The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-10-07
FIRE, But NO FIRE.
Supreme Court Decides That
This Is Possible.
Destruction of Wool Involved in
the Question.
WOODEN MILL WINS.
Insurance Company Must Pay
for Losses.
Cause Was Heat Engendered by
the Flood.

According to a most interesting de-
cision of the supreme court today the
Shawnee county district court is sus-
tanned in its decision of the suit brought
by the Western Wooden Mills of Tope-
ka to recover for wool damaged by
overheating in the Kaw river food of
1903. and insured in the Sun Insurance
office of London.
By this decision the court sustails the
theory that fire can exist even when
there is no actual fire; that fire is heat;
that sparks and flames are entirely I'M
essential to the existence of fire.
Two justices dissent to this opinion.
A peculiar feature of the case is that
Justice Silas Porter, who writes the
opinion for the court affirming the de-
cision of the lower court, follows it with
a long opinion dissenting from the opin-
ion he wrote for the court. He IS Joined
in his dissent by Justice Smith.
The Wooden Mill had about thirty
thousand pounds OF wool stored in
warehouse in North Topeka. On May
%, 1908, at the time of the great Kan
sas river flood the warehouse was in
undated and the wool was covered with
water from that date to about June 3.
1t was found that the wool had been
leveled from the piles where it was
stored and lay in a mass on the floor.
1t was claimed by the owners that spon-
taneOus combustion in the wool had
taken place by action of the water The
whole question in the case was whether
the damage was caused by spontaneous
combustion. The insurance company
commended that the damage to the wool
was occasioned by its being inundated
Ev- fl4a f1-1 H. C
caused by reason of the water and the
heat without fire which resulted in de-
composition and injured the fibre of the
wool; that as q physical and scientific
| fact spontaneous combustion cannot
take place in an animal substance: that
spontaneous combustion can only occur
in vegetable substances.
The jury in the lower court found
that fire had actually occurred.
Justice Porter does not base his dis
senting opinion on the theory that spon-
taneous combustion is possible in wool
He holds that there is an entire alb
sence of any evidence that fire OF any
| kind occurred. There was a heating
of the wool and injury resulted, out no
/ ignition, no burning nd no actual fire.
Important Paving Decision.
A decision of great importance to
cities of the state was rendered in the
! case of the Carey Salt company and
others of Hutchinson, against the
! Hutchinson city council. The opinion
of the court is to the effect that a city
! council does not need to be guided
/ strictly by the specifications of a
4 paving petition, but that it can eXer-
else its own discretion about material,
etc. after the petition has been pre-
! scented.
/ This decision will tend to knock out
the paving boomers who go about
! getting up paving petitions which call
/ for some special kind of material.
The suit was brought as an original
mandamus proceeding in the supreme
court to compel the Hutchinson city
/ council to follow the terms of a petit
ton asking for brick pavement on the
main street of Hutchinson. This petiN
ton was filed March 90, 1905. When
the council opened bids on brick
1 pavement it was found that all were
too high. and they were rejected.
Immediately another petition was
lfled, asking for the paVemen t of the
street with bitulithic pavement, and
the council assuming the former petit
ton to be disposed of, went ahead and
allowed the bitulithic petition. Bid:
were received and contracts let. Their
the Carey Salt company and Other
companies and individuals who were
in favor. of brick pavement brought
the Inandamus suit.
The supreme court sustains the
action of the city council of Hutchin-
son throughout. Some interesting
points are touched on IN the OPINION
which is written by Justice Graves
Among other things the court holds
that petition for pavement does. not
bind the city council to construct thai
particular kind of pavement. The
opinion says:
1--WE think that one, and perhap.
the principal object of this law was tt
restrain Over-zealous mayors anC
councilmen from pushing special i'm
provements into localities where TIT
resident property owners do not wan
or need them, and by this provision
they are given the right to say wher
such improvements shall be made
1--WE do not think, however, that thi!
statute contemplates that such peti
toners may compel the mayor anC
council to construct any particulal
kind of improvement or control ths
details thereof. The Office of the peti
ton is to inform the proper tribuna
that the petitioners want the i'm
provements made. This act on thei
part authorizes the improvement to b,
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