ulated by the terms of this contract is fla- | the case, there was no error in giving to the grantly out of proportion to the actual dam- jury the peremptory instruction.

ages suffered by plaintiff in the respects for which compensation was intended, as indicated by the language of the contract, viz., for the expense incurred in 'soliciting, in

The judgment is affirmed.

(No. 6,907.)

Oct. 24, 1911.)

1. APPEAL AND ERROR (§ 270*)—EXCEPTIONS— MOTION FOR NEW TRIAL.

Error in overruling a motion for a new trial cannot be assigned where no exception was taken to the ruling.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1759, 1760; Dec. Dig. § 270.*]

vestigating, and taking this order,' and CITY OF HUNTINGTON v. CLINE et al. should therefore be held a penalty. The parties by their language clearly show an inten- (Appellate Court of Indiana, Division No. 2. tion to provide compensation to plaintiff for the expense incurred by it in procuring and accepting the order; and, in the light of the evidence offered on the trial, it is beyond question that the sum of $450, being 15 per cent. of the purchase price of the machine, greatly exceeds any possible expense the company might have incurred in that respect. We have no right to go beyond the contract, and speculate upon the question whether the company might not have incurred expenses in other respects. The contract furnishes the data for what compensation was intended to be made, and the parties are necessarily limited to their written agreement. We do not, therefore, consider the many matters which counsel for plaintiff suggest the company might have taken into consideration in exacting this stipulation. Confining the question to the terms of the contract, and considering the stipulated damages to have reference, as the contract speaks, to expenses incurred in 'soliciting, investigating, and taking' the order, the question is free from serious doubt."

[2] At the hearing of the case before us it was shown in evidence that the appellee went to Lafayette, sought an interview with the agent of appellant, and gave the order, which was sent at once to the state manager at Indianapolis. Inquiries concerning the financial condition of appellee were addressed to bank and business men at Lafayette and Battle Ground, to which favorable replies were received. The order was then accepted, and forwarded to the home office at Racine, Wis. This was the extent of the work shown to have been done in soliciting, investigating, and taking the order. Upon

the trial the appellant directed all of its proof to showing full performance of the contract by it and a breach thereof by appellee.

2. APPEAL AND ERROR (§ 270*)—EXCEPTIONS BENEFIT OF EXCEPTIONS OF APPELLEE. Where the statement of the record in appellant's brief, which, under rules 22, 23, of the Supreme and Appellate Courts (55 N. E. Y, vi), is taken as true, shows no exception to the ruling on a motion for new trial, but in an amended or reply brief states that "this motion was by the court overruled, to which the defendant excepted, and the language of the record is 'that the court, being fully advised in the premises, overruled such motion for a new trial, to which ruling of the court the defendant excepts,' there is no exception of which appellant, who was plaintiff below, can take advantage.

Error, Dec. Dig. § 270.*]
[Ed. Note. For other cases, see Appeal and

Appeal from Circuit Court, Huntington
County; Levi Mock, Special Judge.

Action by the City of Huntington against John Q. Cline and others. From the judgment, the City of Huntington appeals. Af

firmed.

E. O. King and C. W. Watkins, for appellant. F. J. Lahr, Lesh & Lesh, Cline & Cline, and J. B. Kenner, for appellees.

IBACH, J. [1, 2] The errors assigned in this cause arise upon the overruling of appellant's motion for new trial. In appellant's original brief, it nowhere appears that appellant excepted to the ruling of the court on its motion for new trial. Such exception is necessary to save the question. Ewbank's Manual, § 54, and cases there cited. This omission having been pointed out by appellee, appellant in its reply brief asks leave to amend its original brief so as to show the page and line of the transcript setting forth the ruling on its motion for a new trial and exception thereto, and in its reply brief states that "this motion was by the court overruled, to which the defendant excepted, and the language of the record is 'that the court being fully advised in the premises overrules said motion for a new trial, to which ruling of the court the defendant excepts.'" Appellee concedes this to be a true statement of the record. Such being the condition of the record, no exception is shown of which appellant can take advantage, for

No proof of actual damage was offered, for the evident reason that, if the damages were stipulated in advance by the parties as contended by appellant, the amount so agreed upon constituted a positive debt for a fixed amount, and excluded evidence of actual damages. It was therefore the duty of the trial court, if satisfied that the contract was for liquidated damages, to submit to the jury only the controverted question of the breach; but, if satisfied that the damages provided for in the contract constituted a penalty, it was the duty of the court to instruct the jury to find for the appellee. The question of freight charges having been taken out of

appellant was plaintiff below, and an equently introduced, raising the question previception to a ruling taken by any one or all ously determined. of the several defendants would not benefit

1. LIMITATION OF ACTIONS (§ 127*)-AMEND-rable for failure to aver a duty on the part of MENT OF COMPLAINT-LIMITATIONS.

|

8. APPEAL AND ERROR (§ 206*)—QUESTIONS A former decision on appeal is the law of BELOW. the case on retrial only so far as it applies to Where evidence was admissible for any facts subsequently pleaded, or evidence subse-purpose, defendant could not object to a failure

to limit it to that purpose, in the absence of a quiring judgment, direction, control, or superrequest for a limiting instruction. vision.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1283-1289; Dec. Dig. 8 206.*]

9. MASTER ANd Servant (§ 190*)—INJURIES TO SERVANT-VICE PRINCIPAL-FELLOW SERV

ANT.

Defendant's railroad rules provided that extra trains were not shown on the time tables, and had no rights except those given by the train dispatcher, that they should not be run without orders from the dispatcher, and that all interurban trains must report to the dispatcher at certain sidings. Defendant's general trainmaster, while the general superintendent of transportation was absent and while therefore in full charge of transportation, took out an extra car, and while operating the same himself as motorman caused the car to come into collision with a car operated by plaintiff in the opposite direction, resulting in plaintiff's injuries. The trainmaster took out the car without notifying the dispatcher, and proceeded past one of the notification stations before reaching the point of collision without telephoning the dispatcher as required by rule; being unable to do so because the telephone line was not in working order, due to the inclemency of the weather. Held, that the trainmaster, though operating the car himself, did not for that reason cease to be a vice principal, and become plaintiff's fellow servant; since his act in taking out the car and operating it over the road without notice to the dispatcher was the act of a vice principal.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 190.*]

10. MASTER AND SERVANT (§ 185*)-INJURIES SERVANT-VICE PRINCIPAL FELLOW

ΤΟ

SERVANTS.

The same person may at one and the same time be both master and servant, where, though he is performing the act of a servant, he is also exercising a duty of the master.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 185.*]

11. MASTER AND SERVANT (§§ 101, 102*) – DUTY OF MASTER.

A master is bound not to expose his servants to perils or hazards which might have been provided against by due care while conducting his business.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 171-184; Dec. Dig. §§ 101, 102.*]

The court charged that if the jury believed that plaintiff's injuries complained of were the that defendant was negligent as charged, and "natural consequence" of such negligence, and such as might have been foreseen and reasonably anticipated as the result of such negli the proximate cause of the injury. Held not obgence, then the negligence would be regarded as jectionable as eliminating the factor of probin the word "natural," in connection with the ability; that element being sufficiently embodied qualifying clause, requiring that the consequence of the alleged negligence must have been foreseen and reasonably anticipated. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 291.*]

15. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-BURDEN OF PROOF.

In an action for injuries to an interurban railway motorman, caused by a collision with a car being operated in an opposite direction by the general trainmaster, an instruction that the burden was on defendant to show that plaintiff knew of the trainmaster's alleged incompetency was erroneous; the burden being on plaintiff to show that he had no such knowledge. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908; Dec. Dig. § 265.*]

16. APPEAL AND ERROR (§ 1066*)-INSTRUC

TIONS-PREJUDICE.

Where there was sufficient affirmative proof to justify a finding that plaintiff had no knowledge of the incompetency of defendant's trainmaster as proved, and there was no proof to the contrary, defendant was not prejudiced by

an instruction that the burden was on defendant to prove that plaintiff knew of such incompetency.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] Appeal from Circuit Court, Randolph County; James S. Engle, Judge.

Action by James A. Pring against the Indiana Union Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. A. Van Osdol and Kittinger & Diven, 12. MASTER AND SERVANT (§ 185*)-ACTS OF for appellant. Templer & Ogle and Koons &

SERVANT-SCOPE OF AUTHORITY.

When an employé acts as and for a master, and within the scope of his authority, he binds his master the same as if the master had acted himself, and, when a master delegates to a servant the performance of a duty which rests on the master alone, he is liable for the manner in which the duty is performed.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. 185.*]

Koons, for appellee.

HOTTEL, J. Action by appellee for damages on account of personal injury received in a collision while in the employ of appellant as checkman engaged in handling and checking freight and express matter upon one of appellant's electric cars. The case is before this court upon a second appeal; a former judgment in favor of appellee obtained in the Delaware circuit court having been reversed because of the insufficiency of the Whether the service performed which re- original complaint. After reversal an amendsulted in injury to plaintiff was in fact the serv- ed complaint in three paragraphs was filed ice of the master or of a fellow servant is not in the Delaware circuit court. A motion to to be determined by the manual or physical strike out parts of this complaint was first service rendered, but depends on whether, in addition to the physical service, the servant filed, which was overruled and exception causing the injury was performing a duty re- given to appellant, after which demurrers

13. MASTER AND SERVANT (§ 185*)-INJURIES TO SERVANT — NEGLIGENCE OF MASTER OR FELLOW SERVANT.

were filed to each paragraph, which were also overruled, and exception given to each ruling. The case was then put at issue by the answer in general denial and a special answer of the statute of limitation and reply in general denial. There was a trial by jury, verdict for appellee in the sum of $5,750, judgment on the verdict, motion for new trial overruled and exception by appellant, and appeal to this court.

ing order. That defendant and its train dispatcher and the said Mahoney well knew that fact, and that the said Mahoney, in the absence of the said Baldwin, undertook to, and did, man a car with a crew, and sent the same out as a wild car without a schedule, knowing the condition of said telephones and lines, that messages could not be sent over the same or received, and knowing that the car on which plaintiff was then engaged was The errors assigned and relied upon are between sidings 33 and 32, coming souththe rulings of the court upon the motion to ward, and the said Mahoney, knowing that strike out parts of the amended complaint, the train dispatcher did not know of his inthe demurrers to each paragraph of the com- tention to send out, take out, or cause to be plaint, and the motion for new trial. The taken out said wild car from Anderson to third paragraph of the amended complaint, Tipton, the defendant, acting through the covering 40 pages of appellee's brief, presents said Mahoney, as such trainmaster, carelessall the questions raised by this appeal so far ly and negligently failed to telephone from as the pleadings are concerned. The length the office of the said Mahoney to the disof this paragraph forbids a copy in this opin-patcher while at his office in the Union Block ion, and we will attempt to set out only that he was going to send out said car, and enough of the same to render intelligible our then and there negligently failed to go to disposition of said questions, and our reasons the office of the train dispatcher in said therefor. Union Block, and so notify him, and that the said Mahoney then and there negligently failed to give said dispatcher notice of the taking out of said wild car, and that the train dispatcher had no knowledge thereof, and did then and there decide for the defendant to man said car with one McDonald as its conductor and himself as motorman; * * * and 'did then and there order said

This paragraph alleges the corporate existence of the appellant, the nature and character of its business as a carrier, the employment of appellee, the nature and character of his duties, and the service required of him under his employment, the occurrence of the collision of the two cars, appellee's resulting injuries, and their nature and extent, and alleges, in addition the following further car from the defendant's barns, facts which we quote from appellant's sum- and did then and there order the said mary, viz.: "That at the time in question | McDonald as conductor, and himself as moall of defendant's express cars were run on torman, to proceed with said car and take orders issued by the defendant through its the same out * * * north bound, and, in train dispatcher by means of telephone. obedience to said orders, the said McDonald, That said Joseph Mahoney was in its em- as conductor on said car, and himself, the ploy as general trainmaster, with jurisdiction said Mahoney, motoring said car, and perover its entire system, and that he had au- forming the work of motorman in the actual thority to take cars to any point on its running of said car, proceeded with said car line, was authorized to employ and discharge northward to switch 30, * * and atmen, and do all things necessary to properly tempted for the first time to notify the dissuperintend defendant's business in the opera-patcher, and said telephones and lines were tive department, and was authorized to decide when, how, and under what conditions a special car should be sent out. That Charles Baldwin was its general superintendent of transportation. That the said Mahoney was next in authority and empowered to act in his stead in his absence. Avers that the of fice of the said Mahoney was in the Union Block in the city of Anderson, and avers the proximity of the office rooms of the dispatcher to Baldwin and Mahoney. That defendant's railway track from the city of Anderson to siding 30, which was located on the northern outskirts of said city, was a double track, at which were located two telephones, used by its motormen and conductors in communicating with its train dispatcher. That on the day in question it was cold, sleeting, raining, lightening, freezing, foggy, dark, and cloudy. Ice was frozen upon its telephone wires, and the electric current then prevail-ual work of motoring said car, to proceed ing made said telephone useless for directing the movement of its cars. That said tele

out of repair and in bad condition, as afore-
said, and useless.
Said message
could not be sent.' That from said switch
30 northward defendant's line is a single
track. That defendant had no rules by which
its employés out on its line could protect
themselves from collision with a wild car
going in an opposite direction, and no means
had been provided for such protection. The
complaint sets out a copy of the order upon
which the express car proceeded from siding
33 to 32. That the said Mahoney at said
siding 30, knowing that the dispatcher could
not be communicated with by telephone, 'then
and there decided to order said car to be
continued on its journey north bound upon
said single track line,
and negli-
gently ordered said crew, consisting of con-
ductor and McDonald and himself acting as
motorman in the doing of the physical, man-

northward from said switch 30.'" It is further alleged "that the negligence of the de

the said Joseph Mahoney as general train- | being the cause of appellee's injury is that master of the defendant acting for the de- of Mahoney. In this connection it must be fendant as such, as the agent and representa- remembered that this pleading alleges that tive of the defendant as aforesaid, and the at the time complained of appellant ran all negligence of said Mahoney while yet in its express and freight cars as extras or his office in failing to notify said train dis- specials without a schedule upon orders ispatcher of his intention to send out, take out, sued by appellant through its train dispatchor order out said wild car as aforesaid, uner by means of telephone. As tending to der all the conditions aforesaid, was the sole show the negligence of Mahoney's conduct and approximate cause of said collision and in such matter and the character and degree of plaintiff's said injuries received therein of that negligence, the pleader sets out as aforesaid; that said accident in detail the then existing weather conwas caused and plaintiff's injuries received ditions, and the conditions of the teleas aforesaid proximately and directly by the phones and lines as a result thereof, viz.: negligence of the defendant as aforesaid and "That it was cold, sleeting, raining, lightenby the negligence of the said Joseph Mahoney ing, freezing, foggy, dark, and cloudy," and as general trainmaster of the defendant as "that ice was frozen upon its telephone aforesaid and representative and agent of wires, and the electric current then prevailthe defendant as aforesaid, and without any ing made said telephones useless for directfault or negligence upon the part of the ing the movement of its cars; that said plaintiff." telephones and lines were then not in good working order; that defendant, its train dispatcher, and said Mahoney well knew that

The first error assigned presents the ruling of the court on the motion to strike out that part of the amended complaint which alleged the defective condition of the telephones and telephone lines. Appellant contends that these averments were absent from the original complaint, and now appear for the first time in the amended complaint, which was filed more than two years after the happening of the injury, and that under the law an amendment will not be permitted when it will operate to defeat the statute of limitations. Inasmuch as the same question is raised by appellant in its discussion of the evidence under the issue tendered by its answer of the statute of limitations, to avoid repetition we will at this point discuss the entire question presented by these allegations in this amended paragraph.

[1] While there may be some apparent conflict in the application of the law to particular cases, we think the general proposition contended for by appellant that an amendment will not be permitted when it will operate to defeat the statute of limitations is well settled by the decisions of this state. School Town of Monticello v. Grant, 104 Ind. 168, 1 N. E. 302; Fleenor et al. v. Taggart, 116 Ind. 189, 18 N. E. 606; Chicago, etc., Ry. Co. v. Bills, 118 Ind. 221, 20 N. E. 775; Blake v. Minkner, 136 Ind. 418, 36 N. E. 246; Fleming v. City of Anderson, 39 Ind. App. 343-344, 76 N. E. 266. [2] But do the allegations of this amended pleading supra relative to the appellant's telephones and telephone lines amount to an independent charge of negligence in this regard as a proximate cause of appellee's injury? A careful reading of these allegations discloses that their purpose and intent in the pleading is not to charge independent negligence of defective telephone equipment as the cause, or even as one of the causes, of the appellee's injury. It seems clear to us that the sole and only negligence charged

fact."

It will be observed from the synopsis of the complaint above that there is no charge that the appellant negligently or carelessly suffered or permitted its telephone line to get in such defective and useless condition, but the allegations are all to the effect that the telephone conditions alleged were temporary, the result of extreme, extraordinary, and unusual weather conditions over which the defendant had no control, and that, notwithstanding the extreme weather conditions and the telephone conditions resulting therefrom, "the said Mahoney, in the absence of said Baldwin, undertook to, and did, man a car with a crew, and sent the same out as a wild car without a schedule,

knowing the conditions of said telephones and lines, that messages could not be sent over the same or received." These allegations simply show, or tend to show, that, under the alleged prevailing weather conditions and the resulting telephonic conditions, it was negligence on Mahoney's part to send this car out in the first instance without first knowing that the train dispatcher could notify the car coming from the other direction, and also that Mahoney, before leaving his office or the station at Anderson, on account of said weather and telephone conditions, should have anticipated his inability to reach the train dispatcher by telephone from siding 30, thereby emphasizing the importance of his advising the train dispatcher of his intention to send out such car before leaving the office and of his conclusion to do so before leaving the station, and in this way and to this extent these allegations give character and degree to the negligent acts charged against Mahoney, but in no sense constitute an independent charge of negligence as the proximate cause, or as one of the proximate causes of the plaintiff's inju