[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 363-366; Dec. Dig. 180(4).]

To obtain the relief prayed for it was essential that appellant bring this case within the statute. "Where there is no showing of a meritorious defense, a court of equity will not grant relief, even where the judgment is

void on its face." Schilling v. Quinn, 178

Ind. 443–477, 99 N. E. 740; Meyer v. Wilson, supra, 658 of 166 Ind., 76 N. E. 748. The statute is too plain to leave doubt as to the legislative intent. Some confusion has arisen by failure to distinguish cases like the one at bar and those arising under section 405, Burns 1914, from direct proceedings to annul or set aside judgments that are absolutely void for fraud in their procurement, or for want of jurisdiction of the subject-matter, or for failure to obtain jurisdiction over the person of the defendant in any way recognized by law. In cases of the latter class there are decisions holding that it is not a question of excusable neglect or meritorious defense, but one of power and authority to render the judgment; that such judgments only have form, without substance or validity of any kind, and are therefore void; that to annul or set aside such a judgment, it is not necessary to show a meritorious defense, for the party either had never been legally before the court or the court was without jurisdiction of the subject-matter, or of either the person or subject-matter.

The question is not directly involved here, but in view of the discussion of the question decided we deem it helpful to make the foregoing observations. See, also, Dobbins v. McNamara, 113 Ind. 54-57, 14 N. E. 887, 3 Am. St. Rep. 626; William v. William, 57 Ind. 500-503; Wiley v. Pratt, 23 Ind. 628-636; Cavanaugh v. Smith, 84 Ind. 380-383; Earle v. Earle, 91 Ind. 27-35; Stubbs v. McGillis, 44 Colo. 138, 96 Pac. 1005, 18 L. R. A. (N. S.) 405 and notes, 130 Am. St. Rep. 116. Judgment affirmed.

(61 Ind. App 375)

TOLEDO, ST. L. & W. R. CO. v. COWAN. (No. 8926.)

(Appellate Court of Indiana, Division No. 1. March 29, 1916.)

1. MASTER AND SERVANT 180(4)-EMPLOYERS' LIABILITY ACT-RAILROAD EMPLOYÉS. The Employers' Liability Act (Burns' Ann. St. 1914, § 8017) applies only to railroads and such employés thereof as are in the course of their employment exposed to the particular hazards incident to the use and operation of railroad engines and trains, and whose injuries are caused thereby, and therefore not to a railroad

2. PLEADING 48-COMPLAINT-DEMURRer. A complaint is good against demurrer if it states facts sufficient to show a cause of action, either under the statute or the common law. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 105, 106; Dec. Dig. 48.] 3. MASTER AND SERVANT 258(9)—INJURY TO SERVANT-COMPLAINT CAUSAL CONNECTION.

To be good, the complaint for injury to an employé must allege or show causal connection between charged negligence and the injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 823; Dec. Dig. 258(9).]

4. MASTER AND SERVANT 258(17)-INJURY TO SERVANT-COMPLAINT-MASTER'S KNOWLEDGE.

The complaint in a servant's action for injury based on the master's neglect with respect to safe appliances or a safe place to work must aver knowledge, actual or constructive, of the

A servant's complaint for injury based on neglect with respect to safe appliances, or a safe place to work, must ordinarily, to negative assumption of risk, aver his want of knowledge of the defects or dangers.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 846; Dec. Dig. 260(3).] 6. MASTER AND SERVANT 259(3)-INJURY TO EMPLOYE-FELLOW SERVANT COMPLAINT. The complaint in a servant's action for injury, must negative the fact of the coemployé, through whose negligence he was injured, having been a fellow servant, by showing that at the forming a duty which the master could not deletime he was a representative of the master, pergate to another.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 839; Dec. Dig. 259(3).] Appeal from Circuit Court, Fountain Coun ty; I. E. Schoonover, Judge.

Action by John M. Cowan against the Toledo, St. Louis & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Guenther, Clark & Van Brunt, of Frankfort, and Clarence Brown and Charles A. Schmettau, both of Toledo, Ohio, for appellant. Livengood & Livengood, of Covington, for appellee.

HOTTEL, J. This is an appeal from a judgment in appellee's favor for $450. The complaint is in one paragraph. A demurrer thereto for want of facts was overruled, and this ruling and the ruling of the court on appellant's motion for new trial are relied on for reversal and presented for our determination.

and trains, and whose injuries are caused thereby." Richey v. Cleveland, etc., R. Co., 176 Ind. 542, 96 N. E. 694, 47 L. R. A. (N. S.) 121; Chicago, etc., R. Co. v. Lain, 181 Ind. 386, 391, 103 N. E. 847; Indianapolis, etc., Trac. Co. v. Kinney, 171 Ind. 612, 85 N. E. 954, 23 L. R. A. (N. S.) 711; Cleveland, etc., R. Co. v. Foland, 174 Ind. 411, 91 N. E. 594, 92 N. E. 165. The Supreme Court held that this restricted construction was necessitated to prevent the act "from offending against the prohibition of our Constitution against special and class legislation." Richey v. Cleveland, etc., R. Co., supra. It follows that such construction applies to the act in its entirety, rather than to any particular subdivision thereof, as appellee's contention would imply.

Under the facts of this case, as shown by the complaint, appellee was employed to break coal at one of appellant's coal docks, and to do such other work as appellant's said engineer might direct. While breaking coal appellee was injured by a falling door on a dump coal car that was being unloaded at such coal dock. The engineer by some means broke the wire and let the door fall. When injured, appellee was doing nothing in connection with the operation of a train, nor did his injury result either directly or indirectly from any hazard incident to the operation of a train, switch engine, or the move ment of any car on appellant's railroad. It follows, under the authorities cited, that appellee has failed to state a cause of action under said statute.

[2-5] If, however, such complaint states facts sufficient to show a cause of action, either under the statute or common law, it must be held sufficient against demurrer. Pittsburgh, etc., R. Co. v. Rogers, 45 Ind. App. 230, 87 N. E. 28. We therefore next inquire whether such complaint states a cause of action under the common law. It charges that appellant carelessly and negligently permitted the chain which held up the trapdoor to become and remain broken and defective, but there is no causal connection alleged or shown between such negligence and appellee's injury. On the contrary, the averments affirmatively show that appellant's engineer, with appellee's assistance, mended and repaired such chain. Furthermore, if such causal connection were shown, the complaint does not aver that appellee did not have knowledge of the broken and defective condition of the chain, but, on the contrary, impliedly shows that he knew of its condition and assisted the engineer in repairing it.

Where a cause of action is based on the master's neglect with respect to safe appliances, or a safe place to work, knowledge, actual or constructive, on the part of the master and want of knowledge on the part of the injured servant are essential averments. Bennett v. Evansville, etc., R. Co., 177 Ind. 463, 468-470, 96 N. E. 700, 40 L. R.

A. (N. S.) 963; New Kentucky Coal Co. v. Albania, 12 Ind. App. 497, 40 N. E. 702; Acme, etc., Stone Co. v. McPhetridge, 35 Ind. App. 79, 73 N. E. 838; Creamery, etc., Mfg. Co. v. Hotsenpiller, 24 Ind. App. 122, 56 N. E. 250.

While it is the duty of the master to furnish safe appliances and a safe place to work, the servant nevertheless assumes the risk of defects or dangers of which he has knowledge or of which he could have had knowledge by the exercise of ordinary care, except in certain cases, which for the purpose of this case need not be noticed. Lake Shore, etc., R. Co. v. Johnson, 172 Ind. 548, 88 N. E. 849; Bennett v. Evansville, etc., R. Co., 177 Ind. 463, 96 N. E. 700, 40 L. R. A. (N. S.) 963; Indianapolis, etc., Transit Co. v. Foreman, 162 Ind. 85, 69 N. E. 669, 102 Am. St. Rep. 185; Chicago, etc., R. Co. v. Glover, 154 Ind. 584, 57 N. E. 244.

There is no averment that such engineer negligently and carelessly repaired, or failed to repair, such chain, and that, knowing that it was not repaired and made safe, he carelessly and negligently directed appellee to proceed with his work, giving him no knowledge or warning of the unsafe condition in which he (the engineer) had left such chain, and so far as the complaint shows, the engineer was warranted in assuring appellee that the defect in the chain had been fixed, and that "it was all right and safe, and that he could safely go to work." Indeed, the complaint impliedly proceeds on the theory that such chain was, in fact, repaired, and that, after repairing it and telling appellee that it was repaired, appellant's engineer by some means broke "said wire and let said trapdoor fall," etc. What such wire had to do with the defective chain or the repair thereof, or with said trapdoor, is not shown, except that when the engineer broke it the trapdoor fell and injured appellee. The breaking of such wire may have been, and apparently was, an act in no way connected with repairing the chain.

[6] "In an action at common law against a master to recover damages in favor of a servant caused by the negligence of another in the employ of the common master, the complaint must show by affirmative averments that the negligent employé was not the fellow servant of the person injured. To render a master liable in such a case it must appear that the negligent employé was in the discharge of a duty which the master owed to the injured servant." Wallace v. Thompson, 49 Ind. App. 211, 216, 97 N. E. 26, 28, and cases cited.

The complaint under consideration does not show what the engineer was doing when he broke the wire in question. The averments may be sufficient to show that in repairing the chain and in directing appellee he was acting as and for the master, but an employé may act in a dual capacity, viz., as his master's representative and as his

servant. Southern Ind. R. Co. v. Harrell, | 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460; Indiana, etc., R. Co. v. Pring, 41 Ind. App.

247, 83 N. E. 733.

The controlling consideration in determining whether an employé in a given case was a vice principal in respect to the negligent act charged against him as resulting in injury to another employé of the common master is, not his comparative rank, not his authority to command, and not his authority to employ and discharge the servants working under him, but whether he was at such time a representative of the master performing a duty which the master could not delegate to another. Southern, etc., R. Co. v. Harrell, supra.

Conceding that in repairing the chain the engineer was doing the master's work, as before stated, it appears from the averments of the complaint that such work was completed before appellee was injured, and it is impossible for the court to know from such averments what such engineer was doing when he negligently broke the wire and let the door fall on appellee, which is the negligence alleged to have caused appellee's injury, and hence it is impossible for the court to know from such averments whether such engineer was at such time doing the master's work or a servant's work.

For the reasons indicated, we are constrained to hold that the trial court erred in overruling the demurrer to the complaint.

The only remaining questions relate to the grounds of the motion for a new trial which challenge the verdict of the jury as not being sustained by sufficient evidence, and as being contrary to law. As these questions will not likely arise again, we do not deem it necessary to consider them.

For error in overruling appellant's demurrer to the complaint, the case is reversed, with instructions to the court below to sus

tain said demurrer and for further proceedings not inconsistent with this opinion.

1. FRAUD 50 BURDEN OF PROOF-FALSE REPRESENTATIONS-KNOWLEDGE.

In an action to recover damages for false representation that a horse sold plaintiff "was sound and all right" as far as defendant knew, it was necessary for the plaintiff to show that defendant knew that the horse was not sound, or was chargeable with such knowledge when he made such representation.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. 50.]

2. NEW TRIAL 104(1)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.

of the same kind and to the same point as that given at the trial.

Cent. Dig. §§ 218, 228; Dec. Dig. 104(1).] [Ed. Note. For other cases, see New Trial, 3. FRAUD 58(1)-FALSE REPRESENTATIONEVIDENCE.

In an action for false representation in the sale of a horse brought against two defendants, evidence held to show that at the time of the sale one of them had no interest in the horse, so that a verdict was properly instructed for him. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 55; Dec. Dig. 58(1).]

Appeal from Circuit Court, Rush County; John D. Magee, Judge.

Trabue and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Action by John F. Kirk against Samuel H.

John H. Kiplinger and John F. Joyce, both of Rushville, for appellant. Samuel L. Trabue, Donald L. Smith, and Will M. Sparks, all of Rushville, for appellees.

IBACH, C. J. [1] This was an action for damages growing out of the sale of a horse, alleged to have been owned by appellees, and sold to appellant at a public auction sale held by the Combination Sales Company. The evidence showed that appellee Harry Trabue stated at the sales that the mare was "sound and all right," as far as he knew. It also appeared that the mare was not sound, but was moon-eyed, and that moon-eyed horses become blind eventually. The theory of the complaint is to recover damages for false representation, and in order to make out such theory it was incumbent on appellant to prove that appellee Harry Trabue knew the mare was not sound, or was chargeable with such knowledge, when he made the abovequoted statement.

[2] The first error assigned is in overruling appellant's motion for new trial on account of newly discovered evidence. The substance of the evidence set out in such motion was that one person heard Harry Trabue say shortly before the sale that the mare in controversy had distemper and looked like she was affected in the eyes, and that another heard Harry Trabue say about the same time that there was something the matter with the mare's eyes, and that he was going to see Dr. Huber about them. There was evidence given at the trial by one witness that Harry Trabue said he was going to sell the mare, and would have to do something for her eyes before he could sell her to advantage, and that he had a veterinary give her treatment for two weeks before the sale, and another witness had helped him put medicine in her eyes, and Harry Trabue himself admitted that he had treated her eyes with medicine shortly before the sale. Thus evidence of the same kind as that which was alleged to have been discovered, and to the same point, was given at the trial.