. Puett, 105 Ind. 68.\\nInvoking the application of this rule, it is argued that as the judgment rendered against the estate of Bass was upon -a breach of a contract of warranty, and that as the judgment against Durham was for a tort, there was no close analogy or homogeneity between the two judgments, and nothing in equity which either required or permitted them to be set off against each other.\\nIn the first place, the judgment against Durham was not for a tort, within the proper meaning of that term. It was for alleged deceit in, and, consequently, for the breach \\u00f3f, a contract in the same general sense as that on which the judgment was rendered against the estate of Bass. Actions of tort, properly speaking, are for libel, assault, trespass, and cases of that general character. In the next place, there is no such distinction between judgments ex contractu and those ex delicto as is claimed. On the contrary, it has been expressly decided that a judgment of the one class will be set off against one of the other when equity and justice will thereby be best subserved. See Carter v. Compton, supra; Puett v. Beard, supra; Butner v. Bowser, 104 Ind. 255.\\nIn the ease before us, both controversies arose out of substantially the same transaction, and the judgments resulted from breaches of mutual and concurrent contracts. There were, therefore, good equitable reasons for setting off the judgments against each other. This view receives support in principle and by analogy from the case of Judah v. Trustees of Vincennes University, 16 Ind. 56.\\nFiled April 10, 1888;\\npetition for a rehearing overruled June 23, 1888\\u00bb,\\nThe order appealed from is consequently affirmed, with costs.\"}"
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+"{\"id\": \"1351425\", \"name\": \"Shannon v. Hay\", \"name_abbreviation\": \"Shannon v. Hay\", \"decision_date\": \"1886-06-04\", \"docket_number\": \"No. 12,268\", \"first_page\": \"589\", \"last_page\": \"593\", \"citations\": \"106 Ind. 589\", \"volume\": \"106\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:05:39.298223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Shannon v. Hay.\", \"head_matter\": \"No. 12,268.\\nShannon v. Hay.\\nSchool Fund. \\u2014 Auditor\\u2019s Sale of Mortgaged Land.\\u2014 When not Required to Offer in Parcels. \\u2014 The county auditor, in selling land mortgaged to the State for the use of the school fund, is not required to offer it in specific parcels, where it is described in the mortgage as a single tract.\\nQuieting Title. \\u2014 School Fund Mortgage. \\u2014 Auditor\\u2019s Sale. \\u2014 Tender.\\u2014One whose land has been sold to satisfy a school fund mortgage executed by him, can not maintain an action to quiet title against the purchaser, although the sale was void, without first paying or tendering to the latter the amount paid by him.\\nFrom the Vigo Circuit Court.\\nI. N. Pierce and T. W. Harper, for appellant.\\nN. G. Buff, H. J. Baker and J. T. Pierce, for appellee.\", \"word_count\": \"1537\", \"char_count\": \"8639\", \"text\": \"Howk, C. J.\\nAppellant, Shannon, the defendant below, assigned as error upon the record of this cause, that the trial court had erred in its conclusion of law upon its special finding of facts.\\nThe facts found specially by the court were in substance as follows:\\nThe appellee, Hay, on January 13th, 1865, made the following note and mortgage to the State of Indiana, to wit: Here follows what purports to be the copy of a mortgage executed by Hay to the State of Indiana, for the use of congressional township 10 north, range 9 west, of Vigo county,, of a tract of land of the same description as that given in Hay's complaint herein, to secure the payment of $300, with interest at the rate of 8 per cent, per annum in advance, according to the conditions of the note thereto annexed, and what purports to be a copy of such note. Appellee paid interest on such note and mortgage from 1865 to 1872 inclusive, to wit, $21 each year, and from 1873 to 1876 inclusive, to wit, $24 each year; and such annual payments of $24 wer\\u00f3 made at the request of the county treasurer and auditor, without any special contract, in writing or otherwise, for him so to do. Appellee failed to pay the interest for 1877, 1878 and 1879. The county auditor advertised the land in controversy, together with other tracts of land belonging to other parties, all in the same notice, in the Terre Haute Gazette, as follows: Giving a copy of the notice.\\nThe only proof that the notices were posted in the township, in which the land was situate, was the following certificate of Louis Hay, then the sheriff of Vigo county, but since dead, who was requested to post such notices by the then auditor of Vigo county: Setting out what purports to be a copy of such sheriff's certificate.\\nNewton Rogers, treasurer of Vigo county, made the following certificate, which was signed by him and the auditor of such county, and recorded in the auditor's office and filed in the treasurer's office: Here follows what purports to be a copy of such certificate.\\nBefore the commencement of this suit appellee did not make, nor had he made at any time since, any tender of the amount due on such note and mortgage. The tract of land so mortgaged contained 152 acres, consisting of three \\\"full forties \\\" and a \\\" fractional forty,\\\" in the northwest quarter of section 20, township 13, range 9 west, in Vigo county, Indiana, and was of the value of $5,000.\\nThe county auditor offered such land as follows : \\\" Who will take the whole tract and pay the sum of $348 therefor ? \\\" And Patrick Shannon bid the sum of $355 for the whole tract. The auditor then said : \\\" Who will take a less quantity than the whole tract and pay the amount due on such note and mortgage?\\\" No one offering to take a less quantity than the whole tract, the whole tract was then offered, and Patrick Shannon bidding $355, the whole tract was struck off to him for such sum of $355, which sum he paid to the-county treasurer and took his receipt therefor.\\nSuch land was susceptible of division, and might have been sold in parcels, without injury to the whole; and the land was not offered in parcels, except as aforesaid. The county auditor, after having executed the following deed to Patrick Shannon, recorded the same in the proper order-book of the county commissioners, and afterwards delivered the same to said Patrick Shannon. Here follows what purports to be a copy of such auditor's deed to Patrick Shannon.\\nUpon the foregoing facts the court stated as its conclusion of law, that the sale of such land was illegal and void, the land not having been offered in parcels, as required by law.\\nDid the trial court err in its conclusion of law upon the facts specially found? We are of opinion that this question must be answered in the affirmative. This is not a case where-the officer selling the land is required to offer and sell the land in separate and distinct parcels ; unless, indeed, it appears on the face of the mortgage that several separate and distinct parcels, lots or parcels of land are described therein. In this latter case, the statute expressly requires that the auditor shall elect in advance of the sale which one of the several-lots or tracts shall be first sold, \\\" saving to the mortgagor, if .practicable, the tract on which his house is located; \\\" and in such case, of course, the auditor must sell in parcels. Benefiel v. Aughe, 93 Ind. 401; section 4392, R. S. 1881.\\nIn the case in hand, however, the land in controversy was described as an entirety, or as one single tract or lot, in appellee's mortgage to the State, as follows : \\\" That part of the northwest -quarter of section 20, in township 13 north, of range 9 west, which lies south of the road leading to Durkec's ferry.\\\" In such a ease, while the statute contemplates the sale of a less quantity than the Whole tract, if any one will pay the amount due on the note and njprtgago for such less' quantity, yet it is clear, we think, that'' the auditor is not, required to offer any certain or specific less quantity or parcel \\u2022of the whole tract, because-.fiie statute expressly provides that, where a less quantity than the whole tract is bid for by one who will pay therefor the entire amount due, such quantity shall be taken in a square form, as nearly as possible, off of the northwesterly corner of said tract.\\\" Section 4392, supra. Bonnell v. Ray, 71 Ind. 141.\\nThe facts found by the court in this case show, we think, \\u2022that the land in controversy was offered and sold by the auditor of Vigo county, in so far as the mode of crying the sale is concerned, in substantial compliance with the requirements of the statute. Therefore, it follows that the court erred in its conclusion of law, and for this error the judgment below must be reversed. The facts of the ease have been so imperfectly found, and so many matters of evidence merely, in lieu of the facts which such evidence would possibly tend to prove, are erroneously set out in the special finding of facts, that we can not remand the cause with instructions to state other conclusions of law upon such special \\u2022finding, but must instead remand the same for a new trial.\\nBesides, the appellee has sued in this case to have his title \\u2022to the land in controversy quieted, as against appellant, by the decree of the court. When, therefore, the trial court found, as it did, that the appellee had never, at any time, before or since the commencement of his suit, paid or tendered to appellant the amount paid by him in satisfaction of appellee's note and mortgage and interest thereon, we are of \\u2022opinion that the court ought to have promptly dismissed the suit at appellee's costs. For, however erroneous the auditor's sale and conveyance of the land to appellant may pos \\u00a1sibly have been,.it is certain that such sale and conveyance resulted in the payment by appellant of appellee's note and mortgage to the State, for the use of its school fund. In such case, even though such sale and conveyance were illegal and void, the appellee con not be heard in a court of equity to ask that such sale and conveyance be set aside and declared void, until it appears that he has first done, or offered to do, what equity requires of him, namely, the payment or tender to appellant of the amount paid by'him as aforesaid, in satisfaction of appellee's note and mortgage. This is the doctrine declared in many of our cases, which can not be distinguished, in principle, from the case- in hand. Harrison v. Haas, 25 Ind. 281; McWhinney v. Brinker, 64 Ind. 360; Lancaster v. DuHadway, 97 Ind. 565; Rowe v. Peabody, 102 Ind. 198.\\nFiled June 4, 1886.\\nThe judgment is reversed with costs, and appellant's death having been shggested, upon the petition of Thomas A. Anderson, administrator of such decedent's estate, he is substituted as the appellant in this cause, and this judgment is rendered in his favor.\"}"
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+"{\"id\": \"1378695\", \"name\": \"Lyman Johnson v. John L. Mills\", \"name_abbreviation\": \"Johnson v. Mills\", \"decision_date\": \"1973-09-20\", \"docket_number\": \"No. 1-173A16\", \"first_page\": \"620\", \"last_page\": \"626\", \"citations\": \"157 Ind. App. 620\", \"volume\": \"157\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:32:18.621181+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lyman Johnson v. John L. Mills.\", \"head_matter\": \"Lyman Johnson v. John L. Mills.\\n[No. 1-173A16.\\nFiled September 20, 1973.]\\nJames J. Stewart, Harold E. Atherly, Stewart, Irwin, Gil-liom, Fuller and Meyer, of Indianapolis, for appellant.\\nJohn F. Townsend, Jr., W. Scott Montross, Townsend, Hovde & Townsend, of Indianapolis, for appellee.\", \"word_count\": \"1895\", \"char_count\": \"11004\", \"text\": \"Robertson, P.J.\\nDefendant-appellant (Johnson hereafter) is appealing a jury verdict of $36,000 rendered against him and in favor of plaintiff-appellee (Mills) in a personal injury suit. The action was commenced by the filing of Mills' complaint which alleged, inter alia, that on May 6, 1968, Johnson was operating a 1951 Chevrolet truck south on North Madison Avenue in Greenwood, Indiana, which struck and thereby permanently injured Mills who was laying sod along the west side of Madison Avenue at the time. The complaint further alleged that at the time Mills was struck he was working immediately to the west of the curb and that Johnson was negligent in the following respects:\\n\\\"(a) Failed to keep a reasonable lookout so as to observe plaintiff.\\n(b) Failed to keep Ms veMcle under control by turning the wheel and steering same so as to avoid running into and striking plaintiff.\\n(c) Failed to reduce his acceleration and apply his brakes to avoid running into and striking plaintiff.\\n(d) Failed to restrict his speed to avoid colliding with plaintiff.\\n(e) Drove his vehicle off of the east [west] edge of the highway and directly into plaintiff.\\n(f) Failed to blow his horn or give plaintiff any other warning that he was about to run into and strike him when he knew or should have known that plaintiff was close to the highway and that defendant was driving dangerously close to plaintiff.\\\"\\nThe issues as raised by Johnson's Motion to Correct Errors, which was overruled, and argued on appeal, are threefold: was there sufficient evidence to support the jury's verdict; did the trial court err in overruling Johnson's motion for partial judgment on the evidence at the close of plaintiff's evidence; and did the trial court err in giving certain plaintiff's instructions.\\nBefore determining the sufficiency of the evidence it should be pointed out that in so doing we are bound by the well established rule that only the evidence most favorable to the appellee may be considered and we can neither weigh the evidence nor determine the credibility of witnesses. Nugent v. Smith (1972), 153 Ind. App. 484, 287 N.E.2d 899; Engelbrecht v. Tri-State Franchisers, Incorporated (1972), 153 Ind. App. 350, 287 N.E.2d 365; Wm. 3. & M. S. Vesey, Inc. v. Hillman (1972), 151 Ind. App. 388, 280 N.E.2d 88.\\nDue to the fact that there were no eyewitnesses, other than the defendant Johnson himself, to the actual striking of Mills, much of the circumstances of this incident must be constructed from the testimony of witnesses who made observations immediately prior to or after Mills was struck. It would appear that a great deal of the factual dispute between the parties turns on the question of whether Mills was located to the west of the curb or in the street at the time he was struck. One witness for plaintiff who was employed on- the same work crew placed Mills approximately a foot or more west of the curb of the southbound lane of Madison Avenue immediately prior to being struck. Mills, according to the witness, was rolling out sod with his back to the road and facing south or southwest. The witness could not make a definitive statement as to whether or not the wheels of Johnson's vehicle came over the curb. The witness did, however, state that he saw the truck fender come over the curb. A second witness for plaintiff, who was also a member of the work crew, testified that immediately prior to the accident Mills was standing to the west of the curb but he did not know the exact location of Mills when he was struck. The same witness testified that he observed a black tire mark on the curb after Mills was struck which was not there before. The plaintiff Mills testified that prior to the accident he was unrolling a strip of sod next to the curb with his body facing to the south. Mills stated that he was leaning over and backing up as he unrolled the sod and while so doing he was struck without warning in the buttocks by the Johnson vehicle. Mills further testified that he was not in the street but was standing next to the curb in the area in which he was laying sod.\\nIn conflict with Mills' testimony was that of the defendant Johnson, who testified that as he approached the scene of the accident he observed Mills in the street. Johnson stated that he slowed down and when the front end of his truck came even with Mills, Mills started backing up. Johnson further testified that he was never closer than three to four feet away from the curb and that it was the right hand door of his truck which struck Mills.\\nIn an effort to prove that Johnson's truck did not go over the curb, an accident reconstruction expert testified on behalf of Johnson that the force of a vehicle going up and over a curb, under circumstances similar to this accident, would cause identifiable damage to the wheel rim, the tire, the curb, and to the area in which the vehicle would come down beyond the curb. The witness stated that he inspected the curb, the truck, and photographs of the truck and he found no damage to any of the vehicle's wheel rims. Johnson's expert witness also testified that his inspection of the truck revealed damage to the right front fender which appeared to be quite old by virtue of the presence of rust and damage to the passenger side door which was not rusty and appeared to be recent. In his opinion the damage to the right front fender was not caused by striking a human body, but the damage to the door could have been caused by a human body. The police officer who investigated the accident testified that immediately subsequent to the accident he observed no tire marks on the curb or in the area beyond the curb.\\nThe substance of Johnson's argument regarding the insufficiency of the evidence is that there was no substantial evidence offered by Mills during the trial on any of the allegations of negligence other than the allegation in which Mills averred that Johnson drove his vehicle off the west edge of the highway and directly into plaintiff. Johnson argues that a verdict based on that allegation is not supported by sufficient evidence in that such a finding would be contrary to the physical facts of the accident as constructed by the testimony of his expert witness and the investigating police officer. The jury's verdict, Johnson contends, could have only been based on a supposition that the truck jumped the curb. Johnson argues that such a supposition is contrary to the physical facts and could only be based on the unsupported testimony of Mills that he was not in the street when he was struck. Because Mills' testimony on this question was contrary to the physical facts, Johnson urges, it was of no probative value and the jury should not have been allowed to rest its verdict thereon. We do not agree with Johnson's contention.\\nIn the case of Connor v. Jones (1945), 115 Ind. App. 660, 59 N.E.2d 577, where the jury's verdict was assailed because it was contrary to the physical facts, the court stated the following rule of law:\\n\\\". . . the testimony of a witness which is opposed to the laws of nature, or which is clearly in conflict with principles established by the laws of science, is of no probative value and a jury is not permitted to rest its verdict thereon. [Citing authorities.] This rule is frequently applied to the testimony of one who says he looked but did not see an object, which, if he had looked, in the very nature of things, he must have seen. However, where a court cannot say as a matter of law that the testimony of a witness is contrary to scientific principles, the law of nature or the physical facts, the question of whether such testimony does so conflict is one of fact for the jury to determine. [Citing authorities.]\\\" Connor v. Jones, supra, 115 Ind. App., at p. 670. See also Gibson Coal Company v. Kriebs (1971), 150 Ind. App. 173, 275 N.E.2d 821.\\nThere is evidence from which the jury could have concluded that a portion of Johnson's truck extended over the curb striking Mills while he was standing near the curb.\\nThe second issue raised by Johnson is closely related to the first. Johnson maintains that because Mills failed to offer any evidence of a substantive nature on allegations (a), (b), (c), (d), and (f) of his complaint the trial court should have granted Johnson's motion for partial judgment on the evidence at the close of plaintiff's evidence. We cannot agree with Johnson's position. The validity of a directed verdict on a certain issue depends upon a total absence of evidence or reasonable inference therefrom on an essential element of the plaintiff's case. The evidence must be without conflict and susceptible of but one inference in favor of the moving party. Mamula v. Ford Motor Company (1971), 150 Ind. App. 179, 275 N.E.2d 849. In this case, as in Mamula, supra, there was evidence in some amount on the respective allegations of negligence to allow the issue through'\\\"the door of the jury room.\\\"\\nJohnson's final argument is directed to certain plaintiff's instructions which were given over his objection. It is alleged that there was no evidence to warrant giving an instruction on assessment of damages; Johnson's duty to exercise reasonable care to avoid colliding with a person near the highway; and Johnson's duty to maintain a reasonable lookout. Since we have previously approved submission to the jury of the issues formed by Mills' allegations of negligence, we likewise hold that there was evidence to justify the instructions regarding avoiding collision and maintaining a lookout. In a similar manner there was evidence from Mills and his physician which would warrant the damages instruction.\\nJohnson's final argument is that the following instruction is mandatory:\\n\\\"You are instructed that it is not necessary for John Mills to have introduced evidence as to the monetary value of any pain, suffering, mental anguish or disability suffered by him, but it is only necessary that he has proved to you by a fair preponderance of the evidence the nature and extent of such injury, pain, suffering, mental anguish or disability, and it is your duty as jurors to fix the monetary value of such pain, suffering, mental anguish or disability.\\\"\\nThe case of Perry v. Goss (1970), 253 Ind. 603, 255 N.E. 923, defines a mandatory instruction as one which directs the jury to a certain result. General statements of the law and its applicability to the case are necessary to properly instruct the jury. We are of the opinion that the quoted instruction falls into the latter category and does not possess the qualities of an erroneous mandatory instruction. See Perry v. Goss, supra.\\nJudgment affirmed.\\nLowdermilk and Lybrook, JJ., concur.\\nNote. \\u2014 Reported at 301 N.E.2d 205.\"}"
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+"{\"id\": \"1378821\", \"name\": \"Cicero Township v. Picken et al.\", \"name_abbreviation\": \"Cicero Township v. Picken\", \"decision_date\": \"1890-02-21\", \"docket_number\": \"No. 15,189\", \"first_page\": \"260\", \"last_page\": \"266\", \"citations\": \"122 Ind. 260\", \"volume\": \"122\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:19:56.010720+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cicero Township v. Picken et al.\", \"head_matter\": \"No. 15,189.\\nCicero Township v. Picken et al.\\nJudgment. \\u2014 Collateral Attach. \\u2014 Absence of Summons. \\u2014 Appearance by Counsel. \\u2014Township.\\u2014 Merger of Written Obligations in Judgment. \\u2014 Fraud.\\u2014Complaint. \\u2014 The complaint in this case states, among other things, that theretofore a judgment had been rendered against the plaintiff, a township, on certain obligations against the township issued by the trustee thereof; that no summons had been issued in the original action ; that an appearance for the township had been entered by its attorneys, one of whom was a surety on the trustee\\u2019s bond; that said attorneys filed an answer admitting the legality of the claim, except as to certain items, and permitted judgment to be rendered against the township. It alleges, further, that the obligations upon which the judgment was rendered were issued without authority or right, and in violation of statute, and concludes with a prayer for the setting aside of the judgment, etc.\\nHeld, that the judgment in the original action could not be successfully attacked in this collateral proceeding.\\nHeld, also, that the writings sued upon were merged into the judgment which the court rendered, and so long as it remains undisturbed the validity of said obligation is not an open question.\\nHeld, also, that the complaint does not state facts sufficient to constitute a fraud, practiced by the plaintiffs in the original action, or any one in their behalf, either upon the court or the defendant, as the result of which the judgment was obtained.\\nFrom the Tipton Circuit Court.\\nW. R. Oglebay and C. N. Pollard, for appellant.\\nJ. N. Waugh and J. P. Kemp, for appellees.\", \"word_count\": \"2131\", \"char_count\": \"12324\", \"text\": \"Berkshire, J.\\nThe second paragraph of the complaint, which is the only paragraph brought to this court, was filed by the appellant, who was the plaintiff below, on the 13th day of September, 1889. The substance of this paragraph of complaint is, that on the 7th day of April, 1884, one Henry C. Finney was duly elected to the office of township trustee of said Cicero township, and was duly inducted into office; and was again duly elected on the 5th day of April, 1886, and was duly inducted into office, and continued as such trustee until the 13th day of April, 1888 ; that while in said office the-said Finney, as such trustee, executed certain pretended written evidences of indebtedness against said township, and certain written pretended obligations of the said township to pay certain sums Of money at times in said writings named; the amount of said obligations, when due, to whom payable,and when dated being given; that all of said pretended evidences of indebtedness were assigned, by endorsement, to the appellees, except one, which has no endorsement upon it; that on the 14th day of December, 1887, the appellees filed a complaint in the office of the clerk of the Tipton Circuit Court, against said township (the appellant) based exclusively upon said pretended written obligations, but at no time caused any summons to issue upon said complaint; that on the 19th day of December, 1887, an appearance was entered to said action in the name of Gifford & Fippen, as attorneys for the appellant, and an answer filed admitting the legality of the appellees' claim in said cause, except as to interest in excess of six per cent, and attorney's fees claimed, and made no other issue therein; that the said Gifford was then one of the sureties on the official bond of said Finney, trustee as aforesaid, and was such surety during his entire term of office, and was such surety at the time he appeared to said action; that the said Finney was then, and has since been, wholly insolvent; that the said Gifford was then, as such surety, liable for every default of said trustee; that on the 24th day of December, 1887, tire appellees procured a judgment to be rendered on their said qlaim in said action against the appellant, for the sum of $2,496.95, with costs of suit, which still remains in force upon the records of said court, and is still owmed and controlled by the appellees; that said judgment is null and void in this, that said supposed debts, and each and all of them, were, when contracted by said trustee, in excess of the fund then in the hands of such trustee to which said indebtedness was chargeable, and in excess of the funds to which said debts were chargeable, to be derived from the tax assessed against said township for the proper year; that the said trustee did not, at any time, procure an order from the board of commissioners authorizing him to contract such indebtedness, or any part of it; that said supposed indebtedness was contracted in violation of sections 6006 and 6007, R. S. 1881; that said apparent indebtedness was a fraud upon the appellant; that one Harrison A. Woodruff was duly elected and inducted into office as the successor of said Henry C. Finney, and is now filling said office, and has procured this suit to be instituted to have the appellant relieved from said judgment; that he instituted this suit as soon as he discovered the facts herein alleged, or could have done in the exercise of reasonable diligence.\\nThere is then a prayer that said judgment be set aside, and that the appellant be allowed to defend the said former action.\\nThe court sustained a demurrer to the said second paragraph of complaint and to the ruling of the court, an exception was reserved.\\nThe appellant having refused to amend its complaint, judgment was rendered against it for want of a sufficient complaint, and from that judgment this appeal is taken.\\nThe only question raised by the assignment of error is as to the sufficiency of the said paragraph of complaint. It is not claimed by counsel for the appellant that the cause of action alleged brings the case within any of the statutory provisions for relief'against judgments.\\nThe theory of the complaint is, that the equity powers of the court are such as to cover the case made, and that on equitable grounds the appellant is entitled to the relief sought. As was said in the case of Weiss v. Guerineau, 109 Ind. 438 (443): \\\" Methods for obtaining a new trial, or to review a judgment for material new matter, or for error of law, are pointed out by the statute, and beyond the methods thus prescribed courts possess inherent power to an almost unlimited extent, to redress wrongs by modifying or setting aside judgments obtained by fraud or mistake.\\\"\\nWe may concede, for all the purposes of this case, that the written obligations issued by Finney, as trustee, upon his township, were void, and that had the original action been rigorously defended the appellant would have succeeded in defeating a recovery, and then the inquiry confronts us: Does the complaint allege fraud or mistake in the obtainment of the judgment against which relief is sought? If not, then the demurrer was rightfully sustained thereto. It is not claimed that there was any mistake because of which the appellant suffered or permitted the judgment to be rendered. If the complaint is to be upheld on any ground, it must be because the judgment is tainted with fraud; fraud upon the court or upon the appellant, but for which there would have been no such judgment.\\nIn this State there is no such thing as constructive fraud; by statute the question of fraud is made a question of fact. Section 4924, R. S. 1881; Rose v. Colter, 76 Ind. 590; Leasure v. Coburn, 57 Ind. 274; Bentley v. Dunkle, 57 Ind. 374.\\n\\\" By our statute the question of fraud is made one of fact, and where fraud is essential to the existence of a cause of action it must be found as a'fact, and not left to be inferred as a matter of law.\\\" Phelps v. Smith, 116 Ind. 387.\\nThe writings sued upon were merged into the judgment which the court rendered, and so long as it remains undisturbed the validity of the obligations, and the liability of the appellant for their payment, are not open questions.\\nThe law conferred upon the court jurisdiction of the subject-matter of the action, and the appellant's appearance jurisdiction over the person, and when the power of the court was called into action every question necessary to fix the appellant's liability was involved, and the court's final determination, whether right or wrong, is conclusive upon all of the parties until set aside, or overturned, by some competent authority; and until this is don\\u00e9 the appellant will not be heard to say, for any purpose, or upon any ground, that the claims that were sued upon were not valid, and upon which there was no legal liability.\\nWe come back, then, to the question, does the complaint charge facts sufficient to constitute a fraud practiced by the appellees, or any one in their behalf, either upon the court or the appellant, as the result of which the judgment was obtained?\\nWe do not think'it does. The court was open, and the appellees had a right to go into it with their alleged cause of action.\\n. It is true, they caused no summons to issue, which is rather an unusual circumstance in the institution of adversary proceedings in courts of justice, but not wholly without precedent. But, standing alone, this circumstance is of no moment, for the reason that the appellant had the right to waive process, and enter an appearance to the action ; and when so entered the judgment thereafter rendered was just as binding, and had the same force and effect, as though a summons had been issued and served. The only' purpose of a summons is to give to the party defendant notice that an action is pending against him, that he may have an opportunity to prepare and make such defence to the action as he may have; and if he sees proper to appear and waive notice, neither he nor any one else can complain because of the failure to have process issued.\\nIt is not alleged that the appellant's trustee, and the appellees, had any understanding, or agreement, in reference to the institution of the action, or the appearance of the appellant without notice, and without such an averment we must infer that there was no such understanding; and, if not, the appellees can not be made to suffer for what the appellant did, no difference what may have been the purpose of its agent having authority to act for it in the matter.\\nIt seems that one of the two attorneys who appeared for the appellant, and filed its answer, was a surety on the bond of the appellant's then trustee, but it is not averred that the appellees knew that fact, or had anything to do with the selection of the attorneys who appeared for the appellant.\\nSuppose it were conceded that the then trustee employed the attorneys who appeared to the action for the purpose of enabling the appellees to obtain judgment promptly, and without litigation, but without knowledge on the part of the appellees that what was being done was not in good faith, the appellees could not be prejudiced thereby; it notappearing that the court was in any way deceived by the action of those representing the appellant, and thereby induced to render a different judgment than it would otherwise have rendered.\\nThe fact that one of the attorneys for the appellant was on the bond of the trustee did not make it improper for the attorney, either alone, or as the associate of some other attorney, to appear for the appellant in said action.\\nThere are no facts alleged tending to establish bad faith on the part of the appellees, either in the institution of their said action, or its prosecution to final judgment. If the.contention of appellant's counsel can be maintained, judgments rendered against public corporations are of no binding force, and have no validity, if the corporation, as it turns out, could have successfully defended the action on the ground of want of power to enter into the obligation sued on.\\nFiled Feb. 21, 1890.\\nNotwithstanding all of the allegations in the complaint, it does not appear that any fraud was practiced upon the court by anybody, nor that the appellees acted otherwise than in the utmost good faith, nor .that the attorneys representing the appellant did not do what they believed, at the time, was-the best that could be done in the interest of the appellant.\\nThe appellant had its day in court, was represented by counsel and can not at this day successfully attack the said judgment in this collateral proceeding.\\nJudgment affirmed, with costs.\"}"
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+"{\"id\": \"1385383\", \"name\": \"Durham v. Musselman\", \"name_abbreviation\": \"Durham v. Musselman\", \"decision_date\": \"1827-11-09\", \"docket_number\": \"\", \"first_page\": \"96\", \"last_page\": \"99\", \"citations\": \"2 Blackf. 96\", \"volume\": \"2\", \"reporter\": \"Blackford\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:29:56.523649+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Durham v. Musselman.\", \"head_matter\": \"Durham v. Musselman.\\nA declaration contained two counts. The 1st stated that the defendant, on his unen7 closed land in the county, cut a tree so that it was nearly ready to fall, and set it on lire; and that the tree a/tenvards fell upon and killed the plaintiff\\u2019s horse. The 2d count stated, that the defendant, knowing the plaintiff\\u2019s horse to be running at large in the unenclosed lands of the county, and maliciously contriving to injure the plaintiff, unlawfully and negligently cut a tree in the county and set it on fire; and that the tree afterwards, in consequence of the cutting and burning, fell upon and killed the plaintiff\\u2019s horse.\\nHeld) that the declaration contained no cause of action.\\nFriday, November 9\\nERROR to the Johnson Circuit Court.\", \"word_count\": \"1435\", \"char_count\": \"8142\", \"text\": \"Holman, J.\\nDurham., in his declaration against Musselman, charges in the first count that Musselman, on his unenclosed land in Johnson county, cut a large tree so that it was nearly ready, and always liable to fall, and then built a fire around it, and negligently and unlawfully left it burning, and always liable to fall; which tree, afterwards, on the same day, fell upon and killed the mare and colt of the plaintiff. In the second count, he states that his mare and colt were running at large, in the unenclosed lands in Johnson county, and that the defendant knowing the same, hut contriving maliciously to injure the plaintiff, unlawfully, carelessly, and negligently, cut a large tree in Johnson county, and then built a fire around said tree, and left the'same always liable to fall; which tree, by the said cutting and burning, afterwards, on the same day, fell upon and killed the said mare and colt. To this declaration the defendant demurred and had judgment.\\nThis case seems to rest in some measure upon the peculiar customs of this country. It is well known, that horses and cattle are permitted to run at large through the country, and particularly in the new settlements, in one of which this transaction took place; and are not considered as trespassing by entering the unenclosed lands of any person. So that the defendant cannot resist this action, on the ground that the mare and colt of the plaintiff were trespassing on his lands when they were killed. Nor can the defendant sustain his defence, even on the first count in the declaration, on his supposed natural right of doing what he pleases on his own land; for a man should so use his own property as not to injure the property of another. But this principle of common justice does not render a man liable, as a matter of course, for every injury another may sustain from his use of his own property. It is only when he deviates, either by intention or neglect, from the ordinary use of Ms property, that he can be considered liable for an injury thereby done to another. Even then, his liability depends on the nature of his act, and the probability that such an act would occasion an injury to another. If the act was unlawful, as laying a log in the highway, he would be liable for an injury done thereby, without any reference to the probability, thatit would occasion that particular injury. But when the act is lawful, the liability of the actor, for an injury occasioned by it, depends, in the first place, on the question, whether the injury is the natural or probable consequence of the act, or is merely accidental. If the injury is the natural or probable consequence of the act, and such as any prudent man must have foreseen, it is but reasonable that the perpetrator of the act, should be held accountable for the injurious consequences. As, in the case of the man baiting his traps with flesh so near the highway, or the grounds of another, that dogs passing the highway, or kept in another's gi'ounds, arc attracted into his traps, and thereby injured; he is liable for the injury. Townsend v. Wathen, 9 East, 277. In the second place, when the injury is accidental, the liability of the actor must depend \\u00f3n the degree of probability there was, that such an event would be produced by the act.\\nTesting this case, as it stands in the first count, by these rules, it is evident that the cutting or burning down of a tree, on a man's own land, whether enclosed or otherwise, is not an unlawful act. The charge in the declaration that it was unlawfully done, amounts to nothing, where there are no circumstances to warrant such a charge. In removing the heavy forests with which our lands are covered, we see it to be a very general practice, to girdle the trees, and leave them to die and fall according to the course of nature. If the trees so girdled fall upon the cattle of others, running at large, the person who girdled the trees is not liable for the injury. Every person suffering his cattle to run at large through the forest, must be considered as running the risk of their being killed by the trees so girdled. Another method used for the destruction of timber, is to employ fire for the removing of such trees as arc susceptible of being felled.by burning. This practice, though not so common as the former, and perhaps more dangerous, is by no means unlawful. The destruction of the cattle of others, is not the natural or probable consequence of such a practice. If cattle are thereby destroyed, it can only be considered as accidental; and the circumstances of the case would determine what degree of probability there was that such would be the consequence. The simple act of leaving a tree on fire., which must of necessity burn down in a short time, and which in its fall killed the plaintiff's mare and colt, is not such an act, under the existing state of things in this country, as would render the actor liable to the injured person. So that under the first-count in the declaration, the plaintiff cannot maintain his action.\\nThe second count presents the case a little differently. It does not state that the tree was on the lands of the defendant, but in Johnson county; but as it is not suggested in the decla-r ration, nor pretended in argument, that the defendant had done any wrong as it respected the tree itself, or was infringing the right of any person by molesting the tree, this difference in the two counts can make no difference in the defendant's liability. But this count states that the defendant, contriving maliciously to injure the plaintiff, cut the tree and set it on fire; but this cannot materially alter the case. The averment of malice has no connection with the injury of which the plaintiff complains. Had the injury been the natural or probable consequence of the act, a malicious design might have been connected with it. But to connect a malicious design to injure, with the burning of a tree in Johnson county, because the defendant knew that the plaintiff had a mare and colt running at large in Johnson county, seems to be forced and unnatural.\\nSrveeiser, for the plaintiff.\\nWick, for the defendant.\\nWe cannot have a definite idea of a design to injure, unconnected with some degree of probability, that the means made use of would effect the design. Although the plaintiff's mare and colt were running at large in Johnson county, yet the probability of injuring either of them by burning down a tree in that county, is so very remote, that we cannot connect it with the idea of design or contrivance. Many thousands of trees might have been left to bum down in that county, on the same day, without injuring the plaintiff's mare or colt. In order to have given materiality to the charge of malice, the declaration should have shown, that there was some degree of probability, that the burning down of the tree would have done the plaintiff an injury; as, that the tree stood near, and would probably fall where the defendant knew the plaintiff's mare and colt were usually, or frequently feeding, passing, or standing; and then the materiality of the charge of malice would depend on the degree of probability. Without showing some such probability of doing an injury, the charge of malice amounts to nothing. So that the action cannot be supported on either count in the declaration.\\nPer Curiam.\\nThe judgment is affirmed with costs.\"}"
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+"{\"id\": \"1398658\", \"name\": \"Jeffersonville, Madison, and Indianapolis Railroad Company v. Bowen\", \"name_abbreviation\": \"Jeffersonville, Madison, & Indianapolis Railroad v. Bowen\", \"decision_date\": \"1872-11\", \"docket_number\": \"\", \"first_page\": \"545\", \"last_page\": \"552\", \"citations\": \"40 Ind. 545\", \"volume\": \"40\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:31:24.151706+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jeffersonville, Madison, and Indianapolis Railroad Company v. Bowen.\", \"head_matter\": \"Jeffersonville, Madison, and Indianapolis Railroad Company v. Bowen.\\nMotion for. New Trial.\\u2014Evidence.\\u2014That \\u201cthe court erred in admitting evidence to go to the jury over the objection of the defendants,\\u201d as a reason for a new trial, is too general, in not pointing out the evidence.\\nBill of Exceptions.\\u2014Evidence.\\u2014Inspection by Jury.\\u2014A bill of exceptions \\u2022 may contain all the'evidence, although it appear that the jury were pllowed to inspect the place where the matters referred to in the pleadings occurred. The Evansville, etc., Eailroad Co. v. Cochran, io Ind. 560, overruled.\\nRailroad.\\u2014Injury to Child.\\u2014Negligence of Parent.\\u2014Allowing a child under-five years of age to be upon a railroad track unattended, where cars are passing hourly, and where its presence may be undiscovered by the persons in control of trains, is negligence in the parent, which will defeat a recovery by the parent for injury to the child, unless such injury be wilful.\\n\\u2022APPEAL from the Jefferson Circuit Court.\", \"word_count\": \"2837\", \"char_count\": \"15728\", \"text\": \"Downey, J.\\nThe appellee sued the appellant, alleging in his complaint that William B. Bowen, five years of age, his son and servant, residing with him, was lawfully upon the railroad track upon a public street .in Madison, near the dwelling-house of the plaintiff, without any fault or negligence of the plaintiff, when, in full sight of the servants of the defendant operating the locomotive and cars of the company, while he was standing near and behind a car that had been carelessly left standing on the track, and when it was known to the servants of the defendant that he was so standing there, and while he was in speaking distance of them, and they could easily have informed him or lifted him out of the way had they so desired, without ringing the bell, blowing the whistle, or giving any signal whatever of their approach, the said servants of defendant wrongfully, carelessly, and negligently backed and run her locomotive and cars against the car so standing on the track, and put the same in motion, and carelessly and negligently ran her cars over said child, by means of which he was so injured that he died; wherefore, etc.\\nThe defendant demurred to the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action, and because the court had no jurisdiction of the parties and subject-matter. The demurrer was overruled by the court, and the defendant reserved the question.\\nThe company then answered in two paragraphs; first, the general denial; and second, that the alleged injury was caused by the negligence and want of care of the plaintiff, because the defendant was operating its cars with due and ordinary care and skill, but the plaintiff negligently permitted his child, under the age of five years, to go and remain upon said railroad track, though he knew that trains were passing over the track every hour of the day; and being so on the track, it was run over and injured, from which injuries it died; and that its servants did not do said injury wilfully, wantonly, or purposely, but, on the contrary, with ordinary care and skill to avoid the same.\\nThe second paragraph of the answer was, on motion o'f the plaintiff, stricken out, on the ground that it amounted only to a denial of matter already controverted by the gen eral denial. The defendant, by bill of exceptions, reserved the question. . \\u2022\\nAfter a trial by jury, which ended in a verdict for the plaintiff the defendant moved the court to grant a new trial, assigning as reasons that the court had erred in admitting objectionable evidence; in its own instructions to the jury; in refusing to give certain instructions asked by the defendant; because the verdict was contrary to law, and not sustained by sufficient evidence.\\nThis motion was overruled, the defendant excepted, and final judgment was rendered for the plaintiff for the amount mentioned in the verdict.\\nThe first alleged error is the overruling of the defendant's demurrer to the complaint. No objection to it is pointed out in the brief of counsel for the appellant, and we can see none.\\nIt was proper to strike out the second paragraph of the answer. It put nothing in issue not already put in issue by the general denial. Coquillard's Adm'rs v. French, 19 Ind. 274.\\nThe objectionable evidence allowed by the court to go to the jury was not pointed out particularly in the reasons fora new trial. \\\" The court erred in admitting evidence to go to the jury over the objection of the defendant,\\\" is the language of the motion. This is too general.\\nIt is urged that the evidence was not sufficient to justify the verdict of the jury.\\nBut we are here met by an objection made by counsel for the appellee, that the bill of exceptions does not contain all the evidence, and that, therefore, we cannot consider this question. The jury were sent to and examined the place where the cars ran over the child, arid according to the rule established in The Evansville, etc., R. R. Co. v. Cochran, 10 Ind. 560, we could not, in such a case, regard the evidence as all in the record, for the reason that we could not know what impressions, as to the facts, were made on the minds of the jury by the examination of the place, etc., in question. It is insisted, however, by counsel for the appellant that that case is not founded in reason, or supported by authority, and we are asked to overrule the same. It is urged that to follow that case is to say that in no case where the jury has had a view of the place in which any material fact occurred, as contemplated by the statute, 2 G. & H. 427, sec. 164, of the criminal code, or page 202, sec. 328, of the civil code, can the evidence be got into the record, as it would be impossible to put into the bill of exceptions the impressions made upon the minds of the jury by such view; and that in this way all benefit of appeal to this court, so far as any question is concerned which depends upon all the evidence being in the record, would be wholly cut off. It is further contended that whether the jury shall have a view of the place, etc., is a matter entirely in the discretion of the court, and that the court may thus, in its discretion, deprive a party of the right to have questions depending on the evidence reviewed in this court, even in cases of the greatest moment. It is urged that under the rule in that case a party might be convicted and sentenced to be hanged on wholly insufficient evidence, yet if the prosecutor has got an order for the jury to view the place, and they have done so, it would be impossible to get the judgment reversed, no matter how insufficient the evidence might have been.\\nThese reasons have so much force in them that we feel compelled to overrule the case of The Evansville, etc., Railroad Company v. Cochran, and any other cases which have followed it, and to hold that the bill of exceptions may contain all the evidence, notwithstanding the jury may have viewed the property which is the subject of the litigation, or the place in which any material fact occurred, in accordance with the sections of the codes above cited. It is suggested by counsel for the appellee that the jurors, after they have examined the property or the place, may be examined and may state the impressions made on their minds, and that their statements on such examination may be put in the bill of exceptions. We are not inclined to adopt this view. We do not think it practicable. In Close v. Samm, 27 Iowa, 503, this question was under consideration. The district court had instructed the jury that they should consider all the evidence in the case and all the facts and circumstances disclosed on the trial, including their personal examination, etc. The question was presented to the Supreme Court whether this instruction was correct or not, and, under a statute similar to our section found in the civil code, the court said: \\\"The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross examination or correction of error, if any, could be afforded either party. If they are thus permitted to include their personal examination, how could a court ever properly set aside their verdict as being against the evidence, or even refuse to set it aside without knowing the facts ascertained by such personal examination by the jury? It is a general rule, certainly, if not universal, that the jury must base their verdict upon the evidence delivered to them in open court, and they may not take into consideration facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of the facts known to a juror, he must have him sworn and examined as other witnesses.\\\"\\nThe bill of exceptions, therefore, stating that it contains all the evidence, we must so regard it, notwithstanding it appears that the jury were sent to and viewed the place where the facts occurred.\\nWithout adverting to the evidence of each witness in particular, the evidence developed about the following state of facts: That defendant's road has been constructed and used daily on Ohio street, in said city, for several years; that Ohio street fronts on the river bank; is a long, straight street; that from the place where the accident occurred to the depot, is half a mile; that defendant's employees at place where the accident occurred could see one-half mile each way along the track; that plaintiff had lived at same place less than a year, on north side of Ohio street, about thirty-six feet from his door to center of the track; there are no houses on south side of Ohio street, but river bank, which at place where accident occurred is a wharf (graded for a wharf), and of course inclines off to the water; that at the time, plaintiff was at work on wharf-boat at the river, which was between Mulberry and West streets; Mulberry and West streets are two streets running from the river north, whilst Ohio street runs east and west along the river bank; Mulberry street is one square east of West street; the child of plaintiff had been in the habit of going to meet his father as he came to his meals, and crossing the railroad, and sometimes was sent to call his father to his meals; in doing so, he would necessarily cross the track of the road in front of his father's house; he had also been in the habit of waiting on or about a pile of plank for his father, and playing thereon; the plank-pile was on the south side of the railroad, about three feet south of the track, not high, probably two or three feet high; on the day of the accident the child was about the plank-pile, alone, as appears; his father was asleep on the wharf-boat; his mother in her house, which was not far west of Mulberry street ;v one or two cars (empty box cars) had been left on the track the evening or day before, nearly or quite opposite plaintiff's house; these ears had been loaded with corn, and were left there to be unloaded; the train of four or five cars was backing slowly up the track at about three miles per hour, to couple on to the cars standing on the track; the bell was not ringing, but the whistle had' been blown at the woollen factory, about two squares below the place of the accident; the train did not make much noise, only such as is usual in a train moving at that rate. It is proved by the fireman and engineer, that in backing up, the one was looking out at the north and the other at the south side of the'engine, looking east, the way the train was backing, to see that everything was clear; it is proved by the brakeman, Terrell, and by others, that shortly before the train came up to the standing cars, he got off the moving train on the north side and walked up on the north side, and rather in front, to couple the cars; that before the moving train came up, he stooped down and looked under the standing cars to see that there were no hogs under them; that he could see through under the train to the east end, and did not see the child, though if it had been standing near the track on the south side, and opposite the south-east wheels, he could not have seen it; that he coupled the cars, and then stepped from between and motioned the engineer to go on (backing up); that then the child's mother ran out of the house and screamed; he motioned the engineer to stop quick; the engine was reversed; the cars moved each way about a length or half length of one car after they were coupled; he ran round the east end of the car and picked up the child, and carried it into the house; both legs were badly crushed, and it was otherwise inj'ured, and died two days afterward; whilst the train was backing up, the conductor and another brakeman stood on top of the train, looking east, and could have seen the child, if on the' track, unless close behind the box cars on the track; just as the train came up to the standing cars, a brakeman jumped over on to the standing cars. Sometimes they ring the bell, and sometimes not, along there.\\nWe are of the opinion that the evidence does not make out the case as alleged in the complaint. It is stated in the complaint that the child was lawfully upon the track of the road, without any fault or negligence of the plaintiff. This allegation is untrue, according to the evidence. To allow a child of such tender years to be so exposed to danger is negligence; and such negligence as will prevent a recovery by the parent for an injury to it through the negligence of the company. The Lafayette, etc., Railroad Company v. Huff man, 28 Ind. 287; The Pittsburgh, etc., Railway Company v. Vining's Adm'r, 27 Ind. 513.\\nC. E. Walker, T. A. Hendricks, O. B. Hord, and A. W. Hendricks, for appellant.\\nJ. L. Wilson and E. R. Wilson, for appellee.\\nIt is further stated in the complaint, that the child was in full sight of the servants of the company operating the locomotive, etc. This allegation is not shown by the evidence to be true. It is also stated that the servants of the defendant knew that the child was standing near and behind the cars which had been left on the track. This was not proved, but the contrary, we think. It is stated that the servants of the company were within speaking distance of the child; that they could easily have informed him of the danger, or lifted him out of the way had they so desired. It appears that they did not know that the child was near, and therefore could not, of course, have spoken to him or lifted him out of the way.\\nIt being conceded, as it must be, according to the authorities, that the negligence of the parents contributed to its injury and death, by improperly allowing it to be upon the railroad track, it is well settled that the plaintiff cannot recover for the negligence of the company.\\nHad it been true, as seems to be alleged in the complaint, that the child was injured or killed purposely or wilfully, there might have been a recovery, notwithstanding the child was exposed to the danger by its own negligence or that of its parents. Such a case is not made out by the evidence. There is little, if any, evidence of negligence on the part of the servants of the defendant, and no evidence of purpose or wilfulness on their part. In our opinion, the court should have granted a new trial.\\nThe judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial.\"}"
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+"{\"id\": \"1398988\", \"name\": \"Pierce et al. v. The \\u00c6tna Life Insurance Company et al.\", \"name_abbreviation\": \"Pierce v. \\u00c6tna Life Insurance\", \"decision_date\": \"1892-04-27\", \"docket_number\": \"No. 15,561\", \"first_page\": \"284\", \"last_page\": \"285\", \"citations\": \"131 Ind. 284\", \"volume\": \"131\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:00:51.848899+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pierce et al. v. The \\u00c6tna Life Insurance Company et al.\", \"head_matter\": \"No. 15,561.\\nPierce et al. v. The \\u00c6tna Life Insurance Company et al.\\nDbainage \\u2014 Act of March 9th, 1875. \\u2014 Lien of Assessment Under. \\u2014 Priority of Mortgage Lien. \\u2014 Under the act of March 9th, 1875 (Acts of 1875, p. 97), an assessment for the construction of a ditch is not a lien upon the land benefited superior to a prior mortgage thereon. The act, indeed, contains no provision making the assessment a lien upon the land benefited.\\nFrom the White Circuit Court.\\nT. F. Palmer, for appellants.\\nG. W. Bushnell, E. B. Sellers and W. E. Uhl, for appellees.\", \"word_count\": \"516\", \"char_count\": \"2921\", \"text\": \"McBride, J.\\nA question meets us at the threshold of this case which renders unnecessary the consideration of several questions argued by counsel.\\nThis was a suit by the appellee for strict foreclosure of a mortgage on land, which was executed September 12th, 1877. The appellants claim a prior lien on the land by virtue of an assessment for the construction of a ditch. The petition for the location of the ditch was filed July 23d, 1878. The order establishing it was made by the board of county commissioners September 5th, 1878. The statute under which the ditch was constructed was that of March 9th, 1875; Acts of 1875, p. 97. That statute contained no provision declaring assessments liens upon the lands benefited. It provided that the assessments made should be placed upon the tax duplicate and collected as \\\" other taxes,\\\" etc. It did not, however, attempt to declare that they were taxes, and it is manifest they were not. Nor did it declare that they should have the lien of taxes. They were simply collected by the same processes and agencies as were used in the collection of taxes. As was said in State, ex rel., v. \\u00c6tna Life Ins. Co., 117 Ind. 251, we do not doubt the power of the Legislature to provide that such assessments shall be a lien on lands benefited, and, also, to provide that the lien shall have priority over preexisting mortgages. Indeed, there would see.m to be much reason for providing that a mortgagee, whose security is enhanced in value by the construction of a public drain, should have the lien of his mortgage subordinated to the lien of a fair assessment for the cost of its construction. Necessarily, however, before the rights of a lien-holder could be thus affected he would be entitled to his \\\" day in court,\\\" and the statute in question contains no provision for notice to lien-holders, or to.any persons except owners.\\nFiled April 27, 1892.\\nVe can only declare the law as it is, not as we may think it ought to be. If it is defective, so that the full measure of justice can not be meted out, the remedy must come from the law-making power. In addition to the case above cited, see on the question as to the relative priority of the lien of ditch assessments and mortgages, Cook v. State, etc., 101 Ind. 446.\\nThe rights of the appellants were clearly junior and subordinate to those of the appellee.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1408061\", \"name\": \"The Lake Erie and Western Railroad Company v. Young et al.\", \"name_abbreviation\": \"Lake Erie & Western Railroad v. Young\", \"decision_date\": \"1893-11-10\", \"docket_number\": \"No. 16,369\", \"first_page\": \"426\", \"last_page\": \"434\", \"citations\": \"135 Ind. 426\", \"volume\": \"135\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:49:15.292998+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Lake Erie and Western Railroad Company v. Young et al.\", \"head_matter\": \"No. 16,369.\\nThe Lake Erie and Western Railroad Company v. Young et al.\\nInjunction. \\u2014 Sufficiency of Complaint. \\u2014 Watercourse.\\u2014Culvert.\\u2014JBm- , bankments. \\u2014 Bailroad.\\u2014In an action by way of injunction to restrain a railroad company from constructing a stone arch culvert over a certain watercourse along its right of way and from constructing banks of earth on each side of such culvert, leaving no other means for the escape of water flowing in said stream save through said culvert, the complaint is sufficient, which shows that the culvert would be insufficient as a passage way of the water in said stream during or dinary or heavy r\\u00e1infalls, causing the water to be dammed up and to overflow lands, destroying crops and fences, and that such damage will be continuous from year to year, and that if such culvert and embankment should be so constructed, plaintiffs would be compelled, in order to recover from defendant compensation for the damage thus sustained, to bring numerous suits against the company.\\nSame. \\u2014 Restraining Order. \\u2014 Modification of. \\u2014 A temporary restraining order may be so modified as to protect the rights of all the parties affected thereby.\\nFrom the Madison Circuit Court.\\nJ. W. Lovett, S. M. Keltner, F. S'. Foote and W. E. Hackedorn, for appellant.\\nE. E. Hendee, for appellees.\", \"word_count\": \"2538\", \"char_count\": \"14458\", \"text\": \"Howard, J\\nThe appellant's railroad extends along its right of way through the lands of appellees, crossing Lilly creek, a natural stream of water, on trestle work about thirty feet high and three hundred and twenty feet long.\\nAppellant being about to fill up this trestle work with earth, except a space to be occupied by a stone arch or culvert w-ith an opening twelve feet wide and ten feet and five inches high in the arch, appellees brought suit to enjoin the work, claiming that the arch would be insufficient for the passage of the waters of Lilly creek, and that great, continuous, and irreparable injury would be done appellees by so impeding the flow of the waters.\\nA temporary restraining order was granted appellees on their petition.\\nA motion to dissolve this order was overruled, as was also a demurrer to the complaint.\\nThe appellant answered by way of a plea in confession and avoidance, and also by a general denial.\\nA demurrer to the special paragraph of answer having been overruled, the appellees replied by a general denial.\\nA motion by appellant objecting to the trial of the cause by a jury, or to the submission to a jury of any question of fact involved in the issues, was overruled by the court.\\nA jury having been impanelled, the court, of its own motion, submitted certain interrogatories to the jury to find the facts for the information of the court. The jury returned their answers to the interrogatories as follows:\\u2014\\n\\\"1. Will the culvert constructed by the defendant be sufficient to pass the water during the rainy seasons of the year, in times of ordinarily heavy rainfalls? Ans. No. Francis Watkins, Foreman.\\n\\\"2. If you say no to question No. 1, statewhat injury, if any, will be done to the lands of the plaintiffs; state fully the character and extent of such injury. Ans. That by the further backing up of the water on said lands, the plaintiffs' said lands will be damaged, their fences will be destroyed, and the other improvements upon said real estate will be injured by the water thereon, and their growing crops will be drowned out. Plaintiffs will receive great and irreparable injury, of such as we can not estimate in dollars and cents, and that the damages thereon will be continuous from year to year.\\n\\\"Francis Watkins, Foreman.\\\"\\nPending the finding and decision of the court, the restraining order was so modified as to permit the filling up of the trestle work with earth, except that, in addition to the culvert, another opening, not less than fifteen feet in width on the bottom, at the natural level, should be left free of earth.\\nThe court, at the request of the appellant, made its finding of facts and conclusions of law thereon, finding the facts in favor of the appellees, and found, as conclusions of law upon the facts found, that the appellees \\\"are entitled to have the injunction and restraining order hereinbefore granted and modified, made perpetual.\\\"\\nA decree was entered in accordance with the finding.\\nThe errors assigned and discussed by counsel have reference to the sufficiency of the complaint, and to the finding of facts, and conclusions of law.\\nThe appellant contends that the complaint shows that a right of action had not accrued, and, therefore, that a demurrer to it should have, been sustained. We think that counsel have misapprehended the nature of the complaint. This is not an action for damages simply, but a suit for injunction to prevent threatened damages.\\nThe case of Sherlock v. Louisville, etc., R. W. Co., 115 Ind. 22, upon which appellant relies, was an action seeking various forms of relief for injury to land, amongst them being damages for overflow of the land caused by a defective construction of the defendant's railroad bridge. It was said in that case: \\\"That the right of the plaintiff was to have his land free from the overflow, and to recover the damages resulting therefrom; and that the wrong of the railway company was the negligent construction and maintenance of the bridge.\\\" And the court held that it was not shown in the answer that the railroad company had a prescriptive right to flood the plaintiff's land, or that he had any knowledge that the bridge would flood the land, or acquiesced in such flooding. It did not therefore appear that the action was not brought in good time, and the answer of the company was held bad. In so far as that case has any bearing upon the case before us, we think it is against the contention of the appellant.\\nThe material averments of the complaint, so far as they need be set out here, are: That the defendant is the owner of and operating a railroad which runs over and through plaintiff's lands, where it crosses a natural stream of water known as Lilly creek, along which stream there flows a large amount of water during the seasons of the year when there is the most rainfall; that when said railroad was constructed in 1875, it was built across said stream on said land on trestle work, about thirty feet high, the trestles being fifteen feet apart, and extending out on each side of said stream until the entire bridge of trestle work was three hundred and twenty feet long, thus leaving full and free opening for all the water coming down said stream; that the amount of water coming down said stream in times of heavy rainfall, and during the wet seasons of the year, is such that the high water mark on said trestle work bridge is ten feet above ground, and extends to a width of the entire length of said trestle work, and ranging in depth from five to ten feet, and that it is not, and has not, been unusual for the water during the rainy season to run that high; that the defendant, at the commencement of this suit, had adopted plans for, and commenced to construct, a stone arch culvert for said stream, under said railroad, with an opening twelve feet wide and ten feet five inches high in the arch, and to fill all the space then and now occupied by said trestle work with a bank of earth, so that no opening would remain for the water coming down the stream save and except that of said stone arch culvert; that since the commencement of this suit said culvert has been constructed, as aforesaid; that said defendant is now proceeding to, and is about to, fill up the intervening space under and along said railroad track where the trestle work now is, with an earth embankment, entirely closing up the passage way for the water, save and except said stone arch culvert; that during the rainy seasons of the year, in the fall, winter, and spring, and during the times of ordinary rain falls, especially in times of heavy rain falls, the water flows, and. will flow, down said stream in such amounts that said stone arch culvert will be wholly insufficient to carry away said water under said railroad; and by reason of the construction of said culvert and the filling in of the embankment, the water coming down the stream will be impeded in its flow, dammed up and backed upon the lands of the plaintiffs; th\\u00e1t said lands are all farming lands, subject to cultivation in annual crops, and to pasture, and as such are used by plaintiffs, and that there are situated on said lands fences and other improvements necessary in the use and occupancy of said real estate; that by the backing up of the water as aforesaid on baid lands, the plaintiffs' said lands will be damaged, their fences will be destroyed, and other improvements upon said real estate will be injured by the water thereon, and their growing and annual crops will be drowned out, injured and prevented from growing, and their grass lands thereon will be wholly unfit for use; and by reason of the facts aforesaid the plaintiffs will receive great and irreparable injury, of such character as can not be estimated and measured in money damages, and that the damage will be continuous from year to year, and that plaintiffs would be compelled, in order to recover from defendant compensation for the damage thus sustained, to bring numerous suits against defendant.\\nWe think this complaint was sufficient for the re-) straining order prayed for to prevent the threatened injury.\\nIn High on Injunction, section 12, it is laid down as a general rule that whenever the rights of a party aggrieved can not be protected or enforced in the ordinary course of proceedings at law, except by numerous and expensive suits, a court of equity may properly interpose and afford relief by injunction.\\nIn section 23, of the same work, the author says that the appropriate function-of the writ of injunction is to afford preventive relief only, and not to correct injuries which, have already been committed. It is for the prevention of a future injury actually threatened, and to prevent the perpetration of a legal wrong for which no adequate remedy can be had in damages.\\nIn the case of the Mohawk Bridge Co. v. Utica, etc., Co., 6 Paige, 554,Chancellor Walworth said: \\\"If the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will not refuse its aid for the protection of the \\\"Complainant's rights, by injunction,'on the ground that there is a bare possibility that the anticipated injury from the noxious erection maj not happen.\\\"\\nThe erection of a mill dam, as .said in High on Injunction, section 839, in such a manner that the inundation caused by the back flowage of the water lessens the value of complainant's land, destroys his timber and imperils the health of the neighborhood, will be enjoined.\\nIn Stone v. Roscommon Lumber Co., 59 Mich. 24, it was held, that injunction would lie to, prevent the flooding of the plaintiff's land, if it appeared that the threatened injury were of a character to render the property comparatively worthless for the purposes to which it was best adapted, and for which it was intended by the owner, without regard to the amount of the immediate damage sustained; that the fact that annual freshets in some degree impeded the growth of hay on the land would not relieve the defendant from liability for erecting a dam in such a manner as to flood such land, thereby destroying its value for the purposes to which it was best adapted; that a person will not be allowed to destroy the property of another by a series of threatened trespasses, and then remit him to his remedy at law to recover damages sustained, but equity will interfere to enjoin the threatened injury at any period of its perpetration, and thus prevent a multiplicity of suits.\\nBemis v. Upham, 13 Pickering (30 Mass.), 169, was a case where an injunction was sought to prevent the keeping up of a mill dam, which set back the water so as to overflow the plaintiff's dam higher up. It was admitted by the defendant in that case that the grievance complained of was a nuisance, but it was objected that there was an adequate and complete remedy at law. The court held that a decree in equity was the only sufficient remedy, inasmuch as such decree could extend to all parties having an interest, and bind them effectually forever; that, instead of requiring an entire prostration of the nuisance, the decree might be modified and adapted to the just rights of the parties. It might order an abatement in part, determine the height to which the dam might he kept, the terms on which it might be kept up, the mode of using the water, and other incidents.\\nSo, in the case before us, the restraining order forbidding the filling up of the trestlework with earth might be, and, in fact, was, so modified that the appellant might be allowed to fill up the whole space except that occupied by the culvert, and an additional space of fifteen feet, and thus adapt the decree to the just rights of the parties, giving to the appellees all the relief necessary to allow the floods to escape readily, and so protect their land from the overflow, and at the same time en-. able the appellant, with the least inconvenience, to put its road in good condition.\\nWe think the relief by injunction was the only adequate and complete remedy, and that the complaint is good for that purpose. McGoldrick v. Slevin, 43 Ind. 522; Clark v. Jeffersonville, etc., R. R. Co., 44 Ind. 248; Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Owen v. Phillips, 73 Ind. 284; Patoka Township v. Hopkins, 131 Ind. 142; Wilmarth v. Woodcock, 58 Mich. 482; G. H., etc., R. W. Co. v. Tait, 63 Tes. 223; Moore v. Chicago, etc., R. W. Co., 75 Iowa, 263; 10 Am. and Eng. Encyc. of Law, 835, 843, 977.\\nFiled Nov. 10, 1893.\\nUnder the assignment of error, that the court erred in its finding of facts and conclusions of law, counsel argue only that the evidence does not sustain the finding. The record shows that there was ample evidence in support of the allegations of the complaint and the findings of the court. Under numerous decisions, this is sufficient, even though there were certain computations' offered in evidence to show that the culvert might carry the water. For such conflict of testimony, if it be such, we can not disturb the findings. The court seems to have arrived at a just and equitable adjustment of the rights of both parties.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"1411800\", \"name\": \"The Western Union Telegraph Company v. Hopkins\", \"name_abbreviation\": \"Western Union Telegraph Co. v. Hopkins\", \"decision_date\": \"1874-11\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"227\", \"citations\": \"49 Ind. 223\", \"volume\": \"49\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:28:36.222634+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Western Union Telegraph Company v. Hopkins.\", \"head_matter\": \"The Western Union Telegraph Company v. Hopkins.\\ngiiEAPrijra.\\u2014Demurrer to Complaint does not go to Damages.\\u2014Damages.\\u2014In an. action for the breach of a contract by \\u25a0 defendant, whereby, it is alleged, \\\" plaintiff suffered damages in the loss of advantage he otherwise would have \\u2022 realized from other contracts made by him, a demurrer to the complaint, - wherein the contract between plaintiff and defendant'and the breach thereof by defendant are averred does not raise the question of the liability of defend- \\u25a0 ant for consequential damages, by reason of the loss of such advantage suffered by plaintiff. The contract with defendant and its breach by him being alleged, the amount of damages is not to be decided by demurrer.\\n\\u25a0'Same.\\u2014Copy' of Written Instrument.\\u2014Demurrer.\\u2014Statute of Frauds.\\u2014Under - the code,- in an action upon a contract which is not alleged to be in writ- . ing, and the original or a copy of which is not filed with the complaint, the presumption is, that the contract is not in writing; andif the contract is such as is, by the statute, required to be in writing, the objection may be taken by demurrer.\\nSame.\\u2014Contract.\\u2014Action On.\\u2014Telegraph Despatch.\\u2014Eoidmee.\\u2014In an action . against a telegraph company for failure to transmit a despatch, by reason \\u25a0of which the plaintiff lost the advantage of certain contracts made by him. with other parties, the action is not founded on such contracts, but on; the contract of the company to send and deliver the despatch; therefore said contracts with other parties may be proved, under the allegations of' the complaint, to have been in writing.\\nPbactice.\\u2014Excessive Damages.\\u2014Motion for New Trial.\\u2014That the damages assessed by the court upon the trial were excessive, cannot be presented for the consideration of the Supreme Court, except by making it a reason for a new trial in the court below.\\nUviDEirCE.\\u2014Telegraph Despatch.\\u2014Secondary Evidence.\\u2014In an action against a telegraph company for damages for failure to transmit a despatch, the original despatch delivered to the operator must be given in evidence, or if not its absence must be properly accounted for before/secondary evidence thereof can be admitted.\\nFrom the Laporte Circuit Court.\\nW. JET. Calkins, for appellant.\\nL. A. Cole and J. A. Thornton, for appellee.\", \"word_count\": \"1615\", \"char_count\": \"9299\", \"text\": \"Downey, J.\\nHopkins, the appellee, brought his \\u2022 action-against .the telegraph company, to recover damages alleged to have been sustained by him, by reason of the negligence of the appellant in failing to transmit and deliver a message entrusted to it by him for that purpose, at its office in Chicago, in the State of Illinois. The message was to have been transmitted from Chicago to Michigan City, in this State, and was as follows :\\n\\\" To II. M. Hopkins: Tell Kellogg I take the brick. Home to-morrow. (Signed) J. T. Hopkins.\\\"\\nThe complaint was in two paragraphs, to each of which a demurrer was overruled, whereupon the appellant filed an answer of general denial.\\nThere was a trial by the court, which resulted in a finding for the appellee, his damages being assessed at two hundred and fourteen dollars and twenty cents, and a judgment in his favor for that amount, the motion of the appellant for a new trial having been overruled. The proper exceptions were reserved at each stage of the case, and the evidence is in the record by a bill of exceptions.\\nThere are but two errors assigned, viz.:\\n1. Overruling the demurrers to the several paragraphs of the complaint.\\n2. Overruling the motion- of the appellant for a new trial.\\nWe will consider these in their order; and, first, were the demurrers correctly overruled ?\\nThe case made by the first paragraph of the complaint is this: Hopkins, the appellee, had entered into a contract with one Kellogg, at Michigan City, Indiana, for the purchase, by the former from the latter, of the brick in a certain kiln, estimated at one hundred and fifty thousand, more or less,- at an agreed price of ten dollars per thousand, Kellogg agreeing to hold the brick for Hopkins till the close of a certain day, during which time it was to be optional with Hopkins whether he would take them or not j that Hopkins on that day went to Chicago and made a contract for the sale of the same brick to certain parties there at an advanced price; that thereupon, at about three o'clock in the afternoon, he went to the office of the appellant in Chicago, and delivered to its operator there the message hereinbefore referred to for transmission to his brother and agent at Michigan City, and paid the charges for its transmission; that appellant, by reason of the negligence and carelessness of its servants, failed to transmit and deliver said message until noon of the next day; that in consequence of such failure Kellogg sold the brick to other parties, though he could and would have delivered them to the appellee, had said message been delivered at the proper time; that, by reason of said negligence and failure, the appellee was deprived of the advantage he would otherwise have realized from his contracts, and was thereby damaged five hundred dollars.\\nThe second paragraph differs from the first only in treating the arrangement between the appellee and Kellogg as a proposition by the latter to sell the brick to the former, ancl that the message alluded to was the acceptance of that proposition, attempted to be communicated to Kellogg through the instrumentality of the appellant.\\nCounsel for the appellant says : \\\" Our first objection to each count of the complaint is, that it does not allege that the appellee was compelled to or became liable to pay' any damages, or was otherwise injured in the alleged failure of the appellant to deliver the message, except in the loss of speculative gains and profits, which, under certain contingencies, he might have made. This the law does not allow.\\\"\\nWe do not deem it necessary to consider this question in deciding the demurrer.\\nThe complaint alleges the making of a contract by the defendant and the violation of it. This shows that the plaintiff has a cause of action for some amount in damages, and what that amount shall be is not a question tobe decided upon a demurrer to the complaint.\\nThe next objection urged is, \\\"that the supposed contract alleged between the appellee and Kellogg is within the statute of frauds, and could not have been enforced by either against the other.\\n\\\" No writing is filed with the complaint, nor is any writing referred to therein; this court will, therefore, presume that the contract was verbal.\\n\\\" Neither is it alleged that anything was paid as earnest to bind the bargain, or that the property, or any part of it, was delivered by Kellogg to the appellee; and the amount or value of the subject of the contract largely exceeds fifty dollars, to wit, one hundred and sixty-three thousand brick at ten dollars per thousand.\\\"\\nWe think this position untenable. At common law, where a, contract required by the statute of frauds to be in writing was declared upon, it was unnecessary to allege in the declaration that it was in writing. But it has been held, under the code, where a contract in writing is declared on, the original or a copy' of it must be filed with the complaint; and if it is not alleged to be in writing, and the original or a copy is not filed, the presumption, arises that the contract is not in writing; and if the contract is such as is required by the statute to be in writing, the objection may be taken by demurrer. But if the contract is such as might be valid without being in writing, as a con tract for the sale of goods, where there is part payment, etc., the objection cannot be raised by demurrer. Harper v. Miller, 27 Ind. 277.\\nThe action in the case under consideration is not on the contract for the sale of the brick, but is on the contract to send, and deliver the despatch. The contract with reference to the sale of the brick may be proved, under the allegations of the complaint, to have been in writing, if that is necessary, although that fact is not alleged. Hence, this objection to the complaint must be disallowed.\\nThe following are the grounds for a new trial urged in the 'circuit court:\\n1. The finding of the court is contrary to the evidence.\\n2. It is contrary to law.\\n3. The court erred in admitting the paper to be read in evidence, purporting to be a message to one H. M. Hopkins, it being the only one introduced in evidence, over the objection of the defendant, etc.\\nCounsel for appellant discusses, at considerable length, the question as to the amount of damages awarded by the court. As the finding of the court was not questioned on this ground -by the motion for a new trial, we cannot consider .the question.\\nThe last reason for a new trial should have prevailed. The original telegram or despatch should have been used as evidence, or its absence properly accounted for, before secondary evidence was allowed. Durkee v. The Vermont Central R. R. Co., 29 Vt. 127; Williams v. Brickell, 37 Miss. 682; Matteson v. Noyes, 25 Ill. 591.\\nIn the first named case, the question is discussed as to what is the original. In the case under consideration, however, there is no doubt but that the despatch delivered to the operator was the original.\\nThe judgment is reversed, with costs, and the cause remanded for a new trial.\"}"
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+"{\"id\": \"1414684\", \"name\": \"Turner et al. v. Horton\", \"name_abbreviation\": \"Turner v. Horton\", \"decision_date\": \"1874-11\", \"docket_number\": \"\", \"first_page\": \"254\", \"last_page\": \"254\", \"citations\": \"48 Ind. 254\", \"volume\": \"48\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:21:35.573271+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Turner et al. v. Horton.\", \"head_matter\": \"Turner et al. v. Horton.\\nFrom the Jackson Circuit Court.\\nP. M. Patri\\u00f3le, T-V. W. Herod, and F. Winder, for appellants.\\nF. Q. Devore, for appellee.\", \"word_count\": \"47\", \"char_count\": \"262\", \"text\": \"Downey, J.\\nThere is no assignment of errors in this case. The appeal is dismissed, at the costs of the appellants.\"}"
\ No newline at end of file
diff --git a/ind/1430551.json b/ind/1430551.json
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+"{\"id\": \"1430551\", \"name\": \"Doe on the Demise of Rush v. Kinney and Another\", \"name_abbreviation\": \"Doe v. Kinney\", \"decision_date\": \"1851-11-25\", \"docket_number\": \"\", \"first_page\": \"50\", \"last_page\": \"52\", \"citations\": \"3 Ind. 50\", \"volume\": \"3\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:19:38.004933+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Doe on the Demise of Rush v. Kinney and Another.\", \"head_matter\": \"Doe on the Demise of Rush v. Kinney and Another.\\nA testator disposed of liis estate by will, as follows: \\u201cI, J. R., do make and publish this my last will and testament in manner and form following, that is to say, after all my just debts are paid, I give and bequeath to my wife, Ann, a certain grey mare, &a., as also all my real and personal estate during her natural life, provided she should not marry, and, at her death, to be equally divided between my brothers and sisters. But, in case she should marry, then the one-half of my estate to be divided equally between my brothers and sisters, or their heirs; and the other half I bequeath to my said wife,\\u201d &o. Held, that upon her subsequent marriage, she took an estate in fee in the testator\\u2019s real property.\\nWhere a will is free from ambiguity, and the testator\\u2019s intention is so manifested that, by giving the language employed by him its ordinary and legal signification, no doubt remains of the quantity or duration of the estate devised, a Court will not inquire into the motives which might have influenced the testator, in order to prove or infer that he meant to devise a different estate.\\nTuesday, November 25.\\nERROR to the Fountain Circuit Court.\", \"word_count\": \"1002\", \"char_count\": \"5624\", \"text\": \"Smith, J.\\nEjectment against the defendants in error for a certain tract of land in Fountain county. Judgment for the defendants.\\nBoth parties claimed under the will of Josiah Rush, who died in 1835, seized of the premises in controversy. The will is as follows:\\n\\\" I, Josiah Rush,\\\" \\\" do make and publish this my last will and testament, in manner and form following, that is to say, after all my just debts are paid, I give and bequeath unto my beloved wife, Ann Rush, a certain grey mare that I have lately got of Joshua Walker, as also all my real and personal estate, during her natural life, provided she should not marry, and at her death to be equally divided between my brothers and sisters. But, in case she should marry, then, and in that case, the one-half of my estate to be divided equally between my brothers and sisters, (or their heirs,) and the other half I bequeath to my said beloved wife, Ann Rush, whom I hereby appoint my executrix, and Jacob Kinney my executor.\\\"\\nAnn Rush, the widow, intermarried with one Alexander, and, with her said husband, made a conveyance of one undivided half of said premises. She and her said husband are both dead.\\nThe defendants claim under the conveyance of Alexander and wife, and the lessor of the plaintiff is one of the brothers of the testator.\\nThe plaintiff requested an instruction to be given that Ann Rush, the widow of the testator, took an estate for life only in one-half of the real estate devised, in the event of her marriage. This instruction was refused, and the Court instructed the jury that she took a fee-simple estate under the will.\\nThe only question presented is, whether the instruction given was right. We think it was. The word \\\" estate,\\\" in the last sentence of this will, is used to describe the property which the testator meant to devise, and, in such cases, it is well settled that the use of this word in a will, unaccompanied by any restriction or limitation, suffices to convey all the estate the testator had. Doe v. Harter, 7 Blackf. 488.\\nThe plaintiff contends that it is inconsistent with the motives which influence the conduct of men, to suppose the testator meant to give his widow a more valuable estate if she married again than if she remained single, and, therefore, it should be inferred from the whole will, that it was his intention to give her a life estate only in one-half of his real property, in case of her marriage. But we cannot, in this case, resort, with any propriety, to such an argument as this, for the purpose of ascertaining the intentions of the testator. It is true, when there is any inconsistency in the different clauses of a will, if the intention of the testator can be inferred from the whole will taken together, that intention should govern; and when there are any latent ambiguities, by reason of which the intention is not manifested or expressed with certainty, the uncertainty may be removed by evidence of extrinsic facts, or, in some cases, perhaps, by a resort to arguments founded on the motives which usually influence human conduct. But when there is no such ambiguity, and, as in this case, the intention of the testator is mani fested, so that by giving the words used their ordinary and legal signification, no doubt remains as to the quantity or duration of the estate devised, it would be contrary to all the established rules and precedents to permit an inquiry as to the motives which might have influenced the testator, for the purpose of proving or inferring that he meant to devise a different estate. Judy v. Williams, May term, 1851.\\nW. H. Mallory, for the plaintiff.\\nD. Brier, for the defendant.\\nIt might, indeed, be a question whether the estate which the widow took, under this will, in the event of her marriage, was, in fact, more valuable than the provision made for her in case she remained single, but that is immaterial.\\nPer Curiam.\\nThe judgment is affirmed with costs.\\n) The word \\\"estate,\\\" in the operative part of a will, passes not only the corpus of the property, but all the interest of the testator in it, unless controlled by the context; but where that word is not used in the operative clause of the devise, but is introduced into another part of the will referring to it, it cannot be construed to extend the meaning of the operative clause, whether prior or subsequent. Doe d. Burton v. White, 1 Exch. R. 526.\\n) 1 Carter's Ind. R. 449.\"}"
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diff --git a/ind/1448447.json b/ind/1448447.json
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+"{\"id\": \"1448447\", \"name\": \"Rutherford, Administrator, v. Tevis\", \"name_abbreviation\": \"Rutherford v. Tevis\", \"decision_date\": \"1854-12-11\", \"docket_number\": \"\", \"first_page\": \"530\", \"last_page\": \"533\", \"citations\": \"5 Ind. 530\", \"volume\": \"5\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:42:47.852115+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rutherford, Administrator, v. Tevis.\", \"head_matter\": \"Rutherford, Administrator, v. Tevis.\\nAssumpsit by A. against B., administrator of C. The declaration contained four counts. The first alleged that A., in 1841, purchased of O. a tract of land, for 2,000 dollars, for which A. gave his notes, and that thereupon C. executed a bond for a conveyance; that A. took possession, &c., held the land for two years, and made improvements on it worth 1,000 dollars; that in 1844, A. and C. entered into an agreement to rescind the contract of sale, A. stipulating to surrender possession of the premises and cancel the bond, and O. agreeing to give up the notes and pay for the improvements; that accordingly G. obtained possession of the land and bond; but that no payments had been made for the improvements, either by G. or by B. bis administrator. The second count was for goods sold; the third for money paid; and the fourth for work and labor. Nine pleas. The 1st, 2d, 7th and 9th led to issues of fact. The 3d, 4th and 5th were pleas of the statute of limitations. The 6th, which was to the first count, alleged that C. never executed the title-bond mentioned in that count. This plea was verified by oath. The 8th averred that A. did not, within one year after B.\\u2019s appointment as administrator, file in the clerk's office a statement of his claim, nor at any time before the commencement of the suit, notify B. of said claim. Beplication to the 3d, 4th and 5th pleas, that G. died on the 29th of January, 1849, which period was within six years after he made the promises sued on, and that B. was appointed administrator on the 10th of March following; that during one year of the time which intervened between the promises and G.\\u2019s death, he was continuously a non-resident and constantly absent from the state and the jurisdiction of her Courts; that from the time of the promises to his decease, exclusive of the period of non-residence, only three years and eleven months had elapsed; and that just seven months intervened between the 10th of March, 1850, (the date at which said administrator was liable to be sued in the case), and the day on which the suit was actually brought.\\nHeld, that demurrers were correctly sustained to the 6th and 8th pleas.\\nHeld, also, that the replication to the 3d, 4th and 5th pleas was sufficient on general demurrer.\\nA trial without an issue is erroneous.\\nAPPEAL from the Shelby Circuit Court.\\nMonday, December 11.\", \"word_count\": \"1025\", \"char_count\": \"5895\", \"text\": \"Davison, J.\\nTevis sued Rutherford, administrator of Alexander Brown, in assumpsit. The declaration contains four counts. The first alleges that Tevis, in the year 1841, purchased of Brown two hundred acres of land in Shelby county, for 2,000 dollars, for which he gave his notes, and thereupon Brown executed a bond for a conveyance; that Tevis took possession under his purchase, held the land for two years, and made improvements on it worth 1,000 dollars; that in the year 1844, an agreement to rescind the contract of sale was entered into between the parties,, whereby Tevis stipulated that he would surrender up possession of the premises and cancel the bond; and that Brown, on his part, agreed to give up the notes and also pay for the improvements; that in accordance with the agreement, Brown obtained possession of the land and bond; but no payments have been made for the improvements, either by him in his lifetime, or by said administrator since his death. The second count is for goods sold; the third for money paid; and the fourth for work and labor.\\nThere were nine pleas. The first, second, seventh and ninth led to issues of fact. The third, fourth and fifth were pleas of the statute of limitations. The sixth plea, which was to the first count, alleged that Brown never executed the title-bond mentioned in that count. This plea was verified by oath. The eighth averred that Tevis did not, within one year after the appoinment of said administrator, file in the clerk's office a statement of his claim; nor did he at any time before the commencement of this suit notify him of such claim. Demurrers were correctly sustained to the sixth and eighth pleas. To the third, fourth and fifth, Tevis replied, that Brown died on the 29th of January, 1849, which period was within six years after he made the promises sued on, and Rutherford was appointed administrator on the 10th of March following; that during one year of the time which intervened between the promises and Brown's death, he was continuously a non-resident, and constantly absent from the state, and without the jurisdiction of her Courts; that from the time of the promises to his decease, exclusive of the non-residence, only three years and eleven months elapsed; and that just seven months intervened between the 10th of March, 1850, the date at which said administrator was liable to be sued in this case, and the day on which this suit was actually brought. So that excluding the period of non-residence, and the seven months, Tevis did within six years after the promises were made, commence this action, &c. The defendant demurred to the replication. The demurrer was overruled. Thereupon the cause was submitted to the Court for trial. The Court found for the plainti\\u00edf. A new trial was refused, and judgment rendered, &c.\\nIn point of form the replication is quite objectionable, and would have been so held on special demurrer. We think, however, its averments sufficient to exclude the case from the operation of the statute of limitations. R. S. 1843, c. 40, s. 110.\\nT. A. Hendricks, for the appellant.\\nM. M. Ray, for th\\u00e9 appellee.\\nBut there is a fatal error in the record. The cause was tried without a rejoinder to the replication. It alleges facts material to a proper decision of the cause; yet they remain unanswered. This was, in effect, a trial without an issue; and such a trial has been repeatedly adjudged erroneous.\\nPer Curiam.\\u2014 The judgment is reversed with costs. Cause, remanded, &e.\"}"
\ No newline at end of file
diff --git a/ind/1448523.json b/ind/1448523.json
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+"{\"id\": \"1448523\", \"name\": \"Depew v. The Board of Trustees of the Wabash and Erie Canal\", \"name_abbreviation\": \"Depew v. Board of Trustees\", \"decision_date\": \"1854-05-22\", \"docket_number\": \"\", \"first_page\": \"8\", \"last_page\": \"12\", \"citations\": \"5 Ind. 8\", \"volume\": \"5\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:42:47.852115+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Depew v. The Board of Trustees of the Wabash and Erie Canal.\", \"head_matter\": \"Depew v. The Board of Trustees of the Wabash and Erie Canal.\\nThere are two classes of streams within and bordering upon Indiana, which are called navigable streams and public highways: one (which has generally been declared navigable by the legislature, but which the boards of county commissioners, by the B. S. 1852, are empowered to declare so,) is only nayigable for certain kinds of craft, certain distances within the state, and is not visited by vessels coming from and going to navigable waters of other states by continuous voyages; the other consists of those which are navigable in fact for vessels coming out of or returning into the navigable waters of other states by continuous voyages.\\nOver the former class the state has exclusive jurisdiction, and may, for the public good, authorize obstructions at pleasure; and (except so far as private property is taken or injured) no action can be sustained therefor.\\nOver the latter class of streams, so far as they are within her limits, the state, in the absence of legislation by congress, has the same jurisdiction; but congress has the right, under s. 8, art; 1, of the constitution of the United States, to interpose, and divest the state of this jurisdiction.\\nThe constitution of the United States superseded the ordinance of 1787, so far, at least, as to abrogate all restraints upon the powers of the states formed out of the Northwestern Territory which did not exist upon the powers of the original states.\\nThe provision in the ordinance of 1787, that the navigable waters leading into the Mississippi, &c., shall be free, &c., was superseded by the adoption of the constitution of the United States.\\nBut congress has, by subsequent acts, so far recognized and adopted that provision as to give it the force of an existing law.\\nA state has no right, now, seriously to obstruct the navigation of streams which are channels of inter-state trade.\\nRaccoon creek, in Parke county, is not an inter-state navigable stream.\\nERROR to the Parke Circuit Court.\\nMonday May 22.\", \"word_count\": \"1689\", \"char_count\": \"10041\", \"text\": \"Perkins, J.\\nCase to recover damages for the obstruction of a navigable stream.\\nDepew, the plaintiff, alleges that Raccoon creek, in Parke county, Indiana, is, and has been, a navigable stream for boats, &c.; that he had been accustomed to navigate it, and make profits thereby, till, &c., when the trustees of the Wabash and Erie canal obstructed it, &c.\\nThe trustees pleaded that the legislature of the state located the Wabash and Erie canal; that they (the trustees) constructed said canal, by authority of law, upon the location made by the state; and that in doing so, it became necessary to cross said Raccoon creek by an aqueduct, which constitutes the obstruction complained of.\\nDemurrer to this plea overruled, and final judgment for the defendants.\\nThis case leads to the examination of the subject of navigable rivers.\\nThere are two classes of. streams within, and bordering upon, Indiana, which are called navigable streams and public highways. One of these classes is only navigable for certain kinds of craft, certain distances within the state, and is not visited by vessels coming from and going to, by continuous voyages, navigable waters of other states.\\nThis class of streams has been generally declared navigable by the legislature. At present, county commissioners, in the several counties, are vested with the power of declaring streams navigable. R. S. 1852, vol. 1., p. 373. These streams are highways for trade and commerce within the state.\\nThe other class of navigable streams is composed of those which are navigable, in fact, for vessels coming out of, and returning into, by continuous voyages, the navigable waters of other states. These streams are highways for commerce between the states. 4\\nOver the first of the above classes the state has exclusive jurisdiction; and may authorize obstructions of the streams of which it is composed, at pleasure, for the public good, and no action can be sustained on account of an obstruction so authorized; but if private property is taken or injured, it must be paid for as in other like cases. In the act of 1852, above referred to, the state has, accordingly, enacted, that \\\"the declaration of navigable water courses as navigable, by said county board, shall not affect any mill, nor any dam, aqueduct, viaduct, bridge, or machinery, which has been, or may hereafter be established on said stream.\\\"\\nOver the streams composing the second class, the state has, also, in the absence of congressional interference, jurisdiction equally supreme, so far as they are within her territorial limits. Wilson v. The Blackbird Creek Marsh Co., 2 Peters (U. S.) R. 245.\\u2014The State of Pennsylvania v. The Wheeling Bridge Co., 13 Howard (U. S.) R. 518.\\u2014Rundle et al. v. The Delaware and Raritan Canal Co., 14 id. 80.\\nBut the national legislature may interfere and deprive the state of this jurisdiction. By the constitution of the United States, art. 1., section 8, congress has power \\\"to regulate commerce with foreign nations, and among the several states, and'with the Indiam, tribes.\\\" This power to regulate commerce among the states, includes the right to keep open and free the natural channels of that commerce. Gibbons v. Ogden, 9 Wheat. 1.\\u2014The State of Pennsylvania v. The Wheeling Bridge Co., supra. When congress exercises this power, therefore, the previous power of the state to shut up, or materially obstruct said channels, is suspended.\\nHas congress exercised the power ?\\nOn the 13th of July, 1787, prior to the adoption of the constitution of the United States, the celebrated ordinance for the government of the territory northwest of the Ohio river was passed, containing, among a great many other stipulations, one providing that the navigable waters, &c., should be free, &c.\\nAfterwards, in September, 1787, was framed the constitution of the United States, which was subsequently ratified by the states, and which, as the states of the northwest entered into the confederacy under it, formed a new com pact of government for them, and being later than the ordinance, superseded it, so far, at least, as to abrogate all restraints upon the powers of the states formed out of said northwestern territory, not existing upon the powers of the original states; and so we understand the Supreme Court of the United States, in Pollard's Lessee v. Hagan, 3 Howard 212, to have unanimously decided. In other words, the states of this confederacy are equal under the constitution. Every thing that one has power to do, each has power to do, so far as restraint from prior compact, or the general government, is concerned.\\nBut, as has been said, congress has power, under the constitution, to regulate commerce between the states; and this power, as we have seen, includes that of keeping open and free the navigable rivers which are channels of this inter-state trade; and it is decided by the Supreme Court of the United States in Pollard's Lessee v. Hagan, and The State of Pennsylvania v. The Wheeling Bridge Co., supra, that congress has, by subsequent acts, so far recognized and adopted the provision of said ordinance of the 13th of July, 1787, in regard to navigable streams, as to give it the force of a subsisting law of the United States.\\nA state, then, cannot seriously obstruct the navigation of those streams which are channels of inter-state trade, as congress has interfered to regulate commerce upon them.\\nIt remains to inquire to which of the two classes of streams under consideration Raccoon creek, in Parke county, Indiana, belongs. The declaration does not inform us. It avers simply that said creek is navigable, at the place of obstruction in Pcurke county, for all the citizens; and the plea avers, and the demurrer admits, that said stream lies wholly within this state. If we resort to the map for information, indications do not favor the national character of this creek; and we are free to confess that our general information is not such as to enable us to say, historically, that Raccoon creek, in Parke county, Indiana, is an inter-state navigable stream. We have never yet heard of a vessel clearing from the port of New- Orleans, St. Louis, or Cincinnati, and discharging its cargo at a port or harbor on said Raccoon creek. Nor have we ever heard of congress making appropriations for the improvement of the navigation of said creek.\\nR. W. Thompson, for the plaintiff.\\nA. L. Roache, for the defendants.\\nWe will farther remark, that, in our opinion, it is not the policy of this state to enlarge the list of those streams that shall be held navigable within the power of congress; for by such enlargement she diminishes her own power over the waters of the state, and to the same extent cripples her action for its improvement. If every stream which may float a birch canoe, or, in a freshet, a raft of logs or a flatboat, is to be held a navigable stream within the power of congress, it will be impossible for this state to construct additional railroads, canals, or turnpikes, or continue those now in existence, as the bridges, &e., over them are, and will be, inevitable obstructions, and, consequently, nuisances, which must be removed, or, at great expense and inconvenience, modified in their structure. And for what good? In the early settlement of a country, before artificial highways are constructed, these small streams afford some temporary convenience; but they are infinitely inferior to such highways when constructed; and on their construction, these streams almost cease to be used by the public, and, hence, should not be held to be public highways, to be forever kept open to the great detriment of the public. If not regarded as highways legally, they may and would be used in a new country till artificial ways were constructed, and longer than that they would not be needed.\\nWe think Raccoon creek, in Parke county, is not an inter-state navigable stream; and that, hence, the state had a right to authorize its obstruction.\\nPer Curiam. \\u2014 The judgment is affirmed with costs.\"}"
\ No newline at end of file
diff --git a/ind/1452099.json b/ind/1452099.json
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+"{\"id\": \"1452099\", \"name\": \"Harriman v. Southam\", \"name_abbreviation\": \"Harriman v. Southam\", \"decision_date\": \"1861-06-01\", \"docket_number\": \"\", \"first_page\": \"190\", \"last_page\": \"191\", \"citations\": \"16 Ind. 190\", \"volume\": \"16\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:40:35.192328+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harriman v. Southam.\", \"head_matter\": \"Harriman v. Southam.\\nSaturday, June 1.\\nA title by deed implies a contract, or at least competent parties; and hence a deed to a person having no existence passes no title from the grantor.\\nThere never having been (according to the answer in this case) a corporation in this State, acting under color of authority, by the name of the \\u201cFort \\u2018 Wayne and Southern Railroad Company,\\u201d a conveyance to such supposed corporation did not divest the grantor of his title.\\nThe grantor is not estopped, in such case, to deny the existence of the corporation, as the doctrine of estoppel only applies to cases where there is an existing statute, known to the Courts, authorizing such corporation.\\nAPPEAL from the Henry Circuit Court.\", \"word_count\": \"524\", \"char_count\": \"3091\", \"text\": \"Perkins, J.\\nHarriman sued Southam to recover a tract of Tand. Harrimam owned the land in question in 1851, and conveyed it to the Fort Wayne and Soitthern Railroad Company for stock. A judgment was obtained against the company, the land sold on execution by virtue of it, and Southani became the purchaser.\\nAccording to the,answer, there never was a corporation in this Strife by the name of the '\\u2022Fort Wayne and Southern Railroad Company,\\\" acting under color of authority. The State v. Dawson et al., at this term.\\nHence, there was no grantee to receive the title attempted to be conveyed by Harriman. \\\"A title by deed implies a contract, or at least competent parties. A deed to a person having no existence is generally inoperative, and passes no title from the grantor.\\\" \\\"If a man grant his estate to an imaginary corporation, which exists only in his own mind, no title passes.\\\" Russell v. Topping, 5 McLean, 202.\\nThe doctrine of estoppel does not apply in this case. In Jones v. The Cincinnati Type Foundry Co., 14 Ind. 89, it is said, touching contracts with corporations:\\nC. B. Smith, W. J. Smith and If. L. Bundy, for the appellant.\\nJ. H. Mellett and E. B. Martindale, for the appellee.\\n. \\\" The doctrine of conclusive estoppel seems more properly-applied to eases involving the question of legality of organization, where the fact of an existing statute authorizing, in the given case, such corporation, is known to the Court, either by judicial notice, or actual evidence in the cause.\\\"\\nIn such cases, the power existing, the regularity of its exercise is admitted by the person contracting with the corporation. Here, there was no grant of power existing for the creation of the corporation pretended to be organized, and hence no even irregularly organized corporation.\\nThe consequence is, no title passed from Harriman, and the land still remains his.\\nPer Curiam.\\nThe judgment is reversed, with costs. Cause remanded for further proceedings.\\nThe averments of the answer, as to the corporate existence of the Fort Wayne and Southern Railroad Company, were as follows, viz., \\\" That the said Fort Wayne and Southern Railroad Company was at that time a corporation, organized under a special charter passed by the Legislature of the State of Indiana in the year 1849, and organized on the first day of June, 1852, to which the plaintiff might legally convey.\"}"
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diff --git a/ind/1456397.json b/ind/1456397.json
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index 0000000000000000000000000000000000000000..71f128a6ec9aff9bb399a254be51ccb2c614f973
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+"{\"id\": \"1456397\", \"name\": \"Hoss v. The State\", \"name_abbreviation\": \"Hoss v. State\", \"decision_date\": \"1862-05\", \"docket_number\": \"\", \"first_page\": \"349\", \"last_page\": \"350\", \"citations\": \"18 Ind. 349\", \"volume\": \"18\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:43:01.907466+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hoss v. The State.\", \"head_matter\": \"Hoss v. The State.\\nOn the trial of the appellant on an indictment for murder in the second degree, the Court erroneously instructed the jury, that, on eonyietion of manslaughter, the heaviest punishment they could inflict was confinement for fourteen years in the penitentiary;, and the appellant was then convicted of murder in the second degree, and sentenced to the penitentiary for life.\\n\\u00a3{eld, That such instruction might have prejudiced the defendant, and entitled him to \\u00e1 reversal of the judgment.\\nAPPEAL from the Marion Circuit Court.\", \"word_count\": \"338\", \"char_count\": \"2041\", \"text\": \"Her Curiam.\\nHoss was indicted for murder in the second degree. On that indictment he might he convicted for the offence named, or for manslaughter.\\n'The lightest punishment for murder in the second degree is imprisonment in the penitentiary for life. 2 Gl. & H. pp. 437, 438. The heaviest punishment for manslaughter is imprisonment in the same place for twenty-one years; IUcl; but, on the trial of said cause, the Court told the jury that if they convicted of manslaughter, the heaviest punishment they could inflict was imprisonment as above for fourteen years. Under this instruction the jury found the defendant guilty of murder in the second degree, whereby he was sentenced for life to the State prison. The instruction may have prejudiced the defendant. If the jury had been told that they could punish, upon a verdict of manslaughter, for twenty-one years in the State prison, they, thinking that to be punishment enough, might have so found; while, thinking fourteen years insufficient, they may have been induced to find murder in the second degree, and thus have inflicted a higher punishment than they otherwise would have done.\\nIt may also be stated that in homicide, if there be intention to kill, but without premeditation and malice, the offence is manslaughter. Dennison v. The State, 13 Ind. 510.\\nThomas D. Waif oh and JR. JL. Waif oh, for the appellant.\\nThe judgment is reversed. Cause remanded. The Clerk is directed to issue the proper order for the return of the defendant.\"}"
\ No newline at end of file
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index 0000000000000000000000000000000000000000..f6d5c187b5db8f3072eb23a2ab07db61a676d630
--- /dev/null
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+"{\"id\": \"1474279\", \"name\": \"Perry v. McEwen\", \"name_abbreviation\": \"Perry v. McEwen\", \"decision_date\": \"1864-05\", \"docket_number\": \"\", \"first_page\": \"440\", \"last_page\": \"441\", \"citations\": \"22 Ind. 440\", \"volume\": \"22\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:07:48.898628+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perry v. McEwen.\", \"head_matter\": \"Perry v. McEwen.\\nTrust\\u2014Forfeiture\\u2014Injunction.\\u2014Where a lot is conveyed to trustees of a religious society, for the use of such society, according to the discipline, &c., and the society erect a church building thereon, and the trustees lease the basement thereof, which was made for a prayer room, to a teacher of a common day school, with leave to him to change the internal arrangements of the room to adapt it to his business, such trustees may be enjoined, on the application of members of the society, from such leasing.\\nAPPEAL from the Bartholomew Circuit Court.\", \"word_count\": \"595\", \"char_count\": \"3391\", \"text\": \"Perkins, J.\\nIn 1854, John F. Jones and Catharine, his wife, of Columbus, Indiana, executed a conveyance of a lot, in said town, to William MoFwen and others, trustees and their successors, &c., \\\"in trust foi' the uses and purposes named in said deed,\\\" which were, \\\" for the use of the members of the Methodist Episcopal Church in the United States, according to the discipline, &c., of the general conference, in which church on said lot, at all times, the ministers thereof shall be permitted to preach and expound God's holy word,\\\" &c.\\nMoney was subscribed, and a church building erected on the lot, costing some 7,000 to 8,000 dollars, of which sum said McFioen contributed 1,500 dollars. The building has a basement story on the ground, fitted up for prayer meetings, and regular church service in inclement weather, having a pulpit, seats, &e., and being neatly papered, &c.\\nThis basement story, the trustees of the church leased for a term, to the teacher of a day common school, authorizing such changes to' be made in the internal arrangements of the room, as would make it convenient for use as such common school room. William McFwen, above named, applied to the Circuit Court for an injunction restraining the trustees and teacher from converting said church room to use as such common school room.\\nThomas A. Hendricks, Oscar B. Hord, J. B. McDonald, and A. L. Boache, for the appellant.\\nFrancis T. Hord, M. M. Bay, and C. F. Walker, for the appellee.\\nA perpetual injunction was granted.\\nThe grant, in this case, was not a general one, of property to the society, without designation of use. Had it been, we should have had no difficulty in the premises. As it is, after considerable reflection, with some hesitation, we have concluded that the judgment below must be affirmed.\\nIt was held in Broadway v. The State, 8 Blackf. 290, that the occasional abuses of the use of trust property did not occasion a forfeiture of the property. But the question of forfeiture is one, and that of the right and duty of a Court to restrain such abuses is another. And in the case at bar, the property was diverted in a way contemplating permanency. The property, in this case, was conveyed to be used for a particular purpose. How, if it is held, that there may be a departure from'that purpose, who shall limit such departure? Suppose the house had been leased for a saloon, a billiard room, or the like, this would have been restrained. Suppose for a school to teach Atheism; or to teach doctrines simply adverse to the creed of Methodism; if any departure from the trust in the use of the property is allowed over objections by members, what are the departures that are to be allowed? See Hill on Trustees, Am. ed., p. 699, note; Scott v. Stipe, et al., 12 Ind. 74.\\nPer Curiam.\\nThe judgment below is affirmed, with costs.\"}"
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diff --git a/ind/1476184.json b/ind/1476184.json
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+"{\"id\": \"1476184\", \"name\": \"The Indiana and Illinois Central R. R. Co. v. Davis\", \"name_abbreviation\": \"Indiana & Illinois Central R. R. v. Davis\", \"decision_date\": \"1863-05\", \"docket_number\": \"\", \"first_page\": \"6\", \"last_page\": \"9\", \"citations\": \"20 Ind. 6\", \"volume\": \"20\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:38:56.555997+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Indiana and Illinois Central R. R. Co. v. Davis.\", \"head_matter\": \"The Indiana and Illinois Central R. R. Co. v. Davis.\\nOrder \\u2014 Demand.\\u2014Where an order is drawn, in proper form, by the secretary of a corporation upon the treasurer thereof, for the payment of a sum of money actually due from the corporation to the payee of the order, it is not necessary for the payee to present it to the treasurer for payment, within a reasonable time after receiving it, or at any time before suing upon it, as a condition precedent to such suit.\\nConstruction. \\u2014 Such an order may be treated by the holder thereof, at his option, as the mere promissory note of the corporation, payable at a particular place, or probably, as a bill of exchange.\\nCases OVERRULED. \\u2014 The cases of The Wardens, &c. v. Moore, 1 Ind. R. 289; English, &c. v. The Board, &c. 6 id. 437; The Marion &c. R. R. Co. v. Dillon, 7 id. 404; The Marion and L. R. R. Co. v. Lomax, id. 648, and the Marion &c. R. R. Co. v. Hodge, 9 id. 163, so far as they are inconsistent with the decision herein, are overruled.\\nAPPEAL from tbe Marion Common Pleas.\", \"word_count\": \"1176\", \"char_count\": \"6342\", \"text\": \"Perkins, J.\\nSuit upon two orders each, of the- following tenor:\\n\\\"$1000. Treasurer of the Indiana and Illinois Central Railway Company, pay to J. C. Bancroft Davis, or order, one thousand dollars, allowed for services, expenses, printing, &c. (Allowed, December session of Board, 1857.)\\nJ. M. Sharpe, Secretary.\\\"\\nJanuary, 9,1858.\\nThe suit is against the corporation, and the complaint alleges that she drew the order or bill sued on, by her secretary, upon her treasurer; that the bill was presented for payment, and payment refused.\\nThe defendant answered by:\\n1. The general denial.\\n2. By allegations that the order had not been presented to her treasurer for acceptance, or payment. This was simply reasserting a part of the general denial.\\n3. By averring that the order was not presented to her treasurer till the 20th of November, 1860.\\nThe 4th, 5th, 6th, 7th and 8th defences set up failure and illegality of consideration.\\nThe plaintiff' replied by demurring to the 2d and 3d paragraphs of the answer, and taking issue of fact upon the 4th, 5th, 6th, 7th, and 8th paragraphs.\\nThe demurrer was sustained.\\nThe issues of fact were tried and judgment rendered for the plaintiff.\\nThe question raised and argued in this cause is this : \\\"Was it necessary for the holder, the payee of the written instrument sued on, to present it to the treasurer of the corporation for payment, within a reasonable time after receiving it, or at any time before suing upon it, as a condition precedent to such suit ? The record does not present the question in this shape, but for the purposes of this decision, we will treat it as doing so.\\nLet us first inquire, what is the character, m legal effect, of that instrument ?\\nIt shows on its face three things.\\n1. That it is drawn by the Indiana and Illinois Central Bail-way Company.\\n2. That it is drawn upon the Indiana and Illinois Central Bailway Company.\\n3. That it was drawn for the payment of a debt, actually owed by the corporation, to the payee of the order.\\nAs the order or writing stands, there is but one person that can be sued on it; and, had it been accepted, there still would have been but one person liable to be sued on it, and that person was and is the Indiana qnd Illinois Central Railway Company. The paper shows on its face that the drawer and drawee are the same person, and that the person actually owed the payee the sum specified in the writing.\\nIn such case, the writing may clearly be treated by the holder, if he elect to do so, as the promissory note of the corporation, but payable at a particular place, viz: the treasurer's office of the corporation. And the question then is, must such a note be presented at the place where it is payable for payment before the maker can be sued on it?\\nAt an early day such was held to be the law in Indiana. 1 Blackf. 257, and Palmer v. Hughes, id. 328; and see 1 Gill. (Ill.) Rep. p. 15. But those decisions have been overruled by judicial decisions, and changed by statutory enactments. Hartwell v. Candler, 5 id. 215; 2 G. & H. 107.\\nBut the plaintiff takes a risk in suing upon such paper with-, out having first made a demand, because, should the defendant set up and prove a readiness to pay at the place before suit, the circumstances might be such as to subject the plaintiff to costs, as in case of a tender. 1 Am. L. C. pp, 367, 368. In the case at bar, it was proved on the.trial that the plaintiff had, as averred in his complaint, made demand of payment before suit, and that payment had been refused without excuse assigned for the refusal. No motion was made for greater certainty in the averment, and proof of demand at any time was proper. The cases of Hasey v. White Pigeon, &c. 1 Dougl. (Mich.) Rep. 193; Fairchild v. Ogdensburg, &c., 15 N. Y. Rep. 337; Miller v. Thompson, 3 Mann. & Gra. 576, and The Board, &c. v. Day, 19 Ind. 450, are in point. There is, in our own reports, a series of erroneous cases, which are overruled by the decision we now make. The decisions in the series are built one upon the other from the first, which was made without much consideration by the counsel or the Court, as authorities were not cited, nor have they been in the cases following it.\\nB. K. Dlliolt, for the appellant.\\nN. B. and C. Taylor, for the appellee.\\nIt is. insisted that the Court is irrevocably committed to its error if it be such; but we think, on a question of general commercial law, we had better retrace our steps from error at any point, rather than continue in it. The cases overruled or modified are found as follows: 1 Ind. 289; 6 id. 437; 7 id. 404, 648, and 9 id. 163. \\\"We do not say that the holder of an order like that sued on may not treat it as a bill of exchange if he elects to do so; see The State Bank v. Bowers, 8 Blackf. 73; but probably the drawer can not compel the holder to so treat it. But in the case at bar, if the instrument be treated, as a bill, still the plaintiff is entitled to recover on the case made by the special finding below, it falling precisely within Kelly v. The Mayor, &c., 4 Hill (N. Y.) Rep. 263, and Spangler v. McDaniels, 3 Ind. 275. See, also, 1 Am. L. Cases, supra. The case of Moss v. Livingston, 4 Com. (N. Y.) Rep. is upon an entirely different question.\\nPer Curiam.\\nThe judgment is affirmed with 1 per cent, damages and costs.\"}"
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+"{\"id\": \"1488949\", \"name\": \"Depuy v. Clark\", \"name_abbreviation\": \"Depuy v. Clark\", \"decision_date\": \"1859-06-09\", \"docket_number\": \"\", \"first_page\": \"427\", \"last_page\": \"434\", \"citations\": \"12 Ind. 427\", \"volume\": \"12\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:36:37.090733+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Depuy v. Clark.\", \"head_matter\": \"Depuy v. Clark.\\nThe pledgee of a promissory note, who settles with the maker and surrenders it, thereby becomes liable to account to the pledgor for the full amount thereof. ^\\nIf the pledgee of a promissory note, upon settlement, surrender it to the maker, in consideration of a sum of money equal to the debt for which it was pledged, and a reasonable compensation for collecting the same, and. another promissory note for the balance, the pledgor may demand citify such other note, or the full amount of the original pledge, after deducting the sum for which it was pledged, and such reasonable compensation.\\n' If the pledgee of a promissory note settle with the maker and surrender it to him for a sum of money equal to, or greater than, the debt thereby secured, and another promissory note for the balance, the pledgor may maintain suit for the amount of the pledge without first having made a demand.\\nThursday, June 9.\\nAPPEAL from the Wabash Court of Common Pleas.\", \"word_count\": \"2490\", \"char_count\": \"13681\", \"text\": \"Worden, J.\\nAction by the appellee against the appellant to recover the amount of a promissory note made by one Volney L. Williams to the plaintiff, for the sum of 643 dollars, 48 cents, dated October 10, 1853, and payable one day after date, alleged to have been placed in the hands of the defendant by the plaintiff, as collateral security for the payment of an account of 50 dollars, due from the plaintiff to the defendant. Averment that the defendant had received certain property and some money from Williams, on the note, and that he had surrendered up the note to 'Williams, taking the note of Williams payable to himself fpr the balance, amounting to 439 dollars, 77 cents. The claim was set out in three several paragraphs of the complaint. There was a demurrer filed to the complaint for misjoinder of causes of action, which was overruled. This decision we cannot revise, if wrong. 2. E. S. p. 38, \\u00a7 52.\\nThere were demurrers filed to two of the paragraphs of the complaint, but as none of the statutory causes of demurrer were assigned, they were correctly overruled. The State v. Leach, 10 Ind. R. 308.\\u2014Lane v. The State, 7 id. 426.\\nThe defendant answered in several paragraphs, to which replications were filed, and the cause was tried by a jury, j^jerdict for the plaintiff for 577 dollars, 12 cents, on which judgment was rendered, over a motion for a new trial.\\nBy a bill of exceptions setting out all the evidence, it appears that on the trial the plaintiff proved by a witness that he started west in November, 1853; and that soon gjiter he started, the defendant told the witness that he had loaned the plaintiff 60 or 65 dollars, and had taken of him a note on Williams, his half-brother, for some 607 dollars, ^ security; and that he had taken an assignment to the effect that he was to repay the money, or the Williams note was to be his. He said, if Clark did not pay him by a certain time, the note was to be his; that he had let Clark have the money to go west to see his brother, Williams, to get money to redeem his land from a mortgage, and Clark did not return for fourteen months.\\nBy said Volney L. Williams, he proved that in May, 1854, the defendant presented to him, in Illinois', the note in question, and that he settled it by giving the defendant a buggy and harness, at 225 dollars, 300 dollars in\\\" money, and his note for the ^Balance of 439 dollars, 77 cents; payable in six months, to the defendant. The other note was given up to Williams.\\nWilliams was solvent at the time, and worth considerably more than would pay all his debts. He did not represent to the defendant that he could not make the money off him by suing, or that he was embarrassed.\\nThis is the substance of the plaintiff's testimony, except some testimony tending to show a demand before suit brought.\\nDiu-ing the examination of one of plaintiff's witnesses, the defendant offered to prove by him that the plaintiff had offered to sell the Williams note to the witness for the same amount that defendant gave for it, 85 dollars, to which proof plaintiff's counsel objected, on the ground that it formed no part of the agreement between the parties to the suit; and the objection was sustained, and the.defendant excepted. .\\nThe objection was not based upon the ground that the defendant could not go out of a proper cross-examination for the purpose of establishing facts necessary to sustain his defense, and that, if he wished to prove such facts, he must make the witness his own, and introduce him for that purpose. The objection was simply that the testimony was irrelevant. We cannot say, however, that the ruling was wrong. From all the evidence then before the Court, the testimony did not appear to be relevant. Counsel did not even undertake to afterwards show its relevancy. The ground assumed in the argument is, that if Clarke offer ed the note to the witness for 85 dollars, it showed what he thought it to be worth, and the probability of his having offered and sold it to Hepivy for the same sum. But at that time there was no evidence before the Court on the subject of the purchase of the note by Depuy,fox the sum of 85 dollars, or otherwise. The offering of a piece of property to one man for a certain sum, would not ordinarily have any tendency to prove a sale of it to another man for the same sum.\\nIf, after the defendant had introduced his proof to establish a sale of the note by the plaintiff to the*defendant fox 85 dollars, the disparity between the amount paid and the amount of the note, rendered the transaction improbable, or the testimony doubtful, and if the testimony offered became thereby admissible (a question which we do not decide), as showing the value put upon the note by Ciar)^ and thus removing the apparent improbability of the transaction, the proof should have been then offered.\\nIt is said, in note 326 to Phillip's Evidence, that \\\"If evidence be irrelevant at the time it is offered, it is not error to reject it because other evidence may afterwards be given, in connection with which it would be relevant. If it would be relevant in connection with other facts, it should be presented in connection with those facts, and an offer to fcl-. low the evidence proposed wiih proof of those facts, at a proper time.\\\"\\nOne of the grounds of defense was, that the note was unconditionally sold and transferred by the plaintiff' to the defendant.\\nThe defendant proved by a witness, that a few days before Clark went west and was so long gone, witness was in defendant's office, when the plaintiff came in and proposed to sell the defendant a note on a man named Williams for 600 or 700 dollars; defendant said he did not care about buying it. Clark asked 100 dollars for it; defendant said he could not give that. Clark was owing defendant a*doctor's bill, and defendant proposed to give Clark the account against him, and cash, to \\u2022 make, in all, 35 dollars. The account was between 20 and 30 dollars. Clark said he would take it, and the money was paid to him, and the note was transferred to the defendant, and the plaintiff-went out. After he had gone out, the defendant called to him and asked him when he was coming home. Clark replied \\\"in a month.\\\" The defendant then told him, if he would come back in a month, he would let him have the note for the same he. had given him for it. This last conversation was after the trade for the note had been made, and after the plaintiff had gone out.\\nIf the account of the transaction given, by the last-mentioned witneSs, be correct, it is clear that the plaintiff has no ground of action against the defendant. There was a complete sale and transfer of the note for a valuable consideration. According to this statement of the case, the debt which the plaintiff owed defendant for a doctor's bill, was extinguished, and there was no agreement, express or implied, to refund the money paid for a transfer of the note.\\n~ Suppose, on this state of facts, the defendant had sued the plaintiff for the doctor's bill and the money advanced, he certainly could not have recovered.\\nThere was no debt to secure which the note could be pledged, as the transfer of the note canceled the previous indebtedness. Nor was the transfer of the note in any manner conditional, but absolute. Even the proposition made by the defendant to the plaintiff, after the trade was completed, that if he would in a month come back, he, the defendant, would let the plaintiff have the note again for what defendant had given him for it, does not appear to have been accepted by the plaintiff. He did not agree to take the note back on the terms proposed. A proposition on one side, not accepted on the other, has not the binding force of a contract.\\nOn the other hand, if the note was placed in the hands of the defendant as a mere pledge or collateral security for the payment of the debt, we are of opinion that the defendant, under the circumstances shown, was liable to the plaintiff for the amount of the note and interest, deducting the amount of the defendant's claim against the plaintiff, and his reasonable expenses incurred in collecting the note. By settling the note with Williams in the manner he did, and surrendering it up to him, be became bound to the plaintiff for the full amount thereof.\\nIn Story on Bailments, \\u00a7 321, it is said that, \\\" Where the pledge is a negotiable security (such as a negotiable note), the pledgee has a right to recover and receive the money due thereon, and to sue for it in his own name. But he has no right (unless, perhaps, in a very extreme case) to compromise with the parties to the security for a less sum than the sum due on the security, aftd if he does, he will be compelled to account to the pledgor for the full value.\\\"\\nThis doctrine is sustained by the case of Garlick v. James, 12 Johns. 146, which was like the present in many of its features. The maker of the note pledged, in that case, as in the present, was solvent.\\nIt is claimed that the defendant cannot be liable for the amount of the note given him by Williams, which is not yet paid. But we do not see how the fact that that note has not been paid, would lessen his liability. Suppose he had not taken that note at all, but had compromised .the note pledged, and given it up to the maker upon receiving the property and money paid him; he would then have been liable, under the authorities, for the full amount. The fact that he has the prospect of getting something more, cannot surely lessen his liability. In the case of Garlick v. James, supra, the pledgee had compromised with the maker of the note, and taken about one-half of what was due upon it. It was urged, on the part of the defendant, that the plaintiff might still call upon the maker for the balance due upon the note, as the payment made by him being a less sum than was due, it would not operate as a discharge of the note. But the Court said: \\\" Admitting this to be correct, it will not exonerate the defendant if he has so disposed of the pledge as to make himself responsible. A party may have two remedies for an injury, and may elect which to pursue.\\\"\\nSo here, admitting that the plaintiff might be entitled to the proceeds of the note given by Williams to the defendant, he is not bound to pursue that remedy, but may hold the defendant responsible for the whole amount.\\nAt the time of the trial, the Williams note amounted, principal and interest, to about 730 dollars. The verdict makes a deduction from this amount of about 153 dollars, for the defendant's claim on the plaintiff, and, as we suppose, for the expenses incurred by the defendant in collecting the Williams note. This, under the evidence, seems a fair and reasonable deduction. The damages are not excessive, if the plaintiff can recover at all.\\nThe jury found in accordance with the admissions of the defendant as proved, rather than the testimony offered by the defendant, and we do not feel authorized to disturb their finding. \\u00bfAccording to those admissions, the note was placed in the hands of the defendant as a mere security for the repayment of the money loaned; and although he at the same time said that if the money was not repaid by a certain time the note was to be his, yet the terms of a conditional sale, if the admissions have a tendency to show such sale, are left vague and uncertain, and the jury having passed upon the whole matter, and having found virtually that the defendant held the note as a mere security, we cannot disturb their verdict.\\nNo point is made as to the variance between the complaint and the evidence, as to the debt for which the note was pledged; but had such point been made, the complaint was amendable below, and would be deemed amended here. Warbritton v. Cameron, 10 Ind. R. 302.\\nA point is made as to the sufficiency of the proof of demand for the note before suit, and that no tender was made of the debt to secure which the note was pledged. We think no such tender or demand was necessary. tBy converting the note to his own use, the defendant became liable to the plaintiff in a greater sum than that to secure which the note was pledged; and for the sum due him, the plaintiff could sue without making any tender of what was due from him to the defendant. And by converting the note to his own use, the defendant became liable to an ac tion without any previous demand. Spencer v. Morgan, 5 Ind. R. 146.\\u2014 Cox v. Reynolds, 7 id. 257.\\nJ. U. Pettit, G. Cowgill, and J. M. Wheeler, for the appellant.\\nJ. D. Conner and G. E. Gordon, for the appellee.\\nOn an examination of the whole case, we find no error which we think should reverse the judgment.\\nPer Givriam.\\nThe judgment is affirmed with 1 per cent, damages and costs.\"}"
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diff --git a/ind/1496149.json b/ind/1496149.json
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+"{\"id\": \"1496149\", \"name\": \"State of Indiana ex rel. Calvin Louis Taylor v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge; State of Indiana ex rel. Lancia Tipsord v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge\", \"name_abbreviation\": \"State ex rel. Taylor v. Allen Superior Court\", \"decision_date\": \"1977-08-19\", \"docket_number\": \"Nos. 3-677A147; 3-677A148\", \"first_page\": \"77\", \"last_page\": \"79\", \"citations\": \"174 Ind. App. 77\", \"volume\": \"174\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:18:39.054943+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Indiana ex rel. Calvin Louis Taylor v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge. State of Indiana ex rel. Lancia Tipsord v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge.\", \"head_matter\": \"State of Indiana ex rel. Calvin Louis Taylor v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge. State of Indiana ex rel. Lancia Tipsord v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge.\\n[Nos. 3-677A147; 3-677A148.\\nFiled August 19, 1977.]\\nBarrie C. Tremper, Allen County Public Defender, Thomas L. Ryan, Deputy Allen County Public Defender, of Fort Wayne, for relators.\", \"word_count\": \"809\", \"char_count\": \"4948\", \"text\": \"Hoffman, J.\\nThese two cases come before this court on \\\"Petition for Alternative Writ of Mandamus and/or Prohibition.\\\" In each the defendants pleaded guilty to the crimes charged and were sentenced by the court. The defendants then filed petitions for attorney fees, cost of transcript and appeal, attempting to appeal the sentences imposed by the trial court. The sentences imposed were discretionary with the trial court and were permitted under the respective statutes. The trial court denied the petitions. Each defendant asks this court to order respondent trial court to grant their petitions.\\nThe basic question presented is: May a defendant appeal a sentence that does not exceed constitutional limitations imposed by a judge after a guilty plea?\\nIn Crain v. State (1973), 261 Ind. 272, 301 N.E.2d 751, our Supreme Court held that the only procedural method to attack a guilty plea is by means of a petition for post-conviction relief under P.C. Rule 1.\\nHowever, here defendants wish only to appeal the sentence and not the guilty plea.\\nArticle 7, \\u00a7 4, of the Constitution of Indiana gives an express grant of power to the Supreme Court to review and revise the sentence imposed. However in Beard v. State (1975), 262 Ind. 643, at 649, 323 N.E.2d 216, at 219, our Supreme Court stated:\\n\\\"The grant appears to be beyond our inherent power to review and revise those sentences that exceed constitutional limitations, a responsibility that we have previously recognized. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815; Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498; Landaw v. State (1972), 258 Ind. 67, 279 N.E.2d 230. Thus far, we have refrained from exercising this recently granted power and believe that it can be properly exercised only under a program of policies and procedures not yet established. We, therefore, decline the defendant's prayer for a review of his sentence.\\\"\\nSince the Beard decision our Supreme Court has consistently declined to review sentences. Miller v. State (1977), 266 Ind. 461, 364 N.E.2d 129; Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Delph v. State (1975), 263 Ind. 385, 332 N.E.2d 783; Stoehr v. State (1975), 263 Ind. 208, 328 N.E.2d 422.\\nTherefore, a defendant cannot establish reversible error upon the sentence imposed in the absence of a claim that it exceeds either constitutional or statutory limitations. Since the only matters the defendants sought to review do not present a reviewable issue, the trial court properly denied their petitions to expend public funds.\\nThe respective petitions for alternative writ of mandamus and/or prohibition filed by relators herein are denied.\\nGarrard, J. concurs.\\nStaton, P.J. Dissents with Opinion.\"}"
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diff --git a/ind/1501440.json b/ind/1501440.json
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@@ -0,0 +1 @@
+"{\"id\": \"1501440\", \"name\": \"In The Matter of The Estate of Effie Wegmiller, Deceased, Robert Sipes and Carol Sipes v. First National Bank of Bloomington, Executor, and Bloomington Hospital and Indiana University Foundation\", \"name_abbreviation\": \"Wegmiller v. First National Bank\", \"decision_date\": \"1978-06-27\", \"docket_number\": \"No. 1-977A230\", \"first_page\": \"16\", \"last_page\": \"21\", \"citations\": \"177 Ind. App. 16\", \"volume\": \"177\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:36:08.154615+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In The Matter of The Estate of Effie Wegmiller, Deceased, Robert Sipes and Carol Sipes v. First National Bank of Bloomington, Executor, and Bloomington Hospital and Indiana University Foundation\", \"head_matter\": \"In The Matter of The Estate of Effie Wegmiller, Deceased, Robert Sipes and Carol Sipes v. First National Bank of Bloomington, Executor, and Bloomington Hospital and Indiana University Foundation\\n[No. 1-977A230.\\nFiled June 27, 1978.]\\nWilliam H. Andrews, Baker, Barnhart, & Andrews, of Bloomington, for appellant.\\nSylvan W. Taekitt, of Bloomington, for appellee, First National Bank of Bloomington.\", \"word_count\": \"1361\", \"char_count\": \"8328\", \"text\": \"STATEMENT OF THE CASE\\nLowdermilk, J.\\nPetitioners-appellants Robert Sipes and Carol Sipes (the Sipes) appeal after the Monroe Circuit Court overruled their motion to set aside the election of Harold B. Wegmiller to take against the will of his deceased wife, Effie Wegmiller. Respondents-appellees include First National Bank of Bloomington as Executor of the estate of Effie Wegmiller, Bloomington Hospital, and Indiana University Foundation (hereinafter referred to simply as First National Bank).\\nSTATEMENT OF THE FACTS\\nEffie Wegmiller died September 25,1975. She and her husband owned approximately nineteen acres as tenants by the entirety. In her will, Effie Wegmiller devised the nineteen acres to a Trustee. The income from the trust was to be used for the benefit of her husband. Upon his death (which occurred October 21,1976), the nineteen acres were to be conveyed to her cousins, Robert and Carol Sipes.\\nThe will of Effie Wegmiller was probated September 30,1975. At that time, relevant statutes provided as follows:\\n\\\"The election by a surviving spouse to take the share hereinbefore provided must be made not later than ten [10] days after the expiration of the time limited for the filing of claims;...\\\"\\nIC 1971, 29-1-3-2 (Burns Code Ed.)\\n\\\"(a) All claims against a decedent's estate, other than expenses of administration and claims of the United States, and of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent, unless filed with the court in which such estate is being administered within six [6] months after the date of the first published notice to creditors.\\n\\\"\\nIC 1971, 29-1-14-1 (Burns Code Ed.)\\nThe first notice for filing of claims appeared October 4,1975, and stated that claimants had six months from October 4, 1975, in which to file claims.\\nIC 1971,29-1-14-1 (Burns Supp. 1977) was amended, effective January 1,1976, so that the time allowed for filing of claims was reduced to five months.\\nOn April 12,1976, Harold B. Wegmiller filed his election to take against the will of his deceased wife. The Sipes asked the court to set aside the election on grounds that it had not been timely filed. The court refused to set aside the election. The Sipes now seek review of that ruling.\\nISSUE\\nThis appeal requires consideration of only one issue:\\nDid Harold Wegmiller timely file his election to take against the will of his deceased wife?\\nDISCUSSION AND DECISION\\nThe Sipes argue that, although persons had six months in which to file claims, Wegmiller had only five months and ten days in which to file his election to take against the will. They base this argument upon the fact that at the time the notice was published October 4,1975, the statute provided six months in which to file claims; but at the time Wegmiler filed his election, the amended statute provided only five months in which to file claims.\\nThroughout their appellants' brief, the Sipes regard the relevant statutes as statutes of limitation and argue that a statute of limitation operates retrospectively as well as prospectively.\\nFirst National Bank cites Kuzma v. Peoples Trust & Savings Bank (1961), 132 Ind.App. 176, 176 N.E.2d 134, in which the court considered the statute imposing a time limitation on the filing of claims against an estate and concluded that the statute imposes a condition precedent to asserting a statutory right; it does not serve as a statute of limitation, which would only bar a remedy.\\nThe Sipes maintain in their reply brief that the rules and authorities set forth in their appellants' brief regarding statutes of limitation apply to the case at bar regardless of whether the statute is deemed to impose a limitation upon the remedy or a condition precedent to exercise of a right.\\nThe Sipes also note that, when the Legislature enacted the Probate Code, effective January 1,1954, it made the following provision for estate proceedings in progress:\\n\\\"\\n(b) No act done in any proceeding commenced before this [Probate] Code takes effect, and no accrued right, shall be impaired by its provisions. When a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provision of the law in force at the time, such provision shall remain in force and be deemed a part of this [Probate] Code with respect to such right, and not withstanding any of the provisions of this act, the person or persons who shall be entitled to take or receive any property, right, power or interest on the final settlement and distribution of any estate pending or any trust being administered at the time this act takes effect shall be determined, and his or their rights, powers and interest shall be governed by the statutes and applicable decisions in force and effect immediately prior to the taking effect of this act.\\\"\\n\\\" IC 1971, 29-1-1-2 (Burns Code Ed.)\\nThe Sipes contend that, because no comparable provision accompanied the amendment effective January 1, 1976, none can be implied.\\nIn general, statutes are to be construed prospectively rather than retrospectively unless a contrary intent is expressed. A retroactive ap plication of statutes which would impair vested rights or violate some constitutional guaranty should be avoided. Guthrie v. Wilson (1959), 240 Ind. 188, 162 N.E.2d 79.\\nStatutes of limitation are generally regarded not as substantive in nature but rather as affecting the remedy. Guthrie v. Wilson, supra. In Sansberry v. Hughes (1910), 174 Ind. 638, 640, 92 N.E. 783, the Supreme Court explained:\\n\\\"... In respect to substantive rights, conferred by law, or acquired by contract, there is no doubt of constitutional protection without modification or change. It is otherwise with a mere remedy....\\\"\\nPersons who wished to file claims against the estate of Effie Wegmiller were informed by published notice that they had six months from October 4,1975, in which to file their claims. The Sipes do not dispute First National Bank's contention that all creditors had six months in which to file claims despite the amendment which became effective January 1, 1976.\\nIn both 1975 and 1976, IC 1971, 29-1-3-2, supra, provided that a surviving spouse could file the election to take against the will not later than ten days after the expiration of the time limited for the filing of claims. This statute, just as IC 1971, 29-1-14-1, supra, does, imposes a condition precedent to asserting a statutory right. Wegmiller initially had six months and ten days from October 4,1975, in which to file his election to take against the will. The amendment which became effective January 1, 1976, did not affect this substantive right. Wegmiller had ten days after April 4, 1976, in which to file his election. Therefore, his election filed April 12, 1976, was timely.\\nThe Sipes provide argument concerning a second issue. We do not address that issue, however, for it presupposes that Wegmiller made no election to take against the will of his deceased wife; we hold that such an election was timely filed.\\nJudgment affirmed.\\nLybrook, P.J. and Robertson, J. concur.\\nNOTE \\u2014Reported at 377 N.E.2d 664.\\n. For analysis of the distinction between a statute of limitation and a statute imposing a condition precedent to the exercise of a statutory right, see Wawrinchak v. United States Steel Corp. (1971), 148 Ind.App. 444, 267 N.E.2d 395.\\nThe Sipes have cited numerous cases in support of their argument. We make no attempt to distinguish each and every case but state summarily that cases in which a statute expands or limits a remedy do not dictate disposition of the case at bar, for the case at bar concerns a statute creating a substantive right and imposing a condition precedent to exercise of that right.\"}"
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+"{\"id\": \"1503411\", \"name\": \"Howell v. State of Indiana\", \"name_abbreviation\": \"Howell v. State\", \"decision_date\": \"1928-10-30\", \"docket_number\": \"No. 24,318\", \"first_page\": \"345\", \"last_page\": \"350\", \"citations\": \"200 Ind. 345\", \"volume\": \"200\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:46:30.412292+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Howell v. State of Indiana.\", \"head_matter\": \"Howell v. State of Indiana.\\n[No. 24,318.\\nFiled October 30, 1928.]\\nRobbins, Weyl & Jewett, for appellant.\\nU. S. Lesh, Attorney-General, and O. S. Boling, for the State.\", \"word_count\": \"1482\", \"char_count\": \"8456\", \"text\": \"Travis, J.\\nAppellant was charged by indictment, in one count, with involuntary manslaughter (Penal Code \\u00a7351, \\u00a72416 Bums 1926): That, by driving and operating an automobile at an unlawful, reckless and wanton rate of speed, at the speed of thirty-five miles per hour, over Thirty-eighth Street in Marion County (\\u00a716, ch. 300, Acts 1913, \\u00a710476c Burns-1914), which speed was greater than was prudent and reasonable, having regard to the traffic and the use of the highway, he, as a direct and immediate result thereof, unlawfully and feloniously drove the automobile against and upon Woaneta Franke, and thereby inflicted mortal wounds, which wounds caused her death.\\nAppellant drove the automobile north on Arlington Avenue, turned west, and drove on Thirty-eighth Street to a point east of Layman Avenue, the place where the accident occurred, a distance on Thirty-eighth Street of about 2,300 feet. Before the automobile turned into Thirty-eighth Street from Arlington Avenue, and before the accident, the deceased, age nine years, together with her sister Thema Franke, age twelve years, and Helen Ricks, age fourteen years, were walking east on the south side of the center of Thirty-eighth Street, approaching Layman Avenue. The three girls were hunting tin foil on the public highway. Thirty-eighth Street was improved with a cement concrete driveway, twenty feet wide, in the center of the public highway. As appellant drove weston Thirty-eighth Street, he first saw the three girls when they were between 200 and 250 feet west of him. They were then walking or standing on the south side of the road. When appellant had approached to within sixty feet of the girls, walking apparently in the middle of the road, he sounded the horn. The two girls testified that they did not know of the approach of the automobile until it was within a few feet of' them, although one of them was looking to the east before the accident. When the automobile was within the length of a desk (seen by witness in the court-room) from them, Woaneta, the deceased, saw some tin foil or something on the north side of the road, and at that moment started \\\"tetering\\\" across the paved roadway to the north, directly in the path of the oncoming automobile. When Woaneta started \\\"tetering\\\" across the street, both the other girls screamed to her, and appellant sounded his horn and applied the brakes of the automobile, but she gave no attention and did not stop. The automobile collided with Woaneta and rolled or threw her to the north side of the paved roadway. The impact fractured her skull and injured her internally, one or the other of which injuries, or both, caused her death. At the time of the accident, the atmosphere was clear and the roadway was dry.\\nIn the presentation of the case by the evidence at the trial, and by argument on appeal, the appellee stresses the speed at which appellant drove the automobile at the time of, and before the accident, on Thirty-eighth Street. The speed at which the automobile was moving west on Thirty-eighth Street before reaching what may be termed the danger point with reference to the three girls, according to the testimony of some of the witnesses, varied from \\\"fast\\\" to forty-five miles an hour. Before reaching the place where the two girls (companions of Woaneta) first saw the approaching automobile, appellant had reduced the speed of the automobile, but not to a speed that it could be stopped within the distance it was from Woaneta when she started across the street to the spot where the automobile collided with her. The evidence does not show that the place where the accident occurred, or the roadway upon which the automobile was being driven, was within the corporate limits of any city or town.\\nAppellant pleaded not guilty to the charge by indictment. The issue was tried to the court, which found appellant guilty, and rendered judgment upon the finding. Appellant moved the court for a new trial because the finding: (1) Was not sustained by sufficient evidence; and (2) was contrary to law. Appellant pleads that the trial court erred by its action, overruling his motion for a new trial.\\nAppellant's proposition to sustain alleged error is: (1) That the evidence is not sufficient to establish the alleged fact that he was in the commission of the unlawful act as charged at the time of the alleged injury, and therefore is insufficient to establish the- commission of the alleged unlawful act as charged; and (2) the evidence is not sufficient to establish the fact that the alleged unlawful act charged in the indictment to have been committed by appellant was the proximate cause of the injury to and death of Woaneta Franke, but maintains that the proximate cause of the injury to Woaneta Franke which caused her death, was her own act in suddenly running directly in front of the passing automobile of appellant, which would otherwise have passed by her in perfect safety. The rule of law pertaining to direct and proximate cause to sustain the propositions above made, as stated in the cited cases, Dunville v. State (1919), 188 Ind. 373, 123 N. E. 689; Luther v. State (1912), 177 Ind. 619, 98 N. E. 640; and Potter v. State (1904), 162 Ind. 213, 70 N. E. 129, 64 L. R. A. 942, 102 Am. St. 198, 1 Ann. Cas. 32, is relied upon by appellant to sustain his alleged error. The facts in the Dunville case are not greatly dissimilar to the facts in the case at bar. In the Dunville case the little girl who was killed was two years and nine months old, and for aught that was shown in the evidence was not in a position, when she darted into the street, to have seen the dangerous agency which bore down upon her. In the case at bar, Woaneta Franke was nine years old, playing in the street, and had every opportunity to see the automobile which was approaching her, as she was proceeding on the street facing the oncoming automobile. Had she remained standing or had proceeded to walk in the course and upon the side of the street in which she had been walking when she was first seen by appellant, no matter what the speed of his automobile may have been when he first saw her, or at the time he passed her, she would not have been injured. She darted in front of the automobile when it was but a few feet (less than ten feet) from her. If it be admitted that appellant's automobile was traveling at a careless and negligent rate of speed at the time it hit Woaneta Franke and previously thereto, appellant did not swerve it to the left with intent to strike her at a point where she had theretofore been standing or walking. There is no evidence to show that appellant drove from a course in a straight line on the extreme north side of the paved portion of the street. If Woaneta Franke very suddenly placed herself in front of the automobile when it was approaching her, and at a time when appellant was within less than ten feet from her (half the length of the desk), the accident could not have been averted had the automobile been operated in the most careful manner by appellant. Under the circumstances as shown by the evidence in this case, it cannot be said that having regard to the traffic and use of the way, it was necessary that the automobile come to a stop to let the three girls walk past it. The movement of the automobile on the north side of Thirty-eighth Street was not the natural and continuous act which caused the injury, without the voluntary movement of Woaneta Franke by placing herself in the path of the moving vehicle, and without which the lamentable result which caused her death would not have occurred. Her movement from the south side to the north side of the center of the street, from her place of safety to a place of danger, was the intervening cause which, in connection with the movement of the automobile, caused the collision of herself and it.\\n\\u2022 Under the rules of law as laid down by the cases cited, it must be held that her act was the proximate cause of her death. And upon'the authority of the law as pronounced in the cases cited, the judgment in this case must be reversed.\\nThe action of the court overruling appellant's motion for a new trial was error. The cause is remanded with directions to the court to sustain appellant's motion for a new trial.\\nJudgment reversed.\"}"
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+"{\"id\": \"1514206\", \"name\": \"AAA Wrecking, Inc. v. Barton, Curle & McLaren, Inc.\", \"name_abbreviation\": \"AAA Wrecking, Inc. v. Barton, Curle & McLaren, Inc.\", \"decision_date\": \"1979-10-16\", \"docket_number\": \"No. 2-1277A479\", \"first_page\": \"418\", \"last_page\": \"424\", \"citations\": \"182 Ind. App. 418\", \"volume\": \"182\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:23:08.525977+00:00\", \"provenance\": \"CAP\", \"judges\": \"Miller, P.J. and Young, J. concur.\", \"parties\": \"AAA Wrecking, Inc. v. Barton, Curle & McLaren, Inc.\", \"head_matter\": \"AAA Wrecking, Inc. v. Barton, Curle & McLaren, Inc.\\n[No. 2-1277A479.\\nFiled October 16, 1979.\\nRehearing denied January 23, 1980.\\nTransfer denied May 16, 1980.]\\nRobert S. Rifkin, Rifkin & Gilman, of Indianapolis, for appellant.\\nGary R. Landau, Buck, Berry, Landau, Breunig & Quinn, of Indianapolis, for appellee.\", \"word_count\": \"2218\", \"char_count\": \"13094\", \"text\": \"Chipman, J.\\nThe cause of action in this case is a Complaint On Account filed by plaintiff-appellee Barton, Curie, and McLaren, Inc. (BC&M) against defendant-appellant AAA Wrecking Co., Inc. (AAA) to collect premiums allegedly due and owing for an insurance policy supplied by BC&M to AAA. AAA filed a counterclaim to recover certain premium overpayments. After a bench trial, the court entered judgment in favor of BC&M and denied AAA's counterclaim. AAA appeals arguing the decision of the lower court to be unsupported by the evidence and contrary to law.\\nWe reverse.\\nMany of the facts relevant to this appeal were not disputed at the trial. On November 9, 1973, AAA submitted a $200,000 bid proposal to Frank P. Thomas for the demolition of the Thomas Building located in downtown Indianapolis. AAA specified in its bid that it would furnish insurance on the job in the amount of $1,300,000.00, the amount normally carried by the corporation. This initial proposal was rejected by Thomas, one of the reasons being that Thomas wanted AAA to carry extra insurance referred to as \\\"collapse coverage.\\\"\\nThomas and AAA agreed the details of the additional collapse coverage would be worked out by Thomas and BC&M, AAA's insurance agent. Thomas also agreed to reimburse AAA for the cost of the additional collapse coverage by adjusting the original $200,000 bid upwards to reflect the additional insurance costs.\\nPer AAA's request, BC&M negotiated the matter of additional coverage with Thomas during February of 1974 and an agreement was reached. It is undisputed that BC&M did in fact provide AAA with collapse coverage to the satisfaction of Thomas.\\nBy a letter of April 3,1974, while demolition was in progress, BC&M requested premium payments from AAA in the amount of $4,198 for the collapse coverage provided to AAA for the Thomas Building demolition. AAA refused payment, and this lawsuit followed.\\nAAA's position at the trial, advanced primarily through the testimony of its President, Winston Knauss, was that AAA requested BC&M provide Thomas with a figure representing the cost of the additional insurance to AAA's original $200,000 bid could be adjusted upwards to reflect that additional expense. In this manner the additional coverage was to be paid for, indirectly, by Thomas. However, AAA maintained BC&M provided Thomas with a cost figure of only $1,871, which was less than the full cost of the collapse coverage. Therefore, AAA argued, it relied upon BC&M's $1,871 quotation to its detriment and should not be required to pay the full $4,198 billed to it by BC&M.\\nI. EQUITABLE ESTOPPEL\\nThe theory upon which AAA relied for its defense is equitable estop-pel. Ind. Rules of Procedure, Trial Rule 8(C) imposes the burden of pleading estoppel or any other matter of avoidance upon the defendant. While it appears from the record that AAA faded to plead estoppel as an affirmative defense, it further appears the matter was litigated by the implied consent of the parties. Ind. Rules of Procedure, Trial Rule 15(B). Since AAA had the burden of proof on the issue of estoppel at trial, its appeal is one from a negative finding. As such, the finding may only be disturbed as being contrary to law where the evidence is without conflict and leads to but one conclusion and the trial court reached an opposite conclusion. Link v. Sun Oil Co., (1974) 160 Ind.App. 310, 312 N.E.2d 126.\\nThe facts necessary to establish equitable estoppel were defined in Emmco Insurance v. Pashas, (1967) 140 Ind.App. 544, 224 N.E.2d 314 as follows:\\n(1) A representation or concealment of material facts;\\n(2) The representation must have been made with knowledge of the facts;\\n(3) The party to whom it was made must have been ignorant of the matter;\\n(4) It must have been made with the intention that the party should act upon it;\\n(5) The other party must have been induced to act upon it.\\n140 Ind.App. at 551, 224 N.E.2d at 318.\\nIn Phar-Crest Land Corp. v. Therber, (1969) 251 Ind. 674, 244 N.E.2d 644, our Supreme Court noted that one asserting the defense of estoppel carries the burden of proving a fraudulent representation or such negligence as will amount to fraud in law. The \\\"fraud\\\" may be \\\"constructive\\\" in a sense that there may not be any active intentional pur pose to deceive or defraud, yet the action is so prominent and misleading as to induce detrimental reliance. The court in Phar-Crest Land Corp. cited with approval the statement found in Pitcher v. Dove, (1884) 99 Ind. 175, at 177, 178:\\nIt is well settled that there need not be any design to defraud in order to constitute an estoppel. It is sufficient if the conduct of the party has been knowingly such as would make it unconscionable on his part to deny what his conduct had induced another to believe and act upon in good faith and without knowledge of the facts.\\nAfter a careful review of the record, we hold AAA carried its burden of proving equitable estoppel in this case, and in light of the evidence, the decision of the trial court was contrary to law.\\nOur decision requires a rather detailed review of the testimony of each witness at trial. Winton Knauss, AAA President, testified he requested BC&M negotiate for additional insurance coverage with Thomas and provide Thomas with the cost of the additional collapse coverage so the amount could be added to the original $200,000 bid. Knauss stated he trusted BC&M completely, as BC&M had been AAA's insurance broker for almost two years prior to the Thomas negotiations.\\nMr. Joseph Carney, an attorney employed by Thomas at the time in question, testified he received a telephone call from A1 Adams of BC&M and was given the figure $1,871 which he understood to be the cost of the excess coverage necessary for AAA to do the Thomas demolition. Carney stated this $1,871 figure was then added to the original $200,000 proposal to arrive at the final contract price in the demolition agreement.\\nThis testimony from Knauss and Carney was not contradicted by BC&M. Mr. Brian Field, Vice-president of BC&M, admitted BC&M was given full authority to negotiate the additional insurance coverage with Thomas on AAA's behalf. Field testified that while he was familiar with the AAA account, he was not personally involved in any dealings with the Thomas representatives. Field stated Mr. Pesavento, his employee, did take an active role in the negotiations. On cross-examination, Field testified as follows:\\nQ. Now, isn't it also a fact that Winston discussed with you or told you that the insurance \\u2014 any additional cost of insurance premiums beyond what his normal, what he normally carried, would be paid for indirectly by the Thomas people. In other words he would ask you to furnish the Thomas people with whatever costs that additional insurance would be and that they would then include \\u2014 increase Winston's contract price by whatever the additional amount of that insurance would be?\\nA. I remember discussing with Winston the fact that additional insurances were going to have to be required. The question of whether we were to furnish them to the Thomas people I don't recall. I had no knowledge of the contract price, final contract price, until the day we were requested to furnish the certificates of insurance so they could go to work.\\nQ. Well, isn't it a fact, though, Mr. Field, that your company did, in fact, give insurance costs to Mr. Joseph Carney, attorney with Baker & Daniels who actually drafted this contract and you told him how much this additional insurance would cost?\\nA. There may have been some estimates of cost in connection with the umbrella coverage and the other coverages that there were requested discussed with Mr. Carney, not by myself and at this point in time I don't know who gave them to him, if they were given to him.\\nWe are mindful of our role as a court of review which prohibits our weighing conflicting evidence to arrive at a conclusion different than reached by the trier of fact. However, undisputed evidence in this case leads us to the conclusion that BC&M, as AAA's agent, was charged with the responsibility of negotiating the additional insurance coverage with Thomas. Secondly, Mr. Carney, a disinterested witness stated a $1,871.00 figure was provided by BC&M to Thomas representing the cost of additional insurance. This $1,871.00 figure was in fact added to the final contract price agreed upon by Thomas and AAA. The only reasonable inference which can be drawn from these facts is that BC&M knew, or should have known, AAA would rely upon the $1,871.00 figure given to Thomas prior to the execution of the demolition contract. AAA did in fact rely on the $1,871.00 figure to its detriment. In light of the business relationship of the parties, there was nothing to indicate AAA's reliance was not justified.\\nWhere, as in this case, a party with knowledge of the facts, makes a representation of a material fact with the knowledge, actual or constructive, that another party will rely upon it, and where the representation does induce reliance by the other party, the party making such representation will be estopped from denying its truth and effect to the extent justice requires. Based upon the evidence, we hold BC&M was estopped from recovering from AAA premiums for the collapse coverage in excess of $1,871.00, the figure provided to Thomas and relied upon by AAA in its final contractual negotiations.\\nThe decision of the trial court is reversed with instructions that judgment be entered on AAA's counterclaim in the amount due and owing for premium overpayments to BC&M.\\nMiller, P.J. and Young, J. concur.\\nNote \\u2014 Reported at 395 N.E.2d 343.\\n. In addition to the extra insurance coverage, Thomas requested AAA to incorporate into its proposal the rental of a lot to be used for the storage of heavy equipment, the erection of a steel protection shield over an adjacent building, and the filling of an excavation under the sidewalk in front of the Thomas building. AAA agreed to these modifications and Thomas agreed to pay AAA $15,000 over and above the initial $200,000 bid, to cover the cost of this additional work. This raised the cost of the job to $215,000. The last price adjustments was to be for the cost of the \\\"collapse coverage.\\\"\\n. While BC&M requested payment of $4,198.00 for the additional insurance on the Thomas building demolition, BC&M prayed for only $3,544.61 in its complaint after deducting certain premium overpayments made by AAA. These overpayments were the subject of AAA's counterclaim and were admitted by BC&M in its answer.\\n. The trial court did not make special findings of fact in support of the judgment. However, at the end of closing arguments, the trial judge stated:\\nGentlemen, from what I have before me and piecing together what I can, I understand that from what the documents show and what it shows, that the Thomas Building that was to be wrecked and they were to pay the cost of the additional insurance that the Defendant did not have, which amounted to eighteen hundred and seventy-one dollars ($1,871.00) which was put into the contract, from which he received the payment and did not reimburse the Plaintiff and that all of the other business was for renewal of a policy that was already in effect and from what I have before me, I would have to rule that the Plaintiff has borne its reponsibility and I would have to show a judgment here for the Plaintiff in the amount of thirty-five forty-four, sixty-one ($8,544.61), from what I have before me.\\nIt appears the judge was understandably confused by statements of BC&M Vice-president Brian Field to the effect that at the same time the Thomas job negotiations were underway, BC&M was in the process of renewing AAA's basic liability coverage. However, there is clearly lacking any evidence which would suggest the cost of the additional collapse insurance for the Thomas job to be only $1,871.00. Field himself testified the collapse coverage developed a flat rate of $4,000.00. In addition, defendant's Exhibit A, a letter from BC&M's Jerry Pesavento to Winston Knauss, reads in part:\\nDear Winston:\\nEnclosed is an endorsement adding contractual liability coverage for the contract between AAA Wrecking Company and Frank P. Thomas for demolition of the Thomas Building. The additional premium for this contract is $189.00 and our invoice for this amount is attached. We are also enclosing the endorsement providing collapse coverage for the demolition of the Thomas Building at 15 East Washington Street. There is a $250.00 property damage deductible on this coverage. The premium for this specific coverage is $4,000 and our invoice for this amount is attached.\\n. Adams did not testify at the trial.\\n. The final contract price was $216,871.00.\\n. Pesavento did not testify at the trial.\"}"
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+"{\"id\": \"1520911\", \"name\": \"Ligon Specialized Hauler, Inc. v. Don E. Hott\", \"name_abbreviation\": \"Ligon Specialized Hauler, Inc. v. Hott\", \"decision_date\": \"1979-01-18\", \"docket_number\": \"No. 2-377A91\", \"first_page\": \"134\", \"last_page\": \"143\", \"citations\": \"179 Ind. App. 134\", \"volume\": \"179\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:15:28.942046+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ligon Specialized Hauler, Inc. v. Don E. Hott\", \"head_matter\": \"Ligon Specialized Hauler, Inc. v. Don E. Hott\\n[No. 2-377A91.\\nFiled January 18, 1979.]\\nPhillip E. Stephenson, Browne, Torrance, Spitzer, Herriman & Browne, of Marion, for appellant.\", \"word_count\": \"3178\", \"char_count\": \"19034\", \"text\": \"CHIPMAN, P.J.\\nA Two Hundred and Nineteen Dollar ($219) judgment was rendered in favor of plaintiff-appellee Donald Hott against defendant-appellant Lig\\u00f3n Specialized Hauler, Inc. (Lig\\u00f3n). Ligon's appeal presents essentially three questions for our review:\\n1. Was the decision of the trial court unsupported by, and contrary to, the evidence?\\n2. Was the trial court's decision contrary to law in that Hott was an improper party in interest?\\n3. Should Lig\\u00f3n be entitled to a new trial in light of newly discovered evidence?\\nWe affirm.\\nOur disposition of these questions has been hampered in two respects. First, the judgment presently under attack was rendered in the small claims docket of the Huntington County Court which pursuant to Ind. Code 33-10.5-7-2 (Supp. 1977) resolves cases under significantly relaxed rules of procedure and evidence. This in formality is evidenced in the case at bar by the total absence of pleadings and objections. Second, we have not been favored with an appellee brief which at first blush appears to impose upon this court the burden of controverting arguments advanced for reversal. However, in cases where the appellee fails to file a brief, Indiana courts have long applied a less stringent standard of review with respect to showings of reversible error. In light of these cases, appellant Lig\\u00f3n need only establish that the lower court committed prima facie error to win reversal. Fagan v. Royer (1963), 244 Ind. 377, 193 N.E.2d 64, 69; Colley v. Carpenter (1977), 172 Ind.App. 638, 362 N.E.2d 163, 166. Furthermore, the statement of facts contained in Ligon's brief is deemed by us to be accurate and sufficient for the disposition of this appeal. Colley at 166. Since the case at bar concerns a complicated and somewhat ambiguous factual situation regarding the proper parties to a lease agreement, we deal at length with the facts as elicited in Ligon's brief.\\nPlaintiff-appellee Hott brought this action against defendant-appellant Lig\\u00f3n for breach of a \\\"trip lease\\\" agreement. Hott owned the Agrarian Transport Company which leased trucks to companies which hauled general freight. One such company to which Hott leased trucks was Hine Line. According to Hott's testimony, he leased his trucks and drivers to Hine Line for the one-way hauling of freight to a specific destination and then Hott's drivers would enter into trip lease agreements under which the trucks would be leased to other companies for the return journey.\\nThe questions presented in this appeal revolve in large part around a trip lease signed by the agents of Lig\\u00f3n and Hott to haul lumber from Arkansas to Tennessee. The record established that the lumber was in fact delivered and that Lig\\u00f3n was paid and, therefore, no question is presented regarding performance of the agreement by the owner- lessor of the truck. The issue turns on who that owner-lessor is and, thus, to whom Lig\\u00f3n as lessee is liable under the trip lease agreement.\\nTrial commenced in the small claims docket of the Huntington County Court. Gary Wilmoski, Ligon's Assistant Claims Manager, and Hott were the only witnesses. During the course of trial, seven exhibits were introduced including the trip lease agreement in question. This agreement was signed by Don Fifer, Hott's driver, and an agent of Lig\\u00f3n. However, neither Hott's name nor his company's appears on this agreement; rather, it incorrectly denotes Fifer as the agent of Hine Line and Hine Line as the owner-lessor of the truck. Hott acknowledged that the truck had been leased to Hine Line, but testified that he was the owner-lessor and that Fifer was his employee.\\nPROPER PARTIES\\nLig\\u00f3n presents a well reasoned, two-pronged attack in support of its contentions that the lower court's judgment is not supported by sufficient evidence and is contrary to the evidence. Emphasizing the omission of Hott's name on the trip lease agreement, Lig\\u00f3n submits an argument Which is essentially founded on the lack of any contractual basis upon which Hott could base his claim. Lig\\u00f3n maintains, and we agree, that unless Hott has established his privity or third party beneficiary status, his action on the agreement must fail. Furthermore, any attempt to contradict the trip lease agreement and thereby establish the true owner-lessor of the truck would contravene the parol evidence rule. Again, so far as it goes, we agree with Ligon's analysis. Nevertheless, we find sufficient evidence to support the lower court's award on a contractual ground overlooked by Lig\\u00f3n \\u2014 reformation.\\nThe law in Indiana pertaining to the remedy of reformation is stated in Citizens' National Bank of Attica v. Judy (1896), 146 Ind. 322, 43 N.E. 259, at 264:\\nEquity will reform a written contract between the parties whenever, through mutual mistake, or mistake of one of the parties accompanied by the fraud of the other, it does not, as reduced to writing, correctly express the agreement of the parties, (citations omitted)\\nIn order to reform the trip lease agreement and thereby \\\"read out\\\" Hine Line as owner-lessor, Hott must establish the elements enunciated in Pearson v. Winfield (1974), 160 Ind.App. 613, 313 N.E.2d 95, at 99:\\nA party seeking reformation on the ground of mutual mistake must establish by clear and satisfactory proof the true intentions common to all parties to the instrument, that a mistake was made, and that the mistake was mutual and consequently the instrument, as written, does not state the true intention or agreement of the parties.\\nThe primary purpose of reformation is to effectuate the common intentions of all parties to an instrument which were incorrectly reduced to writing. It follows that a grant of reformation is necessarily predicated upon a prior understanding between all parties on all essential terms. Otherwise, there would be no standard to which an instrument could be reformed.\\nEven under our relaxed standard of review, we believe Hott has met this burden.\\nThe uncontradicted evidence in this case clearly established grounds for reformation of the trip lease agreement so as to omit Hine Line as a contracting party and insert Hott in place thereof. The agreement itself established that Lig\\u00f3n intended to contract for the lease of a truck from the owner-lessor. The agents of both Hott and Lig\\u00f3n apparently believed Hine Line to be that owner-lessor. Both believed Fifer was acting as the agent of Hine Line and not Hott. Both were mistaken. Due to this mutual mistake of fact, we find appropriate reformation eminently proper.\\nThis conclusion is buttressed by independent research which reveals that earlier decisions have also reformed contracts so as to include omitted parties. See, e.g., Parish v. Camplin (1894), 139 Ind. 1, 37 N.E. 607; Collins v. Cornwell (1892), 131 Ind. 20, 30 N.E. 796; Radebaugh v. Scanlon (1907), 41 Ind.App. 109, 82 N.E. 544; Prescott v. Hixon (1899), 22 Ind.App. 139, 53 N.E. 391. Unlike these cases, however, Hott also sought to omit one listed as a party to the lease agreement. Although this twist raises an issue of first impression, we will not sanction the acceptance of free benefits by Lig\\u00f3n under this lease agreement. Except for the agreement itself, the record does not disclose that Hine Line had any interest in the lease agreement. Only due to the mistake of the actual contracting parties' agents was Hine Line listed as a party. If neither Hine Line nor Hott can receive payment, Lig\\u00f3n enjoys a windfall. We will not sanction such unjust enrichment.\\nCAPACITY AND JOINDER\\nLig\\u00f3n also assails the judgment below on the grounds that Hott was an improper party in interest under Ind. Rules of Procedure, Trial Rule 17 and that Lig\\u00f3n may be subject to a second action on behalf of Hine Line for its interest in the trip lease agreement. We disagree.\\nOur holding on the previous issue disposes of Ligon's contention that Hott was not a real party in interest. Furthermore, Ligon's own brief acknowledges that Hott had an interest in this case since one of his trucks was involved in the lease agreement. We believe this sufficiently meets at least two of the three tests enunciated by Dean Harvey which have been utilized by our courts to determine who is a real party in interest.\\nAlthough a more vigorous analysis is presented regarding Ligon's second argument, it too must fail. Ligon's brief and contentions at trial evidence that its primary concern in this action was to avoid multiple suits and double liability under the trip lease agreement. As stated in their brief, \\\"[T]he real problem involved herein [is] that LIGON will be subject to a second suit on behalf of Hine Line for their interest in that lease agreement.\\\" In this factual setting Lig\\u00f3n argues that a new trial must be granted because Hott failed to bring Hine Line into this action. According to Lig\\u00f3n, it was unable to exercise this \\\"option\\\" of making Hine Line a party in light of the mandates of TR. 14.\\nWe believe that Lig\\u00f3n has overlooked TR. 19 and misconstrued on whose part the obligation to join \\\"indispensible\\\" parties rests. Assuming, without deciding, that Ligon's speculation of potential double liability is well founded, an adequate remedy may be found in TR. 19(A). Since Lig\\u00f3n could have made a motion before or during trial to join Hott as a party, the question arises whether Ligon's failure to do so constitutes a waiver under TR. 19(C). Even under the relaxed procedures practiced in the small claims docket, we hold it does. See Warner v. Young American Volunteer Fire Dept. (1975), 164 Ind.App. 140, 326 N.E.2d 831, 838. We will not allow a party to sit idly by until appellate review before presenting appropriate motions for the joinder of additional parties. To hold otherwise would be to transform such trials into quagmires of competing irrelevancies since a defendant's silence regarding indispensible parties would guarantee a new trial following appellate reversal.\\nNEWLY DISCOVERED EVIDENCE\\nLigon's final assignment of error centers on the lower court's failure to grant a new trial pursuant to TR. 59(A)(6) in light of newly discovered evidence. The alleged newly discovered evidence was an exclusive lease agreement between Hott and Hine Line which apparently involved the same truck as that in the trip lease agreement. Under the terms of the exclusive lease agreement, Hine Line was to receive twenty-five percent of all revenues acquired through the use of Hott's truck.\\nTo prevail, Lig\\u00f3n must establish that this evidence satisfied the four elements enunciated in Kelly v. Bunch (1972), 153 Ind.App. 407, 287 N.E.2d 586, at 588-589:\\nA motion for a new trial based on newly discovered evidence should be received with great caution and the alleged evidence should be carefully scrutinized. The newly discovered evidence must be material, and must be more than just cumulative or impeaching. The party seeking a new trial because of newly discovered evidence must show that the evidence is such that it could not have been discovered before the trial by the exercise of due diligence, and must show that the evidence is such that it would reasonably and probably result in a different verdict. The granting of a new trial because of newly discovered evidence is a matter which rests within the sound discretion of the trial court, whose decision will be disturbed only for a manifest abuse thereof, (citations omitted)\\nSee also Grenchik v. State ex rel. Pavlo (1978), 175 Ind.App. 604, 373 N.E.2d 189, 193. It is our opinion that Lig\\u00f3n could with due diligence have discovered this evidence prior to trial.\\nOne who seeks a new trial on the grounds of newly discovered evidence must set out facts establishing the use of due diligence. See Hogan v. State (1977), 174 Ind.App. 343, 367 N.E.2d 1100, 1102; Dawson v. State (1975), 163 Ind.App. 493, 324 N.E.2d 839, 845; Trout v. Summit Lawn Cemetery Association, Inc. (1974), 160 Ind.App. 552, 312 N.E.2d 498, 500; Lemons v. Barton (1962), 134 Ind.App. 214, 186 N.E.2d 426, 432; Dwyer v. McClean (1961), 133 Ind.App. 454, 175 N.E.2d 50, 55. Furthermore, the mere statement that \\\"reasonable diligence\\\" has been used does not suffice. Matis v. Yelasich (1956), 126 Ind.App. 287, 132 N.E.2d 728, 730.\\nAssuming, without deciding, that Ligon's bare assertion of \\\"reasonable diligence\\\" in its motion to correct errors satisfies the mandate of TR. 59(G), we find no factual basis nor does Lig\\u00f3n present one for concluding that this evidence could not have been procured prior to trial. From its inception, this case has turned on whether Hine Line or Hott was the owner-lessor of the leased truck. We believe that in the exercise of due diligence Lig\\u00f3n should have requested production of any documents or agreements between Hine Line and Hott so as to determine their respective interests in this truck. Even if unaware of the existence and relevance of the exclusive lease agreement before trial, Lig\\u00f3n certainly knew or should have known during the course of trial and should therefore have made a timely motion for its production. Johnson v. State (1974), 262 Ind. 516, 319 N.E.2d 126, 129. We hold accordingly that the lower court did not abuse its discretion in refusing to grant Lig\\u00f3n a new trial.\\nFinding no reversible error, we affirm.\\nMiller and Young, JJ. concur.\\nNOTE-Reported at 384 N.E.2d 1071.\\n. Except as otherwise provided in this article [33-10.5-1-1 \\u2014 33-10.5-8-6] the practice and procedure in the county court shall be as provided by statute and Indiana rules of procedure as adopted by the Supreme Court of Indiana. However, in cases of the small claims docket there shall be the following exceptions:\\n(a) Defendants shall be deemed to have complied with the statute and rule requiring the filing of an answer upon entering their appearance personally or by attorney. The appearance shall be deemed a general denial and shall preserve all defenses and compulsory counterclaims which may then be presented at the trial of the cause.\\n(b) If, at the trial of the cause, the court determines that the complaint is so vague and ambiguous that the defendant was unable to determine the nature of plaintiffs' claim, or that the plaintiff is surprised by defense or compulsory counterclaim raised by the defendant that the plaintiff could not reasonably have anticipated, the court shall grant a continuance.\\n(c) The trial shall be informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law, and shall not be bound by the statutory provisions or rules of practice, procedure, pleadings or evidence except provisions relating to privileged communications and offers of compromise.\\n. The above rules have been established for the protection of the court so that the court might be relieved of the burden of controverting the arguments advanced for a reversal where such burden rests upon the appellee. These rules are not for the benefit of the appellant. Their application is discretionary and dependent upon the appellant having made a prima facie showing of error in his brief. Bennett v. Pearson (1966), 139 Ind.App. 224, 218 N.E.2d 168, 171.\\n. In its brief Lig\\u00f3n argues it suffered damage in acquiring confirmatory memoranda that the delivery in question was made and, therefore, it is entitled to a set-off. As this contention was not presented in Ligon's motion to correct erorrs, it is waived. Ind. Rules of Procedure, Trial Rule 59(G). Furthermore, we note that the $219 damage award was based on computations made by Ligon's own witness.\\n. We note again that this issue was not raised in Ligon's motion to correct errors and therefore, it is waived. TR. 59(G).\\n. Pursuant to Cripe v. Coates (1954), 124 Ind.App. 246, 116 N.E.2d 642, a written contract may be reformed on parol evidence and then specifically enforced.\\n. Furthermore, we find no evidence which would suggest that Lig\\u00f3n would not contract with Hott. Indeed, the two companies had engaged in prior lease agreements.\\n. Hott attributed the mistaken inclusion of Hine Line as a party in the trip lease agreement to the error of Ligon's agent. Lig\\u00f3n, on the other hand, contends that the mistake was Fifer's fault since he had signed an earlier document as agent for Hine Line. Regardless, we find that the mistake charged was not due to Hott or Fifer's negligence. See generally 25 I.L.E. Reformation of Instruments \\u00a7 14 (1960).\\n. Dean Harvey states:\\nIn general, Indiana courts have defined real party in interest to mean the owner of the claim sued on and have employed at least three broad tests in determining whether a party is \\\"the real party in interest:\\\"\\n(a) Has he a real interest in the subject matter of the controversy?\\n(b) Is he entitled to the fruits or benefits of the action?\\n(c) Will his recovery fully protect the defendant against a subsequent suit on the same demand and will he be cut off from any just counterclaim against the demand? (citations omitted) 2 W. Harvey, Indiana Practice \\u00a7 17.3, at 212 (1970). We believe Hott has met the first two tests.\\n. Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if\\n(1) in his absence complete relief cannot be accorded among those already parties, or\\n(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may:\\n(a) as a practical matter impair or impede his ability to protect that interest or\\n(b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.\\nIf he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.\\n. In its brief Lig\\u00f3n states that the lower court was \\\"specifically requested\\\" to make Hine Line an additional party. In support of this contention, Lig\\u00f3n directs our attention to the following \\\"request\\\" by its attorney during final argument.:\\nYour Honor, I will propose one further solution, as you know if the court's going to make the order, and so much is owing and you know we're tendered into the Clerk \\u2014 we have to, you know \\u2014 and then he can add them as an additional party. If they default, then it can be ordered over to them directly. My only interest, like I said, your Honor, is just trying to stay out of the middle and ending up paying you know, two hundred dollars or whatever it is both places. Or getting themselves in trouble with the ICC.\\nWe note that this \\\"solution\\\" was proposed after the presentation of evidence and not until the judge had made it fairly clear that judgment would be rendered against Lig\\u00f3n. Furthermore, this request is, at best, ambiguous.\\n. Pleading nonjoinder. Nonjoinder under this rule may be raised by motion as provided in Rule 12(B)(7).\"}"
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+"{\"id\": \"1522458\", \"name\": \"United Farm Bureau Mutual Insurance Company v. Bruce R. Runnels\", \"name_abbreviation\": \"United Farm Bureau Mutual Insurance v. Runnels\", \"decision_date\": \"1978-11-30\", \"docket_number\": \"No. 1-378A55\", \"first_page\": \"435\", \"last_page\": \"441\", \"citations\": \"178 Ind. App. 435\", \"volume\": \"178\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:51:48.330113+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"United Farm Bureau Mutual Insurance Company v. Bruce R. Runnels\", \"head_matter\": \"United Farm Bureau Mutual Insurance Company v. Bruce R. Runnels\\n[No. 1-378A55.\\nFiled November 30, 1978.]\\nGlenn E. Davis, Sr., Davis & Davis, of Indianapolis, Gerald G. Angermeier, Jewell, Crump & Angermeier, of Columbus, for appellant.\\nWilliam H. Stone, Cline, King & Beck, of Columbus, for appellee.\", \"word_count\": \"1836\", \"char_count\": \"11621\", \"text\": \"Robertson, J.\\nDefendant-appellant United Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from an entry of summary judgment in favor of plaintiff-app\\u00e9llee Bruce R. Runnels (Runnels).\\nThe sole issue on appeal concerns the legality of a proration clause which effectively reduces an insurer's liability on any one policy below that mandated by our uninsured motorist statute, IND. CODE-27-7-5-1. Said statute provides, in pertinent part:\\n\\\"Sec. 1. No automobile liability or motor vehicle liability policy or insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Acts 1947, chapter 159, sec. 14, as amended heretofore and hereafter, under policy provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.\\nProvided, That the named insured shall have the right to reject such coverage (in writing) and Provided further, That unless the named insured thereafter requests such coverage, in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage, in connection with a policy previously issued to him by the same insurer.\\\"\\nActs 1947, chapter 159, sec. 14 to which the statute alludes, has been codified as IC 9-2-1-15 and establishes the amount of financial responsibility to be proven by an owner or operator of a motor vehicle in the event of an accident. Those amounts are $15,000 for injury or death of one person, and $30,000 for the injury or death of two or more persons for any one accident. As such, an insurer must include uninsured motorist coverage in the above amounts for policies delivered in this State unless such coverage is rejected in writing by the named insured.\\nThe facts which give rise to this appeal are not in dispute. Farm Bureau issued two policies to Runnels which separately covered his Jeep and Datsun. Each policy purported to provide the minimum coverage required by IC 27-7-5-1, and contained the following proration clause.\\n\\\"Except as provided in the foregoing paragraphs, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater portion of any loss to which this coverage applies than the limit of liabili-' ty hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.\\\"\\nOn July 23, 1976, Runnels was injured in his Datsun when struck by an uninsured motorist. The parties stipulated that Runnels suffered personal injuries in excess of $30,000, and that the accident was solely and proximately caused by the negligence of the uninsured motorist. Runnels sought and the trial court awarded, on the basis that the proration clauses were void as repugnant to IC 27-7-5-1, judgment against Farm Bureau in the aggregate amount under both policies for $30,000. Farm Bureau alleges error in declaring the clauses void.\\nIn essence, the proration clauses provided that if Runnels had other available insurance, his maximum recovery would be limited to the highest ceiling amount of all applicable policies. Further, the liability of Farm Bureau would be computed as an amount proportionate to the limits that the Farm Bureau policy bore to the limits of the \\\"other insurance.\\\" Accordingly, under the facts at bar, Farm Bureau asserts Runnels cannot collect more than $15,000 which would be borne by both policies in the proportionate amount of $7,500 each. Farm Bureau contends that IC 27-7-5-1 is satisfied if a total of $15,000 is made available to the injured insured, while Runnels argues that the statute applies to each policy, and that therefore the insurer cannot contractually dilute the mandatory $15,000 on the fortuitous circumstances of other insurance being available.\\nSeveral recent cases have addressed the validity of contractual provisions in insurance policies which in practical effect do not singly afford the statutory minimum coverage to victims who suffer injury at the hands of uninsured motorists. Excess and escape clauses, whereby an uninsured motorist carrier is either partially or completely relieved of liability, have been pronounced invalid as in contravention of IC 27-7-5-1. Patton v. Safeco Insurance Company of America (1971), 148 Ind.App. 548, 267 N.E.2d 859; Simpson v. State Farm Mutual Automobile Insurance Company (S.D. Ind. 1970), 318 F.Supp. 1152. Likewise, an attempt to \\\"set off\\\" funds recovered under workmen's compensation is in derogation of the statute. Leist v. Auto Owners Insurance Company (1974), 160 Ind.App. 322, 311 N.E.2d 828. The rationale of these cases is rooted in the proper interpretation of IC 27-7-5-1, which is dispositive of the issue presented herein.\\nFirst, we are bound to give effect to the clear and unambiguous meaning of a statute, and we are not at liberty to substitute language under the assumption we believe the Legislature intended a result at variance with that which is clearly expressed. Ott v. Johnson (1974), 262 Ind. 548, 319 N.E.2d 622; Grody v. State (1972), 257 Ind. 651, 278 N.E.2d 280; Town of Kewanna Water Works v. Indiana Employment Security Board (1961), 131 Ind.App. 400, 171 N.E.2d 262. Secondly, statutes relating to insurance and insurance policies are to be read in a light most favorable to the insured. Cannon v. American Underwriters, Inc. (1971), 150 Ind.App. 21, 275 N.E.2d 567; Patton, supra; Leist, supra. Lastly, uninsured motorist legislation is remedial in nature and should be liberally construed. Indiana Insurance Company v. Noble (1970), 148 Ind.App. 297, 265 N.E.2d 419; Cannon, supra. In accordance with the foregoing, we expressly adopt the holding in Patton, supra, wherein this court declared:\\n\\\"Section 39-4310 [IC 27-7-5-1], supra, states that '[n]o policy of insurance shall be delivered or issued for delivery in this state unless .' Such statute further states that it is ' for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles The thrust of the statute is directed at each policy of insurance and for the protection of persons insured.\\\" [Emphasis added.]\\n148 Ind.App. at 554, 267 N.E.2d at 863-4.\\nAnd, further:\\n\\\"If the Legislature had intended to limit the recovery of persons injured by an uninsured motorist to the limits of one policy, even though such persons are covered by more than one policy, \\u00a7 39-4310, supra, would be directed at the injured parties and not at each policy of insurance. Therefore, the 'excess-escape' clause, being an attempt by the insurer to limit the application of \\u00a7 39-4310, supra, is in derogation of said statute, invalid and unenforceable.\\\"\\n148 Ind.App. at 555, 267 N.E.2d at 864.\\nThe Patton interpretation applies with equal force here. The uninsured motorist coverage in both policies were applicable because such coverage attached to the person of the insured. See Cannon, supra. Since the proration clauses attempted to limit the exposure of Farm Bureau under each policy to less than $15,000, the clauses were properly declared void as being in contravention of IC 27-7-5-1.\\nNevertheless, Farm Bureau urges us to adopt the reasoning of Nationwide Mutual Insurance Co. v. Ealy (1972), 221 Pa. Super. 138, 289 A.2d 113, wherein the court held that the purpose of similar uninsured motorist legislation was to ensure compensation to the same extent as if the uninsured motorist had carried the minimum amount of insurance under the Pennsylvania financial responsibility statute. In support, Farm Bureau argues that Ealy is consistent with Indiana law, citing Bocek v. Inter-Insurance Exchange of the Chicago Motor Club (1977), 175 Ind.App. 69, 369 N.E.2d 1093, and Indiana Insurance Company v. Noble, supra, wherein the Court of Appeals stated that the uninsured motorist statute should be considered in light of our financial responsibility statute. Unlike Ealy, however, neither case held that the purpose of IC 27-7-5-1 was to ensure compensation only to the extent of $15,000 per individual. Rather, in Bocek, supra, we declared the purpose was to place the injured insured in the same position as if the uninsured motorist had carried liability insurance and that the statute is directed to injuries for which the insured is legally entitled to compensation. Furthermore, the Ealy interpretation of Pennsylvania uninsured motorist legislation is diametrically opposed to our interpretation of IC 27-7-5-1 as announced in Patton, Simpson, and Leist. As such, we decline to adopt the reasoning and result of Ealy, supra.\\nFarm Bureau next contends that the \\\"declarations\\\" in each policy limited the total uninsured motorist coverage to $15,000, relying on Jeffries v. Stewart (1974), 159 Ind.App. 701,309 N.E.2d 448. In Jeffries, we indicated that a single policy covering several vehicles might validly restrict uninsured motorist coverage to $15,000 per individual (absent an ambiguity) if properly stated in the policy declarations. Jeffries is clearly distinguishable because it involved a single policy and could therefore come within the dictates of IC 27-7-5-1, that each policy provide for $15,000 coverage. When separate policies are issued, however, an insurer may not accomplish in the declaration what is otherwise forbidden by IC 27-7-5-1.\\nLastly, Farm Bureau suggests that it would not be unjust to limit recovery notwithstanding the fact that Runnels paid two premiums for coverage under the policies. Farm Bureau asserts that the premiums were based on \\\"actuarial necessity\\\" or \\\"the additional risk of exposure to such a loss.\\\" From the foregoing, however, it is obvious that our result today is mandated by the purpose and effect of IC 27-7-5-1, and not on the basis of the premiums paid by Runnels. Farm Bureau attempted to limit coverage in derogation of the uninsured motorist statute, and hence the basis upon which the premiums were computed is wholly irrelevant.\\nAccordingly, the trial court is in all respects affirmed.\\nLybrook, P.J. and Lowdermilk, J., concur.\\nNOTE \\u2014Reported at 382 N.E.2d 1015.\\n. The subject has received extensive attention. See e.g., 28 A.L.R. 3rd 551; 7 Appleman, Insurance Law and Practice \\u00a7 4331 (Supp. 1972); 19 Couch on Insurance 2d \\u00a7 82.1:10 (1968); Widiss, Uninsured Motorist Coverage \\u00a7 2.61 (1970). For a critical analysis of Indiana law, see 9 Val.U.L.Rev. 135 (1974-5).\\n. For an application of the Jeffries rationale, see Miller v. Hartford Accident & Indemnity Co. (7th Cir. 1974), 506 F.2d 11. Like Jeffries, however, Miller is inapplicable here in that it involves a single policy.\"}"
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+"{\"id\": \"1522690\", \"name\": \"Watkins v. The State\", \"name_abbreviation\": \"Watkins v. State\", \"decision_date\": \"1879-11\", \"docket_number\": \"\", \"first_page\": \"427\", \"last_page\": \"432\", \"citations\": \"68 Ind. 427\", \"volume\": \"68\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:52:45.970727+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Watkins v. The State.\", \"head_matter\": \"Watkins v. The State.\\nCriminal Law. \\u2014 Assault and Battery,\\u2014 Conviction before Justice of Peace, Fraudulently Procured by Defendant, no Bar to Indictment. \\u2014 -Where a person has fraudulently procured himself to be complained of, before a justice of the peace, for an assault and battery, and to be arrested on a warrant, and has voluntarily submitted to a conviction on such complaint, for the purpose of avoiding the effect of a subsequent complaint, made by the injured party, which he believed or had reason to believe would be made against him, such conviction is no bar to a subsequent indictment for the same offence.\\nSame. \\u2014 Penalty.\\u2014 When Conviction not deemed Fraudulent. \\u2014 Under the statute of this State, the legal penalty for an assault and battery is a fine in any sum \\u201c not exceeding one thousand dollars, to which may be added imprisonment not exceeding six months.\\u201d 2 K. S. 1876, p. 459, sec. 7. Therefore, in such case, the rule can not apply, that when the legal penalty is exact and certain, and a person who carries on a prosecution against himself has borne it in full, the judgment will not be deemed fraudulent in law.\\nFrom tlie Gibson Circuit Court.\\nC. A. Buskirk, for appellant.\\nT. W. Woollen, Attorney General, and W. II. Trippett, Prosecuting Attorney, for the State.\", \"word_count\": \"1681\", \"char_count\": \"9645\", \"text\": \"Howk, C. J.\\nThis was a prosecution against the appellant, upon affidavit and information filed in the circuit court, on the 10th day of April, 1879, for an assault and battery alleged to have been by him committed on the 16th day of February, 1879, at Gibson county, on one Le\\u00f1o ra Watkins.\\nTo the information the appellant answered by a special plea in bar, setting uj) his former conviction of and for the same offence, by and before a justice of the peace of Gibson county, on the 5th day of April, 1879. To this special plea or answer, the State, by its attorney, replied in two paragraphs, to wit:\\n1. A general denial; and,\\n2. A special reply.\\nThe appellant demurred to the special reply, for the alleged insufficiency of the facts therein to constitute a reply, which demurrer was overruled by the court, and to this ruling the appellant excepted.\\nOn arraignment the appellant's plea was, that he was not guilty, and, by consent, the issues joined were tried by the court, and a finding was thereon made for the State, that the appellant was guilty as charged, and assessing his fine in the sum of five dollars ; and judgment was rendered accordingly.\\nThe only error assigned by the appellant, in this court, is the decision of the circuit court in overruling his demurrer to the second reply of the State to his special plea or answer. In this second reply, the State alleged, in substance, that the said conviction and judgment before the said justice of the peace, as set out and averred in the appellant's plea in bar, were procured by the fraud of the appellant, in this, that the appellant, on the 5th day of April, 1879, being then and there the son of one Purnell Watkins, and residing with and at the home of said Purnell Watkins, requested and procured him, the said Purnell, to make the affidavit mentioned in said plea in bar; and the appellant \\u2022 and said Purnell Watkins then and there agreeing and colluding for the purpose of keeping said offence, charged in said affidavit, from being prosecuted in good faith, and from being prosecuted in the Gibson Circuit Court, and for the purpose of defeating the ends of justice by procuring a low and inadequate penalty to be assessed against the appellant for said offence, went together before said justice on said day, and then and there, and in collusion with the appellant, and at his special instance, request, desire and wish, fraudulently made and filed the said affidavit, and that, after the formal issuing of a warrant by said justice, and the formal arrest of the appellant on said warrant, thereupon the appellant plead guilty to the charge contained in said affidavit, and the said justice thereupon rendered judgment, assessing a fine against the appellant for said offence in the small sum of five dollars, and being the same judgment mentioned in said plea in bar ; that in the making of the said affidavit and the filing thereof, and in the pretended trial as aforesaid, the State of Indiana was not then and thei-e represented and was no party to said judgment; that the fine assessed against the appellant in said judgment was wholly inadequate and too low for the grave and particular offence charged in said affidavit and the information herein ; that said offence was in the appellant's beating Lenora Watkins, who was then and there the appellant's wife, striking her, the said Lenora, with a ramrod on her back and shoulders eight or ten times, with great severity, and then and there and thereby bruising her flesh ; that the said beating and striking were then and there done in great anger and malice, and without any provocation whatever; that, at the time the appellant requested the said Purnell Watkins to make the affidavit as aforesaid, and at the time of the filing of said affidavit and of the rendition of said judgment thereon, and all the time from the time of the commission of said offence, as charged in the information herein, up to the time of the rendition of said judgment, the appellant, as well as the said Purnell Watkins, believed, and had good reason to believe, that the said Lenora would institute a prosecution against him, the appellant, for said offence; and it was for the purpose of avoiding the effect of such a prosecution, begun and instituted by said Lenora and at her instance, that the appellant procured the said Purnell Watkins to institute said proceedings before said justice; and this the State, by its attorney, was ready to verify. Wherefore, etc.\\nIt seems to us that the court committed no error in overruling the appellant's demurrer to this special reply, for the facts alleged therein, if true, and, as they are well pleaded, the demurrer admits them to be true, show, beyond all question or room for doubt, that the proceedings before the justice wore instituted, and his judgment thereon was obtained against the appellant, by his own procurement, with the fraudulent intent and purpose to defeat and bar thereby a prosecution in good faith by the injured party. It can hardly be believed that any man would, in good faith, institute a criminal prosecution against his own son, for the purpose either of vindicating the majesty of the law, or of securing the just punishment of the guilty. The law on the subject under consideration is thus stated in section 1010 of 1 Bishop on Criminal Law :\\n\\\" But sometimes a man, conscious of guilt, procures proceedings against himself, and suffers a slight punishment, thinking thereby to bar a prosecution carried on in good faith. In such a case, if the first proceeding is really managed by himself, either directly or through the agency of another, he is, while thus holding his fate \\\"in his own hand, in no jeopardy; the plaintiff State is no party in fact, but only such in name-; the judge is imposed upon indeed, yet in point of-law adjudicates nothing ; ' all is a mere puppet-show, and every wire moved by the defendant himself.'. The judgment therefore is a nullity, and is no bar to a real prosecution.\\\"\\nIn the case of Commonwealth v. Dascom, 111 Mass. 404, the doctrine was fully sanctioned and approved, that where a person has fraudulently procured himself to be complained of before a justice of the peace, for an assault and battery, and to be arrested on a warrant, and has voluntarily submitted to a conviction on such complaint, for the purpose of avoiding the effect of a subsequent complaint, made by the injured party, which he believed or had reason to' believe would be made against him, such conviction, thus procured for such fraudulent purpose, would be no bar to a subsequent indictment for the same offence. To the same effect are the following cases: Commonwealth v. Alderman, 4 Mass. 477; The State v. Little, 1 N. H. 257; Commonwealth v. Jackson, 2 Va. Cas. 501; The State v. Epps, 4 Sneed, 552; The State v. Green, 16 Iowa, 239; The State v. Atkinson, 9 Humph. 677; The State v. Lowry, 1 Swan, 34; The State v. Clenny, 1 Head, 270; The State v. Colvin, 11 Humph. 599; The State v. Yarbrough, 1 Hawks, 78.\\nThe appellant's counsel seems to rely, in argument, upon the law as stated in the concluding sentence of said section 1010, in 1 Bishop on Criminal Law, 5th ed., as follows :\\n\\\" It would seem, however, that here, if the legal penalty was an exact and certain one, and the person thus carrying on the cause against himself had actually borne it in full, not merely in part, the State would have suffered nothing, and so the judgment would not be deemed in law fraudulent.\\\"\\n' Conceding that the sentence quoted contains a correct statement of the law applicable to the case mentioned therein, as perhaps it does, it seems to us that the doctrine therein enunciated would not apply to the case now before us. Eor, under the statute of this State, the legal penalty for an assault and battery is a fine in any sum \\\" not exceeding one thousand dollars, to which may be added imprisonment not exceeding six months.\\\" 2 R. S. 1876, p. 459, sec. 7.\\nIt can not be said, therefore, that the legal penalty for an assault and battery is, in this State, an exact and certain one ; nor can it be said, upon the facts alleged in the second reply in this case, that the appellant had actually borne such legal penalty in full.\\nThe appellant's demurrer to the special reply -was correctly overruled.\\nThe j udgment is affirmed, at the appellant's costs.\"}"
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+"{\"id\": \"1539170\", \"name\": \"Stoner v. Custer, Extr. Etc., et al.\", \"name_abbreviation\": \"Stoner v. Custer\", \"decision_date\": \"1968-12-30\", \"docket_number\": \"No. 20,736\", \"first_page\": \"38\", \"last_page\": \"44\", \"citations\": \"144 Ind. App. 38\", \"volume\": \"144\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:50:45.337824+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Stoner v. Custer, Extr. Etc., et al.\", \"head_matter\": \"Stoner v. Custer, Extr. Etc., et al.\\n[No. 20,736.\\nFiled December 30, 1968.\\nRehearing denied March 18, 1969.\\nTransfer granted October 22, 1969.]\\nWilliam F. McNagny, J. A. Bruggeman, Barrett, Barrett & McNagny, Fort Wayne, for appellant.\\nGilmore S. Haynie, Milford M. Miller, Jr., Livingston, Dil-dine, Haynie & Yoder, Fort Wayne, for appellees.\", \"word_count\": \"1936\", \"char_count\": \"10892\", \"text\": \"Caeson, C. J.\\nThis case comes to us from the Circuit Court of Adams County. The Executor of the Will of Herbert Stoner filed a Petition to Settle and Allow the Account and To Construe the Will, to determine who should bear the burden of paying the gift tax owed by the decedent at his death and whether the widow was entitled to the one-third (1/3) interest in all of the decedent's property bequeathed to her in Item III of the will or one-third (1/3) of what remained after payment of certain debts and expenses.\\nTo the petition filed by the Executor, the appellant filed objection claiming that the fee and expenses charged by the Executor and his attorney were excessive and appellant further set up in her answer that a proper construction of the will would require the Executor to pay the gift taxes debt of the decedent, or a transfer tax under Item II of the will and that the bequest to her in Item III should be construed as giving her one-third (1/3) of the gross estate.\\nThe court overruled the objection to the Executor's partial account and confirmed it as a final account and held that the bequest above set out was to be reduced by the decedent's debts and expenses of administration and further reduced by charging the appellant with decedent's unpaid gift tax insofar as it exceeded her marital deduction and entered judgment accordingly.\\nThe appellant filed a motion for a new trial which reads as follows:\\n\\\"Comes now Helen N. Stoner and moves the Court for a new trial herein on the issue joined in the above entitled matter by her answer to the petition to construe will and to determine heirship on each of the following grounds. \\\"1. The decision of the court is not sustained by sufficient evidence.\\n\\\"2. The decision of the court is contrary to law.\\n\\\"3. Each of the findings of fact, Nos. 8, 10, and 11 is contrary to law and is not sustained by sufficient evidence.\\n\\\"4. The court erred in each of its conclusions of law, Nos. 2, 3, 4, and 8.\\n\\\"And, on the issue joined on her objection to the account on each of the following grounds.\\n\\\"1. The decision of the court is not sustained by sufficient evidence.\\n\\\"2. The decision of the court is contrary to law.\\n\\\"3. Finding of fact No. 4 is contrary to law and is not sustained by sufficient evidence.\\n\\\"4. The Court erred in its conclusion of law No. 1.\\n\\\"WHEREFORE, Helen N. Stoner prays for a new trial in each of said issues.\\\"\\nThe' court overruled the motion for a new trial and it is to this ruling that the appellant made the assignment of errors:\\n\\\"The Appellant avers that there is manifest error in the judgment and proceedings on this case, which is prejudicial to Appellant, in this:\\n\\\"1. The court erred in overruling Appellant's Motion For a New Trial.\\n\\\"2. The court erred in overruling each of specifications 1, 2, 3 and 4 of Appellant's Motion For a New Trial on the issues joined by her Answer to the Petition to Construe Will and To Determine Heirship.\\n\\\"3. The court erred in overruling each of specifications 1, 2, 3 and 4 of Appellant's Motion For a New Trial on the issues joined on her Objection to the Account.\\\"\\nIn the argument portion of the appellant's brief, she presents the propositions sustaining the assignment of error in three separate sections.\\nIn order for us to present the problems raised by the appellant's position, and that of the appellees, with reference to construction of the will, it is necessay that we set out certain Items of the Will in full:\\nITEM TWO\\n\\\"I hereby authorize and direct my Executor hereinafter named to pay all my just debts, the expenses of my last sickness and funeral and all other just debts and charges against my estate. I further direct my Executor to pay all inheritance, transfer and estate taxes which may be charged against my estate or against any legatee or devisee herein named by reason of any legacy or devise herein given, and I specifically direct said Executor that all such inheritance, transfer and estate taxes shall be paid out of the principal of my estate and I hereby waive on behalf of my estate any right to recover from any person any part of such taxes so paid. No legacy or devise in this instrument shall be diminished by the amount of any such taxes assessed as a result of my death and such legacy or devise, but any such taxes shall be paid by my Executor from the residue of my estate.\\\"\\nITEM THREE\\n\\\"Subject to the provisions of Item 2 hereof, I do give and bequeath to my wife, Helen Niblick Stoner, if she shall survive me, the sum of one thousand dollars ($1,000.00) in cash.\\n\\\"Further, I do hereby give, devise and bequeath to my wife, Helen Niblick Stoner, if she shall survive me, all my jewelry of any description and any automobile which I may own at the time of my death.\\n\\\"Further, I do hereby give, devise and bequeath to my wife, Helen Niblick Stoner, if she shall survive me, the one-third (1/3) interest in all the rest of my property which includes all of my real property, personal property and/or mixed including but not limited to my stocks, bonds, money, mortgages, notes and bank accounts.\\n\\\"It is my intention by this item to give and devise to my wife, Helen Niblick Stoner, the sum of one thousand dollars ($1,000.00) in cash, my jewelry and automobile, and in addition thereto, one third (1/3) of my personal and real estate. In the event my wife, Helen Niblick Stoner, shall not survive me, then the bequests and devises made to her in this Item shall fail and all property herein given, devised and bequeathed to my said wife, Helen Niblick Stoner, shall fall into and be distributed as a part of my residuary estate.\\\"\\nITEM SEVEN\\n\\\"Subject to the provisions of Items 1 to 6 hereof consecutive and inclusive, I do hereby bequeath the following amounts to the following named persons if said persons shall survive me and be then over the age of twenty one (21) years:\\\" (Herein, the Testator set out certain specific bequests.)\\nItem Eight was subject to the provisions of Items One to Seven, consecutive and inclusive; Item Nine was subject to the provisions of Items One to Eight consecutive and inclusive; Item Ten was subject to the provisions of Items One to Nine, consecutive and inclusive. This Item contained specific bequests to the First Methodist Church of Decatur, Indiana, and to the Trustees of the Chicago Temple. Item Eleven was used to devise the residue of the estate and was made subject to the provisions of Items One to Ten consecutive and inclusive.\\nIn construing a will, the Supreme Court of Indiana, in the case of Brown v. Union Trust Co. (1951), 229 Ind. 404, 98 N. E. 2d 901, at page 411, said:\\n\\\"If the words used in a will are not ambiguous and clearly express the intention of the testator, they must govern. That which is plain and manifest needs no interpreta tion. Ross v. Clore (1948), 225 Ind. 597, 599, 76 N. E. 2d 839; Jenkins v. King (1946), 224 Ind. 164, 701, 171, 174, 65 N. E. 2d 121. A will expressed in clear and precise terms, manifesting the testator's intention and leading to nothing absurd, presents no reason for refusing the intention which it naturally presents to the mind. Coon v. Coon (1918), 187 Ind. 478, 484, 118 N. E. 820. See Garrigus v. Board of Commissioners of Parke Co. (1872), 39 Ind. 66, 70.\\nIn the case of Curry v. Curry (1914), 58 Ind. App. 567, 105 N. E. 951, at page 576, this court said:\\n\\\"The intent of the testator is recognized by all the authorities as being the polar star to which the courts must always look in construing a will. Laisure v. Richards Bushong (1903), 161 Ind. 533, 537, 69 N. E. 291, 100 Am. St. 287, 63 L. R. A. 593; Fenstermaker v. Holman, supra; Moore v. Gary (1897), 149 Ind. 51, 57, 48 N. E. 630; Calvin v. Springer (1902), 28 Ind. App. 443, 446, 63 N. E. 40; Smith v. Meiser, supra. In ascertaining this intent, the court should consider the will in its entirety and if possible give effect to every item and word thereof.\\\"\\nSee Also: Fenstermaker v. Holman (1901), 158 Ind. 71, 74, 62 N. E. 699; Skinner v. Spann (1911), 175 Ind. 672, 684, 93 N. E. 1061, 95 N. E. 243; Garrison v. Day (1905), 36 Ind. App. 543, 548, 76 N. E. 188; Heasman v. Pearse (1871), 7 L. R. Ch. 275, 283; Gray, Rule against Perpetuities (3d ed.) \\u00a7 629, 630, 631, 633; Ridgeway v. Lanphear (1885), 99 Ind. 251, 257.\\nApplying the above rules, we think that the intent of the Testator is clear and unambiguous. The will, in our judgment, bequeaths a one-third (1/3) of the gross estate to the appellant and the subsequent bequests down to the residuary bequests under Item 11, are each subservient to the bequests preceeding them and to all other debts of the decedent, taxes of whatever nature and other expenses, including administration expenses provided for in Item 2, to be paid out of the residuary estate. If the residuary estate is not adequate to pay such obligations, then the specific bequests shall abate in the inverse order as they are set out in the will, pursuant to the provisions of Acts 1953, ch. 112, \\u00a7 1703, p. 295, being Burns' Stat. Ann. (1953 Repl.) \\u00a77-1103, p. 345.\\nThe trial court is directed to revise his findings in conformity with this opinion and state a consistent judgment thereon.\\nIn connection with the assignment by the appellant attacking the fees and expenses claimed by the Executor in his accounting, we affirm the findings and judgment of the trial court and direct attention to the language of this court in the case of Lyons et al. v. Greene, Administrator, etc. (1964), 136 Ind. App. 419, 202 N. E. 2d 172, at page 425, wherein we said:\\n\\\" 'The personal representative, when no compensation is provided in the will, or when he renounces all claim to the compensation provided in the will, shall be allowed such compensation for his services as the court shall deem just and reasonable.'\\n\\\"We have previously held that we will not disturb the decision of the lower court approving fees for the executor and its attorneys where the evidence does not substantiate the charge of maladministration nor disclose that the fees were excessive or unreasonable. Pohlmeyer v. Second Nat. Bank of Richmond, supra. No evidence was offered by appellant as to the value of the administrator's services nor substantiating appellant's charge of maladministration on the part of the appellee.\\\"\\nThe judgment of the trial court, approving the accounting of the Executor with respect to fees, out-of-pocket expenses and administration expenses is affirmed.\\nJudgment reversed in part and affirmed in part.\\nCooper, Faulconer and Prime, JJ, concur.\\nNote. \\u2014 Reported in 242 N. E. 2d 651.\"}"
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+"{\"id\": \"1553489\", \"name\": \"Mutual Benefit Life Insurance Company v. Simpson, Administrator, et al.\", \"name_abbreviation\": \"Mutual Benefit Life Insurance v. Simpson\", \"decision_date\": \"1904-05-24\", \"docket_number\": \"No. 20,320\", \"first_page\": \"10\", \"last_page\": \"12\", \"citations\": \"163 Ind. 10\", \"volume\": \"163\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:39:04.727819+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mutual Benefit Life Insurance Company v. Simpson, Administrator, et al.\", \"head_matter\": \"Mutual Benefit Life Insurance Company v. Simpson, Administrator, et al.\\n[No. 20,320.\\nFiled May 24, 1904.]\\nAppeal and Ebbob. \\u2014 Receiving Money on Judgment. \\u2014 Dismissal.\\u2014Where the appellant accepts payment of the judgment appealed from, even though done for the accommodation of the appellee and with an agreement that such acceptance shall not affect its rights on appeal, a motion to dismiss will be sustained.\\nFrom the Montgomery Circuit Court; Jere West, Judge.\\nAction by Alfred L. Simpson, as administrator of the estate of Elijah II. Boxley, deceased, against the Mutual Benefit Life Insurance Company and others. From a judgment for said company for the principal claimed on its mortgage, but denying interest and attorneys\\u2019 fees, it appeals. Transferred from Appellate Court under \\u00a7 1337u Burns 1901.\\nDismissed.\\nF. P. Mount, for appellant.\\nII. M. Perry, 8. C. Kennedy and Dumont Kennedy, for appellees.\", \"word_count\": \"767\", \"char_count\": \"4509\", \"text\": \"Jordan, C. J.\\nAppellee Simpson, as administrator of the estate of Elijah II. Boxley, deceased, filed his petition in the lower court, asking for an order to sell real estate of his decedent for the payment of debts. Appellant held a mortgage on the premises sought to be sold, and was made a party defendant to the proceedings. It appeared and filed an answer setting up its mortgage, and alleging that the same was a first and best, lien on the realty, and that there was due on the mortgage note the sum of $900 as principal, together with $32.50 interest, and $46.12 attorney's fees. The court, upon hearing the petition, found that there was clue appellant upon the mortgage in question the principal sum of $900, and no more. A sale of the real estate was ordered, and it was further adjudged that the amount due to appellant, with, interest thereon until paid, was a first and best lien upon the premises. The court rejected and disallowed appellant's claim for attorney's fees upon the mortgage note. Erom this judgment it appealed, and filed a transcript of the record in the office of the clerk of this court on March 31, 1903. The cause was submitted on April 30, and on May 12 appellant filed its brief. A reversal of the judgment is asked by the appellant solely upon the ground that the court erred in refusing to allow on the mortgage note, in .addition to the principal sum of $900, $46.12 as attorney's fees.\\nA motion to dismiss the appeal has been filed by appellee on the ground that appellant, after appealing from the judgment below, received and accepted the sum of $907.87 in full payment and satisfaction of the amount adjudged to be due by the lower court. This fact is fully verified by affidavits. Appellant has filed a counter affidavit wherein it admits that it received from and accepted of appellee the said sum of $907.87 on the mortgage indebtedness, but alleges that the money was received and accepted for the sole purpose of accommodating appellee in the sale of the mortgaged realty, and upon his representations that appellant could accept the money without prejudice to its rights in this appeal.\\nSection 644 Burns 1901 provides, among other things, that \\\"the party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon.\\\" This statute absolutely forbids a party who receives money in satisfaction of a judgment, in whole or in part, from thereafter prosecuting or maintaining an appeal therefrom. This has universally been the holding of the higher courts of this State. Patterson v. Rowley (1878), 65 Ind. 108; State, ex rel., v. Kamp (1886), 111 Ind. 56; Newman v. Kiser (1890), 128 Ind. 258; Holman v. Stannard (1895), 14 Ind. App. 146; Martin v. Bott (1897), 17 Ind. App. 444,\\nThe fact that appellant may have received the money in question on its judgment at the solicitation of appellee, for the accommodation of the latter, and in the belief that its right to maintain the appeal would not thereby be affected, can not avail to prevent the dismissal of the appeal. Holman v. Stannard, supra.\\nEy receiving the money, appellant eliminated from the case all real questions in controversy. In fact, under the circumstances, the record presents nothing but a moot question, and, as a general rule, in any appeal to- this court where such appears to be a fact, the appeal will be dismissed. Rowe v. Bateman (1899), 153 Ind. 633; State, ex rel., v. Board, etc. (1899), 153 Ind. 302; Chicago, etc., Co. v. Lewis (1901), 156 Ind. 232.\\nIt follows that the motion must be sustained, and the appeal is accordingly dismissed.\"}"
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+"{\"id\": \"1554744\", \"name\": \"Reheweg, Administrator, v. National Casualty Company of Detroit, Michigan\", \"name_abbreviation\": \"Reheweg v. National Casualty Co. of Detroit\", \"decision_date\": \"1930-07-02\", \"docket_number\": \"No. 13,863\", \"first_page\": \"722\", \"last_page\": \"722\", \"citations\": \"91 Ind. App. 722\", \"volume\": \"91\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:45:50.642177+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Reheweg, Administrator, v. National Casualty Company of Detroit, Michigan.\", \"head_matter\": \"Reheweg, Administrator, v. National Casualty Company of Detroit, Michigan.\\n[No. 13,863.\\nFiled July 2, 1930.\\nRehearing denied November 13, 1930.]\\nLee J. Hartzell, Levi A. Todd and Cline & O\\u2019Malley, for appellant.\\nJohn H. Aiken, Otto E. Grant and Arthur L. Aiken, for appellee.\", \"word_count\": \"46\", \"char_count\": \"298\", \"text\": \"Pee Cueiam.\\nAffirmed.\"}"
\ No newline at end of file
diff --git a/ind/1558807.json b/ind/1558807.json
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+"{\"id\": \"1558807\", \"name\": \"Black v. City of Peru\", \"name_abbreviation\": \"Black v. City of Peru\", \"decision_date\": \"1968-10-14\", \"docket_number\": \"No. 20,750\", \"first_page\": \"378\", \"last_page\": \"387\", \"citations\": \"143 Ind. App. 378\", \"volume\": \"143\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:22:33.062071+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bierly, and Pfaff, J.J., concur;\", \"parties\": \"Black v. City of Peru\", \"head_matter\": \"Black v. City of Peru\\n[No. 20,750.\\nFiled October 14, 1968.\\nRehearing denied November 8, 1968.\\nTransfer granted March 17, 1969.]\\nR. M. Rhodes, of Peru, for appellant.\\nRussell T. Keith and Keith & Berkshire, of Peru, for appellee.\", \"word_count\": \"2914\", \"char_count\": \"16594\", \"text\": \"Smith, J.\\nOn April 27, 1965, the appellee, City of Peru, Indiana, a municipal corporation, filed an affidavit and complaint in the Peru City Court charging the appellant, James Black, with a violation of the Junk Car Removal Ordinance No. 40, 1964, which ordinance had been duly enacted by the City Council of the City of Peru, Indiana.\\nThe appellant entered an appearance to the action and filed a motion to quash the complaint and affidavit, which motion was overruled by the Judge of the Peru City Court.\\nOn the 18th day of February, 1966, the appellant was arraigned in the Peru City Court. The cause was submitted for trial, evidence was heard, and the court found the appellant guilty as charged and assessed a penalty of $35.00 against the appellant. The appellant informed the Judge of the Peru City Court that he desired to appeal from the judgment rendered by him. Thereafter, a transcript of the proceedings was prepared by the Judge of the Peru City Court, was certified by him, and it was transmitted to the clerk of the Miami Circuit Court. When the transcript was received by the clerk of the Miami Circuit Court, the same was filed by the clerk and entered in the Criminal Docket and Fee Book of the Miami Circuit Court, and was assigned number CR-8-66.\\nOn the 6th day of December, 1966, the appellee, City of Peru, Indiana, filed a motion to dismiss the appeal, which, omitting the caption and signatures, reads as follows:\\n\\\"Comes now City of Peru, Appellee, and respectfully moves the Court to dismiss this Appeal for the reason that same is a Civil Action to recover a penalty for the Violation of City Ordinance No. 40, 1964, and said Appeal was erroneously docketed in the Criminal Division of the Miami Circuit Court and given the title of 'State of Indiana vs. James Black/ and the number on the Criminal Docket of 'CR-8-66' \\\". '\\nOn the 8th day of December, 1966, the appellant filed the following petition:\\n\\\"Comes now the defendant, James Black, and respectfully requests the Court to direct the Clerk of the Miami Circuit Court to correctly perform his ministerial act in docketing this cause, City of Peru vs. James Black, as a civil action and in support of said petition, defendant states:\\n\\\"1. That the defendant was tried in the City Court of the City of Peru, Indiana, for violation of a junk car ordinance No. 40, 1964, and was found guilty of said violation. That the defendant perfected his appeal by notifying the City Judge who tried said cause that he wanted to appeal to the Miami Circuit Court.\\n\\\"2. That the City Court then fixed the bond and the defendant posted his cash bond. That the City Judge prepared a transcript and filed the same with the Clerk of the Miami Circuit Court.\\n\\\"3. That the Clerk of the Miami Circuit Court in the performance of his ministerial act, mistakingly docketed said cause as a criminal action.\\n\\\"Wherefore, defendant prays that the Clerk of the Miami Circuit Court be directed to perform his ministerial act by correcting the record of the Clerk wherein he incorrectly performed his ministerial act, and to correct the Clerk's records to read the truth, to-wit: that this cause be docketed as a civil action.\\\"\\nOn December 27, 1966, the Miami Circuit Court, the Honorable Frank V. Dice presiding, sustained the motion of appellee to dismiss the appeal and overruled the appellant's petition requesting the Judge of the Miami. Circuit Court to direct the clerk of said court to docket said appeal as a civil action.\\nOn the 27th day of March, 1967, the appellant filed an assignment of errors, which, omitting the caption? 'and signatures, reads as follows:' .\\n\\\"The Appellant, James Black, respectfully shows to the Court that there is manifest error in the judgment and proceedings of the trial court in this:\\n\\\"1. That the Court erred in sustaining Appellee's Motion to Dismiss the appeal of Appellant from the City Court of the City of Peru, Indiana, to the Miami Circuit Court, of Miami County, Indiana.\\n\\\"2. That the Court erred in dismissing the appeal of Appellant from the City Court of the City of Peru, Indiana, to the Miami Circuit Court.\\n\\\"3. That the Court erred in overruling Appellant's Petition requesting the Court to direct the Clerk of the Miami Circuit Court to docket said cause as a civil action.\\n\\\"4. The Court erred in overruling Appellant's Motion to Reinstate Appellant's appeal from the City Court of the City of Peru, Indiana, to the Miami Circuit Court.\\n\\\"Wherefore, Appellant prays that the judgment rendered herein be reversed and that said cause be reinstated in the Miami Circuit Court; and for such other relief as Appellant may be entitled to.\\\"\\nInasmuch as appellant's assignment of errors are interrelated, they will be considered together in this opinion.\\nBurns' Indiana Statutes Annotated, Sec. 4-6222 (1968 Repl.) reads as follows:\\n\\\"Appeals from the judgments of such [city] courts may be taken to the superior or circuit courts of the county wherein situated, in like manner as appeals are now taken from judgments of justices of the peace.\\\"\\nIt appears that the above statute prescribes the procedure to be used in appeals in civil matters from city courts located in cities of the Fourth class, and the court will take judicial notice of the fact that according to the last preceding United States census, the City of Peru, Indiana,' is a city of the fourth class.\\nThe appellant admits that this action is to be considered as a civil action; and it is quit\\u00e9 apparent that pursuant to the above-quoted statute, an appeal from a judgment in a civil action rendered by the Peru City Court shall be perfected in the same manner as an appeal from a judgment rendered by a justice of the peace court.\\nThe manner of taking appeals from a justice of the peace court is prescribed in Burns' Indiana Statutes Annotated, Sec. 5-1001, which reads as follows:\\n\\\"Any party may appeal from the judgment of any justice to the circuit court of the county, within thirty (30) days from the rendition thereof; and when there are two (2) or more plaintiffs or defendants, one or more of such plaintiffs or defendants may appeal without joining the others in such appeal.\\\"\\nBurns' Indiana Statutes Annotated, Sec. 5-1003, provides as follows:\\n\\\"The appellant shall, except in cases where the same is dispensed with by law, file with the justice a bond, with security to be approved by the justice, payable to the appellee, in a sum sufficient to secure the claim of the appellee and interests and costs, conditioned that he will prosecute his appeal to effect, and pay the judgment that may be rendered against him in the circuit court.\\\"\\nFrom an examination of the record in the case at bar it appears that a judgment was rendered against the appellant in the Peru City Court on the 18th day of February, 1966; and that thereafter the appellant in open court informed the Judge of the Peru City Court that he desired to appeal, and asked that an appeal bond be set and filed with the Judge of the Peru City Court. The Peru City Court then set the bond in the amount of $100.00 and appellant posted his bond, all of which occurred on the same day the judgment was rendered.\\nThe appellee maintains that in Sec. 5-1004 of Burns' Indiana Statutes Annotated, the language \\\". . . the justice shall make out and certify a complete transcript of all proceedings had before him, and transmit the same, together with such bond and all other papers in the cause, to the clerk of the circuit court to which the appeal is taken\\\" (emphasis supplied), does not require the justice of the peace to file the same with the clerk of the circuit court, but only requires him to transmit the same to the clerk.\\nIt is the position of the appellee that a party taking an appeal is required to preserve, protect and perfect his appeal. In support of this position the appellee cites the case of Hunter v. Thomas (1875), 51 Ind. 44. In substance this case held that on an appeal by the defendant to the circuit court from the judgment of a justice of the peace, if the papers have been lost from the files, and leave has been granted to each party to substitute the papers, and time has been given for such purpose, if the papers are not substituted, a motion of the defendant to dismiss the action should be overruled, and on motion of the plaintiff the appeal should be dismissed. It is the position of the appellee that this language used in the Hunter case requires the party taking the appeal to preserve, protect and to perfect his appeal. With this position of the appellee we are in total accord.\\nThe appellee apparently raises no question as to whether the Judge of the Peru City Court did everything required of him by statute to effect the appeal, and in fact admits that he did. The error which the appellee claims was made occurred in the Miami Circuit Court Clerk's office in the docketing of said appeal in the Criminal Division of the court instead of in the Civil Division, and then in failing to name the City of Peru, a Municipal Corporation, as the party plaintiff instead of the State of Indiana. The appellee cites Burns' Indiana Statutes Annotated, Sec. 4-6014 (1968 Repl.), which reads in part as follows:\\n\\\"All actions brought to recover any penalty for forfeiture incurred under this act, or ordinances made in pursuance thereof, shall be brought in the corporate name of such city,....\\\"\\nIn answer to this contention the appellant admits that the clerk of the Miami Circuit Court erred in docketing the cause as \\u00e1 criminal action instead of a civil action, and claims that such error was only a \\\"clerical error\\\". The appellee, on the other hand, does not agree with the contention of the . appellant that the error was a clerical error, but maintains that it was a fatal error. The appellee maintains that the burden was on the appellant to follow, preserve, and perfect his appeal in the Miami Circuit Court and to make sure that the same was docketed within the time required by statute (which, according to Burns' Indiana Statutes Annotated, Sec. 5-1004, is 20 days) in the proper division of the Miami Circuit Court, with proper parties therein and proper title, and as a civil action and not as a criminal action. In support of this position the appellee cites Mitchell v. Stephens (1864), 23 Ind. 466, in which our Supreme Court stated as follows:\\n\\\". . . . It was the duty of the party taking the appeal to see that a proper transcript was filed, and if the transcript was not perfect, to have the same corrected at the earliest possible moment; and the fact that a' perfect transcript was not filed ten days before the first day of the term, will not entitle the party taking the appeal to a continuance. He [appellant] is asking relief from a judgment already obtained, and he is the one to not only file his appeal bond, but to perfect his appeal. . :.\\\" (Emphasis supplied.)\\nThe appellee also states that this principle of law governing appeals was re-affirmed by our Supreme Court in. the case of Davis v. Luark (1870), 34 Ind. 403. The Daws case involved an . action wherein a party against whom a judgment was rendered by a justice of the peace was granted leave to appeal to the court of common pleas.after the expiration of 30 days, and he failed to perfect his appeal because he failed to request the justice of the peace to certify and make out a transcript of the proceedings in the office of the clerk of common pleas within a reasonable time. The court in its opinion, in part, spoke as follows:\\n\\\"It was the duty of Davis [appellant] to see that his appeal was perfected by having the order issued and served and causing the justice of the peace to make out and file the transcript of the proceedings and judgment before him, with the original papers, in the office of the clerk of the common pleas. This he should have done in a reasonable time.\\\" (Emphasis supplied.)\\nThe appellee also contends that the State of Indiana was not a proper party to this action, and the appeal in the Miami Circuit Court was erroneously docketed by the clerk as the State of Indiana v. James Black, instead of the City of Peru, Indiana, a Municipal Corporation, v. James Black. It is our opinion that our law governing appeals requires that the names of the parties in the assignment of errors should be the same and should correspond with the names of the parties in the judgment being appealed from, and that the contention of the appellee is a correct interpretation of the law.\\nThe appellant also maintains that the Judge of the Miami Circuit Court abused his discretion in dismissing appellant's appeal and in denyingthe'appellant's petition to direct the clerk of said court to correct the record or to reinstate the appeal. In answer thereto the appellee contends that the trial court acted within its. sound discretion in dismissing the appellant's appeal which had remained erroneously docketed and unattended by the appellant for nine months and' nine days through parts of three terms of . court until the error was called to the attention of the court in the appellee's motion to dismiss.\\nIn the case of McFarlan v. Fowler Bank City Trust Co. (1938), 214 Ind. 10, 12 N. E. 2d 752, our Supreme Court held as follows:\\n. \\\"Judicial discretion is the option which the judge may exercise between the doing and the not doing of a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done. An abuse of discretion is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. The exercise of a lower court's discretion is not reviewable; it is only the alleged abuse of that power which is reviewable on appeal.\\\"\\nSee also Bailin v. Bailin (1944), 223 Ind. 7, 57 N. E. 2d 436; Rogers v. Youngblood, Judge (1948), 226 Ind. 165, 78 N. E. 2d 633; Hollingsworth Tool Works v. Review Board, Indiana Employment Security Division (1949), 119 Ind. App. 191, 84 N. E. 2d 895; Guraly v. Tenta, et al. (1956), 126 Ind. App. 527, 132 N. E. 2d 725; State of Indiana ex rel City of Indianapolis v. Marion County Superior Court #2 (1966), 247 Ind. 385, 216 N. E. 2d 349.\\nThe appellee also claims that the appellant was guilty of laches in not calling the clerk's error to the attention of the court until nine months, nine days had elapsed since the transcript was filed in the offices of the court. In support of this position the appellee has cited the case of Haas v. Holder (1941), 218 Ind. 263, 32 N. E. 2d 590, in which case, Judge Shake, speaking for the court, said as follows:\\n\\\" 'There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case is to be determined according to its own particular circumstances. In other words, the question of laches is addressed to the discretion of the chancellor, and his decision will not be disturbed on appeal unless it is so clearly wrong as to amount to an abuse of discretion.' 21 C.J. 217; Ryason v. Dunten (1905), 164 Ind. 85, 96, 73 N. E. 74, 77.\\\"\\nIt is our opinion that in appeals from a justice of the peace court or city court to a circuit, superior or criminal court, or from a circuit to an appellate or supreme court, or appeals in federal courts from a district court to a circuit court of appeals or the United States Supreme Court, the burden is on the appealing party to follow, preserve, protect and perfect his appeal. In the case at bar clearly the Clerk of the Miami Circuit Court erred and the appealing party did not, within a time which ordinary men would consider reasonable, request the Miami Circuit Court of the Clerk of the Miami Circuit Court to correct the error in the naming of proper parties and in the docketing of the cause of action as a civil action. Having failed to discharge this burden, and being guilty of carelessness and dilatory in checking the status of his appeal, the appellant is estopped by laches, and the trial court in exercising its discretionary powers did not abuse its discretion in dismissing the appeal. It is our opinion that the judgment of the trial court should be affirmed.\\nJudgment affirmed.\\nBierly, and Pfaff, J.J., concur;\\nCook, P.J., not participating.\\nNote. \\u2014 Reported in 240 N. E. 2d 854.\"}"
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+"{\"id\": \"1584040\", \"name\": \"State ex rel. Department of Financial Institutions v. Richard's Estate\", \"name_abbreviation\": \"State ex rel. Department of Financial Institutions v. Richard's Estate\", \"decision_date\": \"1940-01-05\", \"docket_number\": \"No. 16,383\", \"first_page\": \"178\", \"last_page\": \"186\", \"citations\": \"108 Ind. App. 178\", \"volume\": \"108\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:38:20.962802+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. Department of Financial Institutions v. Richard\\u2019s Estate.\", \"head_matter\": \"State ex rel. Department of Financial Institutions v. Richard\\u2019s Estate.\\n[No. 16,383.\\nFiled January 5, 1940.\\nRehearing denied March 27, 1940.\\nTransfer denied June 10, 1940.]\\nLee M. Bowers, of Huntington, for appellant.\\nKnowlton H. Kelsey, of Huntington, for appellee.\", \"word_count\": \"2303\", \"char_count\": \"13366\", \"text\": \"Curtis, J.\\nThe controlling facts of this case are not in dispute, having been, in the main, established by stipulation of the parties. They may be briefly summarized as follows: Marvin W. Richards died testate on June 28, 1932, owning the 6% shares of bank stock in the First & Farmers State Bank, Roanoke, Indiana, here in dispute. Item Two of his will, probated July 1, 1932, read: \\\"I give, devise and bequeath to my wife, Rosa M. Richards, all my personal estate of every kind and description.\\\" Rosa M. Richards, appellee's now decedent, qualified and was duly appointed executrix.\\nOn July 16, 1932, as required by law, said executrix, as such, filed an inventory and schedule for fixing inheritance tax, listing the 6% shares of bank stock, $666.66 par value, at $100.00, and'on July 28, 1932, the report of the appraiser for inheritance tax purposes was filed listing the said stock at $100.00. Between July and September 7, 1932, a meeting was called, not participated in by appellee's decedent, looking toward the liquidation of the bank, and on September 7, 1932, the First & Farmers State Bank went into liquidation pursuant to the law then in force.\\nThe relative proportion of assets to liabilities was not substantially changed between the date the' bank went into voluntary liquidation and October 25, 1933, the date on which the Department of Financial Institutions declared a -full assessment on the stockholders of the bank.\\nOn January 26, 1933, almost seven months after her husband's death and nearly five months after the bank went into voluntary liquidation, Rosa M. Richards, appellee's decedent, petitioned for permission to file her final report and upon said petition being granted filed her final report in the said estate. That report was duly approved in February, 1933, and the said executrix was discharged.\\nIn that final report, duly approved, said Rosa M. Richards, executrix, reported to the court that she, individually, under the terms of the will of her husband, a copy of which was filed with the report, had been given all the personal property and that \\\"the same except 6% shares of bank stock in the Roanoke Bank, had been taken by her as and for her own and is claiming the same.\\\"\\nNo objections were made to approval of that report and no proceedings were ever begun to set the report aside and reopen the estate. On or about October 18, 1933, after the approval of the final report, the appellant, Department of Financial Institutions, took charge of the defunct bank, which had then been in liquidation for more than a year.\\nOn October 25, 1933, the Department of Financial Institutions adopted a resolution declaring full liability on the stockholders of the bank.\\nIn November, 1933, Rosa M. Richards, the appellee's decedent, notified the Special Representative that she did renounce and disclaim and continued to renounce and disclaim any interest in the stock in question.\\nOn December 15, 1933, a letter was written by the Special Representative, suggesting that Rosa M. Richards could not take the assets and leave the liability, and that unless payment was had by December 10, 1933, it would be necessary to reopen this estate of Marvin W. Richards, but no such proceedings were ever taken.\\nRosa M. Richards died in the early part of the year 1936 and her estate was duly opened; the original claim herein was filed in her estate on January 14, 1936, and the amended claim was filed February 3, 1937, both of which were disallowed; the trial of the issue on the claim and the answer supplied by statute was had on February 4, 1937, resulting in a finding and judgment in favor of appellee and against appellant on February 1, 1939. The appellant in due time filed a motion for a new trial which was overruled and this appeal then followed. The error assigned is the ruling on the motion for a new trial. The causes or grounds of said motion are that the decision of the court is not sustained by sufficient evidence and is contrary to law.\\nWe quote a part of the stipulation of the parties in these words:\\n\\\"It is further stipulated and agreed that the stock constituting the basis of the claim filed herein was never transferred upon the books of the Roanoke State Bank; that the decedent never exercised any of the rights of ownership over said stock, nor voted the same, and did not particiapte in any stockholders' meeting looking toward the liquidation of First & Farmers State Bank of Roanoke, Indiana; that on September 7, 1932, the First & Farmers State Bank of Roanoke was insolvent and that there had been no substantial change in the relation of the assets and liabilities between the day the bank went into liquidation and the date of the determination of the necessity for and the declaration of an assessment for stockholders' liability by the Department of Financial Institutions.\\n\\\"That no claim was filed against the estate of Marvin W. Richards on behalf of any creditor of said bank or any other person for any liability on account of the six and two-thirds shares of stock upon which the claim herein is based.\\n\\\"That the final report offered in evidence was . regularly approved by the Huntington Circuit Court after due notice was given and that the estate of Marvin W. Richards remained open for the statutory time.\\n\\\"That it is stipulated and agreed that during the time the First & Farmers State Bank was in voluntary liquidation the attorney for the liquidating agent acting on the direction of said members of the Board of Directors of said bank prepared a complaint to enforce stockholders' liability against stockholders of said bank but no official action of the Board of Directors was taken authorizing the filing of said complaint and said complaint was not filed.\\n\\\"We further stipulate that no claim was filed by any creditor against the estate of Marvin W. Richards.\\\"\\nThe \\\"Roanoke State Bank\\\" referred to in some parts of the stipulation is simply another name sometimes used by the parties for the First & Farmers State Bank, Roanoke, Indiana.\\nIt is to be kept clearly in mind that the claim in the instant case is a claim against the estate of Rosa M. Richards, deceased, and that no claim of any kind was filed in the estate of her said husband, Marvin W. Richards, nor was there any action ever filed to reopen said estate. We are, therefore, in no way concerned with what the result would have been in that estate had a timely claim been filed or had there been a petition under the statute filed therein to reopen said estate. As throwing a side light upon the question under consideration see Beasley's Estate v. Rauch, Receiver (1937), 104 Ind. App. 312, 11 N. E. (2d) 60.\\nThe appellant's main contention centers around its statement in its brief that: \\\"On January 26, 1933, seven months after her husband's death and about four months after said Bank suspended payment, said executrix petitioned the court, under the statute, for permission to close said estate after six months. She filed her final report showing full compliance with the will of said decedent and setting out therein that 'all the personal estate was devised to her; that the same (except 6% shares of bank stock in the Roanoke Bank) has been taken by her as and for her own, and is claiming the same.' The exception in parenthesis, 'except 6% shares of bank stock in the Roanoke Bank,' was careted in the typewritten report with pen and ink.\\n\\\"(5) This inclusion in the final report, as an afterthought, of the words 'except 6% shares of bank stock in the Roanoke Bank,' is the only act by which it is claimed that Rosa M. Richards rejected or renounced said bank stock. This report shows it was an afterthought, done after the Bank suspended payment, because the words were careted in with pen and ink after the final report was typewritten.\\n\\\"(6) The only fair conclusion that can be drawn from the actions of Rosa M. Richards, as executrix, as set out hereinabove in points one to five, inclusive, is that she accepted this bank stock under item two of her deceased husband's will.\\\"\\nThere isn't a scintilla of direct evidence and no evidence from which the conclusion would inevitably flow that any rejection of the stock in question by Rosa M. Richards was an afterthought, done after the bank went into liquidation to avoid the stockholders' liability and \\\"that she accepted this bank stock under item two of her deceased husband's will\\\" as contended for by the appellant. The appellant in drawing its conclusions has evidently overlooked the fact that Rosa M. Richards was acting in two capacities, first as the executrix of the will of her deceased husband, and secondly as an individual as the legatee and devisee under his will. In making the inventory in the estate and in the preparation of the petition to determine the inheritance tax she was acting in her capacity as executrix in accordance with the requirements of law. In the rejection of the bank stock she acted individually.\\nSection 6 of Article 11 of the constitution of this state provides that, \\\"The stockholders in every bank or banking company shall be individually responsible, to an amount, over and above their stock, equal to their respective shares of stock, for all debts or liabilities of said bank or banking company.\\\" This provision of the constitution has been construed and explained. See: Gaiser v. Buck (1931), 203 Ind. 9, 179 N. E. 1; Rowley v. Pogue (1932), 203 Ind. 655, 178 N. E. 449, 181 N. E. 589.\\nIn \\\"an Act concerning financial institutions,\\\" Chapter 40, Acts 1933, section 240, and the 1935, 1937 and 1939 amendments thereto, the word \\\"shareholder\\\" is apparently used synonymously with the word \\\"stockholder\\\" as used in the constitution. In these legislative Acts above referred to the word' share holder is defined as follows: \\\"The term 'shareholder' means one who is a holder of record of shares of stock in a corporation, unless the context otherwise requires.\\\" The primary constitutional liability of stockholders in a bank or banking company did not arise with the enactment of the financial institutions act or acts. The primary purpose of these financial institutions acts as affecting stockholders' or shareholders' liability is to set up the procedure for the enforcement thereof.\\nThe appellant contends that even though the stipulation established the facts that said stock \\\"was never transferred upon the books of the Roanoke State Bank; that the decedent never exercised any of the rights of ownership over said stock,\\\" that yet the appellee's decedent should, on account of the other facts disclosed, be held to be liable for the double liability. Among other things the appellant says that her rejection of the stock was an afterthought, basing its contention upon the fact that the final report filed by her had in it the statement that all of the personal estate of her said husband had been bequeathed to her and that the same \\\"except the shares of Bank stock in the Roanoke Bank\\\" had been taken by her as her own, the contention being that the words \\\"except the shares of Bank stock in the Roanoke Bank\\\" had been careted ino the final report. If it were conceded that the element of time when this interlineation was made was a controlling factor yet there is a total lack of evidence to indicate that said interlineation was made at any other time than at the time of the preparation of said final report and before it was filed. The report was examined and approved by the court after due notice had been given. It, under the circumstances, speaks in this court as it was written and duly approved by the trial court.\\nShe had the right to reject this stock. See Page on Wills (2d Ed.), Vol. 2, \\u00a7 1198, p. 1995, also \\u00a7 1235, p. 2059.\\nA careful reading of the will of her deceased husband fails to disclose any intention whatever on his part to cast upon his widow any obligation or onerous burden with respect to the stock in question. The trial court was amply warranted in concluding that she did nothing nor failed to do anything required of her to be done by which she could be rightfully held to have assumed any such burden. Certainly she was not benefited in any manner by the stock. In our opinion the evidence fully sustains the trial court in the conclusion evidently reached that her rejection and renunciation of the stock was timely, unequivocal and complete. We see no good reason in law to hold that she should be burdened with this stockholder's liability. See: Page on Wills (2d Ed.), Vol. 2, \\u00a7 1238, p. 2061; 28 R. C. L., \\u00a7 351, p. 352; 69 C. J. 2168, p. 974.\\nIn the above authorities and the many cas\\u00e9s cited therein the rule seems clearly established that where an effective rejection or renunciation is timely made by one who has the right it will usually relate back or attach as of the time when the gift, bequest or devise would otherwise become effective, leaving the donee, legatee or devisee without an interest in the property in question and without liability in connection therewith.\\nThe ruling on the motion for a new trial was correct.\\nJudgment affirmed.\\nNote. \\u2014 Reported in 24 N. E. (2d) 422.\"}"
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+"{\"id\": \"1584124\", \"name\": \"Western Casualty and Surety Company v. State of Indiana\", \"name_abbreviation\": \"Western Casualty & Surety Co. v. State\", \"decision_date\": \"1970-03-24\", \"docket_number\": \"No. 469A67\", \"first_page\": \"431\", \"last_page\": \"438\", \"citations\": \"146 Ind. App. 431\", \"volume\": \"146\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:50:42.112019+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Western Casualty and Surety Company v. State of Indiana.\", \"head_matter\": \"Western Casualty and Surety Company v. State of Indiana.\\n[No. 469A67.\\nFiled March 24, 1970.]\\nNorman R. Newman, Dann, Backer, Pecar and Newman, Indianapolis, for appellant.\\nAnthony J. Klee and David F. McNamar, Steers, Klee, Jay and Sullivan, Indianapolis, for appellee.\", \"word_count\": \"2253\", \"char_count\": \"13350\", \"text\": \"Sharp, J.\\nThis action was commenced by the filing of a complaint by the Plaintiff-Appellee on July 13, 1967, which sought recovery on a private contractor's performance bond written by the Appellant-Defendant, The Western Casualty and Surety Company. The essential allegations of the complaint are that the Indianapolis Power and Light Company as owner contracted with George Bahre Company as general contractor to remodel a building on Monument. Circle, in Indianapolis, Indiana, and that said Bahre as principal and Defendant-Appellant as surety executed a certain payment bond, the essential provisions of which read as follows, to-wit:\\n\\\"NOW, THEREFORE, if said Co-Principals shall properly and promptly complete said Contracts in accordance with the provisions thereof and in accordance with the plans and specifications, and shall well and truly pay all indebtedness incurred for all labor and materials furnished in the performance of the above Contracts, and shall well and truly indemnify and save harmless the said Obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of said Contracts on the part of said Co-Principals to be performed, then this obligation shall be void; otherwise to remain in full force and effect.\\nPROVIDED, HOWEVER, that this bond is executed on . the following conditions and provisions:\\nFIRST: No suit or action shall be .commenced by any claimant for unpaid labor or materials unless claimant-shall have given written notice to any two of the following: the Co-Principal concerned, the Owner, or the Surety, within sixty (60) days after such claimant did or performed the last of the work or labor or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed; nor after the expiration of one (1) year following the date on which notice of claim, previously described, was given.\\\"\\nSaid complaint further alleged that one Charles McGarvey Company, Inc., was a plaster subcontractor employed by Bahre to furnish labor and materials to plaster the improvements in question. The complaint further alleged that the Plaintiff-Appellee did, in fact, sell, furnish and deliver to said Charles McGarvey Company, Inc., as subcontractor, building materials and plastering materials in the reasonable value of $6,707.10, which were used for the improvement of the premises in question. That said Plaintiff-Appellee was not paid for said materials, although the owner paid the general contractor in full. The complaint further alleged the giving of notice by the Plaintiff-Appellee to the subcontractor, contractor and owner and that this action was filed within one year of the date on which said written notice was given.\\nThe Defendant-Appellant filed a demurrer to said complaint for the reason that it did not state facts sufficient to constitute a cause of action and filed therewith a memorandum. Said demurrer was overruled by the trial court.\\nThe Plaintiff-Appellee filed its motion for summary judgment, supported by affidavit, and the Defendant-Appellant filed affidavit opposing said motion for summary judgment after which the Plaintiff-Appellee filed a counter-affidavit with reference to said motion for summary judgment.\\nOn January 22, 1969, the trial court entered summary judgment in favor of the Plaintiff-Appellee for $6,707.10 plus interest in the sum of $916.57, making a total of $7,623;67.\\nThe Appellant's assignment of errors challenges the grant ing of Appellee's motion for summary judgment and the overruling of Appellant's demurrer to Appellee's complaint.\\nIn the Oral Argument of this case, Appellant's counsel categorically and without reservation admitted that there was no genuine issue as to any material fact involved in this case and that the record concerned itself purely with the question of law. Thus, it is admitted that the Appellee as a materialman furnished materials to a subcontractor of a general contractor on a private job. It is undisputed that Appellee was not paid for said materials although the owner of the property paid the general contractor in full before the owner had any knowledge of Appellee's materialman's claim. It is also undisputed that the general contractor, George Bahre, d/b/a George Bahre Company, paid subcontractor Charles H. McGarvey Company, Inc., in full. The affidavit of George Bahre filed in opposition to Appellee's motion for summary judgment states only the legal contention that payment by Bahre to Charles McGarvey Company, Inc., constitutes full satisfaction of Appellant's obligation under the bond.\\nThe critical provision of the bond, with our emphasis, is as follows:\\n\\\"And shall well and truly pay all indebtedness incurred for all labor and materials furnished in the performance of the above contract . . .\\\"\\nThe key case decided by this court in regard to the proper construction of this bond is Ochs v. M. J. Carnahan, 42 Ind. App. 157, 158, 76 N. E. 788, 789 (1908), rehearing denied, 80 N. E. 163. In the Ochs case the provisions of the bond were as follows:\\n\\\"The conditions of this obligation are such that whereas said H. E. Ochs has contracted to build and complete a two-story frame building in the town of Mitchell, Indiana, for said George Head, and according to certain written plans and specifications as heretofore agreed to by said H. E. Ochs and said George Head. Now, therefore, if said H. E. Ochs shall build and complete said building in every way accord ing to said written specifications and plan, and shall pay for all material used and for all help employed in .the construction of said building, then this obligation to be void; otherwise, to be in full force and effect.\\\" (our emphasis)\\nThe crucial language of the Ochs case was written by Judge Roby on Petition for Rehearing at 42 Ind. App. 160, 80 N. E. 163, and reads as follows:\\n\\\"It is held by the English decisions that where two persons make a contract in which one of them promises to confer benefits upon a third person, the latter cannot sue upon the contract, either in law or in equity, for the money or other benefit which it is promised that he shall receive. This doctrine has been adopted in certain of the states. 9 Cyc., 374. A larger number of the states have, however, adopted the so-called American doctrine, which permits such party to recover such benefit in a suit brought in his own name. 9 Cyc., 377. This is the doctrine in Indiana. Ferris v. American Brewing Co. (1900), 155 Ind. 539, 52 L.R.A. 305; Judson v. Romaine (1893), 8 Ind. App. 390; Williams v. Markland (1896), 15 Ind. App. 669. In the consideration of this case, it follows that decisions of courts in states where the English doctrine prevails do not possess any persuasive or other authority, and they are therefore eliminated.\\n. A class of argument which has, to some extent, been pursued, and must also be eliminated, is that which proceeds upon the assumption that the provision of the contract quoted is not for the benefit of the materialman or laborer, or that the sole purpose of the contract was to protect and indemnify the owner. The very question to be decided is whether the promise is for the benefit of the materialman and laborer. The words of the bond are: 'Shall pay for all material used and all help employed in the construction of said building.' This is a certain and express agreement to pay for all material furnished and for all help employed. The agreement to pay is primarily for the benefit of the creditor to whom such payment must of necessity be made. Had the provision been that the contractor 'shall pay the M. J. Carnahan Company for all material furnished by it and used in the construction of said building,' there could not, under the doctrine before stated be any doubt as to the right of said M. J. Carnahan Company to recover in such an action as this.\\nNo one will suggest that the agreement to pay for all material used and for all help employed was intended for the benefit of the owner. Incidentally such payment might benefit him, in that it would prevent the acquirement of a valid lien, but such result would be an incidental one only. It was never contemplated that such payments should be made to him. Persons who let contracts for the construction of buildings do not furnish all the material and do all the work. It is practically impossible, at the time of contracting for the erection of a building, to name the persons who will subsequently furnish material therefor or do labor thereon. Such parties were therefore described in general and comprehensive terms. The language used is inclusive \\u2014 shall pay for 'all' material and 'all' help. The legal effect of the language used is not different from what it would have been had the agreement been to pay whoever shall furnish material or do labor. Reynolds, etc., Co. v. Eacock (1901), 27 Ind. App. 459; Jordan v. Kavanaugh (1884), 63 Iowa 152; Wells v. Kavanaugh (1886), 70 Iowa 519; Baker & Co. v. Bryan (1884), 64 Iowa 561; Hipwell v. National Surety Co. (1906), 130 Iowa 656.\\n. . . Building contracts, guaranteed by sureties for the contractor, upon which materialmen or laborers have secured judgments, subsequently affirmed by this court, contain particular clauses as follows: 'For the fulfillment of said contract and the payment of all such material and labor debts.' Williams v. Markland, supra. 'And promptly pay all the debts incurred in the prosecution of said work, including labor and material furnished.' Young v. Young (1899), 21 Ind. App. 509. 'That he would pay for all labor and material used in said building.' American Surety Co. v. Lauber (1899), 22 Ind. App. 326. 'The provision of the contract that there should be no claims against the contractor for work and materials could only mean that he was to discharge such claims by their payment.' Brown v. Markland (1899), 22 Ind. App. 652. 'Pay for all labor and materials used in connection therewith.' King v. Downey (1900), 24 Ind. App. 262. This court, in construing the clauses just quoted, in each instance declared the laic to be that the contract was one for the benefit of a third person, upon which he was entitled to recover in his own name. Where the terms of a written contract are not ambiguous, indefinite or uncertain, its meaning is a matter of law for the court. Brown v. Langner (1900), 25 Ind. App. 538. Neither the contract under consideration nor the ones referred to in the cases cited are ambiguous, indefinite or uncertain. They are substantially in the same terms, and the case at bar is governed by the law as declared in the prior decisions.\\\" (our emphasis)\\nThese same principles were most recently reaffirmed by this court speaking through Judge Crumpacker in State ex rel. Lawson v. Warren Brothers Roads Company et al., 115 Ind. App. 452, 59 N. E. 2d 912 (1944).\\nThe Ochs case has been cited with approval on numerous occasions. See Knight & Jillson Co. v. Castle, 172 Ind. 97, 87 N. E. 976 (1909); Aetna Indemnity v. Indianapolis Mortar, 178 Ind. 70, 98 N. E. 706 (1912); Gwinn et al. v. Wright, 42 Ind. App. 597, 86 N. E. 453 (1908); Nat'l Surety Co. v. Foster Lumber Co., 42 Ind. App. 671, 674, 85 N. E. 489 (1908); State ex rel. v. Land et al., 80 Ind. App. 349, 139 N. E. 466 (1923).\\nThe position of this court in the Ochs case is well sustained by our Supreme Court in Nash Engineering Co. v. Marcy Realty Corporation, Inc., et al., 222 Ind. 396, 414, 54 N. E. 2d 263, 270 (1943), in which it stated:\\n\\\"It is settled in Indiana that contracts for the erection of private buildings containing provisions that the contractor shall pay for all materials afford to unnamed materialmen a remedy as third party beneficiaries against the contractor. Knight-Jillson Co. v. Castle (1909), 172 Ind. 97, 87 N. E. 976; Ochs v. M. J. Carnahan Co. (1906), 42 Ind. App. 157, 76 N. E. 788, transfer of which was denied shortly before the decision in the Knight-Jillson case.\\\"\\nBased upon the foregoing authorities the Appellee was entitled to a judgment as a matter of law and the trial court was correct in overruling Appellant's demurrer and granting Ap-pellee's motion for summary judgment.\\nAppellant makes the further argument that the entry of summary judgment in this case is inadequate under the rule in Singh v. Interstate Finance of Indiana, 144 Ind. App. 444, 246 N. E. 2d 776 (1969). We deem it a waste of judicial time and a needless formality to remand this case back to the trial court for any further findings. This is particularly true in view of the Appellant's admissions in this court that there is, in fact, no genuine issue as to a material fact. See the statement by Judge Sullivan, Footnote 1, in Ware v. Waterman, 146 Ind. App. 237, 253 N. E. 2d 708 (1969).\\nFor all of the foregoing reasons the judgment of the trial court should be and hereby is affirmed. Costs v. Appellant.\\nHoffman, P.J., Pfaff and White, JJ., concur.\\nNote. \\u2014 Reported in 256 N. E. 2d 398.\"}"
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+"{\"id\": \"1605426\", \"name\": \"Fairchild et al. v. Steiner et al.\", \"name_abbreviation\": \"Fairchild v. Steiner\", \"decision_date\": \"1965-07-27\", \"docket_number\": \"No. 20,291\", \"first_page\": \"400\", \"last_page\": \"402\", \"citations\": \"137 Ind. App. 400\", \"volume\": \"137\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:33:33.242221+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fairchild et al. v. Steiner et al.\", \"head_matter\": \"Fairchild et al. v. Steiner et al.\\n[No. 20,291.\\nFiled July 27, 1965.]\\nJames Robert Arnold, Helmke, Philips & Beams, Hoffman, Moppert & Solomon, and Arnold & George, of Fort Wayne, for appellants.\\nArthur H. Fruechtenicht and Robert J. Parrish, of Fort Wayne, and Winslow Van Horne and Van Horne & Van Horne, of counsel, of Auburn, for appellees.\", \"word_count\": \"614\", \"char_count\": \"3735\", \"text\": \"Per Curiam.\\nCertain of the appellees herein have filed their motion to dismiss this appeal, or, in the alternative that the judgment of the trial court be affirmed. In said motion they specify, twelve errors; irregularities and insufficiencies, in the transcript; that appellants' brief does not sufficiently comply with Rule 2-17(c), (d) and (e) of the Supreme Court; and that the assignment of errors is fatally defective.\\nAppellants originated this action in the trial court by filing a complaint for injunction and declaratory judgment attacking the validity of a purported reorganization of schools. Appellants thereafter filed a first supplemental complaint and a second supplemental complaint. Appellees then filed a motion to dismiss which was sustained by the trial court. Appellants thereafter filed their motion to reconsider said ruling, which the trial court denied.\\nAppellants' purported statement of the record in the brief contains merely the prayers of the complaint, first supplemental complaint and second supplemental complaint. The motion to dismiss and exhibits filed by appellees in the trial court, which was sustained, comprise twenty-six pages in the transcript. Appellants summarize only one of. the fifteen grounds in their .statement/of the record. The trial judge's ruling on said motion to dismiss is not set forth in the brief or adequately summarized, nor do we have the benefit of appellants' motion to reconsider said ruling upon which this appeal is predicated.\\nAppellees, in their motion to dismiss, attack not only the Concise Statement of the Record portion of appellants' brief as inadequate, but also the argument section thereof and the transcript and assignment of errors.\\nAppellants' original brief is required to be prepared in such a manner that a printed copy of the record for. each judge will be unnecessary for him to be properly advised on each matter involved in the appeal. Board of Med. Regist. and Exam., etc. v. Bowman (1958), 238 Ind. 532, 533, 150 N. E. 2d 883; 2 Ind. Law Encyc., Appeals, \\u00a7383, p. 238.\\nAlthough, in some circumstances, setting out the substance of the pleadings has been held to be sufficient compliance with the rules of the Supreme Court, we are of the opinion' that such is not the case here. We are asked by appellants to reverse the trial court's ruling on pleadings. To fairly and competently review these pleadings and the ruling thereon, we would be required to resort to the record. The burden rests upon appellants to provide each judge with a brief so prepared as to present the questions he raises on appeal' without resort to the record. It is well settled that where'appellant's 'brief fails to set forth the record so as to present fully a question without resorting to the record, the appellate tribunal, is under no duty to search the record to reverse the cause. Grecco v. State (1960), 240 Ind. 584, 593, 166 N. E. 2d 180, 167 N. E. 2d 714.\\nWithout unduly extending this opinion with a discussion \\u2022 of other alleged deficiencies,' we believe it sufficient to state that appellants have failed to comply with the rules of the Supreme Court \\u2022 in the Concise Statement of the Record portion of their brief. This is sufficient to sustain appellees' motion to dismiss the appeal.\\nAppellees' motion to dismiss the appeal is sustained and the appeal is dismissed.\\nNote. \\u2014 Reported in 209 N. E. 2d 266.\"}"
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diff --git a/ind/1606899.json b/ind/1606899.json
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+"{\"id\": \"1606899\", \"name\": \"Hedrick v. Sims Motor Transport Lines\", \"name_abbreviation\": \"Hedrick v. Sims Motor Transport Lines\", \"decision_date\": \"1964-11-05\", \"docket_number\": \"No. 20,083\", \"first_page\": \"110\", \"last_page\": \"113\", \"citations\": \"138 Ind. App. 110\", \"volume\": \"138\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:57:04.941891+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hunter, C. J., Kelley and Mote, JJ., concur.\", \"parties\": \"Hedrick v. Sims Motor Transport Lines.\", \"head_matter\": \"Hedrick v. Sims Motor Transport Lines.\\n[No. 20,083.\\nFiled November 5, 1964.\\nRehearing denied December 9, 1964.\\nTransfer denied December 8, 1965.]\\nWilliam H. Andrews and Evens, Baker & Barnhart, of Bloomington, for appellant.\\nJ. Grant Moore and Snyder, Bunger, Cotner & Harrell, of Bloomington, for appellee.\", \"word_count\": \"997\", \"char_count\": \"5917\", \"text\": \"Pfaff, J.\\nThis is an appeal from an award of the Full Industrial Board denying appellant compensation under the provisions of the Indiana Workmen's Compensation Act. It is appellant's contention that he was injured while in the course of his employment as an employee of appellee company.\\nThe Board found that at the time the appellant was injured he was an independent contractor and that the accident in question did not arise out of and in the course of any contract of employment with the appellee.\\nThe assignment of error is that the award of the Board is contrary to law.\\nThe question which we are called upon to determine is whether, under the circumstances shown by the record in this case, there was evidence to establish that appellant was an independent contractor or whether the evidence leads inescapably to the conclusion that he was an employee of Sims Motor Transport Lines at the time of the accident in question.\\nThe evidence in this case discloses that on March 1, 1957, the date of the accident which is the subject of the claim herein, the appellant was the owner of five tractors and five trailers which he leased to appellee. Under the terms of the lease, the appellant furnished tractors and trailers as needed which met Interstate Commerce Commission and Public Service Commission of Indiana rules and regulations, and for which appellee paid appellant seventy-five per cent of the gross freight charge as rent. As a lessor of appellee and in consideration of the seventy-five per cent of the gross freight, the terms of the lease obligated appellant to maintain and service the leased vehicles and to pay all expenses of operation of the trucks. Maintenance and service work on the vehicles was done in a garage owned by appellant on appellant's premises, and was performed by employees of appellant using tools and equipment belonging to appellant.\\nThe record also discloses that in addition to being a lessor of the appellee at the time of the accident, appellant was paid five per cent of the gross freight charges for spotting and loading trucks in several stone mills. This spotting and loading included chaining the load down and checking for overloading, and delivering the tractors and loaded trailers to the drivers. In performing the spotting and loading and related duties, appellant handled appellee's tractors and trailers as well as the tractors and trailers which he had leased to appellee. Such spotting and loading was not required by the terms of the lease, nor were the payments of five per cent of the gross freight provided for by the terms of the lease. The five per cent payments were made to appellant by appellee monthly and appellee did not withhold any social security contributions or federal income taxes at any time.\\nOn the day of the accident in question appellant had completed spotting and loading a tractor and trailer and had delivered them, just after noon, to the driver who was to make the long distance haul. He was to return immediately to the mill with another tractor and trailer which were to be loaded before 3 o'clock P.M. that day. After turning the tractor and loaded trailer over to the driver, appellant returned to his garage to pick up a tractor which was already gassed and serviced. When he reached the tractor he smelled gasoline. As, he reached for a fire extinguisher an explosion occurred, blowing gasoline over appellant and causing him extensive burns over a large part of his body. He was hospitalized for a total period of approximately two and one-half months and was unable to work for approximately eighteen months.\\nAppellant readily concedes the existence of an independent contractor-contractee relationship between appellant and ap pellee insofar as the lease is concerned. However, it is his contention that in addition to, and distinct from the lessor-lessee relationship, appellant was an employee of appellee hired for the purpose of spotting and loading stone trucks, and that said accident arose out of and in the course of a contract of employment between appellant and appellee.\\nBy this appeal, the appellant seeks to have this court weigh the evidence and controvert that which was determined below. This we cannot do. The Appellate tribunal will substitute its judgment for that of the Industrial Board only where there is no evidence in support of the award or where the evidence is of such a conclusive character as to force a contrary conclusion. The evidence must be so conclusively in favor of the appellant that it could not reasonably be construed to give rise to inferences favorable to the appellee. Hughes v. Fayette Realty & Development Co. (1934), 99 Ind. App. 310, 192 N. E. 322; Wright v. Peabody Coal Co. (1948), 225 Ind. 679, 77 N. E. 2d 116. Further, this court in Greenwell, etc., et al. v. Lincoln Bakery (1954), 124 Ind. App. 462, 465, 119 N. E. 2d 29, stated as follows:\\n\\\"In view of the vast and consistent array of authority on the point, it may now be said to be axiomatic that we are powerless to disturb such finding unless the evidence be of a character to force a contrary conclusion, and that to arrive at such opposite conclusion, we may not weigh the evidence. The rule is salutary even though, in stated cases, it may appear to foreclose the dispensation of adequate justice under circumstances indicating a condition warranting its modification.\\\"\\nThe evidence in the record before us is not of such conclusive character as to require us to condemn the finding complained of.\\nAward affirmed.\\nHunter, C. J., Kelley and Mote, JJ., concur.\\nNote. \\u2014 Reported in 201 N. E. 2d 834.\"}"
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diff --git a/ind/1729224.json b/ind/1729224.json
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+"{\"id\": \"1729224\", \"name\": \"Steffler v. State of Indiana; Blackwood v. State of Indiana; Crisler v. State of Indiana\", \"name_abbreviation\": \"Steffler v. State\", \"decision_date\": \"1952-04-02\", \"docket_number\": \"No. 28,694\", \"first_page\": \"557\", \"last_page\": \"569\", \"citations\": \"230 Ind. 557\", \"volume\": \"230\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:15:58.573737+00:00\", \"provenance\": \"CAP\", \"judges\": \"Draper, J., concurs in result.\", \"parties\": \"Steffler v. State of Indiana; Blackwood v. State of Indiana; Crisler v. State of Indiana.\", \"head_matter\": \"Steffler v. State of Indiana; Blackwood v. State of Indiana; Crisler v. State of Indiana.\\n[No. 28,694.\\nFiled April 2, 1952.\\nRehearing denied May 13, 1952.]\\nWaldo C. Ging, of Greenfield; Nelson Bohannan, of Anderson; Charles D. Rogers and William C. Erbecker, both of Indianapolis; Frederick F. McClellan, Jr. and Clarence E. Benadum, both of Muncie, for appellants.\\nJ. Emmett McManamon, Attorney General; George W. Hand and John Ready O\\u2019Connor, Deputy Attorneys General; and Melville E. Watson, Prosecutor, 18th Judicial Circuit, for appellee.\", \"word_count\": \"3078\", \"char_count\": \"17719\", \"text\": \"Emmert, J.\\nAppellants were jointly charged by an affidavit in two counts with conspiracy to commit grand larceny and automobile banditry. The jury returned verdicts that each appellant was guilty on both counts as charged, upon which judgments were entered, from which this appeal is prosecuted. Appellants have specifically waived any error of the trial court in overruling their motion in arrest of judgment. The errors properly presented here for our consideration were the two causes in the motion for a new trial, which asserted the verdicts were not sustained by sufficient evidence and were contrary to law. At the close of the state's evidence in chief, the appellants rested without either appellant taking the witness stand, and without introduction of any other evidence in their behalf.\\nAfter conviction this court does not weigh the evidence but considers only the facts in the record most favorable to the state together with all reasonable inferences that may be drawn therefrom. Badgley v. State (1948), 226 Ind. 665, 82 N. E. 2d 841; Keith v. State (1901), 157 Ind. 376, 61 N. E. 716.\\nWhen the evidence is so considered, the jury had the right to find the facts as follows: After midnight and before 3:00 o'clock the early morning of Thanksgiving, November 24, 1949, the storeroom owned by the Fortville Furniture, Inc., of Fortville, which is located in the northwest corner of Hancock County, was broken and entered and furniture of the value of at least $1,200 was stolen and loaded on the truck of Fortville Furniture, Inc., which was located in the garage back of the store building.\\nAt about 3:30 o'clock that Thanksgiving morning, John Randall, who resided on a farm about five miles northwest of Pendleton on State Road No. 38, was awakened by the sound of a motor vehicle engine on his driveway, which extended from State Road No. 38 for about 1,000 feet north to his home, barn and outbuildings, where the driveway made a complete U turn. When Randall first looked out he saw the truck of Fortville Furniture, Inc., which was unlighted on his driveway, in the light of a four door 1949 Oldsmobile convertible which had its top up. The tail lights on the convertible were large, rectangular in shape, set wide apart and set in the rear fenders in a vertical position. The truck, followed by the car, continued down his driveway and turned left on road No. 38. Randall dressed and drove his own car in pursuit of the truck and convertible, which then turned north on a county road to a T intersection where both the vehicles turned to the east in Madison County. The truck was stopped momentarily and left on the side of this county road, where the convertible stopped momentarily and then proceeded east to State Road No. 132, and then turned to the left toward the town of Lapel. Randall continued in pursuit but lost sight of the convertible in Lapel. Randall then started to return down road No. 132, when he saw the convertible again under a street light at the edge of-Lapel as it was proceeding southeast toward Pendleton. At Pendleton Randall followed the convertible on old State Road No. 9 and pursued the car as it fled on State Road No. 9 and 67 toward Anderson, but in the traffic Randall lost sight of the Oldsmobile.\\nRandall then returned to Pendleton where he awakened Officer Epperson of the Indiana State Police force. Epperson followed Randall back toward the place the Fortville Furniture truck was located, and as the cars turned left on the county road both Randall and Epperson saw the Fortville Furniture truck in the headlights of a vehicle' behind it, which immediately pulled around the truck and proceeded to meet them. Randall signalled Epperson by blinking his lights, and after Randall had passed the Oldsmobile Epperson threw his police car crosswise in the road, turned on his red light and got out of his police car to make the arrest. The Oldsmobile stopped, and upon Epperson's command, the three appellants left the Oldsmobile with their hands up and submitted to arrest. One of the appellants stated they had been hunting rabbits with a spotlight. At the direction of Epperson, Randall searched the convertible in which was found six pairs of gloves, two flashlights, a wrecking bar, a loaded shotgun, a loaded .22 rifle, some small drills, a glass cutter and two shotgun shells. Each appellant was searched by Epperson and his belongings thereafter kept by the officers. The search of the trunk of the car later at the Police Barracks at Pendleton Post disclosed a dead rabbit in the trunk.\\nThe truck had been moved about 1,500 feet east from the place it was first abandoned, its headlights were still oif, but the motor was running. A jumper connection had been used to bypass the ignition switch. Later the same day another pair of gloves was found on the road near the place where the truck had been stopped. The appellants, the Oldsmobile convertible, which belonged to the wife of one appellant, and the truck were taken to the State Police Post at Pendleton. An attempt was made to find fingerprints,' but only illegible smudged fingerprints were found on some of the furniture. Later appellant Blackwood was removed to the Madison County jail at Anderson.\\nWalter Fort, the Chief of Police of Fortville, the same evening found a cigarette lighter on the ground in the garage where the furniture truck was located the night of the theft. This was initialed by three of the officers and put with other belongings that belonged to appellant Blackwood. Sheriff Brogden of Madison County, who had charge of Blackwood and his belongings, placed the lighter with the belongings and put them on the table and asked Blackwood if the items were all his. Blackwood said, \\\"Yes.\\\" Several more times he identified all the belongings as his property, and several times while in jail awaiting trial asked for this lighter.\\nA yellow chenille rug had been stolen and was in the truck. Samples of lint were taken from some of the clothing worn by appellants, and the witness Duncan, a special agent for the Federal Bureau of Investigation of the Bureau's laboratory in Washington, made an examination of the lint and fibers from the rug and clothing, and gave it as his opinion that some of the samples were similar, although he could not positively state the specimens had all come from the same source.\\nThere is no necessity for an exhaustive review of the authorities on evidence sufficient to sustain a conviction on a charge of conspiracy. Evidence that merely shows relationship or association between the parties or evidence which merely establishes a suspicion of guilt, will not sustain a conviction. Coughlin v. State (1950), 228 Ind. 393, 92 N. E. 2d 718. But as stated in this case, \\\"In order to be a conspiracy there must be an intelligent and de liberate agreement to commit the offense charged. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to do the acts and commit the offense, though the agreement is not manifest by any formal words. Concurrence of sentiment and co-operative conduct in the unlawful and criminal enterprise are the essential ingredients of criminal conspiracy. There must be an agreement and there must be evidence to prove the agreement directly, or such a state of facts that an agreement may be legally inferred.\\\" (P. 395.)\\nA conspiracy can seldom be established by direct evidence of the unlawful agreement. But as stated in Brewster v. State (1917), 186 Ind. 369, 372, 115 N. E. 54, \\\" 'Conspiracies need not be established by direct evidence of the acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in pursuance of an apparently criminal or unlawful purpose in common between them. The existence of the agreement or joint assent of the minds need not be proved directly. It may be inferred by the jury from other facts proved. It is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the same so as to complete it, with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. If, therefore, one concurs in a conspiracy, no proof of an agreement to concur is necessary in order to make him guilty.' 5 R. C. L. 1088, \\u00a737, and authorities cited. See, also, Eacock v. State (1907), 169 Ind. 488, 502, 82 N. E. 1039; Cook v. State (1907), 169 Ind. 430, 433, 82 N. E. 1047; McKee v. State (1887), 111 Ind. 378, 383, 12 N. E. 510; Archer v. State (1886), 106 Ind. 426, 432, 7 N. E. 225.\\\"\\nThe facts and circumstances in this record, and the reasonable inferences to be drawn therefrom warranted the jury in convicting each appellant on each count.\\nAppellants are in error in their contention that there must have been proof that the conspiracy was entered into in Hancock County. From the evidence in the record the jury had the right to find that all appellants committed the grand larceny and automobile banditry as charged, and that their minds met understanding^ so as to bring about an intelligent and deliberate agreement to commit said offenses although the agreement was not evidenced by any formal words. There was concurrence of sentiment and conduct in the unlawful and criminal enterprise. The fact that the state did not show where the conspiracy was first formed would not constitute a variance or deprive the Hancock Circuit Court of jurisdiction to try the cause. The larceny occurred in Hancock County. \\\" 'At common law the venue in conspiracy could be laid in any county in which it could be proven that an overt act was done by any one of the conspirators in furtherance of their common design. 1 Archbold's Criminal Practice and Pleading (8th ed.) p. 226.' \\\" Hyde v. United States (1912), 225 U. S. 347, 365, 32 S. Ct. 793, 56 L. Ed. 1114. The law on the place where a conspiracy is deemed to have been committed has been well summarized by the Supreme Court of Illinois in People v. Blumenberg (1915), 271 Ill. 180, 185, 110 N. E. 788, as follows: \\\"Although, as has been stated, the unlawful combination alone constitutes the offense of conspiracy and no act in furtherance of the unlawful design is necessary to complete the offense, yet every such act is regarded, in law, as a renewal or continuance of the unlawful agreement. (People v. Mather, 4 Wend. 229; Bloomer v. State, 48 Md. 521; McKee v. State, 111 Ind. 378; Rex v. Brisac, 4 East. 164.) A conspiracy once formed is presumed to exist whenever and wherever one of the conspirators does some act in furtherance of its purpose. We have held that the performance of an overt act continues the existence of a conspiracy so as to prevent the running of the Statute of Limitations. (Ochs v. People, supra; Cooke v. People, 231 Ill. 9.) Since each overt act is a renewal of the conspiracy, the offense is continuous so long as overt acts in furtherance of its purpose are done. The conspiracy is renewed as to all the conspirators at the place where the overt act is done, and it is not necessary to allege the exact place where the conspiracy was originally formed. (Hyde v. United States, 225 U. S. 347; Brown v. Elliott, id. 392.) It does not constitute a variance that the conspiracy is shown to be originally formed in New York if the evidence showed its renewal in Chicago and Will county by acts done to effect its purpose.\\\"\\nThe evidence was sufficient to sustain the verdicts and they are not contrary to law.\\nIt is noted from the court's intrinsic record here that count two of the affidavit, which charged conspiracy to commit automobile banditry, charged the conspiracy to commit the same grand larceny that was charged in count one. The verdict finding the appellants guilty as charged in the first count of the affidavit assessed their fines in the sum of $2,500. The verdict finding the appellants guilty of the second count also assessed their fines in the sum of $2,500. The trial court entered judgment against each appellant separately and fined each the sum of $2,500 on each count as well as sentencing each to a term of imprisonment for not less than two years nor more than fourteen years on each count.\\nWe have previously called attention to the fact that \\u00a75 and 6 of Ch. 54 of the 1929 Acts, \\u00a79-2215 and 9-2216, Burns' 1933, were repealed by Ch. 85 of the Acts of 1935, \\u00a79-2215 and 9-2216, Burns' 1942 Replacement. Abraham v. State (1950), 228 Ind. 179, 91 N. E. 2d 358.\\nAutomobile banditry, as defined by \\u00a710-4710, Burns' 1942 Replacement (Acts 1929, ch. 54, \\u00a73, p. 136), requires the commission of two acts to constitute the felony: (1) the commission or attempted commission of a felony, and (2) \\\"having at the time on or near the premises where such felony is attempted or committed, an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape, attempt to escape or intend to escape,\\\" or after having committed or attempted to commit such felony, the seizing of \\\"an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape or attempt to escape . . . .\\\" See Todd v. State (1951), 230 Ind. 85, 101 N. E. 2d 922.\\nBefore either of the appellants could be convicted of conspiracy to commit automobile banditry the jury had to find they conspired to commit the larceny charged, which in this case was the same larceny charged in count one. In Kokenes v. State (1938), 213 Ind. 476, 479, 13 N. E. 2d 524, which we followed in Carter v. State (1951), 229 Ind. 205, 96 N. E. 2d 273, this court declared the general rules concerning convictions on included offenses as follows:\\n\\\"In Jackson v. State (1860), 14 Ind. 327, 328, it is said: 'The state cannot split up one crime and prosecute it in parts. A prosecution for any part of a single crime, bars any further prosecution based upon the whole or a part of the same crime.' In State v. Elder (1879), 65 Ind. 282, 285, the following rules are laid down by Biddle, J., who wrote the opinion:\\n(i\\n\\\" '2. When the facts constitute two or more offences, wherein the lesser offence is necessarily involved in the greater-\\u2014as an assault is involved in an assault and battery, as an assault and bat tery is involved in an assault and battery with intent to commit a felony, and \\u00e1s a larceny is involved in a robbery\\u2014and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the 'first prosecution to a final judgment will be a bar to the second.' \\\"\\nThe intrinsic record here does not present a case where an accused was charged with the commission of a felony and the conspiracy to commit the same felony which are separate acts not within the scope of the doctrine of included offenses. Here the charge was a conspiracy to commit larceny and under the second count, a conspiracy to commit the same larceny and escape by automobile. The conspiracy under the first count was necessarily included in the conspiracy under the second count. It was prejudicial error to enter a judgment on the first count even though the sentences run concurrently. Carter v. State (1951), 229 Ind. 205, 96 N. E. 2d 273, supra.\\nThe judgments on the first count of the affidavit are reversed, and the judgments on the second count are affirmed.\\nDraper, J., concurs in result.\\nNote.\\u2014Reported in 104 N. E. 2d 729.\\n\\\"When the conspiracy is a continuing one each overt act committed hy any one of the conspirators gives effect to the conspiracy and constitutes an offence at the time of the commission of the act.\\\" 2 Bishop, Criminal Law (9th Ed.) \\u00a7238zb, p. 187.\\n\\\"Although technically the place where the conspiracy is entered into is the place of venue, yet it is generally held that the venue may be laid, as to any or all of the conspirators, in the county in which an act was done by any of them in furtherance of their common design; and consequently in this county all the co-conspirators are indictable.\\n\\\"If a conspiracy be once established, although it was concocted out of the jurisdiction of the court, an overt act committed by one of the conspirators within the jurisdiction of the court, in the pursuit of the common object of said conspiracy, is the act of each conspirator. In such case we are to view the overt act, wherever committed, as a renewal of the original conspiracy by all the conspirators.\\\" 2 Wharton's Criminal Law (12th Ed.), \\u00a71666, pp. 1936, 1937.\\n\\\"After the joint design was once fairly established, every act done in pursuance of the original purpose, whether by one or more of the conspirators, or by their agent, was a renewal of the original conspiracy.\\\" McKee v. The State (1887), 111 Ind. 378, 382, 383, 12 N. E. 510.\"}"
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+"{\"id\": \"1729340\", \"name\": \"Starnes v. State of Indiana\", \"name_abbreviation\": \"Starnes v. State\", \"decision_date\": \"1951-10-31\", \"docket_number\": \"No. 28,847\", \"first_page\": \"33\", \"last_page\": \"34\", \"citations\": \"230 Ind. 33\", \"volume\": \"230\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:15:58.573737+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Starnes v. State of Indiana.\", \"head_matter\": \"Starnes v. State of Indiana.\\n[No. 28,847.\\nFiled October 31, 1951.]\\nHaywood Starnes, pro se.\", \"word_count\": \"120\", \"char_count\": \"668\", \"text\": \"Per Curiam.\\nThe relator, appearing pro se, files what he designates as a verified petition for writ of certiorari, in which he names the State of Indiana as the sole respondent. We have examined the petition and so far as we can determine, it seems to be a petition for writ of mandate to compel certain action by the Allen Circuit Court.\\nThe relief sought, therefore, relates to a proceeding in an inferior court, but since it wholly fails to comply with the requirements of Rule 2-35, the issuance of the writ must be denied.\\nSo ordered.\\nNote.\\u2014Reported in 101 N. E. 2d 272.\"}"
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+"{\"id\": \"1736566\", \"name\": \"Bolin v. State of Indiana\", \"name_abbreviation\": \"Bolin v. State\", \"decision_date\": \"1923-06-05\", \"docket_number\": \"No. 24,171\", \"first_page\": \"302\", \"last_page\": \"313\", \"citations\": \"193 Ind. 302\", \"volume\": \"193\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:36:24.094539+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bolin v. State of Indiana.\", \"head_matter\": \"Bolin v. State of Indiana.\\n[No. 24,171.\\nFiled June 5, 1923.]\\n1. Biot. \\u2014 Evidence.\\u2014Sufficiency.\\u2014In a prosecution for riot wherein a great crowd of miners accompanied five spokesmen to the home of the mine superintendent and made numerous demands of him, the entire evidence was held amply sufficient to sustain the charge, the evidence introduced by the defendants themselves, together with the inferences properly drawn therefrom, being sufficient to sustain the verdict of guilty, p. 307.\\n2. Biot. \\u2014 Evidence.\\u2014Tumultuous Conduct. \\u2014 When a spokesman for hundreds of miners who have visited the mine superintendent\\u2019s home and overflow his yard and grounds, calling the superintendent out, asks the superintendent if he hears certain demands shouted by the crowd in the yard, it is the same as if the spokesman repeated such demands himself. p. 307.\\n3. Biot. \\u2014 Tumultuous Conduct. \\u2014 While a small committee may legally visit a citizen and a mine officer and make requests, yet when they go with hundreds of followers, shouting their demands, frightening the officer\\u2019s family and driving them away, it is a violation of \\u00a72334 Burns 1914, defining riot as the doing of an act in a violent and tumultuous manner, p. 307.\\n4. Biot. \\u2014 Trial.\\u2014Instructions.\\u2014An instruction in a prosecution for riot which declares that if defendants assembled believing they had a grievance, such assembly would not be unlawful, is properly refused, since the essence of the offense of riot is doing an act in an unlawful manner after they are assembled, p. 310.\\n5. Biot. \\u2014 Trial.\\u2014Instructions.\\u2014Evidence.\\u2014Where all the evidence in a prosecution for riot shows that hundreds of persons gathered together to make demands of a mine superintendent, and when they were assembled in his yard, made their demands loudly and boisterously, an instruction which declares that if defendants assembled believing they had a grievance \\u201csuch assembly would not be unlawful\\u201d is improper as applied to the evidence, whatever the charge might have been. p. 310.\\n6. Biot. \\u2014 Trial.\\u2014Instructions.\\u2014Under \\u00a72334 Burns 1914, defining riot as the doing of an act in a violent and tumultuous manner, the purpose for which persons-may have assembled is no part of the definition, and an instruction stating that persons who assemble peaceably may do acts in a violent and tumultuous manner without being criminally liable, is properly refused, p. 311.\\n7. Biot. \\u2014 Indictment.\\u2014Definition.\\u2014The allegation in an indictment for rioting under \\u00a72334 Burns 1914, that defendants \\u201cunlawfully assembled\\u201d prior to doing in an unlawful, violent and tumultuous manner the act as charged, is no part of the description of the offense charged, p. 811.\\n8. Criminal Law. \\u2014 Instructions.\\u2014Credibility of Witnesses. \\u2014 An instruction which tells the jury they are the sole judges of the credibility of the witnesses, and of the facts which may be considered in determining a conflict in the testimony of different witnesses, and that it would be proper to consider, among other things, all the surrounding circumstances of the witnesses as brought out in the evidence, their interest, if any, in the result of the action, and such other facts appearing from the evidence as will aid in determining whom to believe, is a proper instruction, p. 311.\\n9. Biot. \\u2014 Responsibility of Participators. \\u2014 Instructions. \\u2014 Instructions which declare that mere presence where a riot occurs does not make one guilty of- the offense of rioting, but that if a person so present encourages, incites, promotes, supports, countenances or takes part in a riot he is guilty of the offense, correctly state the law. p. 311.\\n10. Criminal Law. \\u2014 Principals in Misdemeanors. \\u2014 All who participate in the commission of a misdemeanor are guilty as principals, p. 311.\\n11. Criminal Law.- \\u2014 Instructions.\\u2014Request.\\u2014Where an instruction correctly states the law as far as it goes, appellant cannot complain if he has not asked for instructions supplying any omissions, p. 312.\\n12. Witnesses. \\u2014 Cross-Examination.\\u2014Objections to questions on cross-examination of a witness are properly sustained, where the questions are outside the scope of the examination in chief, p. 312.\\n13. Witnesses. \\u2014 Examination.\\u2014Discretion of Court. \\u2014 The extent of cross-examination of witnesses is within the sound legal discretion of the court, p. 312.\\n14. Witnesses. \\u2014 Examination.\\u2014Leading Questions. \\u2014 A witness for the defense in a prosecution for rioting, after testifying that he had heard all that was said by the members of the committee visiting the mine superintendent, and what they said, was asked further if a question containing 37 words had not been asked and answered in that way; held such question was leading and objectionable, p. 313.\\nFrom Gibson Circuit Court; Robert C. Baltzell, Judge.\\nProsecution by the State of Indiana against Frank Bolin and others for rioting. From a judgment of conviction, the defendants appeal.\\nAffirmed.\\nFrank Ely, Claude A. Smith, James P. Duncan and Thomas Duncan-, for appellants.\\nV. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.\", \"word_count\": \"3974\", \"char_count\": \"22340\", \"text\": \"Ewbank, J.\\nAppellants were convicted of the offense defined by \\u00a72834 Burns 1914 (Acts 1905 p. 584, \\u00a7438), which in part reads as follows: \\\"If three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot,\\\" etc.\\nThe first count of the indictment, on which alone they were found guilty, charged that they and others therein named, to the number of sixty, on, etc., at, etc., \\\"did then and there unlawfully, riotously, violently and tumultuously and with force and arms, assemble and gather themselves together in the nighttime, at and near the home of Walter E. Cox, in the town of Francisco, and did in an unlawful, riotous, tumultuous and violent manner order the said Walter E. Cox to leave his home at once, and did in an unlawful, riotous, tumultuous and violent manner drive him from his home, contrary,\\\" etc. The only error assigned is overruling the motion of appellants for a new trial, by which they have challenged: (a) the refusal of the trial court to give, certain instructions; (b) the giving of certain other instructions; (c) the refusal to permit witnesses to answer certain questions; and (d) the alleged insufficiency-of the evidence to sustain the yerdict.\\nWe shall consider the last specification first. Witnesses called on behalf of the defendants (appellants) testified to the following facts: That Walter E. Cox was the superintendent of a mine at Francisco and lived in a house on the mining company's property, which faced the rock road, about 125 feet back from it, a quarter of a mile north of the Baptist church in the village of Francisco, being 300 feet north of the railroad; that before nine o'clock on a dark night in June, 1922, a crowd of men estimated by defendant's first witness at 700, and by others at 300 to 500 or more, gathered in the village; that men in the crowd had come there in automobiles from Princeton, Petersburg, Oakland City, Fort Branch and Clark's Station, and were recognized by witnesses, but residents of Francisco who testified said they saw them but did not know any of them; that the automobiles filled the streets, and some of them were left a quarter of a mile or more outside the town, parked at the side of the road; that women living in Francisco were frightened by the presence of the crowd and what it did; that when the crowd was starting to move out appellant Bolin said to a mine boss then on his way to Cox's house that, \\\"Us guys that worked in France are not going to have Hunkies take our jobs;\\\" that two of the defendants stopped the car in which the mine boss thus spoken to and another mine boss were driving with some ladies toward Cox's house, and said they wanted to meet Cox and have him get rid of the Hunkies and armed guards, and for said bosses to go home and not go down to his house, and then those two defendants followed with the crowd down to Cox's house; that at about nine o'clock the crowd moved north along the rock road from the Baptist church corner to said house; that five men were on the porch with guns, and a man on the porch \\\"hollered, 'What do you want?\\\"' that appellant Bolin answered that they \\\"wanted to meet Cox and have him get rid of his Hunkies and armed guards;\\\" that the man on the porch \\\"hollered, 'Send up your leader, send up a committee,' \\\" and that appellants Bruck, Bolin and Devine, and two other men from the crowd went toward the porch with their hands held above their heads, one of them saying they were coming up unarmed, and .not to shoot; that when they got within ten or twelve feet of the porch, one of the mine bosses on the porch said \\\"Stop, you have come far enough;\\\" that some others of the crowd advanced into the yard to within thirty feet of the house, filling the yard that far forward; that Bruck acted as spokesman and asked Cox if he was going to discharge the \\\"Hunkies and armed guards;\\\" Cox answered that they were union men and he would not, and the committee reported back to the crowd, when the crowd said, \\\"Tell him and the Hunkies and the armed, guards they can all go;\\\" and also said to \\\"make them all go,\\\" and to \\\"run them all out,\\\" and that \\\"they all had got to go,\\\" and some in the crowd yelled, \\\"Make him go and th\\u00e9 bosses, too,\\\" and ten or fifteen ,or maybe fifty voices from the crowd said to \\\"tell him that he and the Hunkies and gunmen must all go;\\\" that when Bruck went back to the crowd they were \\\"hollering around,\\\" and Bruck told them to quit, \\\"to be still and not make so much noise;\\\" that Bruck returned, to Cox and asked if he heard what they said, and then there was loud talking at the porch; that the noise made by the crowd at Cox's house was heard over in Francisco, 800 feet away; that Cox's wife then asked the crowd if they had no respect for a woman and her baby, and then Cox said he would go; that Cox asked whether he should go armed, and Bruck told him \\\"it would be best not to take his gun out there\\\" into the crowd; that Cox and his wife and baby then left the house and backed his car out of the garage and drove away in it, and the mine bosses and others who had been with him on the porch drove away in another automobile.\\nThis evidence given by the witnesses for the defend ants, with the inferences which legitimately might be drawn from it, would be sufficient by itself to sustain the verdict finding the participants guilty of riot, as charged in the indictment. Clearly it is sufficient to support an inference that they \\\"did an act in a violent and tumultuous manner.\\\"' When Bruck, assuming the office of spokesman for hundreds of men who had overflowed Cox's yard and the highway leading to it, after voices in the crowd had shouted their demands that the bosses as well as the workmen should all go, asked Cox if he heard what they said, it was the same as if he had repeated in words the demands to which he thus referred. And whatever right a committee of five might have had to visit Mr. Cox and present a request, they violated the law When they came with hundreds of followers, shouting a demand, by which they frightened his wife and drove him away.\\nBut the verdict does not rest alone upon the evidence given by witnesses for the defense. The state also called witnesses who testified to the following additional facts, which the witnesses for the defense said they did not hear nor see: That defendant Bruck was armed with a gun when he drove from Princeton to Francisco that evening, and at the suggestion of one of the five men who rode over in his car, another of those men borrowed a revolver at a poolroom where the car was stopped for that purpose, which he carried in the crowd that went to Cox's house; that as the crowd came from the village toward his house noises were heard as if the men were tearing off fence pickets and breaking up boards and fence rails, and beating on wires; that they stopped two men in the highway not far from- Cox's house and searched one of them, but said he was not the fellow they were after; that near the railroad they met an automobile in the road, and using a profane epithet and a vile name \\\"hollered to put out your lights or we will shoot them out,\\\" and stopped the car; that a shot or two were fired from the crowd when it was stopped; that two ladies in the car were frightened; that, as the two mine bosses drove north toward Cox's house defendants Bolin and Gayer told them they were \\\"after the Hunkies, and for them (the mine bosses) not to go down there,\\\" and as they drove up along the rock road defendant Hinkle fired a gun, caught hold of the running board of their automobile and looked in, and men in the crowd came toward it with pistols and clubs, and one struck the car with a club; but the car having stopped and the dimmers being turned on, and a man having looked in with a flash light, after about two minutes the car drove ahead; that the men in the crowd spoke in a loud, threatening manner; that as they came toward Cox's house the men in the crowd were \\\"half running,\\\" and were saying forward, march, steady now, charge, halt, and were giving commands; that defendant Stapleton had a gun; that several persons were carrying clubs; that a bunch of fellows with guns searched the house; that as the crowd was getting ready to come into Cox's yard a shot was fired; that the crowd came down the road and forty or fifty feet inside the yard before they stopped; that when one of the mine bosses on the porch told them to halt a voice from the crowd in the yard said, \\\"Get ready to cut them down;\\\" that there was much racket and yelling, and some swearing, cursing and blackguarding in the yard; that the noise was plainly heard by persons five or six squares away, \\\"loud talking, hollering and whooping\\\" by a \\\"big batch\\\" of voices; that when the committee of five came forward from the crowd, they said, \\\"We have laid our guns down and are coming up unarmed;\\\" that when they came up to the porch one of the mine bosses said to take it up through the constituted authorities and Bruck said, \\\"To hell witfi. the constituted authorities,\\\" they would take it on themselves to square up such things, and that they had three counties to clean up; that when Bruck went back to the crowd, he told them to \\\"cut out their cussing;\\\" that 25 persons in the crowd \\\"hollered to run them all out\\\" in a \\\"mad tone of voice;\\\" that while Bruck and the committee were talking to Cox, men in the yard \\\"were hollering, 'Charge them, Let them have it,' and so forth,\\\" which were said pretty loud by several persons; that in talking to Cox, Bruck used the word \\\"damn;\\\" that after talking a few minutes Bruck said to Cox that he would give him and the Hunkies five minutes to get out of town; that the committee finally told the bosses they would also have to leave; that Mrs. Cox sat on the floor behind her bed in a back room frightened and crying, until she came out on the porch and asked if they had no respect for a woman and her baby; that when she came out Bruck told the crowd to \\\"cut out their swearing;\\\" that the crowd \\\"were hollering, 'don't be all night, make him get out of there;' \\\" that one of the mine bosses, in promising to leave, said it was no use for one man to fight 500, and a man in the crowd said, \\\"There are 1,000 of us;\\\" that Cox finally said he could not stay and fight a crowd like that, and that he would leave for the sake of his wife and baby; that sending up some of the men of Francisco to talk with Cox and the mine bosses was suggested, but voices from the crowd said not to do so or they would all be in jail; that the committee of five told Cox he could not take his gun with him, and he left it in the house; that as Cox backed his car out of his garage men in the crowd \\\"hollered to put out your lights;\\\" that as he drove through the crowd he saw guns or clubs in the hands of the men; that Cox wanted to turn north, but the crowd seized hold of his car and turned it south, saying he could not go north; that as he was leaving one of the men under indictment who was in the crowd \\\"yelled 'Go back to Ziegler, you s-of a b-,\\\" and several in the crowd as he drove through it applied the same epithet to him; that he was once superintendent of a mine at Ziegler, Illinois ; that as the mine bosses drove out in their car some of the crowd surrounded it and said to turn out the lights or they would shoot them out, and not to turn them on; that men came to their car and began to swear and told the mine bosses \\\"to leave and never come back, you s-s of b-s,\\\" and there was quite a bit of swearing and blackguarding as they started to leave. And counsel for the defendants brought out in the cross-examination of Cox that two or three days before this occurred it had been rumored in Francisco that they were going to run him out of town. There was evidence connecting each of the appellants with what was done at that time. The evidence is sufficient to sustain the verdict.\\nThe constitutional right of persons in this state of \\\"assembling together, in a peaceable manner, to consult for their common good\\\" (Art. 1, \\u00a731, Constitution) was sufficiently declared by the sixth instruction given. No error was committed by refusing instruction No. 2, requested by the. defendants, which, would also have told the jury, if it had been given, that if the defendants assembled believing they had a grievance, \\\"such assembly would not be unlawful.\\\" The essence of the offense charged was doing an act in an unlawful manner after they were assembled. And the expression quoted does not state the law correctly as applied to the evidence recited above, whatever the charge might have been.\\nNeither is it the law, as defendants' instruction No. 3 would have declared, had it been given, that persons who assemble peaceably may do acts \\\"in a violent and tumultuous manner\\\" after they have assembled, without being criminally liable. The purpose for which persons who \\\"do an act in a violent and tumultuous manner\\\" may have assembled is no part of the definition of the crime of riot under the statute. \\u00a72334 Burns 1914, Acts 1905 p. 584, \\u00a7438; Kiphart v. State (1873), 42 Ind. 273, 275; Elliott, Evidence \\u00a73126.\\nThe allegation in the first count of the indictment that the defendants \\\"unlawfully assembled\\\" prior to doing in an unlawful, violent and tumultuous manner the act as charged, was no part of the description of the alleged offense. Kiphart v. State, supra. Appellants' requested instructions to the contrary were properly refused. The authorities cited by counsel from other jurisdictions where the' definition of riot embraces an unlawful assembling together as an essential element of the offense are not in point.\\nInstruction No. 11, given by the court, correctly told the jury that they were the sole judges of the credibility of the witnesses, and of the facts which might be considered in determining whom to believe if there should be a conflict in the testimony given by different witnesses, and stated that it would be proper to consider, among other things, \\\"all the surrounding circumstances of the witness as brought out in the evidence, their interest, if any, in the result of the action, and such other facts appearing from the evidence as will, in your opinion, aid you in determining whom you will believe.\\\" There was nothing in this instruction which could have prejudiced the appellants.\\nThe several instructions of which appellants complain to the effect that mere presence where a riot occurs does not make one guilty of the offense, but that if a person so present encourages, incites, promotes, supports, countenances or takes part in the riot he is guilty of the offense of riot, correctly declared the law. All who participate in the commission of a misdemeanor are guilty as principals. Topper v. State (1889), 118 Ind. 110, 111, 20 N. E. 699; Stratton v. State (1874), 45 Ind. 468, 475; Lay v. State (1895), 12 Ind. App. 362, 370, 371, 39 N. E. 768; Merrill v. State (1911), 175 Ind. 139, 146, 93 N. E. 857, 44 L. R. A. (N. S.) 439.\\nInstruction No. 18 given by the court did not withdraw the evidence of good character from consideration by the jury when fixing the punishment, nor tell them that such evidence could only be considered for the purpose of determining the question of guilt or innocence, as was done by instructions condemned by the opinions in cases on which appellants rely. If it was not as full and complete as it should be, the defendants should have asked instructions supplying the omissions, which they did not do. It correctly states the law as far as it goes, and appellants have no cause to complain. Corn v. State (1912), 177 Ind. 158, 97 N. E. 421; Bartlow v. State (1915), 183 Ind. 398, 401, 402, 109 N. E. 201.\\nAppellants complain that objections were sustained to certain questions asked on cross-examination of witnesses called by the state, but do' not point out anything in the examination in chief of those witnesses which made the excluded questions pertinent or proper. Nothing being shown to the contrary we must presume that the objections were properly sustained for the reason that the questions were outside the scope of the examination in-chief, and therefore were not proper cross-examination, if for no better reason. The extent of the cross-examination permitted is within the sound legal discretion of the trial court, and no abuse of discretion is shown in this case. Eacock v. State (1907), 169 Ind. 488, 501, 82 N. E. 1039; Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 280, 98 N. E. 177.\\nAfter Dale Stapleton, a witness for the defense, had testified that he heard all that was said by the five members of the committee who represented the crowd in their conversation with Cox and others at the porch, and had stated what each said at that time, and had testified that he had detailed all that was said by either of them, counsel for the defendants, as a further part of his examination in chief recited a supposed question and answer, of thirty-seven words in all, and asked the witness if he heard one of the mine bosses and Bruck, respectively, ask and answer that question in that way, to which an objection that it was leading was sustained. There was no error in this.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"1751332\", \"name\": \"City of Princeton v. Hanna et al.\", \"name_abbreviation\": \"City of Princeton v. Hanna\", \"decision_date\": \"1916-10-24\", \"docket_number\": \"No. 22,987\", \"first_page\": \"582\", \"last_page\": \"591\", \"citations\": \"187 Ind. 582\", \"volume\": \"187\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:02:55.746285+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"City of Princeton v. Hanna et al.\", \"head_matter\": \"City of Princeton v. Hanna et al.\\n[No. 22,987.\\nFiled October 24, 1916.\\nRehearing denied October 30, 1918.]\\n1. Statutes. \\u2014 Validity.\\u2014Title.\\u2014Section 90 of the act entitled \\u201cAn act concerning municipal corporations\\u201d (Acts 1905 p. 219, \\u00a78639 et seq. Burns 1914) authorizing appeals by cities without bond is not violative of Art. 4, \\u00a719, of the Constitution, which declares that every act shall embrace but one subject and matters connected therewith, which subject shall be expressed in the title, p. 584.\\n2. Statutes. \\u2014 Local Legislation. \\u2014 Validity.\\u2014Section 90 of the act concerning municipal corporations (Acts 1905 p. 219, \\u00a78639 et seq. Burns 1914) is not violative of Art. 4, \\u00a722, clause 3, of the Constitution, which forbids local or special laws regulating the practice in courts of justice, since the classification is reasonable. p. 584.\\n3. Time: \\u2014 Computation.\\u2014Sunday.\\u2014Perfection of Appeal. \\u2014 Filing Transcript. \\u2014 Although it was necessary for the appellant to file his transcript within sixty days from the ruling on a motion for new trial and the granting of the appeal, where the sixtieth day was Sunday, the filing of the transcript on the ' sixty-first day was in time, under \\u00a71350 'Burns 1914, \\u00a71280 R. S. 1881. p. 585.\\n4. Adverse Possession. \\u2014 Highways.\\u2014Encroachments.\\u2014One encroaching on a highway dedicated to the public use acquires no rights by prescription or adverse user. p. 587.\\n5. Statutes. \\u2014 Construction.\\u2014Vacation of Highways. \\u2014 The legis-. lative purpose in laws providing for the vacation of existing highways is public \\u2014 and not private \\u2014 use and convenience, p. 587.\\n6. Municipal Corporations. \\u2014 Highways. \\u2014 Vacation. \\u2014 Jurisdiction of Court. \\u2014 Statutes.\\u2014Under \\u00a7\\u00a78908-8920 Burns 1914, Acts 1907 p. 617, relative to the vacation of plats and the dis-annexation of territory from cities and towns, etc., which authorizes a proceeding in the circuit court to vacate any street or part thereof and authorizing a remonstrance on the grounds that the public place sought to be vacated is necessary to the growth of the municipality, or that the proposed vacation will leave the remonstrants\\u2019 property without a public way or will deprive the public of access to some church, school or other public building, does not confer on circuit courts jurisdiction of a proceeding to vacate a portion of a street longitudinally along either of its sides so as to narrow it and leave it open, since the last section provides that the act shall not repeal any existing law, and, in view of such section, the municipal authorities have exclusive power to narrow the width of a street under \\u00a7267, Acts 1905 p. 219, \\u00a78961 Burns 1914, giving to every city, except as otherwise provided, exclusive power over its streets and the right to straighten, widen and alter the streets already laid out. pp. 588, 590.\\nFrom Gibson Circuit Court; Simon L. Vandeveer, Judge.\\nPetition by Hugh Hanna, Jr., and others, against the city of Princeton. From a judgment for petitioners, the defendant appeals.\\nReversed.\\nHenry Kister and D. R. Head, for appellant.\\nClaud A. Smith and T. Morton McDonald, for appellees.\", \"word_count\": \"2905\", \"char_count\": \"17060\", \"text\": \"Morris, J.\\n\\u2014 Appellees, Thompson and Hanna, filed in the Gibson Circuit Court their petition to vacate a portion of Gibson street in appellant city, consisting of a strip on the east side thereof four feet wide at one street intersection and twelve feet wide at another immediately south thereof. The city, which is one of the fifth class, remonstrated against the proposed change. A trial resulted in a finding and judgment for appellees. Appellant's motion for a new trial was overruled on September 22, 1915. An appeal to this court was prayed by appellant and granted, but no appeal bond was filed. The transcript was filed here on Monday, November 22, 1915.\\nPersons other than appellant and appellees were parties to the proceeding, but no notice of appeal issued to them. On May 17, 1916, appellees filed their motion to dismiss the appeal. Section 90 of the act of 1905, entitled \\\"An Act concerning municipal corporations,\\\" provides that: \\\"In all actions in which any city is entitled to pray an appeal, the same shall be granted as to such city without bond.\\\" Acts 1905 p. 219, \\u00a78692 Burns 1914. Appellant's motion to dismiss is predicated on: (1) The theory that the above statutory provision is unconstitutional because in contravention of \\u00a719, Art. 4, and \\u00a722, cl. 3, of the same article, of our state Constitution, and (2) that, if violative of neither constitutional inhibition, nevertheless the appeal must be deemed a vacation one, because, as claimed, the transcript was not filed within sixty days. \\u00a7679 Burns 1914, \\u00a7638 R. S. 1881.\\nWe are of the opinion that the act of 1905 authorizing appeals, without bond, by cities, is not violative of \\u00a719, Art. 4, supra, which declares that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. Nor is the statute in contravention of the constitutional provision (Art. 4, \\u00a722, cl. 3, supra), which forbids local or special laws regulating the practice in courts of justice. Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 232, 61 N. E. 197; Cleveland, etc., R. Co. v. Blind (1914), 182 Ind. 398, 419, 105 N. E. 483. The classification here is reasonable.\\nWhile the transcript here was actually filed sixty-one days after the ruling on the motion for a new trial and the granting of the appeal, the sixtieth day fell on Sunday. Section 849 of our Code of civil procedure (\\u00a71350 Bums 1914, \\u00a71280 R. S. 1881) provides that: \\\"The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.\\\" If it was necessary for appellant to file the transcript within sixty days, the filing was in due time under the provisions of \\u00a71350, supra. The motion to dismiss is overruled.\\nIt appears from appellees' petition that the portion of Gibson street in controversy is a part of the original plat of the town of Princeton made in 1814 by one Evans as agent of Gibson county. The street, as platted, extends north and south, is sixty feet wide at the place in controversy, and is intersected by State and groadway streets. Between the latter, on the east'side thereof, appellees own-lots on which are situated buildings located, in part, west of the east line of Gibson street. The petition avers that the street has never been used for travel to a width greater than forty-eight feet, and that the latter width is sufficient to accommodate public travel; that Gibson street extends south beyond the intersecting streets a distance of half a mile, where it is only forty-eight feet wide; that the city council of Princeton has ordered an improvement of Gibson street, that will, if consummated, require petitioners to remove their buildings out of'the street at great expense.\\nThe city filed a remonstrance in four paragraphs, the first three including the statutory grounds found in \\u00a78911 Burns 1914, post. The fourth paragraph alleges that previous to the filing of appellees' petition the city had duly ordered the improvement of the street by constructing a combined curb and gutter; that when constructed, pursuant to the plans and specifications legally adopted by the city council, there will not be room for the construction of sidewalks for the traveling public if the proposed vacation be granted. This paragraph was ordered stricken out.\\nThe petition was filed under the act of 1907, entitled \\\"An Act concerning the vacation of plats of lands or any part thereof and for the disannexation of territory from the corporate limits of cities and towns.\\\" Acts 1907 p. 617, \\u00a78908-8920 Burns 1914. Section 3 of the act (\\u00a78910 Burns 1914) authorizes a proceeding in the circuit court to vacate \\\"any street or part thereof\\\" adjoining a lot or lots of a petitioner. Section 4 of the act (\\u00a78911 Burns 1914) authorizes remonstrances on three grounds only, viz.: (1) Because the public place sought to be vacated is necessary to the growth of the municipal corporation; (2) because the proposed vacation will leave a remonstrant's real estate without communication with a public way; (3) or because the proposed vacation will deprive the public's access to some church, school, or other public building or grounds.\\nIt is earnestly contended by appellant that the circuit court was without jurisdiction of the subject-matter of the action; that the act of 1907, properly construed, confers no authority on circuit courts to adjudge the vacation of a portion of a street by making it narrower; but that, if such act be held as conferring such authority, the same must be held unconstitutional and void.\\nThe municipal corporations act of 1905, Acts 1905 p. 219, \\u00a78639 et seq. Burns 1914, revised our statutory laws relating to cities and towns. Section 266 of this act (\\u00a78960 Burns 1914) invests the common council of every city with power to pass all necessary ordinances in relation to the opening, change, or improvement of streets. Section 267 of the act (\\u00a78961 Burns 1914) provides that, except when otherwise provided by law, every city shall have exclusive power over its streets, and to \\\"straighten, widen and otherwise alter and improve those already laid out, or that may hereafter be laid out, and may construct and establish sidewalks and street crossings.\\\"\\nIt is conceded by appellees that, previous to the enactment of the statute of 1907, cities were invested with the exclusive power to' alter the width of their streets by making them narrower. Since the enactment of the law of 1907, this court has considered cases where the petitions in the circuit court sought the vacation of portions of streets in their entire width. Hudson Tp. v. Smith (1914), 182 Ind. 260, 106 N. E. 359; City of Peru v. Cox (1908), 173 Ind. 241, 90 N. E. 7. Whether the act authorized a circuit court to adjudge the narrowing of a city street has not been heretofore considered. In the last section of the 1907 act, it is provided that the act shall not have the effect to repeal any existing law, but shall be supplementary to then existing laws on the subject.\\nOne encroaching on a highway dedicated to public use acquires no rights by prescription or adverse user. Hall v. Breyfogle (1903), 162 Ind. 494, 70 N. E. 883. The legislative purpose in laws providing for the vacation of existing highways is public, and not private, use and 'convenience, and usually the specific object sought is relief from the public expense of maintaining unnecessary roads or substituting a more desirable way for an existing one. 13 R. C. L. 68.\\nIn general terms, the act of 1907, supra, provides for the vacation of streets in whole or in part. It is argued by appellees that, since the greater includes the less, authority to vacate a portion of the street should be held to include a partial vacation in width as well as length. City of Mt. Carmel v. Shaw (1895), 155 Ill. 37, 39 N. E. 584, 27 L. R. A. 580, 46 Am. St. 311. We cannot accept such view of this statute. In seeking the controverted legislative purpose in an amendatory or supplemental act, it is obviously necessary to consider both the former and latter enactments. We find that by the act of 1905, supra, the exclusive power to straighten or alter an existing street was vested in the city authorities. No such power is given, in express terms,' by the act of 1907, supra. Moreover, the sole grounds of remonstrance permitted by the latter act do not warrant the determination by the circuit court of those matters of supreme importance, viz., the convenience and safety of public travel. The growth of the city in population or wealth might not be substantially affected- by the narrowing of a street, and such act would not prevent access to the street by adjoining owners, nor would it cut off public access to any church, school, or public place or ground adjoining the highway.\\nOn appellees' theory, which was adopted by the trial court, the latter properly struck out appellant's fourth ground of remonstrance because not included in the statutory grounds, although the conceded effect was to deprive the city authorities of the power to provide a sidewalk on a portion of a century old street, and near the public square of a thriving county-seat city.\\nWe are of the opinion that it was not the legislative purpose by the act of 1907, supra, to confer jurisdiction on the circuit courts to order the narrowing of city streets, and chat the trial court erred in over ruling appellant's motion for a new trial which challenged the jurisdiction of the court over the subject-matter of the petition. Our conclusion relating to the legislative intent renders unnecessary a consideration of the constitutional question presented.\\nJudgment reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.\"}"
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+"{\"id\": \"1754302\", \"name\": \"State ex rel. Martin v. Hancock Circuit Court, Offutt, Judge\", \"name_abbreviation\": \"State ex rel. Martin v. Hancock Circuit Court\", \"decision_date\": \"1953-06-02\", \"docket_number\": \"No. 29,039\", \"first_page\": \"322\", \"last_page\": \"328\", \"citations\": \"232 Ind. 322\", \"volume\": \"232\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:42:14.745129+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. Martin v. Hancock Circuit Court, Offutt, Judge.\", \"head_matter\": \"State ex rel. Martin v. Hancock Circuit Court, Offutt, Judge.\\n[No. 29,039.\\nFiled June 2, 1953.]\\nDavis & Williams, of Greenfield and Martz, Beatty & Walla\\u2019ce of Indianapolis, for relator.\\nSamuel J. Offutt, Pro se.\", \"word_count\": \"1585\", \"char_count\": \"8907\", \"text\": \"Gilkison, J.\\nBy this original action relator seeks to mandate the respondents to grant him a change of venue from the county in the matter of Effie M. Martin, an insane person, being No. 27438 in the Hancock Circuit Court. We issued an alternative writ on April 6, 1953.\\nThe petition shows that on March 5, 1953, a petition was filed in. the Hancock Circuit Court by Naomi G. Malcolm, asking for the appointment of a permanent guardian for Effie M. Martin, an insane person.\\nOn March 16, 1953, relator filed his petition to oppose the appointment, alleging that on February 18, 1953, he was appointed guardian for such insane person by the Probate Court of Harris County, Texas, and that he thereafter \\\"qualified in the state of Indiana, by filing an authenticated copy of the appointment of guardianship in the state of Texas \\u2014 together with the order of the court and a bond set by the Probate Court of Harris County, with the clerk of Hancock County, Indiana.\\\"\\nIt is averred that by reason of said facts relator is entitled to exercise in the state of Indiana the rights as guardian over all the property of Effie M. Martin in the state of Indiana. That because of the facts stated, the respondent court is without jurisdiction to appoint a guardian for the insane person in Indiana.\\nOn relator's motion for change of venue the respondent judge on March 20, 1953, found and adjudged that the relator, Charles W. Martin, is not the guardian of Effie M. Martin in the state of Indiana and is without authority over her property in the state of Indiana, and that he has no standing in the respondent court either to defend the action or to ask for a change of venue and is not a party in interest in the proceeding, and for these reasons, the motion for change of venue from the county was denied. Thereupon the cause was called for trial, with Thomas W. McKean, prosecuting attorney, defending for Effie M. Martin. After hearing the evidence the respondent court found and adjudged Effie M. Martin to be a person of unsound mind, incapable of managing her own estate. That she had both personal and real property in Hancock County, Indiana, and that a guardian should be appointed for her to take charge of said property. John S. Thomas, of that. county, was appointed permanent guardian with bond fixed at $10,000.\\nIt is averred that the appointment of John S. Thomas as permanent guardian is \\\"contrary to law and contrary to the interest of Effie M. Martin and to Charles W. Martin the alleged' Texas guardian.\\\"\\nThe facts in this proceeding are not disputed and are substantially as set forth above. The questions presented are: (1) Was the relator a party to the proceeding to have a guardian appointed for Effie M. Martin in Hancock County, Indiana? (2) Did relator have authority to ask for a change of venue from the county at the time he filed his verified motion therefor?\\nOur statute on change of venue from the county so far as affecting the matter. before us, provides :\\n\\\"The court, in term, or the judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one [1] or more of the following causes:\\n(\\u00cd\\n\\\"Third. That the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant, or to his cause of action or defense, on account of local prejudice.\\n\\\". . . .\\\" \\u00a72-1401 Burns' 1946 Replacement.\\n(Our italics).\\nThe change of venue statutes all provide for a change of venue upon the application of a party. It seems to be settled that one must be a party to the action in order to be entitled to a change of venue from the county. Wheeler v. City of Indianapolis (1929), 201 Ind. 415, 418, 166 N. E. 433, 175 N. E. 15; State ex rel. Kist v. Ball (1945), 223 Ind. 512, 516, 62 N. E. 2d 621. The affidavit for change of venue from the county may be made by the party himself, or by his agent or attorney. Wheeler v. City of Indianapolis, supra. Heshion v. Pressley (1881), 80 Ind. 490.\\nThe action pending in respondent court is a statutory proceeding based upon \\u00a78-217 Burns' 1933, providing as follows:\\n\\\"Whenever any person not an inhabitant of this state, but having property in this state, shall, by inquest held and determined according to the laws of the state where such person may reside, be found to be a person of unsound mind, the court having probate jurisdiction in any county of this state where any of such property may be found may appoint a guardian for such person, who shall have the management of such person's estate in this state; and the guardianship so first granted shall exclude all others.\\nThe petition for the appointment of a guardian in respondent court is entitled \\\"In the Matter of Effie M. Martin an insane person.\\\" Among other things it shows that Effie M. Martin was and is a resident of Hidalgo County, Texas and that she had been adjudged a person of unsound mind and incapable of managing her own estate by the Probate Court of that county on February 5, 1952, and that this judgment is still in force.\\nIt further shows .that Effie M. Martin owns 333^ acres of well improved farm land in Hancock County, Indiana of the probable value of $75,000, the annual rental value of which is $6,000, and she also owns personal property thereon of the value of $4,300. That said real and personal property is now under rental on a fifty-fifty basis for a period of five years from October 28, 1950.\\nThe petition further shows that one John S. Thomas was the temporary guardian of Effie M. Martin, and asked that he be appointed permanent guardian to look after and protect the interest of the ward, particularly in the matter of the lease.\\nThe relator was not made a party to this proceeding and so far as shown by the record before us, he made no request of the respondent judge to be made a party therein. The pleadings show that relator had been appointed guardian of the ward, Effie M. Martin, by the probate court of Harris County, Texas, on February 18, 1953, and that on February 25, 1953, he had filed an authenticated copy of his appointment in the office of the clerk of the Hancock Circuit Court, together with the order, and a copy of the bond set by the Texas court. Apparently relator believed because of the situation thus created, he became and was the lawful guardian of the ward in Indiana. The statute under which he proceeded, provides as follows:\\n\\\"When any minor or other person shall be under guardianship without this state, the foreign guardian may file an authenticated copy of his or her appointment in the office of the clerk of the circuit court of the county in which there may be personal estate or assets of his or her ward; after which he or she may proceed to take possession of said personal property or assets, and may sue for and recover possession thereof in the circuit court of this state, and execute all proper and necessary receipts.\\\" \\u00a78-130 Burns' 1933.\\nHowever, we think that relator's rights in the matter are fully covered by the statute, thus: He may proceed to take possession of said personal property or assets, and may sue for and recover possession thereof in the circuit court of this state, and execute all proper and necessary receipts. The filing of an authenticated copy of his appointment as guardian by the probate court of Texas, in the office of the clerk of the Hancock Circuit Court, agreeable with \\u00a78-130 Burns' 1933, supra, gave relator only the rights specifi cally provided by that statute. Marts, Guardian v. Brown, Guardian (1877), 56 Ind. 386; Anno. C, 89 Am. St. 274. It gave him no other extra territorial rights. It did not make him appellant's guardian in Indiana, and did not make him a party to the statutory proceeding to have a permanent guardian appointed in Indiana, the sole purpose of which is to conserve and care for the extensive interest of the ward in Indiana, under the direction of the proper court. In re Boyer's Guardianship; Rittenour v. Hess (1931), 96 Ind. App. 161, 165, 174 N. E. 714. See also, 39 C. J. S., Guardian and Ward, \\u00a7186, p. 331; 25 Am. Jur., Guardian and Ward, \\u00a7215, p. 135; Earl, Guardian v. Dresser, Guardian (1868), 30 Ind. 11, 15; Schmid & Smith v. Shaw (1924), 83 Ind. App. 122, 124, 145 N. E. 512; Shaw v. Meyer-Kiser Bank (1927), 199 Ind. 687, 693, 156 N. E. 552. Since relator was not a party to the proceeding before the respondent court, it was clearly within the authority of that court to deny the motion for change of venue from the county.\\nThe temporary writ of mandate issued herein- is hereby revoked and a permanent writ is denied.\\nBobbitt, C. J., not participating.\\nNote. \\u2014 Reported in 112 N. E. 2d 578.\"}"
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+"{\"id\": \"1768824\", \"name\": \"Ice v. State ex rel. Indiana State Board of Dental Examiners\", \"name_abbreviation\": \"Ice v. State ex rel. Indiana State Board of Dental Examiners\", \"decision_date\": \"1959-11-02\", \"docket_number\": \"No. 29,774\", \"first_page\": \"82\", \"last_page\": \"88\", \"citations\": \"240 Ind. 82\", \"volume\": \"240\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:32:16.522444+00:00\", \"provenance\": \"CAP\", \"judges\": \"Arterburn, Bobbitt, Jackson and Landis, JJ., concur.\", \"parties\": \"Ice v. State ex rel. Indiana State Board of Dental Examiners.\", \"head_matter\": \"Ice v. State ex rel. Indiana State Board of Dental Examiners.\\n[No. 29,774.\\nFiled November 2, 1959.]\\nWilliam C. Welborn and Milford M. Miller, both of Evansville, for appellant.\\nEdwin K. Steers, Attorney General, and Thomas L. Webber, Assistant Attorney General, for appellee.\", \"word_count\": \"1874\", \"char_count\": \"11240\", \"text\": \"Achor, C. J.\\nThis is an action by the State of Indiana on relation of the Indiana State Board of Dental Examiners for an injunction to restrain appellant Robert B. Ice from engaging in the practice of dentistry. The injunction issued and from this decree appellant appeals.\\nAppellant is a dental technician with 20 years' experience. During his military service he both fitted and manufactured prosthetic dentures. Appellant asserts that the Acts of 1948, ch. 808, \\u00a72, p. 1036 [being \\u00a763-522, Burns' 1951 Repl.], which defines the practice of dentistry and limits such practice only to licensed dentists, is unconstitutional and that the decision of the court is contrary to law and is not sustained by sufficient evidence.\\nIn support of his contention that the decision of the court is contrary to law and' not sustained' by sufficient evidence, appellant argues that the decision is contrary to public policy in that it prohibits experienced dental technicians from taking impressions necessary to the manufacture of dentures and prohibits the construction or repair of dentures to be worn by any person except on prescription by and delivery to a licensed dentist. In support of his argument, appellant asserts the existence of a great public need for dentures and a comparable shortage of dentists, which makes it impossible for the dentist to either make or adequately supervise the making of dentures sufficient to meet the public need. In effect, appellant argues that the injunction constitutes an unlawful exercise of the police power.\\nHowever, it is well settled that the practice of dentistry is a profession directly related to the public health and that the exercise of the police power for control of practice of dentistry is a matter which rests with the legislature and not with the court. Upon this subject this court has stated:\\n\\\"The legislative judgment that the welfare of the public requires that those practicing the dental profession shall possess the necessary skill and learning and shall obtain a certificate, is probably conclusive. But, if it were not, the courts must take judicial knowledge that it is a profession requiring skill. The fact that the dentist employs his professional skill upon an important part of the human body is, of course, known to every one, and can not be unknown to the courts. As this is known, it must follow that it may also be judicially known that one unskilled in the profession may injure the person who employs him. As this is so, then, as we have seen, the Legislature may prescribe the qualifications of those permitted to practice the profession.\\n\\\"It is established law that an act of the Legislature can not be annulled by the judiciary in any /respect unless it clearly contravenes some provision of the Constitution. Doubt must be resolved in favor of the validity of the statute. Since this doctrine was announced by Chief Justice Marshall, early in the history of our country, it has been inflexibly adhered to by all the courts. Cooley Const. Lim. (5th ed.) 218; Beauchamp v. State, 6 Black. 299; Pittsburgh, etc., R. W. Co. v. Brown, 67 Ind. 45 (33 Am. R. 73); Hedderich v. State, 101 Ind. 564 (51 Am. R. 768); Robinson v. Schenck, 102 Ind. 307 (319).\\\" Wilkins v. The State (1888), 113 Ind. 514, 516-517, 16 N. E. 192.\\nWe next consider appellant's contention that the law is unconstitutional. Appellant asserts that it violates Art. 1, \\u00a71, 21 and 23 of the Constitution of Indiana, and Section 1 of the Fourteenth Amendment to the Constitution of the United States.\\nSpecifically appellant contends that under Art. 1, \\u00a71 and 23, supra, appellant has a vested right as a dental technician, experienced in the making of prosthetic dentures, to continue the practice of his profession, notwithstanding the provisions of \\u00a763-522, supra, which defines such activity as the practice of dentistry, and because of this alleged vested right the appellant's constitutional rights are violated by the enforcement of this statute.^\\nFurther appellant contends that he has been discriminated against in that he has not been extended the same privileges and immunities as other classes of citizens, such as dentists or medical technicians, contrary to Art. 1, \\u00a723 of the Constitution of Indiana, supra, and \\u00a71 of the Fourteenth Amendment to the Constitution of the United States, supra. The contentions have heretofore been answered in the negative by the following cases and authorities:\\nIn State v. Williams (1937), 211 Ind. 186, 197, 5 N. E. 2d 961, this court said:\\n\\\"The profession of dentistry is not a business, but one of the learned professions which requires long years of study before one is capable of practicing the profession. . . . and anyone who is not so qualified can neither directly nor indirectly practice dentistry. . . .\\\"\\nAnd in State ex rel. Bd. of Dental Exam. v. Boston Sys. Den. (1939), 215 Ind. 485, 489, 19 N. E. 2d 949, this court said:\\n\\\"To prohibit the appellee from engaging in the unauthorized practice of dentistry by injunction does not destroy any of its vested rights. The practice of dentistry is a personal privilege and not a matter of right. Herman v. Baker, supra (214 Ind. 308, 15 N. E. 2d 365). It is a profession and not a business. . . .\\\"\\nAnd in Lucas v. State ex rel. Board, etc. (1951), 229 Ind. 633, 639-642, 99 N. E. 2d 419, we quoted from The State, ex rel. Burroughs v. Webster et al. (1898), 150 Ind. 607, 616, 617, 618, 619, 620 and 621, 50 N. E. 750, 753, 754, 755, with approval as follows:\\n\\\"'Statutes similar to the one under consideration, denying to all physicians in the state, lawfully engaged in practice, the right to continue such practice, until they conform to the requirements of the statute, and restricting the practice of medicine to persons who are able to demonstrate their qualifications have been held constitutional as a proper exercise of the police power of the state in nearly every state of the union and in the Supreme Court of the United States. (Cases cited.)\\n\\\" 'Similar statutes have been sustained for the regulation of the practice of dentistry. (Cases cited.)\\n\\\" 'In every one of these cases it has been held that it is within the power of the General Assembly to prescribe qualifications for the practice of the professions or trades named, and to regulate and control these professions, even to the point of talcing away the right to practice from, persons lawfully engaged in the practice who may be deemed insufficiently qualified in the judgment of the board or official to whom the examination of the applicant has been entrusted.' (Our italics.)\\n\\\"And, in Dent v. West Virginia, supra (129 U. S. 114), it was said by the Supreme Court of the United States: 'It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition. This right may, in many respects be considered a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the igeneral welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different states from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parities by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation.\\\"\\nSee also: 5 I. L. E., Constitutional Law, \\u00a7203, p. 496; 16 C. J. S., \\u00a7195, pp. 940-942; 16A C. J. S., \\u00a7510, pp. 337-340, \\u00a7511g, pp. 354-355, \\u00a7668, 669, pp. 1059-1060, 1069-1071, \\u00a7673, p. 1078.\\nJudgment is therefore affirmed.\\nArterburn, Bobbitt, Jackson and Landis, JJ., concur.\\nNote. \\u2014 Reported in 161 N. E. 2d 171.\\n. \\\"Any person shall be said to be practicing dentistry within the meaning of this act [\\u00a7\\u00a763-501 \\u2014 63-526] who . . . makes impressions or casts of any oral tissues or structures for the purpose of diagnosis or treatment thereof or for the construction, repair, reproduction or duplication of any prosthetic device to alleviate or cure any oral lesion or replace any lost oral structure, tissue, or teeth; or engages in practices included in the curricula of recognized dental colleges; or directly or indirectly by any means or method furnishes, supplies, constructs, reproduces, repairs, or adjusts any prosthetic denture, bridge, appliance, or any other structure to be worn in the human mouth and delivers the same to any person other than the duly licensed dentist upon whose prescription or order the work was performed; . . \\u00a763-522, Burns' 1951 Repl.\\n. \\\"All men are endowed by their creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.\\\" Art. 1, \\u00a71, Const. of Indiana.\\n\\\"No man's particular services shall be demanded, without just compensation. No man's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.\\\" Art. 1, \\u00a723, Const, of Indiana.\\n\\\". . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.\\\" Amend. 14, \\u00a71, Const. of the United States.\"}"
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+"{\"id\": \"1934967\", \"name\": \"Kelso et al. v. Wolf\", \"name_abbreviation\": \"Kelso v. Wolf\", \"decision_date\": \"1879-11\", \"docket_number\": \"\", \"first_page\": \"105\", \"last_page\": \"106\", \"citations\": \"70 Ind. 105\", \"volume\": \"70\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:22:24.686651+00:00\", \"provenance\": \"CAP\", \"judges\": \"TIowk, J., having been of counsel, was absent.\", \"parties\": \"Kelso et al. v. Wolf.\", \"head_matter\": \"Kelso et al. v. Wolf.\\nPromissory Note.\\u2014 Complaint against Maher and Executor of Co-Maher. \\u2014Evidence.\\u2014In an action on a promissory note, against a maker and the executor of a deceased co-maker, the fact that the compldint alleges the note to have been executed by \\u201c the defendants \\u2019\\u2019 does not impose upon the plaintiff the necessity of proving the execution of the note by such executor.\\nSupreme Court. \\u2014 Excessive Damages. \\u2014 New Trial. \\u2014 Where excessive damages is not assigned as cause for a new trial, it will not be considered by the Supreme Court.\\nFrom the Floyd Circuit Court.\\nD. C. Anthony and J. V. Kelso, for appellants.\", \"word_count\": \"446\", \"char_count\": \"2574\", \"text\": \"Biddle, J.\\n\\u2014 Suit on a promissory note made by the appellants to Epaminondas Williams, and assigned by Williams to the appellee. Answers and replies. Trial by the court, finding and judgment for appellee. Appeal.\\nThe only point made in the ease is \\\"that the finding is not sustained by the evidence.\\\"\\nThe complaint avers that \\\" Said defendants, by their promissory note,\\\" etc., \\\"promised to pay,\\\" etc., setting out the note as an exhibit, and' then avers the death of one of the makers of the note, and makes his executor a party defendant, by proper averments. The a'ppellants think that there is a \\\"missing link\\\" in the evidence because the appellants did not prove that the executor executed the note, having averred that \\\"Said defendants, by their promissory note,\\\" etc., which averment, they contend, means that the executor executed the note; and, having averred it, they were bound to prove it \\u2014 the general denial being in. \\\"We see no force in this point. The plaintiff was not bound to prove any more of liis complaint than was necessary to sustain his case. .\\nOpinion filed at November term, 1879.\\nPetition for a rehearing overruled at May term, 1880.\\nThe only other point made in the brief of appellants is that the amount of the recovery is too large. This was not assigned as a cause for a new trial, and is therefore not presented. The sixth statutory cause for a new trial, namely, that the finding is not sustained by the evidence, the one assigned in this case, does not present any question as to the.amouut of the recovery. That the fiuding should have been for the appellee, is not questioned. See Buskirk Prac. 234, and the following eases: Frank v. Kessler, 30 Ind. 8; Dix v. Akers, 30 Ind. 431; City of Indianapolis v. Parker, 31 Ind. 230; Walpole's Adm'r v. Carlisle, 32 Ind. 415; Rosenbaum v. McThomas, 34 Ind. 331.\\nThe judgment is affirmed, at the costs of the appellant.\\nTIowk, J., having been of counsel, was absent.\"}"
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+"{\"id\": \"1949791\", \"name\": \"Bennett et ux. v. Gaddis, Adm'r\", \"name_abbreviation\": \"Bennett v. Gaddis\", \"decision_date\": \"1881-11\", \"docket_number\": \"No. 8589\", \"first_page\": \"347\", \"last_page\": \"351\", \"citations\": \"79 Ind. 347\", \"volume\": \"79\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:41:22.898763+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bennett et ux. v. Gaddis, Adm\\u2019r.\", \"head_matter\": \"No. 8589.\\nBennett et ux. v. Gaddis, Adm\\u2019r.\\n.Decedents\\u2019 Estates. \\u2014 Administrator.\\u2014Sale of Lands. \\u2014 In a petition to sell lands, an averment that the petitioner is administrator of the deceased is a sufficient statement of his representative capacity. Profert of his letters or an averment of his appointment and qualification is needless.\\n\\u25a0Same.\\u2014 Will.- \\u2014 Where the deceased devised his real estate, charging it with the payment of his debts, his personal representative may, if the personal estate be insufficient, obtain an order to sell the lands, the devise being no obstacle whatever.\\n.Same. \\u2014 Petition.\\u2014The petition in such a case is not bad as against the devisee for a failure to aver that the will has been admitted to probate, inasmuch as, without the will, he would have no interest in the land.\\n\\u00a1Same. \\u2014 Evidence.\\u2014Commissioner\\u2019s Deed. \\u2014 Possession of the testator, with a deed to him purporting to be from a commissioner appointed by a competent court, without the record on which the deed is based, is, as against the devisee, sufficient evidence of the testator\\u2019s title.\\n\\u25a0Same. \\u2014 Judgment.\\u2014A judgment in a suit between the devisee and a stranger, whereby the title was adjudged to be in the former, is not, on the hearing of such a petition, binding upon the administrator, as evidence.\\nSame.\\u2014 Will. \\u2014 Conveyance.\\u2014A will is not revoked by an invalid conveyance subsequently made by the testator.\\nProm the Clinton Circuit Court.\\nJ. N. Sims, for appellants.\\nJ. Claybaugh and B. K. Higinbotham, for appellee.\", \"word_count\": \"1623\", \"char_count\": \"9263\", \"text\": \"Elliott, C. J.\\n\\u2014 The appellee petitioned for an order to sell real estate belonging to the estate of William Webb, deceased, of -which he is the administrator. The court made the order prayed for, and from the judgment entered in the proceedings this appeal is prosecuted.\\nThe complaint alleges that the appellee is the administrator with the will annexed of William Webb, deceased, and this is a sufficient statement of his representative character. He was not bound to set out or make profert of his letters of administration. It is sufficient in such cases as the present for the petition to show that the petitioner is the administra tor without setting out his appointment and qualification. Kelley v. Love, 35 Ind. 106.\\nThe complaint sets forth a copy of the will of the decedent, which, omitting the formal parts and signature, is as follows:\\n\\\"I give and bequeath to John Bennett and his heirs all my personal property and real estate situated in Ross township,, Clinton county, except $1.00 to be paid to Sarah J. Rikes.. The condition of this will is that the said John Bennett is to' keep and provide for William Webb during his natural life. That said William Webb shall keep one horse on the place; also, that the said John Bennett shall furnish plain tombstones for Mary Webb, also William Webb at his death; also, that the said John Bennett shall pay my debts at my death.. Now, if the said John Bennett does not provide and support and kindly care for and treat the said William Webb, this will and testament shall be null and void.\\\"\\nIt is alleged in the complaint that the appellant was placed in possession of the real estate under the provisions of the will; that the testator became a member of his family; that the will was delivered to a third person; that the testator died in March, 1876; that he died in debt to various persons that these debts have not been paid, although two years have elapsed since the testator's death, and that claims to the amount of more than $500 have been filed against his estate. It is. also shown that the personal estate of the decedent did not exceed $51.\\nCounsel on both sides have argued the question whether the condition stated in the will is a precedent or subsequent, one; but it seems to us that it is not material whether it be regarded as the one or the other. The intent of the testator to charge the land with the payment of his debts is clear, and this burden fastened upon it by the will can not be displaced by the devisee. If he takes the benefit, he takes also the burden. The creditors have a right to the benefit of the provision made for them by their debtor. Where land is devised with a charge in favor of creditors, the devisee takes it subject to this charge. If such a devise makes it a condition of the devisee's right to the lands, that he shall pay the demands of the creditors of the testator, he can not hold the lands as against the creditors, without paying their demands. The creditors have a right to sell the land for the payment of their claims unless the devisee frees it from the charge in their favor, imposed by the testator's will.\\nThe right to subject the lands to sale for the payment of debts is properly asserted through the medium of an administrator. Where the personal property is not sufficient to pay the debts of the testator, it is proper for the executor or administrator to petition for the sale of the real estate, of which the decedent died seized. The proceeding is properly conducted under the orders and supervision of the court having probatejurisdiction. The proceeds are to be distributed among the creditors as in cases where there is no attempt to devise the land.\\nThe debts referred to are those owing at the time of the testator's death. A will speaks from the death of the person by whom it was executed. It operates upon things in the state and condition in which they are at the time of death. Some rare exceptions have been pointed out to this general rule, but this case is not within any of them. On the contrary it falls fully within the rule.\\nThe objection that the complaint is insufficient because it does not allege that the will has been probated can not prevail. If the copy of the will were expunged from the complaint, there would be sufficient to show a right in the appellee to maintain his petition. Where a complaint shows a right to some relief it must be upheld, although it may contain many redundant allegations, and may not entitle the plaintiff to all the relief claimed. Teal v. Spangler, 72 Ind. 380; Bayless v. Glenn, 72 Ind. 5. If there was no will, or if the will was not effective because not probated, the appellant is so much the worse off, for all the right he has to contest the claim of creditors is conferred by the will. Without the will, or any reference to it, the petition shows a right to the-relief prayed;\\nUpon the trial a deed executed to the decedent by a commissioner, appointed by the court of common pleas of Tippecanoe county, was read in evidence. Appellant is correct in saying that detached parts of a record are not admissible in evidence, but that the entire record should be introduced.. Foot v. Glover, 4 Blackf. 313. This rule, however, extends only to such matters as are properly and strictly a part of the-record, not as to matters which are merely collateral, although connected with the proceedings. Under the circumstances-of this case the deed to the testator was properly admitted without the production of the record of the cause in which, the judgment upon which it is founded was rendered. As-both appellant and appellee claimed title from the same-grantor, the latter was not bound to do more than show prima: facie title in the common source. Wilson v. Peelle, 78 Ind. 384. The appellee proved possession in the testator, and also in the appellant under and through the testator, and. the commissioner's deed was competent to show the character-under which possession was held. The case before us is altogether unlike one where parties are claiming by titles derived from different sources.\\nA judgment was rendered in an action instituted against the-appellant by one Ewing, adjudging the former to be the owner in fee of the land in controversy, and directing a conveyance to be made to him by a commissioner, and it is asserted that-this judgment settles the title and right of the appellant. So far as the parties to that action were concerned, that judgment did settle the title, but not as against the appellee. Judgments bind parties and privies, but not strangers. The creditors of the decedent were not parties to that action, nor was the administrator.\\nThe decedent in his lifetime executed a deed to Ewing, the plaintiff in the action referred to, and appellant maintains-that the execution of this deed revoked the will. We can not. assent to this proposition. The judgment introduced in evidence shows that this deed was not valid, and certainly an invalid deed can not revoke a will. But if the appellant's; position upon this point were conceded, we can not pei'ceive: what benefit he could obtain. If the will was revoked, them the lands would be subject to sale for the payment of the debts; of the decedent, unless some one had acquired title by valid grant. We need not spend time upon this branch of the case,, for the evidence plainly shows that the existence of the will' alone enabled appellant to defeat Ewing, and that all the right- or interest which he has is derived from the will of William Webb.\\nWe are not called upon to enquire what right, if any, the* appellant has to demand compensation for taking care of the: testator. There is no such question in this case.\\nJudgment affirmed.\\nPetition for a rehearing overruled.\"}"
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+"{\"id\": \"1949841\", \"name\": \"Hansford et al. v. Van Auken, Adm'r\", \"name_abbreviation\": \"Hansford v. Van Auken\", \"decision_date\": \"1881-11\", \"docket_number\": \"No. 8328\", \"first_page\": \"157\", \"last_page\": \"161\", \"citations\": \"79 Ind. 157\", \"volume\": \"79\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:41:22.898763+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hansford et al. v. Van Auken, Adm\\u2019r.\", \"head_matter\": \"No. 8328.\\nHansford et al. v. Van Auken, Adm\\u2019r.\\nJudgment. \\u2014 Action on. \\u2014 Jurisdiction.\\u2014An action may be maintained on a judgment in the court which rendered it.\\nSame. \\u2014 Replevin Bail. \\u2014 Defendant by Confession. \\u2014 Joint Liability. \\u2014 Complaint.\\u2014 In such action against the judgment defendant and his replevin bail, the complaint, on demurrer of the bail for want of facts, need not show a joint liability. It is enough that it shows a cause of action against him by his becoming a judgment defendant by confession.\\nSame. \\u2014 Complaint.\\u2014\\u201c Duly Rendered.\\u201d \\u2014 A complaint alleging that on the 16th day of March, 1877, in the Porter Circuit Court, the plaintiff\\u2019s intestate, naming her, recovered a judgment, etc., sufficiently shows that the judgment was \\u201c duly rendered,\\u201d and when and where.\\nSame. \\u2014 Parties.\\u2014Administrator.\\u2014Profert of Letters. \\u2014 An administrater, suing on a judgment recovered by his intestate, need not allege her death or his appointment, nor make profert of his letters.\\nSame. \\u2014 Plea in Abatement. \\u2014 Decedents\\u2019 Estates. \\u2014 An administrator\\u2019s right to \\u25a0 sue can not he questioned otherwise than by plea verified by affidavit.\\nSame. \\u2014 Answer.\\u2014An answer to a complaint on a judgment, averring that the defendant has ample property to satisfy the judgment, but has never been called on for property or money, and that an execution issued on the judgment was returned unsatisfied by order of the plaintiff, but containing no averment that any lien was lost thereby, or that the defendant was prejudiced in any way, is insufficient on demurrer.\\nFrom the Porter Circuit Court.\\nT. J. Merrifield, for appellants.\\nW. Johnston and-Pagin, for appellee.\", \"word_count\": \"1567\", \"char_count\": \"9056\", \"text\": \"Morris, C.\\n\\u2014 The appellee, as administrator of the estate of Mary Ann Hansford, sued the appellants, alleging in his complaint that on the 16th day of March, 1877, the said Mary Ann Hansford recovered, in the Porter Circuit Court, a judgment against the appellant John Hansford, for the sum of six hundred and fifty dollars; that, by the terms of the judgment, said sum was to become due on the 16th day of October, 1877; that on said day the appellant Hunt acknowledged himself as replevin bail for the stay of execution on said sum of $650, for one hundred and eighty days, by writing his name as such replevin bail on the record of said judgment; and that he was duly approved as such bail by the clerk of said court; that the stay had expired, the judgment remained in full force and was unpaid; demanding judgment for one thousand dollars.\\nThe appellants severally demurred to the complaint, on the ground that it did not contain facts sufficient to constitute a cause of action. The demurrers were overruled.\\nThe appellants then answered the complaint in four paragraphs. The first paragraph was the general denial.\\nThe second paragraph of the answer stated, that as the instalments of said judgment became due, as stated in the complaint, the defendant Hansford was, and still continues to be, the owner of property, both real and personal, subject to execution, and situate in Porter county, Indiana, abundantly sufficient to satisfy said judgment; and that he had been at all times, and still is, ready to turn out said property for sale on execution in sufficient quantities to satisfy said judgment; but that he had never been called upon for property or money on said judgment; that the appellee, on the 1st day of August, 1878, caused an execution to be issued on said judgment, directed and delivered to the sheriff of said county, which was, by the order of the appellee, returned by said sheriff on the 10th day of December, 1878, unsatisfied; and that the defendant now tenders lands in said county, describing them, for sale on execution on said judgment, according to law, to satisfy said judgment, which are of the value of $4,500, and of which said Hansford is the owner in fee.\\nThe third paragraph, which is pleaded by Hunt alone, is like the second, except that it states that said Hunt had never been called upon for money or property on said judgment; that if he had been he would have turned out property of the said Hansford sufficient to satisfy and pay it. The paragraph avers that said Hunt, as replevin bail, offers to turn out real estate of his co-appellant, for sale on execution on said judgment, sufficient to satisfy the same. The real estate so offered to be turned out is particularly described in the answer, being situate in Porter county, and alleged to have been owned by the appellant Hansford in fee.\\nThe fourth paragraph sets up a payment of $200.\\nThe appellee replied to the fourth paragraph of the answer and demurred to the second and third separately. The demurrers were sustained.\\nThe cause was submitted to the court for trial. The court found for the appellee. The appellants moved the court for a new trial on the ground that the finding was contrary to law and to the evidence. The court overruled the motion and judgment was rendered for the appellee.\\nThe errors assigned are the rulings on the several demurrers and on the motion for a new trial.\\nThe appellants insist that the complaint is bad as to Hans-ford, because they say that an action will not lie on a judg meat in the same court in which the judgment sued on was rendered. The law is settled otherwise in this State. Gould v. Hayden, 63 Ind. 443; Davidson v. Nebaker, 21 Ind. 334. In the former case, Howk, J., says: \\\" He may enforce its collection by the process of the court in which he obtained his judgment, or he may, if he may elect so to do, use his judgment as an original cause of action, and bring suit thereon in the same or some other court of competent jurisdiction, and prosecute such suit to final judgment. This procedure he may pursue as often as he elects, using the judgment last obtained as a cause of action on which to obtain the next succeeding judgment.\\\" Palmer v. Glover, 73 Ind. 529.\\nThe appellants insist that the appellee had no authority to sue; that his appointment as administrator of Mary Ann Hansford is not averred, nor is her death alleged. The demurrers to the complaint do not question the appellee's capacity to sue. It was not. necessary for him to make profert of his letters, nor can his right to sue be questioned otherwise than by plea verified by affidavit. 2 R. S. 1876, p. 547.\\nThe appellant also insists that the complaint is clearly bad as against Hunt, because it does not show that he was jointly liable with Hansford. Were it conceded that the complaint does not show Hunt to be jointly liable with Hansford, it would not follow that no cause of action is stated in it against the former. The ground of demurrer alleged by Hunt is, that the complaint does not state facts sufficient to constitute a cause of action against him. If it does, though it fails to state facts sufficient to constitute a joint cause of action against him and Hansford, there was no error in overruling his demurrer. The complaint shows that the appellant Hunt, in due form, became replevin bail for the payment of a judgment against his co-appellant, and in favor of the appellee's intestate; that the time allowed by law for the stay of execution on said judgment had expired, and that the judgment remained in full force and was unpaid. Hunt became a party to the judgment by confession, and 'was .properly joined with Hansford as a defendant. The facts averred constitute a good cause of action against him, and this is sufficient. Lane v. The State, ex rel., 27 Ind. 108.\\nIt is further said that the complaint does not show when the judgment was rendered, nor that it was duly rendered. The complaint states, that on the 16th day of March, 1877, in the Porter Circuit Court, Mary Ann Hansford recovered a judgment, etc. We think it sufficiently certain in these respects. There was no error in overruling the demurrers to the complaint.\\nIt is also insisted that the court erred in sustaining the appellee's demurrers to the second and third paragraphs of the .appellants' answer.\\nThese paragraphs show that the appellants have abundant means, but that they are not willing to pay, except at the end of an execution; they seem to be quite willing that their real estate shall be sold upon execution subject to appraisement, but they are unwilling to pay otherwise. It was for this reason, probably, that this suit was commenced. It may be the most effectual way of enforcing payment of the judgment. There is no statement in the second or third paragraph that any lien was lost on the personal property of Hansford by the return of the execution issued on said judgment, or that the return in any way prejudiced the appellants. There was, therefore, no error in sustaining the demurrers to the second .and third paragraphs of said answer.\\nWe have looked through the evidence and think it quite sufficient to justify the finding of the court. There is no available error in the record, and the judgment below should be .affirmed.\\nPee Curiam. \\u2014 It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellants.\"}"
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+"{\"id\": \"1970357\", \"name\": \"Hamrick v. Barnett\", \"name_abbreviation\": \"Hamrick v. Barnett\", \"decision_date\": \"1891-03-31\", \"docket_number\": \"No. 11\", \"first_page\": \"1\", \"last_page\": \"6\", \"citations\": \"1 Ind. App. 1\", \"volume\": \"1\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T18:44:57.972729+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hamrick v. Barnett.\", \"head_matter\": \"No. 11.\\nHamrick v. Barnett.\\nPromissory Note. \\u2014 Release of Surety. \\u2014 One of two makers of a joint and several promissory note, governed by the law merchant, who is, in fact, a surety upon the note, but whose suretyship is not indicated in any way in the note, may avail himself of the statutory provisions, and by giving notice in accordance with section 1210, R. S. 1881, procure his discharge from liability on the note, if the holder thereof, to whom the note has been given, fail' to proceed within a reasonable time to bring his action thereon.\\nSame. \\u2014 Notice to Sue. \\u2014 Seasonable Time. \\u2014 Where the surety on a note gave proper notice to the payee, March 31, to sue thereon, the surety and the payee being residents of Hendricks county, and the principal debtor being a resident of Jefferson county, an action instituted on April 2d in the circuit court of Hendricks county, which did not commence its term until June 4th, was not brought within a reasonable time after the notice, it appearing that suit might have been brought in the circuit court of Jefferson county during a term pending when the notice was given.\\nFrom the Hendricks Circuit Court.\\nJ. A. Downard, J. O. Parker and T. J. Gofer, for appellant.\\nL. A. Barnett and J. T. Barnett, for appellee.\", \"word_count\": \"1765\", \"char_count\": \"10067\", \"text\": \"Black, C. J.\\nThe appellant was the plaintiff in an action against Martin A. Barnett and the appellee, John T. Barnett, on a joint and several promissory note governed by the law merchant, of which the defendants were the makers and the appellant was the payee, dated June 2d, 1886, and payable one day after date. Judgment by default was taken against Martin A. Barnett.\\nUpon the trial of an issue formed between the appellant and the appellee there was a finding for the latter. From the judgment rendered on this finding this appeal was taken.\\nSection 1210, R. S. 1881, provides: \\\" Any person bound as surety upon any contract in writing for the payment of money or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute an action upon the contract.\\\"\\nThe next section provides : \\\" If the creditor or obligee shall not proceed within a reasonable time to bring his action upon such contract, and prosecute the same to judgment and execution, the surety shall be discharged from all liability thereon.\\\"\\nThe appellant .presents the question whether one of two makers of a joint and several promissory note, governed by the law merchant, who is in fact a surety upon the note for the other maker, but whose suretyship is not in any way indicated in the note, may avail himself of these statutory provisions, and by giving notice in accordance with section 1210 procure his discharge from liability on the note, if the holder thereof, to whom the notice has been given, fail to proceed within a reasonable time to bring his action thereon.\\nThe appellant contends that to allow the surety in such case to avail himself of the provisions of the statute would be to permit a contract in writing to be varied and contradicted by parol evidence of a contemporaneous agreement. He lays stress upon the words \\\" bound as surety,\\\" in the statute, and insists that only sureties whose suretyship is shown upon the face of the contract can avail themselves of the statute.\\nUpon the authority of McCoy v. Lockwood, 71 Ind. 319, this question must be determined against the appellant. See, also, Meriden Silver Plate Co. v. Flory, 44 Ohio St. 430.\\nWe are next required to decide whether the appellant, upou receipt of notice from the appellee, exercised due diligence, and proceeded within a reasonable time to bring his action upon the note.\\nThe appellant and the appellee were residents of Hendricks county, Indiana, where the note was made. Martin A. Barnett, the principal, resided in Jefferson county, Indiana. The notice was given on the 31st of March, 1888, and was as follows:\\n\\\" To William F. Hamrick. Sir: You are hereby notified to institute suit forthwith on the note which you hold, executed to you by Martin A. Barnett, who is principal thereon, and by myself as his surety, said note being for the sum of $395, being the only note you hold against Martin A. Barnett and myself; and also, that the circuit court is now in session in Jefferson county, Indiana, where said Martin A. Barnett resides, and will continue in session for three weeks after this date.\\n\\\" March 31st, 1888. John T. Barnett.\\\"\\nThis action was commenced on the 2d of April, 1888, and summons therein was served on said Martin A. Barnett, in Jefferson county, on the 5th of April, 1888, having come to the hands of the sheriff of that county on the 3d day of the same month.\\nThe first term of the court below, at which suit could be prosecuted after the giving of said notice, being the term to which the defendants were summoned, commenced on the 4th of June, 1888.\\nThe court, it is stated in the bill of exceptions, took judicial knowledge that the circuit court was in session in Jefferson county on the 31st of March, 1888, and continued ip ses sion three weeks thereafter. The appellant has made no objection to this ruling, but has acquiesced therein.\\nThe action might have been brought in the Jefferson Circuit Court, a separate summons being issued for the appellee to Hendricks county. Section 312, R. S. 1881.\\nThe provisions of the statute relating to sureties under consideration are remedial, and they should be liberally construed for the benefit of the surety. Reid v. Cox, 5 Blackf. 312; Franklin v. Franklin, 71 Ind. 573; Daily v. Robinson, 86 Ind. 382.\\nThe right of the surety, who has complied with the statute, is unqualified. The question of the solvency or insolvency of the principal is of no importance. Reid v. Cox, supra; Overturf v. Martin, 2 Ind. 507; Meriden Silver Plate Co. v. Flory, supra.\\nWhen the principal debtor does not reside in this State, the surety, upon such notice, can not require the creditor to follow the principal out of the State. In such case the surety can not avail himself of the benefit of this statute. Rowe v. Buchtel, 13 Ind. 381; Whittlesey v. Heberer, 48 Ind. 260; Conklin v. Conklin, 54 Ind. 289. In the case last cited it is said : \\\" When the Legislature authorized notice to be given to the creditor ' forthwith to institute an action/ we must suppose they had reference to an action in the proper courts of the State, and not in any other jurisdiction.\\\"\\nIn Franklin v. Franklin, supra, objection was expressed by the court to an answer of the surety on the ground that it did not show that the principal ever lived in the State, or could have been sued in any of the courts thereof.\\nIn Craft v. Dodd, 15 Ind. 380, the creditor, upon notice under the statute, brought suit in July, in the court of common pleas, the first subsequent term of which commenced in the following October, the notice having been received and the suit having been commenced in time to permit suit to be brought in the circuit court, the next term of which commenced in August. There was no improper delay in commencing a suit if, in view of the dates of commencement of the terms of the several courts the suit was brought in the proper court. It was held to be the duty of the creditor \\\" to bring that suit in the court having jurisdiction, the term of which would thereafter first convene.\\\" \\\" The very purpose for which the notice was given,\\\" it was said, \\\" might otherwise be defeated.\\\"\\nIn Overturf v. Martin, supra, under a similar statute, the surety on a note gave proper notice to the holder in February, 1845, to cause suit to be brought, the surety and the holder being residents of Ripley county, and the principal debtor being a resident of Jefferson county. Suit might have been brought in the circuit court in Jefferson county in March, 1845. The first term of a'circuit court in Ripley county, after service of the notice, commenced in September, 1845, and suit was brought at that term ; but that suit was dismissed and another suit was commenced in the same court in December, 1845. It was held that there was not proper diligence. It was not necessary to decide whether the institution of suit at the first term of the circuit court in Ripley county would have constituted a bringing of the action within a reasonable time, taking into consideration the opportunity for an earlier suit in Jefferson county, as the failure to diligently prosecute a suit, though commenced in proper time, was sufficient to discharge the surety. The court said the suit \\\" might have been commenced at the Jefferson Circuit Court in March, 1845; but even if it was not incumbent on the plaintiff to go to the county of Jefferson, where the principals resided, he should have, at least, brought suit at the next succeeding term of the circuit court in Ripley county. The suit should have been properly brought and duly prosecuted.\\\"\\nUnder the statute (section 516, R. S. 1881) in force when the notice to sue was given by the appellee to the appellant, the plaintiff filing a complaint before or during the term might cause a day for the appearance of the defendant dur ing the term to be stated in the summons, and if such summons were personally served ten days before the day so stated, the action would stand for issue and trial at such term, and the court would have jurisdiction to hear and determine the action as if summons had been served ten days before the first day of the term.\\nFiled March 31, 1891.\\nIn determining whether the creditor proceeded within a reasonable time, his ability thus to bring in the defendants and prosecute his cause during a term pending at the commencement of his action must be considered.\\nWe think the appellant was required, under the notice given him, to sue in the Jefferson Circuit Court, not because the principal debtor resided in that county, but because, under the circumstances, his failure to do so was a failure to proceed, within a reasonable time, to bring his action upon the note, as contemplated by the statute.\\nThe judgment is affirmed, with costs.\"}"
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+"{\"id\": \"2413085\", \"name\": \"The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Carlson\", \"name_abbreviation\": \"Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Carlson\", \"decision_date\": \"1900-02-15\", \"docket_number\": \"No. 3,027\", \"first_page\": \"559\", \"last_page\": \"567\", \"citations\": \"24 Ind. App. 559\", \"volume\": \"24\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:21:53.329980+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Carlson.\", \"head_matter\": \"The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Carlson.\\n[No. 3,027.\\nFiled Feb. 15, 1900.\\nRehearing denied April 27, 1900.]\\nRailroads. \\u2014 Injury of Horseman at Crossing. \\u2014 Complaint.\\u2014A complaint against a railroad company for damages for personal injuries averred that plaintiff, on a dark night, in approaching on horseback, a railway crossing, looked and listened for approaching trains, and, on seeing or hearing none, proceeded to cross; that after partially crossing the main track he discovered that the crossing was blocked by a train on the side-track; that there was no watchman or light at the crossing, and plaintiff did not see the obstruction till the horse suddenly stopped; that before he could turn his horse and go back, defendant ran an engine at a high rate of speed over the main track, without displaying any headlight or giving any signals; that when he first discovered the approaching train he was on the main track, and, his horse becoming frightened and unmanageable, he was unable to escape, though he used every effort to do so, until he was struck by the engine and injured. Held, that the complaint stated a good cause of action, pp. 560-562.\\nSame. \\u2014 Contributory Negligence.- \\u2014 Instructions.\\u2014In an action against a railroad company for damages for personal injuries caused by the alleged negligence of such company, the question as to whether the plaintiff was guilty of contributory negligence is a question for the jury, unless it can be said that the appearances which confronted plaintiff would not control differently the conduct of prudent persons in like situation, pp. 563, 564.\\nSame. \\u2014 Instructions.\\u2014Proximate Cause.- \\u2014 If, in an action against a railroad company for damages, an instruction purporting to state the rule of law on the question of proximate cause is incomplete, the error, if any, is cured by an additional instruction, that to entitle the plaintiff to recover, the jury must find that defendant was negligent; that such negligence caused plaintiff\\u2019s injury; and that plaintiff was not negligent, pp. 564, 565.\\nWitnesses. \\u2014 Impeachment.\\u2014A party cannot impeach his own witness, but he may show that the witness is adverse to him, or that his interest lies with the other party, p. 565.\\nInstructions. \\u2014 Use of Wrong Word. \\u2014 Harmless Error. \\u2014 The use of the wrong word in an instruction is not reversible error where it is manifest that such use did not mislead the jury. p. 565.\\nSame. \\u2014 Personal Injuries. \\u2014 Measure of Damages. \\u2014 In an action for damages for personal injuries an instruction authorizing the jury to assess plaintiff\\u2019s damages in such sum as the evidence shows he was damaged, and that in so doing they may consider his loss of time, pain, mental anguish, etc., \\u201cand all other facts and circumstances hearing on his injuries,\\u201d is not erroneous, as leaving it to the jury to consider any facts which they may deem to bear on the case. p. 565.\\nAction. \\u2014 Joinder.\\u2014Recovery.\\u2014Where a plaintiff seeks damages in one paragraph of complaint for injuries both to person and property, which injuries were occasioned at the same time, and the trial proceeds without objection because of such joinder, a recovery for both of such injuries may be had. p. 566.\\nProm the Porter Circuit Court.\\nAffirmed.\\nN. O. Ross and G. E. Ross, for appellant.\\nN. L. Agnew and D. E. Kelly, for appellee.\", \"word_count\": \"3088\", \"char_count\": \"17778\", \"text\": \"Robinson, J.\\nThe complaint avers that at the place in question appellant maintains its main track, and also on the north side, and about six feet distant, a side-track, which are crossed at right angles by a public highway running north and south. About 9 o'clock on the night of November 19, 1897, appellee, on horseback, was passing north on the highway approaching the crossing. The night was dark, foggy, and rainy, and appellee was unable to see any distance in front or either side of him. When at a distance of 200 feet from the main track he looked and listened, both to the east and west, for the approach of engines and trains, and could not see or hear any. To the west of the crossing, between one-fourth and one-half mile, appellee had a large number of switch lights and lanterns along its track, and, as appellee looked west, he could see no lights except those, nor could he see or hear the approach of any train. That appellee, carefully looking and listening all the time in both directions and in front, attempted to cross the main and side-tracks, and having passed over the main track, and in attempting to cross the side-track, he discovered for the first time that the side-track was occupied by a freight train of cars which appellant had carelessly and negligently left standing for one hour upon the-side-track, coupled together across the highway, so as to completely bar appellee's further progress. That there was no watchman nor light at the crossing nor upon the freight train, nor was any person in charge of the freight train stationed near the crossing to give appellee, or any other person attempting to cross, notice or warning that the highway was blocked, all of which appellant negligently omitted to do. That while he was so upon the main track, and unable to proceed further and leave the same because of the freight train, appellant carelessly and negligently ran an engine, with caboose attached, over the main track from the west toward the east, noiselessly and at a high and unusual rate of speed, fifty miles per hour, without giving any signal of its approach, and negligently failed to sound the whistle or ring the bell on the engine within two miles of the crossing, neglected to display any headlight, negligently permitted the switch lights to burn brightly so as to blind appellee, and prevent him from seeing the approaching engine in time to escape from the track. That when he first discovered the approaching train he was on the main track, and had proceeded so far as to be stopped by the freight train. That before he could turn his horse and go back towards the south he became confused by the near approach of the train, and his horse became frightened and unmanageable, and he could not leave the main track, though he used every effort to do so, and before he could escape from the main track the engine ran against him, producing injuries. That in approaching the track, and while on the same, he all the time looked and listened for trains, but could not see any until it was so close to him that he was unable to escape. That he was deceived and misled by the negligent acts of appellant, in noiselessly running the engine, in obstructing the highway, in having no headlight, in not having a watchman at the crossing to warn appellee that it was obstructed, in omitting to sound the whistle or ring the bell, in so displaying a large number of switch lights, but for all of which he would not have been misled, and would not have been upon the track and injured. That all of the wrongs and injuries complained of were sustained without any fault or negligence on appellee's part, but wholly by the negligence and wrongful acts of appellant.\\nAppellant's motion to make the complaint more specific in several different particulars was overruled. Some of these are not discussed. Without repeating the averments of the complaint, we think it shows freedom from fault on appellee's part, and that appellant was negligent, and that this negligence was the proximate cause of the injury. It was not necessary that appellee should have stated the distance the engine was from him when he first knew of its approach, nor that he should state the method by which he discovered the approach of the train, as required by appellant's motion and argued by its counsel. Nor was it necessary to state, more fully than can be gathered from the facts pleaded, the length of time he was on the main track before he was struck. The complaint may perhaps contain some averments that are not necessary, but that does not make it bad. It is averred that a number of acts were negligently done, and that appellant negligently omitted to do certain acts. The complaint does not seek redress for an injury received while he was attempting to cross the track, but while attempting to re-cross the track after he learned that the highway was blocked by a train on the side-track. From the facts averred it is shown that the acts of appellant put appellee in his place of peril, and that he was injured while trying to extricate himself. When he saw his danger it is not shown that he acted imprudently. Taking the complaint as a,whole, we think it states the facts constituting appellee's cause of action in language sufficiently plain and concise, and \\\"in such manner as to enable a person of common understanding to know what is intended.\\\" There was no error in overruling the motion to make the complaint more specific.\\nIt is true that the omission to give the statutory signals is not sufficient of itself to make out a case, but it must also be shown that such omission was the proximate cause of the injury. Baltimore, etc., R. Co. v. Young, 146 Ind. 374. In the case at bar it is expressly averred \\\"that said injuries were all the result of the said collision, so wrongfully and negligently caused and brought about by the said wrongful acts and negligence of the defendant aforesaid; that all of the said wrongs and injuries were done, committed, and sustained without any fault or negligence on the part of the plaintiff, but wholly by the negligence and wrongful acts of the defendant as aforesaid.\\\" In the former part of the complaint it was averred that certain acts were negligently done, and that certain acts were negligently omitted, and by the above averments it is shown that the injury was caused by the acts and omissions there stated. Taking together all the facts pleaded as to what appellee did from the time he approached the crossing until struck, it can not be said that he was guilty of negligence contributing to his injury. The complaint is not open to the objections urged against it, and the demurrer was properly overruled.\\nCounsel have discussed at length the evidence, claiming that the verdict is not sustained by sufficient evidence. We have read the record and there is evidence to support the verdict. It is true that upon some questions there is a sharp conflict, but we can not weigh the evidence and determine where the preponderance lies. That has been done by the jury and reviewed by the trial court on the motion for a new trial, and with the conclusion thus reached we can not interfere. The answers to certain interrogatories submitted to the jury sustain the general verdict upon the material questions involved.\\nComplaint is made of the following instructions: ' (5)' \\\"Negligence consists in doing that which a reasonably prudent man would not do under the circumstances, or in omitting to do what a reasonably cautious and prudent man would do under the circumstances.\\\" (6) \\\"The plaintiff can not recover if he is guilty of contributory negligence, and contributory negligence, under the circumstances in this case, consists in doing that which a reasonably prudent man would not do or in omitting to do that which a reasonably prudent man would do under the circumstances.\\\" These instructions have reference to the particular circumstances of the case. It is true in some cases the quantum of care is prescribed as matter of law. But in many cases it is not. Appellee looked and listened for a train as he approached the crossing, and neither saw nor heard one. It was so dark he could see nothing in front of him. lie crossed the main track, when his horse stopped and refused to proceed. He was urging him forward, and presently discovered the road was blocked by a freight train on the side-track. At the same time he saw a train approaching. There was not room for him to remain between the main and side-tracks. An unexpected peril confronted him. Unless we could say that the appearances which then confronted him would not control differently the conduct of prudent persons in a like situation, and that ordinary conduct under such circumstances must necessarily be the same, we can not say that the quantum of care is prescribed as matter of law. There might well be an honest difference of opinion among persons of equal intelligence and prudence as to what would be proper conduct under such circumstances, -and in such a case the question of negligence is not one of law, but one of fact for the jury. Chicago, etc., R. Co. v. Thomas (Ind. Sup.), 55 N. E. 861, and cases cited.\\nThe general rule is well settled that a failure to give the statutory signals at public crossings is negligence per se, and that to entitle an injured person to recover he must show that such negligence was the proximate cause, without which the injury of which he complains would not have resulted. \\\"When all the court's instructions upon this par ticular question are taken together, they correctly state the law. Even if one of the instructions given was not sufficiently full on the question of proximate cause, the error, if any, was cured hy an instruction given at appellant's request, as follows: \\\"Before you find a verdict for the plaintiff you must find, (1) that the defendant at the time complained of was guilty of negligence; (2) that such negligence, if you find the defendant was guilty thereof, caused the plaintiff to be injured, and, (3) that the plaintiff was guilty of no negligence which contributed to his injury.\\\"\\nA party may not impeach his own witness, but he may show that the witness is adverse to him, or that his interest lies with the other party, and it is not error to instruct the jury to that effect.\\nNo reversible error is committed in using in an instruction the wrong word where it is manifest that such use could not mislead the jury.\\nThe court told the jury: \\\"If. you find for the plaintiff, it will be your duty to assess his damages in such sum as. you find from the evidence that he is damaged by the injuries received at the time of the accident, and in so doing you may take into consideration his loss of time, his pain, suffering, his mental anguish, and distress, his permanent injuries, if any you find to exist, and all other facts and circumstances bearing upon his injuries, It can not be said that this instruction leaves it to the jury to .consider any facts which they may think bear upon the case. An instruction can not assume the truth of facts in issue between the parties. But this instruction is not open to this objection. Taking the instruction as a whole, we do not see how any juror of average intelligence could fail to understand that he was required to be guided by the evidence. City of Indianapolis v. Scott, 72 Ind. 196; Louisville, etc., R. Co. v. Falvey, 104 Ind. 409; Citizens Street R. Co. v. Hoffbauer, 23 Ind. App. 614.\\nSome of the instructions requested by appellant and refused were not applicable to the case. The evidence shows, without contradiction, that appellee looked and listened for trains as he approached the crossing, and saw and heard none, and it is clear, from the facts in the case, that if the freight train had not been standing on the side-track across the highway appellee would have passed over safely. On account of the darkness, he did not see the obstruction, nor know of it, until he had passed the main track, and it was while trying to retrace his steps, the only recourse left him, that he was injured. The jury were correctly told the duty of a traveler when approaching a crossing.\\nThe court gave a number of instructions requested by appellant, and taking these, in connection with the others given by the court, the instructions, as a whole, were certainly as favorable to appellant as co.uld be asked. The instructions, as a whole, are a fair and correct statement of the law as applicable to the evidence, and no sufficient reason has been pointed out for disturbing the verdict on this ground. Instructions must be considered as a whole, and when that is done, appellant can not justly complain of the. instructions given, nor of the court's refusal to give certain instructions requested.\\nAppellee was permitted to prove his personal injury, and also the value of his horse which he was riding and which was killed at the time of the accident. The complaint is in one paragraph, and it is argued that both could not be included in the same paragraph of complaint. No motion was made to paragraph the complaint. The demurrer for want of facts did not raise the question. The damages to appellee's person and property arose at the same time. The court had jurisdiction of both. The right of action accrued to the same person at the same time, and under the same circumstances. The principles as to appellant's negligence and appellee's freedom from fault are the same as to each. Upon these questions the evidence would necessarily be the same. If the complaint should have been paragraphed, in response to a motion to that effect, none was made. See Shaw v. Ayers, 17 Ind. App. 614. As the parties proceeded to trial upon the complaint, without any valid objection having been made, there was no reversible error in permitting a recovery for injuries to both person and property. In Jeffersonville, etc., R. Co. v. Brevoort, 30 Ind. 324, cited by appellant's counsel, it was sought to recover, in one paragraph, damages for* injuries to animals, some of which were injured at one time and some at another. To the same effect is Wabash, etc., R. Co. v. Rooker, 90 Ind. 581.\\n\\\"We have examined all the questions argued by counsel, and from the whole record we can but conclude \\\"that the merits of the cause have been fairly tried and determined in the court below.\\\" \\u00a7670 Burns 1894, \\u00a7658 Horner 1897. Judgment affirmed.\"}"
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+"{\"id\": \"2414180\", \"name\": \"Lake Erie and Western Railway Company v. Pence\", \"name_abbreviation\": \"Lake Erie & Western Railway Co. v. Pence\", \"decision_date\": \"1900-01-26\", \"docket_number\": \"No. 2,914\", \"first_page\": \"12\", \"last_page\": \"21\", \"citations\": \"24 Ind. App. 12\", \"volume\": \"24\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:21:53.329980+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lake Erie and Western Railway Company v. Pence.\", \"head_matter\": \"Lake Erie and Western Railway Company v. Pence.\\n[No. 2,914.\\nFiled January 26, 1900.]\\nAppeal and Error. \\u2014 Waiver.\\u2014Specifications of error which are not discussed are deemed waived, p. IS.\\nPleading. \\u2014 Railroads.\\u2014Injury at Crossing. \\u2014 A complaint in an action against a railroad company for personal injuries, alleging that plaintiff was struck by defendant\\u2019s train when the same was being run at a rate of speed in violation of the'city ordinance, and by reason of the premises plaintiff was damaged, sufficiently shows that it was by reason of such negligence that he was damaged, pp. 18-15.\\nRailboads. \\u2014 Injury at Crossing. \\u2014 Contributory Negligence. \\u2014 Plaintiff cannot recover for an injury received at a railroad and highway crossing where it appeared that he voluntarily went upon the track after he saw the approaching train in time to stop in a place of safety, although the train was being run at a rate of speed in violation of a city ordinance, pp. 15-21.\\nFrom the Boone Circuit Court.\\nReversed.\\nJ. B. Cockrum, C. M. Zion, S. M. Ralston, M. Keefe, C. C. Guenther, B. Clark and W. F. Hackedorn, for appellant.\\nA. H. Boulden, F. C. Reagan and J. T. Hockman, for appellee.\", \"word_count\": \"3293\", \"char_count\": \"18815\", \"text\": \"Comstock, J.\\nThis action was for injury to appellee's person, and the wagon in which he was riding, caused by a collision with appellant's locomotive and train of cars at a crossing of a public highway in the city of Erankfort, Indiana. A trial resulted in a verdict and judgment in favor of appellee for $800.\\nThe amended complaint consisted of six paragraphs. On entering upon the trial, appellee dismissed as to the third and fourth. Specifications in the assignment of errors from one to ten, inclusive, question the sufficiency of each paragraph, but the sufficiency of the fifth and sixth only is discussed. As to the first and second, the alleged error, under the rule, is therefore waived.\\nIt is insisted by appellant's counsel that the \\\"demurrer should have been sustained, for the reason that it is not shown in these paragraphs that the act of negligence complained of was the proximate cause of the injury. The negligence complained of in these paragraphs was the violation of an ordinance of the city of Erankfort'regulating the speed of trains running through that city.\\\" In each of the four paragraphs it is, in substance, alleged that the appellant owned and operated a line of railroad extending through Clinton county, and the city of Erankfort, over which the appellant operated its trains; that the railroad crosses one of the public thoroughfares in the city of Prank-fort, known as East street; that on the 22nd of October, 1897, as the appellee was crossing appellant's railroad track at the intersection of East street, exercising due care and caution to avoid any injury, the appellant, by itself, agents, servants, and employes, carelessly and negligently ran its locomotive engine and train of cars against the appellee's wagon with such violence that the appellee was permanently injured thereby, showing the character of the injuries and the damages sustained thereby, with the further allegation that the injury was caused without any fault or negligence of the appellee. In addition to the foregoing facts it is averred in the fifth and sixth paragraphs that there was at the date of the accident, in force, an ordinance passed by the common council of the city of Erankfort, November 27, 1889, regulating the speed of trains within the corporate limits of the city, and making it unlawful for any railroad train to be run through the city at a higher rate of speed than four miles an hour, followed by the allegation that the train was being run at a higher rate of speed than that permitted by the ordinance..\\nTo quote the concluding part of the fifth paragraph, which does not materially differ from that of the sixth, it is alleged: \\\"That the defendant did then and there in violation of said ordinance, as aforesaid, by itself, agents, servants, and employes carelessly and negligently run its locomotive engine and ears against plaintiff's -wagon with great force and violence, by which said wagon in which the said plaintiff was situated was thrown from said highway and said plaintiff -was thrown against a telegraph pole with great forc\\u00e9, and was bruised, wounded, and permanently injured thereby; and that he also sustained from such accident a great mental and physical shock, pain, arid mental anguish, from all of which injuries he has not yet recovered, and may never recover, \\u2014 all of which was without any fault or negligence on the part of the plaintiff. That by reason of the premises plaintiff has been damaged in the sum of $1,999, for which he demands judgment, and all proper relief.\\\" This sufficiently avers that the negligent running of the train in violation of the ordinance caused the injury for which appellee sued, and that it was by reason of such negligence that he was damaged. It is clearly sufficient to withstand a demurrer under Chicago, etc., R. Co. v. Spilker, 134 Ind. 380; but, see, also, Ohio, etc., R. Co. v. Engrer, 4 Ind. App. 261; Indianapolis, etc., R. Co. v. Kelley, 23 Ind. 133; Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297; Cleveland, etc., R. Co. v. Wynant, 100 Ind. 160; Louisville, etc., R. Co. v. Jones, 108 Ind. 551.\\nIt is next contended by counsel for appellant that the court erred in overruling its motion for a new trial, \\\"because the evidence shows that appellee was guilty of contributory negligence.\\\" The consideration of this question necessitates an examination of the evidence. The record shows that the Lake Erie & Western Railroad runs through the city of Erankfort in a general easterly and westerly direction, and parallel to and on the north side thereof runs the track of the Toledo, St. Louis & Kansas Oity Railroad, there being but about ten feet between the two tracks. In the eastern part of the city of Erankfort these tracks are crossed at right angles by Olay street, running north and south. Olay street is fifty feet in width, graded and graveled, and laid with sidewalks on each side. The crossing of this street with the railroad is planked the entire width of the street from lot line to lot line, and the entire width of the two railroads, including the space between. One hundred and t'hirty-two feet south of the center of the Lake Erie & Western Railroad track, Olay street is crossed diagonally by Washington avenue, running in a southwesterly and northeasterly direction, and crossing the tracks of these rail roads about 260 feet east of the crossing of the railroads and Clay street. The train that caused the injury approached the Clay street crossing from the east, and the appellee approached the said crossing from the south on Clay street. On the east side of Clay street, between the crossings of the railroads and Washington avenue with said street, the view of a traveler is obstructed by a dwelling and a small outhouse. These buildings are along and immediately adjoining Clay street. The south side of the dwelling is forty feet north of the intersection of Clay street and Washington avenue, and the north side of said building is twenty-two feet and eight inches from the south rail of the appellant's track. This building is a story and a half high. Immediately north of the house, and about three feet from it, is a small outhouse, about four and one-half feet square and about seven feet high, and stands fifteen and one-half feet south of the south rail of the track. One going northeast on Washington avenue at the crossing of said avenue and Clay street has a plain view of the appellant's track where the same crosses Washington avenue about 280 feet northeast of the said point of observation. And as one goes north on Olay street from its intersection with Washington avenue for a distance of thirty-five or forty feet, or until the view is obstructed by the dwelling-house on the east side of Clay street, looking east by the angle thus formed, he can see along the Lake Erie & Western Railroad track east of the Washington avenue crossing to the center of East street, which point is a distance of 640 feet east of Clay street crossing with the railroad. One approaching the railroad from the south on Clay street, when within sixteen feet of the track, would have a full view of the railroad track looking east for a distance of 326 feet, with a partial view for a distance of 556 feet. One within ten feet of the track, looking east, would have a full view thereof for a distance of 1,200 feet. On the 22nd of October, 1897, about 4 o'clock in the afternoon, the appellee was driving east on Washington avenue, and, when he reached the crossing of Washington avenue and Clay street, turned north into Clay street. When he turned from Washington avenue into Clay street, about 132 feet south of the railroad crossing, he heard a noise, and thought it a whistle of an engine. Believing that it was past time for the regular train on the Lake Erie & Western Railroad, he thought the whistle was that of a train on the Toledo, St. - Louis & Kansas. City Railroad. The appellee was driving a team of two horses hitched to a large moving car with a canvas top and side curtains rolled up close to the top, so as to leave an unobscured view. The wagon was so constructed that the bottom of the bed in front stood four or four and a half feet from the ground, and that in turning the wagon the front wheels would pass under the bed. The seat was placed in the extreme front end of the bed, and was about two feet in width. The appellee, as he approached the crossing, and at the time he was injured, was standing against and immediately behind the seat in the front end of the wagon. The appellee testified that when he heard the whistle he stopped and listened, but, seeing nothing, and hearing nothing further, he went on toward the railroad crossing, his horses going in a slow walk, and when he was fifteen feet from the south rail, and at a point where he could have seen the train approaching for a distance.of over 500 feet, and where, he could easily have turned by reason of the level surface of the street and the peculiar construction of his wagon, he saw the train, which was then, according to the testimony of his own witnesses, midway between Clay street crossing and Washington avenue crossing, approaching from the east. Appellee saw that the train was close upon him; saw (to use his own language) the train coming very rapidly, and whipped up his horses in his attempt to beat the train over the crossing. This he failed to accomplish, and the rear wheel of his wagon was struck by the train. By the contact the appellee was thrown from his wagon, and in the fall had two ribs fractured on his right side, and was more or less bruised on his right side. The evidence also shows that, if the appellee had looked toward the east as soon as he had passed the dwelling-house on the east side of Clay street, standing as he did in his wagon, he could have seen over the small outhouse, and could have noticed the approaching train, when he was, according to his own witnesses, twenty-seven feet, according to appellant, twenty-three feet, south of the track. No witness testified that the whistle did not sound and that the bell was not ringing, although several testified that they did not hear either. All the witnesses for the appellant that testified on the subject stated positively that the station whistle was sounded about a half or three-quarters of a mile east of town, and that a crossing signal of four blasts of the whistle was sounded shortly after the station signal, and before Clay street was reached; and also that the bell was ringing as the train approached and crossed the street. Witnesses both on behalf of the appellee and the appellant, who were in the neighborhood of this crossing just before the accident, stated that their attention was attracted to the train before it reached the crossing, by the rumbling noise of its running. The appellee was familiar with the crossing and the times of the trains on this road. This train, on the afternoon of the accident, was six or seven minutes late. As soon as the engineer discovered the appellee, and that he was attempting to cross ahead of the engine, he applied the emergency brake, and did all in his power to stop his train, but no efforts he could make would avoid the accident. There was an ordinance in force in the city of Frankfort at the time of the accident limiting the speed of trains, within the corporate limits, to four miles an hour. The train at the time of the accident was running faster than the speed allowed by the ordinance, varying, according to the testimony, from ten to twenty-five miles per hour. There is nothing in the evidence to suggest that appellee's horses were not perfectly gentle, or that they were not manageable, and under his control. He made no attempt to stop them, or to turn them from the railroad, after seeing the approaching train, before urging them across the track. He testified that he did not hear the train before he saw it, and heard the whistle only when he reached the crossing of \\\"Washington avenue and Clay street, as above set out. The evidence does not show that he looked or listened for the train again, after hearing the whistle referred to, until he was within fifteen feet of the track.\\nIn Oleson v. Lake Shore, etc., R. Co., 143 Ind. 405, 32 L. R. A. 150, it was said on page 408: \\\"It is thoroughly settled that if the facts are undisputed and only one inference can reasonably be drawn from them, the question whether there is 'or is not contributory negligence is one of law for the court. It is settled law in this State that when a person crossing a railroad is injured by a collision with a train, the fault is prima facie his own, and he must affirmatively show that his fault or negligence did not contribute to the injury before he is entitled to recover. qUes^on 0f eare crossings as affecting the traveler is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as a matter of law. In attempting to cross, the traveler must listen for signals, notice signs put up as warnings and listen for approaching trains. In proportion as the danger increases must the vigilance of the person attempting to cross increase.\\\" So that appellee in the case at bar had the burden imposed upon him of showing freedom from contributory negligence, with the presumption of negligence against him. Conceding that appellant was negligent in running its train at a speed greater than the municipal ordinance allowed, that fact could be of no avail here.\\nIt appears from the undisputed evidence that appellee saw the coming train, and yet undertook to cross the track. The facts do not show that the situation in which he was placed required him to take the risk which resulted so unfortunately. His action, so far as the facts inform us, was voluntary. The conditions did not require him to' go forward.\\nThe case before us is not one in which appellee was thrown off his guard or induced to drive upon the track by some act of appellant. The only negligence shown by appellant was the violation of the city ordinance, but appellee saw the rapidly running train. There was nothing in its high rate of speed to create the impression that there was a less degree of danger than actually existed; nor did any act of appellant's servants invite him to assume an unnecessary risk. Neither does the evidence show sudden fright or confusion, which in some cases have been held to excuse imprudence.\\nKorrady v. Lake Shore, etc., R. Co., 131 Ind. 261, was a case in which the appellant's decedent was killed in attempting to cross appellee's track before a moving train. Elliott, O. J., speaking for the court said: \\\"As soon as Korrady crossed the side-track immediately south of the main track and before he attempted to cross the main track he looked to the west to see if any train was approaching. I:Ie saw the approaching train, and at that point there was nothing to obstruct his view. If he had stopped at a point five feet south of the south rail, he could have seen the approaching locomotive, and he did see it before attempting to cross. There was no sudden danger, nothing requiring him to go forward, but he might have remained in safety in the place where he saw the approaching engine. We think it clear that the intestate was guilty of contributory negligence. He was not only able to see the approaching locomotive, but he did see it, and, notwithstanding this, he undertook to cross the track. He made the attempt and incurred the hazard when there was no reason for doing so. The authorities are decisively against the right of recovery hy one who voluntarily attempts to cross a track in front of a moving train which he sees not far distant approaching the crossing. Indiana, etc., R. Co. v. Hammock, 113 Ind. 1; Ohio, etc., R. Co. v. Hill, 117 Ind. 56; Ohio, etc., R. Co. v. Walker, 113 Ind. 196; Heaney v. Long Island R. Co., 112 N. Y. 122, 19 N. E. 422; Pakalinsky v. New York, etc., R. Co., 82 N. Y. 424; Railroad Co. v. Houston, 95 U. S. 697, 702, 24 L. ed. 542; Tully v. Fitchburg R. Co., 134 Mass. 499. Running a locomotive at a rate of speed forbidden by a municipal ordinance is ordinarily negligence on the part of the railroad company, but-such negligence will not excuse a person who assumes the risk of crossing in front of a train he sees and knows is approaching the crossing.\\\" Cincinnati, etc., R. Co. v. Howard, 124 Ind. 280; Aurelius v. Lake Erie, etc., R. Co., 19 Ind. App. 584; Sutherland v. Cleveland, etc., R. Co., 148 Ind. 308.\\nWe do not deem it necessary to determine whether, in making no other stop to look and listen than that at the crossing of Washington avenue and Olay street, in view of the obstructions upon a part of the route, and the noise of his moving wagon, which might have prevented, the former his seeing, the latter his hearing, the coming train, he exercised what the law defines as ordinary care- under all the circumstances. Without the consideration of that question, the authorities cited are conclusive of the proposition that appellee, after seeing his danger, voluntarily assumed an unnecessary risk, and was, therefore, guilty of contributory negligence. It is not to the interest nor conducive to the security of travelers, either upon public highways or railroads, that the rule announced in Korrady v. Lake Shore, etc., R. Co., supra, should, through sympathy for those unfortunate enough to suffer from its disregard, be relaxed. Questions presented by other alleged errors may not arise upon a second trial, and are therefore not considered.\\nJudgment reversed, with instruction to sustain appellant's motion for a new trial.\"}"
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+"{\"id\": \"2428576\", \"name\": \"Ittenbach et al. v. Thomas, Administratrix\", \"name_abbreviation\": \"Ittenbach v. Thomas\", \"decision_date\": \"1911-10-06\", \"docket_number\": \"No. 7,297\", \"first_page\": \"420\", \"last_page\": \"437\", \"citations\": \"48 Ind. App. 420\", \"volume\": \"48\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:12:17.829481+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ittenbach et al. v. Thomas, Administratrix.\", \"head_matter\": \"Ittenbach et al. v. Thomas, Administratrix.\\n[No. 7,297.\\nFiled October 6, 1911.]\\n1. Teial.\\u2014 Interrogatories.\\u2014 Verdict. \\u2014 'Appeal.\\u2014 In determining whether the answers to-the interrogatories to the jury overturn the general verdict the court on appeal will consider only such interrogatories and answers, the general verdict and the pleadings. p. 426.\\n2. Teial. \\u2014 General Verdict. \\u2014 Presumptions.\\u2014The general verdict is presumed to be a finding for the prevailing party on every fact in issue, p. 426.\\n3. Teial. \\u2014 General Verdict. \\u2014 Interrogatories.\\u2014The general verdict controls answers to the interrogatories unless such answers are irreconcilable therewith on any supposable evidence within the issues, pp. 427,434.\\n4. Trial. \\u2014 Verdict.\\u2014Interrogatories.\\u2014Conflict on Certain Issues.\\u2014 Where the answers to the interrogatories to the jury are in irreconcilable conflict with the general verdict upon some of the issues, the general verdict must stand, if at all, upon the remaining issues, p. 427.\\n5. Master and Servant. \\u2014 Defective Machinery. \\u2014 Interrogatories.\\u2014 In an action by the administrator of a deceased servant against his master, the first paragraph of complaint alleging negligence in providing a crane with old and rotten rails to rest the cab upon, and in providing weakened and crystallized hog chains for lifting the loads, answers to interrogatories to the jury that the death was caused solely by the crystallization and breaking of the hog chain, and that the crystallization thereof was undiscoverable by the use of ordinary care, are irreconcilable with a general verdict for the plaintiff on such issues, pp. 427,429.\\n6. Master and Servant. \\u2014 Defective Machinery. \\u2014 Inspection.\\u2014It is a master\\u2019s duty to make inspection of machinery, for ascertaining any defects therein produced from any cause, but a failure to discover defects that are not discoverable by the use of ordinary care does not constitute negligence, p. 429.\\n7. Master and Servant. \\u2014 Defective Machinery. \\u2014 Interrogatories.\\u2014 In an action by an administratrix for the death of her decedent caused by the alleged negligence of defendant in providing a crane with hog chains negligently adjusted so that one chain bore the entire load and the consequent breaking thereof, answers to the interrogatories to the jury that the chain broke because of the improper adjustment, that there was nothing to indicate that the chain was insufficient to carry the load placed upon it and that decedent was in a better position than any one else to ascertain whether any particular chain should be tightened or slackened are not irreconcilable with a verdict for the plaintiff as to such issue, since evidence was admissible to show that the decedent was away when the adjustment was made and had just returned and knew nothing thereof, pp. 430,434.\\n8. Master and Servant. \\u2014 Instructions.\\u2014Essentials for Recovery.\\u2014 Omission of Material Fact. \\u2014 In an action by the personal representative of a decedent against the defendant for negligence causing the death of said decedent, an instruction purporting to set out all the facts essential to plaintiff\\u2019s right of recovery, but which omits the decedent\\u2019s want of notice, actual or constructive, of the alleged defect in the machinery causing his death, is fatally erroneous, and cannot be cured by other instructions announcing the correct rule. p. 435.\\nFrom Superior Court of Marion County (74,345); James M. Leathers, Judge.\\nAction by Abbie J. Thomas, as administratrix of the estate of W. Scott Thomas, deceased, against Frank Ittenbach and another. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.\\nReversed.\\nElam, Fesler & Elam, for appellants.\\nKealing & Hugg and H. N. Spaan, for appellee.\", \"word_count\": \"6037\", \"char_count\": \"35315\", \"text\": \"Lairy, C. J.\\nThis action was brought in the Superior Court of Marion County by Abbie Thomas, as administratrix of the estate of her deceased husband, W. Scott Thomas, to recover damages occasioned by his death, which was caused by the breaking of a traveling crane upon which he was at work while in the service of appellants. The negligence charged is that appellants did not exercise reasonable care to provide decedent with a safe place in which to work.\\nThe first paragraph of complaint, omitting the formal parts, is as follows: That at, and for a long time prior to, the times hereinafter stated defendants were engaged in the business of cutting and dressing stone to be used for build ing purposes, and, as such, owned and operated a yard and mill in the city of Indianapolis, Marion county, Indiana, where they cut and dressed stone, and they also owned and operated, in connection with the cutting and dressing of stone, a traveling crane, used to hoist stone to and from cars, planers and saws in defendants' said yard; that said crane was operated along and upon a tramway of two tracks of rails laid and fastened upon timbers, which timbers were laid and fastened to and upon wooden trestles, which rested upon the ground, and upon which said rails the traveler of said crane moved back and forth; that said rails were about forty-five feet apart and about twenty-five feet higher than the ground upon which said trestles rested; that said tramway was about one hundred and thirty-five feet in length; that said traveler consisted of timbers fastened together, along and on top of which were laid and fastened two steel or iron rails about five feet apart, running the full length of said traveler, which extended from rail to rail of said tramway, and at the end of said traveler there were four wheels resting upon the rails of said tramway, two on each rail, and underneath the rails and timbers of said traveler, and connected therewith and supporting it, were four hog chains, which, when they were properly and safely arranged, were so adjusted that each should bear its proportionate share of the weight, strain and load which said crane might carry, hoist or move in and about defendants' said yard and mill while being operated; that said timbers of said traveler were bolted and fastened together at the ends and in the center; that upon said rails of the traveler there was a cab set upon trucks at each end thereof, and in connection with these trucks were wheels, two of which were on each side of said cab, and these wheels moved on and along the rails of said traveler; that from said cab, and between the timbers, rails and hog chains of said traveler, there was suspended a block and tackle connected with the machinery in said cab, and to which block and tackle there was attached a hook, which was fastened to the stone or other object to be moved by said crane; that by means of said traveler, defendants moved large blocks of stone in and about their said yard and mill, in the course of their business as such contractors, and in cutting and dressing stone to be used for building purposes; that in said cab were located an engine, boiler and the machinery necessary for moving said traveler, and for moving said cab along the rails of said traveler, and for hoisting or moving said stone in and about defendants' said yard by means of said block and tackle as aforesaid; that said traveler moved along said tramway by means of the wheels at the end of said traveler, which rested upon the rails of said tramway; that said truss-rods supported the timbers, machinery, rails and cab of said traveler, and it was upon these hog chains that the load moved by said crane was carried; that said tramway ran east and west, and said crane was so constructed that said traveler could be moved east and west on and along the rails of said tramway, and said house or cab upon said traveler could be moved north and south between said tramway; that said traveler had been so constructed that it could hoist and move in safety, and had hoisted and moved in safety, prior to February 6,1907, large blocks of stone, weighing twenty-two and twenty-three tons, and when in good repair should hoist in safety stones and other large bodies weighing twenty tons.\\nThat ~W. Scott Thomas, plaintiff's decedent, was in the employ of defendants on February 6, 1907, and had been in their employ for a long time prior thereto, in the capacity of engineer of said traveling crane; that as such it was his duty to perform his work in said cab upon said traveler, and to run and operate said engine, boiler and machinery connected therewith, and, at the order and direction of defendants, their agents and employes, to move, by means of said crane, blocks of stone, and in order to do so, it was necessary for him to move and operate said cab north and south along the rails of said traveler, and move and operate said traveler upon and along the rails of said tramway east and west, thereby moving and placing said stones at such places in and about said yard and mill as defendants, their agents and employes might desire; that defendants had used said traveling crane for a long time prior to said date, and the happening of the injuries hereinafter complained of; that defendants carelessly, wrongfully and negligently suffered and permitted the timbers, upon which the rails and the cab rested, to become old, rotten, weak and worn out, and carelessly, wrongfully and negligently suffered and permitted the hog chains supporting said timbers, rails and cab, by reason of the use to which they had been put, to become weakened, and the iron or steel to become crystallized, and rendered wholly insufficient in strength to support, carry and hoist the loads which defendants required plaintiff's decedent to lift, hoist and move with said crane, and rendered said traveler wholly insufficient for the purpose for which it was to be used, and rendered it dangerous and defective; that it was not the duty of decedent to inspect and repair said crane, or any of its several parts.\\nThat on February 6, 1907, while decedent was engaged in the discharge of his duties, as such employe of the defendant, and while engaged in operating said crane, and while in the place where his said duties required him to be, to wit, in said cab, and while engaged in lifting a stone weighing only fourteen tons, under the order and direction of defendants, their agents and employes, in the line of their duty as such agents , and employes, one of the hog chains and timbers of said traveler, supporting said cab, by reason of its weakened, defective, rotten and crystallized condition, broke, causing said cab to turn over and fall to the ground, fracturing decedent's skull and right leg, and otherwise wounding, crushing and mangling him, by reason of which he then and there died; that defendants, at and before the breaking of said timbers and of said hog chain, had knowledge that said timbers in said traveler were old, weakened, rotten, worn out, and defective and dangerous as aforesaid, that said hog chain was weakened, and that the iron or steel in said chain had become crystallized, and that said chain was insufficient to support, carry and hoist the loads that defendants were hoisting, moving and placing with said traveler, as aforesaid, and which they required decedent to hoist and move with said crane; that said chain was wholly insufficient for the purposes for which it was used, and was defective and dangerous as aforesaid, and defendants had knowledge of said defective condition long enough prior to said injuries to repair said chain and put it in good condition, by the exercise of reasonable care; that decedent did not know that said timbers in said traveler were old, weakened, rotten, worn out and out of repair, and defective and dangerous as aforesaid, and did not know that said hog chain was weakened, or that the iron or steel in it was crystallized, and insufficient to support, carry and hoist the load which defendants required, ordered and directed him to hoist, move and place with said crane, or that said hog chain was wholly insufficient for the purposes for which it was used, or was defective and dangerous as aforesaid.\\nThat said decedent at the time of his death was fifty-five years old, and his expectancy at said time was seventeen and fifty-eight one-hundredths years; that on August 31, 1907, plaintiff was appointed administratrix of the estate of said W. Scott Thomas, deceased, by the clerk of the Marion Circuit Court, who was and is ox officio the clerk of the Probate Court of Marion County, Indiana, and that she duly qualified and assumed the duties as such administratrix, and is now acting as such; that said W. Scott Thomas died, leaving surviving him as his sole heir at law, his widow, the plaintiff; that at the time of his death, decedent was earning $18 a week, and was in good health; that said injuries and consequent death of plaintiff's decedent were caused solely by the negligent, careless and wrongful acts of defendants as aforesaid, and that said negligent acts and conduct were the sole and. proximate cause of the injuries to, and the consequent death of, plaintiff's decedent, to plaintiff's damage in the sum of $10,000. The second paragraph was substantially like the first, except that the negligence charged in the first as to the rotten lumber was omitted from the second.\\nThe third paragraph was like the first, except that the only negligence charged was the failure of appellants properly to adjust the hog chains so that each would bear its proportionate share of the weight, and that by reason of such faulty adjustment the weight of everything lifted by the crane rested largely upon one of the hog chains, when a proper adjustment would have distributed the weight to four.\\nThe fourth paragraph was substantially like the third, except that the negligence charged against appellants was their failure properly to inspect the traveling crane, and their consequent failure to discover that the hog chains were improperly adjusted.\\nAppellants filed an answer in general denial to each paragraph of the complaint, and the issues thus formed were submitted to a jury for trial. The jury returned a general verdict in favor of appellee, and also returned with the general verdict answers to 102 interrogatories submitted by the court. Appellants moved for judgment in their favor on the answers to the interrogatories notwithstanding the general verdict, which motion was overruled and exception reserved, and this action of the court is assigned as error and relied on for reversal.\\nIn passing on the question here presented, this court must look solely to the general verdict, the interrogatories and the answers thereto, and the issues as made by the pleadings. The general verdict, when considered separately for the purpose of this motion, is presumed to find every material fact within the issues in favor of the prevailing party. The general verdict, however, is not the entire verdict of the jury. The interrogatories and the answers thereto constitute a part of the verdict, and must be considered in connection therewith. So far as the answers to the interrogatories are in irreconcilable conflict with the general verdict, such answers control, and override the general verdict. If the facts found by way of answers to interrogatories cover every issue made by the pleadings, and if they are so clearly in conflict with the general verdict as to make it impossible to reconcile the two under any evidence admissible within the issues, then the general verdict must yield as an entirety. If the answers to the interrogatories are in irreconcilable conflict with the general verdict upon certain issues formed by the pleadings, this has the effect to narrow the application of the general verdict to the other issues within the pleadings, upon which there is no such irreconcilable conflict between the general verdict and the answers to the interrogatories, and the general verdict must stand, if it stands at all, upon these issues. If the answers to the interrogatories are not in irreconcilable conflict with the general verdict, as applied to one or more of the issues, such general verdict will stand upon those issues, notwithstanding the irreconcilable conflict between such answers and the general verdict as to other issues; and, in the further consideration of the ease, the general verdict will be treated as resting solely upon those issues to which it is so limited by the answers to the interrogatories.\\nWe shall now consider the issues in reference to defendants' negligence as presented by the first paragraph of complaint in connection with the general verdict and the answers to the interrogatories bearing upon such issues. The negligence charged against defendants is that they negligently suffered and permitted the lumber upon which the rails and cab rested to become old, rotten, weak and worn out, and carelessly suffered and permitted the hog chains supporting said lumber, rails and cab, by reason of the use to which they had been put, to become weakened, and the iron or steel in said chains to become crystallized, and rendered wholly insufficient in strength to support, carry and hoist the loads that were required to be lifted, hoisted and moved by said crane, and rendered said crane wholly insufficient for the purposes for which it was used, as well as dangerous and defective.\\nThe interrogatories and the answers thereto, bearing directly upon the facts material to this issue, are as follows: ' ' Q. Was said traveler so constructed that it was supported by four hog chains? A. Yes. Q. Did each of these hog chains consist of three iron rods? A. Yes. Q. Were such iron rods coupled together by links, so that three of them made a continuous chain extending from one end of the bridge of the traveler to the other end thereof? A. Yes. Q. Was each of these hog chains made of wrought iron? A. Yes. Q . Were the threads cut on each end of each chain by which their diameter was reduced where such threads were cut to about one and five-eighths inches? A. Yes. Q. Was the estimated tensile breaking strength of each of said rods at least 60,000 pounds? A. Yes. Q. If of reasonably good iron, should these four rods have carried at least 240'000 pounds? A. Yes. Q. Did one of these rods break, and allow the engine upon the traveler to fall, with the decedent upon it, to a stone pile below the traveler, and so cause the death of decedent ? A. Yes. Q. Was there any other cause for the falling of the engine and the death of the decedent, except the breaking of one of the hog chains? A. No. * \\u00ae * Q. Was the rod that broke crystallized at the point of fracture at the time it broke? A. Yes. Q. Did such crystallization to some extent weaken it at that point? A. Yes. Q. What portion of its original strength, if any, was taken away by such crystallization? A. No evidence. Q. Could this crystallization be discovered in any way before the rod broke ? A. No. Q. If it could be discovered, by what examination or inspection could it have been done before it broke ? A. No evidence. Q. What was there that could be seen on the outside of the rod before it broke, to show any crystallization? A. Nothing. Q. Is there any test or inspection of any kind that will determine that a rod is crystallized before it is broken, and the inside revealed by the fracture ? A. No. Q. Was the breaking of the hog chain the sole cause of the engine's toppling over, and killing-decedent? A. Yes.\\\"\\nIt is true that ordinary care on the part of the master requires that he shall take notice of the tendency of parts of machinery to decay from age, or wear out by use, and the law requires him to make reasonable inspection of the various parts of machinery from time to time for the purpose of discovering any defective parts, to the end that such parts may be replaced or repaired, and his failure to make proper inspection or to repair or replace defective parts which are discovered or which might have been discovered by such inspection, is negligence; but the master is not liable for an injury to his servant caused by a hidden defect in the machinery or appliances furnished to the servant, when such defect was unknown to the master and of such a character that it could not be discovered by reasonable care and skill in inspection. Chestnut v. Southern Ind. R. Co. (1901), 157 Ind. 509; Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564; Baxley v. Satilla Mfg. Co. (1902), 114 Ga. 720, 40 S. E. 730; Sack v. Ralston (1908), 220 Pa. St. 216, 69 Atl. 671, 17 L. R. A. (N. S.) 104.\\nThe answers to interrogatories explicitly show that the breaking of the hog chain was the sole cause of the injury, and that the defective condition of said chain, as charged in the complaint, was not known to appellants, and could not have been discovered by any test or inspection possible. It is therefore apparent that the answers to the interrogatories before quoted are in direct conflict with the general verdict when such general verdict is considered in connection with the issues formed under the first paragraph of the complaint. As the charge of negli genee contained in the second paragraph of complaint is practically the same as that contained in the first, what has been said applies with equal force to the second paragraph. The effect of the answers to interrogatories quoted is to limit the application of the general verdict to the issues formed under-the third and fourth paragraphs of the complaint.\\n\\\"We shall now consider the answers to interrogatories and the general verdict in connection with the issues formed under the third and fourth paragraphs of complaint. The gravamen of the charge of negligence in the third paragraph is that the traveler was supported by four hog chains, two on each side; that these chains should have been so adjusted as to bear the weight equally, but that they were negligently and carelessly adjusted by defendants, by the tightening of one of them more than the others, that one was required to sustain a weight greatly in excess of its proportion, and more than its strength would stand, and that it broke by reason of this improper and negligent adjustment. The fourth paragraph of complaint charges the same defective adjustment of hog chains as the third, and charges that appellants were negligent in failing, by proper inspection, to discover the defect. The third paragraph alleges that the defective adjustment of the hog chains was known to appellants, and the fourth charges that it could have been known to them had they made proper and reasonable inspection. Both of these paragraphs allege that the defective adjustment of the hog chains was not known to decedent. The effect of the general verdict is to find that the hog chains were defectively adjusted, as alleged, and that one of them broke by reason of such defective adjustment, and caused the death of decedent; that appellants knew of such defective adjustment, or that they might have known of it by making a reasonable inspection, and that the defective adjustment was not known by decedent.\\nThe answers to interrogatories, so far as they relate to the negligence charged in the third and fourth paragraphs of complaint are as follows: \\\" (23) Q. Was the traveler in question built with the design that it would carry safely loads weighing twenty tons? A. Yes. (24) Q. Had it been used a number of years in defendant's stone yard to carry loads, most of which weighed fifteen tons or more? A. Yes. \\u00ae (26) Q. Was there at any time before the accident in which decedent was killed any indication that the traveler was not strong enough to carry the loads that were put upon it? A. No. (27) Q. Was there at any time anything in the appearance or movement of the traveler that indicated that it would not carry loads of fifteen tons or more ? A. No. # (34) Q. Did defendants believe, and have good reason to believe, that the hog chain that broke was sufficient to carry the loads to which it was subjected in their business, without danger, up to the time decedent was killed? A. Yes. # (59) Q. When the traveler lifted the stone in question, and while it was carrying it to the place where it was about to be deposited, what, if anything, was there to indicate that the rod that broke was not strong enough to carry the stone? A. Nothing. (60) Q. Did said rod, together with the other rods under the traveler that did not break, carry said stone safely until decedent begun to lower it? A. Yes. (61) Q. Until the rod broke, what, if anything, was there to indicate that any part of the traveler was not sufficiently strong to carry the stone that decedent was starting to lower when his engine and cab fell? A. Nothing. (64) Q. As operator of the engine, was the engineer in better position than any one else to determine when any particular hog chain should be slackened or tightened? A. Yes. # (66) Q. Had the one that broke been adjusted according to his direction on the same day or a few days before he was killed? A. No. (68) Q. Was it so adjusted by shortening it? A. Yes. (69) Q. Was such adjustment one of the causes of the chain's breaking at the time it did? A. Yes. (70) Q. Would it have broken as it did if it had not been so adjusted? A. No. (71) Q. Did the adjustment of the hog chains and the distribution of the strain upon them have anything to do with the breaking of the one that parted. A. Yes. (72) Q. If so, was it because the one that broke was drawn up tighter and made shorter than it should have been? A. Yes.\\\"\\nAppellants contend that the answers to interrogatories clearly show that they did not know that the hog chains were defectively adjusted, and that they could not have known this fact by reasonable inspection.\\nThe first interrogatory relied on is the twenty-sixth, in which the jury find that there was never any indication at any time, before the accident in which decedent lost his life, that the traveler was not strong enough to carry the loads placed upon it. It is claimed by appellants that this amounts to a finding that the defective adjustment could not have been discovered by inspection, the argument being that an inspection could only disclose defects of which there was some outward indication, and if there was nothing to indicate the weakness of the machine, that an inspection could not have disclosed it. This interrogatory, when considered in connection with the ones directly preceding it, which relate to the length of time the machine had been used, and weights that had been lifted by it, must be construed to mean that nothing had developed in the use of the machine in the past that would indicate that it was not strong enough to carry the loads that were put upon it. It may be true that the machine may have been used for years in lifting weights similar to the one under which it broke, and that nothing occurred or developed in such use that would indicate a weakness or defect, and still a defect might exist that could readily be discovered by a careful inspection of its various parts.\\nThe general verdict finds that the defective adjustment eould have been discovered by reasonable inspection and the interrogatory under consideration does not expressly and directly find that it could not. No interrogatory was propounded to the jury which required an answer as to whether the defective adjustment could have been discovered by an inspection. No inferences will be indulged in favor of an interrogatory as against the general verdict; all presumptions are to the contrary.\\nWhat has been said in reference to interrogatory twenty-six, applies with equal force to interrogatory twenty-seven. By the thirty-fourth interrogatory the jury find that appellants believed and had good reason to believe that the hog chain that broke was sufficient to carry the loads to which it was subjected in their business, without danger, up to the time plaintiff's decedent was killed. The fact that appellants believed the machine to be safe, and had good reason so to believe, would not excuse them from liability, if it was in fact defective, and if such defect could have been discovered by a reasonable inspection.\\nInterrogatories fifty-nine and sixty-one find that when the traveler lifted the stone under the weight of which it broke, and while it was carrying it to the place where it was about to be deposited, there was nothing to indicate that the rod that broke was not strong enough to carry the stone; and that, until the rod broke, there was nothing to indicate that any part of the traveler was not sufficiently strong to carry the stone. What we have said in discussing interrogatory twenty-six applies with equal force to these. We may also add in reference to these interrogatories, that they find only that there was nothing to indicate that the parts of the traveler were not sufficiently strong; they do not find that there was nothing to indicate that the parts were not properly adjusted.\\nIt is also claimed by appellants that interrogatory sixty-four shows that decedent had a better opportunity to know of the danger than appellants had, and that decedent, there fore, assumed the risk. Interrogatory sixty-four finds that the engineer, as operator of the engine, was in a better position than any one else to determine when any particular hog chain should be slackened or tightened. This does not necessarily mean that decedent had an equal opportunity with appellants to know that the chains were not properly adjusted. One definition given by \\\"Webster for the word \\\"position\\\" is: \\\"The spot where a person or thing is or is placed or takes a place; site; place; station; situation.\\\" Giving the word this meaning, the finding of the jury in answer to this interrogatory means that the position of the engineer in the cab was more favorable that that of any one else from which to determine when any particular hog chain should be tightened or slackened. It is a well settled rule of law that an answer to an interrogatory will not be held to be in conflict with the general verdict if the apparent conflict could be reconciled by any evidence admissible within the issues. Evidence was admissible within the issues to show that the hog chains had been adjusted shortly before the accident, that decedent had not been in his station in the cab after such readjustment until immediately before the accident, and that he had no opportunity to discover the defective and improper adjustment of the hog chains. This interrogatory does not, therefore, find that decedent had an equal opportunity with appellants to discover the danger to which he was exposed. The interrogatories are not in irreconcilable conflict with the general verdict, when considered in connection with the issues formed under the third and fourth paragraphs ox complaint, and appellants' motion for judgment in their favor on answers to interrogatories was properly overruled.\\nAppellants filed a motion for a new trial, which was overruled and exceptions reserved. The causes assigned for a new trial, and relied on for reversal, are (1) the giving of instruction twenty-five; (2) the giving of instruction thirty- one; and (3) that the verdict of the jury is not sustained by sufficient evidence.\\nThe twenty-fifth instruction is as follows: \\\"If you find from a fair preponderance of the evidence that defendants, shortly before the death of decedent, as alleged, had' repaired the bridge of defendants' traveler, upon which decedent was, at the time, employed, then it was the duty of defendants to exercise reasonable and ordinary care and diligence in making such repairs, and, in so doing, to adjust the truss-rods, or hog chains, supporting said bridge in such manner that they should be reasonably fit and safe to do the work which defendants required to be done with said traveler. And if you find from a fair preponderance of the evidence that at the time and place in question defendants employed decedent to operate said traveler, and he was, in fact, so engaged in the operation thereof, in the line of his employment and the discharge of the duties required of him in his work, and if you further find that shortly before the accident that caused the death of decedent, defendants negligently and carelessly repaired and overhauled said bridge and said truss-rods, or hog chains, and that as a result of such negligent repairs \\u2014 if you find they were negligently made \\u2014 said truss-rods, or hog chains, were so loosened and so adjusted that the strain of the loads attempted to be moved by said traveler was unequally distributed, and as a result thereof a greater weight and strain was put upon one or more of said truss-rods, or hog chains, than upon the others, and if you further find that because of such negligence and carelessness in the repair and adjustment of said truss-rods said traveler could not, and did not hoist and move in safety loads of less weight than had been hoisted and moved by it before the defendants repaired said rods, and if you further find that, as the direct and proximate result of such negligence of defendants, one of said truss-rods broke, and caused the cab on said bridge to fall and kill decedent \\u2014 then I instruct you that plaintiff in this case would be entitled to recover, provided you further find that plaintiff's decedent was himself free from any negligence proximately causing or contributing to the alleged injuries resulting in his death.\\\"\\nIn this instruction the court undertook to inform the jury what facts appellee was required to establish in order to entitle her to a verdict. Such an instruction amounts to a direction to the jury to return a verdict in favor of plaintiff, if the facts enumerated therein are established by the evidence, and that the facts-so enumerated are sufficient, if established, to warrant such a verdict, unaided by any other facts: If such an instruction omits from the facts enumerated one or more facts, proof of which is essential and necessary to a recovery by plaintiff, it is erroneous. An instruction that is erroneous for this reason cannot be cured by the giving of other instructions that correctly state the law. American, etc., Tin Plate Co. v. Bucy (1909), 43 Ind. App. 501; Lake Shore, etc., R. Co. v. Johnson (1909), 172 Ind. 548; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531. Before plaintiff was entitled to a verdict, it was necessary for her to prove that her decedent had no knowledge of the defective condition of the machine which caused his death, and also that he could not have known of such defects by the exercise of ordinary care. It will be observed that this instruction makes no reference to decedent's knowledge or want of knowledge of the defects mentioned in said instruction. If the jury obeyed this instruction, it could return a verdict in favor of the plaintiff, even though it failed to find from a preponderance of the evidence that decedent had no knowledge of the defects complained of, or even though it was satisfied from the evidence that he did possess such knowledge. The giving of this instruction was prejudicial error, which entitles appellant to a new trial.\\nAs a new trial must be granted for the error already pointed out, it is unnecessary to prolong this opinion in the consideration of other errors assigned, as the same questions may not arise upon a second trial.\\nJudgment reversed, with directions to grant a new trial.\"}"
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+"{\"id\": \"2542871\", \"name\": \"Oleske v. Piotrowski\", \"name_abbreviation\": \"Oleske v. Piotrowski\", \"decision_date\": \"1919-10-09\", \"docket_number\": \"No. 9,930\", \"first_page\": \"136\", \"last_page\": \"141\", \"citations\": \"71 Ind. App. 136\", \"volume\": \"71\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:07:56.406070+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oleske v. Piotrowski.\", \"head_matter\": \"Oleske v. Piotrowski.\\n[No. 9,930.\\nFiled October 9, 1919.]\\n1. Insurance. \\u2014 Life insurance.- \\u2014 Forfeiture.-\\u2014Self-Executing ByLaws. \\u2014 Where a beneficial association\\u2019s constitution is in such terms as to render it self-executing, the society need not take affirmative action against a member in order to declare a for feiture, but the right to .benefits is lost immediately upon the default which by the constitution forfeits rights to benefits, p. 140.\\n2. Insurance. \\u2014 Life Insurance. \\u2014 Society\\u2019s Constitution. \\u2014 Construction. \\u2014 The terms \\u201cthose left behind\\u201d and \\u201cthe family,\\u201d as used in a provision of a beneficial association\\u2019s constitution that suicide of a member deprives such groups of death benefits, are broad enough to include the wife of a member, p. 140.\\n3. Appeal. \\u2014 Review.\\u2014Instructions.\\u2014Failure to Include Evidence in Record. \\u2014 Where the evidence is not in the record, none of the instruction's given will be held erroneous if correct under any evidence admissible under the issues, p. 141.\\nFrom LaPorte Circuit Court; PL. L. Crumpaclcer, Judge.\\nAction by Augusta Oleske against Frank J. Piotrowski and others. From a judgment for defendants, the plaintiff appeals.\\nAffirmed.\\nCornelius B. Collins and Jeremiah B. Collins, for appellant.\\n. Theron F. Miller and W. W. Pepple, for appellees.\", \"word_count\": \"1483\", \"char_count\": \"8592\", \"text\": \"Nichols, P. J.\\n\\u2014 The appellant sued the appellees, in the LaPorte Superior Court, in their representative capacity, as representing a voluntary association of more than 300 individuals, organized for the mutual benefit of the members thereof. The benefits paid by the society are on account of the sickness or death of its members, such benefits being paid out of the treasury of the society, and by levying an assessment on account of the death of any member. This action was brought by the appellant to collect for benefits which she alleged to be due on account of the death of her husb.and, Valentine Turczinski, who appellant alleged was a member of said -society in good standing at the time of his death, such society being an unincorporated society and represented by \\\"the\\\" appellees. Since the\\\" death of her said husband, the appellant has remarried to one Oleske.\\nThe complaint was in one paragraph, to which appellees answered in four paragraphs, the first being a general denial. The second amended paragraph averred in substance that appellant's husband became a member of the society, known as the \\\"Polish Lancers, under the Protection of St. Casimer the Prince,\\\" on or about January 6, 1906. In answer to certain questions propounded to him, said husband said that he had acquainted himself with the consti-. tution of the society, which was in the Polish language, and that he desired to submit himself to' it and to the by-laws of the society. The constitution provided that each member should pay dues of twenty-five cents per month, and $1.50 on the death of any member, and, if any member was back in paying his dues, penalties, or assessments, and if, after notification by the secretary, he failed to pay at the next nearest meeting, or failed to offer some valid excuse, he thereby lost his rights to sick or mortuary benefits. In the year 1910, the custom which the secretary had theretofore followed, of sending out notices to delinquents, was discontinued, and from May 16, 1910, to November 21,1910, the date of the husband Is death, the method provided by the constitution was followed, which method was to read at each meeting the number of members in good standing, and of those back in their payments. According to custom, this method of reading the names of those back in their payments constituted notice, and said husband knew of said method of notice, during all. the time, and agreed to be governed- thereby; but, notwithstanding, failed to pay his monthly dues from May 16, 1910, to November 21, 1910, and failed to pay an assessment of $1.50 because of the death of a member in good standing, July 20,1910, and a like assessment because of the death of another member, September 8, 1910. On September 16, 1910, said husband received notice of his delinquency by having , his name read at a regular quarterly meeting held at that time; but failed to pay or offer valid excuse, and' did not pay or offer valid excuse at the next regular meeting, which was held October 17, 1910, and said husband never did make such payment of his. delinquent dues and assessments, and the same were unpaid at the time of his death. Thereby said husband forfeited all his and appellant's rights to sick and mortuary benefits.\\nThe reamended third paragraph of answer averred suicide, and that nothing was due appellant by virtue of the provision of the constitution in' Polish language, which means: \\\"The family of a member whose death was due to drunkenness or suicide is not entitled to demand any expenses from the society, and the society is not bound to take care of the funeral, and will not keep guard over the deceased.\\\" And \\u00a72: \\\"Those who commit suicide deprive those left behind of the rights to the death benefits.\\\"\\nThe fourth paragraph of answer averred a rule contained in the constitution in the Polish language, which means that \\\"every member who, after being received into the society, steps. out of its ranks by his own accord, thereby ejects himself from the society and has no rights to the moneys he paid into the society up to that time,\\\" and that said husband stepped out of the' ranks of his own accord about May 16, 1910, and did not thereafter seek to return, and that he thereby ejected himself from the society.\\nAppellant filed motion to require appellees' to make tlieir second ' paragraph more specific, and a \\u2022 like motion as to the fourth paragraph of answer. Each of these motions was overruled. There was no error in either of these rulings, as each of said paragraphs was sufficiently specific as to the matter in the motion addressed thereto.\\nAppellant filed a several demurrer to the second, third and fourth paragraphs of answer, in the discussion of which she contends that the insured's failure to pay or offer some valid excuse did not terminate his contract of insurance, without some action on the part of the society; but where, as in this case, the laws governing a society ar.e in such terms as to render them self:executing, the society need not take affirmative action against a delinquent in order to declare a forfeiture, but the right to benefits is lost immediately upon the default which by the rules constitutes the grounds of forfeiture. Freckmann v. Supreme Council, etc. (1897), 96 Wis. 133, 70 N. W. 1113; Pitts v. Hartford, etc., Ins. Co. (1895), 66 Conn. 376, 34 Atl. 95, 96, 97, 50 Am. St. 96; Hunger v. Brotherhood, etc. (1916), 176 Iowa 291, 154 N. W. 879, 880; Bosworth v. Western Mut. Aid Society (1888), 75 Iowa 582, 39 N. W. 903, 904; Lehman v. Clark (1898), 174 Ill. 279, 51 N. E. 222, 225, 43 L. R. A. 648.\\nAppellant contends that the clause of said contract, forfeiting as to \\\"those left behind\\\" and as to \\\"the family,\\\" does not include the appellant, who was the wife of the insured. We need no authorities to establish the proposition that \\\"those left behind\\\" is broad enough to include the wife; and that \\\"family\\\" includes the wife has been many times decided. Hall v. Stephens (1877), 65 Mo. 670, 27 Am. Rep. 302; Bradley v. An drews (1884), 137 Mass. 50; Cross v. Benson (1904), 68 Kan. 495, 75 Pac. 558, 64 L. R. A. 560; Aultman, Miller & Co. v. Price (1904), 68 Kan. 640, 75 Pac. 1019; Nye v. Grand Lodge, etc. (1893), 9 Ind. App. 131, 36 N. E. 429; Marsh v. American Legion, etc. (1889), 149 Mass. 512, 21 N. E. 1070, 1072, 4 L. R. A. 382; Brooklin, etc., Belief Assn. v. Hanson (1889), 53 Hun 149, 6 N. Y. Supp. 161; Britton v. Royal Arcanum (1889), 46 N. J. Eq. 102, 18 Atl. 675, 676, 19 Am. St. 376. Other objections were discussed by the appellant, but we do not deem them of such force as to justify the extending of this opinion in their consideration. The several demurrer was properly overruled.\\nThe evidence is not in the record; therefore none of the instructions given will be held erroneous, if correct under any evidence admissible under the issues. Schuster v. State (1912), 178 Ind. 320, 322, 99 N. E. 422; Mankin v. Pennsylvania Co. (1903), 160 Ind. 447, 454, 455, 67 N. E. 229; Ferris v. State (1901), 156 Ind. 224, 230, 59 N. E. 475; Conden v. Morningstar (1884), 94 Ind. 150, 151. With this rule of law before us, we have carefully examined the instructions challenged, reading them with the instructions' as a whole, and we find no error in them.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"4685402\", \"name\": \"The City of Evansville v. Thacker\", \"name_abbreviation\": \"City of Evansville v. Thacker\", \"decision_date\": \"1891-09-29\", \"docket_number\": \"No. 212\", \"first_page\": \"370\", \"last_page\": \"375\", \"citations\": \"2 Ind. App. 370\", \"volume\": \"2\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:48:43.427508+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The City of Evansville v. Thacker.\", \"head_matter\": \"No. 212.\\nThe City of Evansville v. Thacker.\\nEvidence. \\u2014 Overruling Objection to.\\u2014 When not Considered. \\u2014 No question is presented by the overruling of an objection to a question asked of a witness where no ground of objection was stated to the court.\\nSame. \\u2014 Cross-Examination of Witness. \\u2014 Exclusion of Testimony. \\u2014 Exception.\\u2014 How Saved. \\u2014 The rule requiring that a party, in order to save an exception to the exclusion of testimony, shall state that the witness will testify to a fact specified, does not apply to cross-examinations. But whether it he on examination in chief or on cross-examination, no exception can he saved to the exclusion of testimony, if the record does not show a pertinent question to the witness.\\nNegligence. \\u2014 Instruction to Jury. \\u2014 Contributory Negligence. \\u2014 In an action against a city for the recovery of damages for personal injuries, alleged to have been sustained by the plaintiff by slipping and stepping into a dangerous hole in a wooden street crossing, an instruction to the jury correctly stated the law which informed the jury that before they found for the plaintiff they should be satisfied from the preponderance of the evidence that she herself used reasonable care to avoid the injury. After so instructing, it was not error to refuse to instruct the jury that they must be satisfied by a preponderance of the evidence that the plaintiff was not guilty of contributory negligence.\\nSame. \\u2014 Knowledge of Defect. \\u2014 Contributory Negligence. \\u2014 That the plaintiff, in an action for personal injuries occasioned by a defect in a highway, had knowledge of the defect, is not necessarily inconsistent with the exercise of reasonable care on his part, and does not conclusively establish contributory negligence.\\nSpecial Finding. \\u2014 Answers to Interrogatories. \\u2014 General Verdict. \\u2014 Presumption in Favor of. \\u2014 Special findings of the jury in answer to interrogatories can not control the general verdict, unless they are irreconcilably in conflict with it, and in determining whether such conflict existSj every reasonable presumption will be indulged in favor of the general verdict. The special findings can not be aided by intendment, and no reference will be made to the evidence actually introduced and in the record.\\nCounsel. \\u2014 Misconduct of.\\u2014 When not Properly Presented. \\u2014 Where the misconduct of counsel in using certain language in his closing g.:ment to the jury, was one cause assigned in the motion for a ::cw C:ial, but no exception was taken to any ruling of the court in connection with the attorney\\u2019s misconduct, and no action of the court in the premises was assigned as a cause for a new trial, the action of the trial court in refusing to grant a new trial for this cause can not be regarded as available error.\\nFrom the Vanderburgh Circuit Court.\\nJ. Brownlee, for appellant.\\nC. L. Wedding, for appellee.\", \"word_count\": \"1844\", \"char_count\": \"10776\", \"text\": \"Black, J.\\nThe appellee, May W. Thacker, sued the appellant to recover damages for personal injury occasioned by the appellee's slipping and stepping into a dangerous hole in a wooden street crossing, whereby the appellee was thrown down and against a certain flag pole, and braces attached thereto, which constituted an obstruction of the street.\\nAn issue formed by a denial of the complaint was tried by jury. There was a general verdict for the appellee for six hundred dollars.\\nThe appellant's motion for judgment on answers returned by the jury to interrogatories, and its motion for a new trial, were overruled.\\nWe will examine the questions to be decided in the order in which counsel have discussed them.\\nThe first matter in dispute relates to the overruling of an objection to a question to a witness asked by the appellee. Of this it is sufficient to say that no ground of objection was stated to the court. Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, and cases cited.\\nAt the close of the testimony of the same witness, the record, not stating that there was any cross-examination of the witness, shows that the appellant offered to prove by said witness a certain fact stated, that the appellee objected, and that the objection was sustained.\\nIt does not appear that the witness was asked any question by the appellant.\\nWhei'e a party, having himself produced a witness, or having adopted as his own a witness first produced by his adversary, desires to make an offer of proof by such witness, he must first propound a pertinent question to the witness, and the offer should be, in some form, a statement to the court that the witness, if permitted to answer the question, will testify to a certain specified fact. Judy v. Citizen, 101 Ind. 18; Higham v. Vanosdol, 101 Ind. 160; Beard v. Lofton, 102 Ind. 408 ; Ralston v. Moore, 105 Ind. 243; Morris v. Morris, 119 Ind. 341; Smith v. Gorham, 119 Ind. 436.\\nOn cross-examination,it might sometimes thwart a proper purpose if counsel, upon objection made by adverse counsel to a question asked,could be compelled to state the object of the question in the presence of the witness; and it is to be expected that counsel cross-examining a witness will not be able ordinarily to state to the court that the adverse witness will testify to a particular fact. An offer of proof belongs naturally to an examination of the examiner's own witness.\\nHow a particular matter is to be elicited from a witness, by what form of question it is to be drawn out, is important, and must always appear in the record to save any question concerning the exclusion of such matter.\\nThe rule requiring that a party, in order to save an exception to the exclusion of testimony, shall state that the witness will testify to a fact specified, does not apply to cross-examination. Heagy v. State, ex rel., 85 Ind. 260.\\nIn the case before us, the examination in chief of the witness by the appellee having ended, if a question proper for cross-examination had been asked by the appellant, it would not have been necessary for the appellant to state to the court what the witness would testify, in order to save an exception to the action of the court, if it had sustained an objection to the question. But whether it be on examination in chief or on cross-examination, no exception can be saved to the exclusion of testimony if the record does not show a pertinent question to the witness.\\nThe next subject of dispute relates to an offer of the appellant to prove certain matters by one of its own witnesses. It does not appear what, if any, question to the witness preceded the offer, or that the appellant showed the court that the witness would testify to any particular fact.\\nIn discussing the question of the sufficiency of the evidence, counsel for appellant has directed our attention to certain evidence tending to prove that the hole into which the appellee stepped had been repaired by the city a short time before the injury to the appellee. There was, however, evidence of a contrary tendency, and we can not interfere to determine the preponderance of the evidence.\\nIt is contended on behalf of the appellant that certain instructions given to the jury at the request of the appellee as sumed that the city would be liable for a personal injury occasioned by a defect or obstruction in the street, without regard to the question whether the defect or obstruction was such as would render the street unsafe for travel.\\nThe instructions so objected to, when taken together and considered in connection with others given at the request of the appellant, were not capable of such a construction.\\nIt is insisted that the court erred in refusing to give one of the instructions asked by the appellant, because, if given, it would have instructed the jury that they must be satisfied by a preponderance of the evidence that the appellee was not guilty of contributory negligence.\\nThe court instructed the jury in various forms that, as one element in the appellee's right to recover, she must have been injured without negligence on her part; and, in an instruction asked by the appellant, the court informed the jury that before they could find for the appellee they should be satisfied from a preponderance of the evidence that she herself used reasonable care to avoid the injury.\\nNext, it is contended that the court erred in giving one of the instructions given by the court of its own motion. It does not appear by the record that the appellant excepted to the giving of this instruction.\\nOne cause assigned in the motion for a new trial was misconduct of the appellee's attorney in using certain language in his closing argument to the jury.\\nThe bill of exceptions, after showing the use of the language in question by the attorney, shows that thereupon the appellant, by its counsel, objected and excepted to said language and said misconduct of the attorney, and that thereupon the court stopped said attorney from using such language, and directed the jury not to consider it, and thereupon said attorney said: \\\" Yes, I withdraw these remarks; you should not consider them,\\\" and thereupon the argument to the jury proceeded to a close.\\nNo exception was taken to any ruling of the court in con nection with the attorney's misconduct, and no action of the court in the premises was assigned as a cause for a new trial. The action of the trial court in refusing to grant a new trial for this cause can not be regarded as available error. Leach v. Ackerman, ante, p. 91. See, also, Mainard v. Reider, ante, p. 115.\\nFiled Sept. 29, 1891.\\nIt is contended that one of the special findings returned by the jury in answer to interrogatories was inconsistent with the general verdict. By that finding it was shown that the appellee must have known of the existence of the hole in the street crossing six or eight months.\\nIt is well settled that special findings of the jury in answer to interrogatories can not control the general verdict, unless they are irreconcilably in conflict with it; and in determining whether such conflict exists, every reasonable presumption will be indulged in favor of the general verdict. The special findings can not be aided by intendment, and no reference will be made to the evidence actually introduced and in the record. Stevens v. City of Logansport, 76 Ind. 498; Pittsburgh, etc., R. W. Co. v. Martin, 82 Ind. 476; Louthain v. Miller, 85 Ind. 161; Cox v. Ratcliffe, 105 Ind. 374; Town of Poseyville v. Lewis, 126 Ind. 80; Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391.\\nThat the plaintiff1 in an action for personal injury occasioned by a defect in a highway had knowledge of the defect, is not necessarily inconsistent with the exercise of reasonable care on his part, and does not conclusively establish contributory negligence. Town of Poseyville v. Lewis, supra; Ohio, etc., R. W. Co. v. Trowbridge, supra.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"4729754\", \"name\": \"Young v. Mason\", \"name_abbreviation\": \"Young v. Mason\", \"decision_date\": \"1893-11-22\", \"docket_number\": \"No. 762\", \"first_page\": \"264\", \"last_page\": \"274\", \"citations\": \"8 Ind. App. 264\", \"volume\": \"8\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:39:25.728341+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Young v. Mason.\", \"head_matter\": \"No. 762.\\nYoung v. Mason.\\nPhysician and Patient. \\u2014 Malpractice.\\u2014When Patient May Recover, When Not. \\u2014 Mixed Negligence. \\u2014 In an action against a surgeon for malpractice, no recovery can be had by the patient against the surgeon, in any case, where both the surgeon and patient are free from negligence, or where the surgeon and patient are both guilty of negligence, or where the surgeon is free from fault and the patient is guilty of negligence. It is only where the surgeon is guilty of negligence, and the patient is without negligence on his part, contributing in any degree to such injuries, that the patient can recover damages of the surgeon.\\nSame. \\u2014 Contributory Negligence. \\u2014 Judgment on Answers to Interrogatories, non Obstante. \\u2014 In such an action, when the answers to inter rogatories show that the patient, by his negligent conduct in disregard of his surgeon\\u2019s instructions, and in interfering with the surgeon in the discharge of his duties, contributed to the injuries complained of, the defendant is entitled to judgment on such answers, notwithstanding a general verdict for the plaintiff.\\nFrom the Grant Circuit Court.\\nW. H. Carroll, G. D. Dean and A. J. Remy, for appellant.\\nH. Brownlee, H. J. Paulus, E. Pierce and J. A. Hindman, for appellee.\", \"word_count\": \"2950\", \"char_count\": \"17268\", \"text\": \"Davis, J.\\nIn her complaint the appellant alleges that on the 9th day of July, 1891, she suffered the following injuries, to wit:\\n1. Broke and fractured the radius of her left forearm, near the wrist joint.\\n2. Dislocated laterally both bones of her left forearm, at the elbow joint.\\n3. Fractured the inner condyle of the humerus of the left elbow.\\nIt is further alleged that she employed the appellee, a practicing physician and surgeon, of Hartford City, Ind., to attend and treat her said injuries. This action is to recover damages alleged to have been sustained by appellant, as the result of alleged unskillfulness and negligence on the part of appellee, in the treatment of her said injuries in the following respects, namely:\\n1. That he did not exercise due care and skill in setting and reducing said fractures and dislocations, and in the treatment of said injuries.\\n2. That he negligently, carelessly, unskillfully, and unprofessionally pretended to set and reduce said fractures and dislocations.\\n3. That he failed to properly reduce said dislocation of said elbow joint, and to properly bandage the same so as to hold said bones to their proper places.\\n4. That he too frequently changed the bandages and splints on said wounds, and prevented the union of the fragments of said broken bones by frequently manipulating and moving the same.\\n5. That he prevented the proper relocation and adjustment of said dislocated elbow by too frequently manipulating and moving it.\\nWhereby it is charged:\\n1. That said bones of said joints, by adhesion to the surrounding parts, became stiff at said joints.\\n2. That said left arm became permanently stiff and crooked at said joints.\\n8. And because of the negligence, and carelessness, and unskillfulness of appellee in improperly reducing the dislocation of the elbow joint, and in bandaging and treating said arm and hand, the appellant's hand and fingers have become stiff and permanently crooked.\\nThe venue of the cause was changed from the Black-ford to the Grant Circuit Court, where it was tried by a jury. The jury returned a general verdict in favor of appellant for $1,000, and they also returned answers to forty interrogatories submitted by appellee. Upon motion of appellee, the court rendered judgment in his favor on the answers to the interrogatories. This ruling is the basis of the only error assigned. The question presented is, whether the facts disclosed by the answers to the interrogatories can, in any way, be reconciled with the general verdict. The general verdict necessarily decided all material questions in favor of appellant. As was well said by Judge New, in Gaar, Scott & Co. v. Rose, 3 Ind. App. 269, \\\"The answers to interrogatories override the general verdict only when both can not stand together, the antagonism being such, upon the face of the record, as is beyond the possibility of re moval by any evidence admissible under the issues in the cause. \\\"\\nIn the language of Judge Elliott, in another case, \\\"If there is no irreconcilable conflict between the general verdict and the special answers, the former must prevail, and it is likewise true that intendment will not be made in favor of the special answers. It is also true that the answers to the interrogatories can not control the general verdict if they are contradictory, although the verdict may be in irreconcilable conflict with some of these answers.\\\" Matchett v. Cincinnati, etc., R. W. Co., 132 Ind. 334.\\nIn the light of these authorities, the first proposition to be determined is whether the answers to the interrogatories conclusively show that appellee was not guilty of negligence resulting in any of the injuries for which recovery is sought in this action.\\nIt is clearly shown, by the answers, that the appellee did possess the fair and ordinary knowledge and skill. Jones v. Angell, 95 Ind. 376; Gramm v. Boener, 56 Ind. 497.\\nAlso that the manner in which he dressed and treated appellant's injuries was, with one exception, such as is approved and followed by the most skillful surgeons in that vicinity, and which is approved by the standard authors and text-writers upon the subject of surgery. The exception is that the answers do not conclusively show that appellee exercised due skill and care in reducing the fracture near the wrist joint. The most that can be said in behalf of appellee, in this respect, is that the answers are contradictory.\\nCounsel for appellee, however, contend that \\\"Granting, for the time being, that this fracture was not reduced, there is nothing in the entire record indicating that the appellant was injured or even inconvenienced by tliis omission.\\\"\\nAll we deem it necessary to say on this subject is that when we refer to the allegations in the complaint, to which we have heretofore called attention, which, in view of the general verdict, so far as the question now under consideration is concerned, we must regard as having been proven on the trial, the court can not say, as a matter of law, in the absence of an express finding to the contrary, that the appellant was not injured or inconvenienced by reason of the alleged negligence of the appellee in failing to reduce the fracture near the wrist-joint.\\nConceding that the answers to the interrogatories fail to show that appellee was not guilty of the unskillfulness or negligence charged in the complaint, in the respect last mentioned, does it appear from these answers that the alleged injuries which are made the basis of the action, were in any degree caused by the want of proper care on the part of appellant? In other words, is appellant shown to have been guilty of any act of negligence which was the proximate cause of the injuries of which complaint is made?\\nThe interrogatories and answers thereto bearing on this branch of the case are as follows:\\n\\\"Did not the defendant, at his first visit, after having properly examined, reduced, adjusted, bandaged, and dressed the arm, and at divers other times, order and direct plaintiff not to remove her arm from the sling, but to keep it in the sling at rest? A. Yes.\\n\\\"If you answer question 18 (the preceding question) in the affirmative, state if such orders and directions given the plaintiff by the defendant were proper, and whether a strict observance of the same was necessary to tlie proper treatment of the injuries of the arm. A. In the main it was.\\n\\\"If you answer question 18 in the affirmative, state if it is not true that the plaintiff failed, refused and neglected to obey the orders and directions of the defendant by taking and removing the arm from the sling in the defendant's absence. A. She did in part.\\n\\\"Is it not true that the plaintiff at divers times within the first, second, and third weeks following her injuries, remove the injured arm from the sling in violation and disregard of defendant's directions and instructions? A. Yes.\\n\\\"Did not the plaintiff on divers occasions within the first, second, and third weeks following the injury, and after the said third morning, remove the arm from the sling, and leave it out for short times, placing it in different positions while out of the sling, and if this was not in violation of the defendant's instructions to her? Answer fully. A. Yes.\\n\\\"Did the plaintiff obey the directions and instructions of the defendant in the matter of caring for and treating her arm in his absence? A. Not entirely.\\n\\\"If you answer question 28 (last question) in the negative, state fully how and in what manner the plaintiff failed to follow .defendant's directions and instructions. A. By taking her injured arm out of the sling and placing it on her lap, window-sill, and table.\\n\\\"Is it not a fact that the injured arm was highly inflamed and very much swollen for a time? A. Yes.\\n\\\"If you answer question 31 in the affirmative, state if the inflammation and swelling was not produced in part as the natural result of the injuries sustained? A. Yes.\\n\\\"If you find that the plaintiff, at divers times within the week following the injury, removed her arm from the sling, state if it is true that the natural tendency of such conduct was not to aggravate and increase inflammation and swelling. A. It was to some extent.\\n\\\"If you answer question 33 in the affirmative, state if it is' not true that the inflammation and swelling of plaintiff's arm was not aggravated and increased by the removal of her arm from the sling. A. It would partially.\\n\\\"Is it not a fact that the natural effect and tendency of such inflammation and swelling over and about the injured parts, and over and about the ligaments, tendons, muscles, and soft parts of the arm was to produce and cause a stiffened condition of the elbow, wrist, and finger-joints? A. Yes.\\n\\\"If you find that the arm at and about the points of the injuries was greatly inflamed and swollen, and that the natural tendency of such inflamed and swollen condition was to cause stiffness at the elbow, wrist, and finger-joints, what do you find from the evidence was the proper treatment of the arm in that condition to prevent or overcome such .tendency to stiffness in said joints? A. Passive motion and the application of lotions.\\n\\\"Do you not find that the arm was highly inflamed and swollen for a time, and that the natural tendency of such condition was to produce stiffness in the joints if not properly treated, and that the proper treatment to prevent such results was to use passive motion. A. Yes. '\\n\\\"Is itnot a fact that the defendant, at the proper times, used such passive motion at these joints, when allowed to do so by the plaintiff, as fully and freely as she would permit? A. Yes.\\n\\\"Is it not a fact that the plaintiff, on account of the pain (caused) by the defendant's effort to produce passive motion at the elbow, wrist, and finger joints, refused to allow him to employ such means for her recovery, and that he was prevented, by such refusal, from using-such passive motion at the times and to the extent proper? A. Yes.\\n\\\"If you find from the evidence that there is a partial stiffness at the elbow, wrist, and finger joints, do you not find that this condition of these joints resulted, in whole or in part, from the refusal of the plaintiff to permit the defendant to subject these joints, at the proper times, to passive motion? A. In part.\\\"\\nBefore considering the effect of these answers, we will briefly refer to the authorities which relate to the duties of the patient in such cases, and also the question of contributory negligence on his part.\\nIn Potter v. Warner, 91 Pa. St. 362, 36 Am. Rep. 668, the court says: \\\"It is, however, the duty of the patient to submit to the treatment prescribed, and to follow the directions given, provided they be such as a physician of ordinary skill would adopt or sanction. If the injuries were the result of mutual and concurring negligence of the parties, no action to recover damages therefor will lie. A person can not recover from another for consequences attributable in part to his own wrong. Nor is it necessary that the negligence of each party 'be equal, to defeat a recovery. Cattawissa R. R. Co. v. Armstrong, 13 Wright, 186.\\\"\\nIt was well said, in Railroad v. Norton, 12 Harris, 465: \\\"The law has no scales to determine in such cases whose wrong-doing weighed most in the compound that occasioned the mischief.\\\" Jones v. Angell, supra.\\nIndulging every reasonable presirmption and intendment in favor of the general verdict, and granting that the appellant established, to the satisfaction of the jury, every fact put in issue by the allegations in her complaint, except when the answers to the interrogatories affirmatively and conclusively show to the contrary, and giving a fair and reasonable construction to the facts, which are clearly, specifically, and without conflict or contradiction, found in said answers, we conclude that the negligence of the appellee in failing to reduce the fracture near the wrist, and the refusal of appellant to allow appellee to subject the injured joints at the proper times to passive motion concurred in producing the injuries for which recovery is sought.\\nIt is urged by counsel for appellant that one of the injuries complained of is the failure to reduce the fracture, and that it is not shown that any negligence of appellant contributed to this injury.\\nWe do not so understand the allegation in the complaint. The failure to reduce the fracture-near the wrist is one of the alleged negligent acts of appellee. This act, with other acts of negligence, it is charged, as we have seen, caused the injuries specifically complained of, as hereinbefore stated, for which damages are sought. The bone was fractured near the wrist, and the elbow was dislocated. Appellee, in all respects, fully discharged his duty, except he failed to reduce the fracture. The appellant did not obey his directions, and refused to allow appellee to subject the injured parts at the proper times to passive treatment, and this contributory negligence on the part of appellant united with the said negligence on the part of appellee in causing the adhesion of the bones to the surrounding parts, the stiffness of the joints and the loss of the use of the arm. In other words, it is not charged that the failure to reduce the fracture is one of the injuries which resulted from his negligence, but this act is charged as the negligence which caused the stiffness of the joints. If the failure of appellee to reduce the fracture had caused the stiffness of the joints, without any negligence of appellant contributing thereto, ap pellee would undoubtedly be liable in damages therefor. The injuries complained of were certainly aggravated by the misconduct of appellant, and therefore appellee, under the authorities, is not liable in damages therefor. Jones v. Angell, supra.\\nThe condition of the arm, the loss of its use, the stiffness of the joints, are the injuries of which it is alleged the negligent acts of the appellee were the proximate cause, and these injuries are shown by the answers to the interrogatories to have been the result, in some degree at least, of contributory negligence on the part of appellant. Jones v. Angell, supra.\\nFor instance, suppose a man fractures the bones in his leg below the knee, and calls a surgeon to treat the injuries, and the surgeon negligently fails to properly reduce one of the fractures, but in all other respects gives proper treatment, and the patient, in disobedience of the directions of the surgeon, negligently removes the bandages used as a part of the proper treatment by the surgeon, or is otherwise guilty of contributory negligence, and such combined negligence of the surgeon and patient unite in producing a shortness and stiffness of the leg, for which injuries an action is brought against the surgeon, can the patient recover? The patient is certainly not responsible in such case for the original negligence of the surgeon in failing to properly reduce the fracture, but this negligence of the surgeon unites with the subsequent contributory negligence of the patient in causing the shortness and stiffness of the leg. Row, it seems clear to us under such circumstances, and the authorities cited, that the patient can not recover for the consequent shortness and stiffness of the leg. When both the surgeon and patient are free from negligence, or where the surgeon and patient are both guilty of negli gence, or where the surgeon is free from fault and the patient is guilty of negligence, no recovery can be had by the patient against the surgeon in any case. It is only where the surgeon is guilty of negligence and the patient is without negligence on his part, contributing in any degree to such injuries, that the patient can recover damages of the surgeon.\\nFiled Nov. 22, 1893.\\nIn this case it appears, as we have seen, that both parties were, in some degree, at least, in fault in producing the injuries in question, and therefore the court below did not err in rendering judgment for appellee.\\nJudgment affirmed.\"}"
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+"{\"id\": \"4737328\", \"name\": \"Chicago and Erie Railroad Company v. Behrens\", \"name_abbreviation\": \"Chicago & Erie Railroad v. Behrens\", \"decision_date\": \"1894-04-06\", \"docket_number\": \"No. 1,106\", \"first_page\": \"575\", \"last_page\": \"578\", \"citations\": \"9 Ind. App. 575\", \"volume\": \"9\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:51:51.362614+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Chicago and Erie Railroad Company v. Behrens.\", \"head_matter\": \"No. 1,106.\\nChicago and Erie Railroad Company v. Behrens.\\nRaileoad. \\u2014 Injured Employe. \\u2014 Liability of Company for Services, etc., Rendered Such Employe. \\u2014 Special Verdict, Sufficiency of. \\u2014 Where a special verdict, in an action against a railroad company to recover for services rendered one of defendant\\u2019s injured employes, was that N. was a regularly appointed physician of the defendant company, and, under the terms of his contract with defendant, was required to do the medical and surgical work of the company in a prescribed territory; that an injured employe of defendant was placed in N.\\u2019s care by defendant\\u2019s conductor; that the character of the employe\\u2019s injuries were such as to require immediate attention when N. was called; that under the directions and at the request of said N., such employe was removed from the car on defendant\\u2019s railroad to plaintiS\\u2019s home, and that the removal was urgent and necessary to enable N. to properly care for the employe; that the services performed and articles furnished by plaintiff, including board, were of the value of \\u00a767.95, and that they wer\\u00e9 performed and furnished at the request of N., with the implied understanding that they should be paid for by the defendant railroad company, \\u2014 such facts do not bring the case within the rule under which railroad companies are liable for services rendered to their injured employes.\\nFrom the Porter Circuit Court.\\nO. Gresham, N. L. Agnew and D. E. Kelly, for appellant.\\nJ. E. Cass, for appellee.\", \"word_count\": \"1028\", \"char_count\": \"5918\", \"text\": \"Davis, C. J.\\nIn the trial court a special verdict was returned, on which judgment was pronounced in favor of appellee.\\nThe correctness of this ruling is brought in review by proper assignments of error in this court.\\nThe material facts found in the special verdict, so far as the question presented for our consideration is concerned, are, that Doctor P. D. Noland was a regularly appointed physician of appellant company, and, that under the terms of his contract, he was required to do the medical and surgical work of the company in a prescribed territory, and to care for the patients while in his charge; that the injured person, Rees Powley, was an employe of appellant, and that the conductor of the train of appellant, which brought Powley to Kouts, called said Noland to look after and attend as a surgeon to the said Powley; that the character of the injuries of said Powley were such as to require immediate attention at the time said Noland was called, and that under the direction and at the request of said Noland said Powley was removed from the car, on appellant's railroad, to the home of appellee, and that such removal was urgent, and was ordered by said Noland for the purpose of enabling him to properly care for and treat the said Powley; that the services performed and articles furnished by appellee, including board, in and about the care and treatment of said Powley, were of the value of $67.95, and that they were so performed and furnished, at the request of Noland, with the implied understanding that they should be paid for by appellant; that, afterwards, appellee wrote and rendered to the superintendent of appellant, F. E. Merrill, a statement of the account, and that no answer was returned to the letter, and that, after-wards, appellant offered to pay the account, provided appellee would render what appellant considered a reasonable bill therefor.\\nIt will be observed that there is no finding that said Powley was injured by appellant, or that he was injured while engaged in the performance of any duty for appellant. There is a finding that he was an employe of appellant, but how or when or in what service he was injured does not appear. Neither is there any finding that said Noland had any authority to bind appellant by any agreement, or that he said or did anything indicating an intention on his part to bind appellant for the payment of any part of the services performed or articles furnished by appellee. On the contrary, there is a finding that Noland was required \\u00a3\\u00a3to care for the patients while in his charge.\\\" If he had any authority to act for appellant, or if he attempted to so act, the facts tending to show such authority in relation to such acts should have been found.\\nIt is not shown that appellant had any notice, until after the entire account was created, that appellee was expecting to hold the company therefor. There is, it is true, a statement in the finding that appellant offered to pay appellee's account on condition that \\u00a3\\u00a3he would render what appellant considered a reasonable bill therefor,\\\" but whether this conditional offer was made by any officer or agent having authority to act for the company, does not appear. When, and the circumstances under which, the offer was made are not shown.\\nThe facts found do not bring the case within any rule heretofore announced by this or the Supreme Court under which railroad companies have been held liable for services rendered employes of railroads, who have been injured while in the discharge of their duties. Toledo, etc., R. R. Co. v. Mylott, 6 Ind. App. 438, 33 N. E. Rep. 135; Cincinnati, etc., R. W. Co. v. Davis, 126 Ind. 99; Evansville, etc., R. R. Co. v. Freeland, 4 Ind. App. 207; Louisville, etc., R. W. Co. v. McVay, 98 Ind. 391; Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358; Terre Haute, etc., R. R. Co. v. Stockwell, 37 Am. and Eng. R. R. Cases, 278; Cincinnati, etc., R. R. Co. v. Davis, 44 Am. and Eng. R. Cases, 459, and notes.\\nOur conclusion is that on the facts, as stated, appellee is not entitled to recover. Mayberry v. Chicago, etc., R. W. Co., 11 Am. and Eng. R. R. Cases, 29; Louisville, etc., R. W. Co. v. Smith, 121 Ind. 353; Terre Haute, etc., R. R. Co. v. Brown, 107 Ind. 336.\\nFiled April 6, 1894.\\nJudgment reversed, with instructions to grant a new trial if moved for by appellee, otherwise to render judgment on verdict for appellant, at costs of appellee.\"}"
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+"{\"id\": \"4818669\", \"name\": \"Metropolitan Life Insurance Company v. McCormick\", \"name_abbreviation\": \"Metropolitan Life Insurance v. McCormick\", \"decision_date\": \"1898-01-12\", \"docket_number\": \"No. 2,162\", \"first_page\": \"49\", \"last_page\": \"57\", \"citations\": \"19 Ind. App. 49\", \"volume\": \"19\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:23:56.974943+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Metropolitan Life Insurance Company v. McCormick.\", \"head_matter\": \"Metropolitan Life Insurance Company v. McCormick.\\n[No. 2,162.\\nFiled January 12, 1898.]\\nComplaint. \\u2014 Tested for First Time on Appeal.\\u2014 Where a complaint omits the statement of a material fact essential to a right of recovery, the question may be raised for the first time on appeal, pp. 50, 51.\\nInsurance. \\u2014 Cancelation of Policies. \\u2014 Remedy.\\u2014Life Insurance.\\u2014 Where a policy of insurance is wrongfully canceled by the insurer the insured may obtain a reinstatement thereof, or maintain an an action for damages, the measure of damages being the cash surrender value of the policy, p. 52.\\nSame. \\u2014 Cancelation of Policy. \\u2014Return of Premium. \\u2014Life Insurance. \\u2014Where a policy of insurance is issued and the risk attaches thereunder, an action cannot be maintained, in the absence of a contract to that effect, for the return of the premium paid. p. 52.\\nSame. \\u2014 Cancelation of Policy. \\u2014 Remedy of Insured. \\u2014 Life Insurance. \\u2014Where a life policy duly issued has been wrongfully canceled by the insurer, the insured may sue and recover the present value of the policy, or he may tender the premiums as they become due and a recovery may be had for the full amount of the policy on the death of the insured, or a proceeding in equity may he maintained to declare the contract valid, pp. 52-57.\\nFrom the Marion Superior Court.\\nReversed.\\nJames A. Pritchard and Chambers, Pickens & Moores, for appellant.\\nG. A. Henry, for appellee.\", \"word_count\": \"2775\", \"char_count\": \"15698\", \"text\": \"Wiley, J.\\n\\u2014 Appellee sued appellant to recover premiums paid on numerous life insurance policies issued to appellee by appellant upon his life, and the liv\\u00e9s of members .of his family. The complaint avers that, beginning in 1891, and up to and including May 22, 1893, appellant issued to appellant eight separate policies, the premiums upon which were payable weekly; that he paid said premiums as they became due, up to July 20,1895, and paid in all $200.00; that on the said 20th of July, 1895, there was due upon all of said policies as premiums, the sum of 99 cents, which said sum was duly tendered to appellant, through its proper officer, at its office in Indianapolis, Indiana, but that appellant refused to accept and credit the same, and has ever since refused, wrongfully and without cause, to receive from appellee the premiums due on' said policies, and declared said policies void, and has lapsed and canceled the -same. It is further averred that appellant still illegally and wrongfully withholds from appellee the amount so paid by' him as premiums upon said policies; that demand has been made upon appellant for the return of all of said premium, and that it has refused to pay the same; and that by reason of the illegal and wrongful forfeiture and cancelation of said policies appellant became, and still is, indebted to appellee in the sum of ,$200.00, as and for money had and received for the use of the appellee, to his damage, etc. The issues were joined by general denial. Trial by the court resulted in a judgment for appellee in the sum of $197.71.\\nIn the court below the sufficiency of the complaint was not challenged by a demurrer, but it is called in question, for the first time on appeal, by the assignment of error that it does not state facts sufficient to constitute a cause of action. It is insisted with great earnestness that the complaint omits the averment of a material and necessary fact, essential to the existence of the cause of action attempted to be stated, and that for such omissidn the complaint is bad, and may be attacked for the first time in the appellate tribunal. The sufficiency of the complaint was not challenged below by a demurrer, but the rule is well settled in this State that, if the complaint omits to state a material fact essential to plaintiff's right of recovery, the question may be raised for the first time on appeal. Smith v. Smith, 106 Ind. 43; Taylor v. Johnson, 113 Ind. 164; Burkhart v. Gladish, 123 Ind. 337.\\nThe material fact which appellant claims was necessary to aver, and essential to appellee's recovery, is that the complaint fails to allege any contract conferring upon appellee the right to recover the premiums paid by him, in full. It is clearly apparent, from the averments of the complaint, that, up to a certain date, appellee paid all premiums on his several policies as they matured. On July 20,1895, when he tendered another payment, and all that was then due, the same was refused, and his policies declared forfeited; and upon these facts he charges in his complaint a cancelation or forfeiture of valid, existing .policies, and seeks to recover the full amount of premiums paid, without averring that his contract of insurance gave him this right. As to whether the policies contain a provision for the return of the premium, in case they are canceled, we are not advised, as a matter of fact, for they are not made parts of the complaint by exhibit, and there is no such averment in the complaint; but, in the absence of such averment and the policies, we must assume that they contain no such provision. Conceding that the fault, if any, of the cancelation of the policies, was appellant's, and that the appellee performed all the conditions of his several contracts, the question pre sents itself, has he sought his proper remedy? It seems to us that this inquiry must be answered in the negative. Here appellee seeks to recover all the money paid as premiums while the policies, as he avers, were valid and in full force. If his policies were wrongfully canceled, then, in law, they are still in force, and he could require them, by proper proceedings, to be reinstated, or he could bring an action for damages; and in such case his measure of damages would be the cash surrender value of his policies. If appellee can recover, upon the theory of his complaint, on what he avers were valid policies, then appellant would be required to carry the several risks, from the time the several policies were issued up to the time of their alleged wrongful cancelation, without compensation. The several policies were issued upon the life of appellee and members of his family. If death had intervened at any time prior to their alleged cancelation, appellant would have been liable, provided appellee had performed all of the conditions of the several contracts on his part. By the issuing of the policies and the payment of the premiums, appellant assumed the risks therein provided against. In other words, the risks had attached, and appellant had assumed them.\\nThere seems to be a well defined distinction between cases where the risk has attached and where it has not attached. In the latter case, all the premiums must be returned, and an action will lie for their recovery. Hawke v. Niagara District, etc., Ins. Co., 23 Grant Ch. (Can.) 139; Jones v. Insurance Co., 90 Tenn. 604, 18 S. W. 260, 25 Am. St. 706; Joliffe v. Madison, etc., Ins. Co., 39 Wis. 111, 117, 20 Am. Rep. 35; Phenix Ins. Co. v. Tomlinson, 125 Ind. 84, 21 Am. St. 203; Tyrie v. Fletcher, Cowp. 668; Stevenson v. Snow, 3 Burr. 1237; Waters v. Allen, 5 Hill (N. Y.) 421; Clark v. Manufacturers' Ins. Co., 2 Woodb. & Minot. (U. S.) 472; Anderson v. Thornton, 8 Exch. 425. This rule is certainly grounded in sound reason. In such case the insurance company has not incurred any risk, and hence is not entitled to any compensation. But where the risk has attached, and the company has assumed liability in case of loss, the rule must be different. It cannot be presumed that an insurance company can assume liability upon one of its policies, and after carrying the risk for a certain period, be required to refund all the premiums paid while, as in this case, as charged, the policies were in full force and valid, and the company refused to accept the payment of another premium when due, and canceled it. In each of the policies issued to appellee by appellant, premiums were paid, and the risks attached. In Waters v. Allen, 5 Hill (N. Y.) 421, it was held that there could be no return of the premium where the policy attached, though only for a single moment. Mr. Bliss says: \\\"Where the policy has been void \\u2022at initio, or in any case, 'where a premium has been paid, but the risk has not been run, whether this has been owing to the fault, pleasure, or will of the assured, or to any other cause, the premium shall be returned by the insurers, but if the risk has once commenced, there shall be no apportionment or return of the premiums afterwards.' \\\" Quoting Lord Mansfield in Tyrie v. Fletcher, Cowp. 668, Bliss on Life Insurance (2d ed.), p. 750, section 415, Mr. May says: \\\"If a policy be void ab initio, or if the risk never attaches, and there is no actual fraud on the part of the insured, and the contract is not against law or good morals, he may recover back all the premiums he may have paid. But if the risk once attaches- the premium is not apportionable.\\\" May on Ins., .section 567. In Clark v. Manufacturers' Ins. Co., 2 Woodb. & Minot, 472, at page 493, the court said: \\\"If it [the policy] once attaches, the premium is not to be restored, however short the time. * .\\n\\\"Certainly not the whole of the premium, and none unless it can be properly divided, and.a part of the risk, as in some sea usages, can be considered as never having been incurred.\\\" In Phenix Ins. Co. v. Tomlinson, 125 Ind. 84, the court by Elliott, J., said: \\\"The moment the risk attached the premium paid was beyond recovery by the insured. His right is correspondent to his burden; he cannot get his money back but he can enforce his contract.\\\"\\nThe complaint \\u00bfvers that \\\"the said defendant still illegally and wrongfully retains and withholds from this plaintiff the aforesaid sum of money paid by him to said defendant as premiums upon said policies of insurance. And demand has been made by the plaintiff for the return to him of all of said premiums by it collected from said plaintiff, yet said defendant refuses and neglects to repay the same.\\\" From the whole complaint it is evident that the theory upon which it is drawn is for the recovery of money paid by appellee to appellant as premiums upon certain insurance policies.\\nIn Continental Life Ins. Co. v. Houser, 111 Ind. 266, which was a second appeal, the court said: \\\"There is no evidence in the record of this cause, as now presented, which proves, or tends to prove, that appellant ever had and received any money, for the use and benefit of appellee, upon any account other than premiums paid upon a valid risk assumed by appellant upon the life of Louise Hesse. Under the law of this case, as declared by this court on the' former appeal herein, such premiums so paid cannot be recovered back from the appellant as for money had and received.\\\"\\nIn Continental Life Ins. Co. v. Houser, 89 Ind. 258, the action was very similar to the one in hand. There an action was brought to recover the premiums paid on a policy of life insurance. The appellee had paid the annual premium for a certain number of years, and when another annual premium became due, appellee went to pay it to appellant's agent at Terre Haute, but was unable to find any one authorized to receive the money, and on failure to pay, the policy was declared forfeited. The court by Elliott, J., said; \\\"It is not easy to determine upon what theory the paragraph [fourth paragraph of complaint] is constructed, but counsel on both sides treat it as a complaint for the recovery of the premiums paid by the appellee. We do not think the paragraph good for any purpose or upon any theory.\\n\\\"There is no averment of performance of the conditions of the contract on the part of the assured; nor, indeed, is there any statement of the terms or conditions of the contract. For anything that appears, the appellant may have had an undoubted right to forfeit the policy. Where a plaintiff grounds a right of action upon a breach of such a contract, he must show performance on his part and a wrongful refusal or failure to perform on the part of his adversary. It is not enough to show nonperformance, for there may be nonperformance without a breach. In order to make a good complaint in such an action as this, the plaintiff must show the terms and conditions of the contract, performance on his part, and a failure or refusal to perform on the part of the other party, constituting a breach of the contract. There is nothing in the complaint before us showing that the refusal to perform was not fully justified by the terms of the policy.\\n\\\"The policy was valid in its inception, and there was for a time a risk, and the general rule is that where the risk attaches premiums cannot be recovered from the company. Bliss Life Ins. 750; May Ins. 567. If there was a continuing valid risk up to the time the last premium was tendered and refused, then the premiums previously paid cannot be recovered. May Ins., sections 568 and 569. If, however, the act of the appellant in declaring a forfeiture was wrongful, then there must be a remedy. We do not feel called upon to decide whether the remedy would be a reinstatement of the policy or an action for its value, for the complaint is insufficient in any view that may be taken of the question.\\\"\\nIn line with the case from which we have just quoted is Day v. Connecticut, etc., Ins. Co., 45 Conn. 480. In Continental Life Ins. Co. v. Houser, supra, the court suggests, but does not assume to decide, that the appellee might have had some other remedy. That the appellee in this case has a remedy, if he has been wronged by appellant's acts, and he has performed all the conditions of the contract of insurance on his part, there can be no doubt.\\nWhere a life policy has been duly issued, and is wrongfully canceled by the insurer, the insured may sue and recover for the present value of the policy, or he may tender the premiums as they became due, and recover the full amount of the policy on the death of the insured, or he may proceed in equity, and have a decree sustaining and declaring valid the contract of insurance. Day v. Connecticut, etc., Ins. Co., supra; Brooklyn, etc., Ins. Co. v. Week, 9 Ill. App. 358; Clemmitt v. New York Life Ins. Co., 76 Va. 355.\\nIn Standley v. Northwestern, etc., Ins. Co., 95 Ind. 254, the court said: \\\"If a policy is valid in its inception, then the company cannot be required to refund the premiums received, although it may subsequently wrongfully attempt to declare a forfeiture.\\\" We might cite numerous other cases from many of the states, in harmony with the rule above announced, but it seems useless to do so. We do not lose sight of the fact that in some of the states a different rule prevails, but the great weight of the authorities are in consonance with the cases above cited. Here there is no averment that appellee performed all of the conditions of the several policies issued to him by appellant. The complaint avers that said policies provided for certain premiums to be paid weekly, and this is the only condition which he says he performed. There may have been, and doubtless were numerous conditions to be performed by him. As was said in Continental Life Ins. Co. v. Houser, supra, to make his complaint good'it was necessary for him to aver the terms and conditions of his contract, that he performed all of the terms on his part, and that appellant failed or refused to perform all the conditions on its part, such failure or refusal constituting a breach of the contracts.\\nThe complaint, in our judgment, does not state facts sufficient to constitute a cause of action. The record presents, and counsel have argued other questions; but as the complaint does not state a cause of action, it is unnecessary for us to consider them. Judgment reversed.\"}"
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+"{\"id\": \"4861959\", \"name\": \"Board of Commissioners of Morgan County v. The First National Bank of Martinsville, Indiana\", \"name_abbreviation\": \"Board of Commissioners v. First National Bank\", \"decision_date\": \"1900-06-19\", \"docket_number\": \"No. 3,101\", \"first_page\": \"94\", \"last_page\": \"99\", \"citations\": \"25 Ind. App. 94\", \"volume\": \"25\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:37:15.179493+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Board of Commissioners of Morgan County v. The First National Bank of Martinsville, Indiana.\", \"head_matter\": \"Board of Commissioners of Morgan County v. The First National Bank of Martinsville, Indiana.\\n[No. 3,101.\\nFiled June 19, 1900.]\\nTaxation.\\u2014National Sanies.\\u2014A national bank cannot recover taxes paid by it on its real estate because the value thereof was not deducted from the valuation of the capital stock of the bank as required by \\u00a78471 Burns 1894, since the wrong, if any, was the overvaluation of the capital stock, which affected the individual stockholders, and not the assessment of the real estate as such to the bank.\\nFrom the Morgan Circuit Court.\\nReversed.\\nW. L. Taylor, Attorney-General, W. R. Harrison and Rowland Evans, for appellant.\\nW. S. Shirley, M. H. Parles and Oscar Matthews, for appellee.\", \"word_count\": \"1565\", \"char_count\": \"9062\", \"text\": \"Robinson, C. J.\\n\\u2014Appellee recovered a judgment for taxes, which it was claimed had been wrongfully and illegally assessed and paid. The questions discussed are that the finding and judgment are contrary to the evidence and law, and are not sustained by sufficient evidence.\\nThe taxes claimed to have been illegally assessed and collected from appellee were upon land in Green township, Morgan county. Appellee bank is located and does business in Martinsville, in Washington township, Morgan county.\\nAll property within the jurisdiction of this State is subject to taxation unless expressly exempted. ISTo claim is made that the property in question was exempt from taxation.\\nIn an action, under \\u00a77915-7917 Burns 1894, to recover taxes alleged to have been wrongfully and illegally assessed, ic must be made to appear that the assessment was not only irregular and unauthorized but that the property was not justly subject to the assessment. Durham, v. Board, etc., 95 Ind. 182; Board, etc., v. Armstrong, 91 Ind. 528; Board, etc., v. Murphy, 100 Ind. 570; Hilgenberg v. Board, etc., 107 Ind. 494.\\nThe sections of the statute (Burns 1894) applicable to the questions presented are the following:\\nSection 8470. \\\"The shares of capital stock in any bank located within this State, whether organized under the laws of this State or of the United States, shall be assessed to the owner thereof in the township, city or town, where such bank or banking association is located and shall be taxed at the same rate as other personal property in the same locality is taxed, and with reference to its value on the first day of April of the current year.\\\"\\nSection 8471. \\\"The president, cashier or other accounting officer of such bank, or banking association, shall between the first day of April and the first day of June of each year make out a statement, under oath, in duplicate, showing the number of shares comprising the capital stock of such bank, the name and residence of each stockholder', with the number of shares owned by such stockholder in such bank, and shall affix what he deems the true cash value of each of said shares, and also, the true cash value of the entire capital stock of such bank, or banking association, on the first day of April, and shall deliver one of such statements to the assessor in the township wherein such bank or banking association is located, and the other to the county auditor and such capital stock shall thereupon be listed and assessed by the assessor, and return thereof made in all respects the same as similar property belonging to other corporations and individuals. And whenever any such bank shall have acquired real estate or other tangible property the assessed value of . such real estate or tangible property shall be deducted from the valuation of the capital stock of such bank.\\\"\\nSection 8A73. \\\"The county auditor shall enter the valuation of such capital stock on the tax-duplicate of the current year and shall compute and extend taxes thereon the same as against the valuation of other property in the same township, town or city.\\\"\\nSection 8421. \\\"All personal property shall be assessed to the owner in the township, town or city of which he is an inhabitant on the first day of April of the year for which the assessment is made, with the following exceptions: Third. All shares in banks shall be assessed to their owners in the city or town where the bank is located.\\\"\\nSection 8460. \\\"Every person required by this act to make or deliver such statement or schedule shall set forth an account of the property held or owned by him, as follows: * -x- * Personal property\\u2014chattels. First. All shares in banks organized in this State under any law of this State, or of the United States, and their full market value, after deducting the value of the real estate as taxed to the banks.\\\"\\nSection 8431. \\\"Real property shall be assessed in the place where situated, and to the owner, if known; if not, then to the occupant, if any; and if there be no occupant, then as unknown.\\\"\\nSection 8411. \\\"Eor the purpose of taxation, real property shall include all lands within this State, and all buildings and fixtures thereon and appurtenances thereto, except in cases otherwise expressly provided by law; personal property shall include all shares in banks organized in this State under any law of the United States, but in estimating the value of such shares, deduction shall be made of the value of all real estate taxed to the bank.\\\"\\nSection 5219, U. S. E. S. provides: \\\"Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the state within which the association is located; but the legislature of each state may determine and direct the manner and place of taxing all the shares of national banking associations located within the state, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association owned by non-residents of any state shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county or municipal taxes, to the same extent, according to its value, as other real property is taxed.\\\"\\nWithout the section last quoted or some similar authority from Congress, shares of national bank stock could not be taxed by state authority. But by this provision shares of stock are taxable by the state, subject only to the restrictions therein named, and the bank's real estate may be taxed as other real estate.\\nIt is manifest from the above statutory provisions that the legislative intent was not to include real estate in the valuation of the capital stock of a national bank and thus exempt such real estate from taxation- as such. If, for the purposes of taxation, real estate could be included in the valuation of the capital stock of the hank and is located in a different township, town or city from that of the hank's location, it would follow that real estate might thus be transferred for taxation from one municipality to another. But it is clear that such was not the intention. It is plainly intended, and is so provided, that real estate shall be assessed, as such in the township, town or city where located.\\nDuring the period covered by the judgment the shares of stock of the bank were assessed to the individual stockholders at par, and the tax was paid by the individual stockholders. The par value of the bank's stock was $70, 000, which included the land in question. During this time the bank itself also paid taxes on the land assessed in the township of its location and these taxes so paid are the taxes appellee seeks to have refunded in this suit. The question then is, were these taxes wrongfully assessed ?\\nIn estimating the value of the stock for taxation the value of the real estate should have been deducted as directed by the statute. This was not done, and the taxes paid by the stockholders included taxes on the land. The land was properly assessed to the bank and in the township where located, and the bank paid the taxes. These taxes were not wrongfully and illegally assessed. They were properly assessed. There was double taxation, but that portion which was wrongful and illegal was what the stockholders at the place where the bank is located paid on the land, not what the bank paid. If it be the fact that the land was included in the valuation of the capital stock and the stockholders paid taxes upon the basis of such valuation, then the amount paid by each stockholder in excess of what his taxes would have been upon a valuation excluding the real estate was wrongfully and illegally assessed. But, as disclosed by this record, the only taxes sought to be recovered were properly assessed. The land was taxable as such and was properly assessed to the bank in the place where the land is located. If a wrong was clone it was the overvaluation of the capital stock, and not the assessment of the real estate as such to the bank. Loftin v. Citizens Nat. Bank, 85 Ind. 341.\\nJudgment reversed.\"}"
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+"{\"id\": \"4908731\", \"name\": \"Spears, Administratrix, v. The Estate of James W. Thompson, Deceased\", \"name_abbreviation\": \"Spears v. Estate of Thompson\", \"decision_date\": \"1903-01-08\", \"docket_number\": \"No. 4,219\", \"first_page\": \"267\", \"last_page\": \"268\", \"citations\": \"30 Ind. App. 267\", \"volume\": \"30\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:22:05.569447+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Spears, Administratrix, v. The Estate of James W. Thompson, Deceased.\", \"head_matter\": \"Spears, Administratrix, v. The Estate of James W. Thompson, Deceased.\\n[No. 4,219.\\nFiled January 8, 1903.]\\nBills and Notes. \\u2014 Liability of Indorser. \\u2014 Diligence.\\u2014Under \\u00a77518 Burns 1901, an indorsee of a note may recover from an indorser only when he shows due diligence on his part to collect the note at maturity from the maker, p. 268.\\nSame. \\u2014 Action Against Indorser. \\u2014 Complaint.\\u2014In an action by an indorsee against an indorser of a promissory note, a complaint which shows on its face that the suit was brought long after the note was due is not rendered good on demurrer by an allegation that the maker was insolvent at the time the suit was brought, p. 268.\\nErom Hendricks Circuit Court; T. J. Cofer, Judge.\\nAction by Mary A. Spears, administratrix of the estate of \\\"Willis Spears, deceased, against the estate of James \\\"W. Thompson, deceased. Erom a judgment for defendant, plaintiff appeals..\\nAffirmed.\\nG. W. Brill and G. G. Harvey, for appellant.\\nJE. G. Hogate and J. L. Clark, for appellee.\", \"word_count\": \"387\", \"char_count\": \"2293\", \"text\": \"Roby, C. J.\\nAction against the indorser by the indorsee of a promissory note negotiable by statute. The instrument was dated December 30, 1882, and was due in thirty-six months after date. The action was begun by filing a claim against the estate on Eebruary 1, 1901. The amended complaint was in three paragraphs, to each of which a demurrer for want of facts was sustained. \\u2022 The first paragraph consisted of a copy of the note and its indorsements. The second contained an allegation that the maker \\\"Is totally, wholly, and notoriously insolvent, and for that reason this action is brought against the estate of said James W. Thompson, deceased.\\\" The third paragraph duplicates the allegation quoted, adding a further one to the effect that the maker paid $30 to appellant's decedent, who, in consideration thereof extended the time of payment.\\nIt is essential in actions of this character -that the indorsee show dne diligence on his part to collect the note at maturity from the maker. \\u00a71518 Burns 1901. The maker might have been entirely solvent when the note in question became due, and might have so remained for many years, for anything that is shown. The extension of time alleged is entirely inconsistent with the exercise of diligence in attempting to collect.\\nJudgment affirmed.\"}"
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+"{\"id\": \"5023370\", \"name\": \"Southern Railway Company et al. v. McNeeley\", \"name_abbreviation\": \"Southern Railway Co. v. McNeeley\", \"decision_date\": \"1909-06-10\", \"docket_number\": \"No. 6,622\", \"first_page\": \"126\", \"last_page\": \"140\", \"citations\": \"44 Ind. App. 126\", \"volume\": \"44\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:04:20.326083+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hadley, C. J., and Watson, J., concur.\", \"parties\": \"Southern Railway Company et al. v. McNeeley.\", \"head_matter\": \"Southern Railway Company et al. v. McNeeley.\\n[No. 6,622.\\nFiled June 10, 1909.]\\n1. Pleading.\\u2014 Complaint\\u2014 Railroads.\\u2014 Wilful Injury.\\u2014 A complaint alleging that defendant railroad company and certain of its servants \\u201cwilfully\\u201d did certain acts causing injuries to the plaintiff, without alleging that defendants \\u201cintended wilfully and purposely to inflict the injury complained of,\\u201d is bad on demurrer, amounting merely to a charge of ordinary negligence, pp. 127, 138, 139.\\n2. Trial. \\u2014 Procedure.\\u2014Pleading.\\u2014Foreign Decisions and Laws \\u2014 Extraterritorial Effect. \\u2014 The statutes and decisions of a foreign state relative to pleading, proof, and other matters of procedure have no extraterritorial effect, the laws and decisions of the state in which the trial is held governing in such matters, p. 135.\\nFrom Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.\\nAction by E. Bert McNeeley against the Southern Railway Company and others. From a judgment for plaintiff, defendants appeal.\\nReversed.\\nAlexander P. Humphrey, Edward P. Humphrey, John D. Welman, C. A. DeBruler and G. R. DeBruler, for appellants.\\nThomas W. Lindsey, W. M. Wheeler and R. E. Roberts, for appellee.\", \"word_count\": \"4899\", \"char_count\": \"28572\", \"text\": \"Roby, P. J.\\nAction by appellee against the Southern Railway Company and others for damages sustained by him in the collision of two passenger-trains, upon one of which he was riding.\\nThe complaint is in two paragraphs, demurrers to each of which were overruled. The cause was tried by a jury. At the conclusion of the evidence the judge gave a peremptory instruction to find for the defendants upon the first paragraph of complaint, and the correctness of such action is challenged by a cross-assignment of error. The court also instructed the jury to return a verdict upon the second paragraph of the complaint in favor of the defendant Evans, and submitted the case to them as to the Southern Railway Company, William H. Beatty and James Buchanan, against whom a verdict of $2,000 was returned and judgment was rendered thereon.\\nThe first question for decision is whether the court erred in overruling the separate demurrers of said defendants to the second paragraph of complaint. This pleading is so long, and the facts stated are so involved and connected, that a summary thereof must necessarily contain many omissions.\\nIt is alleged that the appellant railway company, on December 25, 1904, owned and operated a single-track railroad, over which it ran two certain passenger-trains, known as No. 1 and No. 2; that No. 1 left St. Louis at 10:10 o'clock p. m. of said day, and No. 2 left Louisville at 10:15 o'clock p. m. of said day; that the regular meeting place of said trains was at Belmont, Illinois, a point intermediate between the cities named; that No. 1 had the right of way, and it was the duty of No. 2 to take the siding when they met; that the defendant Evans was in the service of said railway company as its train dispatcher, controlling and directing the movement of said trains; that the defendants Beatty and Buchanan were respectively engineer and conductor in charge of train No. 1; that Brown's Crossing was a station on said line in charge of a telegraph operator, and at that point there was a semaphore operated by him; that the appellee was a passenger on No. 2, but had, at the time of the collision hereafter referred to, left the place in the coach pro vided for passengers, and was, with the consent of the engineer and conductor, riding upon the locomotive engine which drew said train. The different duties of the employes named, their full knowledge of the facts, and other averments of a general nature, are scattered throughout the pleading. It is alleged that said train dispatcher changed the meeting place of said trains, and directed both trains to run thirty minutes late between Brown's Crossing and Princeton, Indiana; that No. 2, as he knew, was more than thirty minutes late at that time; that it was his duty to deliver the meeting order first to the train having the right of way, but that he delivered said order to train No. 2, and did not notify those in charge of train No. 1 thereof, by reason of which the two trains, one running at forty and one at sixty miles an hour, met in a head-on collision in which plaintiff suffered the injuries complained of; that the act of the train dispatcher in causing said trains to meet was wilfully and purposely done; that the telegraph operator at Brown's Crossing knew that No. 2 was running past the scheduled place of meeting before No. 1 reached his said station; that it was his duty to notify the persons in charge of No. 1 of such fact, and to hold said train at said station, but that he set the semaphore to show a clear track, and told the conductor of the train that everything was all right for said train to proceed; that it was the duty of said operator to report to Mt. Carmel, Illinois, the passage of train No. 1, but that he wilfully and purposely violated the rule requiring him to make such report ; that he wilfully and purposely signaled said train, and gave the information to the conductor aforesaid; that it was the duty, under the rules of the company, of said Beatty and Buchanan, in charge of train No. 1, to wait three minutes at Belmont, the original meeting place, and three minutes at Maud Station, a station seven and two-tenths miles distant from Brown's Crossing, but that they wilfully and purposely ignored said rule, and the collision took place one-half mile east of Maud Station. This paragraph of com plaint covers sixteen printed pages of appellant's brief, and the synopsis herein made is, as before stated, necessarily incomplete.\\nA wilful injury involves a deliberate purpose not to discharge some duty necessary to the safety of a person or property of another, which duty the person owing it has assumed by contract, or which is imposed upon him by operation of law. 1 Thompson, Negligence (2d ed.), \\u00a720; Terre Haute, etc., R. Co. v. Graham (1884), 95 Ind. 286, 48 Am. Rep. 719. It is differentiated from negligence, by the fact that the latter arises from inattention or thoughtlessness, while the former cannot exist without purpose or design. Pittsburgh, etc., R. Co. v. Ferrell (1907), 39 Ind. App. 515, and authorities cited on page 534.\\nThe complaint, to be sufficient, must charge that the injurious act was purposely and intentionally committed. As a matter of principle this should be sufficient; but it was first stated in Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, that it is \\\"necessary to charge in a complaint which seeks redress for a wilful injury, that the injurious act was purposely and intentionally committed with the intent wilfully and purposely to inflict the injury complained of.\\\" The cases have quite uniformly adopted the rule before stated, and as a matter of pleading it may be regarded as \\\"established law\\\" that the complaint should contain such averment. Pittsburgh, etc., R. Co. v. Ferrell, supra, and cases cited on page 529. Whatever confusion has arisen with regard to the subject is attributable to a failure to differentiate between the formal averment necessary to a charge of wilful injury, and the facts by which such averment may be supported.\\nIt is important to understand what is meant in the use of the words \\\"wilful,\\\" or \\\"wilfully,\\\" as used in the complaint. It is \\\"the quality of being wilful; obstinacy; stubbornness ; perverseness; voluntariness. ' ' Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571. It was said in In re Young & Harston's Contract (1885), 31 Ch. Div. 168, that wilful \\\"is a word of familiar use in every branch of law, and although in some brhhches of the law it may have a special meaning, it generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has be\\u00e9h done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent.\\\" We quote the following from Fuller v. Chicago, etc., R. Co. (1871), 31 Iowa 187: \\\"It is said by defendant's counsel that the word 'wilfully' implies the idea of malice of a mild kind, an evil intent without excuse. Such may be its meaning in indictments and criminal statutes. But it is not to be so understood here. The word means ' obstinately, stubbornly; with design; with a set purpose, ' and this definition must be applied to it where it occurs in the statute under consideration.\\\" Pittsburgh, etc., R. Co. v. Ferrell, supra, pages 525, 526; Bishop, Crim. Law (3d ed.), 420.\\nProof that a wrong act was purposely done charges the doer with the intention to produce the natural consequences of such act. This doctrine is most frequently invoked in criminal law.\\n\\\"Every act producing an unintended result must, when evil, be measured either by the intent or the result. The common-law rule measures it substantially by the latter, holding the person guilty of the thing done where there is any kind of legal wrong in the intent, the same as though specifically intended.\\\" Bishop, Crim. Law (3d ed.), 411.\\n\\\"The evil of the intent and the evil of the act added together constitute the evil punished as crime. The only peculiarity of the doctrine is in its teaching that the intent and act which constitute the sum need not be the natural or usual accompaniment of each other provided they did not in fact accompany each other in the particular case.\\\" Bishop, Crim. Law (3d ed.), 414..\\nThe supreme court of Massachusetts, applying this doctrine in a civil suit for personal injury averred to have been wilfully caused, said in Aiken v. Holyoke St. R. Co. (1903), 184 Mass. 269, 68 N. E. 238: \\\"The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes to the offender, and in this way a charge which otherwise would be mere negligence, becomes, by reason of a reckless disregard of probable consequences, a wilful wrong. That this constructive intention to do an injury, in such cases will be imputed in the absence of an actual intent to harm a particular person, is recognized as an elementary principle in criminal law. It is also recognized in civil actions for recklessly and wantonly injurying others by carelessness. ' '\\nIn Palmer v. Chicago, etc., R. Co. (1887), 112 Ind. 250, 255-257, it is said: \\\"The authorities, from the earliest years of the common law, recognize the rule that there may be a wilful wrong without a direct design to do harm. This principle has been applied to furious driving, to collisions between vessels, to the taking of unruly animals into crowds, to carelessly laying out poison for rats, to want of caution toward drunken persons and to the careless casting of logs and the like upon highways. 1 Hale, Pleas of the Crown (1st Am. ed.), 475, and authorities n. 4; 4 Blackstone's Comm., 182. Doctor Wharton gives full recognition to this principle and shows its application to railroads. Wharton, Homicide, \\u00a780, 87, 94, 155. Mr. Bishop very fully and ably discusses the question and cites many authorities. In the course of his discussion he says: ' There is little distinction, except in degree, between a positive will to do wrong and an indifference whether wrong is done or not. Therefore carelessness is criminal; and, within limits, supplies the place of the direct criminal intent.' 1 Bishop, Crim. Law [7th ed.], \\u00a7313. In another place this author says: 'If a man neglects obvious means to learn what will be the probable consequences of his act, and so proceeds rashly, the doctrine of carelessness already discussed applies to the case, and he is not excused.' 1 Bishop, Crim. Law [7th ed.], \\u00a7324. These authorities declare and illustrate a fundamental principle of the criminal law, long established, and long maintained without dissent, and we cannot affirm that where the question is one of mere civil liability a more lenient rule prevails in favor of the wrongdoer. Nor do the decided cases justify the conclusion that a more favorable rule prevails in civil eases. Judge Cooley thus states the general rule: ' Where the conduct of the defendant is wanton and wilful, or where it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts irrespective of the fault which placed the plaintiff in the-way of such injury. The fact that one has carelessly put himself in a place of danger is never an ^ excuse for another's purposely or recklessly injuring him. Even the criminal is not out of the protection of the law.' Cooley, Torts [2d ed.], *674. Mr. Beach says: 'It is a general rule that when the defendant's negligence is wilful, contributory negligence is not a defense, and, accordingly, it is held that a mere technical trespass is not such an offense as to deprive the trespasser of his right to recover damages for an injury which he suffers through the wilful negligence of another.' Beach, Contrib. Neg., 53.\\\" See Pittsburgh, etc., R. Co. v. Ferrell, supra. There can be no case conceived where the defendant is guilty of murder or manslaughter that he would not also be civilly liable. It is not, however, necessary that one commit a crime in order to become liable for wilfulness. The act or omission out of which such liability arises need only be quasi criminal. A quasi crime is an offense not constituting a crime or misdemeanor at law, but which is in the nature of a crime.\\n\\\"A class of offenses against the public which have not been declared crimes, but wrongs against the general or local public which it is proper should be repressed or punished by forfeitures and penalties.\\\" Bouvier's Law Diet., title, Quasi Crimes. It therefore may be sufficient to justify an inference and finding of an intention to cause the injury that followed a wrongful act, when it is found that such act was purposely done; and to support a charge that such act was purposely and wilfully done it is not necessary to show in a civil action, such as the one at bar, that the act or omission was done or omitted with premeditation or malice.\\nIn the early ease of LaFayette, etc., R. Co. v. Adams (1866), 26 Ind. 76, 78, 79, it was said by Judge Frazer that \\\"it is well settled that where the negligence of the defendant is so gross as to imply a disregard of consequences, or a willingness to inflict the injury, the plaintiff may recover though he be a trespasser, or did not use ordinary care to avoid the injury. Eeeklessness in the management of the train is such gross negligence as is utterly regardless of consequences.\\\" Pittsburgh, etc., R. Co. v. Ferrell, supra. The doctrine thus clearly expressed has never been doubted nor denied. Judge Mitchell later said, in Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51, 53: \\\"To constitute a wilful injury, the act which produced it must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of.\\\" The same substantial declaration is contained in the following cases: Belt R., etc., Co. v. Mann (1886), 107 Ind. 89, 93; Pennsylvania Co. v. Sinclair (1878), 62 Ind. 301, 306, 30 Am. Rep. 185; Palmer v. Chicago, etc., R. Co. (1887), 112 Ind. 250; Louisville, etc., R. Co. v. Ader (1887), 110 Ind. 376, 380; Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 23 L. R. A. 552; Conner v. Citizens St. R. Co. (1896), 146 Ind. 430, 435; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490; Cincinnati, etc., R. Co. v. Cooper (1889), 120 Ind. 469, 474, 6 L. R. A. 241, 16 Am. St. 334; Brannen v. Kokomo, etc., Gravel Road Co. (1888), 115 Ind. 115, 7 Am. St. 411; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 387; Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62; Union Traction Co. v. Lowe (1903), 31 Ind. App. 336; Overton v. Indiana, etc., R. Co. (1891), 1 Ind. App. 436; Barr v. Chicago, etc., R. Co. (1894), 10 Ind. App. 433, 436; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571; Pittsburgh, etc., R. Co. v. Judd (1894), 10 Ind. App. 213, 222; Louisville, etc., R. Co. v. Cronbach (1895), 12 Ind. App. 666, 673; Miller v. Miller (1897), 17 Ind. App. 605; Hancock v. Lake Erie, etc., R. Co. (1898), 21 Ind. App. 10; Indianapolis, etc., R. Co. v. Petty (1868), 30 Ind. 261; Carter v. Louisville, etc., R. Co. (1884), 98 Ind. 552, 556.\\nOne charge contained in the complaint is, in substance, that appellant railway company's train dispatcher ordered two of its trains, one running at sixty miles an hour and the other at forty miles an hour, to pass over the same track in opposite directions at the same time. Such an order might have been negligently given and it might have been wilfully given. The pleader avers that it was wilful. The demurrer admits the averment to be true. It is also alleged that a station agent, who knew the facts, and whose duty it was to notify those in charge of train No. 1, wilfully withheld information thereof from them, and signalled theip forward, to collision. It is alleged that the engineer and conductor disregarded established rules, by an observance of -which the collision might have been averted. It is also alleged that they acted wilfully and intentionally therein. All of these facts are admitted by the demurrer. The averments of the pleading show that the acts complained of were done and omitted by the train dispatcher while within the line of his emplosnuent, bringing the case within the proposition that \\\"a corporation is responsible for the acts of an agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was wilful and was not directly authorized. ' ' Pennsylvania Co. v. Weddle (1885), 100 Ind. 138, 140.\\nThe pleading does not contain an averment to the effect that the defendant \\\"intended wilfully and purposely to inflict the injury complained of. ' ' In lieu thereof it is set up that the accident occurred in the state of Illinois, and that by the law of that state, as declared by the decisions of its courts, such averment is not necessary, the evident idea being that the Illinois decisions govern. In this the plaintiff is mistaken. Smith v. Wabash R. Co. (1895), 141 Ind. 92. This conclusion results in the reversal of the cause. The statute contains a provision as follows: \\\"But the court shall not reverse the proceedings any further than to include the first error.\\\" \\u00a7703 Burns 1908, \\u00a7661 R. S. 1881. This implies a duty to reverse on the first error. The plaintiff went to trial upon a complaint in two paragraphs. The first paragraph is admittedly good, but at the conclusion of the evidence the court directed a verdict for the defendant. Had a demurrer been sustained to this paragraph and cross-errors assigned, it would be necessary to consider the sufficiency of the pleading, but it is not necessary to take up the sufficiency of the evidence at this time, a reversal being already determined. If the appellee chooses to amend the second paragraph and the cause is retried, he will be entitled to the benefit of whatever evi dence he may produce tending to sustain the allegations of the first paragraph, and upon that evidence a final judgment will be rendered. To discuss the legal propositions, which it is claimed arose upon the eyidence adduced at the last trial, is useless, since the conclusions reached do not become the law of the ease, except when the evidence on the second trial is substantially identical. Gipe v. Pittsburgh, etc., R. Co. (1908), 41 Ind. App. 156; Buehner Chair Co. v. Feulner (1905), 164 Ind. 368; Midland Steel Co. v. Citizens Nat. Bank (1904), 34 Ind. App. 107; Thuis v. City of Vincennes (1905), 35 Ind. App. 350.\\nThese questions of law are close and difficult. Whether one who holds a ticket between two points and takes passage upon a passenger-train ceases to be a passenger by reason of being upon the engine; whether he is guilty of contributory negligence as a matter of law; whether the question is for the jury upon the facts; whether he is wholly exonerated by the conditions \\u2014 are propositions upon which no opinion is expressed. Loose expression creates only confusion, and is to the detriment of all the parties and the public; therefore the sole question decided is that the second paragraph of complaint was subject to demurrer, for the reasons stated.\\nHadley, C. J., and Watson, J., concur.\\nComstock, J. \\u2014 Appellee brought this action against the appellants to recover damages alleged to have been sustained by the collision of two passenger-trains, upon one of which appellee was riding.\\nThe complaint is in two paragraphs. The first alleged that the plaintiff was a passenger for hire, and that the defendants negligently ran said passenger-trains together. The second alleged that the plaintiff was riding in the cab of the locomotive engine with the knowledge of the engineer and conductor, and attempted to allege that the defendants wilfully and purposely injured the plaintiff by running said passenger-trains together. The averments in each paragraph are substantially the same, except that in the first paragraph the acts and omissions are charged as negligent, while in the second they are meant to be charged as wilful.\\nThe facts as shown by the pleadings and the evidence are as follows: Defendant railroad company was the owner and operator of a single-track railroad from Louisville, Kentucky, to St. Louis, Missouri. Said road passed through the cities of Princeton, Indiana, and Mt. Carmel, Maud Station, Belmont, Brown's Crossing and Fairfield, Illinois. Said defendant maintained telegraph offices at each of said points, and with the exception of Belmont 'and Maud Station, which were day offices, said telegraph offices were kept open day and night. As a part of its transportation system it operated between the aforesaid termini, at and prior to the time of the injury, two daily passenger-trains\\u2014 No. 1, an east-bound train, and No. 2, a west-bound train. Belmont, Illinois, was the regular meeting place for said trains as fixed by defendant's time-tables, and they were due to meet at said point at 2:42 o'clock a. m. It was the duty of the telegraph operators to deliver to the conductor and engineer of trains, orders issued by the train dispatcher, and it was the duty of such operators to indicate by semaphore signals whether they had any orders for an incoming train. At the time the plaintiff received his injuries, the defendant Evans was in the employ of the defendant railway company as train dispatcher at Princeton, Indiana, and had charge and control of the movement and operation of all trains on said company's line between Princeton, Indiana, and St. Louis, Missouri. On the morning in question the defendant Evans discovered that said trains were behind time, and issued an order \\u2014 No. 5 \\u2014 to both of said trains to run thirty minutes late, . which order was delivered to them. Afterwards he issued a second order \\u2014 No. 6 \\u2014 which was transmitted to the operator of the defendant company at Brown's Crossing, Illinois, for the defendants Beatty and Buchanan, conductor and engineer in charge of train No. 1, and to the operator at Princeton, Indiana, for the train crew in charge of train No. 2, directing said trains to meet and pass at Maud Station, Illinois. Order No. 6 was delivered to the crew in charge of train No. 2, but the operator at Brown's Crossing did not deliver said order to Beatty and Buchanan, in charge of train No. 1, a superior train of the same class, and who, without any knowledge of the change of meeting place proceeded under order No. 5, until at a point a short distance east of Maud Station the two trains collided, causing the injuries complained of.\\nA trial 'was had by jury, and, upon instructions by the court, the jury found in favor of all the defendants on the first paragraph, and rendered a verdict against the appellants Southern Railway Company, Beatty and Buchanan upon the second paragraph of complaint.\\nThe first error assigned challenges the sufficiency of the second paragraph of complaint.\\n1. The second paragraph of the complaint is framed upon the theory of wilful injury. It alleges that the collision was caused by the wilful neglect of duty of the defendants William H. Beatty, James Buchanan and Guy G. Evans, and by the wilful neglect of the telegraph operator of the defendant company at its Brown's Crossing office.\\nEach act is attempted to be characterized as wilful, by placing the words \\\"wilfully, purposely and wantonly\\\" preceding the omission or act. Evans is charged with wilfully violating the rule of the company in not delivering the meeting order to train No. 1 at Fairfield. Again he is charged with wilfully or purposely neglecting to hold train No. 2 at Mt. Carmel. The operator at Brown's Crossing is charged with wilfully and purposely changing the signal from red to white. Beatty and Buchanan are charged with wilfully and purposely failing to observe their order to run thirty minutes late.\\nThe terms \\\"wilfully and purposely\\\" are applied to said omissions or acts of some of the defendants, which acts or omissions in themselves are negligent. The various allegations against the several defendants amount to no more than the allegation of negligence. To be good as a complaint for wilful injury, it should show by some consistent form of averment that the injurious act was purposely done, with the intent on the part of the doer to inflict wilfully and purposely a particular injury of which complaint is made. Wilfulness is a desire or intent to produce a certain result. Pittsburgh, etc., R. Co. v. Ferrell (1907), 39 Ind. App. 515, 517, and cases cited. Wilfulness and negligence are held inconsistent. Purpose or design is foreign to negligence. Parker v. Pennsylvania Co. (1893), 134 Ind. 673.\\nWhere a negligent act is attempted to be characterized as wilful, by placing the words \\\"wilfully, purposely or wantonly\\\" before the omission or act and such acts or omissions are in themselves mere negligence, such charge is inconsistent with itself, and the use of such words adds nothing to the charge. Cleveland, etc., R. Co. v. Asbury (1889), 120 Ind. 289; Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398, 402, 403, and cases cited; Louisville, etc., R. Co. v. Schmidt (1886), 106 Ind. 73; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571; Hancock v. Lake Erie, etc., R. Co. (1898), 21 Ind. App. 10; Miller v. Miller (1897), 17 Ind. App. 605.\\nIt is also insisted that said paragraph is deficient for additional reasons. These it is not necessary to consider.\\nThe complaint avers that the common law prevailed in Illinois at the time plaintiff received his injuries, and, in effect, avers that, under the decisions of the supreme court of Illinois, presumptions from certain acts of one charged with wilful injury are stronger than in Indiana, and that in the case at bar, being brought in Indiana for a cause that originated in Illinois, the law of the state of Illinois should apply. We think this claim can not be allowed. The law of a foreign state can have no extraterritorial force when not in harmony with our decisions. The action is governed as to the rules of pleading, evidence, presumptions and burden of proof by the rules of law of this State. Smith v. Wabash R. Co. (1895), 141 Ind. 92; Chicago, etc., R. Co. v. Vandenberg (1905), 164 Ind. 470; Baltimore, etc., R. Co. v. Ryan (1903), 31 Ind. App. 597, and cases cited.\\nThe court erred in overruling appellant's demurrer to said second paragraph.\\nThe questions raised by assignment of cross-errors may not arise upon another trial, and are not, for that reason, considered.\\nRabb and Myers, JJ., concur.\\nJudgment reversed, with instructions to sustain the demurrer to the second paragraph of complaint.\"}"
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+"{\"id\": \"5087495\", \"name\": \"Granger et al. v. Boswinkle\", \"name_abbreviation\": \"Granger v. Boswinkle\", \"decision_date\": \"1912-01-03\", \"docket_number\": \"No. 7,157\", \"first_page\": \"114\", \"last_page\": \"120\", \"citations\": \"50 Ind. App. 114\", \"volume\": \"50\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:53:20.438575+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Granger et al. v. Boswinkle.\", \"head_matter\": \"Granger et al. v. Boswinkle.\\n[No. 7,157.\\nFiled January 3, 1912.\\nRehearing denied. January 31, 1912. Transfer denied April 4, 1912.]\\n1. Justices of the Peace. \\u2014 Action on Bond. \\u2014 Nature.\\u2014Complaint. \\u2022 \\u2014 An action on the bond of a justice of the peace is an action ex contractu, and to entitle plaintiff to recover he should allege and prove a breach of some duty imposed by the terms of the bond upon which the suit was predicated, p. 116.\\n2. Justices of the Peace. \\u2014 Action on Bond. \\u2014 Liability for Acts of Special Constable. \\u2014 The liability of a justice of the peace and the sureties on his official bond for the acts of a special constable in assaulting and beating another, must be predicated upon the general condition of the bond providing that the justice shall faithfully discharge his duties as such, together with the provisions of \\u00a7\\u00a71727, 1728 Burns 190S, \\u00a7\\u00a71439, 1440 R. S. 1881, which provide the duties and liability of a justice of the peace in the matter of the appointment of a special constable, p. 117.\\n3. Justices of ti-ie Peace. \\u2014 Action on Bond. \\u2014 Breach by Act of Special Constable. \\u2014 Complaint.\\u2014Sufficiency.\\u2014A complaint to recover on the bond of a justice for injuries inflicted by a special constable, was insufficient, which did not allege that the defendant justice of the peace himself mac^e the appointment of such constable vn a particular case, and that in such particular case he issued and directed to such constable the warrant under which he was acting' at the time of inflicting the injury, p. 117.\\n4. Justices of the Peace. \\u2014 Action on Bond. \\u2014 Liability for Acts of Special Constable. \\u2014 Criminal Cause. \\u2014 Section 1939 Burns 1908, Acts 1905 p. 584, \\u00a771, authorizing justices of the peace to appoint special constables in criminal causes in the same manner as in civil cases, in no way provides for any liability against a justice of the peace on account of any such appointment, and there being no other statute creating a liability in such case, an action, which is predicated solely upon the acts of a special constable appointed in a criminal cause, cannot be maintained against a justice of the peace on his official bond. p. 119.\\nProm Newton Circuit Court; G. W. Hanley, Judge.\\nAction by Matt. Boswinkle against Andrew Granger, ex-justice of the peace, and others. Prom a judgment for plaintiff, the defendants appeal.\\nReversed.\\nGeorge A. Williams, for appellants.\\nDwyer & Robinson and John H. Gilleit, for appellee.\", \"word_count\": \"2234\", \"char_count\": \"13038\", \"text\": \"Hotted, J.\\n\\u2014 This is a suit on the bond of a justice of the peace. The justice, his sureties and a special constable were all made defendants to the suit, and are now appellants in this court. The alleged breach of the bond charged grew out of an alle'ged unlawful assault and battery committed on appellee' BoswinMe by such special constable appointed by such justice.\\nThe complaint is in two paragraphs, the bond being made an exhibit with each. Demurrers were filed to each paragraph and overruled, and exception saved as to each ruling.\\nThe cause was put at issue by an answer in general denial, trial by a jury, and a verdict for appellee in the sum of $225. Judgment on the verdict, motion for new trial overruled, and appeal to this court.\\nThe errors assigned present the question of the sufficiency of the complaint and each of the paragraphs thereof, both by an original assignment, that the facts stated therein are not sufficient, and by separate assignment of error calling in question the ruling on the demurrer as to each paragraph. The ruling on the motion for new trial is also assigned as error.\\nIt is first insisted by appellants that their demurrer to each paragraph of the complaint should have been sustained on the second ground thereof, viz., because the action is not prosecuted in the name of the State of Indiana on the relation of the party interested.\\nSection 253 Burns 1908, \\u00a7253 R. S. 1881, provides as follows: \\\"Actions upon official bonds, and bonds payable to the state, shall be brought in the name of the State of Indiana, upon the relation of the party interested. ' '\\nAppellee concedes that the- ease should be prosecuted in the name of the State on the relation of the interested party, and insists that by leave of court he was permitted to amend his complaint in this regard, and that he did so amend, and that the action was thereafter .prosecuted in the name of the State on the relation of Matt. Boswinkle. The condition of the record is not satisfactory on this question, hut the conclusion which we have reached' as to the sufficiency of this complaint, on its merits renders unnecessary the determination of this question.\\nThe first paragraph of this complaint is short, and is as follows: \\\"Plaintiff herein, complains of the defendants herein, and alleges: That on the second day of April, 1908, the defendant Andrew Granger was duly appointed Justice of the Peace for Lincoln Township, Newton County, Indiana. That on the 18th day of April, 1908, he, with James Craig and Prank M. Puller, other defendants herein, as his sureties, executed his hond, as such Justice, in the penal sum of two thousand dollars ($2,000) a copy of which is filed1 herewith and made a part of this complaint, and on April 19, 1908, duly qualified and entered upon the duties of his office. That during his term of office, to wit, on the 17th day of July, 1908, Pred Puller, one of the defendants herein, while acting as special Constable for said defendant Andrew Granger, Justice of the Peace, aforesaid, having been appointed, duly and legally qualified therefor, which appointment was entered upon the docket of said Justice, by virtue of a warrant of arrest issued to said Pred Puller as said Special Constable he neglected his duty and proceeded illegally as follows: He assaulted and beat the plaintiff herein, striking plaintiff on the head several heavy blows with a dangerous weapon, to wit, a 'black jack,' and rudely pushed and roughly handled plaintiff and wounded him, while plaintiff was without fault. Whereby plaintiff became, and is, and for a long time will be, shocked, hurt and humiliated, suffering anguish of mind, and was otherwise greatly hurt, bruised and wounded, to his damage two thousand dollars ($2,000) for which he demands judgment.\\\"\\nThis is an action ex contractu, and to entitle the appellee to recover, it was necessary that he should allege and prove a breach of some duty imposed by the terms of the bond on which the suit was predicated. There is not, of course, in the bond itself an express or specific condition providing for liability on account of the breach here charged, but such liability, if it exist at all in a ease of this character, must be predicated on the general condition of the bond which provides, that said Granger \\\"shall faithfully discharge his duties as such Justice,\\\" together with the provisions of the statute which provide the duties and liability of a justice of the peace in the matter of the appointment of a special constable. The sections of the statute which prescribe these duties are \\u00a71727, 1728 Burns 1908, \\u00a71439, 1440 R. S. 1881, controlling civil procedure before justices of the peace,, and \\u00a71939 Burns 1908, Acts 1905 p. 584, \\u00a771, under criminal procedure before justices. The provisions of these sections are as follows: 1727. \\\"Whenever there shall be no constable convenient, and in the opinion of the justice an emergency exists for the immediate services of one, such justice may appoint a special constable to act in a particular cause; and shall note such appointment in such cause on the docket, and shall direct process to him by his name; and such constable, so appointed, shall discharge the duties, receive the fees, and have the powers, in such cause, appertaining to the office.\\\" 1728. \\\"The justice appointing such constable shall, with his sureties, be liable on his official bond for any neglect of duty or illegal proceedings by such constable in such cause. ' ' 1939. ' Special constables may be appointed under like circumstances, having like powers and being subject to like liabilities, as in civil eases. ' '\\nThe bond and these sections of the statute furnish the only grounds or conditions on which liability in this case can be predicated. This being true, it seems that the citation of these sections of the statute, in connection with the foregoing copy of the first paragraph of the complaint, ought to be sufficient to indicate that error was committed in overruling the demurrer to said paragraph.\\nIt will be observed that this statute, authorizing the appoint ment of special constables by justices of the peace, expressly limits the power of the appointment, and authorizes the same only where there is no constable, and an emergency exists, and then the appointment shall be in the particular cause, and in fixing the liability of the justice on his official bond, for the neglect of such constable, the statute expressly limits the liability to the \\\"neglect of duty or illegal proceedings by such constable in such cause.\\\"\\nThe complaint in such a case must allege, among other things, that the justice of the peace, against whom the action is prosecuted, himself made the appointment of the special constable; that he (the justice) made such appointment during his term of office in a particular case, that he issued and directed to such special constable a warrant in such case for the arrest of the injured party on whose relation the suit is brought, and that in serving such warrant so issued in such case such constable neglected .his duty, or illegally proceeded, setting out the facts relied on as constituting the neglect of duty or illegal proceedings.\\nThere is in this paragraph no averment that Granger, justice of the peace, appointed Fuller, special constable in any particular case, and, in fact, no positive allegation that said Granger appointed such special constable, or that such justice issued to him the warrant under which he was acting, or that the warrant was directed to such constable, or that it was issued in the particular case in which such special constable was appointed. This paragraph is in other respects uncertain and ambiguous in its averments, but the averments indicated as omitted are so clearly essential and necessary to a good complaint in an action of this character that we deem further comment thereon unnecessary.\\nThe second paragraph of complaint, while not being open to all the objections that might be urged against the first paragraph, is, for the reasons indicated, clearly insufficient as against demurrer.\\nBut there is a still more important reason for holding both these paragraphs of complaint bad. The defects above suggested might be cured by amendment, but if we be correct in our notion as to the other infirmity of these paragraphs, no amendment can cure the same, so long as they proceed on their present theory. Both paragraphs of this complaint are predicated on the theory that a justice of the peace is liable on his bond for the acts of a special constable appointed by him in a criminal cause, the same as he would be for the acts of such constable so appointed in a civil cause. This can be true only in ease there is an express statute so providing, because, as above indicated, there is no provision of the bond that would make him liable, and in such cases liability must be found in the bond itself, or in the statutory provisions defining the duties, obligations and liabilities of such officer. Hawkins v. Thomas (1892), 3 Ind. App. 399, 29 N. E. 157. See, also, Urmston v. State, ex rel. (1880), 73 Ind. 175; Bowers v. Fleming (1879), 67 Ind. 541; Detroit Sav. Bank v. Ziegler (1882), 49 Mich. 157, 13 N. W. 496, 43 Am. St. 456.\\nThe only provision to be found on this subject under the criminal procedure is \\u00a71939, supra. It will be observed that the constable alone is mentioned in this section, and his powers and liabilities alone are defined. This section authorizes the appointment of such constable in the same manner as in civil cases, and therefore gives to a justice of the peace the right to make such appointment; but further than this, the section in noway affects a justice of the peace. It in noway attempts to provide for or fix any liability against such justice of the peace on account of such appointment.\\nIt follows, therefore, that there can be no liability of a justice of the peace on his official bond, predicated solely upon the acts of a special constable appointed by such justice of the peace in a criminal cause.\\nFor the reasons above stated, the court erred in overruling the demurrer to each paragraph of said complaint.\\nThe judgment is therefore reversed, with instructions to the court below to sustain the demurrer to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.\\nNote. \\u2014 Reported in 96 N. E. 208. See, also, under (1) 5 Cyc. 826; (3) 24 Cyc. 430; (4) 1913 Cyc. Ann. 2675. As to the ministerial acts of a justice of the peace for which his sureties are liable, see 91 Am. St. 574.\"}"
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+"{\"id\": \"5192651\", \"name\": \"United States Health and Accident Insurance Company v. Emerick\", \"name_abbreviation\": \"United States Health & Accident Insurance v. Emerick\", \"decision_date\": \"1913-12-12\", \"docket_number\": \"No. 8,096\", \"first_page\": \"591\", \"last_page\": \"599\", \"citations\": \"55 Ind. App. 591\", \"volume\": \"55\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Appellate Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:32:25.172216+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"United States Health and Accident Insurance Company v. Emerick.\", \"head_matter\": \"United States Health and Accident Insurance Company v. Emerick.\\n[No. 8,096.\\nFiled December 12, 1913.\\nRehearing denied February 27, 1914.]\\n1. Reformation of Instruments. \\u2014 Parol Evidence. \\u2014 Modifying Contract. \\u2014 While as a general rule previous oral negotiations or stipulations between the parties are merged in the written contract and cannot be shown to modify it, they may be shown in case of fraud or mistake which prevented the writing from expressing the real contract, p. 594.\\n2. Insurance.\\u2014 Action on Policy.\\u2014 Complaint.\\u2014 Sufficiency.\\u2014 Reformation of Policy. \\u2014 A complaint on a policy of insurance alleging that defendant solicited the insured to take an accident policy in consideration of an assignment of his wages, which insurance should be effective from date of application, and that thereafter defendant mailed to him a policy containing all the terms agreed to, except that by the mutual mistake of defendant and insured the date of the policy was fixed as of a time nine days subsequent to the date of application, sufficiently showed that the action was upon the theory that the policy sued on was the contract agreed upon, except as to the matter of date, which by mutual mistake was not the date agreed upon. p. 595.\\n3. Insubance. \\u2014 Action on Policy. \\u2014 Amendment of Complaint. \\u2014 Estoppel. \\u2014 An amended complaint based on the same policy sued on in the original complaint, except that a reformation as to the date of the policy was sought, was not open to the objection that the original complaint based on the policy as written and dated constituted an acceptance thereof so as-to prevent plaintiff from afterwards pleading ignorance of its terms, p. 597.\\n4. Limitation oe Actions. \\u2014 Commencement of Action. \\u2014 Amendment. \\u2014 New Cause of Action. \\u2014 In an action on an accident policy, where an amended complaint was filed, based on the policy sued on in the original complaint, except that a reformation as to date of the policy was sought, the filing of such amended complaint was not the institution of a new cause of action, and not open to the objection that it was filed after the limitation provided in the policy had expired, p. 597.\\n5. Pleading. \\u2014 Amended Complaint. \\u2014 New Cause of Action.\\u2014 Whether an amended complaint sets up a new cause of action may be determined by a determination of the question whether a recovery on the original complaint would bar a recovery under the amended pleading, p. 598.\\n6. Appeal. \\u2014 Review.\\u2014Findings.\\u2014Conclusiveness.\\u2014In an action to recover on a policy of insurance, in which a reformation as to the date of the instrument was sought, the finding of the trial court that the date shown in the policy was the result of mutual mistake cannot be disturbed on the weight of the evidence, where there was evidence sufficient to warrant such finding, p. 598.\\n7. Appeal. \\u2014 Briefs.\\u2014Waiver of Error. \\u2014 Grounds of appellant\\u2019s motion for a new trial that are not stated or discussed in its brief on appeal are waived, p. 599.\\nFrom Marion Circuit Court; Charles Bemster, Judge.\\nAction by Nellie R. Emerick, by ber next friend, James H. Amsden, against the United States Health and Accident Insurance Company. From a judgment for plaintiff, the defendant appeals.\\nAffirmed.\\nR. P. Shorts and G. R. Estabrook, for appellant.\\nWilliams & Schlosser and William Amsden, for appellee.\", \"word_count\": \"2914\", \"char_count\": \"16905\", \"text\": \"Hottel, P. J.\\nAppellant, on and prior to July 11, 1908, was doing business as an accident and life insurance com pany in the city of Indianapolis, with its principal office at the city of Saginaw, Michigan. On said day, Robert H. Emerick, then in the employ of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, was solicited by one of defendant's agents to take ont a policy of insurance in said company with the result that such agent then and there filled out an application blank of said company for insurance for Emerick. To pay the premiums for such insurance, Emerick then signed and delivered to appellant's agent a written assignment of wages.\\nOn July 15, 1908, Emerick was accidentally thrown from a moving freight train and struck by the trucks of one of its ears, with the result that his back was broken and he was otherwise injured. On July 20, 1908, appellant mailed to Emeriek, from its home office, a policy of insurance bearing date of July 20, 1908, which was received by Emerick on July 21, 1908. On July 21, 1908, Emerick caused to be filled out the company's blank preliminary report and doctor's certificate pertaining to his injury and disability, resulting therefrom, which report was mailed to appellant on the afternoon of July 21, 1908, and received by appellant July 23, 1908. On July 25, 1908, appellant wrote Emerick a letter in which it acknowledged the receipt of such preliminary report and doctor's certificate of injury, and at the same time and in the same letter mailed to Emerick necessary blanks to be filled and returned to it at the termination of disability. On July 31, 1908, the insured died from the effects of the injury, leaving his widow Nellie R. Emerick, who was then under twenty-one years of age and the sole and only beneficiary of said policy of insurance. On December 9, 1908, the appellee, by her next friend James H. Amsden, filed in the circuit court of Marion County the original complaint herein, which was an action on the policy of insurance bearing date of July 20, 1908, and proceeded on the theory that such policy of insurance was in force from twelve o'clock noon July 20, 1908. On November 3, 1909, an amended complaint in two paragraphs was filed. In the first paragraph the appellee sought to correct and reform the policy of insurance as to date, and as grounds therefor, alleged, that by mutual mistake of the parties such policy was dated July 20, 1908, instead of July 11,1908, as was agreed and intended by both parties.\\nThe second paragraph also sought a reformation of the date of the policy and alleged fraud on the part of appellant in dating it July 20, 1908, instead of July 11, 1908. Judgment for $1,000 on such policy as reformed was asked in each paragraph. A demurrer to each of these paragraphs was overruled. There was an answer in two paragraphs one of which was a general denial. A demurrer to the affirmative answer was overruled, and a reply in denial closed the issues. There was a trial by the court, and a general finding and judgment for appellee on her first paragraph of amended complaint, and a general finding for appellant on the second paragraph of amended complaint.\\nA motion for new trial filed by appellant was overruled. Proper exceptions were saved by appellant to the court's rulings on its demurrer to the amended complaint and motion for new trial, and such rulings are separately assigned as error and relied on for reversal. The general finding and judgment conclusively show that the judgment herein was rendered on the first paragraph of the amended complaint, and that there was a finding for appellant on the second paragraph of complaint. Hence, we need give no further consideration to the second paragraph of complaint.\\nIn support of its contention that the trial court erred in overruling its demurrer to the first paragraph of amended complaint appellant insists, in effect, that such paragraph is based on a parol contract for insurance, which its averments show was afterwards merged in a written contract, and that \\\"all oral negotiations or stipu lations between the parties which preceded or accompanied the execution of the written contract are to be regarded as merged in it, and that the latter must be treated as the exclusive medium of ascertaining the contract between the parties.\\\" There is no doubt but that the general rule, with reference to the merger of the previous parol negotiations in the subsequent written contract, is substantially as appellant states it; but the appellate courts in stating such rule almost invariably indicate an exception thereto, viz., that such \\\"previous negotiations and propositions in relation to such contract are merged in the final agreement, and, in the absence of fraud or mistake, cannot be given to vary or modify such written agreement.\\\" Cole v. Gray (1894), 139 Ind. 396, 38 N. E. 856; Smith v. McClain (1896), 146 Ind. 77, 87, 45 N. E. 41.\\nAppellee by her first paragraph of amended complaint brings herself within the exception indicated. The averments of this paragraph necessary to a presentation of the foregoing, and other objections urged against it are, in substance, as follows: Appellant, on July 11, 1908, solicited Robert H. Emerick to take insurance of it, and on the same day, in consideration of the written assignment of wages, executed and delivered to it by Emerick, on the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, for the sum of $7.60, then due, then and there agreed to insure, and did insure Emerick from July 11, 1908, until September 11, 1908. Appellant agreed and contracted with Emerick as above set out and agreed that the insurance should become effective and in force on July 11, 1908, and agreed to furnish Emerick a policy of insurance containing their agreement of the character and kind and containing the terms as set out in exhibit A hereto attached and made a part hereof, save and except said policy, according to their agreement, was t\\u00f3 be dated July 11, 1908, and to be in full force and effect from July 11, 1908. The terms of the contract of insurance were and are in form and substance as set out, and shown by exhibit A which exhibit A and contract of insurance are alike in all particulars save and except the date of exhibit A which instead of being of date of July 20, 1908, as contained therein, should be July 11,1908, as provided in the original agreement made on July 11, 1908. In compliance with its agreement with Emeriek to furnish a policy of insurance containing the date of July 11, 1908, to become effective from said date, appellant, on July 20, 1908, executed and mailed to Emeriek a policy of insurance which was received by him on July 21, 1908. Such written policy of insurance, a copy of which is attached hereto, marked exhibit A contained all the agreements and terms agreed upon on July 11, 1908, by and between Emeriek and appellant, \\\"save and except by the mutual mistake of the said Emeriek and defendant, said policy was dated July 20, 1908.\\\" Emeriek had a broken back and was otherwise injured and on account thereof was compelled to remain in bed from the time of his injury until his death, and suffered great pain both of mind and body. Emeriek, by reason of his condition, was unable to attend to business, and unable to discover, and did not discover, the mistake as to the date written in the policy, and at all times believed that the policy was written and dated as of July 11, 1908, as agreed upon, and that the agreement of insurance was in full force from July 11, 1908. On July 25, 1908, appellant, by written letter, notified Emeriek that it had received his preliminary report and doctor's certificate pertaining to his disability and mailed to him necessary blanks to be filled and returned to it after the termination of his disability, and \\\"did thereby, then and there treat and consider said insurance as in force, and did thereby waive all objections to said insurance on account of any of the terms and conditions of said policy\\\" and appellant did at all times, until the death of Emeriek, treat the insurance as in full force and effect and as covering and insuring against said injuries.\\nThese averments make certain the theory of this paragraph of complaint, viz., that the written contract sued on is the contract agreed upon hy the parties, except in the matter of date, and that by the mutual mistake of the parties such contract was dated July 20, 1908, when it was intended and agreed between them that it should bear date of July 11, 1908. A reformation of the contract so as to make it bear the correct date and judgment on the written contract as reformed is asked.\\nIt is also insisted that the filing of the original complaint, based on the policy as written and dated, was an acceptance by the beneficiary of such policy as written, and that she cannot thereafter plead ignorance of its terms, nor avoid it because it is not in accord with some former agreement. Appellee is not seeking to avoid the policy, but on the contrary seeks to enforce it when reformed. The authorities relied on by appellant are not applicable to the facts averred in the paragraph of complaint here involved. It is further insisted that neither appellee nor the insured attempted \\\"to rescind this written contract of insurance issued July 20, 1908, with reasonable promptitude and thereby affirmed the contract.\\\" So far as the pleadings in the case show there is not now, and never has been any effort to rescind the contract of insurance evidenced by the policy sued on. On the contrary, appellee affirms and seeks to enforce the contract when it is reformed and corrected in the matter of date. The averments of the complaint, before set out, show that the condition of the insured after his injury was such that he was never able to and did not in fact discover the mistake in the date of the policy.\\nThe policy sued on contains the following provision: \\\"No action at law shall be maintainable before three months nor after six months from date on which this paragraph requires said proofs to be furnished. Any claim not brought in conformity with the require-\\nments of this paragraph shall be forfeited to the company.\\\" It is contended by appellant that, while the original complaint was filed within the time stipulated in the provision of the policy, appellee, by filing her amended complaint on November 3, 1909, changed the action to an equity proceeding, based on an independent and different contract; that this was the equivalent of filing a new cause of action, and that such action was not filed within the time limit above provided, and that on this account \\\"the policy was forfeited to the appellant\\\". There is no merit in this contention. Each paragraph of the amended complaint was predicated on the same policy of insurance sued on in the original complaint. The fact that a reformation of the contract originally sued on was asked in the amended complaint did not change the cause of action and, hence, the amendment will be treated as of the date of the filing of the original complaint. Indiana Union Traction Co. v. Pring (1912), 50 Ind. App. 566, 96 N. E. 180, and authorities there cited. \\\"To determine whether an amendment of the complaint will set up a new cause of action,. # it is a fair test to inquire whether a recovery on the original complaint would be a bar to a recovery under the amended pleading.\\\" Blake v. Minker (1894), 136 Ind. 418, 426, 36 N. E. 246. See, also, Indiana Union Traction Co. v. Pring, supra.\\nThe first paragraph of amended complaint is sufficient to withstand the objections urged against it and, hence, no error resulted from the ruling on the demurrer thereto.\\nIn support of its contention that the trial court erred in overruling its motion for a new trial, it is contended by appellant that the decision of the court is not sustained by sufficient evidence, and is contrary to law. Authorities are cited to the effect that in order to justify the reformation of a written contract the evidence must be strong, clear, and convincing. These authorities should have been, and doubtless were given careful consider ation by the trial court. The only reformation sought in this instrument was the change of its date. There was evidence tending to show that it was agreed and understood by the insured and the agent, who took his application, that the policy of insurance would bear the date of the application, and be in force from twelve o'clock noon of the day that the insured assigned his wages in payment of the premium, and that such agent had authority to agree that the policy when issued would bear such date. There was other evidence from which the trial court might have very properly inferred that the appellant and the insured both treated the policy as bearing such date. Prom such evidence the trial court was warranted in inferring that the date of the policy was the result of the mutual mistake of the parties. It is well understood that this court will not weigh evidence, and that, where there is any evidence to support each of the essential facts upon which the decision of the trial court must restT^lich decision will not be disturbed by this court. The other grounds of appellant's motion are not stated or presented anywhere in its brief, and are therefore, waived.\\nJudgment affirmed.\\nNote.\\u2014Reported in 103 N. E. 435. As to parol evidence of contemporaneous agreement, see 11 Am. St. 394, 893. See, also, under (1) 17 Cyc. 695; (4) 25 Cyc. 1305; (5) 31 Cyc. 417; (6) 3 Cyc. 360; (7) 3 Cyc. 388.\"}"
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+"{\"id\": \"6108373\", \"name\": \"Cook and Others v. Brown and Others, in Error\", \"name_abbreviation\": \"Cook v. Brown\", \"decision_date\": \"1842-05\", \"docket_number\": \"\", \"first_page\": \"234\", \"last_page\": \"234\", \"citations\": \"6 Blackf. 220\", \"volume\": \"6\", \"reporter\": \"Blackford\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:16:26.411149+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cook and Others v. Brown and Others, in Error.\", \"head_matter\": \"Cook and Others v. Brown and Others, in Error.\", \"word_count\": \"74\", \"char_count\": \"451\", \"text\": \"DEBT on a promissory note. Pleas, 1st, nil debet; 2d, payment and set-off. Two replications to the second plea. Demurrers to the replications. Demurrers overruled, and final judgment for the plaintiffs. Held, that the judgment\\u2014the general issue remaining undisposed of\\u2014was erroneous.\\nTo a plea of payment setting forth matter ot set-off, several matters of fact may be replied. Rev. Stat., 1838, p. 462.\"}"
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+"{\"id\": \"6681033\", \"name\": \"Daniel M. Burns v. Alfred Stanley et al.\", \"name_abbreviation\": \"Burns v. Stanley\", \"decision_date\": \"1881-03-29\", \"docket_number\": \"\", \"first_page\": \"102\", \"last_page\": \"105\", \"citations\": \"1 Ind. L. Rep. 102\", \"volume\": \"1\", \"reporter\": \"Indiana Law Reporter\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:17:45.227032+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Daniel M. Burns v. Alfred Stanley et al.\", \"head_matter\": \"Daniel M. Burns v. Alfred Stanley et al.\\nDefense of Negligence in a Suit by an Attorney for Compensation.\\u2014\\\"Where, in a suit involving the sufficiency of articles of association, such articles are declared insufficient, and afterwards the attorney who drew up such articles sues for compensation, the answer must aver directly that such articles were defective, and must aver that the work for which the plaintiff sues is that which the association had employed him to do.\\nFiled March 29, 1881.\\nAppeal from Hendricks.\", \"word_count\": \"1222\", \"char_count\": \"7454\", \"text\": \"Opinion of the court by\\nMr. Justice Woods.\\nThe sufficiency on demurrer of the second, third and fourth paragraphs of answer respectively are brought in question by this appeal.\\nThe suit was by the appellant against the appellee, the first paragraph of the complaint setting up a special agreement whereby the appellee employed the appellant to prepare supplementary articles of association for the \\\"Tamarack Ditch Company,\\\" and to survey and make all necessary plats, profiles and specifications, for which service the appellees were to pay the appellant ten dollars per diem for the first four days and four dollars per diem for the remainder of the time which he should necessarily employ in doing the work. Performance by the appellant and failure of appellees to pay is averred.\\nThe second paragraph is in the nature of a common count for work and labor done at the special instance and request of the defendant, and a bill of particulars for work essentially the same and at the same price as those sued for in the first paragraph is filed with this paragraph.\\nThe defendant answered first by a general denial, and second that they and others interested in the construction of a ditch formed an association under the name of the \\\"Tamarack Ditching Association;\\\" that the plaintiff was invited by the associa. tiou to accept employment as its engineer, to survey, plat and locate the ditch which the company proposed to cut, but the plaintiff, being a lawyer, declined to accept such employment unless on examination \\\"he should find the articles of association of the company to be formal and sufficient in law, and having made an examination thereof, pronounced said articles informal and insufficient in law; whereupon an agreement was made by the plaintiff on the one part and these defendants and other signers of said pretended articles on the other part, to the effect following, to-wit: the plaintiff being both lawyer and engineer, and professing great skill, undertook to reorganize said association and to cure and perfect said articles of association, and to prepare certain supplementary and ameudatory articles, which when so cured, supplemented and amended, and adopted by said association, the plaintiff guaranteed should be legal, formal, regular and sufficient in law, and that the association organized thereunder should be a legal and valid organization for the purposes stated, and that if the articles, when so amended and perfected, should prove defective and insufficient to support the said organization and its proceedings to carry out its purposes, the plaintiff should have no compensation; but if he succeeded in making said articles perfect and sufficient in law to support said organization and its proceedings pursuant to said articles, then the plaintiff should have therefor from said Ditching Association, to be paid from the monies of said association, the rate of compensation mentioned in the complaint; that in pursuance of said agreement the plaintiff prepared or caused to be prepared certain supplementary articles, which he represented and guaranteed would make said articles sufficient in law, and which, under the advice and direction of the plaintiff, as their legal adviser, said association fully adopted and confirmed, and after such adoption the plaintiff proceeded to perform the labor as engineer for which he sues; that afterwards, at the January term, 1876, of this court (the court below) in certain suits by Ezekiel Clark, Drury Clark et al. v. the said Ditching Association, involving the legality and insufficiency of said amended articles, it was adjudged by this court that said articles were insufficient to vest said association with legal rights, and to support the assessments of benefits made in pursuance thereof, and said assessments are by this court held to be void and of no effect.\\nThis answer does not sufficiently show that the amended articles of incorporation prepared by the plaintiff were in any respect defective. There is no direct averment of any defect, and the judgment of the court whereby they were declared insufficient is not binding on the plaintiff, as he was not a party thereto, and it is not shown by the plea that he had notice of the suit or of the issues involved therein. The answer does not show that the plaintiff was to receive his compensation from the corporation which he undertook to organize for the defendants and others who were to be incorporators. This amounts perhaps only to an argumentative denial of the liability charged in the complaint against the defendants, but is, nevertheless, good on demurrer which admits its truth.\\nThe third paragraph, like the second, shows the defective organization of the Ditching Association, and that the plaintiff being a lawyer and professing great skill in such matters, at the request of the defendants and other members of said association, and in consideration of the rate of compensation charged in his complaint, undertook and guaranteed that he would perfect said articles, and thereafter represented that he had perfected the same, and the defendants and their associates, relying on the plaintiff's skill and learning, and under his direction as their legal adviser, proceeded to lay out and locate their proposed ditch, and to make assessments of benefits and damages, and expended in money one hundred dollars and in time and labor eleven hundred dollars; that in said suits said amended articles were by said court adjudged to be insufficient; wherefore, the defendants claim to have been damaged in the sum of five hundred dollars: because of the plaintiffs negligence and want of skill in preparing said amended articles, which sum they pray may be recouped, etc.\\nThis answer is defective for the want of a direct averment that the amended articles of incorporation prepared by the plaintiff were insufficient. It not being shown that he was a party to the suit, nor that he had notice that the suit was pending and involved the validity of his work, the judgment of the court that the same was invalid was neither proof nor evidence of the fact.\\nThe fourth paragraph is to the effect that the plaintiff was employed by the TamarRck Ditching Association, organized under the act approved March 10, 1873, of which the plaintiff had notice a; the time of said employment; that others besides these defendants were members and signers of the articles of said company, namely: (here are given the names,) who, with certain exceptions named, are living, solvent and reside within the jurisdiction of this court. This plea is verified.\\nIt is an insufficient answer in this, if in nothing else, that it does not show that the work which the plaintiff was employed to do by said ditching association is the same for which the plaintiff' had sued.\\nJudgment reversed, with instruction to sustain the demurrers to the second, third and fourth paragraphs of answer\\u2014 costs accordingly.\"}"
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+"{\"id\": \"6868115\", \"name\": \"BOARD OF COMMISSIONERS OF CLARK COUNTY, Petitioner, v. INDIANA DEPARTMENT OF LOCAL GOVERNMENT FINANCE, Respondent\", \"name_abbreviation\": \"Board of Commissioners v. Indiana Department of Local Government Finance\", \"decision_date\": \"2015-04-24\", \"docket_number\": \"No. 49T10-1111-TA-68\", \"first_page\": \"552\", \"last_page\": \"560\", \"citations\": \"31 N.E.3d 552\", \"volume\": \"31\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Indiana Tax Court\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:53:19.903826+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BOARD OF COMMISSIONERS OF CLARK COUNTY, Petitioner, v. INDIANA DEPARTMENT OF LOCAL GOVERNMENT FINANCE, Respondent.\", \"head_matter\": \"BOARD OF COMMISSIONERS OF CLARK COUNTY, Petitioner, v. INDIANA DEPARTMENT OF LOCAL GOVERNMENT FINANCE, Respondent.\\nNo. 49T10-1111-TA-68.\\nTax Court of Indiana.\\nApril 24, 2015.\\nC. Gregory Fifer, Applegate Fifer Pul-liam LLC, Jeffersonville, IN, Attorney for Petitioner.\\nGregory F. Zoeller, Attorney General of Indiana, Jessica E. Reagan, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.\", \"word_count\": \"4014\", \"char_count\": \"24643\", \"text\": \"WENTWORTH, J.\\nThis ease concerns whether the Indiana Department of Local Government Finance (DLGF) erred in denying the Clark County Board of Commissioners' (Board) request to increase Clark County's Cumulative Capital Development Fund (CCDF) tax rate for the 2012 budget year. The Court finds no error.\\nBACKGROUND\\nPrior to July 11, 2011, the Board contracted with H.J. Umbaugh & Associates for the preparation of a Comprehensive Financial Plan (Umbaugh Plan) to assist its commissioners in fulfilling \\\"their role as [the] managers of [Clark] County.\\\" (See Cert. Admin. R. at 186-87.) The Umbaugh Plan recommended that the Board increase the CCDF tax rate to the maximum allowed by statute. (See Cert. Admin. R. at 190.) The Umbaugh Plan indicated that the rate increase would generate about $613,800 in additional property tax revenues that, once transferred to the County's Rainy Day Fund, could be used to pay certain operating expenses. (See Cert. Admin. R. at 190.)\\nOn July 21, 2011, the Board introduced Ordinance No. 18-2011 for approval and adoption at its regularly scheduled monthly meeting. (See Cert. Admin. R. at 5-6, 135-36.) Ordinance No'. 18-2011 provided in part\\nWHEREAS, Ind.Code \\u00a7 36-9-14.5, et seq., and Ind.Code \\u00a7 6-1.1-41, et seq., authorize this Board to establish a cumulative capital development fund for any purpose for which property taxes may be imposed within the county under the authority of the series of statutes referenced in Ind.Code \\u00a7 36-9-14.5-2; and,\\nWHEREAS, this Board has previously established the [CCDF] by ordinance, and such fund has been in continuous existence for more than one (1) year; and,\\nWHEREAS, the [CCDF] is presently funded by a tax rate of $0.0180 per $100 of assessed valuation pursuant to the 2011 budget approved by the [Council] and in accordance with the provisions of Ind.Code \\u00a7 36-9-14.5-6(a); and,\\nWHEREAS, LkLCode \\u00a7 36-9-14.5-6(b) authorizes the tax rate of a cumulative capital development fund that has been in existence for a period of one (1) or more years to be established at a rate of up to $0.0333 per $100 of assessed valuation; and,\\nWHEREAS, Ind.Code \\u00a7 36-l-8-5(b)(l) permits funds held in the [CCDF] to [be] transferred to the Clark County Rainy Day Fund to the extent not expended during any budget year; and,\\nWHEREAS, this Board now finds that an increase of the tax rate funding the [CCDF] is an appropriate action given the budget crisis that Clark County government presently faces in that it will create a mechanism by which the County's reserve funds might be replenished once the essential functions of County government are again fully funded[.]\\n(Cert. Admin. R. at 10-11.) During the meeting, however, the Board failed to adopt Ordinance No. 18-2011 with a unanimous vote as required under Indiana Code \\u00a7 36 \\u2014 2\\u20144\\u20147(b); consequently, the Board scheduled a special meeting' for the following week. (See Cert. Admin. R. at 5-6.) On July 27, 2011, at that special meeting, the Board unanimously adopted Ordinance No. 18-2011. (See Cert. Admin. R. at 6-7.)\\nOn July 28, 2011, the Board petitioned the DLGF for approval of its proposed tax rate increase, but shortly thereafter, over 100 taxpayers filed an objection petition with the Clark County Auditor. (See Cert. Admin. R. at 1, 20-29). On September 26, 2011, the DLGF held a hearing during which some of those taxpayers advocated against the tax rate increase stating that they believed certain county officials were fiscally irresponsible and had previously spent CCDF monies improperly. (See, e.g., Cert. Admin. R. at 168-69; Cert. Supp'l Admin. R. at 7-12, 15-29, 36-38.) To support their position, the taxpayers presented, among other things, excerpts from the State Board of Accounts' 2008 and 2009 Audit Reports, which indicated that the Board made over $400,000 of unauthorized disbursements from the CCDF for items such as utilities, insurance, animal control supplies, and studies. (See Cert. Admin. R. at 129-30.)\\nThe Board's president, on the other hand, asked the DLGF to approve the requested tax rate increase, explaining that the County's dire financial situation had necessitated the request. (See, e.g., Cert. Admin. R. at 10-11.) The president explained that the Board planned to use the additional property tax revenues generated by the rate increase to defray both employee health insurance costs and emergency costs (e.g., shoring up salt reserves for unanticipated blizzards). (See Cert. Supp'l Admin. R. at 30-32.) The president testified that the Board planned to put about $400,000 of the newly generated revenue into either the County's Insurance Fund or Rainy Day Fund to cover those costs. (See Cert. Supp'l Admin. R. at 31-32.)\\nOn October 7, 2011, the DLGF issued its final determination denying the Board's request to increase the CCDF tax rate. (See Cert. Admin. R. at 233-37.) The DLGF explained that it could not approve the Board's request because the Umbaugh Plan, Ordinance No. 18-2011, and its presi dent's testimony all indicated that the Board sought to increase the CCDF tax rate for a purpose not expressly authorized under Indiana Code \\u00a7 6-1.1-41 and Indiana Code \\u00a7 36-9-14.5-2. (See Cert. Admin. R. at 236.)\\nOn November 21, 2011, the Board initiated this original tax appeal. The Court heard oral argument on August 16, 2012. Additional facts will be supplied as necessary.\\nSTANDARD OF REVIEW\\nThe party seeking to overturn a. final determination of the DLGF bears the burden of demonstrating that it is invalid. See Brown v. Dep't of Local Gov't Fin., 989 N.E.2d 386, 388 (Ind. Tax Ct.2013). Accordingly, the Board must demonstrate to the Court that the DLGF's final determination is contrary to law, arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. See id.\\nANALYSIS\\nOn appeal, the Board contends that the DLGF's final determination must be reversed for two reasons. First, it claims that the DLGF considered matters outside its statutory authority under Indiana Code \\u00a7 6-1.1-41 et seq. (Chapter 41). Second, the Board claims that the DLGF's finding that the Board sought to increase the CCDF tax rate for an impermissible purpose is contrary to law, arbitrary and capricious, and unsupported by substantial evidence.\\nI.\\nThe Board first asserts that the DLGF exceeded its statutory authority by considering the Board's purpose for requesting an increased tax rate for the CCDF. (See Pet'r Br. at 9-10; Oral Arg. Tr. at 10-11, 30-31.) The Board claims that Indiana Code \\u00a7 6-1.1-41-13 (Section 13) limits the DLGF to considering whether the Board complied with the procedural steps required by Chapter 41. (See Pet'r Br. at 9-11; Oral Arg. Tr. at 11-13, 17.) See also, e.g., Ind.Code \\u00a7 6-1.1-41-3 (2011) (regarding certain notice and public hearing requirements).\\nSection 13 states: \\\"[a]fter a political subdivision complies with this chapter [i.e., Chapter 41], a property tax may be levied annually at the tax rate approved under this chapter without further action under this chapter.\\\" Ind.Code \\u00a7 6-1.1-41-13 (2011) (emphasis added). The statute's plain language does not limit compliance to the procedural steps, but directs compliance with the entirety of Chapter \\u215b1. See I.C. \\u00a7 6-1.1-41-13. See also Ind.Code \\u00a7 6-1.1 \\u2014 41\\u20142(b) (2011) (stating that \\\"[i]f an action described in this section is not adopted or approved in conformity with [Chapter \\u215b1], the political subdivision may not levy a tax for the fund in the ensuing year\\\") (emphasis added).\\nChapter 41, in turn, states that it \\\"applies to establishing and imposing a tax levy for cumulative funds [authorized] under [several provisions of the Indiana Code including] Indiana Code \\u00a7 36-9-14.5.\\\" See Ind.Code \\u00a7 6-1.1-41-1(13) (2011). Indiana Code \\u00a7 36-9-14.5 authorizes the Board, as Clark County's legislative body, to establish a cumulative capital development fund, such as the CCDF, \\\"to provide money for any purpose for which property taxes may be imposed within the [County] under the authority of [several enumerated statutes].\\\" Ind.Code \\u00a7 36-9-14.5-2 (2011). These enumerated statutes authorize the establishment of cumulative capital development funds for the purposes of acquiring, constructing, repairing, or remodeling, for example: 1) ballot card or electronic voting systems; 2) bridges; 3) airport runways; 4) certain county levees, gates, and pumping stations; 5) channel improvements; 6) certain hospitals; 7) courthouses; 8) county jails or juvenile detention centers; 9) drains; 10) certain buildings and sidewalks; and 11) park and recreation facilities. See Ind.Code \\u00a7 3 \\u2014 11\\u2014 6-1 (2011); Ind.Code \\u00a7 8-16-3, -3.1 (2011); Ind.Code \\u00a7 8-22-3-25 (2011) (amended 2013); Ind.Code \\u00a7 14-27-6-48 (2011); Ind.Code \\u00a7 14-33-14-4 (2011); Ind.Code \\u00a7 16-22-5-3, -8-41 (2011); Ind. Code \\u00a7 36-9-14-2, -15-2 (2011) (amended 2012); Ind.Code \\u00a7 36-9-27-100, -16-2 (2011); Ind.Code \\u00a7 36-9-16-3 (2011) (amended 2012); Ind.Code \\u00a7 36-10-3-21 (2011).\\nBoth Chapter 41 and Indiana Code \\u00a7 36-9-14.5 accordingly require that a cumulative capital development fund and its related tax levy be established for one of the enumerated statutory purposes. See Joyce Sportswear Co. v. State Bd. of Tax Comm'rs, 684 N.E.2d 1189, 1192 (Ind. Tax Ct.1997) (providing that when interpreting statutes, the Court looks first to the plain language of the statute), review denied. Therefore, the DLGF's consideration of the Board's purpose for requesting an increase to the CCDF's tax rate was proper, and the Board has failed to show that the DLGF considered matters outside its statutory authority under Chapter 41.\\nII.\\nThe Board also claims that the DLGF's final determination must be reversed because it is contrary to law, unsupported by substantial evidence, and arbitrary and capricious. More specifically, the Board maintains that the DLGF's finding that the Board sought to increase the CCDF tax rate for an impermissible purpose is contrary to law because it violated Indiana Code \\u00a7 36-1-3-7 and Indiana Code \\u00a7 36-9-14.5-8(c). The Board also claims that there is no evidence to support that finding. Finally, the Board contends that the DLGF's finding is arbitrary and capricious because it created a conflict between Indiana Code \\u00a7 36-1-8-5 and 36-1-8-5.1 where none had previously existed.\\n. A.\\nThe Board first contends that the DLGF's finding that it sought to increase the CCDF tax rate for an impermissible purpose was in contravention of Indiana Code \\u00a7 36-1 \\u2014 3\\u20147, which provides that \\\"[s]tate and local agencies may review or regulate the exercise of powers by a unit only to the extent prescribed by statute.\\\" Ind.Code \\u00a7 36-1-3-7 (2011). The Board claims that the' DLGF violated Indiana Code \\u00a7 36-1-3-7 because it \\\"predeter mine[d] that the Board [might] expend funds from the [CCDF] in a manner not permitted by Indiana law\\\" despite the fact that Indiana Code \\u00a7 5-11-1-9 confers that authority on the State Board of Accounts. (See Pet'r Reply Br. at 3 (citing Ind.Code \\u00a7 5-ll-l-9(a) (2011) (requiring the State Board of Accounts to \\\"examine all accounts and all financial affairs of every public office and officer, state office, state institution, and entity\\\")).) This argument, however, is misplaced.\\nThe DLGF's examination of the Board's request to increase the CCDF tax rate is not the same type of examination conducted by the State Board of Accounts under Indiana Code \\u00a7 5-11-1-9. Indeed, when the State Board of Accounts conducts an examination under Indiana Code \\u00a7 5 \\u2014 11\\u2014 1-9, it\\n(1) [examines t]he financial condition and resources of each municipality, office, institution, or entityt;]\\n(2) [determines w]hether the laws of the state and the uniform compliance guidelines . established under [Indiana Code \\u00a7 5-11-1-24] have been complied with[; and]\\n(3) [investigates t]he methods and accuracy of the accounts and reports of the person being examined.\\nSee I.C. \\u00a7 5 \\u2014 11\\u20141\\u20149(d). Moreover, the State Board of Accounts conducts this examination without providing notice and often after the examinee has already spent the relevant funds. See I.C. \\u00a7 5-11-1-9(d); see, also e.g., Ind.Code \\u00a7 5-11-1-25 (2011) (requiring the State Board of Accounts to conduct annual or biennial examinations); (Cert. Supp'l Admin. R. at 19 (explaining that the 2008 and 2009 Audit Reports were not available until September 2011).)\\nIn contrast, the administrative record reveals that the DLGF's \\\"examination\\\" consisted of a consideration of the arguments and evidence presented by the parties at the administrative hearing so that it could rule on the taxpayers' objection to the Board's request as it is both empowered and required to do under Indiana Code \\u00a7 6-1.1-41-9. Moreover, the DLGF did not predetermine how the Board might expend CCDF funds, but instead was provided evidence and argument from the Board itself on the purpose it had for the increased tax revenue. Accordingly, the Board has not shown that the DLGF's finding violated Indiana Code \\u00a7 36-1-3-7.\\nAlternatively, the Board contends that the DLGF's finding contravenes Indiana Code \\u00a7 36-9-14.5-8(c), which gives the Board the discretion to increase the CCDF tax rate to cover unanticipated emergency expenses. (See Pet'r Br. at 11-13; Pet'r Reply Br. at 2-3; Oral Arg. Tr. at 19-20.) Indiana Code \\u00a7 36-9-14.5-8(c), in relevant part, provides \\\"[m]oney held in the cumulative capital development fund may be spent for purposes other than the purposes stated in [Indiana Code \\u00a7 36-9-14.5-2], if the purpose is to protect the public health, welfare, or safety in an emergency situation that demands immediate action[.]\\\" Ind.Code \\u00a7 36-9-14.5-8(e) (2011). The Board therefore claims that the DLGF's finding is improper because it \\\"deprive[ ]d the Board of additional funds that would otherwise be available for such permissible uses.\\\" (See Pet'r Reply Br. at 2; Oral Arg. Tr. at 74-75.)\\nContrary to the Board's contentions, the plain terms of Indiana Code \\u00a7 36-9-14.5-8(c) do not indicate that new property tax revenues may be generated by establishing a new cumulative capital development fund or by increasing an existing fund's tax rate. Rather, Indiana Code \\u00a7 36-9-14.5-8(c) indicates that money already in the fund may be expended on emergencies. See I.C. \\u00a7 36-9-14.5- 8(c). See also, e.g., Indiana Dep't of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind.1994) (explaining that the plain and obvious meaning of an unambiguous statute may not be enlarged or restricted). Indiana Code \\u00a7 36-9-14.5-8(c)(1) reinforces this conclusion by providing that \\\"[mjoney may be spent under the authority of [Indiana Code \\u00a7 36-9-14.5-8(c) ] only after the county executive . issues a declaration that the public health, welfare, or safety is in immediate danger that requires the expenditure of money in the fund[.j\\\" I.C. \\u00a7 36-9-14.5-8(c)(l). Indiana Code \\u00a7 36-9-14.5-8(c), therefore, permits the Board to spend CCDF money already in the fund to defray emergency expenses, but does not allow an increase in the CCDF's tax rate for the sole purpose of using the new tax revenues to pay for subsequent emergency expenses. Accordingly, the Board has not shown that the DLGF's finding is in contravention of Indiana Code \\u00a7 36-9-14.5-8(c).\\nB.\\nNext, the Board contends that the DLGF's finding that the Board sought to increase the CCDF's tax rate for an impermissible purpose is unsupported by substantial evidence. The Board explains that while the DLGF based its finding primarily on the testimony of its president, he never indicated, or at least meant to indicate, that the Board sought to increase the CCDF tax rate for an unauthorized purpose. (See Pet'r Br. at 10-11; Pet'r Reply Br. at 1; Oral Arg. Tr. at 22-23.) The Board further explains that even if its president had so testified, it is immaterial because the president cannot bind the Board to any particular course of action without its express authorization. (See Pet'r Reply Br. at 1-2; Oral Arg. Tr. at 22-23.)\\nThe Court will find that a final determination of the DLGF is supported by substantial evidence if it determines that a reasonable person, upon reviewing the administrative record in its entirety, could find enough relevant evidence to support the DLGF's determination. See Brown, 989 N.E.2d at 390. In making that determination, the Court may not reweigh the evidence nor judge the credibility of the witnesses who testified at the DLGF's hearing. See id.\\nThe administrative record reveals that ten taxpayers appeared at the DLGF's hearing and presented documentary and testimonial evidence in opposition to the Board's requested increase to the CCDF tax rate. (See, e.g., Supp'l Cert. Admin. R. at 2, 7-29.) The taxpayers explained that they opposed the request because certain county officials were fiscally irresponsible: they refused to reduce budgets and continued to spend money that they knew the county did not have. (See, e.g., Supp'l Cert. Admin. R. at 7-9.) The taxpayers also presented excerpts from two State Board of Accounts' Audit Reports that purportedly showed that the Board had previously used CCDF funds for unauthorized purposes. (-See Cert. Admin. R. at 129-30; Supp'l Cert. Admin. R. at 20.) The taxpayers maintained that the only way to rein in the Board and its spending, was to deny its request to increase the CCDF tax rate. (See, e.g., Supp'l Cert. Admin. R. at 16-21, 36-39.)\\nIn response, the Board's president testified that the Board's decision to increase the CCDF tax rate was based on the Um-baugh Plan's finding that increasing the CCDF tax rate \\\"could generate an additional $613,800 of property taxes\\\" and its suggestion that the \\\"revenues be transferred to the Rainy Day Fund to be used for operating disbursements.\\\" (See Supp'l Cert. Admin. R. at 30; Cert. Admin. R. at 190.) The president explained that the County's Insurance Fund was \\\"really, really depleted\\\" and that while the Board had \\\"voted [for $]400,000 of th[e] additional tax [revenue] to go to employee benefits in the form of health insurance premiums\\\" or the Rainy Day Fund for \\\"emergency situations!,]\\\" the Board would most likely put those revenues in the County's Insurance Fund. (See Supp'l Cert. Admin. R. at BO-32.)\\nBased on this evidence, a reasonable person could conclude that the Board saw an increase to the CCDF's tax rate as a mechanism to raise money to defray the County's insurance and emergency expenses. Indeed, Ordinance No. 18-2011 even states that given the County's budget crisis, an increase to the CCDF tax rate \\\"will create a mechanism by which the County's reserve funds might be replenished once the essential functions of County government are again fully funded[J\\\" (See Cert. Admin. R. at 11.) Neither Indiana Code \\u00a7 6-1.1-41 nor Indiana Code \\u00a7 36-9-14.5-2 authorize an increase to the CCDF tax rate for either of these purposes. See supra pp. 555-56. Accordingly, the Board has not shown that the DLGF's finding is unsupported by substantial evidence.\\nC.\\nFinally, the Board contends that the DLGF's finding that it sought to increase the CCDF tax rate for an impermissible purpose is arbitrary and capricious because it created a conflict between Indiana Code \\u00a7 36-1-8-5 and 36-1-8-5.1 where none had previously existed. (See Pet'r Br. at 2-3.) During the 2012 budget year, Indiana Code \\u00a7 36-1-8-5, in relevant part, provided\\nWhenever the purposes of a tax levy have been fulfilled and an unused and unencumbered balance remains in the fund, the fiscal body of the political subdivision shall order the balance of that fund to be transferred as follows, unless a statute provides that it be transferred otherwise: (1) Funds of a county, to the general fund or rainy day fund of the county, as provided in [Indiana Code \\u00a7 36-1-85.1].\\nInd.Code \\u00a7 36 \\u2014 1\\u20148\\u20145(b)(1) (2011). Indiana Code \\u00a7 36-l-8-5.1(d) stated that \\\"[i]n any fiscal year, a political subdivision may transfer under [Indiana Code \\u00a7 36-1-8-5] not more than than ten percent (10%) of the political subdivision's total annual budget for that fiscal year, adopted under IC 6-1.1-17, to the rainy day fund.\\\" Ind.Code \\u00a7 36-1-8-5.1(d) (2011) (amended 2013). The Board claims that the DLGF's finding created a conflict between Indiana Code \\u00a7 36-1-8-5 and 36-1-8-5.1 because it effectively altered their requirements by conditioning the Board's ability to use this budgetary tool on obtaining the DLGF's pre-approval. (See Pet'r Reply Br. at 2-3.)\\nA DLGF final determination is arbitrary and capricious if it is \\\" 'patently unreasonable' and is made 'without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion.' \\\" Board of Comm'rs of Cnty. of Jasper v. Vincent, 988 N.E.2d 1280, 1281 (Ind. Tax Ct.2013) (citation omitted). In this case, the Board has not shown that the DLGF's finding created a conflict between Indiana Code \\u00a7 36-1-8-5 and 36-1-8-5.1 by requiring that the Board obtain the DLGF's pre-approval be fore it transfers CCDF monies to the County's Rainy Day Fund. As already explained, the DLGF simply determined that Indiana Code \\u00a7 6-1.1-41 and Indiana Code \\u00a7 36-9-14.5 did not permit an increase to the CCDF's tax rate solely for the purpose of generating new revenues for the County's Rainy Day or Insurance Funds. Accordingly, the Board has not shown that the DLGF's finding is arbitrary and capricious on this basis.\\nCONCLUSION\\nFor all of the above-stated reasons, the Court AFFIRMS the final determination of the DLGF.\\n. The commissioner that voted against adopting Ordinance No. 18-2011 during the Board's first meeting did not attend the special meeting.- (See Cert. Admin. R. at 6-7, 162-64.)\\n. The Audit Reports stated that the disbursements were unauthorized because the Board failed to obtain an appropriation from the Clark County Council as required under Indiana Code \\u00a7 36-2-5-2(b) and because Ordinance No. 6-2004 that established the CCDF did not authorize any of the disbursements. (See Cert. Admin. R. at 129.)\\n. The Board attached several exhibits to its petition for review, but the administrative record does not indicate that the \\\"Analysis and Recommendations\\\" and the \\\"2012 Council Approved Budget\\\" were submitted to the DLGF during the administrative proceedings, (iCompare Pet'r Pet., Exs. B at 9, Ex. G at 1-9 with Cert. Admin. R.) As a result, the Court will not consider these two exhibits or any arguments related to them on appeal. See, e.g., Scopelite v. Dep't of Local Gov't Fin., 939 N.E.2d 1138, 1147 (Ind. Tax Ct.2010); Clark-Pleasant Cmty. Sch. Corp. v. Dep't of Local Gov't Fin., 899 N.E.2d 762, 768-69 (Ind. Tax Ct.2008) (explaining that the Court will only consider the evidence contained within the administrative record to determine whether the DLGF's factual findings are supported by substantial evidence and if its legal conclusions are correct).\\n. A \\\"legislative body\\\" is the board of commissioners in a county that is not subject to either Indiana Code \\u00a7 36-2-3.5 or Indiana Code \\u00a7 36-3-1. Ind.Code \\u00a7 36-1-2-9(1) (2011) (amended 2014). Clark County is not subject to either Indiana Code \\u00a7 36-2-3.5 or Indiana Code \\u00a7 36-3-1. (See Cert. Admin. R. at 121-22); see also Ind.Code \\u00a7 36-3-1 (2011) (regarding the government of Indianapolis and Marion County a/k/a Unigov, not the government of Clark County).\\n. In addition to the president, the Board's attorney explained at the hearing why the Board had not violated Indiana's Open Door Law. (See Supp'l Cert. Admin. R. at 2, 32-35.)\\n. The Board has also claimed that the DLGF's finding was improper because it substituted its judgment for that of the Board. (See Pet'r Reply Br. at 2-3.) The DLGF, however, did not substitute its judgment for that of the Board because it made no pronouncement about the prudence of the Board's request and it did not dictate how the Board should spend monies already in th\\u00e9 CCDF. See generally Murray v. Zook, 205 Ind. 669, 187 N.E. 890 (1933) (illustrating when one entity improperly supplants its judgment for that of another). Instead, the DLGF's finding merely explained that it must deny the Board's .request because the evidence indicated that the Board wanted to increase the CCDF's tax rate for a reason not expressly authorized under either Indiana Code \\u00a7 6-1.1-41 or Indiana Code \\u00a7 36-9-14.5.\"}"
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+"{\"id\": \"7186416\", \"name\": \"J. John MARSHALL and Marjorie Marshall, Appellants, v. ERIE INSURANCE EXCHANGE a/s/o Cindy Cain, Appellee\", \"name_abbreviation\": \"Marshall v. Erie Insurance Exchange\", \"decision_date\": \"2010-03-10\", \"docket_number\": \"No. 20A03-0908-CV-366\", \"first_page\": \"18\", \"last_page\": \"26\", \"citations\": \"923 N.E.2d 18\", \"volume\": \"923\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:52:38.193179+00:00\", \"provenance\": \"CAP\", \"judges\": \"BAKER, C.J., and BAILEY, J., concur.\", \"parties\": \"J. John MARSHALL and Marjorie Marshall, Appellants, v. ERIE INSURANCE EXCHANGE a/s/o Cindy Cain, Appellee.\", \"head_matter\": \"J. John MARSHALL and Marjorie Marshall, Appellants, v. ERIE INSURANCE EXCHANGE a/s/o Cindy Cain, Appellee.\\nNo. 20A03-0908-CV-366.\\nCourt of Appeals of Indiana.\\nMarch 10, 2010.\\nDonald E. Wertheimer, South Bend, IN, Attorney for Appellants.\\nGregory J. Haines, Rowe & Rowe, South Bend, IN, Attorney for Appellees.\", \"word_count\": \"3364\", \"char_count\": \"20316\", \"text\": \"OPINION\\nROBB, Judge.\\nCase Summary and Issue\\nJohn and Marjorie Marshall appeal the trial court's denial of their motion to correct error following its judgment in favor of Erie Insurance Exchange (\\\"Erie\\\") on Erie's claims for damages resulting from the Marshalls' negligent maintenance of a tree located on their property, which fell and damaged the home of Cindy Cain. For our review, the Marshalls raise five issues, which we consolidate and restate as whether the trial court abused its discretion when it denied their motion to correct error. Concluding the trial court did not abuse its discretion, we affirm.\\nFacts and Procedural History\\nJohn and Marjorie owned many properties, some individually and some jointly. In addition, John and Marjorie are partners in a business known as Multivest Properties, which manages rental properties John routinely made management decisions regarding properties owned by Marjorie especially after Marjorie became seriously ill early in 2006. For example, when contacted by the City of Elkhart regarding the need to clean up debris on a particular property, John would often take care of the issue without checking to see whether it was he or Marjorie who actually owned the lot. John admitted he could not tell whether he or Marjorie or both of them owned a particular property without checking the property records.\\nMarjorie owned a vacant lot located next to Cain's home in Elkhart. A tree stood near the boundary of the two lots on Marjorie's property. From the time she purchased the home Cain had concerns about the health of the tree and the danger it posed to her home. Cain telephoned Elk-hart code enforcement officer Mayfield Timmons regarding her concerns about the tree. Timmons determined the tree was likely located on Marjorie's property and contacted Marjorie's property manager to inform him the tree needed to be taken down. Timmons also spoke directly with John. John told Timmons he would have someone look at the tree and would get back to Timmons. Cain also informed a man who claimed to be the Marshalls maintenance worker and a woman who claimed her husband was the Marshalls new maintenance worker about her concerns regarding the tree. The man Cain spoke to agreed the tree should be taken down and told her he would speak with John about it.\\nJake Denlinger, a professional arborist, testified John asked him to look at the tree on Marjorie's vacant lot. Denlinger inspected the tree visually but did not take any samples of the tree's core. Denlinger testified he did not see enough evidence of decay in the tree to warrant removing the tree. After his initial testimony in the case, Denlinger returned to the vacant lot to look at the tree stump so he could determine what type of tree had fallen on Cain's house. Denlinger testified again later in the trial, stating the tree was a Basswood tree. Denlinger further testified it is difficult to judge the health of a Basswood tree without internal sampling because the trees do not show many exterior signs of decay. John did not contact Timmons after having Denlinger look at the tree.\\nOn December 31, 2006, the tree fell onto Cain's house knocking over the chimney and causing damage to the roof and structure of the house. Cain filed an insurance claim with Erie, which held her homeowner's insurance policy. Erie reimbursed Cain for the necessary repairs to her home minus Cain's deductible. Thereafter, Erie, acting as a subrogee for Cain, brought suit against the Marshalls for damages stemming from the Marshalls negligent maintenance of the tree Erie served notice upon Marjorie by first class mail addressed to the post office box number listed on the tax records for the vacant lot. John's counsel entered his appearance on behalf of Marjorie and filed Marjorie's answer to Erie's amended complaint.\\nThe trial court conducted a bench trial on November 12, 2008, and January 7, 2009, after which it allowed the parties to file written closing arguments and took the matter under advisement. On February 2, 2009, Marjorie passed away. On March 11, 2009, the trial court entered its judgment in favor of Erie. The Marshalls filed a motion to correct error on April 13, 2009, arguing inter alia: the trial court erred by failing to address the issue of insufficient service of process upon Marjorie; the trial court erred in finding the Marshalls owed a duty of care to Cain; the trial court erred in finding the Marshalls breached a duty of reasonable care; and the trial court erred by assigning liability to John. The trial court held a hearing on the motion to correct error on May 21, 2009, and subsequently denied the motion on May 26, 2009. The Marshalls now appeal.\\nDiscussion and Decision\\nI. Standard of Review\\nWe review a trial court's denial of a motion to correct error for an abuse of discretion. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind.Ct.App.2004). \\\"An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or when the trial court has misinterpreted the law.\\\" Pfaffenberger v. Jackson County Reg Sewer Dist., 785 N.E.2d 1180, 1183 (Ind.Ct.App.2003).\\nThe Marshalls raised several issues in their motion to correct error, which they also present in this appeal. We address the relevant issues in turn below.\\nII. Issues in the Marshalls Motion to Correct Error\\nA. Sufficiency of Service of Process Upon Marjorie\\nThe Marshalls argue Erie never achieved effective service of its complaint upon Marjorie, and therefore, the trial court lacked personal jurisdiction over her. Indiana Trial Rule 4 provides the trial court with jurisdiction over a party or person who \\\"is served with summons or enters an appearance.\\\" Trial Rule 4.1 allows service upon an individual to be accomplished by \\\"sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to [the individual's] residence, place of business [,] or [place of] employment with return receipt requested and returned showing receipt of the letter.\\\"\\nService of process was made to Marjorie at the post office box address listed on the tax records for the vacant lot. John testified the post office box was the mailing address for Multivest Properties, the couple's rental business. Therefore, Erie properly mailed the summons and complaint to Marjorie's place of business. However, the Marshalls argue Marjorie never personally received service of process and John was not authorized to receive service as her agent. Under Indiana law, service by mail is effective even if someone other than the intended recipient ultimately signs the return receipt. See Precision Erecting, Inc. v. Wokurka, 638 N.E.2d 472, 474 (Ind.Ct.App.1994). The return receipt indicating the service of process was received at the proper post office box number was signed by an unidentified party.\\nIn addition, Marjorie's attorney entered an appearance on her behalf and filed an answer. Although Marjorie's counsel raised the issue of improper service in her answer and mentioned it to the trial court prior to the beginning of the trial, counsel did not file a motion to dismiss for lack of personal jurisdiction or argue the issue to the trial court. Thereafter, counsel participated fully in the trial, although Marjorie was unable to personally attend due to her failing health. Therefore, Erie achieved effective service of process upon Marjorie, and the trial court obtained personal jurisdiction over Marjorie thereby. As a result, the trial court did not abuse its discretion when it denied the Mar-shalls' motion to correct error.\\nB. Existence of a Duty\\nTo recover in negligence, a plaintiff must establish:\\n(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (8) an injury to the plaintiff proximately caused by the breach.\\nPatterson v. Seavoy, 822 N.E.2d 206, 211 (Ind.Ct.App.2005).\\nAbsent a duty, there can be no breach and, therefore, no recovery in negligence. Id. In general, the existence of a duty is a question of law for the court to decide. Id. at 212. Surprisingly, this case presents an issue of first impression regarding whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree which falls from the landowner's property. In Valinet v. Eskew, our supreme court adopted the Restatement (Second) of Torts section 363 (the \\\"Restatement rule\\\"), which states:\\n(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.\\n(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.\\n574 N.E.2d 283, 285 (Ind.1991).\\nAt first glance, then, it would seem the Restatement rule forecloses the issue of whether the Marshalls owed a duty to protect Cain from the fallen tree However, to so hold would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure an obviously decayed and dangerous tree simply because it was a natural condition of the land. With this in mind, several of our sister states have retreated from a strict application of the Restatement rule when an urban or residential landowner has actual or constructive knowledge of a dangerous condition. See, e.g., Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486, 491 (2000) (\\\"a possessor or owner of urban or residential land who has actual or constructive knowledge of defective trees is under a duty to take corrective action for the protection of [a neighbor] on adjacent land\\\"), rev. denied, 142 Wash. 2d 1023, 11 P.3d 826 (Wash.2000); Ivancic v. Olmstead, 66 NY.2d 349, 497 N.Y.S.2d 326, 488 N.E.2d 72, 73 (N.Y.1985) (\\\"mo liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree\\\"), cert. de-Mied, 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 658 (1986); Mahurin v. Lockhart, 71 IIl.App.3d 691, 28 Ill.Dec. 356, 390 N.E.2d 523, 524-25 (1979) (\\\"a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin\\\"); Barker v. Brown, 236 Pa.Super. 75, 340 A.2d 566, 569 (1975) (\\\"a possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor (a) would have disclosed the defect and the risk involved therein, and (b) would have made it reasonably safe by repair or otherwise\\\").\\nWe agree with the reasoning of our sister states in departing from the strict application of the Restatement rule in the context of urban or residential property. The Restatement rule developed when land was mostly unsettled and uneultivat-ed. See Mahurin, 28 Ill.Dec. 356, 390 N.E.2d at 524. \\\"The landowner, unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes, was therefore shielded from liability out of necessity.\\\" Id. (citing William L. Prosser, Handbook of the Law of Torts, \\u00a7 57 at 354-56 (4th ed.1971)). In urban or residential areas, however, it would not be an undue burden for a landowner to inspect his or her property and take reasonable precautions against dangerous natural conditions. See id. Living in close quarters with one's neighbors in an urban or residential setting substantially increases the risk that a falling tree will cause damage to property or injury to persons, and, similar to the problem relating to a highway, the reduced size of property lots in an urban or residential setting makes the burden of time and money to inspect and secure trees on one's property relatively minor especially as compared to the potential damage that could result from the tree's fall. See Barker, 340 A.2d at 569. Therefore, we hold an urban or residential landowner does have a duty to protect neighbors from the risk of damage or injury caused by a falling tree.\\nWe turn now to what duty an urban or residential landowner owes. Comment e to subsection 2 of the Restatement rule states the duty a landowner owes to motorists on an adjacent public highway as:\\nno more than reasonable care . to prevent an unreasonable risk of harm to those in the highway, arising from the condition of the trees. In an urban area, where traffic is relatively frequent, land is less heavily wooded, and acreage is small, reasonable care for the protection of travelers on the highway may require the possessor to inspect all trees which may be in such dangerous condition as to endanger travelers. It will at least require him to take reasonable steps to prevent harm when he is in fact aware of the dangerous condition of the tree.\\nIllinois and Pennsylvania have adopted a similar duty of reasonable care. See Mahurin, 28 Ill.Dec. 356, 390 N.E.2d at 525; Barker, 340 A.2d at 569. We agree with their reasoning and extend our supreme court's ruling in Valinet, which applied to the duty owed to passing motorists, and hold that an urban or residential landowner has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners, arising from the condition of trees on his or her property. Whether the land in question is of sufficient population density to invoke the rule is a factual question for the fact finder. Valinet, 574 N.E.2d at 285. In addition, in determining whether the landowner exercised the requisite reasonable care, the fact finder must weigh the seriousness of the danger against the ease with which it may have been prevented. Id. In some circumstances, fulfilling this duty may require a landowner to conduct periodic inspections of his or her property. Id.\\nThe trial court, here, applied a duty of reasonable care to the Marshalls with respect to preventing the damage caused by the fallen tree. In light of our holding above, the trial court properly applied a duty of reasonable care to the Marshalls, and therefore, it did not abuse its discretion when it denied the Marshalls' motion to correct error.\\nC. Breach of Duty\\n\\\"If a duty of care exists, the determination of whether a breach of duty occurred is a factual question requiring an evaluation of the landowner's conduct with respect to the requisite standard of care.\\\" Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind.1990). If the facts are in dispute or if reasonable minds could draw different conclusions from undisputed facts, then the question of negligence is one for the trier of fact. Harris v. Traini, 759 N.E.2d 215, 223 (Ind.Ct.App.2001) (quoting Lincoln Operating Co. v. Gillis, 282 Ind. 551, 114 N.E.2d 873, 875 (1953)), trans. denied.\\nThe trial court heard evidence that code enforcement officer Timmons contacted the Marshalls to inform them of the dangerous nature of the tree and the need to remove it. In addition, the trial court heard testimony from several eye witnesses regarding the physical state of the tree and opinions as to the tree's state of decay. In rebuttal, the Marshalls provided evidence they contacted a tree specialist who did a superficial examination of the tree but did not recommend its removal. Because reasonable minds could draw different conclusions from the facts in evidence, it is for the trial court to determine whether the Marshalls conduct breached the duty of reasonable care. We will not reweigh the evidence or judge the credibility of witnesses, and we will sustain the trial court's judgment on any theory consistent with the evidence. Brennan v. Hall, 904 N.E.2d 383, 386 (Ind.Ct.App.2009). Sufficient evidence supports the trial court's judgment that the Marshalls breached their duty of reasonable care with respect to Cain. Therefore, the trial court did not abuse its discretion when it denied the Marshalls motion to correct error.\\nD. Assignment of Liability to John\\nFinally, the Marshalls argue the trial court erred when it assigned joint and several liability to John, who had no personal interest in the vacant lot. The evidence is undisputed that Marjorie owns the lot in her personal capacity and John had no ownership interest in the lot. However, the evidence is also undisputed that John managed the lot on Marjorie's behalf at least during 2006, when Marjorie became seriously ill. John hired and supervised the property maintenance person, and John communicated with Timmons regarding the condition of the lot and the tree. Thus, John acted as Marjorie's agent in the care of the vacant lot.\\nGenerally, \\\"(aln agent is not liable for harm to a person other than his principal because of his failure adequately to perform his duties to his principal, unless physical harm results from reliance upon\\nperformance of the duties by the agent, or unless the agent has taken control of land or other tangible things.\\\" Greg Allen Constr. Co. v. Estelle, 798 N.E.2d 171, 174 (Ind.2003) (quoting Restatement (Second) of Agency, \\u00a7 352 (1958)). Here, both exception conditions are met. John's testimony indicates he had taken control of the vacant lot with respect to its maintenance and upkeep. In addition, John specifically agreed to take action to address Tim-mons's concerns about the health of the tree. Cain relied upon John's performance of his duties as Marjorie's agent in addressing the danger posed by the decaying tree and sustained physical harm to her property as a result of John's failure to adequately protect her from that danger. Therefore, John is equally liable for his own negligence along with Marjorie. See Tolliver v. Mathas, 538 N.E.2d 971, 976 (Ind.Ct.App.1989) (\\\"An agent who commits a tortious act is equally liable with the principal.\\\") Therefore, the trial court properly found John jointly and severally liable and did not abuse its discretion when it denied the Marshalls' motion to correct error.\\nConclusion\\nThe trial court properly concluded Erie's service of its complaint upon Marjorie was sufficient, and the Marshalls owed a duty of reasonable care to protect Cain from harm caused by a tree falling from their property. In addition, sufficient evidence supports the trial court's finding that the Marshalls breached their duty of reasonable care. Finally, the trial court properly found John jointly and severally Hable for his own negligence. As a result, the trial court did not abuse its discretion when it denied the Marshalls motion to correct error, and the judgment of the trial court is affirmed.\\nAffirmed.\\nBAKER, C.J., and BAILEY, J., concur.\\n. Marjorie passed away after the conclusion of the bench trial but before the trial court issued its judgment.\\n. The record does not disclose the exact nature of the business relationship, but it is unlikely Multivest was directly associated with the property at issue here both because the property was titled solely in Marjorie's name and because the property is a vacant lot rather than a rental property.\\n. Erie initially filed suit against John only but later amended the suit to include Marjorie apparently after learning the property was titled in Marjorie's name.\\n. The record does not contain a transcript of the hearing.\\n. For the sake of this argument, we will assume the tree was a natural condition because Erie did not present any evidence to suggest otherwise.\"}"
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+"{\"id\": \"7211559\", \"name\": \"FIFTH THIRD BANK, Appellant-Defendant, v. KOHL'S INDIANA, L.P., and Kohl's Department Store, Appellees-Plaintiffs\", \"name_abbreviation\": \"Fifth Third Bank v. Kohl's Indiana, L.P.\", \"decision_date\": \"2009-12-18\", \"docket_number\": \"No. 82A01-0906-CV-272\", \"first_page\": \"371\", \"last_page\": \"379\", \"citations\": \"918 N.E.2d 371\", \"volume\": \"918\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:38:20.867248+00:00\", \"provenance\": \"CAP\", \"judges\": \"KIRSCH, J., and BARNES, J., concur.\", \"parties\": \"FIFTH THIRD BANK, Appellant-Defendant, v. KOHL'S INDIANA, L.P., and Kohl's Department Store, Appellees-Plaintiffs.\", \"head_matter\": \"FIFTH THIRD BANK, Appellant-Defendant, v. KOHL'S INDIANA, L.P., and Kohl's Department Store, Appellees-Plaintiffs.\\nNo. 82A01-0906-CV-272.\\nCourt of Appeals of Indiana.\\nDec. 18, 2009.\\nTerry G. Farmer, Catherine A. Nes-trick, Bamberger, Foreman, Oswald & Hahn, LLP, Evansville, IN, Attorneys for Appellant.\\nPeter A. Velde, Eric D. Johnson, Kight-linger & Gray, LLP, Indianapolis, IN, Attorneys for Appellees.\", \"word_count\": \"3458\", \"char_count\": \"21130\", \"text\": \"OPINION\\nNAJAM, Judge.\\nSTATEMENT OF THE CASE\\nFifth Third Bank (\\\"Fifth Third\\\") appeals from the trial court's grant of summary judgment in favor of Kohl's Indiana, L.P. and Kohl's Department Store (collectively \\\"Kohl's Indiana\\\"). In its complaint, Kohl's Indiana sought, in relevant part, a judgment requiring the Evansville-Van-derburgh Area Plan Commission (\\\"the Commission\\\") to assign to Kohl's Indiana the proceeds from letters of credit that Fifth Third had issued to the Commission as beneficiary. Fifth Third presents two issues for our review:\\n1. Whether the trial court erred when it concluded that letters of eredit Fifth Third issued to the Commission should be treated as performance bonds.\\n2. Whether the trial court erred when it concluded that Kohl's Indiana was a third party beneficiary of the letters of credit.\\nWe reverse and remand for further proceedings.\\nFACTS AND PROCEDURAL HISTORY\\nIn February 2005, Kohl's Indiana and Dennis Owens entered into an Operation and Easement Agreement whereby Owens agreed to construct a new Kohl's Department Store as part of the Carpentier Creek Pavilion Subdivision development (\\\"the Subdivision\\\") in Evansville Kohl's Indiana and Owens also entered into a Site Development Agreement, which provided in part that if Owens failed to perform the site improvement work to Kohl's Indiana's satisfaction, Kohl's Indiana had the option to take over the project and to charge Owens all expenses incurred to complete the subdivision.\\nThe Commission approved the Operation and Easement Agreement following a hearing. The Commission, which was responsible for making certain that the infrastructure improvements within the entire Subdivision were done properly, required Owens to provide letters of credit. Accordingly, Owens obtained four letters of credit from Fifth Third \\\"in order to assure the proper development of roads, bridges and other infrastructure within the Car-pentier Creek Pavilion Subdivision.\\\" Appellant's App. at 66. The letters of credit state as follows:\\nISSUING BANK:\\nFIFTH THIRD BANK, (SOUTHERN INDIANA)\\nBENEFICIARY:\\nEVANSVILLE-VANDERBURGH AREA PLAN\\nCOMMISSION\\nROOM 312 CIVIC CENTER COMPLEX\\nEVANSVILLE, IN 47708\\nAPPLICANT:\\nDENNIS OWENS\\n1101 NORTH 4th AVENUE\\nEVANSVILLE, IN 47710\\nfoo ock\\nRE: CARPENT[IJER CREEK PAVILION\\nWE HEREBY OPEN OUR IRREVOCABLE LETTER OF CREDIT IN YOUR FAVOR FOR THE ACCOUNT OF DENNIS OWENS FOR AN AMOUNT NOT TO EXCEED ($47,284.65)[ ] AVAILABLE BY YOUR ONE OR MORE CLEAN DRAFTS DRAWN AT SIGHT ON US.\\nDRAFTS MUST BE MARKED \\\"DRAWN UNDER FIFTH THIRD BANK, (SOUTHERN INDIANA) LETTER OF CREDIT NO. CIS403248, DATED JANUARY 26, 2005,[\\\"] AND ACCOMPANIED BY A SIGNED STATEMENT OF THE [COMMISSION] THAT DENNIS OWENS HAS FAILED TO MEET STATUTORY AND ORDINANCE REQUIREMENTS AND/OR THE STIPULATIONS OF PRIMARY APPROVAL WITH REGARD TO BASIC IMPROVEMENTS.\\nTHE AGGREGATE AMOUNT OF $47,284.65 MAY BE PERIODICALLY REDUCED UPON OUR RECEIPT OF A SIGNED STATEMENT FROM THE [COMMISSION] CERTIFYING THAT \\\"WORK ON ONE OR MORE OF THE PUBLIC SUBDIVISION IMPROVEMENTS HAS BEEN ACCEPTED AND/OR APPROVED BY THE DEPARTMENT HAVING THE AUTHORITY TO ACCEPT AND/OR APPROVE THE IMPROVEMENT\\u00ae), AND THAT DUE TO SUCH ACTION, THIS IRREVOCABLE LETTER OF CREDIT MAY BE REDUCED BY (AMOUNT TO BE SPECIFIED) BASED ON THE FUNDS SPECL FIED IN THE COST ESTIMATES FOR CARPENT[IJER CREEK PAVILION.L\\\"]\\nTHIS ORIGINAL LETTER OF CREDIT MUST BE PRESENTED AT TIME OF DRAW. WE HEREBY AGREE WITH YOU THAT ALL DRAFTS DRAWN IN COMPLIANCE WITH THE TERMS AND CONDL-TIONS OF THIS IRREVOCABLE LETTER OF CREDIT WILL BE DULY HONORED ON PRESENTATION AND DELIVERY OF THE DOCUMENTS SPECIFIED ABOVE TO FIFTH THIRD BANK . ON OR BEFORE JANUARY 26, 2006.\\nTHE LIABILITY AND OBLIGATIONS OF FIFTH THIRD BANK FOR THIS LETTER OF CREDIT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF INDIANA. IN THE EVENT OF ANY DISPUTE OR CONTROVERSY ARISING OUT OF THE LETTER OF CREDIT, WE AGREE THE FORUM FOR ANY CAUSE OF ACTION FILED BY ANY PARTY SHALL BE VANDERBURCH CoUnNnTyYy.\\nId. at 309-10.\\nOn February 13, 2006, Kohl's Indiana filed a complaint alleging in relevant part that Owens had \\\"breached the contract and failed to perform in numerous particulars as required by the Site Development Agreement[.]\\\" Id. at 52. Kohl's Indiana claimed damages in the amount of $3,508,315 and asked the trial court to order the Commission to \\\"draw on each and every one of [the] Letters of Credit to their full extent.\\\" Id. at 66. Further, Kohl's Indiana asked the trial court to order the Commission to assign the proceeds from the letters of credit to Kohl's Indiana.\\nFifth Third filed its Answer and Counter-Claim against Owens for \\\"breach of promissory notes and foreclosure of mortgages.\\\" Id. at 184. And Fifth Third subsequently moved to intervene as a defendant in those counts relevant to this appeal, which were against the Commission. The trial court granted the motion to intervene. Fifth Third then moved for summary judgment on the issue of whether Kohl's Indiana was entitled to benefit from the proceeds of the letters of credit. Following a bearing, the trial court entered summary judgment in favor of Kohl's Indiana as follows:\\nthe Court now being duly advised finds that there is no genuine issue as to any material facts, and that Kohl's is entitled to Summary Judgment as a matter of law. The Court specifically finds that the \\\"Letter of Credit\\\" herein should be treated as a performance bond, pursuant to the reasoning stated in Comment 6 of 1.C. [\\u00a7 ] 26-1-5.1-102%. The Court further finds that Kohl's may make a claim against the proceeds from the \\\"Letter of Credit\\\" as a third-party beneficiary.\\nIT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that Summary Judgment be, and the same is{,] hereby entered in favor of Kohl's and against Fifth Third Bank with regard to [the] Letter of Credit issue.\\nIT IS FURTHER ORDERED that there is no just reason for delay and that judgment shall be entered as to this issue.\\nId. at 44-45 (emphasis added). This appeal ensued.\\nSTANDARD OF REVIEW\\nWhen reviewing the grant of a summary judgment motion, we apply the same standard applicable to the trial court. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind.2009). Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We do not weigh the evidence, but will consider the facts in the light most favorable to the non-moving party. Wagner, 912 N.E.2d at 808. We must reverse the grant of a summary judgment motion if the record discloses an incorrect application of the law to those facts. Id.\\nIssue One: Letters of Credit\\nFifth Third first contends that the trial court erred when it concluded that the letters of credit should be treated as performance bonds. Letters of credit are governed by Article 5 of the Uniform Commercial Code as codified at Indiana Code Sections 26-1-5.1-101 to-118. A letter of credit is defined as a definite undertaking that satisfies the requirements of Indiana Code Section 26-1-5.1-104 by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value. Ind.Code \\u00a7 26-1-5.1-102(a)(10). And Indiana Code Section 26-1-5.1-104 provides that a letter of credit may be issued in any form that is a record and is authenticated by a signature or in accordance with the agreement of the parties or the standard of practice referred to in Indiana Code Section 26-1-5.1-108(e).\\nHere, the trial court concluded that \\\"the 'Letter of Credit' herein should be treated as a performance bond, pursuant to the reasoning stated in Comment 6 of I.C. [\\u00a7 ] 26-1-5.1-102.\\\" Appellant's App. at 45. The relevant portion of Comment 6 to Section 102 provides:\\nThe label on a document is not conclusive; certain documents labeled \\\"guarantees\\\" in accordance with European (and occasionally, American) practice are letters of credit. On the other hand, even documents that are labeled \\\"letter of credit\\\" may not constitute letters of eredit under the definition in Section 5-102(a). When a document labeled a letter of credit requires the issuer to pay not upon the presentation of documents, but upon the determination of an extrinsic fact such as [an] applicant's fail-wre to perform a construction contract, and where that condition appears on its face to be fundamental and would, if ignored, leave no obligation to the issuer under the docwment labeled letter of credit, the issuer's undertaking is not a letter of credit. It is probably some form of suretyship or other contractual arrangement and may be enforceable as such. See Sections 5-102(a)(10) and 5-103(d). Therefore, undertakings whose fundamental term requires an issuer to look beyond documents and beyond conventional reference to the clock, calendar, and practices concerning the form of various documents are not governed by Article 5. Although Section 5-108(g) recognizes that certain nondocumentary conditions can be included in a letter of credit without denying the undertaking the status of letter of eredit, that section does not apply to cases where the non-documentary condition is fundamental to the issuer's obligation .\\n(Emphasis added.)\\nOn appeal, Fifth Third contends that the letters of credit in this case are clearly labeled as such and require only that the Commission present documents to draw on the credits, Accordingly, Fifth Third maintains that they are letters of credit as a matter of law and not performance bonds. We must agree.\\nHere, each letter of credit requires the Commission to present to Fifth Third \\\"a signed statement that Dennis Owens has failed to meet statutory and ordinance requirements and/or the stipulations of primary approval with regard to basic improvements.\\\" See Appellant's App. at 309. Whether Owens has failed to meet the requirements or stipulations is to be determined by the Commission, not Fifth Third. Thus, Fifth Third is not required as the issuer to make \\\"the determination of an extrinsic fact\\\" before the Commission can draw on each letter of credit, and the exception set out in Comment 6 does not apply here. See Ind.Code \\u00a7 26-1-5.1-102 emt. 6. Indeed, at oral argument, Kohl's Indiana conceded that the letters of credit issued by Fifth Third are letters of credit and not performance bonds.\\nAs Professors James J. White and Robert S. Summers have acknowledged, \\\"there is an irresistible urge to analogize the letter of credit to other legal arrangements [such as performance bonds], and this has led to error.\\\" 3 James J. White & Robert S. Summers, Uniform Commercial Code \\u00a7 26-2137 (5th ed.2008). \\\"The prime purpose of the drafters of Article 5 was to 'set a substantive theoretical frame that describes the function and legal nature of letters of credit,\\\" a framework independent of contract, of guaranty, of third party beneficiary law, of the law of assignment, and of negotiable instruments.\\\" Id. The unique and rigid nature of letters of credit is what makes them the invaluable tools that they are in facilitating business transactions. As White and Summers have observed, \\\"a letter of credit is a letter of credit.\\\" Id. at 144.\\nHere, the letters of credit issued by Fifth Third are letters of credit as a matter of law. We hold that the trial court erred when it concluded that the letters of credit should be treated as performance bonds. Kohl's Indiana is not entitled to summary judgment on this issue.\\nIssue Two: Third Party Beneficiary\\nFifth Third next contends that the trial court erred when it concluded that Kohl's Indiana was a third party beneficiary of the letters of credit. Fifth Third asserts that Article 5, which governs letters of credit, does not provide for third party beneficiaries. In support of that contention, Fifth Third cites to Arbest Construction Co. v. First National Bank & Trust Co. of Oklahoma City, 777 F.2d 581 (10th Cir.1985). In Arbest, the United States Court of Appeals for the Tenth Circuit interpreted and applied the Oklahoma statutes codifying Article 5 of the UCC regarding whether an alleged third party beneficiary of a letter of credit could enforce said letter of credit. The court held that:\\nOklahoma has adopted the Uniform Commercial Code (U.C.C.) provisions on letters of credit. Okla. Stat. Ann. tit. 12A \\u00a7 5-101 to 5-117. Under those provisions, a letter of credit involves three parties: (1) an issuer (generally a bank) who agrees to pay conforming drafts presented under the letter of credit; (2) a bank customer or \\\"account party\\\" who orders the letter of credit and dictates its terms; and (8) a benefi-clary to whom the letter of credit is issued, who can collect monies under the letter of credit by presenting drafts and making proper demand on the issuer. See id. \\u00a7 5-108(1). A letter of credit thus involves three relationships-between the issuer and the account party, the issuer and the beneficiary, and the account party and the beneficiary (this last relationship being the underlying business deal giving rise to the issuance of the letter of credit). The simple result is that the issuer substitutes its credit, preferred by the beneficiary, for that of the account party. The arrangement facilitates commercial transactions.\\nThe three letter of credit relationships are legally distinct. See, e.g., Barclays Bank D.C.O. v. Mercantile National Bank, 481 F.2d 1224, 1238-89 (5th Cir.1973); Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 464-65 (2d Cir.1970). Further, the relationship between the issuer and the beneficiary is statutory, not contractual. As Professors White and Summers note:\\n\\\"The obligations, particularly those of an issuer to a beneficiary, that arise under a letter of credit are not exclusively contractual in nature, and it is unfortunate that some of the Code comments suggest as much. It is true that the issuer's eustomer and the beneficiary will ordinarily have a contract, for instance, for the purchase and sale of goods, for the construction of a ship, or the like, and it is also true that the issuer and the customer will ordinarily have a contract between them whereby the customer pays a fee and the issuer issues the letter of credit. But the resulting letter of credit is not itself a contract, and the issuer's obligation to honor drafts is not, strictly speaking, a contractual one to the beneficiary. The beneficiary does not enter into any agreement with the issuer. Indeed, prior to issuance of the letter of credit, issuer and beneficiary may be wholly unknown to each other. Yet once the letter of credit is established, the issuer becomes statutorily obligated to honor drafts drawn by the beneficiary that comply with the terms of the credit.\\\"\\nJ. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code \\u00a7 18-2, at 711 (2d ed.1980) (footnotes omitted) (emphasis in original) (hereinafter White & Summers).\\nUnder the U.C.C. framework an issuer like the bank has only two narrow groups of duties. First, it has statutory and contractual duties to its customer, the account party. See Okla. Stat. Ann. tit. 12A \\u00a7 5-109. Second, it has purely statutory duties to the beneficiary. See id. \\u00a7 5-114. These latter duties are especially limited. An issuer must honor a draft accompanied by proper demand. Id. It may ignore any improper demand. Id. And no provision in the Oklahoma statutes imposes duties on the issuer toward third parties who are neither named by the letter of credit nor proper assignees of the letter of credit .\\nThis rule limiting the issuer's duties is grounded in policy. The issuer is immune from responsibilities to police the underlying transaction because it lacks control over it, or possibly even knowledge of it. See Bank of Newport v. First National Bank, 687 F.2d at 1261-62. The issuer similarly lacks control over the selection of the beneficiary. This lack of control gives the letter of credit its commercial vitality. The issuer can write a letter of credit pursuant to the instructions of its credit-worthy customer without investigation of the underlying transaction. Id. When and if proper demand is made, it pays, again without investigation. The broad right of the issuer to ignore improper demand is a corollary to the strict duty of the issuer to honor proper demand.\\n*to\\nWe have found no decision contradiet-ing this statutory structure and holding that unnamed, nonassignee third parties, such as the plaintiff subcontractors, can make a proper demand on a letter of credit. The cases plaintiffs cite are in-apposite. Under the Oklahoma statutes, plaintiffs received no rights against the bank as issuer.\\n(Emphases added, footnotes omitted.)\\nIndeed, Indiana Code Section 26-1-5.1-103(d) states that the rights and obligations of an issuer (here, Fifth Third) to a beneficiary (here, the Commission) under a letter of credit are independent of the existence, performance, or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant and between the applicant and the beneficiary. Under Section 108(d), the issuer of a letter of credit has no duty to a third party not named as a beneficiary or properly designated as an assignee. We adopt the reasoning in Arbest and hold that Kohl's Indiana is not a third party beneficiary of the letters of credit issued by Fifth Third.\\nCONCLUSION\\nWe hold that the trial court erred when it concluded that the letters of credit here are to be \\\"treated as\\\" performance bonds and that Kohl's Indiana is a third party beneficiary of the letters of credit. Fifth Third, as issuer of the letters of credit, is obligated to pay under the terms of the letters of credit only if and when the Commission should present the letters and deliver the necessary documentation. Kohl's Indiana does not have any rights derived from the letters of credit. We note that Kohl's Indiana claims that its litigation against the Commission is ongoing. If Kohl's Indiana were to prevail in that litigation, then the Commission might draw on the letters of credit to satisfy a judgment. Regardless, we are not asked to consider and express no opinion concern ing any claim that Kohl's Indiana may have or assert against the Commission. The trial court erred when it granted summary judgment in favor of Kohl's Indiana.\\nReversed and remanded.\\nKIRSCH, J., and BARNES, J., concur.\\n. We heard oral argument in this case on December 2, 2009.\\n. Each letter of credit is for a different amount, ranging from $47,284.65 up to $230,245.31, but the letters of credit are otherwise identical.\\n. On appeal, Kohl's Indiana contends that this appeal should be dismissed because the summary judgment entry is not a final, ap-pealable order. But the trial court's use of the \\\"magic language,\\\" namely, that there is no just reason for delay and that judgment shall be entered, satisfies Indiana Trial Rule 56(C). See Ramco Indus., Inc. v. C & E Corp., 773 N.E.2d 284, 288 (Ind.Ct.App.2002).\\n. At oral argument, Kohl's Indiana asserted that the trial court erred when it granted summary judgment in its favor. In particular, Kohl's Indiana argued that the trial court should not have permitted Fifth Third to intervene and, in the alternative, that the summary judgment entry goes beyond the relief that Kohl's Indiana was seeking. But we need not address those issues for purposes of this appeal. We note, however, that our review of the record reveals that Kohl's Indiana has not preserved the issue of Fifth Third's motion to intervene for appellate review.\\n. \\\"As Bishop Butler once said, 'Everything is what it is and not another thing.'\\\" White & Summers \\u00a7 26-2 at 144.\\n. Even applying contract principles, Kohl's Indiana is not a third party beneficiary of the letters of credit. In order to enforce a contract by virtue of being a third party beneficiary, a claimant must show: a clear intent by the actual parties to the contract to benefit the third party; a duly imposed on one of the contracting parties in favor of the third party; and performance of the contract terms is necessary to render the third party a direct bene-{it intended by the parties to the contract. Id. During oral argument, Kohl's Indiana conceded that the evidence does not show an intent by the parties to make Kohl's Indiana a third party beneficiary of the letters of credit. Rather, Kohl's Indiana seeks only to pursue its litigation against the Commission, whereby Kohl's Indiana might indirectly obtain the proceeds from the letters of credit to satisfy a judgment in its favor.\"}"
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+"{\"id\": \"7214871\", \"name\": \"John Thomas PONTIUS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Pontius v. State\", \"decision_date\": \"2010-07-20\", \"docket_number\": \"No. 29A04-1001-CR-24\", \"first_page\": \"1212\", \"last_page\": \"1221\", \"citations\": \"930 N.E.2d 1212\", \"volume\": \"930\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:52:54.436295+00:00\", \"provenance\": \"CAP\", \"judges\": \"RILEY, J., and MATHIAS, J., concur.\", \"parties\": \"John Thomas PONTIUS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"John Thomas PONTIUS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 29A04-1001-CR-24.\\nCourt of Appeals of Indiana.\\nJuly 20, 2010.\\nDori E. Newman, Newman & Newman, PC, Noblesville, IN, Attorney for Appellant.\\nGregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.\", \"word_count\": \"3687\", \"char_count\": \"23630\", \"text\": \"OPINION\\nBRADFORD, Judge.\\nFollowing a bench trial, Appellant-Defendant John Thomas Pontius appeals his convictions for five counts of Possession of Child Pornography, a Class D felony, for which he received an aggregate sentence of three years in the Department of Correction, with 545 days executed and 550 days suspended to probation. Upon appeal Pontius claims that two of his convictions violate double jeopardy and that he received ineffective assistance of trial counsel. We affirm.\\nFACTS AND PROCEDURAL HISTORY\\nIn May of 2007, Indiana State Police Detective Andy Byers, who investigates internet crimes involving child exploitation, detected the transmission of certain suspect images to an Internet Protocol (\\\"IP\\\") address in Carmel. The dates of the transmission of these images ranged between February 19, 2007, and March 14, 2007. Detective Byers provided this information to Noblesville Police Detective Charles Widner, who determined the specific IP address to which the images had been transmitted.\\nAuthorities later executed a search warrant at the home of Pontiug's grandparents, who were the subscribers of the IP address at issue. Pontius had lived with his grandparents at certain times in 2007. The computer seized from the home contained a Maxtor 300 gigabyte hard drive (\\\"Maxtor 300\\\"). A search of the Maxtor 300 discovered four videos with the following names: \\\"8 Best little girl in a pink dress, r@ygold hello video (illegal underage lolita preteen pedo) mpg\\\" (\\\"Video 1\\\"), which was downloaded on February 17, 2007; \\\"Best Incest about 14yo cute pigtail german lolita tiny puffies, hairless coochie lots of positions(r@ygold underage pedo).mpg\\\" (\\\"Video 2\\\"), which was downloaded on February 17, 2007; \\\"fdsas-4yo girl pedo r@ygold hussyfan lolitaguy lsm pthe babyshivid.mpg\\\" (\\\"Video 3\\\"), which was downloaded on February 16, 2007; and \\\"Kid-Dee & Desi-Young Little Kiddy Childs-NOBULL 2 naked midteen girls affectionate, yg man has bit part few see 1.42(pedofilia)(lez)mpeg\\\" (\\\"Video 4\\\"), which was downloaded on February 16, 2007. All four videos were stored in a single folder.\\nAuthorities ultimately located Pontius at a residence in Westfield. Upon speaking to Pontius, authorities learned that he had downloaded certain materials on two separate computers using search words such as \\\"illegal\\\" and \\\"preteen.\\\" Tr. p. 64. Authorities then executed a search warrant at his parents' home in Sheridan and seized the computer there, which contained a Maxtor 80 gigabyte hard drive (\\\"Maxtor 80\\\"). A search of the Maxtor 80 discovered the following two additional videos: \\\"little girls mix (lolitas-preteens-reel kiddymov-r@ygold-hussyfans-underage-girls-childrenpedofilia-pthe-ptse-xxx-sexy). mpg\\\" (\\\"Video 5\\\"), which was downloaded on July 16, 2007; and \\\"8 Best little girl in a pink dress, r@ygold hello video (illegal underage lolita preteen pedo).mpg\\\" (\\\"Video 6\\\"), which was downloaded on July 16, 2007. Both videos were stored in a single folder.\\nOn July 27, 2007, the State charged Pontius with six counts of possession of child pornography. Counts 1-4 corresponded to Videos 1-4 on the Maxtor 300. Counts 5 and 6 corresponded to Videos 5 and 6 on the Maxtor 80. There is no dispute that Videos 1 and 6, which have the same name, are identical in content.\\nThe charging informations alleged, consistent with the statute, that Pontius had possessed videos of a child whom he \\\"knew to be less than sixteen (16) years of age or who appear[ed] to be less than sixteen (16) years of age.\\\" App. p. 10; see Ind.Code \\u00a7 35-42-4-4(c). At Pontius's bench trial, which was held on May 6 and May 20, 2009, the State's expert witness testified that the persons pictured in the videos were \\\"certainly . under the age of 18.\\\" Tr. p. 83. At the close of trial, defense counsel stated that he had not watched the videos in question. The trial court ultimately convicted Pontius of Counts 1-3 and 5-6, and it acquitted him of Count 4 on the basis that the individuals pictured \\\"could be persons who might be 18 years of age.\\\" Tr. p. 122. At his July 22, 2009 sentencing hearing, the trial court sentenced Pontius to concurrent sentences of three years on each count, with 545 days executed-365 of which were to be served at the Department of Correction and 180 at Hamilton County Community Corree-tions Work Release-and 550 days suspended to probation. This appeal follows.\\nDISCUSSION AND DECISION\\nUpon appeal, Pontius points to the identical content of Videos 1 and 6 and contends that his convictions for Counts 1 and 6 violate double jeopardy under both the federal and Indiana constitutions. Pontius also contends that his trial counsel was ineffective for failing to view these videos, causing prejudice by (1) permitting Ponti-us to be convicted of two allegedly identical counts, (2) impeding defense counsel's ability to cross-examine witnesses regarding the age of the participants in the video, and (3) undermining defense counsel's argument that Pontins's possession of the videos was not knowing or intentional.\\nI. Double Jeopardy\\nA. Federal Double Jeopardy\\nThe Federal Double Jeopardy Clause provides that no person shall \\\"be subject for the same offence to be twice put in jeopardy of life or limb.\\\" U.S. Const. amend. V. This constitutional provision includes protection from multiple punish, ments for the same offense. Brown v. State, 912 N.E.2d 881, 892 (Ind.Ct.App.2009), trans. denied.\\nPontius claims that his dual convictions pursuant to Indiana Code section 35-42-4-4(c) for Counts 1 and 6, which are based upon the same video, constitute impermissible multiple convictions in violation of double jeopardy principles. Ponti-us's argument in this regard presents an issue of statutory interpretation, which is an issue of law we review de novo. Brown, 912 N.E.2d at 893. The classic test for multiplicity is whether the legislature intended to punish individual acts separately or to punish the course of action which they make up. Id. (citing Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Unless there appears in the statute a clear intent to fix separate penalties for the possession of each image of child pornography, the issue should be resolved against turning a single transaction into multiple offenses. Id. (citing Am. Film Distribs., Inc. v. State, 471 N.E.2d 3, 5 (Ind.Ct.App.1984)).\\nLegislative intent in enacting a statute is the key consideration when determining whether the double jeopardy clause protects against multiple punishments for the same offense under a particular statute. Specifically, the whole point of whether multiple offenses of the same statute are committed during a single transaction focuses on the definition of the crime involved. Thus, the touchstone of whether the double jeopardy clause is violated is the legislature's articulated intent.\\nId. (quoting Robinson v. State, 835 N.E.2d 518, 521 (Ind.Ct.App.2005) (internal citations omitted)). \\\"'In analyzing double jeopardy claims based on multiple punishments, we utilize a method of statutory interpretation in which the court is asked to determine whether the legislature intended to impose separate sanctions for multiple offenses arising in the course of a single act or transaction\\\"\\\" Id. (quoting Robinson, 835 N.E.2d at 522).\\nThe crime of possession of child pornography is defined as follows:\\nA person who knowingly or intentionally possesses:\\n(1) a picture;\\n(2) a drawing;\\n(3) a photograph;\\n(4) a negative image;\\n(5) undeveloped film;\\n(6) a motion picture;\\n(7) a videotape;\\n(8) a digitized image; or\\n(9) any pictorial representation;\\nthat depicts or describes sexual conduct by a child who the person knows is less than sixteen (16) years of age or who appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political or scientific value commits possession of child pornography, a Class D felony.\\nInd.Code \\u00a7 35-42-4-4(c).\\nThis court has recently evaluated this statute in the context of a double jeopardy challenge. See Brown, 912 N.E.2d at 896. In determining whether an investigating detective's one-time, seven-minute Lime Wire search, which uncovered five dis tinct images of child pornography, could sustain the defendant's five separate convictions for possessing it, this court first considered the plain language of the statute. Id. at 893, 896. Specifically, the General Assembly had defined the crime of possession of child pornography by referencing objects in the singular (\\\"a picture,\\\" \\\"a videotape,\\\" \\\"any pictorial representation,\\\" etc.), suggesting that its clear intent was to make the possession of each separate picture or video a distinct occurrence of offensive conduct in violation of statute. See id. at 896. In addition, this court considered the policies behind this statute, including preventing the victimization of children and obstructing the growth of the child pornography industry. Id. at 895-96. In light of the statutory language and the policies behind it, the Brown court held that \\\"multiple convictions and punishments for possession of child pornography distinguished only by the image so possessed do not violate federal double jeopardy principles.\\\" Id. at 896.\\nAs evidenced by the above language, however, the Brown court's holding rested largely upon the fact that the five images at issue were separate and distinct. Here, the two digital video files at issue are identical and can be distinguished only by the computers they were contained on, the location of those computers, and the time of their downloads.\\nThe State argues that these distinctions are adequate to sustain separate conviec-tions. In support of its position, the State points to the New Hampshire case of State v. Ravell, 155 N.H. 280, 922 A.2d 685 (2007). In Ravell, the defendant was in possession of a CD-ROM containing pornographic images at the time of his arrest, and he was subsequently convicted for possession of child pornography based upon these images. Id. at 686. Later, the defendant was again convicted, in a separate county, based upon the presence of some of these same images on his home computer. Id. The defendant appealed his convictions on double jeopardy grounds. Id. In denying the defendant's claim, the Ravell court was particularly concerned with the language and purpose of its child pornography statute. Id. at 687. The Ravell court observed that the broad language of its statute, which referenced \\\"any visual representation,\\\" eriminalized the possession of each image, regardless of its duplicate nature. Id. at 688. The court additionally found that, consistent with this broad language, the statute's purpose was to aggressively prevent the proliferation of child pornography. Id. at 687-88. In the Ravell court's view, this purpose would not be served if, in proscribing the possession of child pornography, the volume of pornography or number of volitional acts nee-essary to obtain it were irrelevant. See id. at 687. Accordingly, the Ravell court found no double jeopardy violation in the defendant's separate convictions for possession of duplicate images. Id. at 688.\\nLike in Ravell, Indiana Code seetion 35-42-4-4(c) uses broad language, including the catchall \\\"any pictorial representation\\\" in proscribing the possession of child pornography. In addition, this court has similarly determined that our General Assembly's purpose underlying that statute is to prevent both child exploitation and the growth of the child pornography industry. We agree with the Ravell court that limiting convictions for \\\"double\\\" possession of duplicate copies of child pornography on different computers or hard drives dilutes these purposes. Whether \\\"original\\\" or in duplicate, the more images circulated of a particular child, the more that child is exploited. Similarly, the greater the sheer volume of images available, the larger and more profitable the child pornography industry becomes.\\nWere Videos 1 and 6 in the instant case the product of data back-up protocols or procedures, perhaps the broad language of section 35-42-4-4(c) would not apply. See Rovell, 922 A.2d at 688 (observing that automatic computer back-up may well present a distinguishable case). But here, while two of Pontius's convictions were based upon possession of a single digital video file, he downloaded that file at two separate times, onto two separate computers and hard drives located at two separate residences, as Videos 1 and 6. Through two different, volitional transactions, Pontius possessed the same child pornography in two separate places, and he therefore committed two separate crimes. See U.S. v. Planck, 493 F.3d 501, 504 (5th Cir.2007) (\\\"[Wlhere a defendant has images stored in separate materials, . the Government may charge multiple counts . as long as the prohibited images were obtained through the result of different transactions.\\\"). The fact that the crimes happened to involve the same images does not alter that fact. We find no federal double jeopardy violation.\\nB. Indiana Double Jeopardy\\nPontius also claims that his convictions for Counts 1 and 6 violate double jeopardy under the Indiana Constitution. Article I, Section 14 of the Indiana Constitution provides that \\\"No person shall be put in jeopardy twice for the same offense.\\\" In Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), the Supreme Court developed .a two-part test for Indiana double jeopardy claims, holding that\\ntwo or more offenses are the \\\"same offense\\\" in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.\\n(Emphasis in original). The \\\"statutory elements test\\\" referenced in Richardson is the same test enunciated in Blockburger. Brown, 912 N.E.2d at 896. We have already concluded that Counts 1 and 6 do not run afoul of federal double jeopardy principles under Blockburger. With respect to the \\\"actual evidence test,\\\" the Richardson court explained as follows:\\nUnder this inquiry, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the \\\"same offense\\\" in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.\\n717 N.E.2d at 53. The Supreme Court later expanded upon this analysis in Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002), as follows:\\nThe test is not merely whether the evi-dentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.\\n(Emphasis in original). Application of the actual evidence test requires the court to \\\" 'identify the essential elements of each of the challenged crimes and to evaluate the evidence from the [fact-finder's] perspec tive.'\\\" Lee v. State, 892 N.E.2d 1231, 1234 (Ind.2008) (quoting Spivey, 761 N.E.2d at 832). In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel. Id.; see Spivey, 761 N.E.2d at 832.\\nThe Indiana Supreme Court clarified the actual evidence test in Lee by holding that \\\"[mlultiple convictions do not violate Indiana's Double Jeopardy Clause if they logically could have been based on the same facts, but in light of the evidence, the instructions, the charges, and the argument of counsel, there is no reasonable possibility that the jury actually used exactly the same set of facts to establish both convictions.\\\" 892 N.E.2d at 1232.\\nHere, while the charging informations for Counts 1 and 6 were identical, as was the content of the videos at issue in those counts, the evidence used to prove each count was clearly distinct. Counts 1 and 6 were based upon the same digital video file contained on two separate computers and hard drives located at two separate residences and downloaded at two separate times. With respect to the arguments of counsel, there was no suggestion by either counsel that the evidence relating to Counts 1 and 6 was common or interchangeable. Given the two copies of the same, distinct digital video file, and the separate evidence used to prove the existence of those two copies, we are unpersuaded that there is a reasonable possibility that the trial court used exactly the same set of facts to establish both convie-tions. Accordingly, we reject Pontius's double jeopardy challenge under the Indiana Constitution.\\nII. Ineffective Assistance of Counsel\\nIneffective assistance of counsel claims are analyzed under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000). To succeed, the petitioner must demonstrate both deficient performance and resulting prejudice. Id. Regarding the first part of the Strickland test-counsel's performance-we presume that counsel provided adequate representation. Allen v. State, 749 N.E.2d 1158, 1166 (Ind.2001). According ly, \\\" '[clounsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference.\\\" \\\" Id. (quoting Williams v. State, 733 N.E.2d 919, 926 (Ind.2000)). The second part of the Strickland test-the prejudicial effect of counsel's conduct-requires the defendant to show \\\" 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\"\\\" Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Failure to satisfy either part of the Strickland test will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.\\nNotably, Pontius's ineffective-assistance-of-counsel claim is before us on direct appeal.\\nWhen the only record on which a claim of ineffective assistance is based is the trial record, every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight. It is no surprise that such claims almost always fail.\\nWoods v. State, 701 N.E.2d 1208, 1216 (Ind.1998) (quoting United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir.1991)).\\nA. Double Jeopardy\\nPontius contends that trial counsel rendered ineffective assistance by failing to view the videotapes in Counts 1 and 6, rendering him unable to argue on Ponti-us's bebalf that Counts 1 and 6 violate double jeopardy. Having concluded that Counts 1 and 6 do not violate double jeopardy, we find no prejudice on this ground.\\nB. Adequate Cross-Examination\\nPontius further contends that trial counsel's failure to view the videotapes at issue rendered him unable to effectively cross-examine the State's witnesses regarding the apparent age of the alleged children participating. Notably, pursuant to Indiana Code section 35-42-4-4(c), the requisite age of the child must be less than sixteen, yet the expert evidence and trial court's judgment were based upon the facts that the participants were under age eighteen. Nevertheless, a brief review of the evidence demonstrates that the videos in Counts 1, 8, 5, and 6 depict participants who are unquestionably pre-pubescent, rendering the sixteen-eighteen age discrepancy relatively immaterial. Given the obviously underage status of these participants, extensive cross-examination by defense counsel regarding the age of the victims would likely have served only to underscore the strength of the State's case.\\nAs for the video in Count 2, whose participant is in more of a pubescent/teenage stage, Pontius fails to show that thorough cross-examination on the matter would probably have created reasonable doubt regarding the participant's underage status. The title of the video indicates that its featured participant is a \\\"14yo\\\" and \\\"underage,\\\" and the participant pictured does not appear to be at a particularly advanced stage of development, reinfore-ing the conclusion that she is under the age of sixteen. Of course, the exact age of the participant is debatable. But Pontius's burden is to show a reasonable probability that additional cross-examination by defense counsel would have resulted in the determination that the participant was at least sixteen. Apart from pointing out that the participant has multiple ear piercings, Pontius points to no other facts in support of this conclusion. While multiple ear piercings are perhaps more generally associated with maturity than with youth, so is sexual activity, and the evidence in this case clearly demonstrates that age \\\"norms\\\" are totally-and purposefully-meaningless in this context. We are unpersuaded that the mere fact of ear piere-ings would have tipped the balance in favor of an acquittal on Count 2, even if the trial court had used the proper reference age of sixteen, rather than eighteen. In light of the evidence, Pontius's argument, and our strict standard of review, we find no prejudice.\\nC. Adequate Argument\\nPontius finally contends that defense counsel's failure to view the videotape undermined his argument that Ponti-us's possession of the videotapes was not knowing or intentional. According to Pon-tius, defense counsel's lack of familiarity with the videos contents demonstrated that he had not verified with Pontius that Pontius's possession was unintentional. Pontius fails to explain how discussions between defense counsel and himself regarding the specific contents of the videos would materially improve the argument that his possession was unintentional. Indeed, lack of familiarity with the contents just as easily reinforces Pontius's claim of ignorance as it undermines it. We find no prejudice.\\nIIH. Conclusion\\nHaving concluded that Pontius's convie-tions for Counts 1 and 6 do not violate double jeopardy, and having further concluded that Pontius's claims of ineffective assistance of trial counsel do not warrant relief, we affirm Pontius's convictions for five counts of possession of child pornography.\\nThe judgment of the trial court is affirmed.\\nRILEY, J., and MATHIAS, J., concur.\\n. Ind.Code \\u00a7 35-42-4-4(c) (2007).\\n. Lime Wire was similarly used in the instant case. 'The basic Lime Wire program is designed to allow computer users to share files with others and is available on-line for download to anyone searching for or looking to share files by key word, category, or name.\\\" Brown, 912 N.E.2d at 885 n. 3.\"}"
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+"{\"id\": \"78091\", \"name\": \"State of Indiana ex rel. Lukemeyer et al. v. Sumner, Judge\", \"name_abbreviation\": \"State ex rel. Lukemeyer v. Sumner\", \"decision_date\": \"1933-05-23\", \"docket_number\": \"No. 26,238\", \"first_page\": \"73\", \"last_page\": \"74\", \"citations\": \"205 Ind. 73\", \"volume\": \"205\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:07:00.799687+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Indiana ex rel. Lukemeyer et al. v. Sumner, Judge.\", \"head_matter\": \"State of Indiana ex rel. Lukemeyer et al. v. Sumner, Judge.\\n[No. 26,238.\\nFiled May 23, 1933.]\\nLeo H. Fisher and L. N. Savage, for relators.\\nW. E. Cox and Ely & Corn, for respondent.\", \"word_count\": \"483\", \"char_count\": \"2698\", \"text\": \"Per Curiam\\nAn alternative writ of mandamus issued from this court directed to the Honorable John L. Sumner, Judge of the Dubois Circuit Court of Indiana, the mandate of the writ being as follows:\\n\\\"Therefore, it is now ordered that John L. Sumner, Judge of the Dubois Circuit Court of Indiana, be and appear at Room No. 316 at the State House, Indianapolis, Indiana, on the 19th day of September, 1932, at 2:00 P. M. and show cause, if any there be, why he should not grant a change of venue on the application of relator, Citizens Trust Company, for a change of venue from himself on the hearing of the final report and exceptions thereto set for August 15, 1932, and that the said John L. Sumner be prohibited and restrained from further exercise of jurisdiction in said matter until the further order of this court.\\\"\\nThe question presented by this original action is whether, under Acts of 1929, ch. 6, p. 12, \\u00a7443, Burns Ann. Ind. St. Supp. 1929, a receiver is entitled to a change of venue for a hearing upon his final report when exceptions thereto have been filed. The question was thoroughly discussed in oral argument and both parties have filed comprehensive briefs. We are of the opinion that the act in question must be construed to cover a hearing wherein the issues consist of exceptions to a final report of a receiver of an insolvent. We do not see how the following language of the act can be construed otherwise:\\n\\\"When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom said cause is pending shall change the venue thereof upon the application of either party to such cause, made upon affidavit, of either party or his attorney, showing any one or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions.\\\"\\nThe mandate of the alternative writ of mandamus was confined to the single point of change of venue from the judge on the hearing of the final report of the receiver. As thus limited the alternative writ is made absolute.\\nThe respondent, the Honorable John L. Sumner, Judge of the Dubois Circuit Court, is hereby directed to grant relator's application for a change of venue from himself as Judge of the Dubois Circuit Court in the matter of the hearing on the exceptions to the final report of relator as receiver.\"}"
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+"{\"id\": \"8371402\", \"name\": \"In re the Matter of Allen C. MATTSON. Michael A. Quillen, Appellant, v. State of Indiana, Appellee\", \"name_abbreviation\": \"Quillen v. State\", \"decision_date\": \"2007-11-16\", \"docket_number\": \"Nos. 05A02-0701-CR-95, 05A05-0701-CR-6\", \"first_page\": \"772\", \"last_page\": \"776\", \"citations\": \"876 N.E.2d 772\", \"volume\": \"876\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:27:12.161450+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before the Panel: The Honorable L. MARK BAILEY, The Honorable MELISSA M. MAY, and The Honorable GEORGE B. HOFFMAN, JR., Senior Judge.\", \"parties\": \"In re the Matter of Allen C. MATTSON. Michael A. Quillen, Appellant, v. State of Indiana, Appellee.\", \"head_matter\": \"In re the Matter of Allen C. MATTSON. Michael A. Quillen, Appellant, v. State of Indiana, Appellee.\\nNos. 05A02-0701-CR-95, 05A05-0701-CR-6.\\nCourt of Appeals of Indiana.\\nNov. 16, 2007.\\nBefore the Panel: The Honorable L. MARK BAILEY, The Honorable MELISSA M. MAY, and The Honorable GEORGE B. HOFFMAN, JR., Senior Judge.\", \"word_count\": \"2178\", \"char_count\": \"13161\", \"text\": \"PER CURIAM.\\nThis matter came before the Court as the result of an October 29, 2007 order requiring attorney Allen C. Mattson (\\\"Mattson\\\") to appear and show cause why he should not be held in contempt of court for his disregard of the Indiana Supreme Court's Indiana Rules of Appellate Procedure and the orders of the Indiana Court of Appeals. The conduct in question occurred during Mattson's representation of Michael A. Quillen, a criminal defendant for whom Mattson had been court-appointed appellate counsel. During the course of the contempt proceedings, Mattson brought to the attention of the Court that he had behaved similarly in Emigdio Lopez v. State of Indiana, Cause No. 05A05-0701-CR-6.\\nFollowing the issuance of the October 29, 2007 order, the Court of Appeals filed an Information In Support of a Rule To Show Cause (\\\"Information\\\") outlining the allegations of contempt against Mattson. The October 29, 2007 order required Matt-son to appear and show cause at a hearing conducted on November 14, 2007. At the November 14, 2007 hearing, Mattson admitted the veracity of the allegations contained in the Information, many of which are summarized below.\\nOn May 10, 2006, Mattson was appointed trial counsel by the Honorable Bruce C. Bade, Blackford Circuit Court, to represent Michael A. Quillen (\\\"Quillen\\\"). Following a jury trial, on August 31, 2006, Quillen was convicted of one count of Child Molesting as a class A felony and four counts of child molesting as a class C felony. On September 26, 2006, Quillen was sentenced to thirty years. On September 26, 2006, Mattson was appointed to represent Quillen to perfect his appeal.\\nOn October 26, 2006, counsel filed a Notice of Appeal on behalf of Quillen. On February 20, 2007, the Notice of Completion of Transcript was filed, making Quil-len's opening Brief due on or before March 21, 2007. On March 14, 2007, Mattson filed his first Motion for Extension of Time In Which To File Brief. The extension of time to file brief was granted to and including April 16, 2007.\\nOn April 13, 2007, Mattson filed a Second Verified Motion For Extension Of Time To File Appellant's Brief. The extension was granted to and including May 9, 2007, as a final extension. Mattson failed to file the Appellant's Brief and Appendix by that deadline. On May 24, 2007, Mattson filed a Belated Motion For Extension Of Time To File Appellant's Brief. On June 4, 2007, Appellant's Belated Motion For Extension Of Time To File Appellant's Brief was granted, and Appellant was ordered to file his Brief and Appendix on or before Friday, June 8, 2007, as a final extension.\\nOn June 8, 2007, Mattson tendered a Plea For Extension Of Time To File Appellant's Brief with an insufficient Certificate of Service. Following the issuance of a Notice of Defect by the Clerk of this Court, this Plea was replaced on June 22, 2007 with a corrected filing, and on July 5, 2007, Appellant was granted until July 10, 2007, to file his Brief and Appendix. Matt-son failed to file the Appellant's Brief and Appendix by that deadline.\\nOn July 30, 2007, Mattson filed a Belated Notice Of Cause And Plea For Extension Of Time To File Appellant's Brief (\\\"Belated Notice\\\") asking for an additional 30 days to obtain a corrected Record and file the Appellant's Brief. In this Belated Notice, Mattson contended that the Clerk's Record was incomplete as it contained no copy of the search warrant, evidence of a search warrant or inventory. On July 25, 2007, the Clerk of Blackford Circuit Court had filed her Amended Notice of Completion of Clerk's Record, noting the correction to the Record.\\nOn August 13, 2007, Appellant was granted an additional fifteen days, as a final extension. In addition to stating that it was a final extension, this Court's order noted, \\\"more than 130 days have elapsed since the due date for filing Appellant's Brief and Appendix. Appellant's Belated Notice Of Cause And Plea For Extension Of Time To File Appellant's Brief is not well taken.\\\" The August 13, 2007 order also contained the express warning that: \\\"Failure to comply with this order shall subject this appeal to dismissal.\\\"\\nThe Brief and Appendix were not timely filed, and Appellant's appeal was dismissed on September 12, 2007. On September 22, 2007, Mattson tendered Appellant's Prayer To Reinstate Appeal. This Prayer To Reinstate Appeal was returned to Mattson on September 28, 2007, with a Notice of Defect indicating a defective Certificate of Service.\\nOn October 5, 2007, Mattson filed Appellant's Prayer To Reinstate Appeal (Resubmitted). On October 29, 2007, the Prayer To Reinstate Appeal (Resubmitted) was granted. Quillen's appeal was reinstated under the above-referenced Cause Number, and Mattson was ordered to file Appellant's Brief and Appendix within five days of the date of the order. In addition to reinstating the appeal, the October 29, 2007 order also required Mattson to appear at the hearing on November 14, 2007.\\nOn November 14, 2007, Mattson faxed a Response to the Court in anticipation of the hearing that day. In his Response, Mattson indicated that he had generated a situation similar to that outlined above as court-appointed appellate counsel in Lopez. In Lopez, Mattson was to perfect the appeal of Emigdio Lopez, who had been convicted of Murder on March 2, 2006, and was sentenced to 65 years on October 5, 2006. A review of the appellate docket in Lopez on November 14, 2007, showed that Mattson was the attorney of record for Emigdio Lopez, and that the Appellant's Brief and Appendix were due, pursuant to a final extension, on or before July 30, 2007. As of November 14, 2007, the Appellant's Brief and Appendix had not been filed, and the case had been transmitted to the Court to be dismissed. At the November 14, 2007 hearing, Mattson confirmed this, and asserted that his client was not at fault.\\nAt the November 14, 2007 hearing, Mattson also described a series of physical health problems from which he had been suffering, and expressed a commitment to receive further medical treatment. Following the hearing, the Court recessed and returned to issue its findings and conclusions in open court.\\nThe Court found Mattson in contempt. The Court acknowledged that in mitigation of his contempt, Mattson presented evidence in his Response and at the hearing that he had been suffering from physical health issues that had impaired his ability to be productive and timely comply with this Court's orders and deadlines. As a result, the Court ordered the following, among other things: (1) Mattson must withdraw his appearance for Quillen and Lopez, and the Brief and Appendix that Mattson had tendered on behalf of Quillen would be returned to him; (2) The Black-ford Circuit Court was ordered to appoint new counsel to represent Quillen and Lopez within 10 days; (3) newly-appointed counsel was directed to file the respective Appellants' Briefs and Appendices within 60 days of the' date of the order; (4) Mattson must forfeit all appellate fees for his legal services in the matters of Michael A. Quillen v. State of Indiana, Cause No. 05A02-0701-CR-95 and Emigdio Lopez v. State of Indiana, Cause No. 05A05-0701-CR-6, and any appellate fees already paid to Mattson shall be returned to the payor; (5) a fine in the amount of $250.00 was imposed upon Mattson for his contempt, however, the payment of the fine was stayed subject to Mattson successfully contacting the Indiana Judges and Lawyers Assistance Program (JLAP). See In Re The Matter Of Allen C. Mattson (published order).\\nAs indicated in that order, we now issue this published opinion to document the circumstances surrounding the finding of contempt against Mattson.\\nIN RE THE MATTER OF ALLEN C. MATTSON\\nMICHAEL A. QUILLEN, Appellant,\\nv.\\nSTATE OF INDIANA, Appellee,\\nEMIGDIO LOPEZ, Appellant,\\nv.\\nSTATE OF INDIANA, Appellee.\\nORDER\\nJOHN G. BAKER, Chief Judge.\\nThese matters came before the Court as the result of an October 29, 2007 order requiring attorney Allen C. Mattson (\\\"Mattson\\\") to appear and show cause why he should not be held in contempt of court for his disregard of the Indiana Supreme Court's Indiana Appellate Rules and the orders of the Indiana Court of Appeals. The conduct in question occurred during Mattson's representation of Michael A. Quillen, a criminal defendant for whom Mattson had been appointed appellate counsel by the Blackford Circuit Court. During the course of the contempt proceedings, Mattson brought to the attention of the Court that his conduct had been similar in Emigdio Lopez v. State of Indiana, Cause No. 05A05-0701-CR-6. Mattson had also been appointed by the Blackford Circuit Court to serve as appellate counsel for Lopez in that case.\\nThe October 29, 2007 order required Mattson to appear and show cause at a hearing conducted on November 14, 2007. Following the issuance of the October 29, 2007 order, the Court of Appeals filed an Information In Support of a Rule To Show Cause (\\\"Information\\\") outlining the allegations of contempt against Mattson. At the November 14, 2007 hearing, Mattson admitted the veracity of the allegations contained in the Information.\\nIn addition, on November 14, 2007, Mattson faxed a Response to the Court in anticipation of the hearing that day. In his Response, Mattson identified the Lopez case as one the Court may also want to consider during the contempt proceedings. A review of the docket in Lopez v. State on November 14, 2007, showed that Mattson was the attorney of record for Lopez, and that the Appellant's Brief and Appendix were due, pursuant to a final extension, on or before July 30, 2007. As of November 14, 2007, the Appellant's Brief and Appendix had not been filed, and the case had been transmitted to the Court to be dismissed. At the November 14, 2007 hearing, Mattson confirmed this.\\nFollowing the hearing, the Court took a brief recess and returned to issue its findings in open court.\\nHaving reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:\\n(1) Allen C. Mattson is found to be in contempt of this Court.\\n(2) The Clerk of this Court is DIRECTED to file the Response tendered by Mattson on November 14, 2007.\\n(3) Mattson is ORDERED to withdraw his appearance for Michael A. Quillen in Cause No. 05A02-0701-CR-95 and Emigdio Lopez in Cause No. 05A05-0701-CR-6 within three days of the date of this order.\\n(4) The clerk of this Court is DIRECTED to return to Mattson the Appellant's Briefs and Appendix tendered by Mattson in 05A02-0701-CR-95.\\n(5) The Blackford Circuit Court is ORDERED to appoint new counsel to represent Michael A. Quillen and Emigdio Lopez in their respective criminal appeals within 10 days of the date of this order.\\n(6) Counsel newly appointed to represent Michael A. Quillen and Emigdio Lopez are ORDERED to file their respective Appellant's Briefs and Appendices within 60 days of the date of this order.\\n(7) Mattson shall FORFEIT all appellate fees for his legal services in the matters of Michael A. Quillen v. State of Indiana, Cause No. 05A02-0701-CR-95 and Emigdio Lopez v. State of Indiana, Cause No. 05A05-0701-CR-6. Appellate fees previously paid to Mattson shall be returned to the payor within 10 days of the date of this order.\\n(8) Mattson shall pay a fine in the amount of $250.00 for his contempt. Matt-son is directed to the Indiana Judges and Lawyers Assistance Program (JLAP). The payment of the fine is stayed pending the outcome of his contact with JLAP.\\n(9) The Clerk of this Court is DIRECTED to send a copy of this order to the Allen C. Mattson, the parties, the State Public Defender, the Blackford County Public Defender Agency, the Honorable Bruce C. Bade, Blackford Circuit Court Judge, and the Blackford Circuit Court Clerk.\\n(10) The Blackford Circuit Court Clerk shall file a copy of this order under Lower Cause Nos. 05C01-0504-FA-12 and 05C01-0404-MR-ll.\\n(11) An opinion setting forth the factual findings and conclusions made by the Panel shall be handed down in conjunction with this order.\\n(12) The Clerk of this Court is directed to send copies of said order to the West Publishing Company and to all other ser vices to which published orders are normally sent.\\nORDERED this 16th day of November, 2007.\\nBAILEY, MAY, JJ., HOFFMAN, Sr.J., concur. '\\n. JLAP, established pursuant to Indiana Admission and Discipline Rule 31, provides assistance to judges, lawyers, and law students who suffer from physical or mental disabilities resulting from disease, chemical dependency, mental health problems, or age that impair their ability to practice or serve.\\n. JLAP, established pursuant to Indiana Admission and Discipline Rule 31, provides assistance to judges, lawyers, and law students who suffer from physical or mental disabilities resulting from disease, chemical dependency, mental health problems, or age that impair their ability to practice or serve.\"}"
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+"{\"id\": \"8446805\", \"name\": \"Joshua MAXWELL, Appellant, Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Maxwell v. State\", \"decision_date\": \"2005-12-30\", \"docket_number\": \"No. 49A05-0504-CR-233\", \"first_page\": \"1285\", \"last_page\": \"1291\", \"citations\": \"839 N.E.2d 1285\", \"volume\": \"839\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:17:53.923703+00:00\", \"provenance\": \"CAP\", \"judges\": \"KIRSCH, C.J., and ROBB, J., concur.\", \"parties\": \"Joshua MAXWELL, Appellant, Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"Joshua MAXWELL, Appellant, Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 49A05-0504-CR-233.\\nCourt of Appeals of Indiana.\\nDec. 30, 2005.\\nTransfer Denied March 9, 2006.\\nJohn Pinnow, Greenwo\\u2018od, for Appellant.\\nSteve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appel-lee.\", \"word_count\": \"2533\", \"char_count\": \"15591\", \"text\": \"OPINION\\nMAY, Judge.\\nJoshua Maxwell appeals his convictions of murder, confinement as a Class B felony, arson as a Class B felony, and theft as a Class D felony. He raises one issue, which we restate as whether the trial court erred by admitting his confessions into evidence. We affirm.\\nFACTS AND PROCEDURAL HISTORY\\nOn September 10th, lith, and 12th of 2000, Maxwell and his girlfriend, Tessie McFarland, confined Robby Bott, stole property from Bott's residence, forced Bott to buy items for them at Meijer, killed Bott by shooting him in the face and strangling him, put him in the trunk of his own car, and set Bott and his car on fire. Maxwell and McFarland then fled to California.\\nOn October 17, 2000, police in San Francisco attempted to conduct a routine traffic stop of Maxwell and McFarland because their car had run a red light. A vehicle chase ensued, shots were fired, and Maxwell eventually crashed the car. McFarland was shot, and Maxwell sustained a one-and-a-half by two inch abrasion on the side of his forehead. Inside their vehicle, police discovered a 9 mm firearm.\\nPolice took Maxwell to the station. Inspector Kelly Carroll of the San Francisco Police Department informed Maxwell he would stay with Maxwell until the other inspectors arrived for an interview. Carroll offered Maxwell a soda or water. Paramedics treated the small abrasion on his Maxwell's face from the crash, and then they left. During the time they waited, Inspector Carroll and Maxwell had a short conversation, but Carroll did not question Maxwell regarding the alleged crimes.\\nThereafter, Inspector Tony Camilleri of the San Francisco Police Department arrived and advised Maxwell of his Miranda rights. Maxwell did not appear intoxicated, and he appeared to understand his rights. Maxwell agreed to speak with the officers and gave a taped interview. In the interview Maxwell admitted purchasing merchandise with Bott's credit cards, stealing from Bott, confining Bott, shooting Bott in the head, killing Bott, and setting Bott's body on fire.\\nLess than two hours later, Maxwell gave a second videotaped confession to Inspector Casillas of the San Francisco Police Department. This confession was essentially the same as the first.\\nThen, about two hours after the second confession, Maxwell discussed the case via speaker phone with Captain Joel Rush of the Speedway, Indiana, Police Department. Maxwell detailed the crimes he committed against Bott, and San Francisco police videotaped this confession as well.\\nThe State charged Maxwell with murder, confinement, arson, and theft. Maxwell filed a motion to suppress the videotaped confessions, and the trial court denied that motion. At trial, the State offered as evidence the three videotapes of Maxwell confessing. Over Maxwell's objection, the court admitted the videotapes. The jury found Maxwell guilty as charged. The court sentenced Maxwell to sixty-five years for murder, three years for confinement, twenty years for arson, and three years for theft. It then ordered all those sentences served consecutively.\\nDISCUSSION AND DECISION\\nThe admission of evidence is left to the discretion of the trial court, and we reverse only for an abuse of that discretion. See Packer v. State, 800 N.E.2d 574, 578 (Ind.Ct.App.2008) (defendant's argument regarding denial of his motion to suppress more appropriately framed as error in admission of evidence at trial), trans. denied 812 N.E.2d 795 (Ind.2004). An abuse of discretion has occurred only if the trial court's decision is clearly against the logic and effect of the facts and cireumstances before the court. Id.\\nWhen a defendant challenges the admissibility of a confession, the State has the burden to prove beyond a reasonable doubt the statement was voluntarily given. Fields v. State, 679 N.E.2d 18315, 1320 (Ind.1997). Maxwell signed a waiver of rights form; however, a \\\"signed waiver is not conclusive evidence of a knowing, intelligent and voluntary waiver.\\\" Houchin v. State, 581 N.E.2d 1228, 1231 (Ind.1991) (overruled on other grounds by Smith v. State, 689 N.E.2d 1238 (Ind.1997)). Rather the trial court, and courts on appeal, must consider the totality of the circumstances surrounding the confession. Fields, 679 N.E.2d at 1820.\\n\\\"A court may not admit involuntarily given statements into evidence.\\\" Id. Rather, a court must safeguard a defendant's right not to confess due to \\\" 'inducement, violence, threats or other improper influences'\\\" that \\\" 'overcome the free will of the accused.'\\\" Id. (quoting Collins v. State, 509 N.E.2d 827, 880 (Ind.1987)).\\nWhen we review a trial court's determination regarding the voluntariness of a statement, we must find \\\"the determination clearly appears in the record.\\\" Id. We consider the evidence supporting the trial court's decision and \\\"any unrefuted evidence in the defendant's favor.\\\" Houchin, 581 N.E.2d at 12831.\\nA. Missouri v. Seibert\\nFirst, Maxwell analogizes his situation to that in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 648 (2004). The Supreme Court summarized that case as follows:\\nThis case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, 384 U.S. 486 [86 S.Ct. 1602, 16 L.Ed.2d 694] . (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Mi-ranmda's constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.\\nId. at 604, 124 S.Ct. 2601.\\nMaxwell acknowledges his situation is not exactly like Seibert, because Maxwell did not confess to committing the crime prior to the officers giving him his Mi-ramnda warnings. Nevertheless, he believes we should extend Seibert to cover situations where police have any conversation with a suspect without giving the Miranda warnings. Under the facts herein, we decline his invitation.\\nNot only did Maxwell not confess prior to being given his Miranda warnings, the record contains no suggestion any officer interrogated Maxwell prior to giving him Miranda warnings. During the hearing on the motion to suppress, Inspector Carroll gave the following testimony regarding his time with Maxwell prior to Miranda warnings:\\nQ. I'm sorry-inspector. And when that-before this taped statement began did you have conversation with Mr. Maxwell?\\nA. Yes.\\nQ. Okay. Was that then before he was formally advised of his Miranda warnings?\\nA. Yes.\\nQ. Okay. And in the conversation that you had with Mr. Maxwell before he was given his Miranda warnings was he asked pertinent questions regarding the case-this case?\\nA. No.\\nQ. Okay. What was the substance of the conversation-the pre-Miranda warning conversation that you had with Mr. Maxwell?\\nA. I explained to Mr. Maxwell that essentially I would sit there and wait with him until another inspector-in this case Inspector Camilleri arrived at our location which was an interview room at 850 Bryant in room 450 of that building and I recall offering him a drink of some sort whether it was water or soda but essentially explained to him that I would be waiting there until another inspector relieved me to handle whatever further investigation was to be undertaken. Inspector Camilleri along with his partner Inspector Casillas that's C-A-S-I-LL-A-S were the on call team that day. I did not have on call responsibilities and so essentially I was just holding down the fort as it were.\\nQ. Okay. So would it be correct for me to say that the pre-Miranda conversation that you had with Mr. Maxwell did not involve any questioning regarding the facts of this case?\\nA. That's absolutely correct.\\n(Tr. at 285-36.) The trial court's determination that Maxwell's confession was not involuntary for the reasons discussed in Seibert is supported by evidence that appears clearly in the record.\\nB. Mincey v. Arizona\\nNext, Maxwell claims his confessions were involuntary in the same way the confession was involuntary in Mincey v. Arizona, 487 U.S. 385, 98 S.Ct. 2408, 57 LEd.2d 290 (1978). The facts in Mincey were these:\\nMincey was brought to the hospital after the shooting and taken immediately to the emergency room where he was examined and treated. He had sustained a wound in his hip, resulting in damage to the sciatic nerve and partial paralysis of his right leg. Tubes were inserted into his throat to help him breathe, and through his nose into his stomach to keep him from vomiting; a catheter was inserted into his bladder. He received various drugs, and a device was attached to his arm so that he could be fed intravenously. He was then taken to the intensive care unit.\\nAt about eight o'clock that evening, Detective Hust of the Tueson Police Department came to the intensive care unit to interrogate him. Mincey was unable to talk because of the tube in his mouth, and so he responded to Detective Hust's questions by writing answers on picces of paper provided by the hospital. Hust told Mincey he was under arrest for the murder of a police officer, gave him the warnings required by Miranda ., and began to ask questions about the events that had taken place in Mincey's apartment a few hours earlier. Although Mincey asked repeatedly that the interrogation stop until he could get a lawyer, Hust continued to question him until almost midnight.\\nId. at 396, 98 S.Ct. 2408 (footnote omitted). Around midnight, Mincey confessed. In-holding the record clearly indicated Min-cey's confession was not voluntarily, the Court noted: '\\nIt is hard to imagine a situation less conducive to the exercise of a rational intellect and a free will than Mincey's. He had been seriously wounded just a few hours earlier, and had arrived at the hospital depressed almost to the point of coma, according to his attending physician. Although he had received some treatment, his condition at the time of Hust's interrogation was still sufficiently serious that he was in the intensive care unit. He complained to Hust that the pain in his leg was unbearable. He was evidently confused and unable to think clearly about cither the events of that afternoon or the cireumstances of his interrogation, since some of his written answers were on their face not entirely coherent. Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, at the complete merey of Detective Hust, unable to escape or resist the thrust of Hust's interrogation.\\nIn this debilitated and helpless condition, Mincey clearly expressed his wish not to be interrogated. As soon as Hust's questions turned to the details of the afternoon's events, Mincey wrote: \\\"This is all I can say without a lawyer.\\\" Hust nonetheless continued to question him, and a nurse who was present suggested it would be best if Mincey answered. Mincey gave unresponsive or uninformative answers to several more questions, and then said again that he did not want to talk without a lawyer. Hust ignored that request and another made immediately thereafter. Indeed, throughout the interrogation Mincey vainly asked Hust to desist. Moreover, he complained several times that he was confused or unable to think clearly, or that he could answer more accurately the next day. But despite Mincey's entreaties to be let alone, Hust ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task. The statements at issue were thus the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness.\\nId. at 898-401, 98 S.Ct. 2408 (internal citations, quotations, and footnotes omitted).\\nHerein, Inspector Carroll testified as follows about Maxwell's physical condition:\\nQ. Okay. On this date and in particular at this time when you're sitting in the room with Mr. Maxwell he had just been arrested regarding I guess for lack of a better way of putting it a chase-a vehicular chase and some accidents and gunfire of things of that sort, is that correct?\\nA. That was my understanding, yes.\\nQ. Okay. Could you describe for me Mr. Maxwell's physical condition at the time that you were sitting in that room with him?\\nA. He appeared awake, alert, oriented to time and space. I noticed that he had a slight abrasion on his face. I can't recall which side but otherwise it was nothing outstanding or particular that I recall about his physical presentation.\\nA slight abrasion on his face- \\u00a9\\nUh-huh. p\\n-is the only physical abnormality you saw with Mr. Maxwell? $\\nIf you want to classify it as an abnormality but-p\\nInjury I guess? \\u00a9\\nOkay. A slight abrasion. |p\\nDid it appear fresh? \\u00a9\\nYes. >\\nOkay. Do you know if Mr. Maxwell received any medical treatment before you met with him at that time? \\u00a9\\np No, actually at the time-during that time that I met with him he was attended by paramedics.\\nOkay. And you observed the paramedics attending to him?\\nYes.\\nAnd what did you observe them do?\\nEssentially irrigate that small abrasion on his face, ask the questions common in particular to paramedics regarding his orientation times four as they term it in terms of his understanding of where he was, who he was, time, place and he appeared to answer all those questions to their satisfaction such that after a few minutes of time with him they left.\\nOkay. Now when you say a small abrasion what do you-how-what size abrasion are you referring to-if it helps to use perhaps money-like was it the size of a dime, a quarter, half dollar-bigger?\\nWell, actually, I wasn't thinking in terms of money but in terms of just physical size.\\nOkay.\\nApproximately a one to one and a half inch by two inch abrasion.\\nOkay. And what part of his face was that on?\\nAs I said I don't recall exactly the side of his face but as I recall it was towards the temple/forehead area.\\n(Tr. at 288-40.)\\nMaxwell's situation does not compare to Mincey's situation, and so we decline to spend time distinguishing the cases. The record leaves us without any doubt that Maxwell's abrasion on his forehead did not render him \\\"a seriously and painfully wounded man on the edge of consciousness.\\\" Mincey, 487 U.S. at 401, 98 S.Ct. 2408. The trial court did not err when it rejected this argument.\\nCONCLUSION\\nThe court did not err when it found Maxwell's confessions were voluntary, and therefore, it did not abuse its discretion when it admitted those confessions into evidence. Accordingly, we affirm.\\nAffirmed.\\nKIRSCH, C.J., and ROBB, J., concur.\\n. Ind.Code \\u00a7 35-42-1-1.\\n. Ind.Code \\u00a7 35-42-3-3.\\n. Ind.Code \\u00a7 35-43-1-L.\\n. Ind.Code \\u00a7 35-43-4-2.\\n. \\\"Under Miranda, 'interrogation' includes express questioning and words or actions on the part of the police that the police know are reasonably likely to elicit an incriminating response from the suspect.\\\" White v. State, 772 N.E.2d 408, 412 (Ind.2002).\"}"
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+"{\"id\": \"8919825\", \"name\": \"Casey BINDER, Appellant-Plaintiff, v. BENCHWARMERS SPORTS LOUNGE, Appellee-Defendant\", \"name_abbreviation\": \"Binder v. Benchwarmers Sports Lounge\", \"decision_date\": \"2005-08-24\", \"docket_number\": \"No. 71A03-0503-CV-130\", \"first_page\": \"70\", \"last_page\": \"76\", \"citations\": \"833 N.E.2d 70\", \"volume\": \"833\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:28:37.099880+00:00\", \"provenance\": \"CAP\", \"judges\": \"FRIEDLANDER, J., and BAILEY, J., coneur.\", \"parties\": \"Casey BINDER, Appellant-Plaintiff, v. BENCHWARMERS SPORTS LOUNGE, Appellee-Defendant.\", \"head_matter\": \"Casey BINDER, Appellant-Plaintiff, v. BENCHWARMERS SPORTS LOUNGE, Appellee-Defendant.\\nNo. 71A03-0503-CV-130.\\nCourt of Appeals of Indiana.\\nAug. 24, 2005.\\nPatrick J. Hinkle, Patrick J. Hinkle, P.C., South Bend, for Appellant.\\nClaire Konopa Aigotti, Konopa, Reagan & Aigotti, P.C., South Bend, for Appellee.\", \"word_count\": \"2668\", \"char_count\": \"16648\", \"text\": \"OPINION\\nROBB, Judge.\\nCasey Binder appeals the trial court's entry of summary judgment against him. We reverse.\\nIssue\\nBinder raises one issue for our review: whether Benchwarmers Sports Lounge should be estopped from pleading the statute of limitations defense.\\nFacts and Procedural History\\nBinder worked at a bar called Bench-warmers Sports Lounge. At various times he worked in several different capacities: as an employee for the owner, as an \\\"independent contractor\\\" working security for the owner, and as an \\\"independent contractor\\\" working security for a gentleman hosting events at the bar. On January 16, 2002, Binder was working in the bar and was injured in attempting to break up a fight. Binder timely filed an Application for Adjustment of Claim with the Indiana Worker's Compensation Board.\\nDuring the course of the worker's compensation litigation, Binder's attorney, Patrick J. Hinkle, sent Benchwarmers discovery. Interrogatory No. 1.2, served on November 10, 2003, sought the names of Benchwarmers' witnesses and their expected testimony. Benchwarmers, by its attorney Sally P. Norton, responded on December 19, 2003, in pertinent part: \\\"Unknown at this time; however, the Defendant may call the Plaintiff, Steve Mitchell, Meka Rans, and South Bend Police Records custodian to testify as to the facts surrounding the Plaintiffs employment with the Defendant and cireumstances surrounding the January 16, 2002 alleged injury.\\\" Appellant's Appendix at 3. Interrogatory No. 1.4, also served on November 10, 2003, asked: \\\"What was the relationship between the Plaintiff Casey Binder and the Defendant at the time of the alleged injury?\\\" Id. Benchwarmers responded: \\\"Objection. This interrogatory is too vague and ambiguous so as to enable the Defendant to articulate a response to the same.\\\" Id.\\nHinkle followed up on that response with a letter dated January 2, 2004. That letter read:\\nIs your client denying Casey was an employee at the time of the alleged injury?\\nMy Interrogatory No. 1.4 was intended to discover whether your client contends Casey was an employee, independent contractor, or invitee at the time he was injured. Can you respond now or do you still have an objection?\\nPlease advise.\\nAppellant's App. at 94b. Norton responded by letter dated January 5, 2004:\\nIn response to your January 2, 2004 correspondence wherein you request my client's position on whether Mr. Binder was an employee at the time of the alleged injury, it is my client's position that your client was not acting in the course and scope of his employment at the time of the alleged injury. I trust this answers the question posed in your January 2, 2004 correspondence.\\nAppellant's App. at 95.\\nOn or about January 16, 2004, any claim Binder may have had against Benchwarmer's went from ripe to untimely as the two year statute of limitations expired without Binder filing a lawsuit.\\nOn February 23, 2004, Hinkle took the deposition of Steven Mitchell, Benchwarm-ers' owner at the time of Binder's incident. At that time, Hinkle found out, for the first time, that, according to Mitchell, Binder was not employed by Benchwarmers in January of 2002. Appellant's App. at 114-15. Mitchell claimed that Binder was working security for a third party on the night of the incident. Appellant's App. at 114.\\nBinder filed his complaint in this matter on March 11, 2004. Benchwarmers answered and raised the defense of the statute of limitations. Benchwarmers then moved for judgment on the pleadings, claiming Binder's complaint was untimely. The parties briefed the issue, and Binder moved to amend his complaint to add a count of fraud. On February 1, 2005, the trial court allowed the amendment, converted Benchwarmers' motion to a motion for summary judgment, and then dismissed the negligence claim on the statute of limitations grounds and dismissed the fraud count for failure to state a claim.\\nBinder now appeals.\\nDiscussion and Decision\\nBinder contends that we should invoke the doctrine of equitable estoppel to save his claim. Having reviewed the evidence before us, we agree.\\nI. Standard of Review\\nOur standard of review is the same as the trial court's when reviewing a grant of summary judgment. Embry v. O'Bannon, 798 N.E.2d 157, 159 (Ind.2003). Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id. We consider only those facts that the parties designated to the trial court. St. Joseph County Police Dep't v. Shumaker, 812 N.E.2d 1143, 1145 (Ind.Ct.App.2004), trans. denied. \\\"Where, as here, the material facts are essentially undisputed, our task is to determine whether the trial court properly applied the law to the facts.\\\" Caito Foods v. Keyes, 799 N.E.2d 1200, 1201 (Ind.Ct.App.2003).\\nII. Equitable Estoppel\\nThe parties agree that the instant lawsuit was filed outside the applicable two-year statute of limitations. See Ind.Code \\u00a7 34-11-2-4. Benchwarmers properly pled and raised this defense. The trial court dismissed Binder's negligence claim on this basis, and also found that equitable estoppel did not work to rehabilitate the negligence claim. We disagree with the trial court in that regard, and hold that Benchwarmers is estopped from asserting the statute of limitations defense in this case.\\nEquitable estoppel is \\\"[tlhe doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right which he otherwise would have had.\\\" BLACK'S LAW DICTIONARY 538 (6th ed.1990). A plaintiff can use the doctrine to bar a defendant from asserting the statute of limitations, if the relevant criteria are met. Caito Foods, 799 N.E.2d at 1202. The elements of equitable estoppel are:\\n1) a [misJrepresentation or concealment of a material fact; 2) made by a party with knowledge of the fact and with the intention that the other party act upon it; 3) to a party ignorant of the fact; and 4) which induces the other party to rely or act upon the fact to his detriment.\\nId. The parties' arguments focus on elements one and three; Benchwarmers implicitly concedes, and we agree, that the evidence establishes elements two and four.\\nHinkle found himself in a somewhat precarious position in this case; one certainly not unknown to plaintiffs' lawyers in this state. His client comes to him, says he was injured, and relays the facts. Hinkle knows that if his client was an employee at the time of the incident, his remedy is probably in worker's compensation. See Ind.Code \\u00a7 22-8-2-6; Rassbach v. Alcala, 775 N.E.2d 353, 356 (Ind.Ct.App.2002) (noting that recovery for personal injury or death by accident arising out of and in the course of employment can be sought exclusively under the Indiana Worker's Compensation Act). If his client was an independent contractor, his remedy is likely with a tort lawsuit. Believing the facts give rise to a worker's compensation claim, Hinkle files a claim with the Indiana Worker's Compensation Board. Perhaps Hinkle knows, or subsequently learns, that there are facts indicating that his client may not have been an employee at the time of the incident. The expiration of the statute of limitations nears. What should he do? One option, certainly the best option in hindsight, would have been to go ahead and file the tort action. See Cox v. American Aggregates Corp., 684 N.E.2d 193 (Ind.1997) (\\\".. prohibits an employee from filing a claim with the Board and initiating a lawsuit concurrently. .\\\"). Another option would be to ask the other side if they were going to contest his client's status as an employee. And that is exactly what Hinkle tried to do.\\nHinkle wrote Norton an extremely clear letter on January 2, 2004, just before the expiration of the statute of limitations, asking: \\\"Is your client denying Casey was an employee at the time of the alleged injury?\\\" Appellant's App. at 94b. Norton responded: \\\"... it is my client's position that your client was not acting in the course and seope of his employment at the time of the alleged injury.\\\" Id. Of this response, Benchwarmers states: \\\"Clearly, Ms. Norton had advised plaintiff's counsel that Benchwarmers took the position that his client was not a Benchwarmers' employee on January 16, 2002.\\\" Brief of Appellee at 10. Although we understand that Benchwarmers may bave felt compelled to take this position on appeal, we are nevertheless bothered by the appearance of this statement in Benchwarmers' brief. Rather than attribute it to an intent to deceive this court, we would prefer to believe that it was penned by someone completely unfamiliar with worker's compensation law. Any person with a working knowledge of worker's compensation law would understand Norton's statement to presume, rather than deny, employment.\\nIt almost goes without saying that in order to bring a worker's compensation claim, the plaintiff must show that there was an employee-employer relationship. Whether the injury occurred \\\"arising out of\\\" and/or \\\"in the course of\\\" the employment are potential issues, to be sure, but only after the employer-employee relationship has been established. See Rogers v. Bethehem Steel Corp., 655 N.E.2d 73, 75 (Ind.Ct.App.1995). In the worker's compensation arena, these phrases have very specific and well-defined meanings. \\\"The words 'in the course of refer to the time, place and circumstances under which the injury occurred.\\\" Rogers, 655 N.E.2d at 75. \\\"The words 'arising out of refer to the origin or cause and are descriptive of the accident's character.\\\" Id. It makes no sense to discuss whether an injury arose out of or in the course of employment if there is no employment. In an analogous way, it would make no sense for a father to discuss whether or not his son pitched in last night's game if his son was not even on the team. Talking about whether or not his son pitched presumes that he is on the team. Similarly, discussing the issues of whether the injury arose out of and in the course of employment in the worker's compensation context presumes employment. Further, Norton's letter actually refers to \\\"his employment.\\\" Appellant's App. at 95. How this could be read as \\\"he was not employed on the date of the alleged injury, but had been in the past,\\\" as Benchwarmers contends, is baffling. See Brief of Appellee at 10.\\nBecause Norton was Benchwarmers' worker's compensation attorney, she presumably knew Indiana worker's compensation law. Knowing that, and the fact that Benchwarmers has not claimed that it came upon any kind of newly discovered evidence, we can only conclude that Norton's letter to Hinkle was intentionally deceptive.\\nThe fact that the statement could be read as technically correct gives us no pause. We look to the meaning that the statement had to the intended recipient. Here, the representation was obviously calculated to induce a belief that Bench-warmers would not contest Binder's status as an employee.\\nBut, Benchwarmers claims, \\\"[a] defendant has no obligation to disclose its defenses to a lawsuit, other than affirmative defenses...\\\" Brief of Appellee at 9. This misses the point. A defendant does have an obligation not to make a material misrepresentation. Even more than that, Norton, as an attorney, is held to a higher standard. Fire Ins. Exchange v. Bell by Bell, 643 N.E.2d 310, 312 (Ind.1994). As our supreme court has stated:\\n\\\"A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling our duty to represent a client vigorously as lawyers, we will be mindful of our obligations to the administration of justice, which is a truth seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner.\\\"\\nWe decline to require attorneys to burden unnecessarily the courts and litigation process with discovery to verify the truthfulness of material representations made by opposing counsel. The reliability of lawyers' representations is an integral component of the fair and efficient administration of justice. The law should promote lawyers' care in making statements that are accurate and trustworthy and should foster the reliance upon such statements by others.\\nId. at 312-13 (quoting 143 F.R.D. 441, 448 (1992), The Preamble of the Standards for Professional Conduct within the Seventh Federal Judicial Circuit). \\\"As an officer of the Court, every lawyer must avoid compromising the integrity of his or her own reputation and that of the legal process itself.\\\" Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind.1999). \\\"Any lawyer's duty to advance her client's interest is circumscribed by the bounds of the law and her ethical obligations.\\\" Id. As tempting as it may be, the statute of limitations \\\"is not a trap to be set by counsel to catch unsuspecting litigants.\\\" See id. (stating that a default judgment should not be set as a trap). Our supreme court has rejected the gaming view of our legal system. Id.\\nOur conclusion that Norton was intentionally deceptive is only strengthened by Benchwarmers' similarly deceptive response to Interrogatory No. 1.2 and some what-less-than-legitimate objection to Interrogatory No. 1.4. It is apparent to us that Benchwarmers was intentionally trying to conceal its position in the worker's compensation matter until the statute of limitations expired on any possible tort action. We will not, indeed cannot, condone this kind of approach to litigation. We therefore do not hesitate to conclude that Norton's January 5, 2004 letter contained a material misrepresentation.\\nTurning to element three, we will not apply the doctrine of equitable estoppel where the party to which the misrepresentation was made had the means to discover the information on their own. Caito Foods, 799 N.E.2d at 1202. Benchwarm-ers claims that Binder should have known his employment status and \\\"clearly had access to the same factual information as Benchwarmers in determining whether he'd be considered an employee.\\\" Brief of Appellee at 11. We disagree with this contention, but, even if true, it misses the mark. Binder was not trying to discover from Benchwarmers whether Binder was actually an employee or not, but simply whether Benchwarmers would dispute whether he was an employee or not. Binder did not know that information and had no way to discover that information, reasonably, other than by asking Bench-warmers. And, as discussed above, Hinkle had every right to rely on Norton's representation.\\nConclusion\\nBenchwarmers' worker's compensation counsel, Sally P. Norton, made a material misrepresentation to Binder's counsel concerning whether Benchwarmers would contest Binder's status as an employee, causing Binder to miss the statute of limitations deadline for his tort suit against Benchwarmers. We therefore hold that Benchwarmers is equitably estopped from asserting the statute of limitations defense in this case. The trial court's grant of summary judgment on Count I of Binder's Second Amended Complaint is hereby reversed and remanded to the trial court for further proceedings.\\nReversed and remanded.\\nFRIEDLANDER, J., and BAILEY, J., coneur.\\n. Benchwarmers filed a Motion to Strike Portions of Appellant's Appendix based on the fact that certain parts were not contained in the record below. Benchwarmers also claims that the Appendix does not comply with Indiana Rule of Appellate Procedure 50 in that it does not contain a chronological case summary or verification of accuracy. We note that, in fact, the Appellant's Appendix does contain a verification of accuracy signed by Binder's attorney. Appellant's App. at 140 (unmarked). Nevertheless, it appears to us (even though neither party has provided us with a chronological case summary from the trial court) that the pages of the Appendix to which Benchwarmers objects were not in the record below and were not before the trial judge. We therefore GRANT Benchwarmers' motion to strike, and do strike pages 6-13, 16-38, and 42-43 from Appellant's Appendix. We also admonish Binder's counsel to pay closer attention to our appellate rules and his duties, particularly with regard to the accuracy of his verification, as an officer of the court.\\n. Binder abandoned Count II of his Second Amended Complaint, so we affirm summary judgment on that count.\"}"
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+"{\"id\": \"8966836\", \"name\": \"Daniel SCALPELLI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Scalpelli v. State\", \"decision_date\": \"2005-05-26\", \"docket_number\": \"No. 07A04-0406-CR-310\", \"first_page\": \"1193\", \"last_page\": \"1199\", \"citations\": \"827 N.E.2d 1193\", \"volume\": \"827\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:02:47.443878+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, J., and BAKER, J., coneur.\", \"parties\": \"Daniel SCALPELLI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"Daniel SCALPELLI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 07A04-0406-CR-310.\\nCourt of Appeals of Indiana.\\nMay 26, 2005.\\nTransfer Denied Aug. 11, 2005.\\nTeresa D. Harper, Bloomington, IN, Attorney for Appellant.\\nSteve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.\", \"word_count\": \"2463\", \"char_count\": \"15225\", \"text\": \"OPINION\\nFRIEDLANDER, Judge.\\nDaniel Sealpelli appeals his conviction for Disturbing a Cemetery Without a Permit, a class A misdemeanor. Scalpelli presents the following issue for review: Did the trial court err as a matter of law in determining he violated I.C. \\u00a7 14-21-1-26.57?\\nWe affirm.\\nThe facts most favorable to the judgment demonstrate that in the summer of 2000, Sealpelli bought a piece of land with the intention of building a residence. Before purchasing the land, Sealpelli's realtor informed him that the property contained the historic Fleetwood Cemetery and Scal-pelli located the cemetery during a walk-through of the property. Thereafter, Scal-pelli bought the land and subsequently obtained a Local Improvement Perrait and Sewage Disposal Permit in order to begin construction of his residence. Sealpelli did not, however, obtain a development plan from the Department of Natural Resources (DNR) to disturb the ground within a hundred feet of a cemetery as required by 1.C. \\u00a7 14-21-1-26.5.\\nIn the late summer of 2001, Scealpelli began construction of his residence: he installed a driveway, laid down a block foundation, and installed a septic system. Sealpelli also expanded the pond on his property in order to create a lake well that would provide running water to his residence. This process entailed removing dirt from the pond and placing it in the surrounding area. Because of lack of space, Scalpelli piled some of the dirt on the gravesite, which was located near the pond. Scalpelli also removed all eight gravestones from the cemetery, created a map indicating the gravestones' original locations, and placed the gravestones behind the foundation of the house. After the concrete for the foundation was poured, the foundation itself was ninety-nine feet and nine inches from the cemetery. The septic system's underground finger was seventeen feet from the cemetery.\\nIn September 2001, Indiana Conservation Officer Jeff Atwood was informed that the Fleetwood Cemetery had been disturbed. Atwood and another conservation officer went to the gravesite to investigate. During their initial investigation, they observed that the gravestones were removed, dirt was piled on top of the gravesite, and the foundation of the house was approximately eighty-nine feet away from Scalpel-li's estimate of where the cemetery began. Atwood informed Sealpelli that he might be in violation of the law and further investigation was warranted. On October 4, 2001, Atwood served Scalpelli with a search warrant.\\nOn December 12, 2001, the State charged Sealpelli with Count I, disturbing a cemetery without a permit; Count II, cemetery mischief; and Count III, moving a grave memorial without recording. pelli requested a bench trial, and at the conclusion of that trial, the court found him guilty of Counts I and II, but aequit-ted him of Count III. At sentencing, the trial court merged Counts I and II, entered judgment of conviction on Count I, and sentenced Sealpelli to a suspended term of thirty days incarceration and one year of probation.\\nOn appeal, Sealpelli asserts that the trial court erred as a matter of law in its interpretation of I.C. \\u00a7 14-21-1-26.5. Specifically, Sealpelli asserts that the trial court incorrectly analogized I.C. \\u00a7 14-21-1-265 to Indiana's carrying a handgun without a license statute and held the State was not required to prove as an element of the offense that Scalpelli knew he did not have a development plan. Under Indiana Law, the interpretation of a statute is a question of law reserved for the courts. Romine v. Gagle, 782 N.E.2d 369 (Ind.Ct.App.2003). We review such questions under a de novo standard and give no deference to a trial court's legal conclusions. Id. \\\"A statute whose language is clear and unambiguous is not subject to judicial interpretation.\\\" Romine v. Gagle, 782 N.E.2d at 379. If, however, the statute is ambiguous, the court must determine the legislative intent and interpret the statute accordingly. Whitacre v. State, 619 N.E.2d 605 (Ind.Ct.App.19983), op. adopted by 629 N.E.2d 1236 (Ind.1994). To determine legislative intent, we look to the plain language of the statute and attribute the common, ordinary meaning to terms found in everyday speech. Crum v. City of Terre Haute ex rel. Dept. of Redevelopment, 812 N.E.2d 164 (Ind.Ct.App.2004).\\nIC. \\u00a7 14-21-1-26.5 states, in relevant part:\\n(a) Notwithstanding IC 28-14-44-1, this section does not apply to the following: [Not applicable.]\\nExcept as provided in this subsection, subsection (b), and subsection (c), a person may not disturb the ground within one hundred (100) feet of a burial ground or cemetery for the purpose of erecting, altering, or repairing any structure without having a development plan approved by the department under section 25 of this chapter or in violation of a development plan approved by the department under section 25 of this chapter. The department must review the development plan not later than sixty (60) days after the development plan is submitted.\\n(b) A development plan:\\n(1) must be approved if a person intends to construct a new structure or alter or repair an existing structure that would significantly impact the burial ground or cemetery; and\\n(2) is not required if a person intends to erect, alter, or repair an existing structure for an incidental or existing use that would not impact the burial ground or cemetery.\\n# # #\\n(d) A person who recklessly, knowingly, or intentionally violates this section commits a Class A misdemeanor. However, the offense is a Class D felony if the person disturbs buried human remains or grave markers while committing the offense.\\nTherefore, to establish Sealpelli's guilt under I.C. \\u00a7 14-21-1-26.5 as a class D felony, the State was required to prove beyond a reasonable doubt that Sealpelli: (1) recklessly, knowingly, or intentionally; (2) disturbed the ground, buried human remains, or grave markers; (3) within one hundred feet of a burial ground or cemetery; (4) for the purpose of erecting, altering, or repairing any structure; (5) without having a development plan approved by the DNR.\\nAs an apparent issue of first impression-the statute was enacted in 2000-the trial court was called upon to determine if the mens rea element of the statute applied to both disturbing the ground, et al. and failure to obtain a development plan approved by the DNR. The trial court explained:\\n[LC. \\u00a7 14-21-1-26.5] is a relatively new statute with an issue.. .fairly much of first impression in terms of the interpretation, what knowledge is required with respect to those statutes [sic]. Whether the culpability, the knowledge, the intent, criminal intent, applied not only to the act of disturbing the ground or of moving the grave memorial, but whether it also applies to the material element of doing so without a permit or development plan from the Department of Natural Resources and without filing in the County Recorder a description of it. Whether the criminal intent must go to a second material element really is an issue of first impression that I can see. If counsel have seen any cases on that I would, of course, welcome them. But I have not seen them. And that is the issue with which I'm struggling. So rather than leave everyone sit here [sic] while I continue to do legal research, I am going to take it under advisement and we are all going to come back for the announcement of the decision.\\nTranscript at 147-48. Thereafter, on May 10, 2002, the trial court reconvened to announce its decision:\\nIn terms of whether Indiana Code 14-21-1-26.5, count one, the disturbing cemetery without a permit.. the State to prove that you knew you were suppose [sic] to submit that development plan and recklessly, knowingly or intentionally failed to do so. There are cases involving driving on a suspended license, such as the one [Sealpelli] submitted in his brief, that say you do have to have knowledge of the suspension. There are also cases, like those submitted by [the State], with carrying a gun without a license, that say, no, you don't have to know that you're suppose [sic] to have a license. The prohibited conduct is carrying a handgun. Its an exception to that prohibited conduct if you have a license. And so I have tried my best to determine where this ca. .or this statute falls within those cases and the other cases that talk about what is required for the criminal intent to make an act a crime. The best that I can ascertain, Mr. Sealpelli, this is more similar to carrying a handgun without a license cases. The Indiana law, as I understand it, prohibits disturbing the ground within the distance of the cemetery and certainly not moving grave markers. That is the prohibited criminal conduct and you must do that knowingly or intentionally or recklessly, which you did here. Then it is an exception to that that if you submit that development plan you may do it. Based on all of that, I believe that you are under these facts guilty of count I, disturbing a cemetery without a permit.\\nId. at 151-52. We agree with the trial court's reasoning.\\nInd.Code Ann. \\u00a7 85-47-2-1 (West 2004) prohibits, with certain exceptions, \\\"a person from carrying a handgun in any vehicle or on or about the person's body . without a license issued under this chapter being in the person's possession.\\\" The statute contains no requirement that individuals know of the licensing requirement, nor has relevant caselaw found such an element implicitly in the face of statutory silence. In Johnson v. State, 256 Ind. 497, 269 N.E.2d 879 (1971), our supreme court rejected a defendant's claim that he was entitled to an instruction that as an element of carrying a handgun without a license the State must prove he knew of the licensing requirements. \\\"It is only necessary that the [defendant] intended to do the act which is a violation of a criminal statute.\\\" Id. at 883. Further, in Garcia v. State, 260 Ind. 131, 292 N.E.2d 810 (1973), our supreme court affirmed a defendant's conviction for carrying a hand gun without a license and held that a non-Indiana resident could not use his lack of knowledge of Indiana's licensing requirements as a defense. In contrast to I.C. \\u00a7 85-47-2-1, Indiana's driving on a suspended license statute does include as an element of the offense a defendant's knowledge that his/her license had been suspended. See Ind.Code Ann. \\u00a7 9-30-10-16 (West 2004) (\\\"[a] person who operates a motor vehicle: (1) while the persons driving privileges are validly suspended under this chapter . and the person knows that the person's driving privileges are suspended . commits a Class D felony\\\"). IC. \\u00a7 9-380-10-5 (West 2004) also places an affirmative duty on the Bureau of Motor Vehicles (BMV) to determine if an individual should have a license suspended and to mail an individual notice of such suspension.\\nIn the instant case, we hold that disturbing a cemetery without a development plan is more akin to carrying a handgun without a license than to driving on a suspended license. First, unlike IC. \\u00a7 35-47-2-1 (driving on a suspended license), in enacting I.C. \\u00a7 14-21-1-26.5 the General Assembly placed no onus on the DNR or any other governmental agency to notify Sealpelli of the requirement to obtain a development plan. Further, in the context of driving on a suspended license, the BMV is required to make an affirmative determination that individuals should have their license suspended, no such determination is made by the DNR regarding I.C. \\u00a7 14-21-1-26.5. In the face of I.C. \\u00a7 14-21-1-26.5's plain language, we agree with the trial court-knowledge that a development plan is required is not an element of the statute. Furthermore, similar to the reasoning of Johnson v. State in the context of possessing a handgun without a license, the conduct prohibited by I.C. \\u00a7 14-21-1-26.5 is disturbing the ground, et al. within one hundred feet of a burial ground or cemetery. Had Sealpelli sought and received approval of a development plan from the DNR his conduct would have been excepted and no criminal liability would have attached. The trial court did not err in its interpretation of I.C. \\u00a7 14-21-1-26.5.\\nAdditionally, we note that Seal-pelli asserts, in essence, that since he made every good faith effort to comply with IC. \\u00a7 14-21-1-26.5 and meant no harm he should not be held criminally liable. We remind him of the long-standing legal maxim: ignorance of the law is no excuse. Mullis v. Kinder, 568 N.E.2d 1087 (Ind.Ct.App.1991). The evidence presented at trial demonstrated that Sealpelli knowingly piled dirt on the cemetery and removed gravemarkers in order to build a residence that was less than 100 feet from the cemetery. It is uncontested that Scal-pelli did not have a development plan from the DNR. Based on the foregoing, the State presented sufficient evidence to sustain Scalpelli's conviction under I.C. \\u00a7 14-21-1-26.5.\\nJudgment affirmed.\\nSHARPNACK, J., and BAKER, J., coneur.\\n. Ind.Code Ann. \\u00a7 14-21-1-26.5 (West, PREMISE through 2004 2nd Regular Sess.). Although the charging information against Scalpelli lists this offense as disturbing a cemetery without a permit, the word \\\"permit\\\" does not appear in the statute; rather, the statute refers only to a development plan.\\n. - Scalpelli also challenges his conviction under Cemetery Mischief, Ind.Code Ann. \\u00a7 35-43-1-2.1 (West 2004). - Scalpelli however, was not convicted of cemetery mischief. As the Order on Sentencing, Probation, and Commitment makes clear, judgment of conviction was entered only on Count I, disturbing a cemetery. As such, we decline to address his arguments on this issue.\\n. At sentencing, the trial court ordered that Count I, Disturbing a Cemetery Without a Permit, a class D felony, be entered as a class A misdemeanor pursuant to its discretion under Ind.Code Ann. \\u00a7 35-50-2-7(b) (West, PREMISE through 2004 2nd Regular Sess.).\\n. Scalpelli also asserts tangentially that the evidence was insufficient to establish that under LC. \\u00a7 14-21-1-26.5 he significantly impacted the cemetery. Our standard of review in sufficiency of the evidence claims is well settled:\\nWe will not reweigh the evidence or consider the credibility of witnesses. Only the evidence most favorable to the verdict together with all reasonable inferences that can be drawn therefrom will be considered. If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed.\\nKing v. State, 799 N.E.2d 42, 46 (Ind.Ct.App.2003) (citation omitted). The evidence demonstrated that Scalpelli removed several gravemarkers and ordered dirt to be placed on top of the cemetery. The evidence is sufficient to establish a significant impact on the cemetery from Scalpelli's actions. We refuse the invitation to reweigh the evidence.\"}"
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+"{\"id\": \"9014154\", \"name\": \"Julie MARIGA, Appellant-Respondent, v. Lori FLINT, Appellee-Petitioner; In the Matter of the Adoption of Two Minor Children, Julie R. Mariga, Appellant-Petitioner, v. Lori Flint, Appellee-Respondent\", \"name_abbreviation\": \"Mariga v. Flint\", \"decision_date\": \"2005-02-16\", \"docket_number\": \"No. 79A02-0407-CV-612\", \"first_page\": \"620\", \"last_page\": \"633\", \"citations\": \"822 N.E.2d 620\", \"volume\": \"822\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:23:34.049374+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, J., and FRIEDLANDER, J., concur.\", \"parties\": \"Julie MARIGA, Appellant-Respondent, v. Lori FLINT, Appellee-Petitioner. In the Matter of the Adoption of Two Minor Children, Julie R. Mariga, Appellant-Petitioner, v. Lori Flint, Appellee-Respondent.\", \"head_matter\": \"Julie MARIGA, Appellant-Respondent, v. Lori FLINT, Appellee-Petitioner. In the Matter of the Adoption of Two Minor Children, Julie R. Mariga, Appellant-Petitioner, v. Lori Flint, Appellee-Respondent.\\nNo. 79A02-0407-CV-612.\\nCourt of Appeals of Indiana.\\nFeb. 16, 2005.\\nChristopher D. Corrigan, Sean M. Pers, Withered Corrigan & Burns, Lafayette, IN, Attorneys for Appellant.\\nEarl McCoy, The Law Office of Earl McCoy III, Lafayette, IN, Attorney for Appellee.\", \"word_count\": \"5975\", \"char_count\": \"37590\", \"text\": \"OPINION\\nBAKER, Judge.\\nThis case requires us to examine the nature of parenthood. Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children's other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent. What we must focus on is the duties owed by a parent to her children, and those duties do not evaporate along with the relationship between the parents-indeed, those duties do not evaporate even if the relationship between parent and children deteriorates.\\nAppellant-respondent Julie Mariga appeals from two orders: the Tippecanoe County Superior Court's (Superior Court) order granting appellee-petitioner Lori Flint's Petition for Child Support and the Tippecanoe County Cireuit Court's (Cireuit Court) order denying Julie's Petition to Vacate Adoption.\\nJulie argues that the Circuit Court erred in denying her petition to vacate the adoption. Specifically, Julie raises the following arguments with respect to the Adoption Order: (1) the Cireuit Court did not have the authority to grant Julie's Petition for Adoption because the same-sex partner of a biological parent cannot be a stepparent pursuant to the stepparent adoption statute; and (2) the adoption was procured by fraud because Lori never intended for her relationship with Julie to be a lifelong commitment.\\nThe Child Support Order requires Julie to pay child support for her adopted children, who are the biological children of Lori, Julie's ex-significant other. Specifically, Julie raises the following arguments with respect to the Child Support Order: the Superior Court did not have subject matter jurisdiction, and Lori failed to state a claim upon which relief may be granted because (1) the Cireuit Court, rather than the Superior Court, had exclusive jurisdiction over the adoption and child support determinations; (2) the Superior Court previously dismissed Lori's petition with prejudice, preventing it from re-opening the matter; and (8) Lori's petition was improperly captioned and not verified.\\nFinding that this court has previously determined that a person may validly adopt the children of her same-sex partner without divesting the partner of any parental rights, that as a result Julie is a parent to Lori's children, and that the adoption was not procured by fraud, we affirm the judgment of the Cireuit Court. Additionally, finding that the Superior Court properly exercised its jurisdiction over Lori's petition for child support and that she did not fail to state a claim upon which relief may be granted, we affirm the judgment of the Superior Court.\\nFACTS\\nLori is the biological mother of a 16-year-old daughter and a 13-year-old son. In 1992, Lori and the children's biological father divorced, and, shortly thereafter, Lori and Julie began a romantic relationship. During the course of their relationship, Julie played an active role in the children's lives, attending their sporting events and school conferences.\\nIn 1996, Julie sought to adopt the children pursuant to Indiana's stepparent adoption statute. Ind.Code \\u00a7 31-19-15-2. Julie and Lori decided that Julie should adopt the children for a variety of reasons, among them Julie's desire to provide financially for the children via life insurance, college assistance, and health insurance, and a hope to solidify their family unit. Lori informed the court that Julie was her \\\"life-time companion\\\" and that she wished to \\\"co-parent\\\" the children with Julie. Appellant's Consol. App. p. 5. The children's biological father agreed to terminate his parental rights to permit Julie to adopt the children without terminating Lori's parental rights. The Tippecanoe County Cireuit Court granted her petition for adoption on July 10, 1997, and the children's last names were officially changed to \\\"Mariga-Morris.\\\" Appellant's App. p. 48-45. In November 1998, Lori and Julie separated, and since that time both children have remained with Lori.\\nIn June 1999, Lori married a man, and, in January 2000, Lori had a third child with her new husband. On February 8, 2001, Lori filed a Petition to Establish Custody, Visitation, and Support (the \\\"First Petition\\\") in the Tippecanoe County Circuit Court. In June 2001, Lori moved to Georgia with her husband and children because her husband was promoted by his employer and transferred to Georgia. Julie did not challenge Lori's relocation with the children.\\nAfter her relationship with Lori ended, Julie visited regularly with the children. But, the visits became sporadic, and she began attending their school activities less frequently. After Lori and the children moved to Georgia, they rarely, if ever, communicated with Julie, and she did not visit them at all during that period of time. Furthermore, while Julie initially paid child support, pursuant to an informal agreement between the parties, she stopped making payments after Lori filed the First Petition. She continues to carry the children on her health insurance plan.\\nOn November 9, 2001, Lori filed a voluntary motion to dismiss her first petition, which the Cireuit Court granted on November 13, 2001. On December 10, 2001, Lori filed a Petition to Establish Custody, Visitation, and Support (the \\\"Second Petition\\\") in the Tippecanoe County Superior Court. Following the court's determination that the \\\"home state\\\" of Lori and the children was Georgia, and that, as a result, the State of Indiana did not have jurisdiction at that time over Lori's petition, the court dismissed the Second Petition without prejudice. Appellant's App. p. 17-18.\\nIn October 2008, Lori and her second husband divorced and she moved back to Indiana with her three children. In December 2008, Lori filed a Petition to ReOpen in the Superior Court in light of the fact that Indiana had again become the \\\"home state\\\" for Lori and her children. The Superior Court granted her petition to re-open. On June 25, 2004, Julie filed an Amended Motion to Dismiss or Stay Proceedings. On June 28, 2004, the Superior Court denied Julie's motion and granted Lori's Petition to Establish Custody, Visitation, and Support. Among other things, the order requires Julie to pay child support in the amount of $290 per week and renders Julie responsible for 75% of the children's uninsured medical, optical, and dental expenses.\\nWhile Lori's petition to establish eusto-dy, support, and visitation was pending in Superior Court, Julie filed a Petition to Vacate Adoption in the Cireuit Court on April 2, 2004. On June 25, 2004, Julie filed an Amended Petition to Vacate Adoption. After a hearing on September 1, 2004, approximately two months after the Superior Court entered its order requiring Julie to pay child support, the Cireuit Court denied Julie's petition to vacate the adoptions.\\nJulie now appeals the Circuit Court's order denying Julie's petition to vacate the adoptions and the Superior Court's order granting Lori's petition for child eustody, support and visitation, and denying Julie's motion to dismiss.\\nDISCUSSION AND DECISION\\nI. Adoption Order\\nJulie argues that the Cireuit Court erred in denying her petition to vacate the adoption. Specifically, Julie contends that: (1) the Cireuit Court did not have the authority to grant Julie's Petition for Adoption because the same-sex partner of a biological parent cannot be a stepparent pursuant to the stepparent adoption statute; and (2) the adoption was procured by fraud because Lori never intended for her relationship with Julie to be a life-long commitment.\\nA. Ciremwit Court's Authority\\nThis court has recently decided several cases that are adverse to Julie's contention that the Cireuit Court did not have authority to grant her adoption of Lori's biological children. In In re Adoption of KS.P., 804 NE2d 1253 (Ind.Ct.App.2004), we held that a same-sex domestic partner may adopt the biological children of her partner without divesting the parental rights of the biological parent. In KS.P., Monica Pol-chert sought to adopt the biological children of her same-sex partner, Linda Lutz. Monica had been a part of the immediate family for seven years, providing \\\"love, support, and day-to-day care\\\" for the children, when she petitioned to adopt the children. Id. at 1260. The children's biological father consented to the termination of his parental rights and to Monica's adoption of the children. Monica testified that she loved the children, that she wished to share parental rights and responsibilities with Linda, and that she wished to provide for the children finan-clally-including the ability to place the children on her health insurance policy. Id.\\nThe trial court denied Monica's petition, relying on Indiana Code section 31-19-15 1, which provides that when a child is adopted, the rights of living biological parents are divested. On appeal, this court reversed the trial court, emphasizing that \\\"the primary concern in every adoption proceeding is the best interest of the child.\\\" Id. at 1257. We examined the stepparent adoption statute, which allows stepparents to adopt without divesting biological parents of their parental rights:\\n(a) If the adoptive parent of a child is married to a biological parent of the child, the parent-child relationship of\\nthe biological parent is not affected by the adoption.\\n(b) After the adoption, the adoptive father or mother, or both:\\n(1) occupy the same position toward the child that the adoptive father or the adoptive mother, or both, would occupy if the adoptive father or adoptive mother, or both, were the biological father or mother; and\\n(2) are jointly and severally liable for the maintenance and education of the person.\\n1.C. \\u00a7 81-19-15-2. Although we recognized that a strictly literal reading of these statutes might lead to the conclusion that if Monica's petition were granted it would divest Linda of her parental rights, we determined that \\\"[in light of the purpose and spirit of Indiana's adoption laws, . the legislature could not have intended such a destructive and absurd result.\\\" KSP., 804 N.E.2d at 1257. Focusing on public policy and the need to promote stability for children by interpreting the adoption statutes broadly, we concluded that where \\\"the prospective adoptive parent and the biological parent are both in fact acting as parents, Indiana law does not require a destructive choice between the two parents.\\\" Id.\\nThe facts of KS.P. are remarkably similar to this case. The children are the product of a failed marriage, and their biological father had little involvement in their lives, ultimately agreeing to terminate his parental rights and not objecting to the adoption. The children experienced the majority of their formative years with their biological mother's same-sex partner living in their home, acting as partner to their mother and parent to them. The adoptive parent was significantly involved in the children's day-to-day lives, and it was because of her close relationship to them and to their mother that she chose to adopt them.\\nJulie fashions her argument by claiming that KS.P. does not apply to this case, but the substance of her argument is that KSP. should have been decided differently and that we should decline to follow it altogether. She claims that there is no statutory authority for the KS.P. adoption or for her own adoption of the children in this case, but we have already held in KSP. that the adoption statutes must be interpreted broadly in light of their purpose and spirit. See also In re Parentage of A.B., 818 N.E.2d 126, 131-32 (Ind.Ct.App.2004) (agreement by same-sex couple involved in domestic relationship to conceive child through artificial insemination of one partner, resulted in both partners becoming legal parent of child; the parent-child relationship survived termination of domestic relationship); \\u00a2f In re Adoption of M.M.G.C., 785 N.E.2d 267, 270 (Ind.Ct. App.2003) (in the circumstance of a same-sex domestic relationship, this court determined that \\\"[clonsonant with our General Assembly's policy of providing stable homes for children through adoption, we conclude that Indiana's common law permits a second parent to adopt a child without divesting the rights of the first adoptive parent.\\\").\\nJulie also argues that even if KSP. applies to this case, we should not apply the decision retroactively because it announced a change in the common law. Generally, \\\"pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.\\\" Marsh v. Dizon, 707 N.E.2d 998, 1001 (Ind.Ct.App.1999) (quoting Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291, 295 (Ind.Ct.App.1984)). Here, there is no contract that was impaired, nor did Julie acquire vested rights in reliance on pre-KSP. law of which she might now be divested. To the contrary, KSP. merely validated that which she had already asked for and received-the right to adopt Lori's children. Cf. A.B., 818 N.E.2d at 131 n. 8. (explaining that paramount consideration is best interest of children and observing that in context of void marriages, legislature enacted provisions for children to be treated as if they are children of a valid marriage). Thus, we will apply KSP. retroactively. |\\nJulie next seems to argue that the holding of KS.P. is improper because it does not require the biological and adoptive parents to prove to the court that they are in a committed relationship. According to Julie, the only way for a court to ensure that the parents are in a committed relationship is if they are married, which is an impossible hurdle for same-sex partners to clear in the State of Indiana. She contends that \\\"[ilf a person is going to adopt and share parental responsibilities with another person, the two must be committed to each other to ensure continued love, support, and stability for the children.\\\" Appellant's Consol. Br. p. 18.\\nSince the consolidated causes in this appeal were fully briefed, this court determined that Indiana's Defense of Marriage Act, (\\\"DOMA\\\"), Indiana Code \\u00a7 31-11-1-1, expressly limiting marriage to opposite-sex couples, is not violative of Indiana's Constitution. - Morrison v. Sadler, 821 N.E.2d 15, 18-19, 35 (Ind.Ct.App. 2005). In Morrison, we concluded, in part:\\nWhat we decide today is that the Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document. Nevertheless, Indiana's DOMA, Indiana Code Section 31-11-1-1, does not violate Article 1, \\u00a7 28 of the Indiana Constitution because opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment. - Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it.\\n821 N.E.2d at 35.\\nOf particular importance to our inquiry here is the central theme in Morrison-the best interests of children. 821 N.E.2d at 28-35. We recognized that same-sex couples, by necessity, most often make large emotional and financial investments to become parents. 821 N.E.2d at 24. Because of the inability to procreate within the intimacy of a same-sex relationship, same-sex parents often enter into parenthood with great forethought. 821 N.E.2d at 28-25. In Morrison, we could not say that the State's goal in promoting the same stability for children of opposite-sex relationships, by promoting opposite-sex marriage through Indiana's DOMA, was irrational. 821 N.E.2d at 29. We acknowledged \\\"that large numbers of same-sex couples in this state are choosing to raise children together, either by adoption or taking advantage of assisted reproduction technologies.\\\" 821 N.E.2d at 238-24.\\nIn reviewing the recent decisions on same-sex relationships, the overarching concern is the best interests of children. We must decline Julie's request to alter the course of our recent decisions by di recting the focus away from her relationship with her children, and placing the focus upon the relationship of the parents.\\nJulie seeks \\\"assurance that the persons are committed to each other.\\\" Appellant's Consol. Br. p. 18. Unfortunately, as recognized in Morrison, the reality of our society is that nothing-not even a marriage certificate-can provide a court with total assurance that a couple is committed to each other and will remain so forever. All that courts can do is inquire into the relationship and trust that the parents are honest with each other and the court as to the reality of their commitment to the new family unit. Here, Julie and Lori had been in a committed relationship for five years when Julie petitioned to adopt Lori's children. Lori informed the Cireuit Court that Julie was her \\\"life-time companion\\\" and that the two wished to \\\"co-parent\\\" Lori's children. Appellant's Consol. App. p. 5. Julie, Lori, and the children had formed a family unit at the time that Julie petitioned to adopt the children. That their relationship later deteriorated is of no moment.\\nJulie argues that the children no longer wished to see her and that they were embarrassed when trying to explain that she is their mother's former lesbian partner. But she is their parent. She petitioned the Circuit Court to adopt them, and her petition was granted. As their parent, she has a responsibility to remain in their lives-even if her only contribution is financial.\\nMM.G.C., KSP, A.B., and Morri son apply directly to this case, and we see no reason to reach a different result. The Cireuit Court had statutory authority to grant Julie's petition to adopt Lori's children, and it had sufficient evidence to conclude that Julie and Lori were in a committed relationship and intended to form a solid family unit. That Julie and Lori later ended their relationship and that the children are now uncomfortable with Julie's role in their lives is irrelevant. The adoption was valid and proper. - Julie sought to be a parent, she is one, and the time has come for her to assume those responsibilities.\\nB. Froud\\nJulie also contends that the adoption was invalid because it was procured by fraud. Specifically, she contends that Lori was dishonest when she told the Circuit Court that Julie was her life-long partner, that in fact Lori is heterosexual, and that Lori merely desired the financial benefits she and the children would receive if Julie became the children's adoptive parent.\\nAs we consider this argument, we note that the decision in this case was the result of a bench trial, and, as such, we will set aside the trial court's findings and conclusions only if they are clearly erroneous. Wagner v. Spurlock, 803 N.E.2d 1174, 1179 (Ind.Ct.App.2004). To vacate a decree of adoption based on fraud, there must have been a material misrepresentation of past or existing fact made with knowledge or reckless disregard for the falsity of the statement, and the misrepresentation must have been relied upon to the detriment of the relying party. In re Adoption of T.B., 622 N.E.2d 921, 925 (Ind.1993).\\nThe only evidence to which Julie cites to support her claim of fraud is Lori's statement at the hearing on the petition to vacate adoption that she is heterosexual. Appellant's Consol. App. p. 121-22. Julie also points to the fact that after her relationship with Lori ended, Lori began dating-and ultimately married-a man. From these two facts, Julie deduces that \\\"(ilt seems only logical that at the time of the adoption, [Lori] knew that she really wanted true companionship with a man.\\\" Appellant's Consol. Br. p. 23.\\nOur review of the record reveals that at the time that Julie sought to adopt Lori's children, Lori stated that it was her intention to \\\"co-parent\\\" with Julie, her \\\"life-time companion.\\\" Appellant's Consol. App. p. 5. Lori also testified that Julie adopted the children to \\\"solidify the family unit that [they] already had.\\\" Id. p. 119. That Lori and Julie's relationship later deteriorated, and that Lori may have subsequently rediscovered her heterosexuality, is of no moment. A claim of fraud cannot be premised upon future conduct. See T.B., 622 N.E.2d at 925.\\nAt the time of the adoption, Lori and Julie had been in a committed relationship for five years. By way of comparison, Lori's marriage to the children's biological father lasted only four years, as did Lori's marriage that she entered into after her relationship with Julie ended. There is no evidence that Lori made any knowing or reckless material misrepresentations of a past or existing fact to Julie or to the Cireuit Court at the time that Julie petitioned to adopt Lori's children. Accordingly, the Circuit Court's conclusions of law were not clearly erroneous, and it properly denied Julie's petition to vacate the adoption.\\nII. Child Support Order\\nJulie next argues that the Superior Court improperly granted Lori's petition for child support. Specifically, Julie contends that the Superior Court did not have subject matter jurisdiction and that Lori failed to state a claim upon which relief could be granted because (1) the Circuit Court, rather than the Superior Court, had exclusive jurisdiction; (2) the trial court previously dismissed Lori's petition with prejudice, preventing it from re-opening the matter; and (8) the trial court erred in granting Lori's petition because the petition was improperly captioned and not verified. Julie does not question the components of the order, ie., the amount of child support.\\nA. Subject Matter Jurisdiction\\nInitially, we note that subject matter jurisdiction refers to the power of a court to decide a \\\"class\\\" of cases. To determine whether a court has subject matter jurisdiction, it must inquire whether the claim falls within the general scope of authority conferred on the court by the Indiana Constitution or by statute. When a court lacks subject matter jurisdiction, its actions are void and may be challenged at any time. Whether a lower court had jurisdiction is a pure question of law, and we review the issue de novo. Kondamuri v. Kondamuri, 799 N.E.2d 1158, 1156 (Ind. Ct.App.2008), trans. denied.\\nJulie contends that the Superior Court did not have statutory authority to enter the child support award because superior courts \\\"have jurisdiction conferred by statute to order a mother or father to pay child support.\\\" Appellant's Br. p. 5. In essence, Julie rehashes her earlier argument to urge that Indiana's statutes do not explicitly provide for child support payments for the biological children of a former same-sex partner. Again, Julie myopically focuses on her relationship with Lori, not her relationship with her children. As explained above, Julie is the adoptive mother of the children.\\n[13] Our common law and statutory law provided the Superior Court with subject matter jurisdiction to award child support in this case. \\\"[Plarents have a common law duty to support their children.\\\" Bales v. Bales, 801 N.E.2d 196, 199 (Ind. Ct.App.2004), trams. demied. Moreover, our statutes do not predicate the court's jurisdiction upon the status of the parents, as to each other. As indicated above, the stepparent adoption statute, Indiana Code section 31-19-15-2(b), provides in relevant part: \\\"After the adoption, the adoptive father or mother . (1) occupy the same position toward the child that . the biological father or mother [would oeeupyl; and (1) are jointly and severally Hable for the maintenance and education of the person.\\\" (Emphasis added). - Unquestionably, an adoptive mother is a mother and is liable for support of the adopted children, all of which is completely unaffected by the adoptive mother's status as the former same-sex domestic partner of the other parent.\\nFurther, child support is of the class of cases that Indiana superior courts have statutory - jurisdiction - to - determine. Indiana Code section 381-12-1-1 allows judges of cireuit and superior courts of each judicial cireuit to make a yearly determination of the necessity for a court designated as a \\\"domestic relations court.\\\" The jurisdiction of domestic relations court is statutory:\\n(a) Whenever a domestic relations court is established under this chapter, the domestic relations court has jurisdiction over all proceedings in the following causes of action:\\n1. - Dissolution of marriage.\\n2. Separation.\\n3. Annulment.\\n4. Child support.\\n5. Paternity.\\n(b) A domestic relations court has jurisdiction that other courts in Indiana have over the causes of action listed in subsection (a). A domestic relations court may dispose of the causes of action listed in subsection (a) in the manner provided by statute for those causes of action. However, this chapter grants supplemental powers to the domestic relations courts to aid the court in determining the difference between the parties and in protecting the welfare and rights of the child or children involved.\\nInd.Code \\u00a7 31-12-1-4. Thus, statutory authority exists for the Superior Court's subject matter jurisdiction over matters concerning child support between parents. That authority extends to supplemental powers to aid it in determining the difference between the parties and in protecting the welfare and rights of the children involved.\\nFurther, our family law statutes provide additional authority for the Superior Court's action in ordering child support. After considering the required statutory factors, a court \\\"may order either parent or both parents to pay any amount reason able for support of a child.\\\" Ind.Code \\u00a7 31-16-6-l(a). Moreover, the court must enter a decree in an action for child support when it finds: \\\"(1) that there is a duty to support by the person alleged to have the duty; (2) that the duty to support has not been fulfilled; and (8) that an order should be entered under IC 31-16-6-1.\\\" 1.C. \\u00a7 31-16-2-8(a).\\nWe have already held that Julie's adoption of Lori's children is valid and that the Circuit Court properly refused to vacate that adoption. Accordingly, Julie has assumed all of the rights, duties, and obligations of a biological parent and is a legally recognized \\\"parent\\\" to these children in every sense of the word. As a parent, she is obligated pursuant to civil common law and statutory law to help bear the cost of raising these children. The Superior Court had subject matter jurisdiction, ie., Jurisdiction over the class of cases, to order her to pay child support.\\nB. Failure to State a Claim\\n1. Exclusive Jurisdiction\\nJulie next argues that the Circuit Court, not the Superior Court, had exelu-sive jurisdiction of all matters regarding the adoption. It is true that the Tippecanoe Circuit Court, as a court of probate jurisdiction, had exclusive jurisdiction regarding the children's adoption. See I.C. \\u00a7 83-28-1-2 (granting cireuit courts general civil and criminal jurisdiction), and I.C. \\u00a7 31-19-1-2(b) (probate courts have exclusive jurisdiction in adoption matters). However, the child support order is a matter separate and apart from the adoption. As discussed above, the Superior Court had statutory jurisdiction to consider the matter of child support. As to child support, Cireuit Court and Superior Court No. 2 in Tippecanoe County have concurrent or coordinate jurisdiction.\\nNeither is it of concern that the Cireuit Court was first to acquire jurisdiction over the parties when it ruled on the adoption. As to child support, the Cireuit Court and Superior Court enjoy concurrent jurisdiction. In short, the Cireuit Court was not vested with exclusive jurisdiction over all matters concerning the parties after it ruled on the adoption in 1997. Cf. Bank One Trust No. 386 v. Zem, Inc., 809 N.E2d 873, 876-77 (Ind.Ct.App.2004), trans. denied, (circuit court's issuance of tax deed did not vest exelusive jurisdiction in circuit court; superior court had coordinate jurisdiction such that it could issue subsequent order).\\nIt is also true that two courts of coordinate jurisdiction cannot exercise jurisdiction over the same subject matter at the same time. Artusi v. City of Mishawaka, 519 N.E.2d 1246, 1249 (Ind.Ct.App.1988), trans. denied. As we have explained, that did not occur here. While the Superior Court child support matter was pending, Julie filed her motion in Circuit Court to vacate the adoption. The Superior Court could not exercise jurisdiction over the adoption matter. Consequently, the two courts were not courts of coordinate or concurrent jurisdiction as to the adoption, and they were not exercising jurisdiction over the same subject matter.\\nJulie also argues that it is in the interests of \\\"uniformity and confidentiality\\\" that the Circuit Court should have exclusive jurisdiction over all matters concerning this family unit. She cites to no authority for this proposition, however, and we can see no reason why either \\\"uniformity\\\" or \\\"confidentiality\\\" would divest the Superior Court of jurisdiction to hear Lori's action for child support. Accordingly, Lori appropriately brought this petition before the Superior Court.\\n2. Previous Dismissal\\nJulie next contends that Lori's action for child support was previously dismissed with prejudice and, as a result, could not be properly re-opened. On December 10, 2001, Lori filed her Second Petition in the Superior Court. At that time, she was living with her children and husband in Georgia. The Superior Court dismissed her petition, and its order provided, in pertinent part, as follows:\\nThe Court now FINDS that the 'home state' [sic] is the State of Georgia. That although the children and parties had past connections or relationships with others in Indiana, certainly relationships have developed in Georgia since the children's and biological mother's move to Georgia on June 1, 2001. Presumably the children are and have been in school in Georgia since August, 2001 through present. Given the length of the children's stay in Georgia, this Court cannot find it necessarily in the children's best interest to keep jurisdiction in Indiana. In fact, Georgia is and became the 'home state' of the children prior to the Petition being filed which is now pending.\\nTherefore, it appears that Georgia is the home state. Georgia is also the more convenient forum as the two children and biological mother reside in Georgia. Any pending Petitions and future Petitions will more likely require the presence of witnesses located in the state of Georgia.\\nThis Court now DISMISSES this case without prejudice to the Petitioner's right to request this case be re-opened by the Special Judge and heard. Should the Respondent resist personal jurisdiction in Georgia or should Georgia fail to hear and determine any Petitions files [sic] concerning these two parties, the Petitioner shall inform the Special Judge under this cause number and request the case be re-set.\\nShould this case be re-opened, the Court would consider the request to have any child support retroactive to the date the Petition for Support was filed.\\nAppellant's App. p. 17-18 (emphasis added).\\nFrom this Superior Court order that specifically states that Lori's petition was dismissed \\\"without prejudice,\\\" Julie argues that, in fact, it was dismissed with prejudice. According to Julie, the only two ways in which Lori's petition could be properly re-opened were 1) if Julie resisted jurisdiction in Georgia, or 2) Georgia refused to hear a petition filed there. Our review of the language of the Superior Court's order leads us to disagree with Julie. It is clear that Lori's petition was dismissed without prejudice and that the Superior Court was merely elucidating two possible scenarios in which the case could be re-opened. When Lori and her children moved back to Indiana, their home state again became Indiana, and the Superior Court onee again had jurisdiction to hear Lori's petition. That she never filed a petition in Georgia is irrelevant. Because Lori's petition was dismissed without prejudice, the Superior Court properly reopened the petition, and Lori's claim does not fail for this reason.\\n3. Verification\\nFinally, Julie contends that Lori's petition should have been dismissed because it was not properly captioned or verified as required by statute. Indiana Code section 31-16-2-3 requires that an action for child support must include the caption \\\"In Re the support of _,\\\" and Indiana Code section 31-16-24 requires that a petition for child support must be verified. Lori's petition did not comply with these statutes because it did not include the required caption and was unverified.\\nWhile we do not condone the failure to comply with the procedural requirements of the statutes, at the outset or by amendment, we are mindful of Indiana Trial Rule 61, which provides as follows:\\nNo error in either the admission or the exclusion of evidence and no error or defect in any ruling or order in anything done or omitted by the court or by any of the parties is ground for granting relief under a motion to correct errors or for setting aside a verdiet or for vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.\\nTR. 61.\\nLort's failure to include a proper caption and to verify her petition simply does not affect the substantial rights of the parties, especially when we consider that at the heart of this case is the well-being of two minor children. To grant Julie's motion to dismiss would have the effect of depriving her children of needed financial support, and we are loath to take such a step based on purely procedural grounds. We conclude that Lori's errors in fashioning her petition were harmless, and we decline to reverse the Superior Court's denial of Julie's motion to dismiss on this basis.\\nCONCLUSION\\nAs to Julie's petition to vacate the adoption of her children, we find that the Circuit Court had authority to grant her petition for adoption in 1997, and it was not procured by fraud. As to Lori's petition for child support, we find that the Superior Court properly exercised its jurisdiction and that Lori did not fail to state a claim upon which relief may be granted.\\nThe judgments of the Cireuit and Superior Courts are affirmed.\\nSHARPNACK, J., and FRIEDLANDER, J., concur.\\n. Julie timely appealed from the Superior Court's order requiring her to pay child support, and the case was assigned Cause Number 79A02-0407-CV-612. Then, Julie timely filed a Notice of Appeal from the Circuit Court's order denying her petition to vacate adoption. In the interests of judicial economy, Julie filed-and we granted-a Motion to Consolidate the two cases on appeal. On November 12, 2004, after all of the briefs had been filed in the original appeal, we consolidated the two cases into Cause Number 79A02-0407-CV-612.\\n. Apparently, both Julie and Lori believed that the children's biological father did not have a consistent and steady record of employment such that the children could count on his employment benefits.\\n. There are two sets of briefs and appendices in this case. We will cite to the first set, regarding the Child Support Order, as Appellant's and Appellee's Briefs, and Appellant's Appendix. We will cite to the second set, regarding the Petition to Vacate Adoption, as Appellant's and Appellee's Consolidated Briefs, and Appellant's Consolidated Appendix.\\n. The reasons for the dismissal of the First Petition are not apparent from the record.\\n. We note that the precedent for same-sex couple adoption was set prior to the decision in KS.P. See M.M.G.C., 785 N.E.2d at 270.\\n. To the extent that Julie urges that she should not have an obligation to support her adopted children because they have repudiated their relationship with her, her argument must fail. See Bales v. Bales, 801 N.E.2d 196, 199 (Ind.Ct.App.2004), trans. denied, (recognizing that child's repudiation of parent could obviate parent's obligation to pay certain expenses such as college expenses; \\\"[hlowever, no case has extended that release of a parent's financial responsibility to the payment of child support, and under the current law, it cannot.\\\").\\n. As of 2004, Indiana Code section 33-33-79.2-6, provides: \\\"Superior court No. 2 of Tippecanoe County has the same original and appellate jurisdiction possessed by the Tippecanoe circuit court in civil and criminal cases, but not in matters of probate .or juvenile jurisdiction.\\\"\\n. Though not specifically mentioned in the statute, that authority would appear to extend to custody matters.\"}"
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+"{\"id\": \"9442584\", \"name\": \"Merrick Scott RAYLE, Appellant-Plaintiff, v. Irene Temple BOLIN, Individually and as the Personal Representative of the Estate of Barbara Merrick Hawkins, Deceased, et al., Appellees-Defendants\", \"name_abbreviation\": \"Rayle v. Bolin\", \"decision_date\": \"2002-06-07\", \"docket_number\": \"No. 79A05-0111-CV-492\", \"first_page\": \"636\", \"last_page\": \"639\", \"citations\": \"769 N.E.2d 636\", \"volume\": \"769\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:36:08.182236+00:00\", \"provenance\": \"CAP\", \"judges\": \"MATHIAS, J., and BARNES, J., concur.\", \"parties\": \"Merrick Scott RAYLE, Appellant-Plaintiff, v. Irene Temple BOLIN, Individually and as the Personal Representative of the Estate of Barbara Merrick Hawkins, Deceased, et al., Appellees-Defendants.\", \"head_matter\": \"Merrick Scott RAYLE, Appellant-Plaintiff, v. Irene Temple BOLIN, Individually and as the Personal Representative of the Estate of Barbara Merrick Hawkins, Deceased, et al., Appellees-Defendants.\\nNo. 79A05-0111-CV-492.\\nCourt of Appeals of Indiana.\\nJune 7, 2002.\\n_ Jerome L. Withered, Withered & Corri-gan, LLP, Lafayette, IN, Attorney for Appellant.\\nThomas J. Herr, Truitt & Herr, Lafayette, IN, Attorney for Appellees.\", \"word_count\": \"1416\", \"char_count\": \"8547\", \"text\": \"OPINION -\\n' KIRSCH, Judge.\\nMerrick Scott Rayle appeals the trial court's decision granting Irene Temple Bo-lin's motion for summary judgment on his verified will contest. The parties raise two issues for review, one of which 'we find dispositive: whether the trial court's decision was a final, appealable order.\\nWe dismiss the appeal and remand the case to the trial court.\\nFACTS AND PROCEDURAL HISTORY\\nOn September 9, 2000, Barbara Merrick Hawkins died. A few days later, her nephew and only heir at law, Rayle, filed objections to the probate of her 1991 will. Two weeks later, Bolin, the personal representative of Hawking's estate under the will, filed a petition to probate the will. On January 18, 2001, Margot Rayle Gobel and Colleen R. Neal also filed a verified counter- and eross-complaint contesting the probate of Hawkins's 1991 will.\\nBolin filed a motion to dismiss Rayle's will contest, alleging that he lacked standing to bring such a challenge. The trial court treated Bolin's motion as one for summary judgment and granted it. Rayle now appeals.\\nDISCUSSION AND DECISION\\nBolin argues that the trial court's order dismissing Rayle's will contest is not a final, appealable order, and accordingly, this court lacks jurisdiction to hear this appeal and should dismiss it. Ind. Trial Rule 54(B) provides:\\n\\\"(B) Judgment upon multiple claims or involving multiple parties. When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry -of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and labilities of fewer than all the parties shall not ter- . minate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any . time before the entry -of judgment adjudicating all the claims and the rights and liabilities of all the parties. A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.\\\"\\nBolin contends that the trial court's judgment was not appealable because it did not dispose of all issues or parties because Others are also contesting the probate of Hawking's will, and it did not contain an express determination that there is no just reason for delay or an express direction for the entry of judgment.\\nIn Martin v. Amoco Oil Co., 696 N.E.2d 388, 385 (Ind.1998), cert. denied by Zrnchilk v. Amoco Oil Co., 525 U.S. 1049, 119 S.Ct. 608, 142 L.Ed.2d 548 (1998), our supreme court discussed T.R. 54(B). It explained the T.R. 54(B) requirements that the trial court, in writing, expressly determine that there is no just reason for delay and, in writing, expressly direct entry of judgment. It noted that TR. 54(B) was based on the federal rule and was intended to \\\"provide greater certainty to litigating parties and to strike an appropriate balance between the interests in allowing for speedy review of certain judgments and in avoiding. the inefficiencies of piecemeal appeals.\\\" Id. The rule was a reaction to and intended to supplant the prior common law approach of basing appealability on whether a claim constituted a \\\"distinct and different branch of litigation.\\\" Id. The supreme court noted that its insistence that the trial court's judgment include the express determination and order for entry of judgment was formalistic, but added that adhering to such a bright line rule \\\"removes uncertainties about when a party should appeal\\\" and places the discretion of deciding when the facts indicate that a judgment should be deemed final in the hands of the trial judge, who is best able to make such decisions. Id. See also First Equity Sec. Life Ins. Co. v. Keith, 164 Ind.App. 412, 416, 329 N.E.2d 45, 47-48 (1975) (holding that TR. 54(B) mandates that judgment as to less than all issues is interlocutory judgment, and does not become final and appealable until trial court makes specified determination and direction, but electing to address merits of case under discretionary authority); Geyer v. City of Logansport, 317 N.E.2d 898, 896 (1974) (bolding that TR. 54(B) requires express determination and direction to certify order disposing of less than all claims or parties as final appealable order).\\nTR. 54(B) has been interpreted consonant with federal practice. Legg v. O'Connor, 557 N.E.2d 675, 676 (Ind.Ct.App. 1990). Commentators explaining F.R.C.P. 54(b) have explained the necessity of the required language:\\n\\\"The requirement in Rule 54(b) that the court make an express determination that there is no just reason for delaying the review of a judgment on fewer than all of the claims or involving fewer than all of the parties in an action eliminates any doubt whether an immediate appeal may be sought. Conversely, it makes clear when an appeal must be sought or the right to appeal will be lost, since the time for appeal begins to 'run from the entry of an order that meets the requirements of the rule. If the court does not enter a Rule 54(b) order, the litigant knows that waiting until the disposition of the entire case before seeking an appeal will not lose the right to have the order reviewed.\\\"\\n10 CHarnes A. Wricem Er an, Practices anp ProcEpurE\\u00ae \\u00a7 2654, at 37-88 (3d ed.1998).\\nWhile Rayle argues that the certification requirement should be relaxed here, such a response is inappropriate even when neither party is harmed by proceeding:\\n\\\"[It must be remembered that Rule 54(b) certification was intended to provide certainty so that parties would not inadvertently lose a right to appeal. The relaxation of the rule has the potential of creating confusion and undereut-ting some of the clarity achieved by having an absolute requirement to allowing appeals in multiclaim cases that are adjudicated in piecemeal fashion. Thus, the preferable course is to require formal certification.\\\"\\nId. at \\u00a7 2660, at 152.\\nWe agree with such commentators and earlier cases that have recognized the problem with abandoning the formalistic requirements of certification of Rule 54(B). Therefore, we decline Rayle's invitation to disregard 'the Rule's requirements here.\\nAbsent a certification by the trial court, a partial judgment pursuant to T.R. 54(B) is an interlocutory order and is not appealable unless it falls within the parameters for certification of an interlocutory appeal. Creech v. Southeastern Indiana R.E.M.C, Inc., 469 N.E2d 1287, 1240 (Ind.Ct.App.1984), trans. denied (1985). This requirement also applies to TR. 56(C) and partial summary judgments. Id. Ind. Appellate Rule 14(B) allows litigants to appeal from interlocutory orders if the order is certified by the trial court. However, the record before us discloses no such certification of the trial court's order under this rule. Accordingly, this court does not have jurisdiction pursuant to either rule.\\nWe therefore dismiss this appeal and direct Rayle to seek an amended order that includes a certification under T.R. 54(B) or as an interlocutory appeal if he wishes to appeal this judgment prior to the entry of a final judgment which decides all claims fully. Because such certification is a matter left to the discretion of the trial court, we express no opinion as to whether the trial court should apply T.R. 54(B) on these facts.\\nDismissed and remanded.\\nMATHIAS, J., and BARNES, J., concur.\\n. We hereby deny Bolin's request for oral argument.\\n. Federal Rule of Civil Procedure 54(b) is identical to this point and concludes here.\"}"
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