
    Western Union Telegraph Company v. Burris.
    [No. 23,597.
    Filed June 21, 1921.]
    
      Pleading. — Demurrer.—Waiver of Error. — Where a demurrer had been sustained to the second paragraph of defendant’s answer, and an order entered that appellant should plead over or amend before additional paragraphs of answer were filed, filing such additional paragraphs took the second paragraph out of the record, as upon amendment, and no question is presented as tq the correctness of the ruling on the demurrer.
    From Marion Superior Court (Al,450); Theophilus J. Moll, Judge.
    Action by Benjamin J. Burris against the Western Union • Telegraph Company. From a judgment for plaintiff, the defendant appeals.
    
      Reversed.
    
    
      Pickens, Moores, Davidson & Pickens, for appellant.
    
      Edward M. White, for appellee.
   Per Curiam.

— The appellee sued to recover the statutory penalty under §5781 Burns 1914, Acts 1885 p. 151, §3, for an alleged failure by appellant to transmit and deliver at Danville, Indiana, a telegram sent by appellee from Jeffersonville, Indiana. Each of the third and fourth paragraphs of appellant’s answer alleged in substance that appellant had no direct telegraph line, immediately connecting Jeffersonville and Danville, and that the only practicable, available and customary route for the transmission of said telegram and other like telegraphic service from Jeffersonville to Danville at that time was by transmitting the message to Louisville, Kentucky, and there relaying it to Danville, Indiana, and thereby sending it through a part of Kentucky over lines of telegraph wires communicating between the State of Indiana and the State of Kentucky, and that the telegram in question was thus sent through Louisville, Kentucky; and that the appellant, in transmitting it, was engaged in interstate commerce, to which, it was further alleged, the Indiana statute did not apply.

A demurrer was sustained to each of said third and fourth paragraphs of the answer and, upon appellant’s refusal to plead over or amend, judgment was rendered in favor of the appellee against appellant for the statutory penalty of $100, and costs.

A demurrer had been sustained to the second paragraph of appellant’s answer, and an order entered that appellant should plead over or amend before the third and fourth paragraphs of answer were filed. Under these circumstances filing the third and fourth paragraphs of answer took the second paragraph out of the record, as upon an amendment,- and no question is presented as to the sufficiency of the second paragraph to withstand the demurrer addressed to it. Humphry v. City Nat. Bank (1921), ante, 293, 130 N. E. 273; Scheiber v. United Tel. Co. (1899), 153 Ind. 609, 610, 55 N. E. 742.

The questions presented by this appeal have been decided against the appellee and in favor of the appellant by the Supreme Court of the United States since the briefs were filed in this court. Western Union Tel. Co. v. Speight (1920), 254 U. S. 17, 41 Sup. Ct. 11, 65 L. Ed. 5; Western Union Tel. Co. v. Boegli (1920), 251 U. S. 315, 40 Sup. Ct. 167, 64 L. Ed. 281.

The judgment is reversed, with directions to overrule the demurrers to each of the third and fourth paragraphs of appellant’s answers.  