ous death of the said T.," was not demurrable, | in the street, though open to criticism, was not on the ground that the death of aecedent was prejudically erroneous. averred by way of recital only. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 3. ELECTRICITY (§ 16*)-INJURY FROM ELECTRIC CURRENT-PROXIMATE CAUSE. Plaintiff's intestate was in the employ of a contractor engaged by defendant lighting company to haul away poles which it was removing from the street. While waiting for one of the poles, he placed his hand on a guy wire, and while in that position defendant's servants, in removing a pole, allowed a heavily charged electric wire to come in contact with the guy wire, causing intestate's death. Held, that the escape of the electric current was the proximate cause of the injury. [Ed. Note. For other cases, see Electricity, Dec. Dig. § 16.*] 4. ELECTRICITY (§_16*)-INJURY FROM ELECTRIC CURRENT-PROXIMATE CAUSE. A complaint against a lighting company alleged that plaintiff's intestate was in the employ of a contractor engaged by defendant to haul away poles which defendant was removing from the street after it had transferred its wires to new poles; that intestate, while waiting for a pole that was being moved by defendant's employés, took hold of a guy wire extending from the top of the pole to the ground, and while he was so holding it defendant's employés lifted the pole to remove it from the hole, and the guy wire was brought in contact with a heavily charged electric wire on the new pole, the insulation on which defendant had negli gently permitted to get out of repair, as the result of which the current was transmitted to the guy wire and into intestate's body, killing him instantly. Held, that the complaint stated a good cause of action; it being defendant's duty to anticipate that injury might result to persons in the street from contact with the guy wire. [Ed. Note. For other cases, see Electricity, Dec. Dig. § 16.*] 5. TRIAL (§ 256*)-INSTRUCTIONS-REQUESTS. A party, conceiving that instructions do not fully present all the issues to the jury, must request instructions which will supply the deficiency. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*] 6. APPEAL AND ERROR ( 1064*)-HARMLESS ERROR-INSTRUCTIONS. Where defendant lighting company negligently permitted a guy wire lying in the street to come in contact with a heavily charged electric wire, the insulation on which it failed to keep in repair, whereby plaintiff's intestate, who was rightfully in the street, was killed by coming in contact with the guy wire, an instruction that it was defendant's duty to keep its electric wires from coming in contact with persons [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1064.*] 7. ELECTRICITY (§ 18*)-INJURY FROM ELECTRIC CURRENT CONTRIBUTORY NEGLIGENCE -VOLUNTARY ACT. Plaintiff's intestate was in the employ of a contractor engaged by defendant electric lighting company to haul away poles which were being removed from the street, after the wires thereon had been transferred to new poles. Intestate was waiting with his team for a pole which was being taken down, when defendant's foreman requested him to assist in lowering the pole by pulling on a guy wire attached to the top of the pole. While complying with this request, the pole was raised to take it from the hole in such a way that the guy wire came in contact with a heavily charged electric wire on the new pole, the insulation on which defendant had negligently permitted to get out of repair, whereby the current was transmitted to the guy wire, and intestate was instantly killed. Held, that intestate was not an intermeddler or a volunteer, so as to preclude recovery. [Ed. Note. For other cases, see Electricity, Dec. Dig. § 18.*] 8. MASTER AND SERVANT (§ 193*)-INJURY TO SERVANT-FELLOW SERVANTS. Plaintiff's intestate was not a fellow servant of defendant's foreman. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 480-485; Dec. Dig. § 193.*] 9. APPEAL And Error (§ 756*)—Briefs-RULINGS ON EVIDENCE. Alleged error in admitting evidence will not be considered on appeal, where the error is not properly presented in appellant's brief. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 756.*] 10. TRIAL (§ 359*)-SPECIAL FINDINGS-CONFORMITY WITH GENERAL VERDICT. al verdict, unless the antagonism is apparent on Special findings will not control the generbeing removed by any evidence legitimately adthe face of the record beyond the possibility of missible under the issues. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 857-860; Dec. Dig. § 359.*] 11. DEATH (§ 105*)-FINDINGS OF JURY ITEMS OF DAMAGES. In an action for wrongful death, the jury should not be required to itemize and assess a separate amount for each element entering into the gross sum allowed; and where such itemization is required, and the findings thereon conflict with the general verdict, the latter will control. [Ed. Note. For other cases, see Death, Cent. Dig. § 149; Dec. Dig. § 105.*] 12. DEATH (8 87*)-DAMAGES-ELEMENTS. The elements of recovery by a mother for the death of her son, with whom she lived, receiving support, are not necessarily limited to support and maintenance, but may include compensation for personal services, which might have been rendered the mother by decedent, had he lived. [Ed. Note.-For other cases, see Death, Cent. Dig. § 115; Dec. Dig. § 87.*1 Appeal from Circuit Court, Porter County; Cornelius R. Collins, Special Judge. Action by Mary V. Tyler, administratrix of Harry B. Tyler, deceased, against the Valparaiso Lighting Company. From a judg For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes Bomberger, Sawyer & Curtis, Harry Call, and Sydney Stein, for appellant. H. H. Loring, for appellee. ment overruling a demurrer to the com- | fendant's servants, while working with the plaint, defendant appealed to the Appellate pole, negligently caused the top end thereof Court, which transferred the cause to the to come in contact with the defectively inSupreme Court, under Burns' Ann. St. 1908, sulated charged wire in such manner as to § 1405. Affirmed. let the current escape therefrom and be transmitted through the guy wire and body of decedent, thereby causing his instantaneous death. It is alleged that decedent was free from contributory negligence, and was ignorant of the dangers averred, and defendant had full knowledge of all the facts averred. It is further alleged that at the time of his death decedent was a minor, unmarried, and lived with his mother, and helped to support her. MORRIS, C. J. Appellee sued appellant for damages for personal injuries to her decedent, resulting in his death. The complaint was in five paragraphs. Appellant demurred to each paragraph thereof, which demurrer was overruled. The trial resulted in a verdict and judgment for plaintiff for $3,000. It is claimed that the court erred in overruling the demurrer. The complaint is verbose and unnecessarily long. The first paragraph alone covers 10 typewritten pages, but. disregarding the great mass of redundant matter, this paragraph does allege that on and prior to the day of the accident (April 4, 1907) defendant was operating an electric light plant in Valparaiso, which plant, among other things, consisted of wires, strung on poles 25 feet high, through which wires it constantly remitted deadly currents of electricity; that one of the poles stood in a street at a crossing; that in the street, and near the pole, a new pole had been set, and a wire thereon changed from the old to the new pole; that the old pole had attached thereto, at the top thereof, a guy wire 35 feet long, the other end of which had been formerly attached to an anchor, but was then lying loose on the ground in the street. It is further alleged that the electric light wire on said pole had formerly been insulated, but at that time the insulation was rotten, and had fallen off the portion of the wire in the vicinity of the pole, and by reason thereof there was nothing to resist the escape of the electric current from the wire at that point, and that condition had existed for six months. It is also alleged that decedent's next of kin were his mother and brother, who were damaged in the sum of $10,000. The old pole was set in the ground five feet deep. On the day of the accident, defendant, by its servants, was engaged in removing the old pole, by digging around it and lifting it out of the ground. While so engaged, defendant negligently permitted the deadly current to continue passing through the light wire on the new pole, which was close to the top of the old one. Plaintiff's decedent, at the time, was an employé of one Youngs, who had been hired by defendant to haul away the old pole, when taken out of the ground, and decedent arrived at the place while the workmen were digging, and was in the street, waiting to haul the pole away for his employer as soon as it was taken out of the ground. While so waiting, he took hold of the end of the guy wire ly taneous death of * the said * Tyler." Without commending the pleading, we think it was sufficient, as against the above objection, to repel a demurrer. Agar v. State, 94 N. E. 819, and cases cited. [2] It is also contended the complaint is insufficient, because it does not aver that the agents of defendant knew decedent had hold of the guy wire before the injury; and, further, because the company was not bound to maintain its wires, so that a person, not a traveler on the streets, who meddles therewith, shall not be injured. The demurrer admits decedent's freedom from contributory negligence, as alleged in the complaint. It also admits that decedent was lawfully in the street when injured. [3] The proximate cause of the injury was the escape of the current from the light wire. [4] In Indianapolis Light & Heat Company v. Dolby (App.) 92 N. E. 739, a current of electricity, at a voltage of 2,250, was permitted to escape from the light company's wires to the wires of a telephone company in the vicinity, and the current was thereby transmitted to a police patrol box. The injured party was a policeman, who, on attempting to open the charged patrol box, received an electric shock, causing his death. The Appellate Court, in its opinion, in discussing the duty of those conveying electricity at a high voltage, over wires in highways, to prevent the escape of the current from the wires, says: "When appellee shows that her intestate was killed by an electric current so conveyed from the dynamos of the light and heat company to the patrol box, she has made a prima facie case of negligence. This is the most conservative statement of the law that can be supported by authorities. might result, either to a traveler, or to one lawfully on the street, engaged as a laborer, or otherwise; and consequently the defendant owed a duty, not only to travelers, but also to others rightfully in the highway, to prevent injury to them resulting from the negligent escape of the electric current from its light wire to the guy wire. Beaning v. South Bend Electric Co. (1910) 45 Ind. App. 261, 90 N. E. 786, and cases cited. In view of appellant's duty in the premises, under the evidence, we do not think that appellant could have been harmed by the instruction, though it is subject to criticism. courts agree that, outside of any contractu- lying in the street, and that such injury al relation, the very nature of the business of transmitting such currents along highways imposes upon those engaged in it the legal duty to exercise for the protection of all persons lawfully using the highways the high degree of care commensurate with the danger incident to the proximity thereto of the wires charged with their visible but deadly power.' Walter v. Baltimore Electric Co., 109 Md. 513, 71 Atl. 953, 22 L. R. A (N. S.) 1181; Boyd v. Portland, etc., Co., 40 Or. 126, 66 Pac. 576, 57 L. R. A. 619; Her bert v. Lake Charles, etc., Co., 111 La. 522, 35 South. 731, 64 L. R. A. 101, 100 Am. St. Rep. 505; Simmons v. Shreveport, etc., Co., 116 La. 1033, 41 South. 248. The owner of a ferocious tiger is bound to confine it, and when it escapes and kills he is responsible. The high electric current is more deadly than any tiger. It kills by a touch, and its presence is only discovered when the mischief has been done, so that those who generate such currents ought, on principle, to be made insurers against damages thereby done. The authorities do not go this far, however, and for the purpose of this decision it is enough to hold that the facts heretofore summarized make a prima facie case." In our opinion, the first paragraph of complaint here stated a cause of action. [5] The instructions given by the court to the jury are set out in appellant's brief. Appellant claims the first instruction is erroneous, because it assumes that the jury knew what the issues were, when the court had not advised them thereof. This position is untenable. If the instruction given was not full enough to properly advise the jury of the issues, it was appellant's duty to request one which supplied the deficiency. [6] The fourteenth instruction given was as follows: "It was the duty of the defendant company to so keep its electric wires overhead in Valparaiso street, through which it transmitted a current of electricity, from coming in contact with persons rightfully using the streets of said city." It is claimed this instruction was not applicable, because there is no claim that the overhead wire came in contact with decedent; and, further, because decedent was not using the streets of the city, in the sense that gave him the protection due a traveler on a highway. The complaint alleges, and the evidence proves, that the current which caused decedent's death escaped from the light wire, and was transmitted through the loose guy wire, one end of which defendant had left lying in the street. The other end of the guy wire was fastened to the top of the old pole, and near the defectively insulated wire carrying the dangerous current. The defendant was bound to anticipate that if the two wires came in contact at the top of the poles injury might result to any one coming in [7, 8] The evidence shows that employés of appellant, working under a foreman named Van Ness, who had charge of the work of removing the old pole from the street, were engaged in that work immediately preceding the accident. Decedent, who had come to haul away the pole, left his employer's team some distance away, and Van Ness told him to come up and help get the pole out of the ground. The workmen had dug away the earth surrounding the pole, and were trying to pry it out. Tyler first tried prying, but the foreman told him he could do more by pulling on the guy wire. Tyler took hold of the guy wire. Van Ness instructed him in what direction to pull it, and he obeyed the instruction. The others thereupon began to pry the pole up with iron bars, when one of the iron braces of the crossarm attached to the old pole struck the electric light wire, and a spark flew out at the point of contact; at that instant Tyler fell, and died immediately. Appellant insists that Tyler was holding the guy wire at the request of Van Ness, appellant's working foreman, and this request was not binding on appellant; that decedent was a mere volunteer in assisting defendant's employés, and therefore defendant is not liable for the resulting injury. It is not necessary here to determine the scope of the authority of the foreman to bind the master in making the request. The evidence shows, without contradiction, that decedent's employer, Youngs, was hired to haul away the old poles at a stipulated price per pole, and decedent was employed by Youngs at a certain rate of wages per week. Tyler's employer was interested in getting the pole ready to haul away as soon as possible, and, in accelerating the work, Tyler's employer and defendant were mutually interested. Under such circumstances, Tyler, in assisting in the work of removing the pole, was not an intermeddler nor a volunteer, nor was he a fellow servant of Van Ness, so as to preclude a recovery for injuries proximately caused by defendant's servants. 4 Thompson on Negligence, §§ 4985, 4986, 4987; Cleveland, T. & V. R. Co. v. Marsh, 63 Ohio St. 236, 58 N. E. 821, 52 L. R. A. 142; Eason v. Sabine, etc., R. Co., cago, M. & St. P. R. Co., 50 Minn. 218, 52 | support and maintenance during the balance N. W. 647, 16 L. R. A. 861; Bonner v. Bryant, 79 Tex. 540, 15 S. W. 491, 23 Am. St. Rep. 361; Welch v. Maine Cent. R. Co., 86 Me. 552, 30 Atl. 116, 25 L. R. A. 658. [9] Appellant asserts error in the admission in evidence of certain mortality tables, but it has waived its right to a consideration of this point by failing to properly present the same in its brief. [10] It is contended that the answers to the interrogatories submitted to the jury show that decedent was guilty of contributory negligence; and therefore the court erred in overruling appellant's motion for judgment on said answers. This contention is based on the following interrogatories, and answers thereto: "(19) Was plaintiff's decedent holding a guy wire attached to said pole when he received the fatal shock? Ans. Yes. "(20) Did said decedent receive a shock from said wire, while holding the same, some minutes before he received the fatal shock? Ans. Yes. "(21) If you answer the last question, 'Yes,' did he know that he had received a shock at said time? Ans. Yes. "(22) After he had received said first shock, did he know there was an electric current in the wires running in the vicinity of said pole? Ans. No. "(23) After he had received said first shock, did he again take hold of said guy wire and attempt to assist in raising said pole? Ans. Yes. "(25) Were the electric wires, carrying a current of electricity at the time and place of the fatal injury of said decedent, known as insulated wires? Ans. Yes. "(26) Was the insulation badly worn and torn off of said wires at said place? Ans. Yes. "(27) If you answer the last question, 'Yes,' was said fact apparent to the ordinary observation of a person in that vicinity? Ans. Yes." It is settled beyond all controversy that the special findings of the jury will not control its general verdict, unless the antagonism is apparent on the face of the record beyond the possibility of being removed by any evidence legitimately admissible under the issues. Chicago, etc., R. Co. v. Lawrence, 169 Ind. 319, 79 N. E. 363, 82 N. E. 768. We cannot say that the special findings are such as to show contributory negligence under any evidence that might have been legitimately admitted. of her lifetime? Ans. $160 for 15 years." This interrogatory should not have been submitted to the jury. Damages are assessable for all the pecuniary loss, if any, sustained by the mother and brother of decedent (not, however, to exceed $10,000) which legitimately resulted from his death. The jury should not be required to itemize and assess a separate amount for each element entering into and making up the gross sum allowed. Ohio, etc., R. Co. v. Judy (1889) 120 Ind. 397, 22 N. E. 252; Muncie Pulp Co. v. Davis (1904) 162 Ind. 558, 70 N. E. 875; Cleveland. etc., R. Co. v. Miller (1905) 165 Ind. 381, 74 N. E. 509; Skillen v. Jones (1873) 44 Ind. 136. [12] Even if the interrogatory were a proper one, and if, under the issues, Mrs. Tyler were the sole beneficiary, the answer would not control the general verdict; for, where mother and son live together as members of a family, her damages are not necessarily limited to the support and maintenance lost by his death, but may include, also, compensation for personal services, which the jury would be warranted, under the evidence, in finding might have been rendered the mother by decedent, had he lived. Smith v. Mich. Cent. R. Co., 35 Ind. App. 188, 73 N. E. 928. The evidence supports the verdict, and there is no error in the record. Judgment affirmed. LARUE et al. v. AMERICAN DIESEL (Supreme Court of Indiana. Dec. 12, 1911.) 1. MORTGAGES (§ 436*)-INTERVENTION-ADVERSE CLAIMS. Burns' Ann. St. 1908, § 249, provides that the distinction between pleadings and practice in law and in equity is abolished; and sec tion 273 requires the court to cause other per sons not parties to the record to be made parties, where a complete determination of the controversy cannot be had without their presence; and section 273 declares that one not a party, but having an interest in the subjectmatter, which may be adversely affected, may come in on a proper showing to protect his interest. Held that, where a mortgagee of a lighting plant claimed that an oil engine and tract of sale for which the mortgagor had not appurtenances purchased under conditional conpaid was subject to the mortgage, the seller was properly permitted to intervene in foreclosure for the adjudication of its interest in the engine. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. 1289; Dec. Dig. § 436.*] 2. ACTION (§ 46*)-Joinder-LEGAL AND EQUITABLE REMEDIES. in the same case, and legal and equitable deLegal and equitable remedies may be joined fenses interposed. [11] It is further contended that the verdict for $3,000 is excessive in the sum of $600. This proposition is based on the finding of the jury, by its answer to an interrogatory, as follows: "(28) How much, if anything, did decedent's mother have a right to expect that he would contribute to her [Ed. Note. For other cases, see Action, Cent. Dig. §§ 449-468; Dec. Dig. § 46.*] PAL. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. 88 492-494; Dec. Dig. 8 137.*] 4. PRINCIPAL AND AGENT (§§ 116, 150*)-ACTS OF AGENT-SCOPE OF AUTHORITY. 3. PRINCIPAL AND AGENT (§ 137*) — ACTS OF | took from him a mortgage to secure the unAGENT-CONCLUSIVENESS AGAINST PRINCI paid purchase money. Default was made in Where intervener's general agent permitted payment, a suit was brought to foreclose the its local agent to represent to plaintiffs that mortgage, which proceedings ripened into a intervener had been paid for an oil engine pur- deed, upon a purchase by appellants at sherchased by such local agent for use in an elec-iff's sale. Upon filing the complaint for foretric light plant which he had purchased from closure a receiver was appointed and continplaintiffs, but which he procured to be conveyed to another, subject to a mortgage for the ued in possession under the order of the unpaid portion of the price, which mortgage court, pending the year for redemption. The provided that it should cover machinery subse decree of foreclosure was entered June 8, quently added to the plant, intervener could not thereafter claim title to the engine as 1905, and sale was made thereunder August against the mortgagees. 2, 1905. Appellee on March 26, 1906, by leave of court filed its petition under the original cause, to which it had not been made a party, for leave to file an intervening petition which was granted and notice ordered given to appellants returnable April 9, 1906. This was a petition claiming to be the owner of certain property put upon the property by Ingler after his purchase, to wit, an oil engine and appurtenances under a written contract that title should remain in appellee until full payment should be made. Appellants appeared and demurred to it upon the grounds of the want of jurisdiction of the court over the persons of appellants, and want of jurisdiction of the subject-matter, and insufficiency of facts to constitute a cause of action, and the overruling of these demurrers presents the first alleged error assigned, the contention of appellants being that, as it was a mere question of title, appellee was relegated to its action at law, and that its petition for intervention had no place in the proceedings in foreclosure. A principal cannot escape the results produced by the acts and declarations of its agent within the scope of his general employment, by general or secret instructions, or because such acts were in violation of express instructions. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 377, 3772, 556-563; Dec. Dig. §§ 116, 150.*] 5. FIXTURES (§ 20*)-MORTGAGEE. a Where an oil engine weighing 20 tons, purchased under a conditional contract of sale, was constructed in an electric light plant on concrete foundation, into which anchor bolts were vertically imbedded to a depth of six feet, and it could not be removed without breaking the foundation or cutting into it in different places at right angles to the bed plates of the engine, so that jacks could be placed under the bed plates at least twelve inches deep horizontally and twelve inches vertically, the engine constituted a fixture as between a mortgagee of the real estate and the conditional vendor. [Ed. Note. For other cases, see Fixtures, Cent. Dig. §§ 44-46; Dec. Dig. § 20.*] 6. MORTGAGES (§ 171*)-RECORD-NOTICE. The petition sets out the fact of appellants on October 1, 1904, being the owners of cerWhere a mortgage on an electric light tain real estate upon which was located maplant by its terms covered property to be put chinery for the generation of electricity, and into the plant, and was recorded at least three months before an oil engine sold by intervener on said day conveyed to one Ingler, and to be constructed in the plant was shipped, took back from him a purchase-money mortintervener had constructive notice of the mortgage to secure $20,000 in payments, which gage and acted at its peril. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 392-409; Dec. Dig. § 171.*] Appeal from Circuit Court, Howard County; J. F. Elliott, Judge. Bill by Gilbert Larue and others against one Ingler to foreclose a real estate mortgage in which the American Diesel Engine Company intervened. From a judgment in favor of intervener, complainants appeal. Reversed, with instructions. mortgage by its terms included "also all machinery, apparatus, and appliances of whatsoever description that may hereafter be placed upon said premises or installed as part of said lighting and power plant, or used as an adjunct thereto, until the mortgage has been fully paid and satisfied." It also included all wires, poles, and other appliances which were a part of the plant, and located on the property of other persons. Appellee then sets out that on the 26th day Transferred from the Appellate Court un- of September, 1904, a proposal was made to der section 1405, Burns' Ann. St. 1908. Wherry & Morgan, Bagot & Bagot, and Blacklidge, Wolf & Barnes, for appellants. Orlo L. Cline, James F. Morrison, and Joseph C. Herron, for appellee. Ingler for the sale to him, under a written contract to be subsequently accepted by an executive officer of appellee before it became binding on it, of an oil engine with its appurtenances on payments, and to install the same for a defined price. The contract MYERS, J. Appellants were the owners itself provides that: "It is mutually agreed of certain real estate in the town of Fair- and understood that title to the engine and mount, Grant county, Ind., upon which they equipment described in the above-specificahad constructed, and were operating an elections shall remain in said company (appellee) tric lighting plant as copartners. They sold until all of the said payments shall have the property to one Ingler on payments, and been made in full. The purchaser agrees to |