(185 Ind. 315) gate value of the property as it is assessed for HASKETT et al. v. TOWN OF SULPHUR taxation, exclusive of the improvements, and subject to be assessed, to pay for said proposed improvement." SPRINGS. (No. 22989.) (Supreme Court of Indiana. Nov. 9, 1916.) MUNICIPAL CORPORATIONS 459 STREET IMPROVEMENTS-LIMIT OF COST-Towns. The prohibition of Burns' Ann. St. 1914, § 8710, against contract for street improvement in a city of the first, second, or third classes, costing more than half the aggregate value of the property to be assessed, is not extended to towns by section 8959, providing that the provision of this act relating to improvement of streets in cities of the first, second, third, and fourth classes shall apply to improvements in cities of the fifth class and incorporated cities; this referring only to method of procedure. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1101; Dec. Dig. 459.] This prohibition was carried into the amendment of the section, in 1909, without any change in language that is pertinent to the question here involved. Acts 1909, pp. 413, 414; Section 8710, Burns 1914. * Appeal from Circuit Court, Henry Coun- troller by the city or town clerk, as the case ty; Willis S. Ellis, Special Judge. Suit by Charles F. Haskett and others against the Town of Sulphur Springs. From an adverse judgment, plaintiffs appeal. Affirmed. Forkner & Forkner, of New Castle, for appellants. Barnard & Brown, of New Castle, for appellee. MORRIS, J. Appellants are the owners of real estate abutting on Meridian street in the town of Sulphur Springs. In March, 1915, the board of trustees of the town adopted a resolution for the improvement of the street that will cost more than half the aggregate value of abutting property. It is contended by appellants that such improvement is prohibited by sections 107 and 265 of the municipal corporation act of 1905, as amended in 1909 and 1913. Acts 1905, p. 286; Acts 1909, p. 412; Acts 1913, p. 12; 88 8710, 8959, Burns' Stat. 1908 and 1914. may be.' This was followed by a specific method of procedure by councils and boards, relating to the adoption of improvement resolutions, notice, letting of contracts, etc. Further proceedings were expressly authorized according to the provisions of sections 108 to 120 of the act. The 1909 amendment of section 265 continued the provision we have quoted above, but omitted the provision relating to method of procedure by boards of trustees of towns, and councils of cities of the fifth class. Acts 1909, p. 412. The 1913 amendment of the section embodies the same quoted provision, and omits any separate method of procedure as authorized by the original section, but contains the following: "And the provision of this act relating to the improvement of streets and alleys in cities of apply to the improvement of streets and alleys in the first, second, third and fourth classes shall cities of the fifth class and incorporated towns, by grading," etc. (Italics ours.) counsel for appellants contend that it was the legislative intent to make the prohibition found in section 107 (section 8710, Burns 1914) against improving streets where the cost might exceed half the value of the abutting property, apply to towns and cities of the fifth class as well as to cities of the first, second, and third classes. The act of 1905 divided the cities of the state into five classes, according to populaBecause of this, and because the 1909 and tion. Section 8643, Burns 1914. It provid-1913 amendments of the section eliminate ed for the creation of a department of pub- the special procedure for towns and cities lic works in cities of the first, second, third, found in the section as originally enacted, and fourth classes. Section 8684, Burns 1914. In all cities of such classes, the board of public works was authorized to order and contract for the repair and improvement of streets. Section 8696, Burns 1914. In cities of the fifth class, and incorporated towns, which have no public works department, the authority to order street improvements was vested respectively in city councils and boards of trustees. Section 8959, Burns 1914. Section 107 of the original act (section 8710, Burns 1908) provides for a method of procedure in street improvements by boards of public works in all cities except those of the fifth class. The section contained three provisos, in the second of which is found the following inhibition: We are of the opinion that such position is untenable. The elimination from section 265 of the procedural method for towns and cities of the fifth class was doubtless made to secure a uniform method of procedure for street improvements, etc., in all municipal corporations. The language of the prohibitory clause in question, as originally enacted, and found in section 8710, Burns 1908, "Nor shall any contract be let for the im- was plainly applicable only to cities of the provement of any street in any city of the first, second or third class, the total cost of first three classes, although the section of which shall exceed fifty per cent. of the aggre- the act (section 107) furnished the only pro * * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cedural method adapted to cities of the that such bill does not contain all the instruc tions given. fourth class. Nor is appellants' contention materially helped by the new provision found in the 1913 amendment of section 265, heretofore quoted, for it does not purport to make applicable to towns and cities of the fifth class any provision of the act not applicable to cities of the fourth class. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2767, 2901, 3032; Dec. Dig. 1144(14).] 4. CRIMINAL LAW 1144(14)-APPEAL-PRESUMPTIONS-INSTRUCTIONS-CURE BY OTHER INSTRUCTIONS. Where the bill of exceptions does not contain all the instructions given, the presumption is that the substance of the instructions asked was embraced in the instructions given, and not contained in the bill of exceptions, and that if any given instruction set out in the bill is erroneous, it was corrected or withdrawn by other given instructions not set forth in the record. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2767, 2901, 3032; Dec. Dig. Even though the trial judge signs a bill of exceptions and directs it to be filed and made a part of the record, the rule is that unless such bill is thereafter actually filed with the clerk and the fact of filing affirmatively shown by the record, the exceptions are not properly presented for consideration. In the case of Martindale v. Town of Rochester (1908) 171 Ind. 250, 86 N. E. 321, involved the same question here presented. The case was decided previous to any amendment of either section of the act in controversy and held the prohibition not applicable to towns. The 1909 re-enactment of the prohibi-1144(14).] tory provisions, in the absence, as here, of 5. CRIMINAL LAW 1092(16)—APPEAL-BILL language to evince a contrary purpose, must OF EXCEPTIONS-EVIDENCE. be held as embodying this court's construction of the original provision. State v. Ensley, 177 Ind. 483, 97 N. E. 113, Ann. Cas. 1914D, 1306. The case of Gardiner v. City of Bluffton (1910) 173 Ind. 454, 89 N. E. 853, 90 N. E. 898, Ann. Cas. 1912A, 713, held the prohibitory provision in question not applicable to cities of the fifth class, and the 1913 amendment of section 265 (section 8959, Burns 1914) does not, in our opinion, furnish sufficient basis to support appellants' contention. Unless the attempted improvement was invalid, because of the statutory provision, the judgment should be affirmed. Whether considered alone, or in the light of the two opinions of this court, hereinbefore cited, we are constrained to hold that the statutory provision in question is not applicable to towns. Judgment affirmed. (185 Ind. 312) KING v. STATE. (No. 23020.) (Supreme Court of Indiana. Nov. 9, 1916.) 1. DRUGGISTS 12-SALES OF COCAINE-IN DICTMENT. Acts 1911, c. 27, made it unlawful to sell or give away any "cocaine, alpha or beta eucaine," or any other compounds of the same. Acts 1913, c. 118, amended the act including certain other drugs in its scope, and contained an error in punctuation in omitting a comma before alpha, which error was carried into Burns' Ann. St. 1914, § 2494a. There is no such drug as "cocaine alpha." Held, that an indictment under section 2494a was not subject to a motion to quash because not distinguishing between "cocaine alpha and beta eucaine." [Ed. Note. For other cases, see Druggists, Cent. Dig. § 11; Dec. Dig. 12.] 2. STATUTES 200 PUNCTUATION. CONSTRUCTION An error in punctuation may not prevent a proper construction of the act in which it oc curs. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 278; Dec. Dig. 200.] 3. CRIMINAL LAW 1144(14)—APPEAL-INSTRUCTIONS-PRESUMPTION. Where it is not affirmatively shown by the bill of exceptions that it contains all the given instructions, the Supreme Court must presume [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2846; Dec. Dig. ~1092(16).] Appeal from Criminal Court, Marion County; James A. Collins, Judge. Lorenzo D. King was convicted for an illegal sale of cocaine, and he appeals. Affirmed. William N. Harding and Alfred R. Hovey, both of Indianapolis, for appellant. Evan B. Stotsenburg, Atty. Gen., Omer S. Jackson and Wilbur T. Gruber, Asst. Attys. Gen., and Alvah J. Rucker, of Indianapolis, for the State. SPENCER, J. [1, 2] Appellant, a retail druggist, was tried and convicted on an indictment which charges him with an illegal sale of cocaine. He has appealed from the judgment of conviction, and alleges, first, that the trial court erred in overruling his motion to quash said indictment "for the reason that the same does not state facts sufficient to constitute a public offense under the law." The offense charged is that appellant, at a time and place fixed, unlawfully sold to one Myrtle Ward "cocaine, and derivatives, salts and compounds of cocaine." The contention of appellant is that under section 2494a, Burns 1914, an indictment, to be good as against a motion to quash, must distinguish between "cocaine alpha and beta cocaine." The statute in question was first enacted by the General Assembly of 1911 (Acts 1911, p. 45), and then made it unlawful "for any druggist or other person to retail, sell, or barter or give away any cocaine, alpha or beta eucaine, or any salt or any compound, or derivative of any of the foregoing substances," etc. In 1913 the act was amended so as to include within its scope certain other drugs, and to regulate further the sale of all such drugs (Acts 1913, p. 306), and, as so amended, it contains an error in punctuation which has been carried into the Compiled Statutes. Such an error, however, may not prevent a proper construction of the act in which it occurs. Collins v. State, 38 Ind. App. 625, 628, 78 N. E. 851; Maley v. Clark, 33 Ind. App. 149, 151, 70 N. E. 1005; Albright v. Payne, 43 Ohio St. 8, 13, 1 N. E. 16. There is no such drug as "cocaine alpha," but the distinction which the statute draws in fact is between cocaine and different grades of the chemical compound known as eucaine. The offense here charged is an illegal sale of cocaine, and the indictment properly follows the language of the act in question. [3, 4] Objection is next made to certain instructions given by the trial court to the jury. It does not appear, however, from the bill of exceptions containing these instructions, whether it includes all of the instructions given, and it is therefore incomplete. As said in State v. Winstandley, 151 Ind. 495, 496, 51 N. E. 1054: "When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384 [22 N. E. 320]. In such case the presumption is that the substance of the instructions asked was embraced in the instructions given by the court, which are not contained in the bill of exceptions, and that, if any instructions given by the court, and set out in the bill of exceptions, are erroneous, they were corrected or withdrawn by other instructions given by the court, and not set forth in the record." See, also, Lane v. State, 151 Ind. 511, 513, 51 N. E. 1056; Musgrave v. State, 133 Ind. 297, 312, 32 N. E. 885. IBACH, J. Appellant appeals from a judgment in favor of appellee for damages. Appellee moves this court to dismiss the appeal for the reason that appellant has failed to comply with the rules of this court in the preparation of its brief. A number of deficiencies are pointed out and claimed by appellee, of which it is necessary to refer only to the following: "Appellant has failed to set out under separate heading of each error relied on, separately support them." numbered propositions or points relied on to The "propositions of law contained in appellant's brief are vague, general statements, and no application is made in any one of them to any error relied on." An examination of appellant's brief supports appellee's contention as to the deficiencies above set out. Three errors are relied on for reversal, one of which is the ruling on the motion for a new trial containing 13 specifications or grounds. Under "Propositions of Law" in its brief appellant sets out a number of abstract propositions of law without any application whatever to any specific error or ruling relied on for reversal. [5] Finally, it is insisted that the court erred in admitting certain items of evidence over appellant's objection, but a consideration of these questions is precluded by the fact that the evidence is not properly in the record. Even though it appears that the trial judge has signed a bill of exceptions and directed that the same be filed and made a part of the record in the case, it is well settled that unless such bill is thereafter actually filed with the clerk, and the fact of such filing is affirmatively shown by the record, the exceptions are not properly presented for consideration. Donovan v. State, 111 N. E. Under the construction placed upon the 433; Hahn v. State, 113 N. E. 725 (23073, rules by both courts of appeal of our state decided this term). And the filing cannot be no question is presented. Chicago, etc., R. shown by recitals in the bill or by the file Co. v. Dinius, 180 Ind. 596, 103 N. E. 652; mark of the clerk thereon. Harris v. State, Fish v. Hetherington & Berner, 112 N. E. 155 Ind. 15, 17, 56 N. E. 916, and cases cited. 391; Briles v. Briles, 112 N. E. 449. Judgment affirmed. Appeal dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (65 Ind. App. 38) record on cross-examination of appellant at the trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. 1060 PINKUS v. PITTSBURGH, C., C. & ST. 1. APPEAL AND ERROR 760(2), 761-Brief A contention presented in appellant's brief by a mere abstract proposition of law, with no attempt to apply it to the question sought to be raised nor direction of the appellate court's attention to evidence in its support, is thereby waived. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3095, 3096; Dec. Dig. 760(2), 761.] PRESUMPTION. A trial court's ruling is presumed correct in the absence of affirmative showing to the contrary. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1771, 3670; Dec. Dig. 901.] 3. APPEAL AND ERROR 1061(4)-REVIEWHARMLESS ERROR-DIRECTION OF VERDICT. In action against a railway company and sleeping car company for loss of valuables through the sleeping car company's negligence, a directed verdict for the railway company was not prejudicial to plaintiff where the jury's verdict exonerated the sleeping car company from negligence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4211; Dec. Dig. 1061 (4).] 4. CARRIERS 413(1) PASSENGER'S Er FECTS-DELIVERY TO CARRIER. Where a passenger had not turned her valuables over to the carrier's servants, but merely placed them in an upper berth above her own berth, the carrier was not liable in conversion for their loss. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1583, 1585, 1588; Dec. Dig. 413(1).] 5. CARRIERS 401-PASSENGER'S EFFECTSIN PASSENGER'S POSSESSION-DUTY OF CARRIER. As to a passenger's ordinary personal effects retained in his possession, a carrier is not an insurer, but is liable only for loss or injury thereto resulting from its failure to exercise reasonable care and caution to protect the same. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1529; Dec. Dig. 401.] 6. CARRIERS 401-PASSENGER'S EFFECTSPROPERTY OF EXCEPTIONAL VALUE. When a passenger without the carrier's knowledge has in his possession and control large sums of money or other property of exceptional value, the carrier is not liable for loss or injury thereto from its negligence, since such articles form no part of the passenger's ordinary luggage or personal effects. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1529; Dec. Dig. 401.] 7. APPEAL AND ERROR 1060(1)—HARMLESS ERROR-ARGUMENT-READING FROM PAPER NOT IN EVIDENCE. That counsel in argument, over appellant's objections, read questions to and answers by appellant on cross-examination out of court before trial, and commented upon the same, was not prejudicial to appellant, although the examination was not in evidence, where the identical questions and answers had gone into the 8. APPEAL AND ERROR 1060(1)-HARMLESS ERROR-LIMITING ARGUMENT BY COUNSEL. In action against sleeping car company for loss of plaintiff's effects, it was not prejudicial to refuse plaintiff's counsel permission to comment to the jury on the invalidity of a provision of defendant's passenger check that "property taken into car will be entirely at owner's risk," where he was informed that he could read the court's instructions to the jury as the law of the case; such instructions having correctly stated defendant's responsibility for passenger's effects although not referring specifically to the check. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. 1060 (1).] Action by Leah G. Pinkus against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and another. From judgment for defendants, plaintiff appeals. Affirmed. L. E. Ritchey, of Franklin, for appellant. MORAN, J. On February 1, 1913, appellant and her husband took passage at Indianapolis on a Pullman car sleeper reserved for Jacksonville, Fla., en route to the Panama Canal. The car was owned and in charge of the servants of appellee the Pullman Company, to be transported over appellee Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company's line of railroad. Upon reaching Louisville, Ky., in the course of her journey, appellant discovered that a small box and its contents consisting of four rings and a lavaliere, all set with diamonds, which appellant carried with her as a part of her luggage, and of the probable value of $5,000, were missing. This action was instituted to recover the value thereof. The complaint as filed was in three paragraphs; the first was upon the theory that appellant purchased transportation and Pullman accommodations for a direct and continuous trip from Indianapolis, Ind., to Jacksonville, Fla., in the Pullman car; and on account of the negligence of appellees, appellant and her husband were compelled to hastily leave the train and Pullman car at Louisville, Ky., and by reason of the negligence of appellees in not carrying appellant to her destination, as agreed, appellant was compelled under stress of haste and excitement to leave the car and prevented from removing her jewelry therefrom. The theory of the second paragraph is that the jewelry was removed and stolen from an upper berth in the car, where it was placed with the assistance and knowledge of the porter of the Pullman car, through the negligence of the servants in charge of the car in failing to keep the proper watch and to exercise due care of appel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lant's property. The third paragraph charg-, 200; Nelson v. Illinois Central R. Co., 98 Miss. es appellees with the conversion of the jew- 295, 53 South. 619, 31 L. R. A. (N. S.) 689; Louisville, etc., R. R. Co. v. Katzenberger, 16 elry. Lea (Tenn.) 380, 1 S. W. 44, 57 Am. Rep. 232; Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. E. 841, Ann. Cas. 1913A, 894. An issue of fact was joined as to each paragraph of complaint by an answer of general denial being addressed thereto, and upon submission of the issues, thus joined, to a jury for trial, a verdict was returned for appellee the Pullman Company. From a judgment on the verdict, appellant seeks a review thereof, assigning as error the overruling of her motion for a new trial. In Pennsylvania, etc., Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, in speaking of the relation that the conductor and porter of a Pullman car bore to the railroad company, Justice Harlan said: "Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, is the negligence of the railroad com pany.' The court on its own motion, after the close of the argument of counsel, and by an instruction, withdrew from the consideration of the jury the first paragraph of complaint, and directed a verdict in favor of appel-ing car the railroad and the sleeping car comlee the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. [1, 2] Appellant in her brief under points and authorities seeks to question the action of the court in withdrawing from the consideration of the jury the first paragraph of complaint, in the following manner: "Where there is some evidence in support of one or more paragraphs of complaint, an instruction given to the jury as above is errone ous." And further it is said in 5 R. C. L. supra: "In cases where an injury occurs on a sleeppany are held to be jointly and severally liable." The evidence discloses that appellant throughout her journey from Indianapolis to Louisville was under the care of the servants of appellee the Pullman Company, and so far as the duties to be performed within the car where appellant and her husband were being transported were concerned, the evidence does not disclose that the servants of appellee railroad company proper had anyThis as an abstract proposition of law thing to do in this connection whatever. In may be well conceded, but there is no at- Pullman Palace Car Co. v. Pollock, 69 Tex. tempt to apply it to the question sought to be 120, 5 S. W. 814, 5 Am. St. Rep. 31, which raised, nor has our attention been directed is cited with approval in Voss v. Wagner to any evidence in support of the same. It is Palace Car Co., 16 Ind. App. 271, 279, 43 therefore waived. Further, it must be pre- N. E. 20, 44 N. E. 1010, it was held that sumed that there was no evidence supporting a sleeping car company was liable if it the issue joined as to the first paragraph of failed to exercise reasonable care in protectcomplaint, as the ruling of the trial court must be regarded as correct until it affirming the baggage of a passenger where the atively appears to the contrary. Elliott on the car was attached belonged to another same was stolen, although the train to which Appellate Proc. § 710. As to the giving of the instruction direct-in, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. company. See, also, Pullman Car Co. v. Gaving a verdict in favor of appellee, the Pitts298, 42 Am. St. Rep. 902. burgh, Cincinnati, Chicago & St. Louis Railway Company, appellant presents the same for our consideration under her motion for a new trial, having properly excepted to the giving thereof. The complaint alleges that both appellees are separate corporations, and upon trial of the cause it was agreed by the parties that appellee Pullman Company was the owner of the car upon which appellant took passage, and that the car was in charge of the employés of this company. [3] Although the parties in charge of the sleeping car in the case before us be regarded as the servants of appellee railroad company, under the law (Dwinelle v. N. Y., etc., R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; Railroad Co. v. Ray, 101 Tenn. 1, 46 S. W. 554), they would have to be guilty of the negligence charged in order to sustain a verdict under the second paragraph of complaint as against appellee railroad company. And the jury havIt has been held upon good authority that: servants from negligence by its verdict, aping exonerated the Pullman Company and its "A railroad company is not relieved from liability for the loss of the baggage of a passenger pellant was not harmed by the court directupon its train by the fact that, at the time of ing a verdict in favor of the appellee Pittsloss, he occupied space in the sleeping car, burgh, Cincinnati, Chicago & St. Louis Railwhich belonged to another company, if the car way Company. That is, if the Pullman Comwas in fact a part of the train, and was employed by it in performing its contract of trans-pany was the servant of the railroad comportation, for the agents and servants of the pany, and was free from negligence as found sleeping car company are regarded by the law by the verdict of the jury, then the railas agents of the railroad company for the pur- road company, if it be treated as the master, pose of the contract for transportation, and the law will not permit a railroad company through could not have been found guilty of negliany device or arrangement with the sleeping gence, had it remained as a party defendant car company, whose cars constitute a part of throughout the entire proceedings, considerits train, to escape the liability incurred by its contract." 5 R. C. L. 183; Kinsley v. Lake ing, of course, that the jury was properly Shore, etc., Co., 125 Mass. 54, 28 Am. Rep. instructed, as to this issue, and no other er |