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Burns' Rev. St. 1901, § 1228, provides that, when a surety on any undertaking shall be compelled to pay a judgment by reason of his suretyship, the judgment shall remain in force for the benefit of the person making the payment. Held, that defendant became subrogated to the rights of the mortgagee, and entitled, under Burns' Rev. St. 1901, § 782, to have the premises resold to reimburse him for the deficiency judgment which he had paid.

3. It appearing on the face of the record that defendant was a principal debtor, he was not entitled to a resale of the property until it had been judicially established that he paid the judgment as surety.

4. One who has paid a judgment as surety before the question of his suretyship has been determined may have that relation established by applying to the court that rendered the original judgment, and become thus subrogated to the rights of the judgment creditor.

5. Burns' Rev. St. 1901, § 577, provides that, when the justice of the case requires it, the court may determine the ultimate rights of the parties on each side as between themselves. Defendant sold mortgaged premises, the grantee agreeing to pay the mortgagee. Foreclosure was had against defendant's grantee, and a personal deficiency judgment rendered against defendant, which he paid, no personal judgment being sought against his grantee. Plaintiff purchased the grantee's interest in the premises, and redeemed from the foreclosure. The premises were resold to reimburse defendant for the deficiency he had paid as surety for his grantee. Plaintiff sued to quiet the title, alleging that the payment of the mortgage debt by defendant was a satisfaction thereof, and the resale void. Held permissible for defendant to file a cross complaint alleging that he paid the judgment as surety, and seeking to have the judgment declared a subsisting lien on the property, and enforced for his benefit.

Appeal from circuit court, Tipton county; J. F. Elliott, Special Judge.

Action by William R. Oglebay against Lemuel S. Todd and others, in which Lemuel S. Todd filed a cross complaint against plaintiff. From a judgment for plaintiff, defendant Todd appeals. Case transferred from appel late court under Burns' Rev. St. 1901, § 1337u. Reversed.

Gifford & Gifford, for appellant. Oglebay & Oglebay, for appellee.

HADLEY, J. Joab Woodruff, being the owner of real estate, mortgaged the same to James Woodruff. After the execution of the mortgage, Joab sold and conveyed the mortgaged premises by warranty deed to appellant Lemuel S. Todd, the latter agreeing and assuming in the deed to pay the mortgage as a part of the consideration. Subsequently Todd sold and conveyed the same premises by warranty deed to Mary Eshelman, the latter assuming and agreeing in the deed to pay off the mortgage as a part of the purchase price. James Woodruff assigned the note and mortgage to John C. Lutz, who instituted foreclosure, making defendants thereto Joab Woodruff, Lemuel Todd, and Mary Eshelman, and such proceedings were had therein that a decree of foreclosure was given against all the defendants, and a personal judgment against Joab Woodruff and Lemuel Todd. No Personal judgment was sought or taken 64 N.E.-3

against Mrs. Eshelman. The premises were sold by the sheriff under the decree to Lutz, the judgment plaintiff, for $52.99, a sum only sufficient to pay the accrued and sale costs. After the sale, Todd, to avoid execution, paid to Lutz $320, the balance due upon the judgment, and took to himself an assignment of the judgment and decree, duly executed on the margin of the record. Before the year for redemption had expired, Mary Eshelman, for a valuable consideration, as alleged, sold and conveyed the premises to appellee, William Oglebay; the latter, at the time of his purchase, having actual, as well as constructive, knowledge that his grantor, Mrs. Eshelman, had assumed as a part of the purchase price the payment of the mortgage, and that she had not paid the same, and that a judgment therefor remained unsatisfied of record. Ogle. bay timely, and as provided by law, redeemed the premises from the Lutz sale. After the redemption, Todd, claiming the right to resell the property for the unpaid balance of the mortgage debt, procured the clerk, by virtue of Lutz's assignment to him, to issue to the sheriff an alias copy of the decree of foreclosure, whereupon the sheriff advertised said premises for resale on the foreclosure decree. This action was brought by Oglebay against Todd, Lutz, and the sheriff to enjoin the sale, to have said judgment and decree declared satisfied, and his title quieted, under the claim that the judgment was paid and the lien discharged. Before trial the sale was made by the sheriff to Todd, and by a supplemental complaint Oglebay asks that the sale be annulled, the judgment and decree declared satisfied, and his title quieted. Lutz filed a disclaimer. Todd's demurrer to the complaint was overruled. He then pleaded the above facts as an answer to so much of the complaint as sought to quiet the plaintiff's title against the judgment of foreclosure. He also pleaded the same facts as a cross complaint, and asked to be subrogated to the rights of Lutz, the judgment creditor, whose judgment he had been compelled to pay and did pay, as the surety of Mrs. Eshelman, the plaintiff's grantor; that his said suretyship be determined, and he accorded proper equitable relief. The cross complaint was stricken out on plaintiff's motion. Plaintiff's demurrer to the answer was sustained, and, appellant refusing to answer further, judgment was rendered against him for costs, and declaring the Lutz foreclosure judgment and decree satisfied, and appellee's title quieted against the same. Three questions are presented for decision: First. Did the redemption by Oglebay from the Lutz sale expose the property to resale for an unpaid balance of the decree? Second. Did the statute, under the facts shown, after payment by Todd, keep alive the judgment and decree for his use? Third. Are the facts pleaded in the cross complaint germane to the subject-matter of the action?

1. Section 782, Burns' Rev. St. 1901, provides that whenever any real estate or inter

ty to whatever judgment against the grantee that the creditor would have been entitled to if the grantor had not paid the debt. See, also, Davis v. Schlemmer, 150 Ind. 472, 50 N. E. 373. Applying these principles, and the case comes to this: When the foreclosure proceedings were had, Mrs. Eshelman was the owner of the property, had assumed to pay the incumbrance as part of the consideration, and as between her and Todd, her grantor, she was principal debtor, and Todd her surety. The debt had become hers, and had ceased to be Todd's debt. When Mrs. Eshelman, after the foreclosure sale, and before the year for redemption had expired, conveyed the equity of redemption to Oglebay, the latter took the estate impressed with the mortgage and its incidents in the same way it would have been impressed had it remained the property of his grantor. Therefore when Oglebay, as owner, redeemed, by virtue of the statute, he restored the lien of the judgment, and re-established the property to the same relation to the decretal judgment it

est therein sold as aforesaid shall be redeemed by the owner or person claiming under him, the sale thereof by the sheriff shall be wholly vacated as to the real estate so redeemed, and such real estate subjected to sale on execution as if such sale had not been made. This section applies to redemptions made by the owner, his executor, administrator, heirs, or devisees, and to one holding the legal or equitable title under the mortgagor or judgment debtor; and such redemption restores the property, with respect to the lien and incidents of the judgment or decree for any unpaid balance, to the identical status occupied before the first sale. Hervey v. Krost, 116 Ind. 268, 19 N. E. 125; Green v. Stobo, 118 Ind. 332, 20 N. E. 850; Mitchell v. Ringle, 151 Ind. 16, 50 N. E. 30, 68 Am. St. Rep. 212; Lemmon v. Osborn, 153 Ind. 172, 54 N. E. 1058. Oglebay became the owner by successive conveyances by deed from Woodruff, the mortgagor, and as such owner exercised the right to redeem from the foreclosure sale, and his redemption therefore reestablished the lien and operation of the judg-occupied immediately before the sale redeemment and decree for any balance that remained unpaid.

2. Section 1228, Burns' Rev. St. 1901, provides that when any person being surety in any undertaking whatever has been or shall be compelled to pay any judgment or part thereof, or make any payment which is applied upon such judgment by reason of such suretyship, the judgment shall not be discharged by such payment, but shall remain in full force for the use of the person making such payment; and, after the plaintiff is paid, so much of the judgment as remains unsatisfied may be prosecuted to execution for his use. It is well established in this state that a grantee who agrees and assumes to pay off an incumbrance on the land as a part of the purchase price thereby becomes to the lien creditor primarily liable for the debt; and, while the grantor will remain equally bound by his obligation, yet as between him and his grantee he becomes surety, and his grantee principal debtor. As between the parties to the deed, the incumbrance becomes the debt of the grantee. Stanton v. Kenrick, 135 Ind. 382, 35 N. E. 19; Ellis v. Johnson, 96 Ind. 377; Rodenbarger v. Bramblett, 78 Ind. 213; Campbell v. Patterson, 58 Ind. 66; Josselyn v. Edwards, 57 Ind. 212. It is so manifestly just that a grantee who has made it his paramount duty to pay the debt, and has received and retains the consideration therefor, shall be required to keep his contract, that the doctrine of the above cases is firmly supported by principles of equity, irrespective of the statute. Accordingly, it was held in the case last cited, upon excellent reason, that when a grantor has paid off an incumbrance for which he was bound, and which had been assumed by his grantee, after default of the latter, he became subrogated to the rights of the creditor in the debt and in whatever security existed for its payment, and entitled in equi

ed from, for any unpaid part of the judgment. Whatever part of the judgment Todd, as the surety of Mrs. Eshelman, was compelled to pay to the creditor, remained unpaid as to her, and the property was liable to be resold to reimburse him. Todd, however, was not entitled to a sale until he had established his suretyship in some way known to the law. On the face of the record Todd appears to be a principal debtor, and hence primarily liable for payment of the judgment. Payment by him, therefore, amounted at least to a prima facie satisfaction, and an assignment of the judgment to him by Lutz amounted to nothing. If he had paid the judgment as surety for Mrs. Eshelman, as he asserts, he was not entitled, in equity or under the statute, to execution and sale until it had been judicially established that he stood in that relation to the judgment when he paid it. Zimmerman v. Gaumer, 152 Ind. 552, 53 N. E. 829, and cases cited. Therefore the sale made on execution issued for his use was a nullity. 3. A person who has paid a judgment for which he was surety to another before the question of his suretyship has been determined may have that relation established by applying, in a proper action, to the court that rendered the original judgment, and become thus entitled to an order for execution for his use. Zimmerman v. Gaumer, supra, and cases cited. A cross complaint is not recognized by our practice act, but nevertheless it is the manifest spirit of the Code to discourage and abridge lawsuits by granting such liberal procedure as will enable parties to an action to put in issue and litigate all matters of dispute relating to the subject-matter in controversy. This view of the Code has uniformly been held by the decisions of this court, and finds support in section 577, Burns' Rev. St. 1901, which provides that the court may, "when the justice of the case requires it,

determine the ultimate rights of the parties on each side as between themselves." It may, therefore, be said to be the settled practice in this state, when affirmative relief is due against parties to the suit as to matters germane to the subject-matter of the main action, to permit cross actions against the plaintiff or among codefendants. In this case the complaint of appellee, as the same went to final judgment, alleged the payment and discharge of the Lutz judgment and decree, and sought to have the discharge established, and the plaintiff's title quieted against the same. The cross complaint filed by appellant asserted the nonpayment and discharge of the Lutz judgment, his suretyship therein, and payment by him, and sought to have said judgment declared a valid and subsisting lien on the plaintiff's property, and enforced for appellant's benefit. Both actions relate to the validity of the lien of the Lutz judgment, and the cross complaint was clearly germane, and the motion to strike it out should have been overruled. It follows from what has been said that the answer was sufficient against a complaint to quiet title.

Judgment reversed, with instructions to overrule the demurrers to appellant's first and second paragraphs of amended answer, and to overrule appellee's motion to strike out appellant's cross complaint.

(29 Ind. App. 164)

LAKE LIGHTING CO. v. LEWIS. (Appellate Court of Indiana, Division No. 1. May 23, 1902.)

ACTION FOR PERSONAL INJURIES-COMPLAINT -EFFECT OF INJURY-SUFFICIENCY OF ALEXAMI

LEGATIONS-WITNESSES-REDIRECT

NATION-SUPPORTING CREDIBILITY.

1. In an action for personal injuries, where defendant's attorney, on cross-examination of a physician, asked whether he found any symptoms of paralysis in plaintiff, and how it could be produced by an injury such as the one received by plaintiff, notwithstanding that the doctor had not been interrogated on that subject on his direct examination, it was not error to permit plaintiff to pursue the inquiry as to paralysis further on redirect examination.

2. A complaint for personal injuries, averring that, by reason of an iron tool falling on him, plaintiff was stunned, knocked down, "rendered unconscious, and his skull was indented and fractured, and the blow caused concussion of the brain, and caused blood poisoning to set in, and his nervous system is shattered and wrecked"; that plaintiff has "constant pains in his head, and in the region of the spinal cord, he is highly nervous, is unable to sleep at night; * * that said injury is of a permanent nature," etc.,--was sufficient to admit proof of paralysis and insanity, as probable future effects of the injury described.

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3. The court had discretion to permit testimony as to the general reputation of a witness for truth and veracity at a place where he had lived some four or five years before the trial, where there was also evidence before the jury as to his reputation in the neighborhood in which he resided at the time of trial.

Appeal from circuit court, Porter county; John H. Gillett, Judge.

Action by Albert Lewis against the Lake Lighting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles F. Griffin and Agnew & Kelly, for appellant.

BLACK, J. The appellee recovered damages of the appellant for a personal injury, and the action of the court in overruling the appellant's motion for a new trial is assigned as error. The complaint showed that in connection with appellant's system of electric lighting maintained in the city of Hammond were lines of poles with crossbars, to which were attached its wires for transmitting electricity; that at the west side of Hohman street, north of its intersection with State street, in the central part of the city, near the northwest corner of the intersection of the streets, and in the line of the sidewalk for pedestrians, was one of these poles, about 50 feet high, with crossbars at the top, to which the wires of the appellant were attached, it being a place constantly resorted to by the general public for the purpose of travel, where a large number of people passed under the crossarms daily; that on, etc., in the forenoon, the appellee was standing on the sidewalk, of Hohman street, near this pole, and under the crossarms thereof, he not being in the employment of the appellant, when one of the appellant's servants was at the top of the pole, engaged in the work of the appellant in the line of his duty as a servant of the appellant, and had on and about his person wire and wire pliers, and other tools and appliances ordinarily used by persons so engaged; that while the appellee was so standing he had no knowledge or means of knowing or reason to believe that any person was at work at the top of the pole; that at and before said time the appellant carelessly and negligently failed to give any warning or notice of the presence of the servant at the top of the pole, and failed to provide any notice or other means of warning travelers upon the street, or persons lawfully there, of the presence of the servant there, and negligently failed to provide any netting, screen, or anything whatever to prevent tools and appliances which the servant had in his possession or on his person from dropping upon or against persons lawfully upon the street and sidewalk; that the appellant and its said servant negligently failed to provide him with a chain, belt, or other appliances by which he might securely retain said tools and implements; that the appellant's said servant while so engaged in the line of his duty as such, negligently suffered and permitted a heavy pair of metallic pliers to fall from the top of the pole down a distance of 50 feet, upon the head of the appellee; that at the time when it so fell, while the appellee was lawfully so upon the street, he was exercising all due care and caution for his safety and protection;

that, by reason of said tool falling upon him, he was stunned, knocked down, bruised, lacerated, wounded, cut upon the head and face, and rendered unconscious, and his skull was indented and fractured, and the blow caused concussion of the brain, and caused blood poisoning to set in, and his nervous system is shattered and wrecked, and he now suffers, and has suffered before and since the commencement of this suit, great pain of body and mind; that after the injury, and by reason thereof, his life was despaired of for a long time, and he was confined to his bed for a period of three months, and is wholly unable to do any work of any kind; that by reason of said injury he is unable to do any lifting or to exercise himself in any manner, especially when it is warm, and has continual pain in his head and in the region of the spinal cord, he is highly nervous, is unable to sleep at night, and by reason of said injury his senses of hearing and seeing have been greatly impaired; that said injury is of a permanent nature; that he never will be able physically to perform manual labor; that at and prior to the injury he was a skilled workman in steel, capable of earning, and was earning, etc. There were allegations relating to his necessary consequent expenses, etc., "all to the plaintiff's damage in the sum of," etc.; "that said injury occurred to the plaintiff wholly by reason of the negligent misconduct of defendant, as alleged herein, and not through any fault on the part of the plaintiff. Wherefore," etc.

In support of the claim that the verdict is not supported by sufficient evidence, and that it is contrary to law, it is contended that the evidence shows contributory negligence on the part of the appellee. The jury, by the general verdict, found against the appellant upon this question, and the evidence recited by counsel in opposition to the verdict certainly did not require a contrary conclusion as a matter of law. The matter was so plainly within the province of the jury, and the conclusion is so well sustained by the evidence, that we cannot regard it as profitable to recite the evidence bearing upon the question.

A physician and surgeon, Dr. Loring, a witness for the appellee, had examined, as he testified, the appellee's wound, a week or 10 days before the trial. He described the condition observed by him at that time. On cross-examination he was asked: "In this patient, doctor, you found or observed no symptoms of paralysis?" On objection by appellee on the ground that this was not proper cross-examination, the court held this a proper question, and said: "On redirect we can find out how far that went." The witness answered: "I did not." He was then asked and answered on further crossexamination a number of questions relating to the subject of paralysis; how it would be produced by an injury of that kind; how soon it would be developed, whether a frac

ture or direct pressure upon the skull continually, at the point of the appellee's injury, would produce paralysis, etc. In answer to one of these questions the witness stated three different causes resulting from such an injury by which paralysis might be produced. In answer to another of these questions he stated that if the patient had gone for 14 months (the period between the injury and the trial), and all the symptoms of active inflammation had gone, and the wound had apparently healed itself, he would not then expect paralysis to follow. On re-examination, counsel for the appellee asked the witness to state in what, if any, other ways paralysis could follow an injury, or from an injury, than the ones the witness had indicated theretofore in his testimony. Appellant's objection to this question having been overruled, the witness answered: "Certain portions of the brain give rise to the motory impulses, and certain portions of the brain give rise to the sensory impulses, containing the motory cells and sensory cells. Now, in adhesions, that destroys these cells, and from these the brain is involved, and involving either nerves of motion or sensation, which may result in paralysis of one or the other functions. Now, pressure of any kind, whether from a tumor or from inflammation, or a fracture, or any thing of the kind, may result in paralysis. Destruction, without pressure, in the same way, may result in the same thing. Now, I have tried to make that as broad as I can. The Court: That means pressure on either the motor or sensory nerves may result in paralysis? Answer. Yes, sir." Dr. Pohls, a physician and surgeon who had treated the appellee for the injury in question, testifying as a witness in his behalf, was asked by counsel for the appellee to state "what effect a depression in the skull such as plaintiff received at the time of his injury, and as you have described on the witness stand, will have upon the brain and nervous system of the plaintiff." The witness was permitted to answer over the appellant's objection, and stated that "the result would be nervousness and dizziness, probably paralysis, an incoördination of the muscles in walking, or anything of that kind, and any least exertion, like a jar, or riding in a street car or on a rough road, would cause pain in the head, radiating from the spot of the injury, and also, sometimes, loss of memory,-a degeneration of those cells supplying the nervous system." The appellant moved to strike out all the answer after the word "dizziness." The court overruled the motion, referring to the allegations of the complaint that the appellee's nervous system was wrecked, and that there was a concussion of the brain, and saying that, so far as paralysis could be traced to those conditions that it probably would result, was proper to be considered. This witness was further interrogated for the appellee as to the probabilities of ir

sanity from the injury or effect upon the nervous system, if any. The court, in overruling the appellant's objection, referred to the allegation of the complaint that the appellee's nervous system was shattered and wrecked, and the allegation of permanent injury, and the witness answered: "In my judgment, an injury like that may result in insanity. I do not see how I can answer the question any differently. The Court: It is not what it may result in. The question is, what will it probably result in,-insanity? Answer. Well, it may probably result in insanity; probably." The court overruled the appellant's motion to strike out the answer, and all that part of it relating to the probability of insanity.

It is contended on behalf of the appellant, with reference to the testimony here noticed of the two surgeons, that the appellee was permitted thereby to prove speculative or merely possible damages. On the examination in chief of Dr. Loring, he had not been interrogated upon the matter of paralysis. That subject was brought forward specifically by the appellant on the cross-examination, and it was not error to permit the appellee (as the court announced would be done) to pursue the inquiry in the re-examination, wherein the witness, in the answer to which objection was urged, merely amplified the causes of paralysis which he had mentioned in answer to the appellant's cross-examining questions. We are of the opinion that the court did not err in construing the complaint as sufficiently broad to admit of proof of paralysis and insanity as probable future effects of the injury described. The court, at different stages in the introduction of the evidence, enforced and emphasized the theory that there could be no recovery for merely possible or speculative injurious effects. The jury could not fail to have had this view of the matter clearly before them. It is true that, in an action sounding in damages, only such as are the legal results of the facts alleged ought to be allowed or proved; but under a general allegation of damages the plaintiff may prove and recover all those damages that naturally and directly result from the act of which complaint is made. The law implies that such general damages proceed from the act. See Railroad Co. v. Hecht, 115 Ind. 443, 17 N. E. 297; Manufacturing Co. v. Fields, 138 Ind. 58, 36 N. E. 529; Suth. Dam. § 1244. In an action for personal injury the plaintiff is entitled to recover a single compensation for all such consequences of his injury, future as well as past, including reasonable pecuniary satisfaction for loss of both bodily and mental powers. It is well settled by our decisions that in establishing the future physical and mental impairment for which damages may be recovered in such cases, by the testimony of duly qualified witnesses, they may be permitted to give their opinion as to the probability of such disability as a direct and natural effect of the in

jury in question. In Railway Co. v. Wood, 113 Ind. 544, 558, 14 N. E. 572, 580, it is said: "The questions asked the medical witnesses were as to the probable results that would follow from an injury described by the witnesses who testified on the trial. We understand it to be well settled that such questions are proper. The cases cited by counsel are directly against them, for they both concede that it is competent to ask an opinion as to probable results, although it is held that merely speculative opinions are not competent. See Gas Co. v. Baker, 146 Ind. 600, 45 N. E. 1049, 36 L. R. A. 683.

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The appellant on the trial had sought to impeach a witness for the appellee (one Levi Hutton, who resided at East Chicago, Lake county, Indiana, father-in-law of the appellee, who lived with the witness) by proof of a statement of the witness out of court. The appellee afterward, on the trial, introduced a witness (Solon French) who testified that he lived in Valparaiso, and had resided there more than 4 years before the trial; that before living in that place he had resided for 30 years near the county line in Union township; that he knew Levi Hutton, and at one time lived about 21⁄2 miles from him, and after that Hutton moved a mile further away; that he had known Hutton between 15 and 20 years, possibly longer; and that the witness was pretty generally acquainted in that part of the country. The witness was of the impression that Hutton left the neighborhood of the witness about a year or more before the witness came to Valparaiso. The court then, over objection, permitted the witness to testify that he thought he was acquainted with Hutton's general reputation for truth and veracity in that locality where he resided before he went to East Chicago, and that he thought it good. Another witness (William Freeman) called by the appellee testified that he lived at Valparaiso, where he had resided for 3 years, having before that time lived over adjoining Lake county, in Union township; that he had known Levi Hutton some 10 or 15 years; that for 3 or 4 years of his first acquaintance Hutton lived two miles, and after that perhaps four miles, from the witness; that the witness was generally acquainted in that neighborhood where he resided at that time, and had been so acquainted more than 40 years, and at the time of testifying was county assessor. The court then, over objection, permitted the witness to testify that he thought he was acquainted with Hutton's general reputation for truth and veracity at the time he lived down in the country, when he knew Hutton, in that neighborhood where Hutton resided, and that he thought it was good. Before the introduction of this testimony there was evidence that the general reputation for truth and veracity of Hutton was good at East Chicago, where he then resided. In Stratton v. State, 45 Ind. 468, it is said that it never has been held that the testimony concerning the character of a

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