visit was for the purpose of gambling. We are, however, of the opinion that an allegation in the affidavit in regard to the purpose for which the accused visited the house is not essential to its sufficiency. It will be noted that the statute in dispute is entirely silent in respect to the purpose for which the visit is made, and does not profess to make the offense therein declared or defined to depend upon any particular purpose which the accused person may have for visiting a gambling house. If the defendant in such a prosecution as this has any legitimate excuse justifying him under the law for making the visit with which he is charged, the burden rests upon him to advance or bring forward such an excuse as a defense. This view of the question is fully sustained by the authorities hereinafter cited in support of our holding upon another proposition.

It is further contended that the pleading is deficient, on a motion to quash, for the reason that it is not alleged therein that the defendant "knowingly" visited the gambling house. This averment, as a matter of pleading, was not essential. The statute, in defining the offense, employs neither the word "knowingly" nor any term the equivalent thereof. In fact, it does not make scienter or knowledge upon the part of the visitor, in respect to the character of the house he visits, a material element, so as to require the state to allege it in its pleading and prove it upon the trial. Generally speaking, the term "knowingly" in a criminal proceeding imports that the accused person knew what he was about, and, possessing such knowledge, proceeded to commit the crime of which he is charged. In case a statute, in defining a public offense, makes knowledge or scienter an essential element thereof, then the state, in a prosecution thereunder, must aver and prove such knowledge or notice against the accused person. Of course, if the defendant in this case innocently visited the gambling house in controversy, without having any knowledge or notice, either actual or constructive, of its character, or, in other words, had no knowledge or notice, actual or constructive, that it was a gambling house, then, under such circumstances, he would not, within the meaning or spirit of the law, be guilty of the offense with which he is charged, and would have the right, under a plea of not guilty, to interpose or set up such facts as a defense to the prosecution. It will be observed that the statute in positive terms declares any and all visits by a person to a gambling house or houses to be a penal offense, and, as any such visit prima facie or apparently is a violation of the law, any sufficient or legitimate excuse for making it must be shown by the defendant as a defense to the prosecution. The state in its pleading is not required to anticipate or negative any defense which he may have. This rule is fully supported by the following authorities: Donnell v. State, 2 Ind. 658;

State v. Kalb, 14 Ind. 403; Farbach v. State, 24 Ind. 77; Goetz v. State, 41 Ind. 162; Ward v. State, 48 Ind. 289; Payne v. State, 74 Ind. 203; Brow v. State, 103 Ind. 133, 2 N. E. 296; Werneke v. State, 50 Ind. 22: 1st Wharton's Crim. Law (10th Ed.) §§ 88. 89; State v. Cadwallader, 154 Ind. 607, 611, 57 N. E. 512, and authorities there cited: Bishop on Statutory Crimes (3d Ed.) § 1022; Mapes v. People, 69 Ill. 523; State v. Heck. 23 Minn. 549. See further cases collected and cited in the dissenting opinion of Woods and Elliott, JJ., in Schmidt v. State, 78 Ind. 41. In Payne v. State, supra, this court, by Elliott, J., said: "The facts stated in the indictment make a case within the statute: and, if there are any facts constituting a defense, the accused must show them. The state is not bound to anticipate defenses and aver facts rendering them unavailing. Excuses and justifications must come in by way of defense. There is no such a presumption of their existence as requires the state to allege that they do not exist."

We conclude, and so hold, that the affidavit in this case is sufficient as against any of the objections pointed out and urged by counsel for appellee.

It follows, therefore, that the court erred in sustaining the motion to quash, for which error the judgment is reversed, and the cause remanded, with instructions to the lower court to overrule the motion to quash the affidavit.

STATE v. HENSON. (No. 21,190.) (Supreme Court of Indiana. Oct. 8, 1908.) Appeal from Circuit Court, Orange County; Thos. B. Buskirk, Judge.

Dow Henson was charged upon affidavit with having visited a gambling house, in violation of section 470 of the public offense statute of 1905 (Laws 1905, p. 693, c. 169), being Burns' Ann St. 1908, § 2371. On his motion the affidavit was quashed, and judgment rendered discharging him, and the state appeals. Reversed, with instructions to overrule the motion to quash.

James Bingham, Atty. Gen., E. M. White, H. M. Dowling, A. G. Cavins, and Geo. W. MeMahan, for the State.

JORDAN, J. Appellee in this case is charged upon affidavit with having unlawfully visited a gambling house in Orange county, Ind., in violation of section 470 of the public offense statute of 1905 (Laws 1905, p. 693, c. 169), being section 2371, Burns' Ann. St. 1908. Upon his motion the affidavit was quashed, and judgment rendered discharging him without day. The state appeals, and assigns that the court erred in sustaining the motion to quash the affidavit.

The charging part of the affidavit in this case is identical with the one involved in State v. Bridgewater (No. 21,189, decided at this term) 85 N. E. 715. The same questions in regard to its sufficiency are presented and urged by counsel as were in the latter appeal. Upon the authority of the decision in that case, the affidavit herein in controversy must be held sufficient. The judgment below is reversed, with instructions to the lower court to overrule the motion to quash.

STATE v. LARTER. (No. 21,191.) (Supreme Court of Indiana. Oct. 15, 1908.) Appeal from Circuit Court, Orange County; Thomas B. Buskirk, Judge.

Mack Larter was charged on affidavit with having visited a gambling house, in violation of section 470 of the public offense statute of 1905 (Laws 1905, p. 693, c. 169) being Burns' Ann. St. 1908, § 2371. On his motion the affidavit was quashed, and the state appeals. Reversed, with instructions to overrule the motion to quash.

James Bingham, Geo. W. McMahan, E. M. White, H. M. Dowling, and A. G. Cavins, for the State.

The

JORDAN, J. Appellee in this case is charged upon affidavit with having unlawfully visited a gambling house in Orange county, Ind., in violation of section 470 of the public offense statute of 1905 (Laws 1905, p. 693, c. 169), being section 2371, Burns' Ann. St. 1908. Upon his motion the affidavit was quashed, and judgment rendered discharging him without day. state appeals, and assigns that the court erred in sustaining the motion to quash the affidavit. The charging part of the affidavit in this case is identical with the one involved in State v. Bridgewater (No. 21,189, decided at this term) 85 N. E. 715. The same questions in regard to its sufficiency are presented and urged by counsel as were in the latter appeal. Upon the authority of the decision in that case, the affidavit herein in controversy must be held sufficient.

The judgment below is reversed, with instructions to the lower court to overrule the motion to quash.

MODEL CLOTHING HOUSE v. HIRSCH. (No. 6,216.)

(Appellate Court of Indiana, Division No. 1. Oct. 6, 1908.)

1. PLEADING-ELECTION BETWEEN CAUSES OF

ACTION.

One seeking recovery on a contract of employment and on a quantum meruit need not elect at the close of evidence on which cause of action he will rely, though he testifies that there was a definite contract, since he is entitled to have all the evidence submitted to the jury. 2. APPEAL AND ERROR-REVIEW-WEIGHT OF EVIDENCE.

The court on appeal will not weigh conflicting oral evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.] 3. TRIAL EVIDENCE INSTRUCTION AP

PLICABILITY.

-

Where the complaint demanded a recovery on a contract of employment and on a quantum meruit, and there was evidence that plaintiff was in the employment of defendant during the time for which the arrears of salary were claimed and had performed services reasonably worth $30 per week, that he had been paid $20 per week, that the balance remained unpaid, and that the services had been performed at request of defendant's agent in behalf of defendant, the court properly instructed the jury as to a quantum meruit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-612.]

4. SAME-PREPONDERANCE OF EVIDENCE - IN

STRUCTIONS.

It is not improper to instruct the jury that preponderance of evidence does not depend on the number of witnesses.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 550.]

w

5. WITNESSES PRIVILEGED COMMUNICATIONS -ATTORNEY AND CLIENT.

Statements by a client to his attorney for communication to a third person are not confidential, and the attorney may testify thereto. [Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 763.]

6. CORPORATIONS-OFFICERS-AUTHORITY.

As between an employé and a corporation, a contract of employment made with the president of the corporation, who is empowered to employ the employés necessary to its regular business, is within the scope of the president's authority.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Corporations, § 1616.]

7. SAME.

The president of a corporation, having the power to hire employés to conduct the business of the corporation, has authority to increase the salary of such employés to retain them in the employment of the corporation.

8. TRIAL-IMPROPER CONDUCT OF JURY-QUOTIENT VERDICT EVIDENCE.

A party averred in his affidavit that the adverse verdict was a quotient verdict. Four jurors denied it, and stated the manner of reaching the amount awarded. The bailiff averred that the party was not in a position to hear what was said in the jury room. Held, that it was not error to refuse a new trial.

Appeal from Circuit Court, Lake County; Willis C. McMahan, Judge.

Action by David Hirsch against the Model Clothing House and others. From a judgment for plaintiff, defendant the Model Clothing House appeals. Affirmed.

Stinson Bros. and A. F. Knotts, for appellant. John A. Gavit, V. S. Reiter, and L. L. Bomberger, for appellee.

WATSON, J. Appellee brought this suit against the Model Clothing House, a corporation, Moses Rothschild, and Adolph Hirsch for wages due and unpaid. The complaint was in two paragraphs; the first alleging an oral contract between appellee and defendants below by which appellee was to receive $35 per week for his services from October 1, 1902, to October 10, 1905, that $2,365 were due him on said contract, but that said defendants refused and failed to pay said amount. The second paragraph alleged that $2,365 were due appellee for services rendered during the above period, being 157 weeks and 2 days; said services being reasonably worth $35 per week. The defendants separately demurred to the complaint for want of facts, but such demurrers were overruled. Defendants then filed an answer of general denial and payment. A demurrer to the answer of payment was overruled. The cause was tried before a jury, which returned a verdict for appellee and assessed damages in the sum of $1,609.45, and judgment was rendered thereon for said sum. A motion for new trial was sustained as to Moses Rothschild and Adolph Hirsch, but denied as to the Model Clothing House, whereupon an appeal was taken to this court by the last-named defendant.

The errors assigned and discussed are (1) overruling a motion to compel appellee to

elect upon which paragraph of the complaint he would depend for recovery; (2) giving the instructions given by the court of its own motion; (3) overruling the motion for a new trial; (4) judgment appealed from not fairly supported by the evidence and against the weight of evidence.

Appellant insists that since appellee testified that there was a definite contract, and appellee's attorney made the remark: "Yes, sir; we say there was"-meaning a definite contract, the trial court erred in not requiring appellee to elect, after the evidence was in, upon which paragraph of the complaint he would depend for recovery. Whether there was a definite contract was purely a question of fact for the jury. It was entirely within the province of the jury to determine, from all the evidence, whether a right to recover had been established upon either paragraph. If there was no evidence to warrant a recovery upon the second paragraph, the jury could so find; but appellee was entitled to have the evidence submitted for consideration. There was no error in submitting the evidence, with proper instructions, to the jury.

The objections to the instructions, except the fourth, given by the court of its own motion, were based upon the theory that there was no evidence upon which a verdict in quantum meruit could be reached. There was testimony to show that appellee was in the employment of appellant during the time for which the arrears in salary were claimed, and had performed the services alleged; that such services were reasonably worth $30 per week; that he had been paid only $20 per week during such period; that the balance was due and remained unpaid; and that said services had been performed at the request of appellant's agent, for and in behalf of appellant company. It is true that evidence was introduced to contradict that in favor of appellee; but, under the wellknown rule that this court will not weigh conflicting oral evidence (Schmoll v. Schenck, 40 Ind. App. 581, 88 N. E. 805, and cases cited), we cannot say that there was no evidence to support the averments of the second paragraph of the complaint. Consequently there was no error in instructing the jury in the law pertaining to the second paragraph.

The objection to the fourth instruction is not tenable, for the reason that it is not improper to instruct the jury that preponderance of evidence does not depend upon the number of witnesses. Howlett v. Dilts, 4 Ind. App. 23, 30 N. E. 313; Fritzinger v. State, 31 Ind. App. 350, 67 N. E. 1006.

Objection is also made to the testimony of one Gavit, appellee's attorney. It is contended that his testimony consisted of a confidential conversation between himself, as attorney, and Rothschild, one of the defendants. Gavit's testimony was as to statements made to him by Rothschild which he (Gavit)

was requested to communicate to appellee. Statements made, even by a client to his attorney, to be communicated to a third person, are not confidential within the meaning of the statute. Bruce v. Osgood, 113 Ind. 360, 14 N. E. 563. In the case at bar it is not established that the relation of attorney and client ever existed between Gavit and Rothschild.

Appellant also urges that the president of the company was not authorized to make the contract alleged. It is not denied that the president had the power to employ such employés as were necessary to conduct the regular business of the company. As between the employé and the corporation, such an employment was within the scope of the president's authority. Ceeder v. Loud & Sons Lumber Co., 86 Mich. 541, 49 N. W. 575, 24 Am. St. Rep. 134; Wait v. Nashua Armory Ass'n, 66 N. H. 581, 23 Atl. 77, 14 L. R. A. 356, 49 Am. St. Rep. 616; Oakes v. Cattaraugus Water Co., 143 N. Y. 430, 38 N. E. 461, 26 L. R. A. 544; Equitable Endowment Ass'n v. Fisher, 71 Md. 430, 18 Atl. 808; Northern Cent. R. Co. v. Bastian, 15 Md. 494; Richmond, etc., R. Co. v. Snead, 19 Grat. (Va.) 354, 100 Am. Dec. 670; Arapahoe, etc., Co. v. Stevens, 13 Colo. 534, 22 Pac. 823; Lee v. Pittsburgh, etc., Co., 56 How. Prac. (N. Y.) 373; Morawetz, Private Corporations, § 538. There is no intimation of fraud or collusion in the contract alleged. Neither is it shown that the contract was unreasonable or unconscionable. The only ground for objection, therefore, depends upon the president's authority to bind the corporation. If the president had the power to hire employés to conduct the firm business, which power is not questioned, it was within the scope of his employment to increase the salary of such employés in order to retain them in the firm's employment.

A further reason assigned for new trial is that the verdict was a chance or quotient verdict. Rothschild made affidavit to the effect that the verdict was arrived at by each juror setting the amount of damages which he deemed appellee entitled to have, then taking the sum of all such amounts, and dividing by 12; the quotient being the assessed damages. This affidavit was controverted by the affidavits of four members of the jury, denying that the damages were assessed in the manner alleged, but that they were determined by allowing appellee $30 per week for 157%1⁄2 weeks, and crediting defendants with $20 per week paid thereon; that interest was calculated on the amount so ascertained; and that the amount due, with interest, aggregated the sum assessed as damages. The bailiff of the court also made an affidavit to the effect that after the jury retired said Rothschild went to the door of the jury room for the purpose of trying to overhear what was said by the jurors; that affiant immediately followed him and requested him to depart therefrom, which he did; that Rothschild was not then in position to hear

what was said in the jury room; and that he did not go near said room thereafter. In view of all the affidavits submitted, it cannot be said as a matter of law that the trial court erred in refusing to grant a new trial for such reason.

A careful investigation of all the evidence convinces us that there was evidence to support the verdict, and we find no reversible error on the part of the court below.

The judgment is therefore affirmed.

the passenger, standing on the outer edge of the open car, is not one of peril, if the car, running at the rate of 12 miles per hour, is brought to a sudden stop by a quick, violent, backward motion, and that such position, under such circumstances, is one of peril, and that the court can say so as a matter of law, and that the jury will not be permitted to say to the contrary.

RICHMOND ST. & I. RY. CO. v. BEVERLEY. (No. 6,207.)

(Appellate Court of Indiana, Division No. 2. Oct. 6, 1908.)

1. NEGLIGENCE PROVINCE OF COURT AND

JURY.

Where a question of negligence depends upon facts and circumstances from which reasonable men might draw different conclusions, it is for the jury; but if the facts are undisputed, and admit but one reasonable inference, the question is for the court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Pleading, §§ 279-306.]

2. CARRIERS-STREET RAILROADS-ALIGHTING PASSENGERS.

As a matter of law the position of a street car passenger, standing on the outer edge of an open car running 12 miles an hour, is perilous, where the car is brought to a sudden stop by a quick, violent, backward motion.

On petition for rehearing. Petition overruled.

For former opinion, see 84 N. E. 558.

RABB, C. J. Appellant, in its petition for rehearing, earnestly insists that the court is in error in holding that the answer returned by the jury to the twenty-third interrogatory submitted to them is not in irreconcilable conflict with the general verdict. It is true, as appellant contends and as the authorities cited declare, that, where the question of negligence depends upon facts and circumstances from which reasonable men might draw different conclusions, then it is for the jury; but it is equally true that if the facts are undisputed, and of such character as to admit of but one reasonable inference, then the question is for the court.

The difficulty with this interrogatory is that, taking all the facts alleged in the complaint and those found in answer to the interrogatories to be true, and construing them most favorably to the appellee, as we are bound to do, it leaves the inference that it was reasonably probable that, under the circumstances of the case, the appellee would, after the signal to stop was given, arise from her seat and take a position near the outer edge of the car. But in the opinion of the jury this position thus taken was not one of peril, even though the car, running at the rate of 12 miles per hour, should be brought to a sudden stop by a quick, violent, backward motion. What we decide is that the jury may not infer that the position of 85 N.E.-46

SLIDER et al. v. INDIANAPOLIS & L.
TRACTION CO. (No. 6,410.)
(Appellate Court of Indiana, Division No. 2.
Oct. 7, 1908.)

On petition for rehearing. Overruled.
For former opinion, see 85 N. E. 372.

COMSTOCK, J. In the petition for rehearing and in the argument in support thereof it is said that the following statement in the opinion, to wit: "The court overruled each of said objections and appointed three disinterested freeholders of Clark county to assess damages which the owners of the real estate therein asked to be condemned might sustain and be entitled to by reason of such appropriation, to which appointment of appraisers the defendant excepted, and from the order overruling said objections, and the appointment of said appraisers, the defendants took this appeal"-is not sustained by the record. It is claimed that the appeal was not taken from the order following such objection and the appointment of said appraisers.

We quote from the record: "And the court, being advised in the premises, now appoints John Scheller, Robert Houser, and George D. Jackson, three disinterested freeholders of Clark county, Indiana, to assess the damages which the owners of the real estate herein asked to be condemned may sustain and be entitled to by reason of such appropriation, and the clerk of this court is directed to issue the proper notice and warrant to the said appraisers to make said appraisement under his hand and the seal of this court, which is now done. To which appointment of appraisers the defendants except, and from said order overruling said objections. and appointment of said appraisers, the defendants pray an appeal to the Appellate Court of Indiana, which appeal is granted by the court upon the defendants filing with the clerk of this court a bond in the penalty of $100, with sufficient surety, * * * said bond to be filed within ten days from the date hereof," etc. Said order was entered December 29, 1906, and on January 3, 1907, within the time fixed, the bond was duly filed and approved. The statement in the opinion, excepted to, is thus shown to be fully sustained by the record.

While further consideration (induced by the petition for a rehearing) of the questions presented by the appeal leads to the conclu

sion that it should be overruled, we deem it necessary only to refer to the alleged mistake of fact.

Petition overruled.

SANDY V. BOARD OF COM'RS OF MOR-
GAN COUNTY. (No. 6,431.)
(Appellate Court of Indiana, Division No. 2.
Oct. 6, 1908.)

JURISDICTION

COURTS STATUTES.

Under Acts 1901, p. 565, c. 247, as amended by Acts 1903, p. 280, c. 156, providing that no appeal shall be taken, where the amount in controversy does not exceed $50, except an appeal to the Supreme Court where there is a question duly presented involving the construction of a statute, the construction of a statute and whether the question of its construction is properly presented are solely within the jurisdiction of the Supreme Court.

Appeal from Circuit Court, Morgan County; Jos. W. Williams, Judge.

Action by William J. Sandy against the board of commissioners of Morgan county. From a judgment for defendant, plaintiff appeals. Transferred to the Supreme Court. N. A. Whitaker, for appellant. S. C. Kirett, for appellee.

COMSTOCK, J. Appellant brought suit against appellee to recover for services, alleged to be of the value of $25, in holding an autopsy on the body of one Raymond Bennett, upon the order and under the direction of the coroner of Morgan county. The demand was for $50. The cause was put at issue, and trial had, and judgment for costs rendered in favor of appellee. The action of the court in overruling the demurrer to the several paragraphs of the answer and appellant's motion for a new trial are assigned as errors.

Before considering the merits of the appeal, appellee denies the jurisdiction of this court, upon the ground that the claim does not exceed $50. By Acts 1903, p. 280, c. 156 (section 1337f, Burns' Ann. St. 1901), which is an amendment of Acts 1901, p. 565, c. 247 (section 1337a et seq. Burns' Ann. St. 1901), defining the jurisdiction of the Supreme and Appellate Courts, it is provided that: "No appeal shall hereafter be taken to the Supreme Court or Appellate Court in any civil case, where the amount in controversy exclusive of interest and costs does not exceed $50, except as provided in section 8 of this act." Said section 8 (section 1337h, Burns' Ann. St. 1901) reads as follows: "Any case in which there is a question and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guaranteed by the state or federal constitution, and which case would be otherwise unappealable by virtue of section six (6) or

one.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 56.] 2. SAME NOTICE-REQUISITES.

Where a mechanic's lien notice did not correctly state for what the lien was claimed or from whom the claim was due, it was fatally defective.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 234.]

3. SAME-MISTAKE-AMENDMENT.

Where a mechanic's lien claimant was neither in doubt nor mistaken as to the structure on which he worked when he filed his notice of lien and when he filed his complaint to foreclose the same, and the notice did not correctly state for what the lien was claimed nor from whom the debt was due, claimant was not entitled to have the notice reformed and foreclosed, merely because the mistake was due to the error of the attorney who prepared the notice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 275, 276.]

Appeal from Circuit Court, Tipton County; J. T. Elliott, Judge.

Action by William W. Roe and others against the Windfall Natural Gas, Mining & Oil Company and others. Judgment for plaintiffs, and defendants appeal. Reversed. with instructions.

Gifford & Gifford, for appellants. J. F. Pyke, for appellees.

HADLEY, J. This is an action brought by appellee to foreclose a mechanic's lien on a gas well and tubing and piping there in, and is a companion case to Windfall Natural Gas, Mining & Oil Company et al. v. Roe (Ind. App.) 84 N. E. 996. The ques tions presented in this case, however, are somewhat different from those in the case last cited. The notice, which formed the basis of the suit, was as follows: "To Windfall Natural Gas, Mining & Oil Company and All Others Concerned: You are hereby notified