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Andrew Eichler was not a competent witness, no material error was committed in permitting her to testify, and we still adhere to that view; but we are prepared to go further, and hold that she was a competent witness, for the statute does not apply to cases of tort resulting in the death of the husband. Neither section 498 nor section 499 of the Code applies to a case like this, for the widow is not a party to the record, nor is her interest adverse to the estate, and the case is not one between heirs. The case is not “founded on a contract with or demand against the ancestor,” or “to obtain title to or possession of property, real or personal,” but is an action to recover damages for a tort causing the husband's death.
The circumstances proved by the appellee show that Andrew Eichler was on the appellant's train, and was killed by the falling of the train into the river. It is not necessary in any case, civil or criminal, that the material facts should be established by direct evidence. Greenleaf thus states the rule which prevails in civil cases: “In civil cases it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove." It is also said by this author that it is the duty of the jury “to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth.” 1 Greenl. Ev. § 13. This rule has been often approved by this court. Indianapolis, etc., Co. v. Collingwood, 71 Ind. 476; Indianapolis, etc., Co. v. Thomas, 84 Ind. 194; Terre Haute, etc., Co. v. Buck, 96 Ind. 346, see page 363; Hedrick v. D. M. Osborne & Co., 99 Ind. 143, see page 147; Evansville, etc., Co. v. McKee, Id. 519, see page 525; Union Mutual, etc., Co. v. Buchanan, 100 Ind. 63, see page 72; Evansville, etc., Co. v. Mosier, 101 Ind. 597; S. C. 1 N. E. Rep. 197; Riehl v. Evansville Foundry Ass'n, 104 Ind. 70; S. C. 3 N. E. Rep. 633.
The reasonable probability, and, indeed the only fair inference, from the facts and circumstances established, is that Eichler was on the train which went down into Blue river. He was in Chicago, and was expected home in Louisville about the time of his death. His route was over the appellant's road. His body was found about one and one-half or two miles down stream. His name was on the tab of his shirt; and in his pocket, among other things, was a conductor's check, issued by the conductor of the train. Bodies were seen washing down the river immediately after the train went down. The river was very high, and the current swift. Seven persons besides Eichler lost their lives by the disaster. When Eichler's body was taken from the water it was found to be badly mangled. The “head was," as one of the witnesses said, “caved in, and his bowels torn out." Another witness says: “The body was badly torn up; right leg broken. His hip was broken, and his belly torn open.” Timbers floated down stream from the bridge, displaced by the cars crashing through them. These circumstances unmistakably show that Eichler was violently killed and horribly mangled by some means, and the most natural inference in the world is that he was killed by the train's plunging through an unsafe bridge, as were seven others who were on the tráin; and this supplies ground for inferring that he was on the train. But in addition to this are the other facts that he was in Chicago, and expected home, and had a conductor's check in his pocket. There is not one particle of evidence tending to show that he was, or could have been, injured in any other way than by the train in which he was seated falling through the defective bridge; but, it is the most natural and reasonable of inferences to conclude that he was mangled and killed by the fall of the train, which running, as it was, at a high rate of speed upon the bridge, crushed it beneath its force and weight.
That the body was found some distance from the bridge does not invalidate this inference, for it is in the highest degree probable that a body mangled as was Eichler's would have been carried down by a river swollen by a great freshet. It is, indeed, almost inconceivable that Eichler was killed in any other manner than by the train's plunging through the bridge, and crushing him between the timbers or iron of the cars, and the heavy beams and sills of the bridge; so that the evidence not only supports the hypothesis of the appellee, but goes very far towards excluding every other hypothesis, if, indeed, it does not go to the full extent of excluding every other.
We conclude, without doubt or hesitation, that the evidence shows that Eichler was on the train; and the authorities cited in our former opinion abundantly prove that one who is on a train used for carrying passengers is, in the absence of countervailing evidence, presumed to be rightfully there as a passenger. The counsel assume as true that the complaint is for a breach of contract, and there are some statements in it which possibly give some support to this assumption; but the complaint, judged, as all our cases agree it must be, by its general scope and tenor, is very plainly in tort, and the cause of action is the negligence of the appellant. Henry v. Stevens, ante, 356, (November 22, 1886.)
We not think that the complaint assumes to state as a cause of action that the death of appellee's intestate resulted from a breach of contract, and it is very evident that the appellant's counsel tried the case upon a very different theory than that the action was based on a breach of contract. As the case was tried upon the theory that the cause of action alleged was the negligence of the appellant, that theory prevails here. Carver v. Carver, 97 Ind. 497. But we think it very clear that the complaint charges as the cause of action the tortious negligence of the appellant, and it was not necessary to do more than prove the appellant's duty, its negligent breach, and that deceased was free from contributory negligence; for it is an elementary rule that it is suffi. cient if the substance of the issue be proved.
It is quite probable—so much so that the jury were authorized to infer itthat the deceased purchased a ticket at Chicago, for there is no evidence to the contrary, and the conductor testified that he did take up "tickets, passes, and coupons.
We say that it was fairly inferable that the deceased had a ticket, because, as the authorities cited in our former opinion establishes, one on a passenger train is presumed to be rightfully there as a passenger, and because the presumption is always in favor of honesty and fair dealing. Any other rule would work great hardship in such a case as this, where the lips of the passenger are closed in death, and where the ticket, if bought at all, was bought at a station in a great city, where many passengers purchase tickets and embark upon the trains of the railway company.
We do not deem it necessary or proper to again discuss the question of presumptions in favor of Eichler's honesty, further than to say that it was presumably in the power of the appellant to show who Whaling was, why the pass was issued to him, and what had become of him. As we said in our former opinion, the pass issued by the appellant showed to whom it was issued, and on whose account, and no explanation at all was offered, nor was the part of the pass which the conductor testified that he took up given in evidence. We think these facts called upon the appellant to explain, and will not allow it to succeed solely on an inference which it is claimed exists that Eichler fraudulently procured and used the pass issued to Whaling. Mr. Broom says: “Where a party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him.” Broom, Leg. Max. 938.
(:08 Ind. 297)
SIMMONS . LINDLEY and others.
(Supreme Court of Indiana. November 22, 1886.) EJECTMENT — PLEADING — TITLE TO POSSESSION - ERRONEOUS RULING ON DEMURRER TO
In an action to recover possession of real estate the complaint must aver that the plaintiff is entitled to the possession thereof; and, where a demurrer for failure to aver such fact is erroneously overruled, such error will justify a reversal, although, before trial, the original plaintiff died, and her heirs filed a supplemental complaint, alleging that they were entitled to possession, but not showing that
the original plaintiff was at the time the action was instituted. Appeal from circuit court, Hancock county. Action to recover possession of real estate.
Wm. R. Haugh, for appellant. W. S. Denton and Marsh & Cook, for appellees.
HOWK, J. The first error complained of here by appellant, the defendant below, is the overruling of his demurrer to appellees' complaint herein. This suit was commenced in the court below on the thirtieth day of May, 1884, by one Martha A. Woods, as sole plaintiff, against the appellant, as sole defendant. In her complaint, then filed, Martha A. Woods alleged that she was the owner in fee-simple of the undivided one-third of certain parcels of real estate, particularly described, in Hancock county; and that appellant wrongfully, and without any lawful right, detained and kept possession thereof from her, and denied her title thereto. Wherefore she demanded judgment for the possession of said property, and for all other proper relief.
Afterwards, on the thirtieth day of December, 1884, and before any steps had been taken in the cause, the death of Martha A. Woods was suggested to the court. Thereafter, on the ninth day of June, 1885, the appellees appeared as plaintiffs, and filed what is called their supplemental complaint herein, and alleged therein that, since the commencement of this suit, the original plaintiff, Martha A. Woods, had died testate, leaving as her surviving children and devisees the appellee Olive F., wife of William F. Lindley, Sarah A., wife of Clarence A. Burk, and John C. Woods, to whom she devised all said parcels of real estate; that they were the owners in fee-simple of the real estate described in the original complaint, which they also described particularly in their supplemental complaint; that the appellant unlawfully, and without right, detained and kept the possession of said real estate from the appellees, and wholly denied their title thereto; and the appellees averred that they were entitled to the immediate possession of said real estate. Wherefore they demanded judgment for the possession of said real estate, and for all other proper relief.
After this supplemental complaint was filed, appellant demurred to the original complaint of Martha A. Woods. This was the only demurrer filed by appellant, so far as the record shows, and it was overruled by the court. It must be this ruling which appellant assigned here as his first error, because the record fails to show either that he demurred to the complaint of the appellees, or that such a demurrer was overruled by the court. In argument, appellant's counsel vigorously insists that the original complaint of Martha A. Woods was bad, and that it was error to overrule his demurrer thereto. That much must be conceded, we think. The original complaint sought to recover the possession of real estate, and it contained no averment of the fact, if it were the fact, that Martha A. Woods, the plaintiff therein, was entitled to the possession of the real estate at the time she commenced her suit. For the want of such an averment it is clear that the original complaint herein did not state facts sufficient to constitute a cause of action, and that the demurrer thereto ought to have been sustained. Section 1054, Rev. St.
1881; McCarnan v. Cochran, 57 Ind. 166; Vance v. Schroyer, 77 Ind. 501; Second Nat. Bank, etc., v. Corey, 94 Ind. 457.
But can this error of the court, for such it was, be made available by the appellant for the reversal of the judgment below? As we have seen, after the death of the original plaintiff, Martha A. Woods, the appellees, as her heirs and devisees, appeared, and filed what they called “a supplemental complaint herein." We bave said that the appellant had failed to challenge the sufficiency of this so-called supplemental complaint by a demurrer thereto for the want of facts; but the reason for this failure may have been that, in Derry v. Derry, 98 Ind. 319, it was held by this court that a demurrer to a supplemental complaint is unwarranted, and presents no question. In section 399, Rev. St. 1881, which is a literal re-enactment of section 102 of the Civil Code of 1852, provision is made for filing “supplemental pleadings showing facts which occurred after the former pleadings were filed.”
In Musselman v. Manly, 42 Ind. 462, after quoting such section 102 of the Civil Code of 1852, then in force, the court said: “A supplemental complaint is not, like an amended complaint, a substitute for the original complaint, by which the former complaint is superseded, but is a further complaint, and assumes that the original complaint is to stand.” A supplemental complaint must show facts which occurred after the filing of the original complaint. If the original complaint is bad, and, at the time it was filed, there were facts then existing which, if they had been properly pleaded, would have made such complaint sufficient to withstand a demurrer for the want of facts, it is settled by our decisions that such existing facts can only be brought into the case by an amended complaint, and never by a supplemental complaint. Patten v. Stewart, 24 Ind. 332; Musselman v. Manly, supra; Morey v. Ball, 90 Ind. 450; Dillman v. Dillman, Id. 585; Davis v. Krug, 95 Ind. 1; Derry v. Derry, supra.
In the case under consideration the appellees did not attempt to supply the material omitted averment in the original complaint by their supplemental complaint. It is true, they alleged that they were entitled to the possession of the real estate in controversy; but it does not follow from this averment, by any means, that the original plaintiff, Martha A. Woods, was shown to have been, or was in fact, entitled to the possession of such real estate at the time she commenced this. We are constrained, therefore, to hold that the error of the trial court in overruling appellant's demurrer to the original complaint is fatal to the appellees' case as they have presented it, and, for that reason, is available to the appellant for the reversal of the judgment below.
This conclusion renders it unnecessary, and, perhaps, improper, for us to consider now the only other error of which appellant complains.
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
(108 Ind. 301)
WARD and others 0. BERKSHIRE LIFE INS. Co.
(Supreme Court of Indiana. November 23, 1886.) 1. ESTOPPEL-MARRIED WOMAN-CONTRACT.
Where the question is one of capacity to contract, there can be no estoppel; but there may be an estoppel against a married woman where the question is as to the character of the contract into which she has entered ; and where she represents, by sworn statement, that a contract is for her own benefit, and induces another to act in good faith on such statement, she is estopped, under the provisions of the act of 1881, to aver that the contract was one of suretyship.1
1 See note at, end of case.
2. SAME-DESIGN TO DEFRAUD.
It is not essential, in order to the existence of an estoppel, that there should be a preconceived design to defraud; for the fraud consists in the denial of what was
previously affirmed. 3. HUSBAND AND WIFE-MORTGAGE BY-SECRET AGREEMENT.
Where one in good faith, and without notice, advances money on a mortgage executed by a married woman and her husband, on the faith of the representations of the mortgagors that the money is for the sole benefit of the wife, he is not affected by a secret agreement between the husband and the wife that the money should be used by the husband in his business.
Appeal from superior court, Marion county.
on, ELLIOTT, C. J. The complaint of the appellee is founded on a mortgage executed since the married woman's act of 1881 went into force. It is averred that the mortgage was executed to secure a loan made to Mary A. Ward for her own benefit. The second and third paragraphs of Mrs. Ward's answer alleged coverture; that the property belonged to her; and that she was the surety of her husband. The fourth pleaded suretyship and coverture, and averred that Mrs. Ward received no consideration for the mortgage. The fifth is substantially the same as the second and third. The only difference is that it sets out the facts in detail, and really pleads the evidence. The second paragraph of the appellee's reply alleges, in substance, that Mrs. Ward, knowing the purpose for which the loan was asked and offered, and for the purpose of inducing the appellee to make the loan, and to pay $3,000 thereon, represented that she was borrowing the money for her own use, and not as surety for any one, and made an affidavit to the truth of such representations; that the appellee neither knew, nor had the means of knowing, that the representations were not true, but in good faith relied thereon, and made the loan, which it would not have done had not such representations been made. A demurrer was overruled to this reply, and we are called upon to determine whether it was or was not sufficient.
It is argued with much ability and ingenuity that the question is one of power, and that the legal incapacity of coverture cannot be removed by fraudulent representations. In support of this contention we are referred, among other authorities, to the cases of Steadman v. Duhamel, 1 C. B. 838, and Levering v. Shockey, 100 Ind. 558.
This argument is plausible, but unsound. The assumption which constitutes its foundation cannot be made good. The question is not one of power or capacity, but the question is one of fact; for, if the contract was one of suretyship, Mrs. Ward had no power to enter into it, but, if it was not, then she had capacity to execute it. There is no doubt that, under our present law, a married woman has the general capacity to enter into contracts. The only exceptions are those specified in the statute, and chief of these is that she may not enter into contracts of suretyship. Arnold v. Engleman, 103 Ind. 512; S. C. 3 N. E. Rep. 238; Rosa v. Prather, 103 Ind. 191; S. C. 2 N. E. Rep. 575; Vogel v. Leichner, 102 Ind. 55; S. C. 1 N. E. Rep. 554; Rothschild v. Raab, 93 Ind. 488; Wulschner v. Sells, 87 Ind. 71. The decision hinges upon the fact that the contract was not one of suretyship, but was a contract to obtain money for the wife's benefit. While it may possibly be true that a representation by the wife that she was not under coverture would not bind her, still it would by no means follow that her representation that the contract was not one of suretyship would not estop her; for, in representing the character of the contract, she does not represent that she is not under the disability of coverture. It is one thing to make a representation respecting the capacity to contract, and quite another to represent that the contract is of a given character. If a married woman should seek credit by representing that goods were for her personal use, and thus obtain credit from a merchant, we