davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
D. A. VALENTINE.
Clerk Supreme Court
No. 1887
Cora Van Vranken, Appellee

VS..
The Kansas City Elevated Railway Com
pany Appellant
Appeal from Wyandotte County.
Court of Common Pleas.
AFFIRMED.
Syllabus BY the Court. west, j.
! In action by woman q years of
age for damages caused by being violent
" thrown from a street car, the testi-
mony showing that as result of the in
Jury she was taken to a hospital where
she remained three weeks and where
operation was performed removing one
ovary and resecting the other, that she
was rendered weak and nervous and I'M
able to follow her former occupation and
earn her former wages. a verdict for
$1o,9 while large, is, not so excessive DIS
to show passion and prejudice nor does
the same show upon its face that it was
the result of addition and division.
2 Where the plaintiff sues upon the al
legation and theory that she was violent
ly thrown from street car by a sudden
Jerk before it had come to full stop, the
street railway company not having plead
ed contributory negligence and asserting
and trying the case upon the theory that
PLAINTIFFS injury occurred by a fall after
she had safely left the car, held, that the
failure of the court in its instructions %
direct the attention of the Jury to the
plaintiffs contributory negligence in at
tempting to alight while the car was in
motion, does not constitute reversible
error.
8. The day following the injury while
the plaintiff was suffering therefrom an
agent of the railway company procured
from her a statement which she could
not sign by reason of her injury, but
statement being to the effect that the car
suddenly started after it had come to
stop After leaving the hospital she
filed her original petition containing a
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
d. A. VALENTINE,
Clerk Supreme Court.
No. 1881.
The State of Kansas, Appellant,

The State of Kansas, Appellant,
p. w. Johnson, Appellee.
Appeal from Stafford County.
REVERSED.
Syllabus. BY the Court. West, j.
!. Under, the constitutional grant of
power: the legislature may prescribe rea-
sonable restrictions and regulations re-
specting the practice of any branch or
department of the healing art.
2. Chapter 34 of the Session Laws of
1901 as amended by Chapter SO of the
Special Session Laws of 1908, creating a
state board of medical registration and
examination and regulating the practice
of medicine, surgery and osteopathy, is
constitutional and embraces within its
terms one who without registration. ex-
animation or license from such board and
for pay, practices or attempts to practice
chiropractic by pretending to adjust the
spine of one afflicted with bodily infirn1i-
ties, or who advertiseS to treat, for pay,
by chtropractic spinal adjustment, per-
sons thus afflicted.
Johnston, C. J., Burch, J., Mason, J.,
Smith, j., Porter, J., and Benson, J., con-
curing.
West J.. dissenting.
A true copy.
Attest: D. A. VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
LEGAL.

similar allegation. Some weeks there
after, a deposition of the motorman hag-
ing been taken, she tiled an amended
petition alleging that the injury occurred
by reason of a sudden jerk while the car
was being brougt- to a stop. In. one Of
the instructions the attention of the jury
was called to the duty of the railway
company in respect to. sudden start
after a full stop and also to its duty in
respect to bringing it to a stop and keep
ing its gates open in the meantime. Held.
that in view of the answer and the theory
on which the case was tried by the street
railway company, such reference to the
sudden starting of the car does not con-
stitute reversible error.
4. Where the plaintiff and two wit
nesses testify substantially that the in
jury was caused by a sudden jerk before
the car had been brought to a fun stop,
and former motormen Experienced in the
op grafton of the same kind of car testify
that such jerk might occur and would
occur unless the car was properly equip
ped and operated, held, that the liability
of the street car company is sufficiently
shown to uphold the verdict.
All the Justices concurrlng.
A true copy.
Attest: d. A VALENTINE.
ISealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 16, 926.
Minnie NJ. TaWney, Appellee,

The Atchison, Topeka & santa Fe Rail-
way Company. Appellant.
Appeal from Franklin County.
REVERSED.
Syllabus BY the Court Porter. !.
! 4 cause Of action based upon negli-
qence can exist only where the defendant
wrongfuIIy fails to perform some duty
oSeo ~ 10 an acfion rounded upon negli-
gence. where the jury find that the de-
PENDANT was not guilty of any. OF the acts
of negligence charged, verdict N FAVOR
If the 6laintiff can not be permitted to
stand.
A true copy. r,-~,1,
TGea1 / Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1886.
w. B. Beach, Appellant
VS..
Solomon Fireovid. Appellee.
AnneaI from Cloud County

Solomon Fireovid. Appellee.
Appeal from Cloud County
SYLLABUS. BY the Court. BENSON :
Section 5235 OF the General Statutes OF
1868. which provides that it shall be uni "a,
full for either husband or Wne SWh 15 , Ina
Tel n nor or otherwise, upon personal
Of either which h ,d is of
botb "does not prevent the owner of sucn
pToperty from turning it over IN goo goo.
faith to a creditor in payment OF a ae tied
such a transaction is in legal erect an
absolute sale, and not mortgage
All the Justices concurrlng-
.t taue 0Op' d. A, VALENTINE,
TSesiI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 16,947.
NJ. Hiiligoss, Appellee,


The Missouri, Kansas & Texas Railway
Company, Appellant.
Appeal from Labette County.
AFFIRMED.
Syllabus. BY the Court. Mason. j..
l. In an action for damages from fire
IL is not error to admit evidence of the
value per ton of a crop of timothy and
clover destroyed, or OF the cost of re-
storing q hedge to it's former condition.
2 Error in striking out the testimony
of an Inspector that he found spark ar
roster to be in first class condition held
fimony that no repairs were made at the
time because none were needed.
g. In an action against railway COM
pany for a fire caused by the operation
of it's railroad, In view Of the statute
creating a presumption that a fire so
caused is the result of negligence, it is
NOT necessary in order to sustain a YER
dict for the plaintiff that the jury shall
be able to specify in what respect the de-
PENDANT was negligent; and where in re-
NV to special questions whether the de-
PENDANT was negligent in several distinct
particulars the jury state that they do
NOT Know. it is not error to refuse to re-
O,1ire more definite answers.
4 In such an action an erroneous in
strlction as to the degree of care required
of the company in the construction of its
engines is non-prejudicial where the jury
find that It has failed to diSprove negli-
yence in the inspection and operation of
The engines which caused the fire.
All the Justices concurring-
Attest: D. A. VALENTINE,
TSealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1891.
George G. Griffin ct al, Appellants,


The Fredonia Brick Company Appellee
Appeal from Wilson County.
REVERSED.
SYLLABUS. BY the Court. Buren,, j.
/. It is the duty of a brick making
company which mines shale by means OF
a steam shovel to use reasonable care
to put the rough bank produced by the
operation of the steam shovel in con con
dition, and to keep it in q condition.
which will render the work of employees
necessarily performed in proximity TO the
bank reasonably safe from all cavlng nat
uraliy TO be anticipated in consequence
when it is said that workmen as
sumo the risk of injury from the sponee
taneous caving of banks, the falling OF
shale earth and rock loosened by natural al
agencies, and other perils inher1ng IN
work about a shale pit. the contingencies
referred to are those which. arise AFTER
tine master has used reasonable diligence
to make the place reasonably safe:
g. The evidence examined and round
to be sufficient to justify a jury in find
ing that the appellee was guilty OF action
able negligence.
All the justices concurr1ng
Attest: D, A. VALENTINE,
TSeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 16,704.
F. J. Feight, Appellee,

o. L. Thistler, Appellant.
Error from Republic County.
AFFIRMED.
Syllabus. BY the Court. Johnston. G. J..
contract of sale that if the animal
sold is not as warranted and may
be returned to the seller if it is as sound
as when sold and where the animal turns
out to be unsound and unfit for the pur-
pose for which it was purchased and the
buyer is induced by the seller to retain
the animal and attempt to cure it of in
trinity and defects by remedies furnished
by the seller. the condition for its re-
turn is waived and the fact that it is not
returned will not preclude a recovery of
damages for the. breach of the warranty
q Where an offer based on an alleged
settlement pleaded in an answer is not
accepted by the plaintiff and a trial is
had that results in verdict which is set
aside by the court and a new trial grant
ed and the offer in the answer is not
withdrawn and the plaintiff then files an
acceptance of the offer and moves for
Judgment on the pleadings and the
the proposed acceptance is a compliance
with the conditions of the offer and does
not withdraw the offer nor object to the
hearing because the offer is no longer
available. the offer will be deemed to oe
a continuing one and upon the acceptance
court is warranted in entering judgment in
conformity Wien the offer and acceptance.
g. BY proceeding with the hearing as TO
plaintiffs compliance with defendant
offer without demanding jury the par
ties are deemed to have waived a jury
al of the question of fact involved.
All the justices concurring.
A true COPY.
Attest: D. A VALENTINE.
TSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1912.
William Lewis. Appellant,

Company. a CORPORATION, Appellee.
Appeal from Crawford County.
AFFIRMED.
Syllabus. BY the Court. Johnston, G. ].
An experienced miner, who was engaged
in driving mules through the entries of a
mine which were of varying widths, drove
place where the entry passed through a
horseback which was so narrow that
there was not room for the driver between
the cars and the wall. He stopped to hook
on another car and the mules started
without warning and before he could get
out of the way he was AVN between the
car and the wall and injured, Held, that
the obvious fact that the entry was so
narrow at that point as not to afford room
for the body of a miner between the car
and the wall was not culpable negligence
towards the miner.
All the Justices concurrlng.
true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
LEGAL.

like loss of his own stock by the same
means.
3. Special findings that gate had been
closed but that, on the occasion OF the
collision il had been blown open by the
wind because of the insecure fastentngs
OF the gate, are held to be without sup
port in the testimony.
Ali the Justices concurrlng.
AttaSt. d. A. VALENTINE,
TSesIi Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
LEGAL.

sound discretion with reference to the
number and form of special questions
which the parties request the court to
submit, provided proper direct and ma
terial questions, not repetitions, be SUBJ
mitted.
D. Interest cannot be allowed on an
award of unliquidated damages, before
judgment.
All the Justices concurring.
3 true copy.
Attest: D. A. VALENTINE,
LSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
D. A. VALENTINE.
Clerk Supreme Court.
No. 1885
NJ. H. Buehler. Appellant,

Joseph L. Teetor. ct al, Appeliees.
Appeal from Scot County
REVERSED.
SYLLABUS BY the Court Benson. ]
1. When one without claim of title
occupies and uses land. heretofore vacant
and unoccupied, as the property of the
holder of a tax title thereon, with the
knowledge and consent of such tax title
holder. and in subordination of his title
and the tax deed is valid upon its face
and has been Of record for more than five
years, the holder of the tax title is held
to be in actual possession. and may main
tain an action of ejectment against a
party who wrongfully dispossesses him
2. In the circumstances stated in the
foregoing paragraph, a party who has SO
dispossessed the owner of the tax title,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1882.
Thomas Duggan, Appellant,

No. 17,452
Thomas Duggan, Appellant,
The City of Emporia, Appellee
Appeal from Lyon County.
AFFIRMED.
Syllabus. BY the Court Porter J.
1. It is a principal of general applica-
and holding of an election.
?. Injunction being an extraordinary
remedy, will not be granted unless it be
court of equity that some substantial and
positive injury will occur; acts, which
though irregular and unauthorized can
have no injurious result, constitute no
ground for the relief.
J. Courts of equity will not enjoin the
calling and holding of an election in q, city
of the second class under the initiative
and referendum statute on the ground of
alleged Irregularities in the petition or be-
cause the proposed ordinance to be sub
Inftted to the electors purports to author
ize the city to perform act which it
is claimed is ultra wires.
4. In a suit by an individual taxpayer
of a city of the second class to enjoin the
tors under the initiative and referendum
a proposed ordinance authorizing the city
to lease or sell its electric light plant, the
court will not anticipate condition. which
may never arise, and since the people may
not by their votes adopt the ordinance the
court will not inquire into the validity of
the proposed transaction.
All the Justices cOncurrlng.
A true copy.
Attest: d. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1851.
No. 1851.
Martha Overly and Sarah E. Overly, APP
pellants,

No. 1851.
Martha Overly and Sarah E. Overly, APP
pellants,
VS..
David Angel, ct al. Appellees.
Appeal from Lyon County.
AFFIRMED.
Syllabus BY the Court. Johnston, G. j.
/. Plaintiffs, who claimed to be the
equitable owners of an estate alleged and
undertook to show that their uncle en-
tered into an agreement with his wife
that he would execute will giving all
his property to his wife on condition that
she would in turn leave the property
to plaintiffs; that he had made the Will
in compliance with this agreement and
had fastened a trust upon the property
in favor of plaintiffs but that the wife
had failed to carry out the agreement on
her part and had died without making d
will. 20 sustain their contention it was
necessary for plaintiffs to show by clear
and convincing proof that the agreement
was made and a trust created in their
favor The trial court found against their
contention and under all the testimony It
is held that the finding must be approved.
All the justices concurring.
Attest: I'D. "A. VALENTINE,
ISeau Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14

No. 16,90S
Mary ]. Stouffer ct al, Appellants,
Richard D. Harlan ct al, Appellees-
Appeal from Lyon County.
AFFIRMED.
Syllabus BY the Court Porter. j.
l. A mortgage lawfully in possession
of the mortgaged premises can not be
ousted or deprived of his rights by force,
stealth or fraud, or by the mere IN
trusion Of the owner of the equity or
redemption against his will or without his
knowledge.
answered claiming absolute ownership
and possession. The reply set up ludg-
ment between the same parties in form
er action in which it was held that the
defendants were not the absolute own
ers but were mortgages in possession,
and that plaintiffs remedy, was to re-
deem. Held that the reply brought upon
the record of former judgment in its en-
tirety, for all purposes, notwithstanding
some of it's provisions favored defendants,
and that the issues were thereby broad
ened sufficiently to authorize the court
in determining the rights of the parties
under the former judgment to give effect
to all it's provisions
All the justices concurring-
A true copy.
Attest; d A VALENTINE.
ISeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14

No. 1850.
The New England National Bank of KAN
sas City, Missouri, Appellant,


Mat Dick and Mary Dick. Appellees.
Appeal from Barton county
AFFIRMED.
Syllabus BY the Court west, j.
A customer of local bank renewed
for the seventh time a note Tor cert
Indebtedness, leaving the former notes
and other papers at the bank Sometime
eral weeks before it was due, the maker,
having a good balance on deposit, was
requested by the cashier, who met MN
on the street, to pay the note by having
it charged to his account, the CASHIER , IeIi-
ing him the note could be had by Gaining
for it at the bank, to which the maker
consented Soon thereafter the cashier
sent the maker one of the former renew.
ais with a statement showing an ltei n,. %
interest improperly charged. The MAKER
supposed the note was the last renew d.
but made no investigation concerning II
or the interest charge, but beneVed ana
continued to believe he mad pald tne ueof'
The note in question, the last renewal
was soon after its execution by the Dank
Endorsed to the appellant with other notes
to secure a loan made by the appellant
10 the bank. The note IN quesni Io fa tllea
and went into the hands OF a receiver
i'm January, 1908. The appellant never
presented the note which was made pay
able at the bank, and never notified the
maker of its dishonor or that 1t had been
transferred by the bank, until after the
failure. The jury found that the bank
was authorized by the appellant 70 col
1ect the note before it was due and that
The bank intended to collect it when the
amount thereof was charged TO the MAX
ers account. ...,s
Held, that the appellant is not entitled
to recover.
Attest. d. A. VALENTINE,
Ts,eaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
pooL AND BILLIARD TABLES.

FOR SALE-New and secondhand BILL
lard and pool tables and bowling alleys
We lead the world in cheap bar fig.
lures; easy payments. Send for catalogue.
Brunswtck-Balke-Co llender Co.. 1871
Main street. Kansas City. Mo.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1928.
J. B. Bertrand, Appellee,

J
The Kansas City, Mexico & Orient Rail-
way Company, Appellant
Appeal from Sedgwick County.
REVERSED.
syllabus BY the Court Johnston. c. J.
l. An owner through whose farm a rail-
road is built and fenced and for whose
convenience and benefit private cross
ing IS made and gates are put in so that
ne can pass from one part of his farm
to the other, has control of the gates and
the duty of keeping them closed rests
upon him.
3 Ordinarily a third party whose stock
are trespassing upon the land through
which the railroad is built and pass
through a gate left open by such adjoin-
ing owner. and are injured or killed by a
railroad train. has no better right to re-
cover from the railway company for the
loss than would the adjoining owner for
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 16, e54.
U. S. Banking Company. Appellee,

U. s. Banking Company, Appellee,
Anna Wilson Veale, Appellant
Appeal from Shawnee County.
AFFIRMED.
Syllabus. BY the Court; Johnston. c. j.
/ Foreign laws differing from our own
and which are relied on to support a cause
of action or a defense must be pleaded
>. Under the proof it is held that in
Mexico a wife may become a surety for
her husband and guarantee the payment
of his debts. l.
renewal of one given by her husband, by
reason of a statement of one who was a
surety on her husbands obligation, to
the effect that if she did not then sign
the obligation 1t would be great detr1-
nient to her husband and result in loss
and damage to him is held, under the
attending circumstances, not to have
been constrained by dureSS.
4 Ordinarily it is not duress to bring
a.. threaten to bring an action to enforce
a valid obligation, nor to do that which
a party has legal right to do.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
TSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14

ST don't know whether like that young
mans frankness or not" remarked the
business man. What did he say?'' IT
asked him if he enjoyed work. and he said
no. but he would do it for the sake of the
MISREPRESENTATION Star.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
LEGAL

to the petition and to refuse a restraining
order.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal.] Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
No. 1898.
Lawrence Hayden, Appellee,

The Missouri, Kansas & Texas Railway
Company, Appellant.
Appeal from Labette County.
AFFIRMED.
Syllabus. By the Court Mason: j,
In an action for an injury by a fire
an instruction that the plaintiff may re-
cover the value of the answered timothy
and clover, in addition to the reasonable
cost of restoring the field to its original
condition is not necessarily erroneous.
All the Justices concurrlng.
A true copy.
Attest. d. A. VALENTINE,
TSeai1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14

No. 1882.
]. W. Armstrong, ct al, Appellants
va.
SnniI.. George ct al, AppelleeS.
Appeal from Saline County.
AFFIRMED.
Syllabus. BY the Court. Benson.
l. high school is established within
the purview of chapter 210 of the laws of
1909, concerning high schools, when it is
brought up to the standard and meets the
requirements prescribed in the Barnes
high school law, CHAP. 397. Laws of 1900
although the school was in existence
when the last named act took effect.
2 The title of chapter 210 of the Laws
of 1909 is sufficient. within the constitu-
bill shall be clearly expressed in the title.
8. Objections to the constitutionality Of
the -5arnes law and chapter 21O Of the
Laws of 1909, concerning high schools,
are not sustained 6Following Board of
Education v Allen County, 50 Kan. 7S2
and The State ". Pauley, IS Kan. 1861
All the Justices concurrlng.
true cUpy.
Attest: D. A. VALENTINE.
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
d. A. VALENTINE,
Clerk Supreme Court.

No. 1870.
The Rossville State Bank, Appellant,
VS..
J. NJ. Heslet, Appellee.
Appeal from Shawnee County.
AFFIRMED.
Syllabus By the Court. Benson. J.
A promissory note, otherwise in negotia-
BILE form, contained the following provis-
ion:
THE makers and endorsers of this note
hereby severalIy waive presentment for
payment, notice of payment, protest and
notice of protest and all exemption that
may be allowed by law, and valuation and
appraisement laws waived, and each
signer and endorSer makes the other s.ix
agent to extend the time of this note"
1t is held that the note is not negotia-
BILE instrument.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-14
LEGAL.

although holding under the original patent
title, can not avail himself of infirmities
in the tax deed, not appearing upon its
face, to defend an action of ejectment
brought by the holder of the tax title.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
TSeaI1 Clerk Supreme Court.