
    Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Kruger.
    [No. 23,339.
    Filed May 13, 1919.]
    From the Marion Superior Court (102,517); F. G. Clifford, Judge.
    Action by William Kruger against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for
    plaintiff, the defendant appeals.
    
      Beversed.
    
    
      Samuel O. Pickens, Charles W. Moores, B. F. Davidson. Owen Pickens, and D. P. Williams, for appellant.
    
      H. N. Spaan, for appellee.
   Lairy, J.

— This is an appeal from a judgment in favor of appellee for the sum of $249.85. This court has jurisdiction of the appeal for the reason that a constitutional question is presented, but in view of the conclusion reached it will not be necessary to consider the question thus presented. The complaint shows that appellee was employed by appellant as a railway conductor for a number of years from 1905 to 1914, and seeks to recover a balance alleged to be due him as wages on the ground that appellant, during the time he was so employed, deducted from the amount due him each month the sum of $3.75, aggregating the amount demanded in the complaint. Appellant filed an answer in six paragraphs, and the trial court sustained a demurrer addressed separately to the fourth, fifth and sixth paragraphs of this answer. These rulings of the court are separately assigned as error.

In the recent case of Pittsburgh, etc., R. Co., v. Miller (1918), 187 Ind. 684, 120 N. E. 706, this court decided that the trial court erred in sustaining the demurrer addressed to a paragraph of answer substantially the same as the sixth paragraph of answer in this case. The substance of the answer and the reasons upon which the decision is based are stated in that opinion, and need not be here repeated. For the reasons there stated the sixth paragraph of answer in this case stated facts sufficient to constitute a defense, and the demurrer addressed thereto was improperly sustained.

The judgment is reversed, with instructions to overrule the demurrer to the sixth paragraph of complaint.  