The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-01-13

January Il. 1871
SUPREME COURT SyLLAbI.
No. 1s.101.
J. F. Beard. Appellee.
The City of Kansas City. Kansas. Appel
Appeal from Wyandotte County.
Third Division.
REVERSED.
syllabus. BY the Court Smith. }.
!. The appellee. having recovered judy
ment on the merits. was entitled to re-
cover costs under the general rule. section
cos Of the General Statutes or 1900
e Under the statute .he appe1;e. IN this
action was entitled to recover DAMAGES
only for INJURIES which occurred. within
-FOUR months prior t. July :. 1870.
All the Justices concurring.
Arrest: "A. VALENTINE.
tcealJ Clerk supreme Court
No. 19.1s7.
Matte Marney. Appellant,
]. d. Joseph, Appellee.
Appeal from Butler County.
REVERSED.
Syllabus. BY the Court. Johnston, Z. ;.
I. demurrer to an answer may ne
carried back to q petition ana the SUM.
cheney Of the petition tested upon that
challenge although a previous demurrer &c
the petition had been considered ana over
ruled
2. Upon a demurrer to an answer which
is carried back to q petition the piainuH
will not be deemed to have admitted ane-
cations in the answer which are inconsls.
ent with and contradictory OK those liz
cluded in his petition.
g. False statements made by guardian
Of an insane ward to relatives OF his ward
p I'M" dis ;n9 c,. ama saa,nst the ward
and his estate are not within the RUE ci
absolute privilege.
4. Neither will the false stateme .n'1
above referred to be conditionally PRIV,
ileged IL they were not spoken in eocd
faith in the performance OF he guardian
duty and without q malicious purpose nor
not pertinent to the subject - thin the
privilege Of the guardian to write and pub
lish
All the justices concurring.
Attest: D. A. VALENTINE.
(SealJ Clerk Supreme Court
Milton E. Bailey. and Louisa r. Bailey,
Appellees,
John Kelly. Appellant.
Appeal from Cloud County.
REVERSED
Syllabus. By the Court. Burch !.
A landlord leased a vacant property
upon which there was a els ern covered py
loose lid lying upon a slightly raised
platform. The lease was without war
lords part. The covering of the cistern
was exposed to plain view and its charac-
ter was observed by the tenant when he
entered. The tenant used the cistern Tor
nearly two years In this cond ton when on
a laundry day the lid was not carefully
replaced after a drawing Of water and
servant Of the tenant stepped on cor
ner Of the lid lying over the opening into
the cistern was precipitated into the els
tern. and was drowned. The cistern was
located in a shed in the rear Of the
kitchen OF a building used by the tenant
for a restaurant. When the deceased COM
menced working for the tenant he point
ed out to her the location of the cistern
but in six weeks service which occasion
ally brought her in proximity to the els
tern the fact that the Id was loose was
not brought to her attention. It Is held:
/. The landlord is not liable In dam
ages for the death Of the servant upon
the theory that the cistern was q NUS
ance, or upon the theory that he was gull
ty Of actionable negligence, upon any
other theory sustained by existing law.
2. The decision of this court rendered
upon the occasion Of former appeal
BAILEY v. Kelly, 86 Kan Oil. 122 Pac. 102D,
holding the landlord liable. Is overruled.
Smith, j.. Porter, j.. West, j., concur
ring.
Johnston. G. j., Mason, J., and Benson,
j., dissenting.
A true copy.
Attest: D. A. VALENTINE,
tSeaLJ Clerk Supreme Court