at $40 per month. At a regular meeting December 27, 1904, upon motion, it was duly decided to proceed to the selection of a janitor, and the appellant was duly selected as such janitor, and, on motion, the mayor was authorized to enter into contract on behalf of the city with appellant as janitor for one year. At this meeting one Prill, a member of the council, gave notice that he would vote with the majority upon such question so that he could reconsider his vote at the next meeting. On motion, the meeting at which these proceedings occurred was duly adjourned to meet on the evening of December 30, 1904. The appellant with the mayor signed the agreement above set out December 29, 1904, and when it was so signed it was left with the city clerk and was marked filed by him. At the adjourned meeting, December 30, 1904, Prill, member of the council, moved that the contract so signed be not approved, which motion was duly put, and upon roll call was carried and adopted. At the same meeting, Prill moved to reconsider the motion of December 27, 1904, authorizing the mayor to enter into a contract with the appellant, which motion was duly carried, and, on motion, it was duly declared by the council that the position of janitor was vacant, and the council by motion and ballot selected one Hilyard as janitor. December 29, 1904, the appellant entered upon the duties of janitor under such instrument, and performed services in that behalf until March 14, 1905, 2 months and 14 days; but from and after December 30, 1904, the common council refused to recognize him as janitor and at all times refused to allow or pay him anything for his services, except as hereinafter stated. Before the commencement of this action the appellee made a tender of $5.34 to the appellant, which he refused to accept, and, after the commencement of the action, the appellee brought said sum into court for the appellant, who still refused to accept it. At a called meeting of the council January 2, 1905, William A. Branyan was made the agent of the city to demand of the appellant the keys of said. building, which demand was made and refused.

The appellee, January 14, 1905, filed its complaint in the court below against the appellant, which was set forth in the finding. Therein the city alleged, in substance, that it was the owner of the city building, its location being stated, which was recently constructed and equipped with office desks and other furniture for the use of certain city officers mentioned, and other officers, and for the city prison, "and is now occupied by such officials," etc.; that the city was the owner of all the keys to the locks of such building, together with brooms, brushes, buckets, fuel, and other implements used and to be used by the janitor of such building; that the city, through its common coun

control,

cil, had the right to have exclusive control, direction, and management of all said property, personal and real, and was entitled at all times to the possession and use of all said property, both real and personal; that the defendant, Van Camp, under color of a pretended contract, was assuming to exercise control of said property and was unlawfully and wrongfully persisting in interfering with said building, brooms, brushes, buckets, furnace, and fuel, and the keys to the locks of the several outside and inside doors, and continued, over the objection of the plaintiff, to lock and unlock said doors and to exercise control, authority, and possession of the rooms therein, and to exclude the plaintiff's servants and employés, to wit, Frank Hilyard, the duly appointed and acting janitor of said building, all of which occupancy, use, control, and handling of keys, etc., began January 1, 1905, and ever since continued, and was wrongful and without license or consent of the plaintiff and its common council and mayor; that ever since said date the defendant had no contract of any kind, either oral or written; and he threatened to continue to occupy the building, to lock and unlock its doors, to exclude and interfere with the plaintiff's officials, servants, and employés, and to hold the keys, to the plaintiff's great injury and damage, on account of which an emergency existed for the issuance of a temporary order pending the action: and the defendant would continue to do so unless restrained by the court. Prayer, for an order restraining the defendant from locking and unlocking any of the doors in said building, from removing any of the keys from the locks and from the building, using or handling the brooms, etc., pending the action, and for a perpetual injunction.

The defendant in said action filed his answer to said complaint, which answer, in two paragraphs, was set out in the finding; the first paragraph being a general denial. In the second paragraph it was alleged, in substance, that, December 29, 1904, pursuant to the action of the common council, the defendant duly entered into a contract with the city, whereby he was employed to act as janitor for said building for the period of one year form December 28, 1904, which contract was in writing and duly signed by each of the parties thereto, the city signing by its mayor pursuant to the authority and direction of the common council, a copy of which contract was made an exhibit (being the contract in suit in the case at bar). It was alleged that pursuant to that contract, the defendant took charge of the keys to said building, the same being voluntarily turned over to him by Councilman Prill, who had been acting as temporary janitor of the building, and the defendant took charge of, and used the buckets, etc., which were provided for his use in discharging his duties as such janitor, and he had looked after the

heating, lighting, cleaning, and other things incident to the care of the building, but he had not done anything to any of the properties referred to in the complaint, or to the building, which were not merely incident to the discharge of his duties as janitor; that he had not excluded the officers or employés from the building, except that he had kept it locked at such hours of the night as would be essential in the proper care and protection of the building and its contents, but he had not excluded the officers and employés of the city from the building when they desired to be therein; and that he had not done any act complained of except in the discharge of said contract.

To this second paragraph the plaintiff in said action, the city, replied by general denial and by a second paragraph, in which it was, in substance, alleged: That, December 27, 1904, the common council of said city, at a meeting thereof, by a majority of the members then present (one member being absent), voted to select the defendant as janitor, and to instruct the mayor to enter into contract with him for one year as janitor of said building; that December 29, 1904, a contract was written, a copy of which was set out in the defendant's answer; that the defendant called upon the mayor and asked him to sign the contract; that the mayor did sign it, but did so conditionally, and informed the defendant, both before and at the time of signing it, that it was signed only on condition that the common council approve it, and on no other terms was it so signed, and it was not delivered to the defendant, but was placed in the hands of the city clerk to be submitted to the council at the next night of their convening; that at an adjourned meeting of the council, December 30, 1904. which was an adjourned session of the council meeting held December 27, 1904, the contract was read by the clerk for approval or disapproval, and upon motion was rejected and disapproved by a majority vote of the council, and the motion passed at the preceding meeting that the mayor enter into contract with the defendant was reconsidered by a majority vote of the council, and said motion, so made at the preceding meeting, was then, by a majority vote, voted down and declared lost, and then, upon motion, the position of janitor was, by a majority vote, declared vacant, and, on motion duly made, Frank Hilyard, by a majority vote, was declared the duly selected janitor of said building, of all of which facts the defendant was then and there made aware and duly informed; that, at a session of the council January 10, 1905, a resolution was passed by a majority vote of the council, directing the city clerk to draw a warrant in favor of the defendant for $5.34, for four days work from December 28th to December 31st, inclusive; that the clerk drew such warrant and tendered it to the defendant before the commencement of said suit and he refused to accept it;

that it was for the full amount, and more, that was due the defendant, and the city was solvent, and then and since had more than enough funds in its treasury to satisfy the warrant, and the tresurer would pay it to the defendant or his order upon presentation, and the warrant, it was alleged, was brought into court for the defendant's use; that the council at a session of January 2, 1905, by a majority vote, passed a resolution authorizing W. A. Branyan (he being the city attorney), as special agent for the city, to demand the keys of the defendant, which demand was duly made, but he refused and still persisted in the occupation of the building. This paragraph of reply does not appear from the special finding to have been verified by oath.

It was further found that the venue of said suit for an injunction, brought by the appellee against the appellant, was changed to the Allen superior court, and the same being at issue was submitted to the court, and the court, after hearing the evidence, found for the defendant, and pronounced judgment accordingly. It was also found that the appellant is a paper hanger and painter by trade, with an experience of 20 years at such business; that he had an earning capacity of 25 cents per hour, working at such trade; and that since March 14, 1905, until the date of the special finding, he had been regularly employed in his capacity of paper hanger and painter, and was still so employed. The court stated as its conclusions of law upon the foregoing facts that the appellant take nothing.

The facts stated before the findings relating to the suit for an injunction sufficiently indicate that there was no effectual delivery of the written contract in suit herein, that it was not duly executed. The facts thus showing that the contract was not executed were substantially set up in the second paragraph of the answer to the first paragraph of the complaint in the case at bar, and that paragraph was sworn to by the city attorney. The first paragraph of the complaint sought recovery of wages for the period of actual service alleged therein, while the second paragraph sought damages for the wrongful discharge of the appellant by prevention of his further service under the contract. The answer to the second paragraph of the complaint was a general denial not sworn to, and, therefore, as to that paragraph of complaint the execution of the contract was conclusively admitted. Penn Mutual, etc., Co. v. Norcross, 163 Ind. 379, 72 N. E. 132. This did not conclude the appellee, however, as to the amount of damages under that paragraph, and it does not appear from the finding that the appellant suffered damage in any amount because of the breach alleged in the second paragraph of the complaint.

To the second paragraph of answer to the first paragraph of complaint the appellant replied by general denial, and also by a para

graph, held good on demurrer, setting up the judgment in the suit for an injunction as a former adjudication of the matters and issues pleaded in that paragraph of answer. In the suit for an injunction the defendant therein, the appellant here, set up the written contract by way of defense, and, under the form of the issues tried in that suit, the execution of the contract was conclusively admitted, and the court found and adjudged in favor of the defendant therein, denying the injunction sought. The conclusiveness of a judgment of a competent tribunal extends to what was actually determined, and also to every matter which the parties might have litigated in the case. Fischli v. Fischli, 1 Blackf. (Ind.) 360, 12 Am. Dec. 251. Under a general finding and judgment it will be presumed, in this state, in a subsequent action between the same parties, that all the issues were decided in the former action in favor of the party in whose favor that action so resulted. Where a former judgment is set up in bar of the action, and it appears that the issues in the former suit involved the question at issue in the later one, and there was, in the former suit, a general finding and judgment on the merits, and there were other questions in issue in the former suit which, if determined for the same party, would have resulted in the same finding and judgment, then, notwithstanding the jury in the former suit may have decided such of the issues of the former suit as are involved in the later suit the other way, the former adjudication is at least prima facie conclusive. Day v. Vallette, 25 Ind. 42, 87 Am. Dec. 353; Bottorff v. Wise, 53 Ind. 32; Jarboe v. Severin, 112 Ind. 572, 14 N. E. 490; Howe v. Lewis, 121 Ind. 110, 22 N. E. 978.

To constitute a former adjudication, it is not necessary that the form of action be the same in both cases. It is sufficient if the question in controversy has been once litigated between the same parties. Pittsburgh, etc., R. Co. v. Noftsger, 21 Ind. App. 599, 604, 46 N. E. 360. For the purpose of a defense based upon a claim of res adjudicata, a matter is in issue if it be something affirmed by one party and either denied or admitted expressly or impliedly by the other, and its determination is essential in the rendition of a final judgment upon the merits of the cause as presented by the pleadings. See Van Fleet, Former Adjudication, 62, 63. Where a matter has become res adjudicata, the fact that the adjudication was in a suit in equity will not prevent its effectiveness as a bar in an action at law. If a party chooses to resort to an application for equitable relief where, if he has a remedy, it is one at law, and therefore not in equity, and issues are made triable only by the court, and so tried with the result of a general finding and judgment against such party, it will not avail him in a subsequent action at law triable by jury to claim that, in the former suit, he mistook his remedy. He has pro

cured an adjudication on the merits in a court having jurisdiction and must abide the result. Williamsburgh Savings Bank v. Solon, 136 N. Y. 465, 32 N. E. 1058.

In the suit for an injunction to restrain the appellant herein from interfering with the property of the city, the defendant therein pleaded the contract for the service which constituted the alleged interference. There was an answer in denial, and the execution of this contract was not effectually denied, and therefore, for the purposes of the cause it was admitted. The judgment was on the merits and was a general judgment for the appellant herein. The execution of the contract was adjudicated in that suit, voluntarily prosecuted by the city to such result. Such matter could not properly be brought into controversy in the subsequent action on the contract.

We are inclined to think that justice may be best subserved by having another trial. Judgment reversed. Cause remanded for a new trial.

(39 Ind. A. 83) CORDES V. BAILEY. (No. 5,797.) (Appellate Court of Indiana. Division No. 2. Nov. 14, 1906.)

ATTORNEY AND CLIENT-CONTRACT FOR SERVICES-PERFORMANCE.

Where an attorney agreed to assist defendant in making defense to a suit then pending against defendant for divorce for a specified sum, the contract contemplated the rendition of services necessary for preparation for trial, and was not limited to such services as might be rendered in the actual trial of the cause.

On rehearing. Denied.

For former opinion, see 78 N. E. 678.

ROBY, J. It is stated in the special finding that after said employment appellee had several consultations with appellant, and also looked up and interviewed a number of witnesses, preparatory to the trial of the cause; that a cross-complaint was prepared by his associate counsel, and submitted to and approved by appellee; that said cause was pending from October 6, 1903, until January 7, 1904, on which latter day both the plaintiff's complaint and the defendant's cross-complaint were dismissed by them; that the value of the services actually rendered was $100; and that appellee was at all times ready to perform any services requested of him under the contract, the only reason for him not rendering service in court being the dismissal aforesaid. The argument of appellant's skillful counsel is based upon the assumption that the only services contemplated by the written contract were such as might be rendered in the trial of the cause. The assumption is incorrect. By the contract apa pellee agreed to assist appellant in making defense to a suit then pending against him in the Marion circuit court. Preparations for the trial were probably as necessary and as clearly a part of such defense as actual

participation in the trial itself, and were therefore within the scope of the employment. If conditions were reversed, and appellee was suing for the reasonable value of services rendered in preparation, appellant would have no trouble in understanding that they had been rendered under the contract. What we hold is that the parties, as shown by the special finding, made a written contract fixing the amount which appellee should receive for his services in a certain cause, and that he, having rendered such services as were necessary thereunder, is bound by the stipulation and may recover according to it. If he had not rendered any part of the service contemplated, a different question would be presented.

Petition for rehearing overruled.

(39 Ind. App. 382)

HUTCHENS v. COVERT et al. (No. 5,854.)1 (Appellate Court of Indiana. Division No. 2. Nov. 2, 1906.)

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1. STATUTES - CONSTRUCTION STATUTES IN PARI MATERIA-PENSIONS OF POLICEMEN.

In construing Laws 1903, p. 102, c. 41, providing for a pension in case of the death of a policeman while in the line of his duty, the court may consider Acts 1905, p. 351, c. 129, repealing the former act, and authorizing a pension on the death of a policeman while in the line of duty and as a result of the performance of his duty.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 303-306.]

2. MUNICIPAL CORPORATIONS-POLICE-PENSIONS-SUICIDE.

Laws 1903, p. 102, c. 41, authorizing a pension to the widow and children of a policeman on his death while in the line of duty or from natural causes, does not authorize a pension where a policeman while at his place of duty committed suicide because of insanity, where there was no showing that the insanity was the result of the performance of his duty.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by by Rosa D. Hutchens against Charles G. Covert and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Spencer & Brill and G. K. Denton, for appellant. A. W. Funkhouser, for appellees.

WILEY, J. Action by appellee as widow of Thomas Hutchens, a deceased member of the police force of the city of Evansville, to recover the funeral benefits and pension provided for in the act approved February 27, 1903. Laws 1903, p. 102, c. 41. To appellant's amended complaint a demurrer was sustained, and the only question presented by this appeal is the correctness of that ruling.

The amended complaint is brief, and we set out its material averments as follows: "That on the 18th day of September, 1903, one Thomas H. Hutchens, who was and has been for more than twenty (20) years prior thereto a member of the police force of said

1 Rehearing denied. Transfer to Supreme Court

city, was regularly detailed for daty at the Tri-State Fair Grounds in and adjoining said city, and, in obedience thereto, he entered upon the discharge of his duties as a policeman and as member of said police force at said place on said day. That at said time and place, and during the hours he was on duty, and while of unsound mind, he shot Fred Heuke, chief of police of said city, Fred H. Brennecke, a police captain of said city, Jacob Lutz, a bystander, and himself, thereby dangerously wounding said Heuke, Brennecke, and Lutz, and thereby instantly killing himself, thereby committing suicide; all of said shooting and wounding being so done and committed at once and as a part of the same transaction, and with the insane purpose and intention of killing said persons and of killing himself, and wholly as a manifestation of said unsoundness of mind, and without any provocation or other reason or cause. That this plaintiff is the widow of said Thomas H. Hutchens, and that she has not remarried since the said death of her husband; that plaintiff has one child, the daughter of plaintiff and deceased, to wit, Helen E. Hutchens, who is six years of age. That plaintiff had paid the funeral expenses of said deceased. That by resolution of said board the funeral expenses of members of said police force are fixed at seventy-five dollars ($75.00). That the defendants and said board have refused and still refuse to recognize any rights upon plaintiff's part under said act, and have refused and still refuse to pay her anything. That there is and has been since the time of the organization of said board, sufficient money in said police pension fund to pay all claims against it in full. Wherefore, from the facts above pleaded, plaintiff says that under the provisions of the aforesaid act she is entitled to twenty dollars ($20.00) per month for herself, and six dollars ($6.00) per month for said child from the date of the death of said deceased to the present time, and that she is entitled to the amount provided by a resolution of said board and by virtue of the by-laws thereof for the funeral expenses of said deceased, to wit, the sum of seventyfive dollars ($75.00), and that from the facts above pleaded there is now due and owing to plaintiff the sum of five hundred dollars ($500.00), for which amount plaintiff demands judgment," etc.

The statute under which appellant asserts her right to recover is a new one, and we deem it important, to a correct solution of the question involved, to refer to its most salient provisions. Section 1 provides that a police pension fund shall be created in cities of over 50,000 and less than 100,000 inhabitants, and designates who shall constitute the board of trustees for such fund. Sections 2, 3, and 4 prescribe the power of the board, and the duties of the respective officers thereof. Section 5 provides for the denied.

creation of the fund, out of which the benefits and pensions are to be paid. One of the means thus provided for is by an assessment against each policeman, which is to be deducted from his salary and placed to the credit of such fund. Section 6 provides for the investment of the fund. Section 7 provides for the retirement of a policeman under certain conditions. One of the conditions is that if he becomes permanently disabled, physically or mentally, because of injury or disease contracted while in the performance of his duty, he may be retired, and in that event he is to be paid out of the fund a sum equal to one-half of the salary he was receiving at the time of his retirement. It is further provided that upon the death of "any member of such police force, active or retired, while in the line of his duty or from natural causes, there shall be paid for funeral expenses of such deceased member a sum not to exceed one hundred dollars ($100.00), and should such deceased member leave a widow or child or children under the age of sixteen years, or both, then there shall be paid to such widow out of said fund twenty dollars ($20.00) per month, and such children shall receive six dollars ($6.00) per month until they arrive at the, age of sixteen years, respectively, to be paid to the mother of such children, if living, for their benefit," etc. Other provisions of the act have nothing to do with the question involved, and it is unnecessary to refer to them. The decision rests upon the question as to whether appellant's husband lost his life "while in the line of duty," within the meaning of that phrase, as used in the statute. Her counsel affirm that he did. If they are right in their affirmation, the complaint states a cause of action, for all other essential averments under the statute are present. It may be conceded that the deceased was where he had a right to be, for he had been detailed by superior officer for service service at the at the fair grounds.

What is meant by the expression, "while in the line of duty," as used in the statute? It should be given a reasonable meaning, and one that will carry out the intention of the Legislature. The Legislature evidently used this language with the thought in view of granting to policemen who came within the provisions of the statute, and to their widows and orphan children, certain gratuities, under two conditions: (1) If death resulted while in the performance of a duty enjoined upon the officer. (2) If they died from natural causes, while in service, and after the term of service, as provided by statute. The ex pression "while in line of duty" should be read in the light of legislative intent, if that is ascertainable, from the whole body of the act. We think it is. It was not intended by the Legislature to put a premium upon reprehensible conduct of a policeman. A policeman would be in the "line of his duty"

while walking upon his "beat," or while going to any point where his duty called him. But suppose while upon his beat he should meet a person against whom he held a grudge, and without provocation or cause he should assault him, and in self-defense such person should take his life; it could not, in reason, be said that he came to his death while in the line of his duty, or while in the performance of his duty. Again, a policeman's duty might call him to where intoxicating liquors are sold to be drunk as a beverage, and while there he would partake of such liquors until he became intoxicated, and while in that condition go upon the street and get killed as a direct result of his intoxication; it would be a travesty to say that his death resulted from the performance of a duty enjoined upon him, or that he was killed "in the line of his duty." In neither of the illustrations given would there be any casual connection between the facts resulting in his death and the fact that he was a policeman; nor would there be any casual connection between the facts resulting in his death and the performance of a duty enjoined upon him. In either him. In either event his death would not be the result of his being a policeman, or the result of his attempting to discharge any duty as such.

In the act approved March 6, 1905, entitled "An act concerning municipal corporations" (Acts 1905, p. 219, at p. 351, c. 129), the act under consideration was repealed, expressly reserving any right that had accrued under it. In the act of 1905, supra, the entire subject of pension and benefits to policemen, and their widows and orphans, is covered. That part of the new statute which covers the same matter as the one under which this action is prosecuted is as follows: "Upon the death of any member of such police force, active or retired, while in the line of duty, and as a result of the performance of his duty, or for natural causes, there shall be paid," etc. The beneficiary provisions of the act of 1905 are identical with those of 1903. In this connection, there is a rule of construction and interpretation of statutes which is pertinent here. That rule is that a subsequent statute upon the same subject-matter as a prior one may be considered to aid in the interpretation of such former statute. Am. & Eng. Ency. of Law (2d Ed.) p. 624. This is the rule both in England and America. Clerk v. Powell, 4 B. & Ed. 846; Smith v. Lindo, 4 C. B. N. S. 404; Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 611; Rolle v. White, L. R. 3 Q. B. 298; Morgan v. London, etc., Co., 12 Q. B. D. 207; Alexander v. Alexandria, 5 Cranch (U. S.) 7, 23 L. Ed. 19; U. S. v. Freeman, 3 How. (U. S.) 564, 11 L. Ed. 724; Cape Girardeau County, etc., v. Hill, 118 U. S. 72, 6 Sup. Ct. 951, 30 L. Ed. 73; Lawrence v. People, 188 Ill. 413, 58 N. E. 991; Matter of Livingston, 121 N. Y. 94, 24 N.