ment of all claims, which is made a part of | she present appellant with a statement or the third paragraph of answer. The second account of her services. Appellee attended paragraph of reply admits the payment of school a part, of the time she lived with ap$25, but charges that so much of the alleg-pellant, but could not read or write. After ed receipts as claims to be in full settlement she became 21 years old, she told appellant is fraudulent. Appellant insists in behalf of his demurrer that this is an effort to rescind the contract for fraud, without returning the amount paid. Many authorities are cited which uphold appellant's theory, but they have no application to the question here involved. Appellee had a right, by her theory, to give credit for the $25 as a partial payment and sue for the remainder I claimed to be due. She was not obliged to adopt the theory of the case urged by appellant. Home Insurance Co. v. Howard, 111 Ind. 544, 13 N. E. 103.

that she expected pay for her work, and did not, after arriving at that age, continue of her own will to live with appellant. After leaving his home, appellant learned that appellee was threatening him with a lawsuit, and sent his wife to see her and try to compromise it. Appellee met appellant's wife, but the latter did not tell her that she and her husband were getting old, and wished to avoid a lawsuit, therefore they would rather give her something to compromise; that they talked over the threatened suit, but a typewritten article (the receipt set out in appellant's third paragraph of answer) was not read to her by J. B. Marshall, and appellee did not sign said instrument after it was read to her, neither did appellant's wife, in the office of J. B. Marshall, pay her $25 in compromise of any claim or pretended claim she then had against appellant.

[4] Interrogatories Nos. 22 and 23 are drawn in such manner as might have a tendency to confuse the jury. On proper motion they should have been modified. As they stand, this court cannot find that the jury were not warranted in reaching the conclusion set out. These interrogatories are as follows:

"(22) When plaintiff and defendant's wife met and talked over the question of a threatened lawsuit against defendant, was there a typewritten article in words and figures following read by J. B. Marshall to plaintiff: 'Shoals, Ind. Sept. 18th, 1909. Received of James J. Kirklin and Mary Kirklin the sum of $50.00 in full of all claim or right of action for services rendered, or promise for service rendered. Ellen F. Clark.' Answer:

[2] Error is next assigned upon the refusal of the trial court to peremptorily instruct the jury to return a verdict for appellant. This instruction is neither set out in the brief, nor does it appear in the record. Under Rule 22 (55 N. E. v) and many decisions of this as well as the Supreme Court, this assignment cannot be considered. The record discloses a motion for a peremptory instruction, but the instruction does not appear. [3] It is also urged that the court erred in overruling appellant's motion for judgment in its favor upon the answers to interrogatories, notwithstanding the general verdict. There is no conflict between the general verdict and the answers to interrogatories, in fact, the answers go very far to disclose the motives which prompted the jury in reaching the general verdict. The objections urged thereto go rather to the sufficiency of the evidence to sustain the answers to the interrogatories. An examination of the record discloses that there was some evidence to sustain every answer made by the jury. Under the well-known rule, this court will not disturb answers to interrogatories where there was evidence from which the jury might have reached such conclusions. Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183. The jury was not confined to the mere statement of witnesses to reach conclu- It has been held that where an interrogasions with respect to the evidence, but might|tory double in form is propounded, without infer from circumstances proven the facts objection, and answered, it does not necessafound in answer to interrogatories. The jury rily follow that it must be disregarded on apfound, in substance, as follows: When about peal. Van Hook v. Young, 29 Ind. App. 471, nine years of age, appellee went to appel-64 N. E. 670. lant's home to live, and she had no other home until she left in 1909. She lived in the same house with appellant's family, ate at the same table, and she and appellant's wife prepared the meals, did milking, churning, washing, and other housework. Appellee kept no account or memorandum of the work she did, nor of the articles of clothing furnished her, and at no time asked appellant to pay her, or made any claim that he owed her wages. She made no such claim at the time she left appellant's home in 1909, nor at any time before bringing suit, neither did

No.

"(23) Did the plaintiff sign said instrument in writing and deliver it to defendant's wife after the same was read to her? Answer: No."

[5, 6] Under his motion for a new trial, appellant assigns that the verdict is not sustained by sufficient evidence and is contrary to law. As stated above, there is some evidence to support the verdict. On some points it may be held to be meager, yet this court cannot disturb the verdict if there is any evidence to support it. The evidence tends to show that appellee in this case was taken into appellant's family when she was a child 9 years old, and lived there continuously until she was 36, performing all sorts of labor about the house, as well as in the fields, all

Judgment affirmed.

(56 Ind. App. 77)

PARRY MFG. CO. v. CRULL. (No. 7,923.)1 (Appellate Court of Indiana, Division No. 2. May 9, 1913.)

1. TORTS (§ 22*) - JOINT AND SEVERAL LIABILITY-ELECTION-APPORTIONMENT.

at appellant's request. Some of the evidence [31, 62 N. E. 78; Baltimore, etc., R. Co. v. tends to show very strongly that she was Daegling, 30 Ind. App. 180, 65 N. E. 761. required to and did do a man's work in the fields. The jury had a right to believe this evidence, although it is very strongly assailed by appellant. It cannot be said there was a presumption indulged that she was to continue to live as a member of the family after she had reached the age of 21, especially, and the jury had a right to determine from the evidence in this case that she believed, expected, and was entitled to compensation for her services. Eppert v. Gardner, 48 Ind. App. 188, 93 N. E. 550. Appellee testified as follows: "She [meaning appellant's wife] said if I would stay there and work for them they would pay me well for my work." Appellee at that time was 18 years old. No amount was agreed upon or stated. Appellee also testified: "Well, he [meaning appellant] was talking, and said if I would stay there and work for them they would pay me well for my work." There is much conflict in the evidence, but that was a matter wholly for the jury, and this court cannot disturb a verdict on conflicting evidence.

Joint tort-feasors are jointly and severally liable for the entire damage, and the injur ed party may sue one or more, or all, at his election, and the courts will not attempt to apportion the damage among them. [Ed. Note. For other cases, see Torts, Cent. Dig. §§ 29, 31; Dec. Dig. § 22.*] 2. TORTS (§ 22*)-JOINT AND SEVERAL LIA

BILITY-SATISFACTION.

There can be but one recompense for a single injury, and where satisfaction has been received from one joint tort-feasor it inures to the benefit of the others.

[Ed. Note. For other cases, see Torts, Cent. Dig. §§ 29, 31; Dec. Dig. § 22.*] 3. RELEASE (§ 29*)-JOINT TORT-FEASORS.

The release of one of several joint tortfeasors by the injured party does not of itself release the others.

[Ed. Note. For other cases, see Release, Cent. Dig. §§ 64-70; Dec. Dig. § 29.*] 4. RELEASE (§ 37*) - JOINT TORT-FEASORS COVENANT NOT TO SUE-SATISFACTION PRO ΤΑΝΤΟ.

jured party received a certain amount in conWhere the agreement under which an insideration of a covenant not to sue one of two joint tort-feasors, provided that the amount paid was only a partial satisfaction, the other of the damage, but the payment made was merely a satisfaction pro tanto as to them.

In the case of Eppert v. Gardner, supra, the court quotes the following language from Crampton v. Logan, 28 Ind. App. 408, 63 N. E. 52: "And, if the circumstances authorized the person rendering the services reasonably to expect payment therefor by way of furtherance of the intention of the parties, or because reason and justice required compensation, the law will imply a contract therefor." It is further said: "There is some evi-tort-feasors were not relieved as to the residue dence tending to prove a contract between appellee and her father; at least enough to rebut the presumption that the services were rendered by her gratuitously, and the rule is well settled that where it is the province of the jury to decide questions of fact, that decision will not be disturbed, if there is any evidence presented to sustain the verdict." See, also, Wallace v. Long, 105 Ind. 522, 5 N. E. 666, 55 Am. Rep. 222; Story v. Story, 1 Ind. App. 284, 27 N. E. 573; Knight v. Knight, 6 Ind. App. 268, 33 N. E. 456; Forester v. Forester, 10 Ind. App. 680, 38 N. E. 426; Miller's Adm'r v. Miller, 47 Ind. App. 239, 94 N. E. 243.

[Ed. Note. For other cases, see Release, Cent. Dig. §§ 63, 71; Dec. Dig. § 37.*] 5. JUDGMENT ( 199*) — NOTWITHSTANDING VERDICT.

Where, in a negligence case, the court could not say as a matter of law, from the facts found in the answers to interrogatories, that plaintiff was guilty of contributory negliing a general verdict for plaintiff was properly gence, a judgment for defendant notwithstanddenied.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*] 6. APPEAL AND ERROR (§ 757*)—BrieF-PRESENTATION OF ERROR-SUFFICIENCY.

Where appellant complains only of partic ular instructions, he need set out in his brief only such instructions and not the entire charge.

Error, Cent. Dig. § 3092; Dec. Dig. § 757.*]
[Ed. Note. For other cases, see Appeal and
7. NEGLIGENCE (§ 65*)-PERSONAL INJURIES—
ASSUMPTION OF RISK.

The doctrine of assumption of risk does not apply where no contract relation existed between plaintiff and defendant at the time of injury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.*] 8. TORTS (§ 28*) - ACTIONS - INSTRUCTIONDAMAGES.

Where, in an action against one joint tortfeasor after settlement with another, the defendant's answer did not set up the payment made as a partial defense, failure of the court

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 1 Rehearing denied. Transfer to Supreme Court denied.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Abner D. Crull against the Parry Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. Wymond J. Beckett and Elliott & Elliott, all of Indianapolis, for appellee.

to instruct the jury to deduct such payment | manded compensation for said injuries in from plaintiff's damages was not error, where a sum greater than hereafter mentioned as they were instructed that they might consider it in fixing the damages to be awarded; the paid, and said Indianapolis Union Railway payment being properly considered as a partial Company denies that it or any of its servpayment and not in mitigation of damages. ants are guilty of any negligence whatever [Ed. Note.-For other cases, see Torts, Cent. in the premises, but nevertheless, it being the Dig. 88 35-37; Dec. Dig. § 28.*] desire of said Abner D. Crull, and said Indianapolis Union Railway Company to avoid litigation between them and the expenses thereof on account of said dispute and forever set at rest the differences so existing between them, but in such way that such settlement shall not impair or affect the claim of said Crull against any person or corporation other than said railway company for negligently causing or helping to cause the said injury: Now therefore, in LAIRY, J. Appellee recovered a judgment consideration of the premises, and of the in the lower court for personal injuries sussum of two thousand ($2,000) dollars to him tained by coming in contact with a post in hand paid by the said Indianapolis Railwhich was one of the supports of a coal bin way Company, the receipt of which he heremaintained by appellant near a private by acknowledges, the undersigned, the said switch, upon which he was engaged in Abner D. Crull, hereby covenants and agrees switching freight cars while in the employ for himself, his executor or executors, adminof the Belt Railroad. The complaint was in istrator or administrators, respectively to one paragraph. Defendant answered by a and with the said Indianapolis Union Railgeneral denial and also filed a second para- way Company that neither he, they, nor any graph of answer to which a demurrer for of them will ever sue or bring any action to want of facts was sustained. This ruling be brought against said Indianapolis Union presents the first question for our consider- Railway Company, on account of injuries ation. The second paragraph of answer pro-and damage to him occasioned by or growing ceeds upon the theory that appellant and out of the accident above described. In witthe Belt Railroad were liable, if at all, as ness whereof," etc. joint tort-feasors, and that after appellee received his injury he made a claim against the Belt Railroad for damages growing out of the same injury, and that it compromised the claim and paid to him the sum of $2,000 in cash which he received and still retains. The answer avers that, for the purpose of evidencing and accomplishing such transaction, the plaintiff and the railroad company entered into an agreement which is set out in the answer and is as follows: "Whereas on March 2, 1909, Abner D. Crull, the undersigned, now 63 years of age, was in the employ of the Indianapolis Union Railway Company as a brakeman, and at about noon on said day was working in the line of his duty on track No. 9, known as the North Track, at the coal bin of Parry Manufacturing Company's plant in the city of Indianapolis, Ind., and while standing on the step of a coal car that was being switched, was caught between a post in the coal bin near said track and the coal car on which he was standing and was seriously injured, sustaining a fracture of the left collar bone, bruises about the left hip, injury to the nervous system, especially to the left sciatic nerve and otherwise injured in his person, which injuries he claims are permanent; and whereas the undersigned, said Crull, claims that said injuries were caused by the negligence of said Indianapolis Union Railway Company and of other persons and corporations and without his fault, and has de

[1] The exact question presented by the demurrer to this paragraph of answer has never been passed upon by either of the courts of appeal of this state. It is well settled that joint tort-feasors are jointly and severally liable for the entire damage occasioned by their joint wrongful act. The in

jured party may seek his remedy against one alone, or more than one, or all, at his election, and the courts will not attempt to apportion the damage among the joint wrongdoers.

[2] It is equally well settled that there can be but one recompense for a single injury. If the injured party received a satisfaction from one who is liable for the entire damage, it inures to the benefit of all who are jointly and severally liable, and all are thereby released. Cleveland, etc., R. Co. v. Hilligoss, 171 Ind. 417, 86 N. E. 485, 131 Am. St. Rep. 258; Fleming v. McDonald, 50 Ind. 278, 19 Am. Rep. 711; Ashcraft v. · Knoblock, 146 Ind. 169, 45 N. E. 69.

If the second paragraph of answer shows a satisfaction and release of appellee's claim for damages by the railroad company, such release would inure to the benefit of appellant, and the answer must be held sufficient; but it is claimed on behalf of appellee that this paragraph of answer does not show either a satisfaction of the demand or a release of the claim, but, on the contrary, that it shows that the demand was only

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes