shall have the right to the immediate possession thereof and may have partition. A husband brought partition, and the land was sold, and certain creditors claimed the interest of the husband under a judgment against him. Held, that the judgment creditors could not as against the wife hold the entire fund realized from the partition proceedings of the husband's real estate, in the conveyance of which she had not joined, and in which proceedings she was not a party. [Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Dower, §§ 87, 88, 145–153.]

Appeal from Circuit Court, Vanderburgh County; Louis G. Rasch, Judge.

Action by Lewis C. Staser against Gaar, Scott & Company and others. Anna Staser was made party defendant, and from the judgment she appeals. Case transferred to the Supreme Court.

Spencer & Brill and G. V. Menzies, for appellant. W. W. Ireland and W. M. Reister, for appellees.

ROBY, J. Section 2652, Burns' Ann. St. 1901, provides that: "A surviving widow is entitled: to one-third of all the real estate of which her husband may have been seised in fee simple at any time during the marriage and in the conveyance of which she may not have joined in due form of law.

*" By section 2669, Burns' Ann. St. 1901, it is provided that: "In all cases of judicial sales of real property, in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever by virtue of such sale the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof.

When such inchoate right shall become vested, under the provisions of this act such wife shall have the right to the immediate possession thereof and may have partition. *

In the case at bar Lewis C. Staser brought an action for partition, setting up his ownership as tenant in common with other parties named of certain real estate described. Said real estate was found to be indivisible. A commissioner to sell the same was appointed, who duly reported such sale and now has the proceeds thereof in his hands for distribution. Subsequent to the sale the wife of said Staser was by order of court made a party defendant and sets up her right as such wife, under section 2669, Burns' Ann. St. 1901. Gaar, Scott & Co. were also made defendants and set up their right to the interest of said husband by virtue of a lien upon said land, under a judgment against said husband. question for decision is whether the judgment creditor of the husband can, as against the wife, hold the entire fund realized from the

The

sale in the partition proceeding of the husband's real estate, in the conveyance of which the wife has not joined, and to which proceeding she was not a party.

A judicial sale is "a sale made by authority of some competent tribunal, by an offcer authorized by law for the purpose. The term includes sales by sheriffs, marshals, masters, commissioners, or by trustees, executors, or administrators, where the latter sell under a decree of a court." Bouvier's dictionary, tit. "Judicial Sales." A sale made under the process of a court by an officer appointed and commissioned to sell, which becomes absolute only upon confirmation by the court, is in every essential respect a judicial sale. 17 Am. & Eng. Ency. Law, 953; Lawson v. Debolt, 78 Ind. 563. It includes a sale in partition. 17 Am. & Eng. Ency. Law, 954, authorities cited under note 4.

The facts exhibited by the record herein entitle the wife to the benefit of section 2669, supra. But in the case of Haggerty v. Wagner, 148 Ind. 625, 628, 48 N. E. 366, 367, 39 L. R. A. 384, it was held by a divided court that: "It is not necessary in a partition suit between co-tenants, where one of the co-tenants has a wife living at the time the partition proceedings are had, to make such wife a party thereto in order to make such proceedings binding on her in case she outlives her husband and becomes his surviving widow." In that case the wife, after the death of her husband, sought to recover from a grantee of the purchaser her interest in the real estate. In this case the question arises between a judgment creditor of the husband and the wife. The propositions laid down in the main opinion in Ilaggerty v. Wagner are inconsistent with the conclusion to which we are irresistibly drawn in the case at bar. Such conclusion accords with the propositions asserted in the forcible dissenting opinion filed therein.

This case is therefore transferred to the Supreme Court, with the recommendation that Haggerty v. Wagner, supra, be overruled.

(39 Ind. App. 515) PITTSBURGH, C., C. & ST. L. RY. CO. v. FERRELL. (No. 5,553.)1

(Appellate Court of Indiana. Oct. 26, 1906.) RAILROADS - CROSSING ACCIDENT-WILLFULNESS-EVIdence.

Plaintiff was struck and injured at a railway crossing by defendant's passenger train, which approached and passed over the crossing at a speed of from 50 to 60 miles per hour. The highway at the point in question, including the crossing at that season of the year, was used by from 100 to 125 teams daily. As the train approached the whistle was sounded onefourth of a mile north of the crossing and the bell was rung continuously from that time until the train passed over the crossing. The engineer did not see plaintiff at any time before the collision occurred, and did not know of his presence in the vicinity of the track, and the fireman did not discover plaintiff until he was just about to enter on the track, too late 1 Rehearing denied, 80 N. E. 425.

to take steps to stop the engine and avert the accident. Plaintiff approached the crossing from a canning factory, driving at a brisk trot, which was continuously maintained until the horses slowed down of their own volition as they proceeded to go on the crossing. Held, that such facts were insufficient to establish a willful injury on the part of the railway company.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1100-1103.]

Robinson, C. J., and Roby, J., dissenting.

Appeal from Circuit Court, Johnson County; W. J. Buckingham, Judge.

Action by John C. Ferrell, minor, against the Pittsburgh, Cincinnati, Chicago & St, Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. M. Z. Stannard and Branigin & Williams, for appellant. J. B. Huntington, Miller & Barnett, and Douglas Dobbins, for appellee.

COMSTOCK, J. Action brought to recover damages for personal injuries sustained by the appellee, caused by coming in collision with appellant's train. The complaint was in two paragraphs. Appellant's demurrer to the first was sustained and overruled to the second. Appellant answered the second paragraph by general denial, and the issue was tried on the second paragraph and the general denial thereto. Cause was submitted to a jury and a general verdict returned in appellee's favor for $900, for which amount judgment was rendered. The appellant relies for a reversal of the judgment upon the action of the court in overruling its demurrer to the second paragraph of complaint and in overruling its motion for a new trial. Said paragraph was held to be sufficient by the trial court, as charging willful injury. Instructions to the jury were given and refused, and the cause was tried upon the theory that said paragraph charged a willful iniury. To quote from appellee's brief: "There was not the slightest suggestion in the lower court that there was any element of negligence in this case. It was a willful injury case, pure and simple." If not good upon this theory, the court erred in overruling appellant's demurrer. Omitting the formal parts of said second paragraph of complaint, it is alleged that the defendant ran a locomotive and a train of cars over, along, and upon its said railroad, situated in the town of Whiteland, Johnson county, Ind., the same being an incorporated town of said state; that at the time said defendant so ran said locomotive and said cars as aforesaid plaintiff was driving a team of horses hitched to a wagon along and upon a street of said town, "the same being a public thoroughfare in said town frequently traveled during the entire time by large numbers of vehicles and foot passengers, and being situated in a populous part of said county and town; that at the time plaintiff attempted to drive across defendant's said railroad where the said public thoroughfare crosses the same; that while attempting so to do, as

he lawfully might at said point, the same being a public crossing as aforesaid, defendant at the same time was willfully and recklessly running said locomotive with said cars attached over and along said railroad through said town of Whiteland at an excessive, unusual, and highly dangerous rate of speed, to wit, a speed of 60 miles per hour; that, when defendant approached said highway crossing and was attempting to pass over the same as aforesaid, defendant, well knowing the dangerous location of the same, and well knowing that the same was situated in a populous section of said county and town, and well knowing that said crossing was frequented by large numbers of teams and foot passengers, who must needs cross said defendant's railroad at said crossing, willfully, purposely, and recklessly, without regard to life or limb of the people who were crossing at that crossing, and without regard to the welfare of this plaintiff, ran its locomotive and train of cars over and against the wagon that plaintiff was driving and against this plaintiff with great force and violence, and by reason thereof said wagon was torn in fragments, said horses were instantly killed, and plaintiff was thrown a great distance with immense force, so that he was severely hurt and injured thereby, internally and externally, being bruised," etc. nally, being bruised," etc. Willfulness implies design. It involves conduct which is quasi criminal. Walker v. Wehking, 29 Ind. App. 62, 63 N. E. 128; Union Traction Co. v. Lowe, 31 Ind. App. 336, 67 N. E. 1021; Brooks et al., Admr's, v. Pittsburgh, etc.. R. Co., 158 Ind. 62, 62 N. E. 694; Dull v. Cleveland, etc.. R. Co., 21 Ind. App. 571, 52 N. E. 1013.

It is said in Kalen v. Terre Haute & Indianapolis R. Co., 18 Ind. App. 202, 47 N. E. 694, 63 Am. St. Rep. 343, that "to be good as a complaint for willful injury it should show by some consistent form of averment that the injurious act was purposely done with the intent on the part of the doer to inflict willfully and purposely the particular injury of which complaint is made. *** Willfulness is a desire or intention to produce a certain result." In Union Traction Company v. Lowe the court say: "This paragraph of complaint is clearly insufficient. It falls far short, under the law as announced in the decided cases in this state, of stating a cause of action for a willful injury. It seems to be a settled law of this state that a complaint which seeks redress for a willful injury. involving, as it does, conduct which is quasi criminal, must aver that the injurious act was purposely and intentionally committed, with the intent willfully and purposely to inflict the injury complained of.” Willfulness and negligence are held inconsistent. Purpose or design is foreign to negligence. Parker, Parker, Adm'r, V. Pennsylvania Company, 134 Ind. 673, 34 N. E. 504, 23 L. R. A. 552. Willfulness cannot be inferred from mere knowledge on the part of the operatives of the appellant of the presence of the in

jured party. Before willfulness will be inferred such operatives must have knowledge also of the inability of the injured party to avoid the injury. Parker, Adm'r, v. Pennsylvania Co., supra; Brooks et al., Adm'rs, v. Pittsburgh, etc., R. Co., 158 Ind. 62, 62 N. E. 694; Cleveland, etc., R. Co. v. Miller, 149 Ind. 490, 49 N. E. 445. Where the doer was without knowledge of the presence and situation and peril of the injured party, the act done cannot be said to have been willfully inflicted. Brooks et al., Adm'rs, v. Pittsburgh, etc., Co., supra; Parker, Adm'r, v. Pennsyl vania Co., supra. A complaint charging willful injury must be strictly construed. Union Traction Co. v. Lowe, supra. So that the paragraph of complaint before us, to be sufficient, should allege that the injurious act was purposely done with the intent on the part of the doer to inflict the injury of which complaint is made. Said paragraph does not allege that those operating the train knew of appellee's presence on and near the crossing. It is not averred that the injurious act was purposely done with the intent on the part of the doer willfully to inflict the injury of which complaint is made. In Connor v. Citizens' Street Ry. Co., 146 Ind. 435, 45 N. E. 663, the court says: "The substance of the rule as established by the cases to which we have referred is that to entitle one to recover for an injury without showing his own freedom from contributory fault the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others; the actor having knowledge of the situation of those others." The only averment of willfulness exists in the charge of the running of the train at a high rate of speed over a public crossing in a popular section of the town, knowing that said section was populated by large numbers of teams and foot passengers, who must needs cross said defendant's road at said crossing. There is no averment that statutory signals were not given, nor that any ordinance of the town was violated, nor that appellant knew that appellee was on or near the crossing. As against the pleader, in ruling upon the demurrer, must presume that the railroad at the crossing in question in both directions was straight and open and free from obstructions of any kind for a distance of 80 rods, and that the whistle was sounded and bell rung as required by the statute. These conditions are inconsistent with a willful intent. Such acts are not even negligence per se at an ordinary country crossing. L. S. & M. S. R. Co. v. Barnes (Ind. Sup.) 76 N. E. 629. Counsel for appellee contend that there are two classes of willful injury cases: First, those in which the act that produced the injury was intentional. Second, those in which the act that produced the injury was

done under circumstances such as evinced a reckless disregard to inflict the injury complained of, and that the case at bar belongs to the second class. The following cases are cited: Louisville, etc., Ry. Co. v. Bryan, 107 Ind. 51, 53, 7 N. E. 807; Belt R. R. & Stockyards Co. v. Mann, 107 Ind. 89, 92, 7 N. E. 893; Louisville, etc., Ry. Co. v. Ader, 110 Ind. 376, 380, 11 N. E. 437; Gregory, Adm'r, v. Cincinnati, etc., R. Co., 112 Ind. 385, 387, 14 N. E. 228; Brannen v. Kokomo, Greentown & Jerome Gravel R. Co., 115 Ind. 115, 17 N. E. 202, 7 Am. St. Rep. 411; Citizens' St. Ry. Co. of Indianapolis v. Willoeby, 134 Ind. 563, 33 N. E. 627; Chicago, etc., R. Co. v. Spilker, 134 Ind. 380, 33 N. E. 280, 34 N. E. 218; Korrady, Adm'r, v. L. S. & M. S. Ry. Co., 131 Ind. 261, 29 N. E. 1069; Cleveland, etc., Ry. Co. v. Miller, 149 Ind. 490, 499, 49 N. E. 445; P., C., C. & St. L. Ry. Co. v. Judd, 10 Ind. App. 213, 36 N. E. 775; L. & N. R. Co. v. Cronbach, 12 Ind. App. 666, 41 N. E. 15; L. E. & W. R. Co. v. Brafford, 15 Ind. App. 655, 661, 44 N. E. 551; Miller v. Miller, 17 Ind. App. 605, 47 N. E. 338; Hancock v. L. E., etc., Ry. Co., 21 Ind. App. 10, 19, 51 N. E. 369; Brooks, Adm'r, v. Pittsburgh, etc., R. Co., 158 Ind. 62, 62 N. E. 694. Counsel for appellee call special attention to Belt R. R. & Stockyards Co. v. Mann, supra; Chicago, etc., R. R. Co. v. Spilker, supra; Cleveland, etc., R. R. Co. v. Miller, supra; Brooks, Adm'r, v. Pittsburgh, etc., supra. In Belt R. R. & Stockyards Co. v. Mann, supra, Mitchell, J., speaking for the court, says: "The use of the phrase, 'willful negligence,' in the connection which it is frequently employed, is, to say the least, inapt. Whatever idea the word 'willful' may express when so used, it is beyond question that to entitle one to recover for an injury to which his own negligence may have contributed the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been so committed, under such circumstances, as that its natural and probable consequence would be to produce injury to others. There must have been either an actual or constructive intent to commit the injury. The act must have involved conduct quasi criminal in character. To constitute a willful injury, the act or omission which produced it must have been purposed and intentional, or must have been committed under such circumstances as evinced a reckless disregard for the safety of others." In substance the language above set out has been followed in every opinion involving the question before us since delivered in this state, and in some of them the exact language has been used. The following expression also occurs in the opinion: "There is no language in the paragraph under consideration which can be said to charge that the appellant's employés had an intent, either actual or constructive, to commit the injuries complained of. It does not appear that they had

knowledge of the plaintiff's presence in time to have avoided the collision, or that the crossing was of such a character as that the natural and probable consequence of running an engine in the manner described would be to produce an injury such as that suffered by the plaintiff."

The question before us is one of pleading, not of evidence. If, upon a sufficient complaint, we were discussing the sufficiency of the evidence, the doctrine of implied intent would be properly considered. The rule requires that facts must be averred and proven in the case. It is averred only by recital that people were crossing at said crossing. The paragraph in question is defective in failing to aver that the servants of the appellant operating the train knew of appellee's presence on or near the crossing, and that the injurious act was prompted with the intent upon the part of the doer to willfully inflict the injury of which complaint is made. In willful injuries the intention with which the act is done constitutes the wrong, which is the gist of the charge. In pleading that intent will not be inferred. An intent to commit a willful injury may be inferred from facts proven, because intent may be established by positive or circumstantial evidence. An intent to kill, as has often been said, may be inferred from the discharge of a loaded gun upon the public street or into a crowd, but it would be necessary, in an indictment for homicide under such a state of facts, to charge that the act was done with intent to kill. A quasi criminal act consists of an act and intent. The union of the two is necessary-both must be charged. "In pleadings facts must be directly and positively alleged, while, in regard to evidence, conclusions may be inferred from facts and circumstances without positive statements." La Porte Carriage Co. v. Sullender (Ind. Sup.) 75 N. E. 280, and cases cited. The only averment which can be claimed to show intent is that appellant purposely ran its locomotive against appellee. The pleader evidently relied upon the facts averred to raise the presumption of criminal intent. Under the decisions of this state the averment is not sufficient.

An examination of the evidence shows that the charge of willfulness, if properly made, is not sustained. The following is a condensed recital of the evidence: Appellant's track through Whiteland ran north and south. The station building was north of the highway and east of the railroad track. East of the station was a closet and coal shed. East of these was the blacksmith shop. East of the blacksmith shop was Dr. Phipp's premises, on which were an orchard, dwelling house, and outbuildings. North of Dr. Phipp's premises was the canning factory. The station building was 40 feet long and 16 feet wide, and it was 20 feet north of the center of the railroad track. The open space between the closet and the blacksmith shop

was 20 feet. These improvements were all upon the land lying between the highway and railroad track; the canning factory being about one-quarter of a mile north of the crossing. These improvements created a partial obstruction to the view of the track to one driving from the canning factory to the crossing. Just south of the crossing was an elevator. When the elevator and canning factory were in operation, as they were on the date of the accident, both made rumbling noises that could be heard at a distance of from one-quarter to one-half mile away. Appellant's train, a regular passenger train, approached and passed over the crossing at a speed of from 50 to 60 miles per hour. The highway was used by the public, and from 100 to 125 teams passed over the crossing daily during the summer season, when the canning factory was in operation. When the train was one-quarter of a mile north of the crossing, the whistle signal was sounded and the bell was rung continuously from this time until the train passed over the crossing. Appellee was familiar with the crossing and with the fact that fast trains made use of the track and crossing. Appellee had taken a load of peas to the canning factory. In doing so he had passed over the crossing. After unloading the peas, appellee drove the team from the canning factory, southwestwardly, to the crossing. Bert Voris was riding on the wagon with him. Appellee drove from the canning factory to within five or eight feet of the crossing at a brisk trot. When the heads of the horses came within from five to eight feet of the railroad track the horses, of their own volition, slowed down to a walk and proceeded on to the crossing, where the collision occurred. Appellee did not, nor did the team, stop at any point between the canning factory and the crossing. On the way from the canning factory to the crossing Bert Voris called appellee's attention to the fact that it was about train time, and appellee stepped to the forward part of the wagon and looked for the train, tightening the lines in his hands as he did so. As appellee and Voris approached the crossing between the blacksmith shop and station building, Melton Hughes, after hearing the train signal, attempted to signal them by waving his hand and hollowing, "Hello, boys! yonder is the train!" At this time the team was going in a trot, and appellee and Voris were engaged in conversation. They continued to converse in this way until the horses' heads were almost to the railroad track. When the team went upon the crossing, they were struck by the train, killing both horses, breaking the wagon and harness, and throwing appellee some distance from the wagon and inflicting upon him the injuries complained of. By stopping north of the blacksmith shop, or between the blacksmith shop and the station, appellee could have seen part of the track north of the station. The engineer in charge of the locomotive did not see appellee or

know of his presence in the vicinity of the crossing at any time before the collision occurred. The fireman, who was in the cab with the engineer, discovered appellee just as he was about to enter on the railroad track, but too late to take steps to stop the engine and avert the accident. Before this the fireman had not seen appellee, and had no knowledge of his presence in the vicinity of the crossing. To refer more particularly to the testimony of the engineer, he testified that he was in his proper place, on the right-hand side (west side) of the engine; that the crossing was free and clear of obstructions, as far as he could see, off the engine; that he was running the train on schedule time, at 40 miles an hour; that the crossing appeared to be clear and he believed it to be clear, and that he had no intention to injure plaintiff or any one. The testimony of these witnesses furnishes no evidence to sustain the charge of willful injury. If there is any evidence tending to support its charge, it must be in the fact that the train ran at a the high rate of from 50 to 60 miles an hour over the crossing over which from 100 to 125 teams passed daily during the summer season, when the canning factory was in operation. This high rate of speed might show heedlessness, but not willfulness.

In Brooks v. Pittsburgh, etc., Ry. Co., 158 Ind., at page 70, 62 N. E., at page 697, the court say: "It must be borne in mind that, while the evidence tends to prove that the appellee's servants were heedless of the rights of persons who might be upon the crossing, yet that there is no evidence that such servants had knowledge that any person was upon or near the crossing." The evidence in fact shows that after the plaintiff's first danger was seen by the fireman there was no opportunity or time to avoid the accident. In the recent case of the Lake Shore & Michigan Southern Ry. Co. v. Barnes (Ind. Sup.) 76 N. E. 629, it is said not to be negligence for railroad companies to run their trains over ordinary public crossings, in the absence of a speed ordinance, at any speed they choose, not inconsistent with the safety of the persons and things in their charge. In this case the evidence shows that the train was run in the usual manner, in the usual way, on schedule time.

Presumptions may arise from circumstances, but they are not conclusive as against positive evidence. No presumption of the wrongful purpose can arise from the facts that lawful signals were given of appellant's approaching train; nor can such presumption arise from the running of the train in a lawful manner, without knowledge of the persons of any one near the track, because knowledge is essential to purpose. We have considered only the question of willfulness, and, if we concede that the complaint is sufficient upon that theory, the charge is without support in the evidence.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

BLACK and MYERS, JJ., concur in the result. Concurring opinion by WILEY, J. ROBINSON, C. J., J., dissents. Dissenting opinion by ROBY, J.

WILEY, J. (concurring). The facts pleaded and those disclosed by the evidence are so fully and fairly stated in the prevailing opinion that it is unnecessary to restate them here as a basis for the expression of the individual views which I entertain upon the vital questions involved in this appeal.

The appellee bases his right to recover upon the acts of the appellant, as stated in the complaint, which acts are characterized as "willful." In other words, the appellee charged in his complaint that appellant "willfully, purposely, and recklessly" inflicted injury upon him, and hence the judgment in his favor rests upon a willful act of appellant, resulting in injury. It is important to understand what is meant in the use of the word "willful," or "willfully," as used in the complaint. "It is the quality of being willful; obstinacy; stubbornness; perverseness; voluntariness." Dull v. Cleveland, etc., Ry. Co., 21 Ind. App. 571, 52 N. E. 1013. In Re Young, L. R. 31 Ch. Div. 168, it was said: "Willful' is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning it generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent." In Fuller v. Chicago, etc., Ry. Co., 31 Iowa, 187, it is said: "It is said by defendant's counsel that the word 'willfully' implies the idea of malice of a mild kind-an evil intent without exSuch may be its meaning in indictments and criminal statutes, but it is not to be so understood here. The word means o 'obstinately stubbornly; with design; with a set purpose.' And this definition must be applied to it where it occurs in the statute under consideration." In Louisville, etc., Ry. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807, ap pellee sued to recover damages for killing a team of horses. One paragraph of his complaint was based upon willfulness, and the charging part of that paragraph was as follows: "And that said collision was caused by the reckless, negligent, and willful conduct of said employés and servants of said defendant in the management of said locomotive, in this, to wit: that said locomotive was being propelled at an exceedingly high and dangerous rate of speed, and was being propelled backwards, and that the whistle