Appeal from Circuit Court, Marshall County; Smith N. Stevens, Judge. intended to include in it unlawful racing as | gagor the right to pay the same and keep his a part of the program. It is to be noted that property. no mention was made of racing in the minutes involved, and the fact that racing occurred in violation of the law, and of the ordinance of the city, though known to public officials, does not make the city liable. City of Lafayette v. Timberlake, 88 Ind. 330; Moore v. City of Bloomington, supra. Other questions are presented; but, having reached this conclusion, we deem it unnecessary to consider them. The judgment is reversed, with instructions to the trial court to grant a new trial. (74 Ind. App. 294) DOERING V. SCHNEIDER. (No. 10501.) (Appellate Court of Indiana, Division No. 1. December 7, 1920.) Action by John H. Doering against John Schneider. From a judgment for defendant, plaintiff appeals. Affirmed. John W. Kitch, of Plymouth, and Charles Weidler and Miller Guy, both of South Bend, for appellant. Adam E. Wise, of Plymouth, for appellee. BATMAN, J. This is an action in replevin, brought by appellant against appellee, to recover the possession of certain personal property, including an automobile, on which the former claimed to hold a chattel mortgage to secure a debt due him from the latter. The answer is in two paragraphs, consisting of a general denial, and an affirmative paragraph in which it is alleged that all of the indebtedness secured by said mortgage had been paid, except the sum of $23.42, which had been duly tendered to appellant and refused by him. It is further alleged therein 172(5)-Finding that that said sum was brought into court for ap 1. Appeal and error 1002-Verdict on conflicting evidence not disturbed. A verdict on conflicting evidence will not be disturbed. 2. Chattel mortgages tender was made or waived warranted. In replevin for personal property subject to chattel mortgage, a finding that the mortgagor tendered the amount due, or that tender was waived, held warranted by the evidence. 3. Appeal and error 889 (3)-On variance between pleading and proof without objection to evidence, Appellate Court may deem answer amended. pellant's benefit, for the purpose of making said tender good. A reply in general denial was filed to said second paragraph of answer. A trial by a jury resulted in a verdict in favor of appellee, upon which judgment was duly rendered. Appellant filed a motion for a new trial, which was overruled. This action of the court is the sole error assigned on appeal. [1-3] The only reasons for a new trial, stated in appellant's motion therefor, are that the verdict is not sustained by sufficient evidence, and is contrary to law. Appellant admits that the evidence on the question of the amount due on the indebtedness secured by the mortgage is conflicting, and by reason of such fact expressly limits his brief to a consideration of the question relating to the al In replevin for personal property subject to a chattel mortgage, where plaintiff made no objection to the introduction of evidence showing waiver of a tender, although tender itself was pleaded, judgment for defendant based on tender of the amount due will not be disturbed, but, if necessary, the answer will be deemed to have been amended to conform to proof. 4. Chattel mortgages 237-Where tender is refused, it is not necessary to renew. Where defendant tendered plaintiff, a chat-leged tender of the balance, which appellee tel mortgagee, the amount found by the jury to be due, but the tender was refused on the ground of insufficiency of the amount, it is not necessary for defendant to protect his rights to renew the tender; payment into court being sufficient. 5. Tender 9-Premature tender of no effect. concedes to be owing on said indebtedness. In this connection appellant has stated a number of abstract propositions of law, as to what is necessary to constitute a tender, and a waiver thereof, none of which we controvert. There is nothing in any of these propositions which prevents our holding that the verdict of the jury is sustained by the evidence. The evidence tends to show that 237-Where mort- appellee and Otto Legner went to appellant's gagee elected to treat obligation as due, ten-place of business for the purpose of tendering der before maturity sufficient. him the sum of $23.71 in payment of the Where a chattel mortgagee declared the balance due on said indebtedness; that they note due and demanded possession of the prop- found appellant sitting at his writing desk; erty pursuant to a provision in the note allow-that while there appellee had present, in the ing the mortgagee to declare it due, etc., a tender of the amount due, though made by the possession of said Legner, money sufficient to mortgagor before the date of maturity as fixed, pay said balance; that said Legner, on behalf is binding and effective; for, by declaring the of appellee, offered appellant the sum of $23.debt due, the mortgagee conferred on the mort-71 in payment of the balance due on said in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (128 N.E.) * debtedness; that appellant, without making [dence from which the jury may have found any objections to the kind of money offered, that appellant not only refused the tender refused to accept the same because of the in- made by appellee, but that his course there. sufficiency of the amount, and declared that after was such as to clearly indicate that he he would not surrender the note on payment would not accept the same. Under these cirof said sum. These facts, together with the cumstances, a payment of the money into reasonable inferences deducible therefrom, court was all that was required after such would sustain a finding that a tender was refusal. made, and it would likewise sustain a finding [5, 6] Appellant contends that the note in that a tender was waived. But appellant as-question, by its terms, did not fall due until serts that, inasmuch as appellee's affirmative May 26, 1917; that the undisputed evidence paragraph of answer only alleges a tender, it shows that the alleged tender was made on cannot be sustained by proof of a waiver of the 1st day of May of that year; that, by tender, and therefore, if the evidence does reason of this fact, the tender on which apnot establish an actual tender, the answer is pellee relies was made 25 days before the not sustained. In support of this conten- maturity of such note, and was therefore pretion he cites a number of decisions to the mature and of no effect. While it is true, effect that a party must recover secundum as stated in the case of Bowen v. Julius allegatta et probata, or not at all. This rule, (1894) 141 Ind. 310, 40 N. E. 700, that a tender however, is not available to appellant under of payment of a note before maturity is prethe circumstances of this case, as the briefs mature and of no effect, such rule cannot be do not disclose that he made objections to any said to have any application where there has evidence bearing on the question of such been a waiver of the right to insist that paywaiver, or that he claims to have been in any ment be deferred until the time specified wise misled or prejudiced thereby. Under therein. 26 R. C. L. 634; Pyross v. Fraser, these circumstances, this court, if necessary, 82 S. C. 498, 64 S. E. 407, 23 L. R. A. (N. S.) will deem appellee's second paragraph of 403, 129 Am. St. Rep. 901, 17 Ann. Cas. 150. answer amended to conform to the evidence. In the instant case the note in question reSouthern Ind. R. Co. v. Drennen (1909) 44 cites that appellant "has full power to deInd. App. 14, 88 N. E. 724; Hawkins v. clare this note due, take possesThompson (1919) 122 N. E. 431. sion of said car, * and sell said car [4] Appellant contends that, even if the at public or private sale." There is evidence court holds that the evidence shows a tender, from which the jury may have properly still appellee was not entitled to recover, as drawn an inference that appellant had exerthere was no proof that appellee kept his ten- cised such power, prior to the alleged tender der good. In support of this contention, he by appellee, and had thereby waived the right asserts that the evidence shows that at times to insist on payment being deferred until the subsequent to the maturity of the note evi- time specified in the note therefor. As a dencing sald indebtedness, and subsequent to basis for such an inference we cite the facts, the alleged tender, he made demand for the which the evidence tends to establish with payment of the balance of said indebtedness, reference to the demand by appellee for the or the possession of the chattel security there- possession of the property covered by the for, and that there is no evidence to show mortgage in question, prior to the date named that any tender was made upon any of such in said note for its maturity, and also with occasions. We cannot sustain appellant's reference to the peppermint oil and horse, contention that appellee failed to keep his which appellant secured from appellee and tender good. The evidence tends to show applied on said note prior to said date. Such that the face of the note evidencing the in- an inference would be further supported by debtedness in question was $750; that appel- the fact that appellant placed the note in lee claimed that the balance due thereon was question in the hands of an attorney for only $23.71, while appellant insisted that the collection prior to the date on which it was balance due thereon was over $250; that it payable according to its terms, as well as was because of this difference as to the by the fact that, when appellee made his alamount due thereon that appellant refused leged tender, appellant did not refuse the to accept the amount which appellee offered same because the note in question was not to pay. The object of a tender is to enable due, but because the amount tendered was the other party to accept, and thus escape not the full amount of the balance due therefurther liability at any stage of the proceed-on. The conclusion we have reached finds ings. Where a tender has once been made and refused, it is not necessary, as a rule, to renew such tender, and especially is this true where there is no indication that such refusal has been withdrawn, and that a tender would be accepted. Cleveland, etc., R. Co. v. Anderson Tool Co. (1913) 180 Ind. 453, 103 N. E. 102, 49 L. R. A. (N. S.) 749, Ann. Cas. 1916B, 1217. In the instant case there is evi support in the case of Rice v. Kahn, 70 Wis. 323, 35 N. W. 465, wherein the court, in considering the effect of a tender made prior to the maturity of a mortgage debt, said: "We do not regard the fact of any importance that the most of the mortgage debts were not due at the time the property was seized. If a mortgagee avails himself of a stipulation in the mortgage to that effect, and takes possession of the mortgaged property, or is about to do so, Under the facts which the evidence tends (74 Ind. App. 324) In re STONER. (No. 10966.) in its factory at Greencastle, Ind., and was (Appellate Court of Indiana, Division No. 2. Robert Stoner with an attending physician Dec. 10, 1920.) Master and servant 366-"Young person" in the service of another. [Ed. Note. For other definitions, see Words Certified questions from Industrial Board. and the necessary surgical services and sup- James & Allee, of Greencastle, for appellee. of his injury, or at any other time during NICHOLS, J. On the facts hereinafter his service, an age certificate issued by the Robert Stoner was born November 5, 1902. It is admitted by the American Zinc Prod- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (128 N.E.) That Robert Stoner has presented a claim for compensation on account of said injury, and contends that he was lawfully in the employment of the American Zinc Products Company at the time of his injury. The American Zinc Products Company admits his contention and insists that an award of compensation at the rate of $11.55 per week for 105 weeks should be made, while the London Guarantee & Accident Company contends that Robert Stoner was not lawfully in the service of the American Zinc Products Company at the time of his injury, and for that reason is not entitled to an award of compensation. This contention is based upon the proposition that under a provision of section 8038, Burns' R. S. 1914, the said Robert Stoner was a "young person" at the time he entered the services of the American Zinc Products Section 8038, supra, expressly defines the words "young person" to mean a person of the age of 14 years and under the age of 18 years. Applying this definition to words "young person" used in the provision quoted from section 8022, supra, both sections being part of the same act, it is apparent that the claimant herein, being 17 years of age, and therefore between the ages of 14 and 18 years, was not lawfully employed, and therefore not an employé within the meaning of the Workmen's Compensation Act, which provides that "Employee' shall include every person, including a minor, lawfully in the services of Acts 1919, p. 175, § 76. another under any contract of hire. This question was decided by the Supreme Company and at the time of his injury, and Court in the case of New Albany Box & Basthat, being a "young person," under the pro-ket Co. v. Davidson, 125 N. E. 905, in which visions of said section, he was not lawfully in the service of the American Zinc Products Company by reason of a provision in section 8022, Burns' R. S. 1914, in the words following, to wit: "And it shall be unlawful for any proprietor, agent, foreman or other person connected with a manufacturing or mercantile establishment, mine, quarry, laundry, renovating works, bakery or printing office to hire or employ any young person to work therein without there is first provided and placed on file in the office an affidavit made by the parent or guardian, stating the age, date and place of birth of said young person; if such young person have no parent or guardian, then such affidavit shall be made by the young person, which affidavit shall be kept on file by the employer, and said register and affidavit shall be produced for inspection on demand made by the inspector, appointed under this act." Upon the foregoing facts the Industrial Board respectfully submits the following questions of law for our determination: case the minor sought to recover at common law, and, after quoting the definition of a young person as above, the court held that the minor, who was 15 years of age, was illegally employed, and, not being embraced within the provisions of the Workmen's Compensation Act, his action was properly brought. Two of the cases cited in that case, to wit, Roszek v. Bauerle & Stark Co., 282 Ill. 557, 118 N. E. 991, L. R. A. 1918F, 207, and Messmer v. Industrial Board, 282 Ill. 562, 118 N. E. 993, were decided against the minor who sought to recover under the Workmen's Compensation Act. Other decisions against an attempted recovery under the Compensation Act are Moll v. Industrial Commission, 288 Ill. 347, 123 N. E. 562, and Hillestad v. Industrial Commission, 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789. In addition to the cases cited in New Albany Box & Basket Co. v. Davidson, supra, we cite in harmony therewith Lesko v. Liondale Bleach Dye & Paint Works, 93 N. J. Law, 4, 107 Atl. 275; Acklin Stamping Co. v. Kutz, 98 First. Would a finding that Robert Stoner was an employé of the American Zinc Prod-Ohio St. 61. 120 N. E. 229; Gutman v. Anderucts Company within the meaning of the Workmen's Compensation Act, at the time of his injury, be sustained by sufficient evidence? son, 142 Minn. 141, 171 N. W. 303; Taglinette v. Sydney Worsted Co. (R. I.) 105 Atl. 641; Secklich v. Harris Emery Co., 184 Iowa, 1025, 169 N. W. 325; Krucgkowski v. Polonia Pub. Second. Would such a finding be according Co., 203 Mich. 211, 168 N. W. 932; Waterto law? Third. Would an award of compensation to Robert Stoner upon the foregoing facts be sustained by sufficient evidence? man Lumber Co. v. Beatty (Tex. Civ. App.) 204 S. W. 448. The employé's remedy in this case is not under the provisions of the Workmen's Com Fourth. Would such an award be accord-pensation Act. We answer each of the quesing to law? tions propounded to us in the negative. (74 Ind. App. 329) Hughes and received his answer dated JanuYOUNG V. INTERSOUTHERN LIFE INS. ary 10. Under the rules no policy could be CO. (No. 10445.) issued unless the application had the approval of both the medical inspector and the secre (Appellate Court of Indiana, Division No. 2. tary. Dr. Allen finally approved the applica Dec. 10, 1920.) tion January 15, 1914, and passed it to the secretary. On January 16, 1914, the secretary approved it, canceled the date, "Dec. 31, 1913," by drawing a horizontal line through it, and wrote above it "January 16, 1914." On January 13, 1914, Greene was in the home office and inquired of the vice president concerning Insurance 136(4), 141(1)-Policy approved after death of insured held void, defect not being waived by premium retention. Where the application and insurance policy both provided that the policy should not become effective until it was delivered to insured in good health, a policy which was approved the application. Thereupon the vice presiby the company and mailed to its agent for delivery to the insured after the insured was dead, of which fact the insurance company was ignorant, was void, and the retention by the insurance company of the premium paid cannot waive the objection. dent sent his stenographer to Dr. Allen for information. When she returned, she stated, The application has been passed." At that time Greene paid to the company $6 on account of the application. On January 26, 1914, the policies were made out, and on the Appeal from Superior Court, Marion Coun- next day they were mailed to Greene at ty; W. W. Thornton, Judge. Action by James Stobo Young against the Intersouthern Life Insurance Company. Judgment for defendant on directed verdict, and plaintiff appeals. Affirmed. Guilford A. Deitch and Frank G. West, both of Indianapolis, for appellant. Helm Bruce, of Lexington, Ky., and F. Winter, of Indianapolis, for appellee. DAUSMAN, P. J. This is an action on three policies of life insurance. It appears from the evidence that W. V. Greene was an agent for appellee, and that appellant was employed by him as a helper in soliciting business. The company allowed Greene, all of the first annual premium as a commission, but required him to turn in $6 on each application to cover the expense of medical examination and inspection. On December 29, 1913, at Laurens, S. C., while acting on behalf of Greene, appellant obtained from his father, George Ferguson Young, an application for insurance in the aggregate amount of $5,000, to be in three policies and payable to the son as beneficiary. The total premium on the policies for the first year was fixed at $304.15. The father paid $6 in cash, and was told by his son that he (the son) would pay the balance out of his commission. The application and the $6 were forwarded to Greene at Louisville. The application was received at the company's home office on January 2, 1914, by its vice president, who then turned it over to the medical inspector. The medical inspector then indorsed on the application, "Approved Dec. 31, 1913." The applicant was examined by Dr. Hughes, the medical examiner at Laurens. Dr. Allen, the medical inspector, sent out an inspection inquiry to learn whether the applicant was a desirable risk, and on January 7, 1914, received an unfavorable report thereon. He then wrote Dr. Laurens. No one having called for the policies, the postmaster at Laurens returned them. Some time within the first week of February, 1914, the policies were handed to Greene at the home office to be delivered by him to the applicant, accompanied by an inunless the person whose life is insured is, struction in writing not to deliver the policies at the time of such delivery, in good health, of temperate habits, and insurable condition. Greene immediately sent the policies by mail to the appellant at Laurens. The company never repaid, or offered to repay, any money received, directly or indirectly, on account of this transaction. The application contained the following stipulation: "I agree that the company shall incur no liability under this application until it has been received, approved and the policy issued and delivered and the premium has actually been paid to and accepted by the company during my life time while I am in good health, and that any delivery of the policy to an agent or other person or mailing same to me shall not be regarded as delivery to me until the policy has actually been received by me and the full first premium paid in cash. No statement made by the person soliciting this application plication and the policy issued as a result, covshall be binding on the company, and this apers the entire contract." Each policy contains the following stipulation: "This contract is made in consideration of the application therefor, a copy of which is set out on the third page hereof and made a part of this contract and in further consideration of the sum of sixty and 83/100 dollars to be paid in advance on or before the delivery of this policy, which shall not take effect unless insured is alive and in good health at the time of delivery"-except that the amount of premium is not uniform. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |