shipped, and this we think clearly appears from the contract itself.

The next question presented by counsel arises upon the action of the trial court in admitting certain evidence in regard to the value of the goods in Boston at the time they were received. Mr. Stone, one of the appellees, was permitted to answer the following question, propounded to him by counsel: "Mr. Stone, you may state what the value per dozen would be or was in Boston at the time those goods were received-the A hogskins of the character and quality that were shown to you by Mr. Weil.” Appellants' objection to this question was that the market value of these goods in Boston was entirely immaterial, as the contract provided for their delivery in Fort Wayne; and that the only evidence admissible to show the value of the goods would be evidence to prove the market value of the goods at the time they were delivered in Fort Wayne, and that the difference between that value and the contract price would be the measure of damages. This action, regarded as an action to rescind a part of the contract, which is the theory upon which counsel for appellants insist the action proceeds, results in making evidence of the value of the property returned immaterial. The contract, in so far as it relates to the sale of the hogskins, was rescinded, and the 119 goods returned to the vendors at Fort Wayne. The contract in that respect having been rescinded, and the goods returned, evidence as to the market value of the goods of the quality specified in the contract, either at Boston or Fort Wayne, could not affect the result.

Another cause stated in appellants' motion for a new trial brings in question alleged misconduct on the part of the jury. Counsel insist that it was reversible error upon the part of the jurors in listening to comments made by members of the panel to the effect that appellants were Jews, and unworthy of belief, and that one of appellants' witnesses had attempted to defraud an insurance company by burning his own property. The affidavits of three of the jurors appear in the record in support of this reason. The supreme court has in numerous cases held that a juror cannot impeach his own verdict: Stanley v. Sutherland, 54 Ind. 339; Houk v. Allen, 126 Ind. 568, 25 N. E. 897, 11 L. R. A. 706; Barlow v. State, 2 Blackf. 114.

It appears from the whole record that the case was fairly tried and determined.

Judgment affirmed.

A Contract is Severable if the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item, or is left to be implied by law; but a contract is entire if the consideration is single and entire, although the subject thereof consists of distinct and independent items: Fullmer v. Poust, 155 Pa. St. 275, 35 Am. St. Rep. 881. A contract is not entire because embraced in one instrument, if it provides for the sale and purchase of different kinds of articles, and the prices are different and specific for each kind: Pierson v. Crooks, 115 N. Y. 539, 12 Am. St. Rep. 831.

The Affidavits of Jurors, it is often said, will not be received to impeach their verdict: Southern Nevada etc. Min. Co. v. Holmes Min. Co., 27 Nev. 107, 103 Am. St. Rep. 759; Weatherford v. State, 31 Tex. Cr. Rep. 530, 37 Am. St. Rep. 828; Palmer v. People, 138 Ill. 356, 32 Am. St. Rep. 146; Wray v. Carpenter, 16 Colo. 271, 25 Am. St. Rep. 265; Smith v. State, 59 Ark. 132, 43 Am. St. Rep. 20. But this rule is not universally accepted: Gordon v. Trevarthan, 13 Mont. 387, 40 Am. St. Rep. 452; Fitzgerald v. Clark, 17 Mont. 100, 52 Am. St. Rep. 665; Peppercorn v. Black River Falls, 89 Wis. 38, 46 Am. St. Rep. 818; notes to Packard v. United States, 48 Am. Dec. 377; Crawford v. State, 24 Am. Dec. 475.

CITIZENS' STREET RAILROAD COMPANY v. CLARK. [33 Ind. App. 190, 71 N. E. 53.]

STREET RAILROADS-Assault on Passengers.-A street-car company is bound to protect a passenger from an assault and injury by its servants, and its liability for a breach of such duty does not depend upon the assault being committed by one acting within the scope of his employment. (p. 250.)

STREET RAILROADS-Transfers and Rights Thereunder.— A passenger on a street-car having paid his fare and requested a transfer to some other line of the company, to which he is entitled to transfer, and by mistake having been given a wrong transfer, is nevertheless entitled, upon proper explanation, to be carried upon the line to which he requested a transfer. (p. 250.)

STREET RAILWAYS-Assault upon Person on Car.-If unnecessary and excessive force is used in ejecting a person from a street-car, he is entitled to recover for an assault whether he is entitled to the rights of a passenger or not. (p. 251.)

F. Winter, C. Winter and W. H. Latta, for the appellant.

J. M. Bailey, for the appellee.

191 ROBY, J. Action by appellee. Verdict and judgment for five hundred dollars. Motion for a new trial overruled. Judgment on verdict. The errors assigned challenge the action of the trial court in overruling appellant's demurrer to the fourth and fifth paragraphs of complaint and its motion for a

new trial. The substance of the fourth paragraph was that appellee was a passenger upon one of appellant's street-cars, and that he was, before he reached his destination, unlawfully assaulted, and ejected from the car, and beaten, to his damage. The fifth paragraph is not materially different. It is averred in them both that the appellant was a corporation organized under the law of this state and engaged in operating a street railway for hire in the city of Indianapolis, and that "the defendant, by its agents, servants, and employés, assaulted and beat" etc. The objection made is that the acts of the employés are not shown to have been done in the course of their employment or in furthering the master's business.

The averment that the assault was committed by the defendant through its employés is sufficient as a matter of pleading: Wabash etc. Ry. Co. v. Savage, 110 Ind. 156, 159, 9 N. E. 85; Feighner v. Delaney, 21 Ind. App. 36, 51 N. E. 379. Appellee being a passenger on its car, appellant owed the duty to protect him from assault and injury by its servants, its liability for breach of such duty not depending upon the assault being committed by one acting within the scope of his employment: Indianapolis Union Ry. Co. v. Cooper, 6 Ind. App. 202, 33 N. E. 219; Baltimore etc. Ry. Co. v. Norris, 17 Ind. App. 189, 60 Am. St. Ry. 166, 46 N. E. 554. The demurrer was therefore properly overruled.

192 The point is made that the evidence fails to show that appellee was on a car operated by appellant: Citizens' St. Ry. Co. v. Stockdell, 159 Ind. 25, 62 N. E. 21. The action was brought against the Citizens' Street Railroad Company. It appeared, filed answer, and made defense. It was admitted during the trial that such company was at the time of the accident complained of engaged in hauling passengers for hire in the city of Indianapolis. The evidence shows the occurrence to have taken place upon one of the streets of said city, and that appellee was ejected with some force from one of the "company's" cars by the "company's" employés. Many references are made to the "company" by the witnesses. The inference that the appellant corporation was the company referred to was one the jury might, we think, properly draw.

The testimony relative to the issuance of a transfer ticket was of the same character so far as appellant's connection therewith was concerned. Appellee testified that he paid his fare to the conductor of a North Illinois street-car, and requested a transfer slip to a Blake street-car, and, supposing he had received it,

boarded a Blake street-car, from which he was forcibly ejected, it appearing that the transfer slip delivered to him was for the West Michigan street line. "The claim agent of the company" gave the motorman and conductor of the car from which appellee was ejected orders to start, and it was probably a fair inference that the transfer slip was issued by appellant. The second instruction given by the court was to the effect that if appellee paid his fare to the conductor of the Illinois street-car, and asked for a transfer to some other line belonging to the company to which he was entitled, and the conductor, by mistake, gave him a wrong transfer, he would, nevertheless, be entitled, upon proper explanation, to be carried upon the line to which he had requested a transfer. The instruction accords with the decisions in Evansville etc. Ry. Co. v. Cates, 14 Ind. App. 172, 41 N. E. 712, and Indianapolis St. Ry. 193 Co. v. Wilson, 161 Ind. 153, 100 Am. St. Rep. 261, 66 N. E. 950. If appellee was not entitled to the rights of a passenger under the evidence, such fact would not authorize the reversal of the judgment, it appearing that unnecessary and excessive force was used in ejecting him from the car: Baltimore etc. Ry. Co. v. Norris, 17 Ind. App. 189, 60 Am. St. Rep. 166, 46 N. E. 554.

The motion for a new trial was correctly disposed of, and the judgment is affirmed.

Comstock, J., concurs in the conclusion.

A Carrier is Liable to a Passenger for an assault committed on him by an employé acting beyond the scope of his employment: Birmingham etc. Ry. Co. v. Baird, 130 Ala. 334, 89 Am. St. Rep. 43, and cases cited in the cross-reference note thereto; monographic note to Richmond etc. R. R. Co. v. Jefferson, 32 Am. St. Rep. 95. See, too, Lexington Ry. Co. v. Cozine, 111 Ky. 799, 98 Am. St. Rep. 430; Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 102 Am. St. Rep. 503. And compare Central of Georgia Ry. Co. v. Motes, 117 Ga. 923, 97 Am. St. Rep. 223; Georgia R. R. etc. Co. v. Hopkins, 108 Ga. 324, 75 Am. St. Rep. 39.

If a Passenger on a Street-car, when he calls for a transfer over a certain line, is given a transfer over a different line, the carrier is fiable to him in damages if he is expelled, over his reasonable explanations, from the car when he tenders the transfer and refuses, on its rejection, to pay an additional fare: Indianapolis St. Ry. Co. v. Wilson, 161 Ind. 153, 100 Am. St. Rep. 261, but see the cases cited in the cross-reference note thereto.

RARIDEN v. RARIDEN.

[33 Ind. App. 284, 70 N. E. 398.]

DIVORCE-Remarriage-Waiver of Right to Prosecute Appeal. If a man to whom a divorce has been granted appeals from a judgment against him for alimony, and remarries pending such appeal, he thereby waives his right to prosecute the appeal, and it will be dismissed. (p. 254.)

R. P. Davidson and A. Boulds, for the appellant.

J. F. Hanly and W. R. Wood, for the appellee.

284 ROBINSON, J. Appellee sued for divorce. Appellant answered in denial, and filed a cross-complaint asking a divorce. Appellee answered the cross-complaint in denial. Upon a trial the court denied appellee's petition, and 285 granted appellant a divorce upon his cross-complaint, and gave judgment against him in appellee's favor for alimony, and an allowance for attorney's fees. Appellant's motion to modify the judgment by reducing the amount of alimony and allowance was overruled, and exception taken. His motion for a new trial upon the question of alimony and allowance only was overruled. He has assigned as error the court's refusal to modify the judgment as to alimony and allowance, and the refusal of a new trial.

Appellee moves to dismiss the appeal upon a showing that, since the submission of the cause, appellant remarried, and that he and the woman he married are now living together as husband and wife.

"Alimony," as here used, is purely incidental to a divorce proceeding, and is an allowance out of the divorced husband's estate made to the divorced wife for her support and maintenance. In this state it has no existence as a separate and independent right. It must be adjudged, if at all, in the divorce proceedings, and cannot be the subject matter of an independent suit. The court is required to make such decree for alimony as the circumstances of the case shall render just and proper: Burns' Rev. Stats. 1901, sec. 1057. The court bases its decree for alimony upon all the facts and circumstances disclosed in the divorce proceedings, including all matters of property which have transpired between the parties: Muckenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345.

"In adjusting alimony," said the court in Hedrick v. Hedrick, 28 Ind. 291, "all the evidence in the case ought to be considered and acted upon, and then the subject is often a difficult