Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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woman in consequence of threats.

Distinguished in Burton v. McMillan, 62 Fla. 469, 120 A. S. R. 220, 8 L.R-A.
(N.S.) 991, 42 So. 849, 11 A. & E. Ann. Cas. 380, holding maxim "in pari
delicto" inapplicable to case of married woman who sues to set aside deed of
her separate property made by her under threats to prosecute her husband,
whether lawfully or unlawfully, when she was sick and nervous and did not
have abundant opportunity to consider and take advice.
Denial of relief to wrong doer.

Cited in Fast v. McPherson, 98 111. 496, holding neither party allowed to
base right upon allegation of his or her participation in unlawful or fraudu-
lent act.

Cited in note in 113 A. S. R. 726, on rule of pari delicto.
Liability for misrepresentations.

Cited in notes in 85 A. S. R. 370, on liability for misrepresentations la-
directly made to complaining party; 86 A. S. R. 374, on liability of vendor for
misrepresentations indirectly made to vendee.

36 AM. REP. 151, ROY ▼. GOINGS, 96 ILL. 861.

Right to take possession under insecurity clause of chattel mortgage.

Cited in Feller v. McKillip, 109 Mo. App. 61, 81 S. W. 641; Sills v. Haww,
14 Colo. App. 157, 59 Pac. 422, — holding right of mortgagee to decide for him-
self whether he is unsafe in his security is subject to limitation that his judg-
ment must be exercised in good faith upon reasonable grounds or probable
cause; Hogan v. Akin, 181 111. 448, 55 N. E. 137, holding discretion given to
mortgagee is not arbitrary, but he must exercise his judgment in good faith,
and have grounds for feeling himself insecure which amount to probable cause:
Grady v. Smith, 14 111. App. 305, holding taking by mortgagee justified where
mortgagor was of doubtful responsibility, part of mortgaged property was in
possession of third person claiming same, part had been removed to another
county and mortgagor was about to remove and take the remainder; Ley v. Reitz,
26 111. App. 615, holding mortgagee must have had reasonable and probable
ground for feeling insecure; Slingo v. Steele- Wedeles Co. 82 111. App. 139,
holding seizure not justified where only change between time of giving mort-
gage and seizure was release of attachment levy on part of mortgaged property
on ground of its exemption; Tanton v. Boomgaarden, 111 IlL App. 37, hold-

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ing mortgagee must feel insecure from some reasonable or probable cause even
though mortgage provides he may foreclose before maturity if he feels insecure
**with or without apparent cause;" Watson v. Cudney, 144 111. App. 624, hold-
ing that in order to foreclose chattel mortgage under insecurity clause facts
must be stated showing reasons; Meyer v. Michaels, 69 Neb. 138, 95 N. VV. 63,
holding grounds must be such as did not exist or were not known to mortgagee
at time of taking mortgage; Allen v. Vose, 34 Hun, 57, holding where evidence
established that mortgagee in good faith believed himself insecure he had right
to take possession; Barrett v. Hart, 42 Ohio St. 42, 51 A. R. 801, holding
mortgagee should act in good faith, and his judgment should be controlled by
facts arising after making of mortgage, and in regard to condition of prop-
erty mortgaged; SchouweUer v. Hough, 7 S. D. 163, 63 N. W. 776, holding
mortgagees under mortgage giving right of foreclosure at any time property
mortgaged depreciated in value or they deemed themselves insecure, entitled to
relief in foreclosure proceedings upon proof of material depreciation or of other
facts sufficient to justify feeling of insecurity.

Cited in reference notes in 54 A. R. 718, on eflFect of chattel mortgage allow-
ing mortgagee to take possession when he deems himself insecure; 3 A. S. R.
289, on effect of chattel mortgage authorizing mortgagee to take possession
whenever he may "deem himself in danger of losing said debt."

Cited in notes in 17 L.R.A. 210; 51 A. R. 805, 806,— on effect of chattel
mortgage allowing mortgagee to take possession if he shall deem himself un-
safe; 23 L.R.A. 783, on effect of taking possession under "danger," "safety," or
"insecurity" clause in chattel mortgage.

Rights of mortgagee on taking property under terms of mortgage.

Cited in Aultman v. Silvis, 39 111. App. 164, holding where mortgage pro-
vides that if property is seized on mesne or final process during life of mort-
gage, mortgagee may declare whole debt due and immediately take property,
by acts of mortgagee in doing so, his right to immediate possession becomes

Contract rights determinable at discretion of party.

Cited in Bush v. Koll, 2 Colo. App. 48, 29 Pac. 919 (dissenting opinion),
on rule that law will say contracting party is satisfied with that which it
says he in reason ought to be satisfied with.
Effect of mortgage on after acquired property.

Cited in notes in 76 A. D. 723, on effect of mortgage on after-acquired
personal property; 76 A. D. 729, on effect of mortgagor's new act after acquisi-
tion of subsequently acquired property; 5 E. R. C. 138, as to what personal
property may be mortgaged.

86 A3f. REP. 157, OTIS ▼. GROSS, 96 Ilili. 612.
Rights of general depositor in case of bank's insolvency.

Cited in Mutual Acci. Asso. v. Jacobs, 141 111. 261, 33 A. S. R. 302, 16 L.R.A.
516, 31 N. E. 414 (affirming 43 111. App. 346), holding relation of debtor and
creditor is created by general deposit; Bayor v. American Trust & Sav. Bank,
157 111. 62, 41 N. E. 622, holding depositor whose deposit is evidenced by
certificate of deposit cannot in case of insolvency of bank recover full amount
from assignee of bank on ground of unperformed agreement of bank to create
specific fund; Shute v. Hinman, 34 Or. 578, 47 LJLA. ^-65, 58 Pac. 882, holding

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general deposit cannot be impressed with trust after -bank in whick it it
placed has made general assignment.

Cited in note in 5 L.R.A.(N.S.) 889, on right to preference in respect of piob-
lic'^funds deposited in bank which subsequently becomes insolvent.

Nature of deposit when made by officer of court.

Cited in Retan v. Union Trust Co. 134 Mich. 1, 95 N. W. 1006, holding
money deposited by register in chancery not special deposit.
Following trust funds.

Cited in Seiter v. Mowe, 182 111. 361, 66 N. E. 626, holding where trust foi^
have been so mingled with other moneys of trustee as to be indistinguishable,
cestui que trust cannot, in case of trustee's insolvency, enforce it as preferred
claim against trustee's assignee; Kneisley v. Weir,' 81 111. App. 251, holdlni;
when identity of trust fund is lost by intermingling priority is lost.

What constitutes special deposit.

Cited in notes in 86 A. 8. R. 779, on what constitutes a special deposit; 16
L.R.A. 616, on when deposit in bank is special so that title remains in de-

36 AM. REP. 162, FISHER ▼. VON BEHREN, 70 IND. 19.

Negligence of Illiterate person signing notes.

Cited in First Nat. Bank v. Hall, 129 Mo. App. 286, 108 S. W. 633, holding
party guilty of gross carelessness who, being unable to read, signed note with-
out having it read by members of his family present, believing it was con-
tract of different nature.
liiability on commercial paper negligently signed.

Cited in Pape v. Hartwig, 23 Ind. App. 333, 66 N. E. 271, holding one who
negligently signs negotiable note cannot defend against it in hands of bona
fide purchaser; First State Bank v. Borchers, 83 Neb. 630, 120 N. W. 142,
holding that person who signs negotiable paper without reading same or hav-
ing it read to him is liable to third person who is bona fide holder; Brown
V. Feldwert, 46 Or. 363, 80 Pac 414, holding fraud not available as defense
to maker, as against bona fide holder where maker was negligent in signing.

Cited in reference note in 37 A. R. 177, on effect of signed paper without

Cited in notes in 37 A. S. R. 469, on effect of negotiable instrument signed
without knowledge that it was such; 41 A. R. 608, on liability of one signing
instrument in ignorance of its contents; 36 L.R.A. 437, on what constitutes
negligence in execution of note precluding defense of fraud in procuring.

Rights of bona flde holder of negotiable note.

Cited in First Nat. Bank v. Johns, 22 W. Va. 620, 46 A. R. 506, holding
bona fide holder entitled to recover thereon, though it is of no validity betweoi
antecedent parties.

Cited in note in 11 A. S. R. 320, on rights of bona fide holder of negotiable
instrument mistakenly executed under false representations.
Right to rely upon representations.

Cited in note in 37 L.R.A. 599, on right to rely <m representations made to
effect contract as basis for charge of fraud where defrauded person bad meant
of knowing the truth.

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«« AM. REP. 166, liOGANSPORT v. DICK, 70 TSD, 65.
Obligation of city or county to keep highway safe.

Cited in Glantz v. South Bend, 106 Ind. 305, 6 N. E, 632; Bedford v. Neal,
143 Ind. 425, 41 N. E. 1029; Nappanee v. Ruckman, 7 Ind. App. 361, 34 N. E.
609; Crawfordsville v. Smith, 79 Ind. 308, 41 A. R. 612,— holding municipal
corporation is charged with duty of maintaining its streets and highways in
reasonably safe condition for persons using them; Turner v. Indianapolis, 96
Ind. 51, holding municipal corporations are under duty to keep streets in safe
condition for travel in usual mode and liable for special injuries resulting from
neglect to perform such duty; Patterson v. Austin, 16 Tex. Civ. App. 201, 39
S. W. 976, holding it is duty of municipality placing material for repairs in
street which is calculated to frighten horses of ordinary gentleness to place it
where such animals cannot see it or temporarily to close street.

Cited in note in 100 A. D. 360; 20 L.R.A.(N.S.) 547, 648, 599, 601,— on
liability of municipality for defects or obstructions in streets.
^Primary and absolute nature of the obligation.

Cited in Glasgow v. Gillenwaters, 113 Ky. 140, 67 S. W. 381; Southwell v.
Detroit, 74 Mich. 438, 42 N. W. 118; Omaha v. Jensen, 35 Neb. 68, 37 A. S. R.
432, 62 N. W. 833; Brusso v. Buffalo, 90 N. Y. 679; Circleville v. Neuding,
41 Ohio St. 466; McAllister v. Albany, 18 Or. 426, 23 Pac. 845; Birmingham
V. McCary, 84 Ala, 469, 4 So. 630, — holding city under duty of keeping its
streets in safe condition for public cannot escape liability by letting out work
to contractor; Jacksonville v. Drew, 19 Fla. 106, 46 A. R. 5, holding municipal
corporation is liable in damages, to parties receiving special injuries
by reason of its non-observance of duty, though work of repairs
is let by contract to another person; Indianapolis v. Doherty, 71
Ind. 5, holding liability cannot be escaped on ground that persons
misusing part of street for building purposes may themselves be liable to
persons injured by obstructions; Ft. Wayne v. Coombs, 107 Ind. 75, 67 A. R.
82, 7 N. E. 743, holding municipal corporation having it in its power to secure
its rights and protect property owners from injury which will probably result
from construction of sewer will be liable if failure to do its duty results
from wrongful surrender of its authority; Park v. Adams Co. 3 Ind. App. 536,
30 N. E. 147, holding county liable for injury due to negligence of contractor
in repairing bridge.

^lilablllty of employer for acts of independent contractor.

Cited in Martin v. St. Louis, I. M. & S. R. Co. 55 Ark. 510, 19 S. W. 314,
holding if thing in itself is unlawful, a nuisance per se or probably cannot
be done without necessarily doing damage, person causing it to be done by
independent contractor is liable for injuries due to it; Wabash, St. L. & P.
R. Co. v. Farver, 111 Ind. 195, 60 A. R. 696, 12 N. E. 296, holding if during
progress of work which does not necessarily create nuisance, third person sus-
tains injury by negligent use of means employed and controlled by independ-
ent contractor, employer is not liable; Evansville v. Senhenn, 151 Ind. 42,
68 A. S. R. 218, 41 L.R.A. 728, 47 N. E. 634, holding same and that the rule is
especially applicable v/here relation between person having work done and
person doing it is that of buyer and seller; Anderson v. Fleming, 160 Ind.
697, 66 L.R.A. 119, 67 N. E. 443, holding general rule that employer is not
liable for acts of independent contractor, does not apply where work to be
done under contract is intrinsically dangerous; Bloomington v. Wilson, 14

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Ind. App. 476, 43 N. E. 37, holding in absence of negli^nce in plans €4 tbe
improvement, city is not liable for act of contractor who, in making slope for
grade, allowed dirt to roll and remain on adjoining lot; Bohrer v. Dienhart
Harness Co. 19 Ind. App. 489, 49 N. E. 296 (dissenting opinion), on liability
of employer; Woodman v. Metropolitan R. Co. 149 Mass. 335, 14 A. S. R. 427.
4 L.R.A. 213, 21 N. E. 482, holding party made personally responsible for pre-
vention of cause of damage complained of is liable notwithstanding inter-
vention of independent contractor; Luce v. Holloway, 156 Cal. 162, 103 Pac
886, to the point that city is answerable for improperly guarded excavati«n
made by contractor in building sewer.

Cited in reference notes in 60 A. R. 701, on liability of employer for act of
contractor claimed to be nuisance; 76 A. S. R. 385, on nonliability for negli-
gence and other torts of independent contractors; 14 L.R.A. 830; 65 LuR-A. 645:
76 A. S. R. 421, — on liability for negligence of independent contractors in
blasting; 65 L.R.A. 638, on extent of employer's duty with respect to super-
vision and direction of work of independent contractor; 65 L.R,A. 651, oa
nonliability of employer for negligence of independent contractor in work
performed on streets and highways.

Distinguished in Park v. Adams County, 3 Ind. App. 536, 30 N. E. 147,
holding employer is liable for injury done by party exercising independent
employment when work contracted for is intrinsically dangerous; Symons t.
Allegany County, 105 Md. 254, 65 Atl. 1067, holding corporation of county
road directors not liable for injury caused by contractor in blasting rock at
distance from road to be used in road repairs.

Criticised in Blumb v. Kansas, 84 Mo. 112, 54 A. R. 87, holding city nor
liable for personal injury resulting from blasting done by contractor in street
while constructing sewer.
— liiability of municipality.

Cited in reference notes in 42 A. R. 780; 2 A. 8. R. 613,— on liability of
municipal corporation for acts of contractor employed by it; 36 A. R. 395.
on liability of city for negligence of contractor in repairing street.

Cited in notes in 30 A. S. R. 412, on municipal liability for negligence or
misconduct of contractors; 76 A. S. R. 419, on liability for negligence of in-
dependent contractors in performing work for cities; 66 L.R.A. 131, on lia
bility of municipality for acts of independent contractor employed on municipal
duties resulting from municipality's nonperformance of absolute duties.
Liability of city for negligence in connection with water works.

Cited in Aschoff v. Evansville, 34 Ind. App. 325, 72 N. E. 279, holding city-
supplying water to its citizens and charging therefor acts in private capacity,
though water- works system is also used for extinguishment of fires; Mendel
v. Wheeling, 28 W. Va. 233, 57 A. R. 664, on liability of municipal corpora-
tion for injury due to improper performance of work authorized by charter.

Cited in note in 61 L.R.A. 59, on liability for injuries resulting from pur-
chase or construction of municipal water plant.
•Tudicial knowledge of statute under which corporation Is organized.

Cited in Crawfordsville & S. W. Tump. Co. v. Fletcher, 104 Ind. 97, 2 N.
E. 243, as not overruling cases holding complaint or information against
corporation must state under what statute corporation was organized.
Duty to exercise official powers.

Cited in State v. Wood, 110 Ind. 82, 10 N. E. 639, holding board of eqnali»-

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tion having certain powers in regard to assessment of omitted property, is
under duty to exercise them in proper cases.
Duty of persons engaged in blasting.

Cited in Probst v. Hinesley, 133 Ky. 64, 117 S. W. 389, to the point that
blasting is inherently dangerous and person doing so is liable for injury to
adjoining property.

Cited in note in 17 L.R.A. 729, on duty of those engaged in blasting as to
safety of others.

Jury question whether structure obstructs highway.

Cited in Wheeler v.. Ft. Dodge, 131 Iowa, 666, 9 L.R.A.(N.S.) 146, 108 N.
W. 1057; Bybee v. State, 94 Ind. 443, 48 A. R. 175, - holding question is for

Cited in note in 36 L.R.A. 594, on question of nuisances declared such by
municipality as one of fact.
lilability of municipality for nuisances.

Cited in reference note in 52 A. R. 643, on liability of town or city for main-
taining nuisance.
Power of municipality regarding nuisances.

Cited in note in 39 L.R.A. 662, on municipal power over buildings and fences
as nuisances affecting highways.

Se AM. REP. 178, MOYNIHAN v. STATE, 70 IND. 126.
Degree of murder in case of killing during commission of felony.

Cited in Morgan v. State, 61 Neb. 672, 71 N. W. 788, holding conviction for
murder in first degree authorized where killing was done in perpetration of
rape; Henry v. State, 51 Neb. 149, 66 A. S. R. 450, 70 N. W. 924, holding kill-
ing need not amount to murder as distinguished from manslaughter in order
to constitute murder in first degree; Rhea v. State, 63 Neb. 461, 88 N. W. 789
(dissenting opinion 64 Neb. 889, 97 Nev. 1070), holding killing in perpetration
or attempted perpetration of robbery is murder in first degree, purpose to kill
being conclusively presumed.

Cited in reference note in 8 A. S. R. 426, on accidental killing of another
while attempting to commit suicide.

Cited in notes in 90 A. S. R. 579, on unintentional homicide in perpetrating
robbery; 63 L.R.A. 355, 358, on homicide in commission of felony.
Criminality of killing by poison.

Cited in People v. Milton, 145 Cal. 169, 78 Pac. 549, on necessity in cases of
killing by poison, to prove unlawful intent in giving it in order to establish

Criticized in State v. Wells, 61 Iowa, 629, 47 A. R. 822, 17 N. W. 90, hold-
ing prisoners who administered chloroform to prison guard in order to escape
from penitentiary guilty of murder in first degree.

Se AM. REP. 182, lilEBSCHUTZ ▼. MOORE, 70 IND. 14S.
Effect of assignment of sublease. ;

C^ted in note in 10 A. S. R. 561, on effects of assignment of sublease.

Se AM. REP. 186, FERGUSON ▼. SMETHERS, 70 IND. 519.
What constitutes seduction.

Cited in note in 44 A. D. 163, on what constitutes seduction.

Digitized by



Action by husband for wife^s seduction.

Cited in note in 44 A. D. 168» on liusband's right to sue for wife's aeductloe.
Measure of damages for seduction.

Cited in note in 44 A. D. 178, on measure of damages in action for sedoetioo.
Mitigation of damages for criminal conversation.

ated in Simpson v. Grayson, 54 Ark. 404, 26 A. S. R. 62, 16 S. W. 4, on
mitigation of damages by proof of wife's former unchastity.

Cited in notes in 44 A. D. 177; 13 A. S. R. 615,^^n evidence in mitigatior
of damages in action for seduction; 16 L.R. A. ( N.S. ) 743, on effect of fact that
the husband or wife of plaintiff in an action for alienation of affections or
criminal conversation was an active or aggressive party.

86 AM. REP. 188, PENNSYLVANIA CO. v. HENSIL, 70 IND. 569.
Predication of negligence upon breach of ordinance or statute.

Cited in Nickey v. Steuder, 164 Ind. 189, 73 N. E. 117, holding violation of
factory act by employment of child under fourteen in mill is negligence per se.
Cited in note in 5 L.R.A.(N.S.) 220, 222, on violation of police ordinance »
to speed of street car as ground for private action; 9 L.R.A.(N.S.) 339, on
disobedience of statute as actionable negligence.
— On breach of regulations as to railroad trains and signals.

Cited in South & North Ala. R. Co. v. Donovan, 84 Ala. 141, 4 So. 142, hold
ing failure to comply with city ordinance is negligence per se on part of rail-
road company; Indiana, B. & W. R. Co. v. Bamhart, 116 Ind. 399, 16 N. E. 121.
holding it is negligence per se to disregard obligation imposed by statute, said
rule having peculiar application to management of railroads and railroad
trains; Pittsburgh, C. C. & St. L. R. Co. v. Lightheiser, 163 Ind. 247, 71 X. E.
218; Jackson v. Kansas City, Ft. S. & M. R. Co. 157 Mo. 621, 80 A. S. R. 650,
58 S. W. 32; Pennsylvania Co. v. Horton, 132 Ind. 189, 31 N. E. 45,— holding it
i^ negligence per se to violate ordinance relative to management of railroad
locomotives and cars; Chicago, St. L. & P. R. Co. v. Fenn, 3 Ind. App. 250, 29
N. E. 790) holding omission to give statutory signals at highway crossings a
conclusive evidence of negligence upon part of railroad company; Louisville.
N. A. & C. R. Co. V. Ousler, 16 Ind. App. 232, 36 N. E. 290; Pittsburg, a C 4
St. L. R. Co. V. Shaw, 15 Ind. App. 173, 43 N. E. 957,-~holding such omissimi
is negligence per se; Louisville, N. A. & C. R. Co. v. Davis, 7 Ind. App. 2^ 33
N. E. 451, holding failure to comply with ordinance requiring ringing of loco-
motive bell constitutes conclusive negligence on part of railroad company;
Sluder v. St. Louis Transit Co. 189 Mo. 107, 5 L.R.A.(N.S.) 186, 88 S. W.
648 (dissenting opinion), on liability of railroad company for injury due to
its violation of city ordinance.
Duty of railroad company at crossing.

Cited in reference notes in 90 A. D. 63, on duty of railroad company to gire
statutory signals at crossing; 90 A. D. 65, on duty of railroad company to
maintain flagman at crossing; 1 A. S. R. 683, on duty to give warning signth
at railway crossing.

Cited in note in 9 L.R.A. 160, on statutory provisions requiring railroad
companies to ring bell or blow whistle.
Necessity of causal relation between wrong and actionable Injury.

Cited in Spiccr v. Hockman, 72 Ind. 120, holding party seeking to have flntl
settlement of an estate set aside on ground of fraud or mistake must have such

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interest therein as causes him to be injured by such fraud or mistake; Pitts-
burg, C. & St. L. R. Co. V. Conn, 104 Ind. 64, 3 N. E. 636; Louisville, N. A.
& C. R. Co. V. Thompson, 107 Ind. 442, 57 A. R. 120, 8 N. E. 18; Alexander v.
New Castle, 116 Ind. 51, 17 N. E. 200; Logansport v. Kihm, 159 Ind. 68, 64
N. E. 595; Chicago, R. I. & P. R. Co. v. Kennedy, 2 Kan. App. 693, 43 Pac. 802;
Philadelphia, W. & B. R. Co. v. Stebbing, 62 Md. 504; Greencastle v. Martin,
74 Ind. 449, 39 A. R. 93, — holding negligence must be connected with injury in
relation of proximate cause to effect in order to give right of recovery; Louis-
ville, N. A. & C. R. Co. V. Wood, 113 Ind. 544, 14 N. E. 572, holding there must
be a connection between the negligence and the injury; Southern R. Co. v.
Sittasen, 166 Ind. 257, 76 N. E. 973, on right to recover for injury of which de-
fendant's negligence was proximate cause; Louisville, E. & St. L. Consol. R.
Co. V. Berry, 9 Ind. App. 63, 35 N. E. 565 (dissenting opinion), on necessity of
showing that negligence was proximate cause of injury complained of; Toledo,
St. L. & W. R. Co. V. Berry, 31 Ind. App. 556, 68 N. E. 702, holding complaint
which simply charges that while car load of horses was standing on side track
in charge of railroad company they were injured, does not show proximate
cause of injury was railroad's neglect of duty to place car earlier at chute.

Cited in note in 36 A. S. R. 817, on necessary connection between defend-
ant's act and plaintiff's injury in case of breach of statutory duty.
— Failure to give signal at railroad crossing.

Cited in Leavitt v. Terre Haute & L R. Co. 5 Ind. App. 513, 31 N. E. 860, hold-
ing mere failure to give signal at crossing as engine approaches will not make
railroad liable for injury sustained at crossing, unless such failure is cause of
injury; Sullivan v. Missouri P. R. Co. 117 Mo. 214, 23 S. W. 149, on neces-
sity of showing negligent breach of duty imposed by ordinance was proximate
cause of injury.
Scope and validity of ordinance of municipal corporation.

ated in Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 10 A. S. R. 136, 20

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 104 of 123)