davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
d. A. VALENTINE,
Clerk Supreme Court.
No. 2O,O51

No 20.051.
T. ID; Coney and ,4S9 other Electors of the
City of Topeka, Kansas, Plaintiffs.
The Mayor and Commissioners of The City
of Topeka, ct al, Defendants.
Original Proceedings in Mandam mus.
WRIT ALLOWED IN PART.
Syllabus. By the Court Dawson, J.
L. Application of the familiar rule of
statutory construction that where the leg
1slature enormously uses one word or fig
ure for another and the context affords the
means of determining conclusively the leg
islative intent, the proper word or figure
will be deemed substituted therefor.
2. The sufficiency of petition to the
mayor and commissioners of city of the
first class asking that election be called
to determine whether such city shall aban-
ron its commission form of government
should be tested by the number of regis
tered voters whose signatures appear on
such petition.
B. Where such petition is insufficient,
the statute requires that it be returned to
the petitioners
All the justices concurring.
A true copy.
Attest D. A. VALENTINE,
ISeaL Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 19,412.-
Eugene Miller and Ida Miller, Appellees.


No. 19,412.=
Eugene Miller and Ida Miller, Appellees.
Armour & Company and The Armour Car
Line, let all, Appellants
Appeal from Wyandotte County.
I'D Division.)
ring Denied.
Reversal Sustained.
Opinion Denying a Rehearing.
Syllabus. By the Court. Marshall, J.
1. An employer is not liable for an in
jury to his employee caused by the non
negligent act of a fellow servant of the
injured employee
. If the place where an employee works
is dangerous, and the dangers are open and
known, and an employee continues to work
at that place, making no complaint or sug
gestion concerning such dangers, he as
sumes the risk connected with his work.
All the Justices concur-:ng.
true copy.
Attest: d. A. VALENTINE,
LSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1850.
Frank Atkinson, Appellee,

No. 1880.
Frank Atkinson, Appellee,
The Missouri Pacific Railway Company,
Appellant.
Appeal from Cowley County.
AFFIRMED.
Syllabus. BY the Court. Burch, J.
A contract between a railway company
and a landowner for farm crossing with
out gates, forming part of the considera-
ton for the railway right of way across
the owners land, is not contrary to the
public policy of this state indicated by
its. statutes and the, contract may be spe-
officially enforced by he landowner al
though he has had considerable trouble
about cattle getting killed at the crossing
and the railway company desires to erect
gates to avoid killing the plaintiffs cattle
and to protect the public,
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1885.
Martin Ballou, Appel


The Atchison, Topeka & Santa Fe Railway
Company, Appellant.
Appeal from Harvey County.
REVERSED.
Syllabus By the Court. Dawson, J.
1. Where Il railway engineer on n dark
and foggy morning ran his train so rapidly
that he could not stop before passing n
block signal which was set at stop" and
to save himself from being caught in an
impending collision with the rear of an
other train short distance beyond the sig
nal, jumped from his engine and was in
jured, and where the company had failed
to include such other train in the order
furnished him listing the trains he would
meet and pass, thus leading the engineer
to expect no other than the clear" signal
at that place, the issue becomes in effect
one of comparative negligence, and under
Chapter 21S Laws of 1911 a recovery is not
barred by the engineers ontributory neg
ligence.
>. Assignment of errors considered and
a new trial ordered, but its scope restricted
authorized by Civil Code sec. 3O7.
Johnston, G. J., Mason, j., West, J.,
Marshall, J., cOncurring.
Burch, J., and Porter, j., dissenting lin
part).
A true copy.
Attest: ID. A. VALENTINE,
lSealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
d. A. VALENTINE,
Clerk Supreme Court
No. 19,460.
Marion A. Tatlow, Appellee,


Marion A. Tatlow, Appellee,
w. L. Bacon and Bert Rucker, Appellants,
ct al
Appeal from Shawnee County.
division No. =
AFFIRMED.
Syllabus. By the Court. Mason, J.
1. The evidence held to support the find
ing of a conspiracy on the part of the de-
PENDANTS to defraud the Plaintiff of his
land by inducing him to exchange it for
worthless deed - tt,.- .,
,. Where the verdict and special find
ings returned by jury show an inconsist-
ency in amounts, apparently due to a mis-
take in computation, no error is commit
ted i'll calling their attention to the matter
and sending them for further delibera-
ton.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
ISeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1883.
Oral r. Yount, Appellee,

NO. 1Y.533.
Oral r. Yount Appellee,
l.. w. Hoover Sheriff of Cowley County,
Kansas, Appellant.
Appeal from Cowley County.
AFFIRMED.
Syllabus. By the Court. Marshall j.
/. The judgment creditor is not neces-
sary party in an action to en- join sheriff
from selling the property of u third per-
son under an execution issued on a judg-
ment in action to which such third per-
not party.
p An action can be maintained by the
owner of real property TO enjoin its sale
under execution issued a Judgment
against another person in action to
which the owner of the property was not
a party.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
[Seal.j Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1880.
Zelora Roberts, Appellee,


The Charles Wolff Packing Company, A
Corporation. Appellant.
Appeal from Shawnee County.
division No. -
MODIFIED.
Syllabus. By the Court. Johnston, c. J
l. In case of partial incapacity the
rule for measuring compensation due to an
injured employee, under the workmen's
compensation act. is prescribed in section
IL of that act while the limitations as
to the amount of recovery are fixed by
section IL of the act.
.. In the action of plaintiff for com
pensation it was agreed that his average
earnings prior to tie accident were So
per week and 1t was found that the aver
age amount which he would probably be
able to earn after the accident was IS per
week; his compensation, therefore. under
the act would be fifty per cent of the diff
ference in the earnings before and after
the accident to-wit. 4.50 per week
3 While an employer may be allowed
redemption from liability under an award
of compensation in the form of periodical
payments by paying eighty per cent of the
amount of payments that will become due
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
LEGAL.

1909, requiring the statement to be filed
with the city clerk within four months
after the injury.
3 1t is the province of the jury to
weigh the facts and differences where there
is a conflict in the evidence. and it is error
for the court to sustain demurrer where
there is any evidence to sustain the plain
tiffs case.
All the Justices concurring.
A true copy.
Attest: D. \. VALENTINE,
[SeaI.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1856.
Rosa L. Rowland.

NO. 1Y.J56
Rosa L. Rowland, Appellee,
r. r. Cowan and Minnie NJ. Cowan.
Appellants.
Appeal from Chautauqua County
AFFIRMED
Syllabus. BY the Court West +
The trial court having from conflicting
evidence fairly found that the defendant
mad procured the plaintiffs real estate by
exchanging therefor worthless Securities
represented to be good, the decree that
the defendant reconvey upon paymnet to
ments and return of such securities. or
pay plaintiff such sum and have the title
PENDANT
All the Justices concurring.
A true copy.
Attest. d A. VALENTINE
lSeal.I Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 19.5GS.

June Katcllffe, q MINOR, etc, Appellant,
Robert Speith, ct al, Appellees-
Appeal from Cherokee County.
(Sitting at ColumbuS.)
Syllabus. BY the Court. Johnston, c. J.
l. Ordinarily it is the duty of person
operating automobile in street in
which there is IA group of children playing
not only to bring his automobile under
control but to give warning of approach
and to manage his car with reference to
the risk that children may not exercise
the care for their protection that
adults expected to exercise.
, Whether the defendants, who were
driving automobile along a street in
which Il number of children were playin e
and collided with and injured one of them
and who approached the children without
signals or warnings, exercised ordinary
care whether the plaintiff, who was
over thirteen years old and who started
across the street without looking for or
observing the approach of the automobile
which coming at moderate rate of
speed, guilty of contributory neglig-
ence, were questions for the determination
of Il jury
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, 1915-06-16
No. 1851.
Jennie B. Withers, Appellant,

Jennie B. Withers Appellant,
Carolina A Barnes and Hiram Wilson
Barnes, Appellees.
Appeal from Leayenworth County.
AFFIRMED.
Syllabus. By the Court. Dawson, j.
l. The facts concerning the delivery of
deed considered and held sufficient to
constitute a valid delivery
2 See 2966 Gen. Stat. of 1909 abolishing
Joint tenancies and survivorships does not
make it unlawful for grantor to convey
an estate to two grantees the survivor
of the two; and the survivor may lawfully
take the entire fee under such 4 convey
Ali the Justices concurring.
4 true copy.
Attest: d. 4. VALENTINE,
ISeal.l Clerk of Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1854.
Mary E. Hackney, Administrators, Appellee


No. 1854
Mary E. Hackney, Administrators, Appellee
Missouri Kansas & Texas Railway Com
pany, Appellant.
Appeal from Labette County.
AFFIRMED.
Syllabus By the Court. Marshall. J.
l. Under the federal employers liability
act part 1, 30 L. S. Stat. at Large, CHI
149. U. s. Comp. Stat. 1913 Secs. 1851
S665), in an action for injury received by a
fireman In train collision caused by an
other train crew in negligently leaving a
switch open, where the fireman was guilty
of contributory negligence in not seeing
the danger light at the open switch, as
sumption of risk because of such cOntribu-
tory negligence will not defeat n recovery.
>. When two acts of negligence by diff
ferent employees contribute TO Il train col
lision, one of such acts can not be safd
as a matter of law, to be the sole proXi-
mate cause thereof
3. Under the federal employers liability
act, contributory negligence goes to a
diminution of damages, and it is for the
jury to apportion such damages.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
LEGAL.
No. 1921.
Anita p. Packard. ct al, Appellee

No. 1921.
Anita L. Packard. ct al, Appellees,
Clarence f. Packard, ct al. Appellants.
Appeal from Dickinson County.
REVERSED.
syllabus By the Court. Dawson, J.
l. The presumption that q grant of
eighty acres from a father to a minor
was an advancement may be overcome by
surrounding circumstances: and by parol
evidence of statements made by the father
either before or after the grant following
Martin V. Shumway, 50 Kan. S92 1872 Pac.
993.
> The presumption that a grant of nine
ty acres from a father to two minor
children was an advancement may be over
come by surrounding circumstances and by
parol testimony of district judge who
divorced their father and mother and who
influenced the father to deed the property
direct to them for their support, mainten-
ance and education rather than to their
mother whom he thought an unfit person
to hold the title
). In this state. the presumption that a
gilt by a father to his child is intended
as an advancement is not statutory but
is merely a rule of law adopted by the
courts in furtherance of equitable di-
vision of his property among his children,
ana this presumption should not be
strong or so hard to overcome as to bring
about the inequitable result which such
presumption was intended to prevent.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSeal-I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1926.
Celeste Wickham, Appellee,

celeste Wickham, Appellee,
The Traders State Bank, Appellant.
Appeal from Saline County
AFFIRMED.
Syllabus. BY the Court. West, J.
\ husband doing business in the name
of corporation mortgaged an automo-
bile. asserting it to be the property of
such corporation, and later absconded His
wife procured decree of divorce and was
awarded all his personal property within
the Jurisdiction of the court. She claimed
the car under the decree and proved that
1t was exempt necessary implement
for her husbands in his business Held
that having established the exempt quality
of the property which she wife took by
the decree, she is not estopped bound
by the husbands represen tations to the
ownership of the car.
All the Justices concurr1ng.
A true copy.
Attest: d. A. VALENTINE,
lSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1898.
The State of Kansas, Appellee,

7 ne SIdIe OF NHnSaS Appellee,
Frank Wheeler Appellant.
Appeal from Washington County.
AFFIRMED.
Syllabus. BY the Court. Burch, J.
1. The evidence examined and held to
supply omissions which occas stoned the re-
versal of former judgment against the
defendant.
.. Various questions of law considered
and found to be definitely determined
against the defendant by previous decisions
of this court.
All the justices concurring except Daw-
son, J.. who did not sit.
A true copy
Attest: d. A. VALENTINE.
lSeal. Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1876.
Louisa ]. Morlan, Appellee,

Paul ]. Loeb, Appellant.
Appeal from Washington County.
AFFIRMED.
Syllabus. BY the Court. Marshall J.
A mortgagor, who sells mortGaged real
property to one who assumes and agrees
to pay the mortgage, may maintain an
action against such grantee to recover the
amount left unpaid after a sale of the
property a foreclosure of the mortgage,
and judgment against the mortgagor for
the deficiency, without paying the judg-
ment.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
lSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1870.
Mason H. Kirk, Appellee,


Mason H. Kirk, Appellee,
Fraternal Aid Association, Appellant.
Appeal from Sumner County.
REVERSED.
syllabus By the Court Marshall. J.
l. A fraternal aid association under a
charter granted in 1894 authorizing it to
pestow substantial aid upon totally dis
aoled members, and under section 1903
OF the General Statutes of 1909 is not
authorized to issue certificate providing
Tor the payment of a specified sum to the
holder thereof upon his reaching the age
of seventy years, without regard to wheth-
er or not there is any disability, and if
Such a certificate is issued it can not now
be enforced against the association.
2 Where the holder of beneficiary
certificate in fraternal aid ASSOCIATE
agrees IN his application for membership
that his contract shall be governed and
controlled by all the orders, rules and reg
uiatlons of the order then in force or
that thereafter may be enacted by the
general council of the association or to
submit to all the penalties therein contain
ed; and that the application shall become
a part of the contract, the association has
authority to change the benefits to ac-
crue under the certificate so as to make
them conform to the charter of the associ-
alton and the laws of the state.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
loeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
D. A. VALENTINE,
Clerk Supreme Court
No. 1885
The Aultman & Taylor Machinery Com
pany Appellant,

No. 1885.
The Aultman & Taylor Machinery Com
pany Appellant,
f. Schierkolk, Appellee.
Appeal from Washington County.
REVERSED.
Syllabus BY the Court. Mason, j.
!. One who after contracting to buy an
engine, subject to inspection, examines all
of it except the fire-boX, and omits to eX-
anime that because he could not do so with
out soiing his clothes is not as a matter
of law precluded from relying upon state
ments fraudulently made to him by the
seller regarding it's condition, or from
making Euch statements the basis of Il
rescission of the contract for fraud. Wheth-
err a sufficient reason existed for emitting
complete inspection is question of fact
to be determined upon all the circumstances
of the case.
=. The evidence held not to show con-
clusively, matter of law, that the cleo
ton of buyer to rescind contract of
sale for fraud was not made with suffi-
cient promptness to be effective.
3. Where a written contract of sale
is complete, and covers the matter of war
ranty, the buyer can not rely upon prior
or contemporaneous oral representations as
to the condition of the property as con-
shutting Il warranty.
All the Justices concurrinG.
A true copy.
Attest D. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
LEGAL

are deemed to be substantially correct
and the findings of the jury held to be
sustained by the evidence
All the Justices cOncurr1ng.
\ true copy.
Attest: D. A VALENTINE.
[Seal.J Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 19.2S9.
Sarah E. King, Appellant,

The City of Parsons, Appellee.
Appeal from Labette County.
REVERSED.
Syllabus BY the Court Porter, J
1. In an action to recover against city
for damages caused by defective side
walk statement complying in all respects
with the provisions of section $40, General
Statutes 1909. giving the time. place and
circumstances of the accident was handed
to the city clerk at his residence Mt IL 10
p. NJ The next morning the clerk took the
notice to his office and stamped it filed
that date. which was one day more than
four months from the time plaintiff was
injured. HELD. that there was a COM
pliance with section $40, General Statutes
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1854.
Ida Fair, Appellee,

Ida Fair, Appellee,
J. w. Nelson and L. A Nelson, Appellants.
Appeal from Reno County.
REVERSED.
Syllabus By the Court. Burch, J.
The evidence examined and found to be
insufficient to sustain the claim of con-
tract to give property at the death of the
owners to Il girl who made her home with
them from the time she was seven years old
until she was eighteen, in consideration of
her services.
All the Justices concurring.
n true copy
Attest: d. A. VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
MOVING.

FENIMOkE- MckNAUGHr MOVING
Co. Household goods 81 90 per large
van load. Expert furniture packers. Phone
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1872.
@. II. Livick, Appellee.

Piqua State Bank, corporation, Appel
liant.
Appeal from Woodson County.
AFFIRMED.
Syllabus BY the Court. Porter, J.
The provisions of section 5202. General
Statutes 1909 authorizing d mortgagor to
recover from the Mortgagee 500 DANA ges
for refusing to enter satisfaction of Il
real estate mortgage is not in conflict with
section 6, article of the constitution
which declares that the proceeds of fines
for any breach of the penal laws shall be
exclusively applied to the support of COM
mon schools.
All the justices concurring.
A true copy.
Attest: d. A VALENTINE.
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 1851.

No. 1g.571
The Stevens Scott Grain Company, APP
pelant,
The Atchison, Topeka & Santa Fe Railway
Company, Appellee
Appeal from Sedgwick County.
division No. -
MODIFIED.
Syllabus. By the Court Mason, J.
L In an action against a carrier for
damages on account of the injury to or
destruction of property in transit, interest
is not recoverable
>. A carrier which sells property be-
cause of the refusal of the consignee to re-
ceive il. is charged BILE with interest on the
proceeds in excess of the freight, during
the time they withheld from the
shipper.
Ali the Justices concurring.
y true copy.
Attest: d. A VALENTINE,
[SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
No. 20.O4S.
Lizzie Il. Piatt, Appellant,

No. 20.O4S
Lizzie Il. Piatt, Appellant,
Frank A. Flaherty, ct al, Appellees.
Appeal from Pawnee County.
MODIFIED.
Syllabus. BY the Court. Johnston c. J.
l. Under the provisions of section 40 of
the civil code giving the owner of real
property sold on execution the right to re-
deem the same within eighteen months
from the day of sale the redemption period
is reckoned from the day on which the
property is stricken off by the officer
making the sale rather than from the
time when the sale is confirmed.
. Where sale has been set aside by
the district court and afterwards the order
setting aside the sale is vacated and the
sale confirmed and an appeal is taken
from the latter order and the litigation is
continued until after the statutory period
has expired it is competent for the court
to give the owner an opportunity to re-
deem within q reasonable time after the
litigation as to the right to redeem has
been concluded.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
lSeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16
D. A. VALENTINE.
Clerk Supreme Court.
No. 1859.
1nnaS E~nnI1tri~

No. 1859
Sadie Adams, EXecutriX, Appellant,
The lola Electric Railway Company and
The City of lola, Appellees-
. Appeal from Allen County.
REVERSED.
Syllabus. By the Court. Burch, J.
The evidence examined and held suffi-
cient as against Il demurrer to warrant a
finding of liability the part of the rail-
way company and the city for the death
of Il traveller on an unpaved street whose
horse became frightened at approaching
car, turned sharply around. and overturned
the buggy in which the deceased was riding
because the front wheel of the buggy
caught against rail of the street car track
which extended much above the surface OF
the street.
All the Justices concurring.
a true copy.
Attest: D. A. VALENTINE,
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-06-16

NJ
Richard ]. Brown, Appellant,
Edward Oesterreich, Appellee.
Appeal from Dickinson County.
REVERSED.
Syllabus. BY the Court. Dawson, J.
In action for specific performance of
a contract for the sale of Il farm, the issues
and plaintiffs evidence examined and held
sufficient against u demurrer to the evil
dence.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seal.l Clerk Supreme Court.