davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 19,491.
Richard B. HOvis, Appellee,


The Cudahy Refining Company, Appellant
Appeal from Montgomery County.
AFFIRMED.
Syllabus. By the Court Marshall j
1. In an action for personal injury
in furnishing a tool which was not in a
reasonably safe condition; second, in fail
ing to furnish competent fellow workmen ;
and third, in not warning the employee of
the dangers incident to the work in which
ne was engaged, peremptory instruction
to find for the defendant because there
was no evidence to show negligence on its
evidence to establish any of the three
grounds alleged.
2. A judgment will not be reversed be-
cause an instruction which might have
properly been given refused. where IL
does not appear that the party complaining
was prejudiced thereby.
3. 1t is proper to submit to the Jury
the question of employers negligence
In furnishing a tool not in reasonably
ing such negligence, where the evidence
shows that pieces of steel would fly from
the tool when in by workmen, and
that such pieces would not fly if the tool
were kept in proper condition.
f. Section As of chapter 21S of the Laws
of 1911, giving the defenses of contribu-
tory negligence and assumption If risk to
provisions of the act, and denying those
defenses to an employer who does not elect
to come within it's provisions, is not un-
constitutional.
All the Justices concurring.
true copy.
Attest: ID. A VALENTINE
lSeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 1902.
c. +. Harder, Appellant,


The Yates Center Water. Light, & Power
Co., ct al, Appellees
Appeal from Woodson County.
On Re-hearing.
AFFIRMED.
Syllabus. By the Court. Porter, j.
l. Whether a mandatory injunction
quiring a restoration of the property to
its former condition should be granted
usually depends upon the consideration of
the equities between the parties.
2 In suit by which plaintiff sought
to enjOin the erection of a dam in a stream
which he claimed is natural watercourse
no restraining order temporary in
junction was obtained, and when the cause
was tried the dam had been in existence
for more than four years. 1t was erected
by the defendants for the purpose of fur
nishing a supply of water to a city. There
was testimony to the effect that the dam
diverted the natural flow of the stream
through portions of plaintiffs land and
in times of high water caused about
acre of pasture land of the plaintiff to be
submerged. The court made find
ings of the facts but rendered a judg
ment in favor of defendants. Held, that
no error is shown in the refusal to grant
a mandatory injunction requiring the des-
tructiOn of the dam and the restoration of
the stream to it's former condition.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
lSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 19,509.
John j. Anderson, Appellee,

VS..
c. e. Heasley, Appellant.
Appeal from Saline County
AFFIRMED.
Syllabus. By the Court. Marshall, J.
L.. False representations, with respect
state lands, represented to have been is
sued under the law of the State of Colo
RADIO, may be the basis of an action for
damages the ground of fraud
2. In an action for damages for false
representations, a demurrer to the evidence
should be overruled, when there is suffi-
Gent evidence to sustain the plaintiffs
case.
3. When false representations are made
to induce another to purchase lease of real
property, and at the time of the discovery
of the fraud the lease has expired and
nothing was held under it, it is not error
that the plaintiff was bound to disafffrm
the purchase and claim right under
the lease
f. The instructions given have been ex-
amined, and substantial error is found
in any of them.
5. 1t was not error to refuse to submit
to the jury this question
IF you find that any Misrepresentation
were made concerning the land lease.
state what such misrepresentation were,
and when and where made" and in place
thereof to submit the following question:
IF you find that any Misrepresentation
were made to plaintiff by defendant, state
in regard to what matters such inisrepre-
sensations were made"
All the Justices concurrfng.
A true copy.
Attest: D. A.. VALENTINE,
tSealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 10, 4S3.
Carl Anderson, Appellee.

No. 49, S3.
Carl Anderson, Appellee
Preston Sterrit, Appellant.
Appeal from Wyandotte County.
Division No
AFFIRMED
Syllabus. By the Court Burch, J.
1. The plaintiff. who was riding. BIZ
cycle, was injured by the defendant, who
was driving automobile on one of the
streets of the city of Kansas City Missouri
In an action for damages sustained ON ac-
count of the injury it appeared that the
plaintiff had no license to ride his bicycle
and carried no light. contrary to an ard
nance of the city. The absence of license
was not factor causing the collision and
the defendant testified that he saw the
plaintiff when he was long distance from
Of collision. Held, neither violation of the
ordinance constituted defense to the ac-
ton.
2 Special findings of the jury consid-
cred and held not to be conflicting, and
held further that the findings of fact and
general verdict sustained by the evil
dence.
All the Justices concurring.
Attest ID. A. VALENTINE.
ISeal.l Clerk of Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No 10 O2O
J. D. Rose and Eta May Rose, Appellants,

No 10 020
J. D. Rose and Eta May Rose, Appellants,
Farmers and Mechanics Bank. of Osowato-
mic. Kansas, Appellee
Appeal from Miami County.
AFFIRMED.
Syllabus. BY the Court Porter J.
1. In an action to recover damages for
on lands claimed by plaintiffs. as their
homestead, it is held that under the facts
shown in the evidence and findings there
was no error in instruction which
charged that If the plaintiffs at some time
occupied the land as a homestead and the
reason they left the premises, it would not
lose its homestead character, provided they
proceeded within reasonable time to make
preparation for the return of the same, but
without any act on their part to prepare
for a residence on the premises was cir
cumstance to be considered by the jury in
determining the character of the absence
from the land and the intent of the plain
tiffS.
2. In view of the evidence an instruction
is approved which charged that if the jury
found from the evidence that plaintiffs took
step to show their present intention to
erect buildings for the purpose of residing
upon the land a homestead and in fact
never occupied it as homestead, it would
PENDANT
3. In the present case there was error
in refusing to grant new trial in view of
the findings of the jury based upon suf-
had never occupied the premises as home
stead.
All the Justices concurring.
true copy. -
Attest: D. A. VALENTINE.
[Seal1 Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 1882.
Art S. Steele, Plaintiff,


The Farmers G. Merchants Mutual Tele-
phone Association, Defedenant.
Original Proceeding in Mandamus.
WRIT ALLOWED.
Syllabus. BY the Court. Burch, J.
L. Bylaws of a private corporation or
ganized under the provisions of chapter %
of the General Statutes of 1909 which re-
quire election to membership in the corpor
alton by the board Of directors before
transfer of stock will be registered,
which require a stakeholder to offer his
stock to the corporation at not to exceed
par before selling elsewhere, or which 9th.
shares of stock as personal property, ex
cept that all previous assessments must be
paid and the transfer must be made on the
books of the corporation according. to such
reasonable formalities as may be pre-
scribed, are void, considered either as by
laws of the corporation or as contracts
with stockholders.
3 The statutes of this state forbid
private corporations organized under the
statute referred to to purchase their own
capital stock unless necessary to obtain
or secure payment of debts or dues owing
the corporation.
All the Justices concur-ing.
true copy.
Attest: d. A. VALENTINE.
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
IIEGAIL

heavy passenger train was speeding towards
from a point in plain view half a mile
away, and the occupants of the car
in seeking to crank the car and to push 1t
from the track, and where the engineer
of the train applied the emergency brakes
as soon as he had chance to discover
that the car was stalled on the track but
the train was not stopped in time to pre-
vent collision, the railway company
cannot be held to have been negligent nor
liable in damage for the value of the car.
All the Justices concurring.
true copy
Attest: d. A. VALENTINE,
lSeaL1 Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 19,50S.
Lola Hoskinson, Appellee.

NO. lS,OUo-
Lola Hoskinson, Appellee.
H. B. Smyser, and Mrs. II. B. Smyser.
. Appellants.
Appeal from Finney County
AFFIRMED.
Syllabus BY the Court. West. j.
1. A physician and surgeon who had
examined the plaintiffs mouth with the
aid of an X-Ray machine was competent to
testify as to the character of the work
done by the defendants employee in at
tempting to extract a tooth as was also a
dentist of eight years practice who had
also examined the mouth.
2. Proof of some of the alleged acts of
negligence WIS sufficient without proof of
all.
8. Exclusion of evidence of the amount
demanded before beginning the action
held, immaterial.
4. An instruction that proof of lack
Of ordinary care and skill was required
was not rendered erroneous by the omis
sion in one sentence of the qualifying
word Ordinary"
8. An instruction touching a pertinent
fact proved without objection on the trial,
though not expressly alleged, held, proper.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
LEGAL.
No. 10. 1876.
William Jockey and Charles Jockey, APP
pellees.


G. Yockey, ct al. Appellants.
AFFIRMED.
Syllabus By the Court Burch, j.
Ch1idren OF an aged and infirm land
owner entered into an agreement relating
TO the land which secured portion of the
tract to deaf mute son, with ultimate
the owner his widow and all his children
Joined In sale of the entire tract but the
proper share of the purchase money was
placed to the credit of the beneficiary of
the contract, who was presently adjudged
TO be OF feeble mind and who later died.
The fund was considered, treated, and ac-
counted for as belonging to the beneficiary
OF the contract under such circumstances
as to estop the widow and heirs of the de-
ceased landowner to deny that the fund
became his property, passed to his guard
ian, and then to his administrator. After
wards the administrator procured an adj
jud1caton of the probate court that the
fund had been mistakenly inventoried as
a part of the estate in his charge, and that
it belonged to the widow. Within five
years after the adjudication the children of
the beneficiary brought suit in the district
court to determine title to the fund. No
final settlement of the estate has been
made. HELD: 1. The existence of a con-
sfderat1on for the contract at the time it
was made is not now material. 2. The pro-
bate court had no power to determine title
proper remedy in the proper forum. 4.
The action was not one for relief on the
ground of fraud and was not barred by the
statute of limitations.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSeal.1 Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
LEGAL
No. 10,
G. G.. Butler, Appellee.

No. 19.46S.
G. C. Butler, Appellee.
John f. Miner ct al, (F. L. Goodnight,
Appellant)
Appeal from Clark County.
REVERSED AND REMANDED-
Syllabus. BY the Court Dawson, j.
Where the appellant traded an autom9-
and NEITHER party to the trade mentioned
the assumption of the mortgage, and the
assumption clause in the deed obligating
the appellant to pay the mortgage, but the
appellant never saw the deed nor learned
Of the assumption clause until long after
he in turn had traded off the barn, the ap-
pellant could plead the scriveners mistake
against one who purchased the mortgage
long after its maturity and such defense
raised an issue of fact which appellant had
right to have submitted to jury.
All the Justices concurring.
A true-copy.
Attest: d. A. VALENTINE.
tSeal.] Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 1926.
o. NJ. Hager, Appellant.

No. 1926.
o. NJ Hager, Appellant.
Dick Foale, Appellee.
Appeal from Edwards County.
AFFIRMED.
Syllabus. By the Court. Dawson, J.
Where there is no assignment of error
and the abstract and brief of appellant
only show the determination of the jury on
conflicting testimony, the judgment must
be affirmed.
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, 1915-05-12
No. 10, 498.
w. h. Cox. Appellee,

No. 19,498.
w. h. Cox. Appellee,
vs.
Fred F. Chase and e. A. Chase, and Fred
F. Chase and e. A Chase, partners as
Chase Brothers. Appellants.
Appeal from Chase County
REVERSED.
Syllabus By the Court. West j.
l.. A contract to pasture certain cattle
during the season in a named pasture,
which the owners of the cattle had never
seen, implied an agreement to supply wa
ter well as grass.
2. Under the contract in question the
plaintiff owner is held for ordinary care to
keep such pasture supplied with water and
to give the defendants timely notification
in case of it's failure.
3. Such ordinary care was a question
for submission to the jury upon competent
evidence under proper instructions.
f. Failure of water rendered the pasture
valueless and worked a failure of consider
alton which together with any damage
properly shown should be deducted from
the contract price of the pasturage for the
season.
All the Justices concurrfng.
A true copy.
Attest: D. A. VALENTINE,
[Seal1 Clerk of Supeme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 10. 453.
W. r. Stewart, Appellee,
w. B. Murphy. Appellant.
Anneal from MonfgnInerv Count,

W. b. Murphy Appellant.
Appeal from Montgomery County
AFFIRMED.
Syllabus. By the Court. Marshall, j.
1. An objection. that causes of action set
out in petition are inconsistent. not called
to the attention of the trial court will not
be considered when presented for the first
time in this court.
2 AS against lessor, or anyone hold
ing under him, covenant of quiet enjoy
ment of the premises is implied, In a lease
silent on that subject.
3. Loss of profits when they can be as
certained, is a proper measure of damages
where, by act of a lessor, the tenant is de-
prfved of the use and occupation of the
premises covered by the lease.
premises on the first day of his term, does
not thereby obtain possession thereof
where the premises are in the rightfuI pos
session of a prior tenant.
B. There Is nothing in this case to in
dictate that the verdict was given under
mistake. or the influence of passion or
prejudice, nor that the verdict and iud9-
ment are contrary to the evidence.
All the justices cOncurring
A true copy
Attest: d. A. VALENTINE.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
d. A. VALENTINE.
Clerk Supreme Court.
No. 1897.
J. n. Spaeth, Appellant,

Wesley Kouns, Appellee.
Arreal from Saline County.
REVERSED AND REMANDED.
Syllabus. By the Court. Dawson, J.
1. The testimony of a Missouri lawyer
of fifteen years experience and of a Mis-
souri, abstractor of titles of twenty years
experience, neither contradicted nor dis
credited, is sufficient to base judgment
that the title to tract of Missouri land is
merchantable and vested in the record own
er free and clear of membranes.
3 One who makes bargain to trade
real estate properties with another cannot
avoid his contract on the indefinite plea
that the title of the other is encountered
by liens and clouds so that the title is
satisfactory, understandable and defec-
tive without pleading any specific de-
fects, and without even adducing any evil
dence in support of such indefinite plea.
= 3. 1t is not proper for the district court
to disregard the evidence of witnesses com
petent to testify to the sufficiency of
title to land in another state, and without
either pleading or proof of the law of such
other state, to pass judgment by inde-
pendent examination of the abstract
4. 1t is not proper for the district court
to give judgment on an issue not fairly
raised by the pleadings.
All the Justices concurring except
Burch, J., who did not sit.
A true copy.
Attest: ID. A. VALENTINE,
ISeaLl Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 1915
c. E. Hartman, Appellee,

No. 19,45S
c. E. Hartman, Appellee,
Edward Dickinson and George w. Me
geath, Partners, etc, Appellants.
Appeal from Crawford County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
In action on account of injuries re-
sulting from explosion of gas in
mine, held that the evidence was sufficient
to support the judgment, that the instruc-
tons were not misleading, and that the
amount was not excessive.
All the Justices cOncurring.
true copy.
Attest: d. A. VALENTINE
ISeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
LEGAL.


claiming adversely to the estate. Their
power to decide what shall be done with
does not include the power to decide what
property the deceased owned.
2 The five year statute ed sub. Sec Is
Civil Code) was never intended to bar an
action brought to recover real estate by
one who claims title from source para
mount and superior to an administrators
deed.
8. The heir or devisee having a title
paramount to, independent of and separate
from that claimed by the decedent may
bring an action to quiet title or to recover
possession irrespective Of the five year
statute.
4. Where a patent to land has been is
sued by the United States government to
the heirs Of deceased persons, the land
becomes no part of the estate of the de-
ceased and cannot be sold by order of the
probate court to pay his debts or the costs
and charges of administration. (Rogers v:
Clemmans, 26 Kan. SO Coulson v. Wing, AZ
Kan. 5O7, p Pac 570.)
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
lSeal-] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
No. 19,497.
Hugh A. Lennon, Appellee.

NO. 1897.
Hugh A. Lennon, Appellee.
W. Eugene King, Appellant.
Appeal from Wyandotte County.
division No. p
REVERSED.
Syllabus. BY the Court. Mason, J.
One who in good faith reports to a
police officer the violation of city ordi-
nance, and at the same time asks that the
violator be arrested. but does not assume
to say what steps shall be taken to that
end, Is not thereby rendered liable for
damages because the arrest is made with
out the issuance of warrant
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
FOR EXCHANGE.
$50 Kansas Ave.

EXCHANGES room, almost new, strict
ly modern house on Western avenue with
large barn. Want smaller house, Oakland
or Highland Park.
$50 acres unimproved, Ness Co, priced
right. Want small rental Topeka.
S. C. KERSEY, Mulvane Bldg Phone IS.
DRUG STORE, fine location, eastern part
of Kansas. Doing good bushes. Cheap
rent. Invoice about $4,000. Will trade for
good Topeka residence. This store has
never been on the market before. Come In
and talk over the proposition. Stephenson
& Webb. Gil Kansas ave.
TEN room house, 3 blocks from avenue
Gas bath, city water, cellar, ~ lots
Upstairs rooms rented for $50. Newly
papered this spring. Will trade for small
tract and room house close to car, south
of city. Call 654.
TRADE FRANKLIN COUNTY FARM.
Well improved, well located, price $1,000
with mortgage of $710O, and owner will
trade equity for western land, city resi-
dence or other good property.
LAYTON BROS, Osborne, Kan
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12

No. 19,493
Wlodyslaus Roman, a miner oy Jospeh
Roman, his next friend, Appellee,
The City of Leavenworth a municipal cor
s poration, Appellant
Appeal from LeavenwOrth County.
AFFIRMED.
Syllabus. BY the Court Dawson, J.
The law of this case was fully stated
in Roman v. City of Leavenworth, 80 Kan.
379, 133 Pac. 551
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, 1915-05-12
FOR RENT-STORE ROOMS.

FOR RENT-STORE ROOMS.
FOR RENT-Store room for up-to- date
barber shop at 402 E. 4th st. Will re-
model to suit good tenant. New floors,
bath hot and cold water etc. Call phone
$40.
NEW BUILDING fine location, at 129
Kansas ave. for Il garage.l Will
change front to suit tenant Call at COL
East 4th st. phone Go.
STORE ROOM at III East ifth street
Steam heat and water furnished. BetZer
Realty & Loan Company.
FOR RENT-Store room 100 Kansas
ave All modern. Fine electric fixtures
Call phone 61U.
STORE ROOM, 119 e. 9Th street $50 per
month w. NJ Forbes x Co. Phone lilo.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
D. A. VALENTINE,
Clerk Supreme Court.

No. 1927.
The Citizens State Bank of Grainfie1d,
Appellee,
VS..
Bernice Houser and J. c. Houser, Appel
lants.
Appeal from Cove County.
REVERSED.
Syllabus BY the Court. West J..
An examination of the record disclosed
some evidence fairly tending to support
the defendants contention and it was
therefore error to direct a verdict for the
plaintiff.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal.] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-05-12
D. A. VALENTINE,
Clerk Supreme Court.

No. 194T3.
The st. Joseph & Grand Island Railway
Company. Appellant,
The City of Hiawatha and William Edgell,
Appellees.
Appeal from Brown County.
AFFIRMED.
Syllabus. BY the Court. Burch, j.
The action was one to enjOin the city
from constructing a sewer across certain
was proceeding to construct the sewer
without first making an assessment of
II of the constitution providing that no
right of way shall be appropriated to the
sation therefor be first made in money. or
secured by a deposit of money: to the own
Improvement proposed by such corporation,
does not apply and that the city was not
obliged to make an assessment OF damages
with the sewer.
All the Justices concurring-
tSeal] Clerk Supreme Court
Arvilla Cadwalader and Anna ]. Vinson-
haler, Appellants,
G An 81 Py yrem ct Na all APGP onbsx
AFFIRMED.
Syllabus. By the Court. Mason, J.
l. Evidence that person suffering from
part in conversations at different times
to indicate that he had a reasonably clear
luea OF MS cOnQlt1On, SuTTOunu1nSS anu
purposes, is sufficient to support a finding
that he had capacity to make change of
residence, Notwithstanding the testimony
of physicians that he entirely incapa-
bic of transacting business and did not
know the effect of his acts.
2. If the present statute providing that
in certain cases mo person shall be allow
ed to testify in his own behalf in respect
70 any transaction or communication had
personally by such party with deceased
person, ever applies to witnesses who are
not parties, its disqualification does not
extend to one who is interested in the
suit of the action only by virtue of being
the husband or wife of a defendant against
All the Justices concurring-
A true copy.
Attest: D. A. VALENTINE,
ISeal.1 Clerk of Supreme Court