of him, the said William." There is no averment in the complaint that said William was without fault or negligence on his part. Neither are facts stated therein showing that he was not guilty of any negligence at the time of the accident. The appellee recovered judgment in the court below.

The first question discussed by counsel for appellant in this court brings in review the action of the trial court in overruling the demurrer to the complaint. The objection urged against the complaint is that it fails to aver, as before suggested, that the injury and death of appellee's son was not contributed to by the negligence of the deceased. The general rule in relation to the effect of contributory negligence on the parent or child in such cases is stated by Messrs. Shearman & Redfield, as follows: "When a parent or master sues, for his own benefit, to recover damages for the technical loss of service caused to him by the injury of a child or servant, the contributory negligence of the actual plaintiff or his agent is, of course, a good defense, and in such an action any contributory negligence of the child or servant which would suffice to bar an action brought in his name will also preclude a re-covery by the parent or master." Shear. & R. Neg. (4th Ed.) § 71. The general rule in this state is that, in an action to recover damages on account of the death of one caused by the negligence of another, it is incumbent on the plaintiff to aver and prove that the intestate was without contributory fault on his part. Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 588, 23 N. E. 675; Lyons v. Railroad Co., 101 Ind. 419; Railway Co. v. Hiltzhauer, 99 Ind. 486; Williams v. Moray, 74 Ind. 25; Railway Co. v. Boland, 53 Ind. 398; Pennsylvania Co. v. Gallentine, 77 Ind. 322. Does the foregoing rule apply to this class of cases? In this connection it is necessary to consider what infants are non sui juris. Mr. Beach says: "Infants also, it may be said in general, belong to this class, but not all infants, very evidently. It is a question of capacity, and it has been found a very difficult question, and has been in many courts a very fruitful source of controversy, as to what age is sufficient to constitute an infant sui juris. less the child is exceeding young, it is usually left to the jury to determine the measure of care required of the particular child in the actual circumstances of the case. Where there is no doubt as to the capacity of the child, at one extreme or the other, to avoid danger, the court will decide it as a matter of law. Thus courts have held, as a matter of law, children of various ages, from one year and five months to seven years, non sui juris." Beach, Contrib. Neg. (2d Ed.) § 117; Shear. & R. Neg. § 73. See, also, Central Trust Co. v. Wabash, etc., R. Co., 31 Fed. 246; O'Flaherty v. Railway Co., 45 Mo. 70; Mangam v. Railroad Co., 38 N. Y. 455; Mascheck v. Railroad Co., 3 Mo. App. 600; Rail

Un

way Co. v. Caldwell, 74 Pa. St. 421; Railroad Co. v. Mahoney, 57 Pa. St. 187; McGary v. Loomis, 63 N. Y. 104; Lehman v. City of Brooklyn, 29 Barb. 234; McLain v. McLain, 39 N. Y. Super. Ct. 347; Gavin v. City of Chicago, 97 Ill. 66; Railroad Co. v. Harris, 67 Ala. 6. In this state it is held neeessary in actions in behalf of infants of tender years, to recover damages on account of injuries sustained by them through the negligence of another, to aver that there was no negligence contributing thereto on the part of the infant who prosecutes such suit. Higgins v. Railroad Co., 52 Ind. 110; Hathaway v. Railway Co., 46 Ind. 25. These decisions are based on the proposition that, when a child is so young as not to be sui juris, the negligence of his custodians is to be imputed to the child, and therefore the general averment in such cases that the injured child was without fault is sufficient to negative the imputed negligence of the parent or custodian. See Shear. & R. Neg. 74; Beach, Contrib. Neg. §§ 116, 118, 119, 122. It is now settled by the overwhelming weight of authority that a child is held, so far as he is personally concerned, only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. Shear. & R. Neg. § 73; Railway Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, and 10 N. E. 70. In the following cases in our own state, which were actions prosecuted by fathers for damages on account of the death of their children, ranging in ages from two years to seven years and two months, caused by the negligence of others, it was held that it was not necessary to aver that the child was free from fault: Railroad Co. v. Bowen, 49 Ind. 154; Railroad Co. v. Wolf, 59 Ind. 89; Railway Co. v. Vining, 27 Ind. 513; Railway Co. v. Pitzer, supra. Whether the rule referred to, imputing the negligence of the parent to the child, in actions prosecuted for and in behalf of the child, is a just or unjust rule, and whether it is supported or condemned by the weight of authority, we are not required in this action to determine.

The question which confronts us is whether, in an action by a father for damages sustained by him on account of the death of a son of the age of nine years, caused by the negligence of another, the general averment that the parents were free from contributory fault includes the averment that the child was also free from fault contributing thereto. A great many cases support the proposition that a boy, nine years of age, where it does not appear that he was in any respect deficient or incompetent is sui juris, and is bound to exercise that degree of care which can reasonably be expected of one of his age; that it is error in such case to hold, as question of law, that he is non sui juris; and that the jury must be allowed in such case to pass upon the question of contributory negligence, and that, in so doing, the age of the boy, with all the circumstances of

the case, should be considered by them. Jones v. Railroad Co., 36 Hun, 115; Ryan v. Railroad Co., 37 Hun, 186; Moynihan v. Whidden, 143 Mass. 287, 9 N. E. 645; Gillespie v. McGowan, 100 Pa. St. 144; McMahon v. Mayor, etc., of New York, 33 N. Y. 642; Twist v. Railroad Co., 39 Minn. 164, 39 N. W. 402; Messenger v. Dennie, 141 Mass. 335, 5 N. E. 283. In Twist v. Railroad Co., supra, the court says: "The law very properly holds that a child of such tender years as to be incapable of exercising judgment and discretion cannot be charged with contributory negligence, but this principle cannot be applied as a rule of law to all children, without regard to their age or mental capacity. Children may be liable for their torts or punished for their crimes, and they may be guilty of negligence, as well as adults. The law very humanely does not require the same degree of care on the part of a child as a person of mature years, but he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity; and the want of that degree of care is negligence. The fact that he may not have the mature judgment of an adult will not excuse a child from exercising the degree of judgment and discretion which he possesses, or from disregarding the warnings and orders of his seniors, and heedlessly rushing into known danger." The rule that, in actions by infants to recover damages for personal injuries, it is not necessary to aver in direct or express terms that the parents or cus todians were free from contributory fault, cannot be invoked in support of the proposition that it is not necessary, in an action by the father to recover damages on account of the death of his son, nine years of age, to aver in the complaint that such child was so injured without fault on his part. Neither is the rule of pleading in the cases cited, in which actions have been prosecuted by fathers for injuries sustained by children of tender years, in point in this case. The distinction between infants who are presumed to be non sui juris and those who are presumed to be sui juris grows out of the question of capacity. In those cases where, by reason of the tender years of the child, the courts can say, as a matter of law, that the injured child was non sui juris, it is not necessary in an action by the parent to either aver or prove that the child was without fault, but in those cases where the child has reached the age at which it cannot be conclusively presumed that he was not capable of negligence, then it is necessary, under our practice, to aver in such action that the child was without fault contributing to his injury, or to state such facts as will reasonably justify such an inference. Some degree of care may, in our opinion, be justly required from a boy nine years of age. What this degree of care may be in a given case is a question of fact for the jury. Whether

the legal presumption that a child of seven years is incapable of negligence is founded in reason we need not inquire. Just at what age the transition from non sui juris to sui juris is presumed by the law to take place we shall not attempt to determine in this case. Suffice it to say that, in our opinion, a boy nine years of age cannot be conclusively presumed, as a matter of law, to be incapableof contributory negligence. Therefore, in the light of the authorities cited, and for the reasons herein before given, we are of the opinion, under the rule of pleading in relation to contributory negligence which prevails in Indiana, it was necessary in this case to aver that the injury from which his death resulted was not caused by any fault on his part. In view of this conclusion, it is not necessary to consider any other question in the case. Judgment reversed, with instructions to sustain the demurrer to the complaint, with leave to amend, if desired, and for further proceedings not inconsistent with this opinion.

WALKUP et al. v. MAY. (Appellate Court of Indiana. March 16, 1894.) TEAMS MEETING ON HIGHWAY-FAILURE TO TURN OUT-NEGLIGENCE-SPECIAL VERDICT.

A special verdict finding that defendant, while driving a bus, at a trot, along a. street, met plaintiff, driving in the opposite direction; that defendant negligently failed to turn to the right, and give plaintiff half the street; that plaintiff was obliged to get out of the beaten track, where his sleigh, without his fault, was overturned; that at the point of passing the road on defendant's right was level for 15 feet from the traveled roadway; that there was an electric light within 40 yards of the place; that both parties were familiar with the place; and that all the damages were caused by defendant's negligence,-will not support a judgment for plaintiff, it not appearing that defendant did or could have seen plaintiff in time to turn out, or that plaintiff did not discover, in time to avoid the accident, that defendant was not going to turn out.

Appeal from circuit court, Montgomery county; J. F. Harney, Judge.

Action by Willis L. May against Rankin C. Walkup and others. Judgment for plaintiff. Defendants appeal. Reversed.

Kennedy & Kennedy, for appellants. White, Humphreys & Reeves, for appellee.

GAVIN, J. Appellee sued the appellants for damages resulting from the negligent failure of appellants' servant to turn his team to the right when he met appellee driving upon a public highway. There was a trial by jury, and a special verdict, on which judgment was rendered in appellee's favor. The correctness of the court's action upon the special verdict is the only question we are called upon to consider. In order to justify a recovery by the party upon whom rests the burden of proof, the special finding or verdict must contain all the facts essen tial to such recovery. The verdict must find

the facts, and not the evidence merely; not conclusions of law, which, if found, must be disregarded. Railway Co. v. Castello (Ind. App.) 36 N. E. 299; Sweetzer v. Snodgrass (Ind. App.) 34 N. E. 842; Railway Co. v. Burger, 124 Ind. 275, 24 N. E. 981; Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956. The law of the road requires travelers in vehicles on public highways to keep to the right when they meet, and it also requires, as a general rule, that each should give half the road. Rev. St. 1894, § 6837; Beach, Contrib. Neg. §§ 282, 283, and cases there cited; 12 Am. & Eng. Enc. Law, 957 et seq. If one negligently fails to give his share of the road, and a collision and damage occur thereby, or if damages occur in the effort to avoid a collision, he must answer for his negligence. The cause of action of the party injured arises from the negligence of the other, and so as in other actions for negligence it is incumbent upon him to prove negligence upon the defendant's part, as the proximate cause of the injury and freedom from contributory negligence upon his own part. Parker v. Adams, 12 Metc. (Mass.) 415; Beach, Contrib. Neg. supra; 12 Am. & Eng. Enc. Law, supra, and cases there cited. Keeping these propositions of law in mind, we proceed to examine the special verdict. From it we learn that on February 4, 1893, appellants' servant, Sharpe, was driving a bus on Water street, in Crawfordsville, and met appellee driving his mare hitched to a small sleigh and going in the opposite direction; "that said Sharpe was driving said bus in a careless and negligent manner, and said Sharpe negligently failed and refused to turn to the right, or to give plaintiff one-half of said street;" that to avoid a collision appellee was compelled to give more than half the road, and get out of the beaten track, and upon the slanting side of the road, where his sleigh, without any fault or negligence upon his part, slid into a ditch, whereby his sleigh was overturned, and certain damage resulted; that at the point where the teams passed one another the street upon Sharpe's right was level for a distance of 15 feet from the traveled roadway; that Sharpe failed to give any of the road; that there was an electric light about 40 yards from the place, which was lighted; that Sharpe was driving in a trot, and both parties were familiar with the surroundings and condition of the street; that all of the damage "was caused by the carelessness and negligence of said Sharpe, and without any fault or negligence on the part of plaintiff." This is all of the finding which in any manner throws light upon the conduct of appellants or their servant. From these facts we are unable to see how an inference of negligence can be drawn against appellants. Their driver had certainly the right to drive his bus along the street in the traveled way in a trot, nor was he under any obligation to turn aside, unless the presence of appellee

upon the road was known to him, or ought to have been. The verdict does not show how far the parties had traveled upon this street in either direction. For aught that appears, appellee may have turned into it the instant before the parties met. It does not show that Sharpe saw appellee before the accident, nor in time to have turned out for him. Neither does it appear that it was light enough for him to see him, nor that he was not on the lookout. It is true, an electric light was lighted 40 yards away, but whether its light reached this place does not appear. It may have been obstructed by trees, or around the corner, so far as the verdict shows. In the facts found there is absolutely nothing to show that Sharpe was apprised of the appellee's approach, or could have learned of it in time to have avoided the accident. The statement that Sharpe was driving in a "negligent" manner, and "negligently" failed to turn out, cannot supply the want of the facts showing negligence. Railway Co. v. Burger, 124 Ind. 275, 24 N. E. 981. In Railroad Co. v. Spencer, 98 Ind. 186, it is said: "It is not sufficient to state facts not in themselves constituting negligence, and then by an epithet or conclusion of law characterize them as negligent, but the facts must be so stated as to afford the court grounds for adjudging that the law is that they do constitute negligence." In Railway Co. v. Grames, 135 Ind. —, 34 N. E. 714, on page 718, Judge Coffey says of this and another case: "The two first cases hold, and we think correctly, that a general statement of the jury in a special verdict, to the effect that a particular act was or was not negligent, is the statement of a mere conclusion, and will be ignored by the court." The supreme court in that decision recognize that there are cases where it is the province of the jury to determine the question of negligence as an ultimate inferential fact, this right existing where the facts are such that different conclusions may reasonably be drawn from them. Railway Co. v. Castello, supra. It is, however, in such cases, essential that the jury should set out in their verdict both the primary and the final inferential facts, in order that the court may determine whether or not different conclusions may reasonably be drawn from the primary facts. Since it is our conclusion that no negligence is found against appellant, it is unnecessary that we should take up in detail the findings upon the subject of contributory negligence. The rules which are laid down as governing the question of negligence apply equally to that of contributory negligence. The same care should be observed in seeing that the facts are fully set forth, so that, if negligence or want of negligence is found as an inferential fact, this court may know the basis upon which such finding rests. We are unable to see that the cases of Railroad Co. v. Brunker, 128 Ind. 542, 26 N. E. 178, and Conner v. Railway Co., 105 Ind. 62, 4 N. E. 441, lend any substantial aid to appellee's po

sition. Whether or not appellee was guilty of contributory negligence would depend largely upon his distance from Sharpe when he discovered that he was not going to turn out. The judgment is reversed, with instructions to the trial court to sustain a motion for new trial by appellants.

ROSS, J., concurs in the result.

KETTRY v. THUMMA. (Appellate Court of Indiana. March 17, 1894.) PLEADING AND PROOF-ASSUMPSIT-IMPLIED CON

TRACT.

1. Though Rev. St. 1894, § 2479, entitles defendant to give any matter by way of answer, except set-off or counterclaim, without pleading it, there is no error in a charge limiting the issues to those made by the pleadings where in fact defendant has attempted no other proof.

2. It is no ground for a new trial that the verdict is for more than the amount alleged in the complaint, if the evidence suffices; and this applies to separate items embraced in one complaint.

3. Where services have been rendered in consideration of property to be conveyed, and the contract is within the statute of frauds, plaintiff's remedy is on the quantum meruit; and proof of the contract is competent to rebut the presumption of gratuity between near relatives.

4. Declarations of the deceased promisor are competent to prove such contract.

Appeal from circuit court, Madison county; Alfred Ellison, Judge.

Action by Henry Thumma against John Kettry, administrator of the estate of Joseph Thumma, deceased. Judgment for plaintiff. Affirmed.

Defendant appeals.

Kittinger & Schwinn and Goodkoontz & Ballard, for appellant. M. A. Chipman and H. C. Ryan, for appellee.

LOTZ, J. The appellee filed a claim against the estate of appellant's decedent for work and labor done for him, and for goods fur nished, and for board, and for caring for him while sick. The claim aggregated about $2,000. Issues were joined, and the cause submitted to a jury, which returned a verdict in favor of the appellee in the sum of $1,800, on which judgment was pronounced. The only error assigned on this appeal is that the trial court erred in overruling the motion for a new trial. The first cause for a new trial calls in question the sufficiency of instruction No. 1, given to the jury by the court on its own motion. The instruction is in these words. "Gentlemen of the Jury: This is an action by Henry Thumma against the estate of Joseph Thumma, deceased, on an account alleged to have been due from said estate to the claimant. This claim the administrator answers, first, by a general denial, and, secondly, by an answer alleging that the claim was fully paid before said claim was filed. This answer of pay. ment the claimant meets by a general denial,

and these constitute the issues which you are to determine. Upon the first issue thus presented upon the plaintiff's claim and defendant's denial thereof, the burden of proof is upon the plaintiff, and upon the second issue, formed by the defendant's plea of payment and plaintiffs' denial thereof, the burden of proof is upon the estate (the defendant). So that if you find that the plaintiff has proved any or all the items of his claim by a preponderance of all the evidence, then it will be your duty to find for the plaintiff upon any or all such items so proved, unless you find that the defendant has proved by a preponderance of all the evidence the payment of any or all such items, in which event your duty will be to find for the defendant upon any or all such items so proved to have been fully paid." The only objection taken to this instruction is that it limits the issues to those formed by the written pleadings; that under the statute, section 2479, Rev. St. 1894, the appellant was entitled to give any matter by way of answer, except set-off or counterclaim, without pleading the same. Conceding this position to be well taken, still there was no error in giving the instruction unless the evidence shows that the appellant on the trial attempted to establish some other defense, other than those that might have been given under the general denial and the special answer of payment. Under the general issue, a defendant has the right to all the evidence tending to disprove any fact, the proof of which by the plaintiff is necessary to make out his case; and, when the complaint declares upon a common count or an implied contract, he may show under it that there was an express contract instead, or, if the complaint declare upon a special contract, he may, under the general denial, show there was an implied contract only, and thereby defeat a recovery, for a party must recover allegata et probata, or not at all. Armacost v. Lindley, 116 Ind. 295, 298, 19 N. E. 138. The appellant contends that both the evidence and the complaint itself show that a part of the claim was barred by the six years' statute of limitations. One item of the complaint is dated in 1885. The evi dence shows that the deceased died in January, 1892, and the complaint was filed April 23, 1892. A careful reading of the evidence shows that no claim for any service, or for anything else, was made prior to September, 1886, and that all were within the six years prior to filing the claim. This objection is not well taken. No other objection being made to this instruction, we are not required to consider it in any other aspect.

It is next insisted that the court erred in refusing to give instruction No. 3 asked by appellant. This instruction is in these words: "If you find that the claimant should recover on any item or items of his claim, he cannot recover more than a preponderance of the evidence shows them to be worth, and if there is evidence showing the reasonable

that reasonably proven is greater than the amount stated in the claim, then and in that event the claimant cannot recover for a great er amount than charged in the claim." The amount of the verdict is within the demand made in the complaint. A party is not necessarily bound by the demand made in his pleadings. It is well settled that a pleading may be amended, even after verdict, to conform to the proof, if such amendment does not change the character of the cause of action. White v. Stellwagon, 54 Ind. 186; Webb v. Thompson, 23 Ind. 428. It is true that it was formerly held that it was error to render judgment for a sum greater than that prayed for in the complaint (Roberts v. Muir, 7 Ind. 544; O'Neal v. Wade, 3 Ind. 410), but the rule is otherwise under the present Code (1 Work, Pr. § 911). The fact that a verdict or finding is for an amount in excess of that demanded in the complaint cannot be assigned as a cause for a new trial in any form in case the facts stated and the evidence adduced entitle the plaintiff to recover the amount found. McKinney v. State, 117 Ind. 26, 30, 19 N. E. 613. If this be true as to the general demand in the complaint, it is also true as to the demand as to any one item. There was no error in refusing this charge.

The next contention is that the court erred in giving instructions Nos. 2 and 3 asked by the appellee. Instruction No. 2 is as follows: "If you find from the evidence that there were services rendered by the plaintiff to the decedent, and that there was an agreement or understanding between plaintiff and decedent that such services were to be compensated by the conveyance of property by decedent to plaintiff, or otherwise, such agreement or understanding overthrows the presumption that services rendered under it were performed gratuitously that might otherwise arise by reason of the fact that plaintiff (and decedent) were brothers, or lived together as one family, and your verdict should be for the plaintiff." The appellee and the deceased were brothers. The deceased was unmarried, and had no family. He owned a farm and some personal property. He lived and boarded with the appellee for several years before his death, and a part of the time he was afflicted. There was evidence given which tended to show that the deceased intended to leave or give all his property to the appellee for caring for him.

Where persons standing in the relation towards each other as that of appellee and the deceased live together as members of a common family, there is no obligation to pay for services rendered on the one hand, or for board and care furnished on the other, without there be an express promise to pay, or the circumstances be such as to raise an implied promise. Story v. Story, 1 Ind. App. 284, 289, 27 N. E. 573; Cauble v. Ryman, 26

evidence was proper, as it tended to show that there was a promise on the part of the deceased, and an intention to pay or compensate the appellee for the services rendered and board furnished. The only objection made against this instruction is that, if the facts proved show such an agreement, the appellee's remedy was a suit on a breach of such contract, and not upon a quantum meruit. Where services have been performed or money paid in consideration of property to be conveyed, if the contract is not enforceable by reason of the statute of frauds, or otherwise, an action will not lie on the special contract, but will lie on an implied promise, a quantum meruit or valebat. Wallace v. Long, 105 Ind. 522, 5 N. E. 666. The objection made to this instruction by appellant is not well taken. Whether or not it is bad because it invades the province of the jury, and attempts to tell the jury the force and effect of certain evidence, we need not and do not decide, as it is not assailed on that ground. The general rule is that an appellate court will search the record for the appellee in order to sustain a judgment, but will not go beyond the contention of appellant in search of errors to overthrow a judgment unless it be as to matters of jurisdiction. Railroad Co. v. Berry (decided by this court at this term) 36 N. E. 646. There was no evidence whatever that tended to show that the deceased promised to give or convey to appellee any particular property, or pay him any specified sum. The only evidence bearing upon this point consists of certain declarations of the deceased to the effect that he intended to leave all his property to the appellee, on account of the kind treatment he had received from him. Instruction No. 3 given by the court is in effect similar to No. 2, last above set out, and the same objection is made to it. The objection is not well founded.

The rulings of the court in permitting the appellee to prove by several witnesses the declarations of the deceased to the effect that he intended to leave or give all of his property to the appellee for caring for him were also assigned as causes for a new trial. There was no error in admitting this evidence. It tended to rebut the presumption that there was no promise to pay for the services. It is also insisted that the amount of the recovery is too large. There was some evidence that fairly tended to establish that the appellee was entitled to recover the full amount of the verdict. Perhaps the weight of the evidence does not sustain so large a recovery; but it was the peculiar province of the jury to weigh the evidence, and this court will not disturb the judgment under < such circumstances. Judgment affirmed, at costs of appellant.

DAVIS, C. J., and ROSS, J., absent.