signment of the assessment roll arising from roll to the Home Bond Company for money the construction of the improvement to the loaned or claimed to have been loaned them, Home Bond Company. The amended com- and by virtue of said assignment the Home plaint was in one paragraph, to which a sep- Bond Company now claims to be the owner arate demurrer by the Home Bond Company of the bonds and money held by the treaswas sustained. Answer in general denial urer and comptroller, respectively, and claims by Thomas J. Markey. Appellant filed a the right to collect from them the amount cross-complaint against appellee and all of which may subsequently be paid under said its codefendants, and a separate answer in assessments; that the Home Bond Company three paragraphs to the complaint. Reply furnished no material for, and performed no by appellee East Ohio Sewer Pipe Company labor upon, the improvement, and the money in two paragraphs to appellant's answer. A furnished by it, if any, was diverted by Marseparate demurrer by the Home Bond Com- key & Co. for claims other than for labor or pany to the cross-complaint was sustained, material furnished; that during the construcand, appellant declining to plead over, judg-tion of said work Markey & Co. purchased of ment was rendered in favor of the Home plaintiff East Ohio Sewer Pipe Company Bond Company on the cross-complaint. The certain materials, which plaintiff claims were cause as between appellee East Ohio Sewer used in the construction of the sewer; that Pipe Company and Thomas J. Markey and Markey & Co. also incurred other debts for appellant was tried by the court, and a find- labor and material furnished, the amounts ing made that Markey was principal and ap- of which are unknown to appellant, and are pellant surety; that the property of Markey unpaid, and that Markey & Co. are insolwas subject to execution, and should be ex-vent; that, unless the proceeds arising from hausted before any proceedings were taken the assessment roll are applied to the satisagainst the property of appellant. Judgment faction of these claims, appellant will be against Markey and appellant for $373.88 and costs. Appellant's motion for a new trial was overruled. The errors assigned are the sustaining of the demurrer of the Home Bond Company to the cross-complaint and the overruling of appellant's motion for a new trial. We shall consider first the error assigned on the ruling of the court in sustaining the demurrer of the Home, Bond Company to appellant's cross-complaint, the material allegations of which are, in substance, as follows: That appellant is a corporation organized under the laws of Vermont, and doing a general surety and indemnity business in Indiana; that on September 20, 1907, Thomas J. Markey & Co. entered into a written contract with the city of Indianapolis for the construction of a sewer in Maryland street in said city; that appellant be came surety upon their bond under the provisions of section 8959, Burns 1908. The terms of the contract required Markey & Co. among other things to pay all bills for labor and material used in the construction of the improvement, and to secure the faithful performance of this contract said bond was executed by Markey & Co. as principal and appellant as surety; that the work was completed, approved, and accepted by the city; that assessments were made in accordance with the statute providing for the construction of said sewer; that a portion of the assessments amounting to $ now in the hands of E. J. Robison, ex officio treasurer of Indianapolis, and that there is still due $on account of said assessments; that bonds have been prepared and sold, or are in the hands of George R. Breunig, city comptroller, for sale, to the amount of $ as provided by statute. is compelled to pay the amount thereof to the full sum of its bond. Prayer that a receiver be appointed to receive and hold the proceeds of the assessment roll, and that each of the defendants be required to appear and answer as to his interest in said fund; that the same, after payment of costs of this action, shall be applied to the payment of all claims owing by said Markey & Co. for labor and material furnished, and used in the construction of the sewer, and for all other proper relief, etc. It is earnestly insisted in this case that the court committed error in sustaining the demurrer to appellant's cross-complaint. The theory of the cross-complaint is that the rights of appellant and divers other creditors are superior to the rights of the Home Bond Company, the assignee of the assessment roll, who advanced certain sums of money to the principal, Markey, during the construction of the work, which, it is alleged in the cross-complaint, were not used for material or labor in the construction of the improvement, but were diverted by the principal and used for entirely other purposes. The question to be determined is, Which of the parties has the superior right to the fund in question, in the hands of the city, derived from the assessments upon property benefited? Formal demand is made for the appointment of a receiver to collect the fund thus arising and pay it over to the appellant. Appellant very earnestly argues that its rights in respect to the money in the hands of the city officials and the money thereafter to be realized from the collection of assessments and the sale of bonds are superior, and that it should be subrogated thereto, citing and relying upon several authorities, Before the completion of the work Markey the leading one of which is Henningsen v. & Co. assigned its interest in the assessment | United States F. & G. Co., 208 U. S. 404, the debt, and can then himself enforce the * * 28 Sup. Ct. 389, 52 L. Ed. 547, in which it is held that the doctrine of subrogation was applicable to the surety on the bond, and that he was entitled to the fund as against the bank, which was the lender of money to the contractor. The cases of Etna Life Ins. Co. v. Middleport, 124 U. S. 534, 8 Sup. Ct. 625, 31 L. Ed. 537, and Prairie Bank v. United States, 164 U. S. 227, 17 Sup. Ct. 142, 41 L. Ed. 412, cited by appellant, are to the same effect. Appellee insists that these cases are all governed by the rule of the unlawful assignment of the assessments, for the reason that such assignment is prohibited by the statutes of the United States, Rev. St. U. S. §§ 3477, 3737 (U. S. Comp. St. 1901, pp. 2320, 2507), which prohibit any contractor from assigning money due or to become due him, and attempted assignments are declared to be invalid, so that under such legal status it is insisted that the holder of such an assignment could claim no equitable rights as against a surety upon a contrac-and 8725, Burns 1908. In the case of Ætna tor's bond. It is further insisted that the statutes of this state not only do not expressly prohibit assignments, but really recognize the right of a contractor to assign, appellee citing in support of his contention sections 8713, 8714, Indemnity Co. v. Wassall Clay Co., 97 N. E. [1] The above cases all treat the lender of 562, the right of the contractor to assign money to a contractor under the circum- the bonds, assessment roll money, etc., to stances disclosed in the cross-complaint in obtain money to finance the improvement, this case as a mere volunteer, and a stranger was presented on the complaint, and was not to the contract. This cannot be held to be questioned by the parties to the issue. The the law in this case. In the case of War- question of the equitable rights of the parties ford v. Hankins, 150 Ind. 489, 50 N. E. 468, was presented, but not decided because the it is said: "Nor is one who pays a debt or assignee of the assessment roll was not a advances money for the purpose, at the re-party to the action. quest of the debtor, a mere volunteer [citing [3] It is also a well-settled principle that, authorities]. In 3 Pomeroy's Eq. Jur. § 1212, before equity may be invoked for the purit is said: "The doctrine is also justly ex-pose of subrogation, diligence must be shown. tended, by analogy, to one who, having no Thomas v. Stewart, 117 Ind. 50, 18 N. E. 505, previous interest, and being under no obliga-1 L. R. A. 715. There is no allegation in the tion, pays off the mortgage, or advances cross-complaint explaining why there was money for its payment, at the instance of a debtor party and for his benefit; such a person is in no true sense a mere stranger and volunteer.'" delay in seeking the remedy therein demanded until a suit was actually brought by a materialman to recover the amount due him for material furnished by him and used in the [2] In support of the ruling of the trial construction of the improvement. In Gring's court, it is further urged that the cross-com- Appeal, 89 Pa. 336, it is held that: "The plaint is bad for the reason, in the first in- right to subrogation is one of equity merely, stance, that there is no allegation that appel- and due diligence must be exercised in aslant has paid any money on account of its serting it. Laches in taking advantage of suretyship. In the case of Henningsen v. the right will forfeit it as against one who United States F. & G. Co., supra, the money is injured by such laches." In the case of had been actually paid by the surety. In Wilkins v. Gibson, 113 Ga. 31, 38 S. E. 374, the case of Etna Life Ins. Co. v. Middle- 84 Am. St. Rep. 204, it was held that if port, supra, it is held that the doctrine of the person claiming the right of subrogation subrogation and equity requires that the per- has unreasonably delayed in asserting such son seeking its benefit must have paid a debt right, and in the meantime other persons due to a third party before he can be sub- have so acted in the premises, that to asstituted to that party's right. It is settled sert the right of subrogation would be inin this state that: "The application of the equitable, subrogation will not be allowed. doctrine of subrogation requires (1) that a In the case of Shattuck v. Belknap Savings person must have paid a debt due to a third Bank, 63 Kan. 443, 65 Pac. 643, it is said: person, for the payment of which another "The right of subrogation and as well the was in equity primarily liable." Opp v. right to make payment of a prior lien upon Ward, 125 Ind. 241, 243, 24 N. E. 974, 975 which the claim of subrogation may be pred(21 Am. St. Rep. 220); Townsend v. Cleve-icated, like all other rights may be waived land Fireproofing Co., 18 Ind. App. 568, 574, or abandoned." The case of Watts v. Eu47 N. E. 707. The security must first pay | faula National Bank, 76 Ala. 474, holds that: The right of subrogation is one of equity merely, and due diligence must be exercised in ascertaining it. Laches in taking advantage of the right will forfeit it, and subrogation is not allowed in favor of one who has permitted his equity to sleep in secrecy until the rights of others would be injuriously affected by its enforcement. 37 Cyc. 387, 388; Thomas v. Stewart, supra; Gring's Appeal, supra; 27 Am. & Eng. Encyc. 270. There is also an absence of averment in the cross-complaint that appellant was obliged upon failure of Thomas Markey to fulfill his contract to complete the obligation, and pay out money in that behalf. Appellant, in order to recover upon its cross-complaint, must show by averment of fact that it is entitled to subrogation, else the cross-complaint cannot be held good as against a demurrer. We see no reason why the principles laid down in the foregoing authorities should not be applied. No sufficient reason is given for invoking a different rule because this is an improvement by a municipality paid for by assessment. The cross-complaint does not show that appellant was without knowledge of the assignment of the assessment roll; no reason is given for the delayed action by appellant, nor is it disclosed that the money for which appellant is liable, or any part of it, has actually been paid; therefore it is the opinion of the court that for these reasons no error was committed in sustaining appellee's demurrer to the cross-complaint. [4] In support of its motion for a new trial, appellant contends that the bond ceased to be operative upon the approval of the final assessment roll, and that no action could be maintained upon it subsequent to that time. This question has been decided adversely to appellant's contention in a late case by the Supreme Court. Ætna Indemnity Co., etc., v. Indianapolis Mortar & Fuel Co., 98 N. E. 706. [5] The further contention that the city's failure to require evidence that all bills have been paid before accepting the work and approving the assessment roll as contemplated by section 19 of the general specifications adopted by the Board of Public Works of the City of Indianapolis, and by the terms of the contract and bond sued upon made a part thereof, was a material deviation from the terms of said contract, and released the surety, has also been decided adversely to appellant in the same case. The evidence fully sustains the verdict, and no error was committed in overruling appellant's motion for a new trial. BALTIMORE & O. R. CO. v. PECK. (Appellate Court of Indiana, Division No. 2. April 22, 1913.) 1. RAILROADS (§ 464*)—FIRES-LIABILITY. If the fires which damaged plaintiff's land occurred before the fire which escaped from a railroad right of way, the railroad company was not liable for the damage to plaintiff's land. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1687-1689; Dec. Dig. § 4641*] 2. TRIAL (§ 260*)—INSTRUCTIONS-REQUEST. The giving of a general instruction, as required by the statute, to the effect that to reCover plaintiff must prove the material allegations of the complaint by a preponderance of the evidence, does not authorize the refusal of a particular instruction applicable to the evidence and issues. Dig. 88 651-659; Dec. Dig. § 260.*] [Ed. Note.-For other cases, see Trial, Cent 3. TRIAL (§ 203*)-INSTRUCTIONS-REQUISITES. Upon proper request, a party is entitled to have an instruction given submitting his theory of the case, if there is evidence fairly tending to support it. Dig. 88 477-479; Dec. Dig. § 203.*] [Ed. Note.-For other cases, see Trial, Cent 4. APPEAL AND ERROR (§ 1068*)—HARMLESS ERROR-REFUSAL OF INSTRUCTIONS. Where, in an action against a railroad company for damage to land from fire, the jury found that the fire on plaintiff's land occurred between October 1st and 5th, error in refusing instructions, requested by defendant, that if the jury found that defendant negligently set fire to certain land on or about October 1st, they ther found that plaintiff's land was burned over could not find against defendant, if they furby a fire which occurred prior to the fire referred to, was harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. 1068.*] 5. TRIAL (§ 252*) — INSTRUCTIONS — APPLICA BILITY. Instructions must be relevant under the evidence; and an instruction as to facts, not supported by any evidence, or outside the issues, is reversible error, unless clearly shown not to be harmful. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 6. DAMAGES (§ 210*)-RAILROADS-FIRES-IN STRUCTIONS. for damage to land from fires, by burning over In an action against a railroad company the land and burning trees and standing grass and a fence, in which there was no allegation of loss of matured crops or pasture lands, or evidence thereof, the court instructed as to measure of damages to the land and the matured crops and the pasture land and further instructed that "to any such element of damages as the jury may see fit to award damages for" they may or may not, as they see fit, add interest. Held, that the instruction was erroneous, as permitting the jury to award damages for items of damage not alleged. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 537, 538; Dec. Dig. § 210.*] Appeal from Superior Court, Porter County; A. D. Bartholemew, Judge pro tem. Action by Egbert A. Peck against the Baltimore & Ohio Railroad Company. From a For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes judgment for plaintiff, defendant appeals. Reversed, with instructions to grant appellant's motion for new trial and further proceedings. W. H. Dowdell, of Valparaiso, Bomberger, Sawyer & Curtis, of Gary, and Calhoun, Lyford & Sheean, of Chicago, Ill., for appellant. Frank B. Parks, D. E. Kelly, and W. J. Fabing, all of Valparaiso, for appellee. ADAMS, J. The complaint in this action charges that on or about the 1st day of October, 1908, appellant negligently permitted and caused to be gathered on its right of way in section 6, township 35, range 4 west, in Laporte county, Ind., large quantities of combustible material, and set fire to the same; that appellant negligently permitted said fire to escape from its right of way to other lands in said section 6, south of its right of way, and negligently permitted said fire to escape from said lands to the lands of one Nicholas W. Box, and from the lands of said Box to the adjoining lands of appellee in Porter county; that by reason of the negligence of appellant, in permitting said fire to escape, the same burned over the lands of appellee to a depth of two feet, whereby appellee was damaged in the sum of $1,990. Trial by jury. Verdict and judgment for appellee in the sum of $1,300. Appellant's motion for a new trial was overruled, and this ruling constitutes the only error assigned. [1] One of the issuable facts in the case was whether appellee's land was burned over by the fire which was permitted to escape from appellant's right of way on or about October 1, 1908, as charged in the complaint, or by a fire occurring at an earlier date. As to this issue, there was a conflict in the evidence; 10 witnesses testifying that appellee's land was burned over during the early part of September, 1908, and other witnesses testifying that said land was burned over after October 1, 1908. The court refused to give instructions 2 and 3 tendered by appellant. These instructions were as follows: "No. 2. If the fire which destroyed the plaintiff's land occurred before the fire which escaped from defendant's right of way in section 6 in Laporte county, the defendant need not account for the origin of the fire which destroyed plaintiff's property, and, under such a state of the evidence, you must find for the defendant. "No. 3. If you find from the evidence that the defendant negligently set fire to land in section 6 in Laporte county, on or about October 1, 1908, you cannot find against the defendant in this cause, if you further find from the evidence that plaintiff's land was burned over by a fire which occurred prior to the said fire which defendant allowed The rejected instructions fairly state the law, as applied to the facts assumed therein. As there was evidence tending to prove such facts, the instructions were relevant, and failure to give the same to the jury must be held reversible error, unless said instructions were covered by other instructions given, or the substantial rights of appellant were not prejudiced by such failure. Appellee does not seriously contend that the instructions tendered and refused were not relevant, but insists that the first instruction given by the court of its own motion, namely, that before the plaintiff can recover he must prove the material averments of his complaint by a fair preponderance of the evidence, was in effect the same as the instructions tendered and refused. In this, we think, appellee is clearly in error. [2, 3] The first instruction given by the court was a general instruction required by statute to be given in every case. The giving of a general instruction does not authorize the refusal of a particular instruction, applicable to the issues and the evidence. Fleming v. State, 136 Ind. 149, 154, 36 N. E. 154. A party upon a proper request is entitled to have an instruction given on its own theory of the case, if there is evidence fairly tending to support it. 2 Elliott, General Practice, § 899. [4] The instructions tendered by appellant and refused by the court were supported by evidence, were within the issues, and were expressly of appellant's theory of the case. But appellee further insists that the failure to give the instructions requested was harmless, for the reason that the jury, by their special verdict, found that the fire on appellee's lands occurred between the 1st and 5th of October, 1908. In the light of this special finding, appellee's contention must be sustained. Muncie Pulp Co. v. Hacker, 37 Ind. App. 194, 209, 76 N. E. 770. Complaint is also made by appellant of instruction 8, given by the court of its own motion, on the ground that said instruction includes elements not within the issues, and not supported by any evidence. Instruction 8 is in the words following: "If you find for the plaintiff, it will be your duty to assess his damages for such items, if any, as he is entitled to recover for. The measure of damages, if a party is entitled to recover for an injury to his own real estate, if the difference, if any, between the fair cash market value of the land immediately before the fire, and its fair cash market value immediately thereafter. If a party is entitled to recover for matured crops, burned on rented lands, the measure of damages is the fair cash market value of the crops at the time and place and in in the condition where burned. If a person is entitled to damages for an injury to pasture land, the measure of damages therefor is the difference, if any, between the cash rent before the fire and the cash rental value of | tially the same as are incident to the operation such land after the fire. To any such element of damages as the jury may see fit to award damages for, they may or may not, as they see fit, add interest at the rate of 6 per cent. per annum from the time of the burning of the property to date." The items of damages set out in the complaint are: For burning over land, $1,790; for burning grove of trees and standing grass, $100; for burning 100 rods of fence, $100. There was no demand for loss of matured crops or pasture lands, and there was no evidence that any matured crops were burned. There was no evidence of any trees burned, and no evidence of the rental value of any pasture land destroyed. [5] It is a well-established rule that instructions must be relevant to the issues and pertinent to the evidence, and, if an instruction is given concerning facts not supported by any evidence, or outside of the issues joined, the giving of such instruction will be reversible error, unless it clearly appears that the complaining party was not harmed thereby. Indiana R. Co. v. Maurer, 160 Ind. 25, 31, 66 N. E. 156; Hanes v. State, 155 Ind. 112, 118, 57 N. E. 704; Robinson v. State, 152 Ind. 304, 308, 53 N. E. 223; Blough v. Parry, 144 Ind. 463, 470, 40 N. E. 70, 43 N. E. 560; McKeen v. Porter, 134 Ind. 483, 490, 491, 34 N. E. 223; Lindley v. Sullivan, 133 Ind. 588, 593, 32 N. E. 738, 33 N. E. 361; Nicklaus v. Burns, 75 Ind. 93, 97. [6] We cannot say that the giving of the eighth instruction was harmless. It was in part, not only outside of the issues and the evidence, but told the jury that "to any such element of dangers as the jury may see fit to award damages for" interest might be added. From this instruction the jury might have assumed that they were not limited to the evidence in assessing damages, but might award damages as they saw fit. The judgment is reversed, with instructions to the trial court to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. AMERICAN CAR & FOUNDRY CO. v. IN ZER. (No. 7,976.) of trains on a commercial railroad, since that and trains on a railroad under circumstances act applies to the business of operating cars exposing employés to the dangers and hazards incident to the operation of a train, whether such business is conducted by an individual, firm, or private or public corporation, and even though such business is not the sole or even the principal business of such person, firm, or corporation. Servant, Cent. Dig. §§ 359-361, 363-368; Dec. [Ed. Note.-For other cases, see Master and Dig. § 180.*] 2. MASTER AND SERVANT (§ 180*)-LIABILITY FOR INJURIES-STATUTORY PROVISIONS. The application of Burns' Ann. St. 1908, § S017, making railroad companies liable for injuries to employés by the negligence of any person in its employ having charge of any locomotive, engine, train, etc., to companies which in one department of their business operate stricted to that department of the business locomotives and cars on railroad tracks, is rewhich has to do with the operation of trains, and which exposes employés to the dangers incident to such operation. Servant, Cent. Dig. §§ 359-361, 363-368; Dec. [Ed. Note.-For other cases, see Master and Dig. § 180.*] ACTIONS 3. MASTER AND SERVANT (§ 259*) FOR INJURIES-COMPLAINT. In an action for the death of an employé, a complaint alleging that defendant was engaged in the manufacture of cars, that its plant was located on a large tract of land, and consisted of many buildings and other structures, parts of which tract were used as yards, that it maintained railroad tracks of standard gauge, such as were used by steam railroads on said tract and in and through some of such buildings and ran and operated locomotives, engines, cars, and trains of cars on and over said tracks in the transportation of lumber, etc., and in hauling cars constructed and in the course of construction, that they daily and continuously maintained and operated a railroad for such purposes, and that its tracks were connected with the tracks of a commercial railroad, sufficiently showed that Burns' Ann. St. 1908, § 8017, making railroad companies liable for injuries to employés caused by the ing charge of a locomotive, engine, train, etc., negligence of any person in their employ havapplied to the department of defendant's business in which its employés were exposed to dangers incident to the operation of trains. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 837-843; Dec. Dig. 8 259.*] 4. MASTER AND SERVANT (§ 183*)-LIABILITY FOR INJURIES-STATUTORY PROVISIONS. Burns' Ann. St. 1908, § 8017, making railroad companies liable for the injuries of employés caused by the negligence of any person in their employ having charge of any locomo (Appellate Court of Indiana, Division No. 2. tive, engine, train, etc., upon a railway, applied April 23, 1913.) 1. MASTER AND SERVANT (§ 180*)-LIABILITY FOR INJURIES-STATUTORY PROVISIONS. Burns' Ann. St. 1908, § 8017, providing that railroads shall be liable for damages for personal injuries suffered by any employé while in its service and in the exercise of due care and diligence by the negligence of any person in its service having charge of any signal, telegraph office, etc., locomotive, engine, or train upon a railway, applied to a company engaged in manufacturing cars which in one department of its business operated locomotives, cars or trains of cars upon a railroad track, the dangers incident to which operation were substan to the case of an employé engaged in tinning the roof of a car who was thrown off the car and was killed by the negligence of those in charge of an engine attached to the car in backing the train over him, it not being necessary that the injured employé should be employed to assist in the operation of trains or be so engaged at the time of the injury. Servant, Cent. Dig. § 373; Dec. Dig. § 183.*] [Ed. Note.-For other cases, see Master and 5. MASTER AND SERVANT (§ 248*)-LIABILITY FOR INJURIES-RECOVERY NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE. Where an employé was engaged in tinning the roof of a car coupled to other cars when a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |