davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 1858.
Lydia E. BurkS, Appellee,

LyQld DurkS, Appellee
VS..
The Atchison, Topeka & Santa Fe Rail-
way Company, Appellant.
Appeal from Neosho County.
AFFIRMED
Syllabus. BY the Court Mason. J..
In an action for the death of a freight
conductor through being caught and
crushed between two cars during switch
ing operations, held that:
% Evidence that, as a coupling was
raise a lever which operated the auto
matte device, and then to step upon the
track, and that after the accident the
apparatus was found to be out of order,
going between the cars being deemed con-
tributory negligence as a matter of law:
(2.) Evidence that close by his feet near
the middle of the track there was found a
head bearing indications of having been
stepped on, and a mark near it show
ed where some ones foot had slipped.
justified an inference that he had fallen
over it and that his death was occasioned
81 Evidence that the lump of coal ap-
peared to have been exposed to the
weather for some time, that other smaller
Jumps had been permitted to lie upon the
track indefinitely, and that weeds and
grass were growing between the rails to
the height of four to seven inches, war
ranted finding of actionable negligence
on the part of the company in respect TO
the condition of the track.
4. finding that there was no evil
dence that the conductor was familiar
w. the condition of the track is to be
interpreted as meaning that under all tho
evidence the jury were not satisfied that
such was the case
All the justices concurring-
A true copy.
Attest: d. A. VALENTINE.
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 49,
c. e. Leibengood, Appellee,

Missouri. Kansas & Texas Railway Com
pany, Appellant
Appeal from Miami County.
REVERSED.
Syllabus. BY the Court. Johnston, G. ].
The act requiring corporations and
others operating railroads as common
carriers to transport live stock within the
state at a speed of not less than fifteen
miles per hour unless prevented by some
276, does not apply to nor affect Interstate
commerce and shipment of live stock
between points in the state which passes
for short distance over the territory of
another state is interstate commerce and
noncompliance with the requirements Of
the statute in such a shipment affords
grounds for recovery against the carrier.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
rSeaL1 Clerk Supreme Court.
All the Justices concurring.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
IFGAr.

averment In the petition charging adultery
either as one of the means of alienafion
or as a basis for damages an instruction.
was properly refused which charged that
If the defendant was In no way responsibIa
for the alienation Of the affections Of the
husband yet If the jury believed that the
defendant committed adultery with. the
husband while the plaintiff and husband
were living together husband and wife
they should find for the plaintiff
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE
lSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 1858.
Eva Winegarner. Appellee,

No 1858.
Eva Winegarner. Appellee,
VS..
Edison Light & Power Company. Appel
liant.
Appeal from Sedgwick County.
AFFIRMED.
Syllabus By the Court. Smith, j.
1t is the duty of an electric light and
power company. having wires charged
with a high voltage of electricity, sus-
pended upon poles across a street in q
city upon which street the moving of a
building of greater height than the wires
is reasonably to be anticipated, to insulate
the wires at such crossing, or to take
such other precautions as are necessary
to protect any person who is liable to be
upon such building and to be brought in
contact with such wires.
All the Justices concurring.
A true copy.
Attest: d. A VAbENTlN e,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
LEGAL.
No. 1904.
The State of Kansas. Appellee

The State of Kansas. Appellee,
H. Z. Turner, Appellant.
Appeal from Chautauqua county.
REVERSED.
Syllabus BY the Court Porter. j.
l. Evidence of previous good character
is not to be rejected, or even dlsregaIoeu;
because the evidence against the accused
q In a prosecution for violation OF
the prohibitory law where the deIense
is that the defendant pnprchase;d Gl, ne ne
LIQUOR for others who advanced nn lne
money for that purpose, aid that ne
merely acted as their asent' It. Is .n erT i0-
struction to find the defendant fen a.1tden not
cfftred ir support. of such cslense;
+,rv iau The state Offered evidence tn--,
me defendant was elu"s et by "th.T
reSscr to procure liGnJr for them ana
received honey from ne-n lhereiCr; anu
shortly afterwards denve-t1 ~" li';Etr
to them. heid, that this made prima
facie case and tie demurrer - the evil
dence was properly overruled.
All the Jus ices con~urrlns-
Attest. D. A. VALENTINE.
ISeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 16,
w. B. Henry, Appellee,

NO. 1858.
w. B. Henry, Appellee,
The Atchison, Topeka & Santa Fe Rail-
way Company, Appellant
Appeal from Shawnee County.
AFFIRMED.
Syllabus. By the Court Johnston. C. ].
determined on the first appeal of a case
Is deemed to be settled and not open to re-
examination on second appeal but it is
cision is palpably erroneous it is COM
petent for the court to correct it on the
2 If the point though involved in the
record of a first appeal, is not brought
to the attention of nor considered by the
court it's decision then made does not pre-
clude the consideration and determination
of the point when presented on the second
appeal
g. A railway company transported goods
to destination and notified the owner to
come and take them away. In response
at the freight depot, rendered the charges
due thereon and demanded the delivery
of the goods but the railway company re-
fused the demand. One day thereafter an
aged the goods, Held, that by the refusal
ton of the goods the railway company
held them at its own risk and was re-
sponsible for the loss occasioned to them
AN the Justices concurrIng.
Attest: DA. VALENTINE.
ISeaLJ Clerk Supreme Court
No 1866.
The Mound City Brick & Gas Company. a
Corporation, Appellant
The Goodspeed Gas & OIL Company. APP
pellee.
Appeal from Linn County.
AFFIRMED.
Syllabus. By the Court. Johnston. c. }.
/. Chapter 2A of the Laws of 1897 pro-
viding. for the taxation of strata of min
erals in land, the title to which has been
vested in persons other than the owner
of the surface, and Imposing penalties for
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
FREE DIsPENsARY.

QUINCy STREET FREE DISPENSARY.
81 Quincy St Conducted by regular
practicing physicians and surgeons. Med
ical service free. Medicine free In some
cases. Office hours to p. m. Calls
andswered night and day. Ind. phone 1707.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
UMBRELLAS.

DON'T MISS the chance to have your UNI
brellas or fancy parasols recovered or
repaired while A. N Pensker, the UNI
brella specialist is here at Al Quincy. Ind.
1877 Red
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
d. A. VALENTINE,
Clerk Supreme Court.
No. 1851.
Trr1frrz ~ VITilyJo- A--~us

No. 1851
Julius c. Williams, Appellant
VS..
]. w. Bricker, ct al, Appellees
Appeal from Cowley County.
REVERSED.
Syllabus. By the Court. Porter J.
l: A title need not in fact be bad in
order to make it unmarketable or nom
merchantable. The question is whether a
reasonably prudent man. familiar with
the facts and apprised of the question Of
law involved, would accept the title in the
ordinary course of business: nor is It
enough, even. that the court on the whole
consider II good. If there be doubt or
uncertainty sufficient to form the basis
Of litigation. the title is unmarketable.
2. In an action to recover back pur-
chase money for the failure of the vendor
to comply with an agreement to furnish
marketable title, where the parties
whose possible claims may. affect the title
law upon which the title turns will not
be determined but the title will be deemed
unmarketable If the question is one upon
winch it is apparent that other courts
might entertain a different opinion.
ALI the Justices concurring.
true COPY.
Attest: D. A. VALENTINE
[SeaL1 s1aR Clerk Supreme Court, !
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 1886.
B. D. Messing. ct al, Appellees,

B. D. Messing, ct al, Appellees,
vs.
Arthur Faulkner, Appellant
Appeal from Clark County.
REVERSED.
Syllabus BY the Court Mason, j.
Where Judgment is rendered denying a
plaintiff relief solely by reason of a prior
judgment against him involving the same
matter, he is not thereby precluded from
afterwards maintaining a new action for
the same purpose, If in the meantime he
has procured the vacation of the judg-
ment which had been interposed as a bar
to his recovery in the former action.
Ali the justices concurring.
A true copy.
Attest: D. A. VALENTINE.
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
D. A. VALENTINE.
Clerk Supreme Court.
No. 1858.
The Hessig- Ellis Drug Company, Appel
liant,

No. 1855.
The Hessig-Ellis Drug Company, Appel
liant,
VS..
r. ]. Sly, ct al, Appellees.
Appeal from Labette County.
REVERSED.
l. A contract by a foreign corporation
to deliver goods on board Of cars in an
other state consigned to parties in this
tanned stipulations for the advertisement
the return upon certain conditions of
goods unsold, Is examined, and it is held
ID that there was a sale of the goods
so delivered, and ca that the transaction
was not doing business in this state re-
curing a certificate of authority as pro-
vided in section 1726 Of the General Sta
tutes Of 1909.
2. An action by such foreign corporation
for the price of goods SO delivered under
the contract referred to, was dismissed
for want of authority to do business in
this state. After an appeal had been ta-
ken from that order the goods were ship
ped back to the consignor, but were not
accepted. 1t is held, that motion to dis
miss the appeal because of such return
can not be sustained. The matter is de-
fensive, to be- determined in the district
court if presented there in the usual
course of practice.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
tSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
sr% No. 16, 419.
j. H. Mcknight, Appellee,

City of Wichita, Appellant.
Appeal from Sedgwick County.
AFFIRMED.
Syllabus. BY the Court. Smith, =.
1. On an appeal from the condemnation
of land it is proper, in proving damages,
to consider all the capabilities of the
property and its most advantageous uses
as it is actually situated. Irrigation Co.
v. McLain, 50 Kan. 1874.
3 2 On the trial of an appeal for dam
ages. in a condemnation preceding, of a,
portion of a tract taken for a drainage
canal, the fact that the owner of tho
tract had it surveyed and mapped for
residence and gardening plats. no plat
defeating streets and alleys through the
tract having been recorded does not de-
bar such owner from having damages
assessed to the remainder of the entire
tract. not taken for the ditch. although
the jury find and assess damages to the
tract on the basis that it is most valuable
for residence purposes.
All the justices concurrfng
A true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12

No. IL. 631.
Mary E. Stotler, Appellee,
VS..
H. L. Rochelle. ct al, Appellants.
Appeal from Wyandotte County
AFFIRMED.
Syllabus BY the Court Mason. j.
The establishment of a cancer hospital
in a residence neighborhood in near prox-
unity to dwellings may be enjoined at the
instance of one owning and occupying
adjacent property.
All the Justices concurring.
true copy.
Attest: d. A VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
First published in. The Topeka State
Journal July II, 1901

Office of the City Clerk
Topeka, Kansas, July u 1910
PROPOSALS.
Sealed proposals will be received at the
office of the City Clerk up to 8 O'Clock a.
m, Monday. July % for the construction
of the extension to Sewer District No 30,
as per plans and specifications on file in
the office of the City Engineer A certi-
fled check of Fifty ($5O Dollars must ac-
company each proposal The Mayor and
to reject any or all bids.
[Seal.1 C. B. BURGE,
CITY Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
MACHINE SHOPS.

Lawn mowers sharpened. repaired. The n.
b Howard Supply Co.. 10 K. A. Tel 500.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
d. A. VALENTINE,
Clerk Supreme Court
No. 1856.


The American Electric Telephone, COM
pany, a Corporation, Appellee,
The Emporia Telephone Company, a Cor
poration, Appellant.
Appeal from Lyon County.
AFFIRMED.
Syllabus. BY the Court. Johnston, c. J.
1. sale by a manufacturer OF a Ger
tain kind of telephone made in the usual
course of business for the general trade
does not carry with 1t an implied war
ranty that the telephones will meet the
purposes and expectations of the buyer.
2. Where sale was made of an article
on sixty days approval in which the buyer
was given the right to return it IL at the
end of that time it failed to give efficient
service but that If it proved efficient the
buyer would accept and pay for it at o
stipulated price the retention and use OF
the article for more than a year without
complaint and where no return or offer to
return it was ever made justified a recov-
cry by the seller of the contract price OF
the article.
All the Justices concurring.
Attest: D. A.. VALENTINE,
ISeaf1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 1851.
Diana Haskin Keys. Appellee,

Diana Haskin Keys. Appellee.
George w. Keys, Appellant
Appeal from Johnson County.
AFFIRMED.
Syllabus. By the Court Smith, J.
l. A district Judge was unable on ac-
count of sickness to attend in county
for the opening of a term of court there
in, and the members of the bar elected
f one of their d number to act as Judge Pro
term, and the judge pro tenn continued
thereafter. to, discharge the duties of
members it Of the bar. the court officers
and ntigants, for the entire term, and
even decided a motion for new trial
counsel to a time. subsequent to the ap-
pointment and qualification of the judge
appointed to. fiji the vacancy. the new
failing. to attend. Held. that the Judge
pro tenn was a de facto Judge, acting un-
judgments or orders as such We're void,
or subject to collateral attack.
2. When the suff1ciency of a petition,
and of the evidence in support of
judgment for the plaintiff hereunder, is
attacked for the first time in this court.
and slight evidence will be held sufficient
for the purpose of sustaining the judg
ment.
All the Justices concurring.
Attest: D. A. VALENTINE.
ISeaL1 Clerk Supreme Court.
No. 17o45
D. Field, J. w. Darr, ct al. Appellees.
School District No. No. Butler County,
Kansas, ct al, Appellants.
Appeal from Butler County.
REVERSED.
1. Where application is made to the
county superintendent of public instruc-
ton of the several counties interested in
a Joint school district and such superin-
tendents consider such application, and
fafr7 10 an r60 ri d
airy lines of such Joint district, any per-
son aggrieyed may appeal from such order
to the state ib ony OF e pe9c r 1
vided by statute. If this remedy is not
pursued. an action for injunction can not
2. In such case, an appeal can not be
taken to the board of county. commission
ers of either county in which the joint
district is partly situated.
g. The mere fact that a district lying
wholly within one county is incidentally
any lines of the joint district, will not
change the question of appeal
Bureh, J., Mason. J., Smith. J., Porter,
Johnston, G. J., and Benson, J., dissent
ing.
Attest: D, A. VALENTINE.
TSeaL1 Clerk Supreme Court.
The Farmers Alliance Insurance Company
of Kansas, Appellant.
The At9s;hison. Topeka 8 santa s Es Rail IL
Appeal from Rice County.
AFFIRMED.
Syllabus BY the Court. Benson. J.
for DAMAGES i by fire caused by negligence
of railway company, which If 1t be the
only written instrument embracing the
claim, may still be modified by a so
temporaneous written agreement prov1d-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
LEGAL.

its violation applies to oil and gas as well
to solid minerals.
2. When the different strata are sew
cred by contract or conveyance each layer
or stratum Is subject to be taxed sepa-
rately real property and 1t is the duty
of the owner not only to record the in
strument which conveyed the property to
him within the time specified but also to
see that it is duly listed for taxation at
the proper time.
3. An instrument, called lease, by
which the owner of the land grants, con-
veys and warrants to another, his heirs,
successors and assigns all of the coal, Oil
and gas under tract of land together
with the right to use the surface of the
land SO. far as it Is necessary in taking
out the minerals so conveyed, the consid-
Grafton being that the lessee shall give
the lessor certain quantities of the coal
and oil mined. also a certain price per
wen for each gas well, that shall be
drilled and used and also furnish the
lessor gas sufficient to supply his residence.
and, among other things, contains pro-
vision that in certain contingency the
lessee shall reconvey the property to the
lessor. Held: that the instrument oper-
ated to sever the coal, oil and gas from
the remainder of the land and that the
interest segregated and conveyed became
subject to be separately taxed and it was
incumbent onN the owner of the interest
to list it for taxation.
All the Justices concurrfng.
A true copy.
Attest: d. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
1885.
The Ingleside Association, Plaintiff,

The 1ngIeslde Assoelaton, PIalntlm,
James NJ. Nation as Auditor of the State
of Kansas, Defendant.
Original Proceeding in Mandamus.
Writ Allowed.
Syilabus b thee curt Graves. J
The appropriation of $4e0 made in behalf
of the Ingleside Association, Topeka. by
section of chapter of the laws of 1903,
for the year 1910, is not unconstitutional.
and that association is entitled to such
appropriation, and 1t was the duty of
the state auditor to issue a warrant upon
the state treasurer therefor, upon proper
demand.
All the Justices concurring
A true copy.
Attest: D. A VALENTINE,
(SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12

No. 16, 623. ~
Charles E. Gibson, Appellee,
Anna Uppenkamp, ct al, Appellants.
Appeal from Kearny County.
AFFIRMED.
Syllabus BY the Court. Benson. J
l. An entry upon the appearance docket
of charge for the release of mortgage
and cancellation of the accompanying
note. is not evidence that the mortgage
z Chapter l07 of the. laws of 1899. pro-
in Kearny county. then previous record
whereof had been destroyed by fire, does
not give any great effect to the failure to
have a mortgage recorded as directed
than would have resulted from failure
to record it in the first instance
g. The general purpose of registry laws
to impart notice to creditors ana pur.
chasers, applies to the act of 1899. as Wen
as to the general statute providing for
the registry of Instruments anectlng real
estate.
i. A party claiming property solely by
record of instruments having no relation
to such tax title, and can gain no ad-
vantage by the failure to record such In
struments
5. Inc declaration Of the statute of
1899 that the holder of a mortgage which
act shall be barred from foreclosing 1t
means that he shall not be allowed fore
closure against interests or liens acquired
by one whose title or interest In the
nroperty NAV be affected thereby, and
who has a right to rely upon the record
All the Justices eoncurring.
A true copy.
Attest: D. A. NALEN line,
ISeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 16, 1876.
William Schwartz. Appel

No. 16 1876
William Schwartz, Appellee,
VS..
Missouri. Kansas & Texas Railway Com
pany. Appellant.
No. 16, 1884,
William Schwartz, Appellee,
Missouri Kansas & Texas Railway Com
pany, Appellant
Appeals from Miami County.
MODIFIED.
syllabus. BY the Court. Benson. ].
l. Chapter IA of the Laws of 1907, which
provides that all freight trains to which
a caboose is attached shall transport pas
panies to limit their liability to
on such trains, except ror wilful neglig-
ence. does not give the right to such COM
panies to demand release of their liabil-
consisting of freight cars, passenger
coach. and a combination mail. and bag
gage car, regularly operated, carrying
passengers, and stopping at passenger
platforms, as passenger trains usually do.
z tra; the Eek expulsion OF passenger from
other reason than that he refuses to sign
such release. is wrongful. but under the
facts shown in these cases exemplary
damages should not be awarded.
Burch, j., Mason, J.. Smith, J., Porter.
j. and Grayes, J., concurring:
Johnston, c.. J., and Benson, J., dissent
ing. .e~=--
Attest: D. A. VALENTINE.
lSeal1 Clerk Supreme Court
No. 1852
Missouri, Kansas e. Texas Railway Com
pany, Appellant,
John Hindman, Appellee.
Appeal from Miami County.
AFFIRMED.
Syllabus. By the Court. Burch, J.
/. Judicial notice not being taken of the
statutes of the state of Missouri it cannot
be known without proof whether filing a
transcript of the judgment of justice of
the peace in a circuit court of that state
gives to such judgment the effect of a
judgment of the circuit court.
2 Assuming the statutes of the state
or Missouri to be like those of this state,
the filing of such a transcript in a cir
cult court does not have the effect of
making the judgment of the justice of the
peace the judgment of the circuit court.
8. In order to make such a judgment
admissible in evidence as an offset in an
action prosecuted in one of the courts of
this state transcript of the circuit court
record duly certified according to the act
of the Justices judgment must be certi-
fed according to the statute of this state,
the act of congress not being applicable.
4. A judgment of a justice of the peace
of another state may be brought with
in the protection of the full faith and
credit clause of the federal constitution
but there are no presumptions in favor OF
officer and. those facts must be established
in some lawful way before 1t can be
known to what faith and credit his acts
and proceedings are entitled in this state.
All rhesJustices coneurring.
Attest: D. A VALENTINE,
LSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-07-12
No. 1861.
Alice Thrustin. Appellant.

No. IL, 651. s'
Alice Thrustin. Appellant.
Maud L. Brown, ct al, Appel1ees.
Appeal from Neosho County.
REVERSED.
Syllabus. By the Court. Graves. ].
1. The mere occupation and use of the
common property by one tenant in COM
mon does not create the relation of land
lord and tenant between him and his CO.
tenant, nor render him liable for rent.
2. Before a tenant in common will be-
come liable to pay rent to his co-tenants
for the use and occupation of the common
property, his occupancy must be such as
co-tenant to occupy the premises jointly
with him or the character of the property
must be such as to make such p joint
occupany impossible or impracticable.
All the Justices concurring.
A true copy.
Attest: D. A.. VALENTINE,
ISeaLJ Clerk Supreme Court.