In an action by a servant injured while passing a belt to turn off the power and stop a saw, it appeared that he could have used two different ways to reach the switch. The court charged that his selection of a way which proved more dangerous, where there was nothing to show that fact, would not, as a matter of law, render him guilty of contributory negligence, and in another instruction charged that if, hav; ing two ways to reach the switch, he selected the one which he knew to be dangerous, then there could be no recovery. Held, that these instructions were not in conflict, and did not mislead the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. 8 296.*]

11. MASTER AND SERVANT (§ 233*)—InjuriES -NEGLIGENCE OF SERVANT.

Where a servant, having two ways to perform his duty, selects the one which he knows to be dangerous, and is guilty of contributory negligence, he cannot recover.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 701-742; Dec. Dig. § 233.*]

Appeal from Superior Court, Lake County; Virgil S. Ruter, Judge.

Action by Mike Ilko against the Inland Steel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. L. Bomberger, J. A. Bloomingston, and Bomberger, Sawyer & Curtis, for appellant. F. N. Gavit, T. M. C. Hembroff, and J. E. Westfall, for appellee.

MYERS, J. Appellee brought this action against appellant to recover damages for personal injuries sustained by reason of appellant's alleged negligence. The complaint was in two paragraphs, and a demurrer to each, for want of facts, was overruled. The answer was a general denial. The issues thus formed were submitted to a jury, verdict and judgment in favor of appellee, and against appellant.

The only questions here presented relate to the overruling of the demurrer to the second paragraph of the complaint, and in overruling appellant's motion for a new trial.

[1, 2] The second paragraph evidently intended to charge appellant with a violation of section 9 of the act approved March 2, 1899, known as the "Factory Act" (Acts 1899, p. 234; section 8029, Burns' 1908). It proceeded upon the theory of negligence in failing to properly guard a certain belt used and maintained by appellant in its manufacturing establishment. The objection to the paragraph is that it shows the proximate cause of appellee's injury was the breaking of the belt, and not the absence of a guard thereon. In support of this objection, it is argued that the act was not designed to prevent injuries from pieces of broken belts, and for that reason appellant was not required to guard the belt in question so as to prevent the pieces thereof from injuring its employés

pears among other facts alleged that appellee at the time of his injury was in appellant's employment, and in appellant's factory, and at the place where he was required to work, which was within three feet, and on a line with a certain belt then and there unguarded, and revolving around pulleys driven by electric power at a high rate of speed; that said belt was within one foot from the floor upon which appellee was required to and did work; that on June 29, 1907, appellee, while operating a saw, pursuant to his employment, and while he was at the place aforesaid, said belt, while running at a high rate of speed, did then and there break, and by reason of the fact that there was no guard or protection or covering over the belt a piece thereof struck appellee on his head, and other parts of his body, knocking him down, whereby he was permanently injured. In cases of this character, the master cannot avoid liability on the ground alone that he could not have reasonably anticipated the particular harm or the manner of its occurrence, which resulted from his failure to guard dangerous machinery. It is sufficient, if, by the exercise of reasonable care, he might have foreseen that from such failure it was probable that injury of some kind might result to his employés who were required to work in the vicinity of such machinery. vis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899; Cook v. Ormsby, 45 Ind. App. 352, 89 N. E. 525; Cincinnati, etc., R. Co. v. Acrea, 42 Ind. App. 127, 82 N. E. 1009. "It is the

Da

son v. Ford, 164 Ind. 538, 74 N. E. 1, it is said: "Of course, the act does not intend to exact a compliance where in respect to some particular machinery or appliance it is impossible properly to guard it without rendering the same useless for the purpose for which it was intended." We have carefully examined the evidence, not only as furnished by counsel in their briefs, but we have searched the record to find evidence from which the jury might have inferred that the belt in question could have been properly guarded without rendering it useless for the purpose intended. We have been unable to find such evidence, and counsel for appellee have failed to point out any from which the jury might reasonably have inferred the fact in dispute. The second paragraph of the complaint alleged that the belt could have been properly guarded without impairing its usefulness. The general denial put this fact in issue. Kelley, Adm'x, v. Grand Trunk Western Ry. Co., 46 Ind. App. 697, 93 N. E. 616. It is a fact essential to appellee's recovery under this paragraph, and, as there is no evidence to sustain it, the judgment must stand, if at all, upon the first paragraph. Robbins, Adm'x, v. Ft. Wayne Iron & Steel Co., 41 Ind. App. 557, 84 N. E. 514.

[4] It is argued that appellee wholly failed to prove either why or where the belt broke. For the purposes of this objection, by reference to the first paragraph of the complaint as it appears in appellant's brief, it will be seen that the defendant was a corporation operating a rolling mill at Indiana Harbor, and that appellee at the time he was injured was in the employ of appellant, working in and about said mill, and in the course of his employment was required to work at and about a certain belt, and within four feet of the same, which revolved around pulleys, and was driven by electric power at a high rate of speed; that said belt had become worn by use, and because of such worn condition said belt would not stand the strain to which it was subjected while revolving around said pulleys, and by reason whereof the same broke, and a piece thereof struck appellee, injuring him. This paragraph proceeds upon the theory of a defective belt and assurance of safety concerning the defect. There is evidence tending to show that the belt presented a somewhat worn condition. Its strength to do the work required of it had been questioned. Appellant's attention had been called to what was thought to be a defective condition of the belt, and, after an inspection of it, appellant assured appellee that it was sufficiently strong to do the work it was required to do, and that it was safe for him to proceed with his work. It further appears from the evidence that within 30 minutes after such inspection and assurance of safety the belt broke, and a piece of it struck appellee on the head, knocking him down. Where it broke is immaterial, if because of its worn

strength to do the work required of it, and, as it broke while running, then "why" it broke is certainly apparent, and the objection of appellant cannot be sustained.

Next it is argued that the court erred in giving to the jury on its own motion certain instructions, and in refusing to give certain instructions requested by appellant.

[5] The only instruction tendered by appellant about which there is here any question had reference to appellee's right to recover under his second paragraph of the complaint. In view of our conclusion that there is not sufficient evidence to sustain the verdict on this paragraph, this instruction becomes unimportant, and we will give attention only to the instructions questioned, pertaining to the first paragraph.

[6] Instruction 3, in substance, told the jury that plaintiff was entitled to recover if he proved by a preponderance of the evidence the material allegations of either or both paragraphs of his complaint. It is claimed that this instruction is erroneous for the reason that it ignores the defense of contributory negligence. This instruction reasonably interpreted, and as ordinarily understood, although not carefully worded, has reference only to the facts necessary to be proved before appellee would be entitled to recover under his complaint. The court is not supposed, to include in one instruction all the law bearing upon the case, and it is well settled that all of the instructions must be construed together, and, when this is done, if they fairly inform the jury as to the law relevant to the pleadings, and pertinent to the evidence, they will be upheld. In this case the court gave other instructions fairly presenting the defense of contributory negligence. This done, we are not persuaded that the jury was given to understand by the instruction in question that it was not to consider the defense of contributory negligence. Union Mutual Life Ins. Co. v. Buchanan, 100 Ind. 63, 74; McIntosh v. State, 151 Ind. 251, 51 N. E. 354; Morgantown Mfg. Co. v. Hicks, 46 Ind. App. 623, 92 N. E. 199.

[7] Instruction 4, told the jury, if from the evidence they found certain facts, then appellee "would be in the line of his employment while so going to shut off such switch." The objection urged against this instruction is that the court by giving it invaded the province of the jury. It is insisted that the question of whether or not a servant is in the line of his employment at any particular time is a question of fact for the jury, but in this case the court determined that fact as a question of law. In civil cases the jury is bound to take the law from the court, and in this respect the instructions are the law of the case. They should state legal principles, and not inferences of fact, to be drawn from the evidence or from evidentiary facts. Whether or not appellee was in the line of his employment

Haute, Ind., to be sent to the former's wife at Boonville, Ind. Among other facts, the complaint alleges that appellee, on said day,

WESTERN UNION TELEGRAPH CO. v.

FULLING. (No. 7,440.)

Jan. 4, 1912.)

1. EVIDENCE (§ 17*)-JUDICIAL NOTICE-DAYS OF THE WEEK. The court will take judicial notice that a particular day of a certain month fell on Sunday.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 21; Dec. Dig. § 17.*]

2. SUNDAY (§ 7*)—“WORK OF NECESSITY”— WHAT ARE.

The sending of a telegram by a husband to his wife, notifying her that he would not return as expected, is a "work of necessity,' within Burns' Ann. St. 1908, § 2364, prohibiting any work on Sunday, save that of charity and necessity.

[Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 14-20; Dec. Dig. § 7.*

For other definitions, see Words and Phrases, vol. 5, pp. 4728-4737.]

3. SUNDAY (§ 22*)-ACTIONS-CONTRACTS.

A contract, entered into by a telegraph company, on Sunday, to transmit a necessary message, is only voidable, and advantage of that defense may be had only by answer.

[Ed. Note.-For other cases, see Sunday, Dec. Dig. § 22.*]

4. SUNDAY (§ 24*)—SunDAY CONTRACT-FINDINGS-CONSTRUCTION.

In an action against a telegraph company for failure to promptly deliver a message sent on Sunday, a general finding for plaintiff is equivalent to a finding that the contract was not in violation of Burns' Ann. St. 1908, 2364, prohibiting ordinary labor on Sunday. [Ed. Note.-For other cases, see Sunday, Dec. Dig. § 24.*]

Appeal from Circuit Court, Warrick County; Roscoe Kiper, Judge.

Action by Henry F. Fulling against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

G. H. Fearons, Hatfield & Hemenway, and J. E. Williamson, for appellant. R. S. Moore, for appellee.

MYERS, J. Appellee brought this action against appellant to recover a statutory penalty (Acts 1885, p. 151) for the latter's alleged breach of duty.

Issues were formed and submitted to a jury, resulting in a verdict and judgment in favor of appellee for $100. With their general verdict, the jury returned answers to interrogatories. A demurrer to the complaint for want of facts, and appellant's motion for judgment on the answers to interrogatories, notwithstanding the general verdict, were each overruled, and these rulings are made the basis for separate assignments of error. Both of these assignments present the same and only question for our consideration.

The complaint shows that on September 8, 1907, the telegram in question was delivered by appellee to appellant at Terre

appellant that he desired to send a message over its lines and wires to his wife in Boonville, Ind., if the same could be delivered to her that same day or evening, and if it could not be delivered on that day or evening he did not want to send it at all, for, unless it was delivered on that day, it would be useless to send it; that appellant then and there informed appellee that the message could and would be delivered on that day, whereupon appellee then and there prepared and delivered to appellant, charges demanded prepaid (omitting the name and address of sendee and sender), the following message: "Late trains prevent being home till morning." It is also alleged that appellant negligently failed to transmit said message with impartiality and in good faith, nor in the order of time in which it was The answers to interrogatoreceived, etc. ries show that said September 8th was Sunday.

[1] Appellant contends that it did not incur the penalty for its failure to transmit the message, because the contract was made on Sunday, unless a necessity existed for its transmission on that day and that it had notice of such necessity. It appears from the complaint that the message in question was delivered to appellant on September 8, 1907, for transmission on that day, and this court judicially knows that September 8, 1907, was Sunday. Roberts v. Farmers' & Merchants' Bank, 136 Ind. 154, 36 N. E. 128.

[2, 3] From the facts exhibited by the complaint, appellee clearly gave appellant to

understand that transmission and delivery of the message on the day mentioned was essential; otherwise the sending of the same would be useless. With that understanding, appellant took appellee's money, received the message, but failed to transmit and deliver it "with impartiality and in good faith, and in the order of time in which it was received.” Appellee's conversation with appellant, and the contents of the message, would certainly convey to the mind of an ordinary person the cause of appellee's delay in arriving home, and under the circumstances was important. It was a word from the husband to the wife. Its tranquil effect on the mind of the wife for the unexplained delay of the husband's arrival home is apparent, and of itself sufficient to prompt a considerate husband in sending the message. If this only was its purpose, the necessity is shown (Burnett v. Western Union Tel. Co., 39 Mo. App. 599); and appellant in accepting it, and in undertaking to deliver it, did not in any wise make it amenable to the statute (section 2364, Burns 1908) which it now seeks to

use as a shield in avoiding liability for a failure to perform a statutory duty. Section 5780, Burns 1908. The contract in question, although made on Sunday, was merely voidable (Western Union Tel. Co. v. Eskridge, 7 Ind. App. 208, 33 N. E. 238; Heavenridge v. Mondy, 34 Ind. 28), of which advantage may be taken only by answer. Western Union Tel. Co. v. Eskridge, supra; Heavenridge v. Mondy, supra.

[4] Appellant, in this case, by way of an affirmative answer, sought to take advantage of the fact that the contract was made on Sunday, and that there was no such necessity for the transmission of the message on that day as would take the contract out of the operation of the statute. The general verdict of the jury amounted to a finding against appellant on this question. Having determined that the contract was not in violation of section 2364, supra, for aught that appears, it was the duty of appellant to transmit and deliver the message in question on the day or evening it received the same; and its failure so to do made it liable for the statutory penalty (section 5781, Burns 1908), upon the charge of "negligent failure to transmit the message in the order of time in which it was received." Western Union Tel. Co. v. Ferguson, 157 Ind. 37, 60 N. E. 679; Western Union Tel. Co. v. Braxtan, 165 Ind. 165, 74 N. E. 985; Western Union Tel. Co. v. Sefrit, 38 Ind. App. 565, 78 N. E. 638.

Judgment affirmed.

STEVENS et al. v. HOWERTON et al.

(No. 7,431.)

In an action for cutting and converting certain trees, the jury, though not awarding exemplary damages, were authorized in their discretion to add interest to the sum allowed as compensatory damages.

[Ed. Note. For other cases, see Trespass, Dec. Dig. § 57.*]

4. APPEAL AND ERROR (§ 1033*)-INSTRUCTIONS- HARMLESS ERROR ERROR FAVOEABLE TO APPELLANT.

for cutting of timber on the land, an instrucIn trespass by a remainderman to recover tion that, if plaintiff knew defendants were going to cut the timber under some arrangement with the life tenant who was in possession, the defendants, not only in entering on the land for law would imply a license from her, warranting such purposes as the life tenant might authorize, but also in cutting and appropriating the trees to their own use, was harmless error, as against defendants, since, if silence on plaintiff's part amounted to a license of any kind, it would not authorize defendants, as the instruction stated it would, to cut and appropriate timber to their own use to the extent of removing from the property a large number of valuable growing trees.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 4056; Dec. Dig. 1033] 5. LICENSES (8 46*)-USE OF REAL PROPERTY -ESTOPPEL "IMPLIED LICENSE."

An "implied license" to use or cut timber from real property partakes of the nature of an estoppel, and may be found to exist from the representations of the owner, or from silence, where the owner sees and knows the extent of an act or acts done on his property, and fails to object thereto.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 100-102; Dec. Dig. § 46.*

For other definitions, see Words and Phrases, vol. 4, p. 3432.]

Dec. 20, 1911.)

1. REMAINDERS (§ 17*)-RIGHTS OF REMAINDERMEN-TRESPASS-COMPLAINT.

Where a complaint alleged that plaintiff was the owner of the fee of certain real property, subject to a life estate of her father, and that on divers days specified defendants wrongfully and without authority from plaintiff entered on the premises, and cut, removed, and otherwise destroyed a large number of growing timber trees on the land, and converted them to their own use, the complaint charged defendants with conversion as trespassers beyond any right that could be given them by the life tenant, and excluded any inference that the life tenant was in possession, and that defendants, with his consent, cut no more timber than was necessary to repair the fences and buildings, and for fuel which he was entitled to cut.

[Ed. Note.-For other cases, see Remainders, Dec. Dig. § 17.*]

2. PLEADING (§ 34*)—OBJECTIONS ON APPEAL -CONSTRUCTION.

Where a complaint is tested for the first time by an assignment of error in the appellate court, all intendments will be indulged in favor of the pleading; and if there is not a total failure to state some essential element of the right to recover, and the complaint is sufficient

INSTRUCTIONS-PREJUDICE.

Where, in an action by a remainderman to recover for timber alleged to have been wrongfully cut on the property, the jury found, tiff did object to the cutting of the timber, any in answer to a special interrogatory, that plainlicense to cut the timber, arising from plainerror in an instruction on an alleged implied tiff's knowledge and failure to object, was not prejudicial to defendants.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4230; Dec. Dig. § 1068.*]

Appeal from Circuit Court, Harrison Coun ty; C. W. Cook, Judge.

Action by Lillie Belle Howerton and an other against Francis H. Stevens and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

William Ridley for appellants. William T. Zenor, for appellees.

FELT, C. J. Suit by appellees against appellants to recover damages occasioned by cutting a large number of valuable growing trees upon the lands of the appellee Lillie