The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-06-13
d. A. VALENTINE.
Clerk Supreme Court.
No. 1915.
Joseph Humble, Appellee,

Joseph humble, AppelISC,
German Alliance insurance Company,
Appellant.
Appeal from Cherokee county.
AFFIRMED.
Syllabus. BY the Court. Johnston, e J.
l. 1t is competent for court, Whlcn
correct the referees report: or to set
aside and grant a new trial OF the case
and this may be done although no excep-
lions are filed before the referee or mo-
ton for a new trial presented to him.
2. 1t is the duty of the court TO set
aside the report of the referee and grant
a new trial when 1t appears that the Ilno-
ings and decision are contrary 10 the eVi-
dence, or his findings and decision are
contrary to law, or where II appears LIZ, Ia
a reasonably fair trial has not been had
or substantial justice has not been done
8 On an appeal from an order granting
new trial, because the ae th n ~ was iS
a case wherein a reference was hao, ana
where the evidence and the proceedings
the appeal, it will be presumed that suf-
ficient grounds existed to warrant the
trial court in granting new trial.
A. Where a fire insurance policy IS
conditioned to be void If the insured now
has or shall hereafter procure any other
contract of insurance on the property
without the consent of the insurer IN
dorsed on the policy, and there is loss,
the fact that insurance had been taken
out by others. without the knoWledge or
consent of the insured and which was not
thereafter ratified by the insured, Will
not operate as a forfeiture of the insur-
ance nor affect the insured's rights under
the policy
g. Where a policy. containing a clause
prohibiting membranes, is issued on an
oral application and no inquiries are made
as to mortgages or incumbrances on the
property, and no representations in re
gard to the membranes are made, and
the insured does not Intentionally conceal
the facts, and is not guilty of any mis-
leading conduct. the existence of a mort
gage on the property will not invalidate
FROM
the insurer.
/ All the Justices concurring.
Attest: D. A. VALENTINE,
[Seall 90 Clerk Supreme Court.
No. 1884.
Taggart, County Attorney, ct al.
Plaintiffs.
F. NJ. Holcomb. as County Clerk. De-
PENDANT,
And Kansas City, a Municipal Corpora
ton, Interpleader.
Original Proceedings in Mandaml1s,'
PEREMPTORY WRIT, ISSUED.
Syllabus BY the Court Johnston. =;
pality of Missouri and located in Kansas
is subject to taxation under the laws of
Kansas.
2 The exemption from taxation of the
property of the state and any of its
municipalities, provided for in the con-
stitution and statutes, refers to the mu-
another state.
g. When a state, or any of its munich
palities, goes into another state and
there acquires and uses property it does
not carry with it any of its attributes
Of sovereignty nor exercise of government
tai power. 1t has no other or greater
right there IAN any other private owner
O. property and its property is subject
to the taxation which the laws of that
state impose.
All the Justices concurring. -...
: A true copy - .-..- -
Attest: D. A VALENTINE,
[Seal1 Clerk Supreme Court
No. T7.114.
Elizabeth Beech, Administrators Of the
Estate of Adam Beech, Deceased, APP
pellant,
The Missouri, Kansas and Texas Rail-
way Company, corporation, Appellee.
Appeal from NeoSho County.
| AFFIRMED.
| Syllabus. Blythe Court. Johnston, c. ].
/. A railroad track is itself warning
of danger to an approaching traveller and
! it is the duty of one about to cross, who
/ is competent to exercise care for his own
protection, to use his faculties of sight
! and hearing in the manner Of an orGinar-
| lily prudent person, and the omission to
do, so is an omission of ordinary care
which will bar a recovery for injuries re-
sulting fromsa collision with train, not
| withstanding the negligence of the rail-
| road company in failing to, sound whis-
/ tie eighty rods from the crossing.
| 2. The fact that the view of one ap-
preaching a railroad track is obstrueted
E. zserkr~