davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1886.
Hugh Russell, Appellee,


J. B. Watts, ct al, Appellants.
Appeal from Greenwood County.
AFFIRMED.
Syllabus. BY the Court. West J.
l. In an action for damages the plain
tiff-s counsel started to assert in his open
ing statement that the defendants had suf-
fered no pecuniarv loss because indemni-
fled when he stopped by the court
and the jury were carefully instructed to
disregard such suggestion. whereupOn the
defendant requested that the jury be dis
charged, which request was overruled.
HELD, that such ruling was not error.
. Permitting further testimony by the
plaintiff after he had rested and de-
murrer had been interposed with within
the sound discretion of the trial court and
not error.
3 Certain variations between the allie
cations and the proof were not fatal for
the reason that the evidence nevertheless
furnished clear and sufficient support for
the conclusion that the plaintiff without
PENDANT was injured substantially in the
manner alleged
a Instructions which clearly and sub
stantially state the law applicable to the
facts in controversy will not be held bad
for mentioning one or two unnecessary
matters incumbent upon the defendants
in the operation of their work.
8. An action for damages at common
law is not governed as to the sum to be
recovered by the basis fixed for recovery
under the workmen'S compensation act.
All the Justices concurring-
A true copy.
Attest: ID. A VALENTINE,
LSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1862.
Helen F. Ryan and Docatah S. Ryan, Ap-
pellee,
No. 1862.

No. 1862
Helen F. Ryan and Docatah S. Ryan, APP
pellee,
William J. Cullen ct al, civilian J. Gull
len, Appel1ant)
Appeal from Leavenworth County.
AFFIRMED.
Syllabus. BY the Court. Dawson, !.
l. A teStator made will bequea ching
life estates to his six sons and daughters
with power in each at their direction to
their respective shares of the fee. Three
of the sons became financially involved
and submitted to judgments in favor of
their mother and on execution the sheriff
sold the interests of the three debtors
ter of the three debtors. On an issue as
to what sold by the sheriff. it is
minable life estates of the three debtors.
g After the above proceedings trans
pired, the three sons conveyed their shares
of the fee to the wife of one of their num-
of the power of disposition conferred upon
them by their fathers will and had the
effect of terminating their life estates and
vested their shares of the fee in their gran
tee absolutely
g. Where by the terms of a will the
power and discretion to terminate life
estate is vested in a beneficiary, this pow
er is personal; and it is not property
execution.
f. decree cancelling deed and re-
Quiring a reconveyance of whatever I'M
determined interests were the considera-
with undisputed findings of fact pertain
ing thereto will not be disturbed on ap-
peal.
Attest: D. A. VALENTINE,
[Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL.
No 10000

No. 2O,OO2.
In re Cornelia v. H. McCoun, Petitioner.
Original Proceeding in Habeas Corpus
Writ Allowed.
Syllabus. By the Court. Johnston, c. J.
1. Ordinarily the domicile of child is
the domicile of parent and where a
father the surviving parent who had the
custody and control of his children, dies
the probate court of his domicile at the
time of his death has Jurisdiction to ap-
point a guardian for his minor CHILDREN
2. Under the statutes surviving par,
ent may, in his last will, designate and
appoint a guardian for his minor children,
and herein it is held that the guardian
designated in the last will of the father of
the minor children is vested with the
same powers and required to perform the
same duties natural guardians exercise
g. However appointed it is competent
for the court to inquire whether the
guardian is fit and proper person to
execute the trust and in such an inquiry
the paramount consideration is the well
fare of the children. Upon this inquiry 1t
is held that the testamentary guardian,
whose appointment was confirmed by the
probate court of the domicile of the
father of the minor children. is not
shown by the testimony to be an unfit or
improper person to have the care and
custody of the minor children.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1886.
w. H Dodderidge, Appellee,

No. 1886.
w. II. Dodderidge, Appellee,
J. F. Bacon. Appellant.
Appeal from Morris County.
AFFIRMED.
Syllabus. BY the Court. Porter J.
In an action to recover the first payment
on the purchase price of land ON the groun d
that the seller refused to comply with the
terms of the agreement and execute a
conveyance it is held that the petition
states a cause of action, that there was no
error in the instructions and that the judg-
ment in plaintiffs favor must be affirmed.
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, 1915-07-17
No. 1880.
f. ID. Thompson, Appellee,

vs.
The Aultman & Taylor Machine Company
and C. II. Glazier, Appellants.
Appeal from Sedgwick County.
division No II
AFFIRMED
Syllabus By the Court. Mason, J.
L The evidence held sufficient to take
to the jury the question whether the agent
of the owner of an automobile, VINO was
driving it at the time of a collision, was
2. In an action by a husband to re-
cover for the loss of his wife's services
through an injury to her occasioned by
the negligence of the defendant, it is not
error to instruct that the term services
includes whatever of aid, assistance, com
fort and society the wife would be expected
to render or bestow upon her husband in
the circumstances in which they we're sit
uated-
All the Justices concur--ng
A true copy.
Attest: d. A VALENTINE,
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 2O,O17.
The State of Kansas, Appellee,

Mary Ann Smith. Appellant
Appeal from Saline County.
AFFIRMED.
Syllabus. BY the Court Porter, J.
l. The law does not require the state
to disclose in the first instance that the
prosecuting officers in a liquor prosecu-
ton had notice or knowledge of the Of
Tense when the complaint was sworn to.
.. In this case the record does not
affirmatively show that neither the prose-
cutting officer nor the complaining wit
ness had notice or knowledge of the Of
tense when the complaint was filed
g. Instructions examined and held not
subject to the objection that they author
lied convictions for offenses not charged.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaIl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1922.
J. f. Duggan, Appellee,

j. F. Duggan, Appellee.
VS..
The Missouri Pacific Railway Company,
Appellant.
Appeal from Bourbon County.
Affirmed in part; Reversed in part
Syllabus. By the Court Johnston. c. j.
L. Except for newly discovered evidence
a motion for a new trial must be filed
within three days after the rendition of
the verdict decision unless "unavoidably
prevented" and party who alleges that
he did not learn and by due diligence
could not have learned within three days
after the verdict of certain misconduct of
the jury in the trial of the case upon
trial is not unavoidably prevented. from
filing the motion within the meaning of
the stateutory Limitation.
2. Upon an examination of the special
findings and admitted facts it Is held
that the defendant was not entitled to have
Judgment rendered in it's favor.
Burch, J., Mason, J., Porter, J., West J.,
Marshal, J. and Dawson, j., concurring.
Johnston, c. J., dissenting.
A true copy.
Attest: d. A. VALENTINE,
CSeal Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 19,461.
Mary SasSo, Appellee,

No. 19,461.
Mary SaSSo. Appellee,
Gustav Carlson, Appellant
Appeal from Shawnee County.
division
AFFIRMED.
Syllabus. by the Court Burch, J.
Assignments of error relating to the
su1tlclency OF the evidence to sustain the
instructions. and relating to the refusal
of the court to grant new trial because
of inability to procure the attendance or
evidence of absent witness, examined
and held not to require the reversal OF a
judgment for damages for personal in
juries sustained by the plaintiff oy being
run down by an automobile while cross
ing a city street.
All the Justices concurring.
a true copy.
Attest: D. A VALENTINE.
tSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 19,43S.
The Cambria Mercantile Company, APP
pellee,

No. 19,43S.
The Gambrin Mercantile Company, APP
pellee,
VS..
J. III. Allen. Appellant.
and
Margaret Allen.
Appeal from Sumner County.
AFFIRMED.
Syllabus. BY the Court. Porter ].
1. In an action against husband and
wife to recover for goods sold and deliv
cred the petition alleged that defendants
purchased and plaintiff sold and deliv-
cred to them the goods mentioned and that
the same had not been paid for. A copy
showed that the goods were charged to the
husband HELD, that the petition states
a cause of action against both defendants.
.. The separate answer of the wife adj
mitted purchasing the goods but alleged
the husband was the head of the family;
that the goods were suitable reasonable
and within the means of the husband and
were used in the family atl denied her
own liability. On appeal by the husband
from a judgment against himself alone it
is HELD, that the court rightly denied his
motion to strike from the wife's answer Ali
but the general denial, and that his OBJ
jections to her testimony in support of her
separate defense were properly overruled.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
LSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 19,101.
J. f. Beard, Appellee,

J. F. Beard, Appellee,
The City of Kansas City, Kansas, Appel
liant.
Appeal from Wyandotte County
(Third Division)
Opinion Rehearing.
Syllabus. By the Court. Marshall, J.
1. No judgment for costs can be rem
dered against city of the first class in
any action brought against it for damages,
unless the claim therefor is presented in
writing as required by section 1853 of
the General Statutes of 1909.
2. In action against a city of the
first class having a commission form of
government, the plaintiff is limited to the
injury sutained during the four months
preceding the filing of the written state
ment required by section 1918 of the
General Statutes of 1909; and the evidence
as to the injury sustained should be con-
fined to that period of time.
3. Where a city improves a street and
causes water from heavy rainfall to over
flow adjacent premises. the owner of the
premises may maintain an action for
damages caused by the overflow, but such
an action must be brought within two
years after such overflow it will be
barred by subdivision 8 of section II of
the code of civil procedure. (Gen. Stat.
1909. sec. $500
All the Justices concurring.
true copy.
Attest: D. A VALENTINE,
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1861.
E. L. Miller, Appellant,

Albert s. Thayer. Appellee.
Appeal from Saline County.
AFFIRMED.
Syllabus By the Court: Marshall. ].
In an action of replevin to recover
stock of goods under a chattel mortgage
made to secure the payment of a note
given in part payment for the purchase
OF the goods, the defendant mortgagor
may set out as a defense and counter
claim a cause of action which has ac-
crued to him on account of fraud practiced
on him by the mortgage when the goods
were purchased.
All the Justices concurring-
true copy.
Attest d. A VALENTINE.
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1857.

No. 1857.
II. o. Janicke doing business as The
Washington Telephone Company, Appel
lee,
The Washington Mutual Telephone Com
pany, Appellant.
Appeal from Washington County.
AFFIRMED.
Syllabus. By the Court. Burch, J.
1. A contract between the plaintiff and
the defendant, proprietors of two telephone
systems serving different constituencies,
and the city in which the central offices
of the two systems located, permit
ting the defendant to the streets of
the city certain conditions, providing
for free exchange between the patrons of
the two systems, and providing that the
defendant shall not install local tele
phones during the life of the PLAINTIFFS
franchise, examined and held to be con-
sistent with public policy.
. Held further, that claimed right
the part of the defendant to rescind
the contract because of admitted
mutual mistake of law regarding the
thority of the city council to exclude the
defendant from using the streets of the
city not sustained.
All the Justices concurring.
A true copy.
Attest: d. A. VALETINE.
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17

No. 20. 1875.
Chester O'Neal and Edgar Bomgardner,
Partners. etc. Appellants.
W. H. Harrison, ct al. Appellees.
Appeal from Reno County.
REVERSED.
Syllabus. By the Court. Mason. !.
Under a statute giving it power to make
regulations to secure the general health. to
prevent and remove nuisances. and to com
pei and regulate the removal of garbage
and filth beyond the corporate limits. n
city may grant exclusive right to the
highest bidder to remove all garbage, the
term being defined, in the ordinance Gu-
thorizing the action, to mean 'all rejected
food offal." In Lowe. Petitioner, 81
Kan. 757. 80 Pac- TO. overruled.
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, 1915-07-17
No. 19.463.

No. 19.463.
Ezekial l. Denver Of the
pellee,
The Atchison, Topeka and Santa Fe Rail-
road Company, Appellant.
Appeal from Shawnee County.
Syllabus. By the Court. West. 7
1. The general verdict and findings be
ing supported by competent evidence and
approved by the trial court will under the
settled rule be upheld.
,. There are degrees of experiences and
witnesses who by experience, study and
observation know more about the subject
in question than persons who have had no
experience or especial knowledge touching
such subjects are competent to testify as
experts, the weight of their testimony be-
ing for the jury.
3. After the explosion of the locomotive
boiler in question the conductor came for
ward and found the engineer dead and
the place where he lay, and about five
whereupon the fireman regained conscious n
ness and quickly stated to the conductor
that the water glass showed about half full
address and asked to have his over clothes
taken off as they were burning him. He
appeared to be suffering. HELD, that
under the circumstances his statement as
to the water-glass was competent as part
of the gestae in an action by the adj
ministrator of the engineer against the rail
road company.
bilities of financial support from the son,
had he lived, could not exceed $4.GGO a
verdict OF $4,000 should be reduced to the
former
A witness who had examined the boiler
which had exploded, testified by deposi-
ton giving his opinion to the ca-Ise of
the explosion. after which the defendant
sought to introduce the deposition of an
not used, for the purpose of showing by
the copy of a coroner's verdict thereto
attached that the witness who had served
on the coroner's jury had signed verdict
that the cause of the explosion
known to the jurors, thereby tending 10
contradict his testimony given by ,leDosi-
ton. His attention not called to this
copy but it was offered without his having
had opportunity to examine explain
it and its exclusion was not error
All the Justices concurring.
A true copy.
Attest: ID. A. VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1861.


The Atchison, Topeka and Santa Fee Rail-
way Company, Appellant,
The City of Hutchinson ct al, Appelfees
Appeal from Reno County.
AFFIRMED
Syllabus By the Court. Burch r.
1. Section of chapter 90 of the Laws
of 1911 merely limits the power of cities
of the first class having a certain popula-
ton to make levies for opening, widening
and bringing to grade streets, for building
bridges. culverts and sewers and for foot
walks, to mill on the dollar and does
not repeal section 125 of chapter 122 of the
Laws of 1908 (Gen. Stat. 1909 sec 9S9)
authorizing cities OF the first class to levy
taxes for general improvements except i'm
provements for which special assessments
are made.
3 The act of 1903 referred to authorizes
cities of the first class to levy tax of
one mill on the dollar for the purpose of
paying judgments. The act of 1911 limits
the levy for such purposes to one-fifth of
a mill. Such levy. may be made by
city of the first class having the prescribed
population although the judgments against
the city existing at the date of the levy
belong to class payable primarily out of
the general fund.
All the Justices concurring.
4 true copy.
Attest: D. A. VALENTINE,
ISeai-I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1861
Cora Chapman Cheever, Appellee,

No. 1861
Cora Chapman Cheever, Appellee,
Eugene A Kelly. Appellant.
Appeal from Leayenworth County.
MODIFIED.
Syllabus. By. the Court. Burch, j.
L. 1t is no defense to action for
overdue and unpaid installments of ali
mony awarded by decree granting the
plaintiff a divorce and alimony that the
decree was procured by the plaintiffs
fraud upon the court in presenting false
grounds for divorce and sustaining them
by false testimony, in which fraud the de-
PENDANT acquiesced because of false reDre-
Sensations made to him by the plaintiff
Respecting the state of her health
q When insta1lmentS of alimopy
awarded by a decree of divorce and All
mony become due and not paid they
NAV be collected by suit, Judgment and
execution although the decree provided it
should not be a lien on the defendants
property.
g. In an action by a mother to recover
expenditures for the support of a minor
child, made necessary because of the faith
er's neglect Of parental duty, none but
sums paid and reasonably necessary for
the purpose can be recovered.
All the justices concurrfng.
A true copy.
Attest. d. A. VALENTINE.
ISeaI.J Clerk Supreme Court
fContiuued ON Next PaRe1
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1899.
Ferd Rindt, Appellant,

VS..
Henry ROhlof and Clara Rohloff, APP
pelleeS.
Appeal from Marion County.
AFFIRMED.
Syllabus. BY the Court. Porter ].
In an independent action under section
308 of the civil code to obtain a new trial
the court properly considers the evidence
given on the original trial, the affi layirs
and counter affidavits relating TO newly
discovered evidence used on the hearing
of a motion for new trial in the original
action as well as the evidence in support of
the petition, and on the facts stated in the
opinion 1t was not error to sustain de-
murrer to the evidence.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE.
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. GOTTA.

No. 20.174.
The State of Kansas. ex rel, H. V. Wheeler
as Treasurer of The Library Board of
the City of Wichita, Kansas, Plaintiff,
o. H Bentley, Mayor, ct al, Defendants.
Original Proceeding in Mandamus.
Writ Granted.
Syllabus. By the Court. West, J.
1. After a city commission by proper
resolution under chapter I'D of the Laws
of 1915 decides to bring its public library
under the provisions of chapter 121 of
the Laws of 1908 and acts supplementary
thereto and amendatory thereof. such acts
then govern and their operation can not
be taken away by resembling the former
resolution.
2 After such resolution has been prop
erly adopted and the board of directors
for the library duly appointed and a mem
Der thereof chosen and qualified as treas
urer whose bond has been properly pre-
pared and approved by the library board
such bond should be approved by the city
commission and the city treasurer should
turn the library fund over to such treas
urer.
Johnston, c. J.. Burch, J., Mason. J.,
Porter, J and Marshall, J., concurring.
Dawson, J., concurring specially
Attest d. A. VALENTINE,
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17

No. 19,O5S.
William f. Perry, an Administrator, etc,
Appellant,
VS..
Edward G. Robertson, Appellee
Appeal from Sedgwick County, Div 2.
Former Decision of Affirmance Adhered
to
Opinion on Rehearing.
Syllabus. By the Court. Mason, j.
1. A petition upon a written contract,
maturing more than five years before the
action is brought, is demurrable unless it
shows some fact sufficient to interrupt
the running of the statute of limitations
statement that at the time the debt ac-
crued the defendant a resident Of
another state, which he afterwards left
is not sufficient, where more than five
years have elapsed since the date of such
change of residence.
2 The provision of the code (Civ. Code
Sec 21) that when a cause of action ac-
crues in another state, between nonresl-
dents of this state, and the statute of
limitations of that state has run,
ton thereafter be maintained upon
it here, is not exclusive; and where n
cause of action accrues in another state
between nonresidents of this state, and
the obligator comes here before action
thereon has been barred by the statute
of that state, the ordinary Kansas statute
begins to in his behalf, and unless
in some way interrupted within five years
creates a bar.
All the justices concurring.
true copy.
Attest: d. A. VALENTINE
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. oO.OS6

Dolly Murray, Appellee,
The Empire District Electric Company,
Appellant.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
l. Where a petition alleges injury
to have been caused by the negligent act
of the defendant, a demurrer is rightly
sustained to a part of an answer additional
TO a general denial which merely states
that the action of the defendant complained
of was rightful
>. demurrer is properly sustained, in
an action based upon the negligence of the
defendant. to a defense which merely
alleges that the injury complained of was
due to the negligence of a third person.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
ISeal1 Clerk Supreme Court.