davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1871.
Amelia Rodgers, Appellant.


The Chicago. Rock Island and Pacific Rail-
way Company ct al, Appellees.
Appeal from Riley County
AFFIRMED.
syllabus. BY the Court Johnston G 7
The plaintiff alleged that her husband
was a passenger on one of defendants
trains and that upon arrival at his destina-
ton he undertook to walk alongside the
train and while walking past a water tank
he slipped upon ice which been negIigentIy
allowed to accumulate there. feih under the
wheels OF the train and was Killed His
llfeiess body was found on one ade of the
track and his severed legs between the rails
OF the track He had expressed a purpose
to come to the place where he was killed
on one of defendants trains. No one saw
MIN upon the train, nor leaving it nor was
there any evidence that he had purchased
Icket Tor passage upon the train. No
PROOF was produced to how he han
pened to be killed, outside of the circun-
stances of the location of his body and the
conditions existing there. HELD, that the
evidence in the case. only part of which
has been stated, was not sufficient to show
that the defendant failed to perform any
duty which 1t owed to him and that his
death was the proximate result of defend
ants negligence.
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE
lStaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 20.102.
Luther c. Bailey, Plaintiff,

The city of Topeka, ct al. Defendants.
original Proceeding in Quo Warranto-
JUDGMENT FOR THE DEFENl)ANT.
syllabus by the Court Mason j.
1 The action OF city in granting to In
divfduals for pay. exclusive rights within
n public mark to operate refreshment and
lunch stands and to rent boats and bath
ing suits and towels and dressing rooms,
does not constitute a use of the park for
conflict with provisions Of the deed Of gift
by which the city acquired the property,
benefit of the public. and should be In
aIienablc by deed, gift, lease, or other
method.
= Sufficient power for the purpose in
dicntcd is conferred by statutes authoriz-
ing the city authorities 10 regulate" parks.
All the Justices concurring.
Attest n. A VALENTINE,
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
LEGAL.

delivery is made before a state line is
crossed.
8. In an action against carrier for the
expense incurred by "A shipper in furnish.
ing grain doors to box cars, the pla1ntlff
can not prevail by showing merely the
total cost of all the doors he had furnish.
ed. including an unascertained number or
items for which no charge could be made
because they accrued in Interstate ship
ments, after the interstate commerce COM
mission had forbidden the reimbursement
of such expenses unless provided in the
tariff. and before any tariff provision had
been made in that regard.
All the Justices coneuFring.
A true copy. -
Attest: D. A VALENTINE.
ISeaLl Clerk SUPREME Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1851.
s. e. Adams, Appellant,

No. 1851
s. e. Adams, Appellant,
vs.
e. K. Robertson, ct al, and The State of
Kansas, Intervenor, AppelIees.
Appeal from Barton County.
AFFIRMED.
Syllabus. BY the Court. Mason. .
l. The provision of the statute of 1913,
relating to the adjudication of claims to
Hereunder shall stand for trial with the
settler as plaintiff and the protestant as
defendant and shall be fully tried and
determined as other civil cases, implies
that the burden Of proof rests upon the
settler. -
r 2. Under the statute as it existed prior
to 1915 the only tracts lying within the
original banks of navigable rivers that
were ope1~te settlement as school land were
such as had at one time constituted ISL
g. A riparian owner is not prevented
from acquiring title by aeeretion by the
fact that the addition to his land is in
fluenced by ARTIFICIAL causes. in which he
has had no part.
4. The evidence examined and held not
structions in the river caused q sudden and
perceptible shifting of the bed Of the
stream.
B. Where a proceeding under the sta
tute of 1913, regarding island school land,
results in a determination against the
settler, the Judgment may include an or
der for his election from the premises.
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, 1916-02-19
No. 20.
State of Kansas, Appellee,

No. 20.230.
State of Kansas, Appellee,
VS..
f. +. Winner Appellant
Appeal from Linn County
AFFa ltMED.
Syllabus. BY the Court. West, J.
l. A charge that the defendant unlaw-
fully, wflifully. feloniously, ,purposely and
of deliberate and premedftated malice
killed the person named by shooting him
with gun. commonly called a revolver,
which was then and there loaded with
mean that the killing was done with DELHI
Grafton and reconciliation
>. The claim that the evidence did not
warrant verdict of guilty of murder In
the first degree considered and held to be
without substantial foundGtion.
3. charge that the jury could not ac-
quit unless each one of them entertained q
reasonable doubt of the defendants guilt,
while unnecessary and not to be COM
mended, wis not materially prejudicial p
4. The testimony showed that two young
homes Of each frequently. The error in
permitting u witness over objection to ties
tify to the conclusion that they were good
8. In describing a place with reference
to an obstruction of the defendants view
1t was not material error to permit a wit
ness to answer in part that a person nat
urally could see as big an object as the
one described
6. Rejected evidence of a witness that
defendant had attempted to sell his farm
prior to the shooting was not of sufficient
Importance to require reversal. the defend
fully when upon the stand.
An offer to prove that the deceased
assaulted and beat a certain boy and was
discharged from his employment on &C
count of his quarrelsOme nature and dis
position five years before the killing and
four years before any trouble was shown
to have existed between him and the de
| PENDANT, was properly refused, the admis
| sion of testimony thus remote in addition
| to recent evidence of numerous wftnesse,
being within the discretion Of the tria
court.
Numarous v-itnaSSes taat;fiad M Z.
the character and reputation of the defend
ant and the deceased for peaceableness o.
quarreisemeness SO that the jury had fai
and ample information as to these matters
Held that a refusal to grant a continuanc
on account of the sickness of another wit
ness who had been subpoenaed to testif,
mainly in relation to these questions, wa
not material error.
1 All the Justices concurring.
| A true copy.
| Attest; d. A. VALENTINE.
| ISea1l Clerk Of Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19

No. 1921
The Kansas State Mutual Hail Association,
Appellant
The Title Guarantee * Surety Company and
The American Surety Company, APP
pellees.
Appeal from Mcpherson County.
AFFIRMED.
Syllabus. By the Court Mason, J
1. In an application to n surety company
for a bond insuring the good conduct Of an
employee a negative answer was returned
TO the question whether he was indebted to
his employer. The sum of fifty dollars had
been advanced to him to enable him to meet
the expenses Of his employment. to be re-
turned out of his earnings. Held, that it
was not error to submit to the Jury wheth-
er this transaction should have been men
toned in answer to the question and
whether the failure to mention it proceeded
rom bad faith.
p Where defendant. instead of plead
ing. as he might have done, that one or the
her Of two conditions existed, either of
rhich served his purpose, pleads one of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1850.
Justus B. Linderholm, Appellant,

Justus Il. Linderholm, Appellant,
The Kansas Conference of the Swedish
Evangelical Lutheran Augustana Synod
in North America, Appellees.
Appeal from Mcpherson County.
AFFIRMED.
Syllabus By the Court. Burch, j.
The plaintiff was accommodated by the
church council of Bethany Lutheran church
at Lindsborg- and unincorporated religious
society of which he a member. The
bylaws of the church provided for an ap-
peal to the conference, a voluntary asso-
citation of Lutheran churches. The bylaws
also contained the following provision:
1.-THE decision of the conference in the mat
ter shall in all events be final" The plain
tiff appealed to the conference which rati-
fled the action of the council. The plaintiff
filed a motion for a new trial. The can
ference decided that the documnt could
lead to no further consideration of the
cause. The plaintiff sued the conference
for damages for not hearing the motion for
trial. A demurrer was sustained to
his evidence. HELD, the demurrer was
properly sustained because the plaintiff
failed to show any church rule, custom or
usage requiring the conference to consider
motion for a new trial, the conference
WAS not bound by the common law rules
of civil procedure, and the bylaws quoted
forbids further action by the conference
after it has decided an appeal.
All the Justices concurring.
4 true copy.
Attest: D. A. VALENTINE,
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19

No. 20.3
The State of Kansas, Appellee,
Butch THRONE, Appellant.
Appeal from Cherokee County.
AFFIRMED
Syllabus. By the Court. Marshall J
l. In a proceeding for contempt for vio-
la1ng an injunction against maintaining
an Intoxicating liquor nuisance. evidence
that a liquor sold looked like beer. tasted
like beer, and that the witness believed it
was beer; and there-wa malt in the
liquor sold to another witness. is sufficient
to Justify a finding of the sale of intoxi-
eating liquor
2 1t is not error TO refuse to permit a
witness to taste the contents of a bottle
to see it they the same as the contents
of another bottle purchased from the ae-
cuEed by the witness.
All the JpsI1ces concurring.
A true copy
Attest; D. A VALENTINE
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 20. 294.
The State of Kansas, Appellee,

No. 20.294
The State of Kansas, Appellee,
vs..
William H. Van Sickle, Appellant.
Appeal from Shawnee County.
First Division.
AFFIRMED.
syllabus. By the Court. Marshall j.
In a prosecution for rape, before 1t
struct the jury that if the woman charged
to have been rayished is the wife Of the
defendant he can not be convicted, there
must be evidence tending to prove that
the parties were husband and wife.
2. In prosecution for rape, to make
out prime facie case, it is not necessary
for the state to prove that the accused
and the woman were not husband and
wife
All the Justices concurring
A true copy.
Attest: d. A. VALENTINE,
lSeai-l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19

.-e. No. 20,372.
The State of Kansas, Appellee,
VS..
.. John Colletti Appellant.
Appeal from Cherokee County.
AFFIRMED.
Syllabus By the Court West. J
The verdict, being supported by sui
ficient competent testimony, is not con
trary to the evidence and is not contrary
to the law.
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, 1916-02-19
No. 10.
Joe Tucker, Appellee.

No. 1883. 49,
Joe Tucker, Appellee.
VS.
Writ Bartlett, Appellant.
Appeal from Sheridan County,
AFFikMFD.
Syllabus. By the Court Mason, j.
/. In en- action for malicious prosecution
the fact that the plaintiff, having been ae-
cused of a felony, WAS discharged upon a
preliminary examination before n justice
of the peace, may constitute prima facie
evidence of a want of probable cause for
his arrest.
.. The evidence held sufficient to war
rant submitting the case to the jury
8. The fact that one who caused the ar
rest of another upon criminal charge pc
lieved that probable cause existed therefor
does not necessarily exempt him from liza
bility for malicious prosecution.
+. In order for a prosecution to be
malicious it is not essential that the insi-
gator should have known his act to be
Illegal.
3. An instruction implying that what
constitutes probable cause is a question OF
fact held not to be a ground of reversal
because accompanied by a full statement of
the facts necessary to be shown in the par
ticularl case in order to justify finding
on the subject.
All the justices concurrlng.
A true copy.
Attest: D. A VALENTINE,
Seal. Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
D. A. VALENTINE,
Clerk Supreme Court.
No. 1881.
James 2. Holland, Appellant,

NO. 1897.
James 2. Holland, Appellant,
VS..
James Holland and Francis A Holland.
Appellees.
Appeal from Dickinson County.
MODIFIED.
Syllabus. By the Court. West, J.
/. Plaintiff, among other things, alleged
that about 1883 his parents agreed with
him and his brother that in return for
their support the parents would give their
land to the sons, by will or otherwise
That afterwards it was agreed for eacn
of the sons to have one-half the land,
that the plaintiff took possession Of his
half and lived thereon as his homestead
for seventeen years, supporting the par
ents until the surviving father left the
more than the use of the land; that the
father and brother had conspired to Dust
him therefrom and to sell the land, had
converted personal property belonging to
him and were threatening to sell other
property in WHICH the plaintiff had joint
ownership. Held, error to compel him to
elect to try only one of such matters, as
all should have been settled in the one
action.
. Having found that the plaintiff had
his father and by putting him in fear of
bodily harm by threats of violence and
personal injury, thereby causing him to
leave, the trial court rightfully held him
not entitled to specific performance.
3. But in view of the long continued
support furnished by the son aud the allie
cations as to its value, it is held that he
has n right to enjoin custer and the sale
of the land to another until reimbursed
or secured for the value of such support
over the use he has had of the land.
All the Justices concurring.
4 true copy.
Attest: d. A VALENTINE,
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1892.
Dollie Udey, Appellant,


The City of Winfield. AnDelee.
Appeal from Cowley County.
AFFIRMED.
Syllabus. BY the Court. West. ].
1. Clerical employees in the office of the
city clerk are not employees of the city
in conducting a light and water plant as
contemplated by section of the Work
mems Compensation Act chapter 21s, of
the Laws of 1911.
2 The evidence of the plaintiff showed
that the character of the work OF removing
the pipe which fell on the deceased and the
dangers incident thereto were apparent to
him, and in attempting to perform such
work in the way he did he was sufficient
ly at fault to bar a recovery. Held, the
demurrer, to such evidence was rightfully
sustained.
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, 1916-02-19
No. 2O.OS3.
John V. Abrahams ct al, Appellants



school District No. 33, APpellees'
NppeaI from Shawnee County.
First Division. -.
Reversed in part and Affirmed % i IN III par
syllabus By the Court. b 9dsI not
The Australian ballot law does noI
arDiv 10 school district elections heiq , 10
determine whether or not s sI,is shai oe
The intention of voters casting Ger
tain ballots at school district oono en- tSo
son ascertained and declared from the
,.,rds ana marks on the ballots
Whether or not tast tax an P eieScfion u err
rSSTeoiisIv declared to have resulted IaNoI-
ably 10 the issuing Of bonds, he may 5 5s
~ the C'tvil Code 10 prevent the bohus
from being issued. , -. +bo+ a
A finding by the trial court that a
.,.,,ei+inn To change the site OF the
sib1oi house duly carried at a school uls-
mir election held to determine the mat
ter approved. .
An the justices concurring-
H+t IrTe guy d. A. VA INTINE.
1ScvG Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 19,SS9.
George Haseltine. Appellant.

No. 19SS9
George Haseltine, Appellant.
VS..
Fred Nuss Sr.. ct al. Appellees.
Appeal from Dickinson County
AFFIRMED.
Syllabus. BY the Court. Dawson. J.
/. The statutory rule followed that on
the vacation of a street the land so vacar-
ed reverts to the owners of the lots ad-
jacent or abutting thereto according TO the
Frontage of said lots or land"
?. The rule followed that a plaintiff in
an action IN ejectment must rely on the
strength Of his own title. and not on the
weakness of his adversary's title.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
ISeAl.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1868.
J. J. Haas, Appellee,

No. 1868.
J. J. Haas, Appellee,
vs.
Clement L. Wilson, Martha B. Wilson and
Virginia Lee Byerly, Appellants.
Appeal from Greeley County
REVERSED AND REMANDED
Syllabus. BY the Court. Marshall j.
l. The rule announced in Byeriy v.
Eadie, 80 Kan. 400, 14s Pac. 757, is ad-
hered to.
2 Title to real property can not be ac-
quired by adverse possession where the
land is in a wild state, vacant, unoccupied,
and no apparent acts of ownership have
been performed thereon.
All the Justices cOncurring.
A true copy.
Attest: D. A. VALENTINE.
ISeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1885
The Ogallah Elevator Company, Appellant,


Fred Harrison, Appellee.
Appeal from Trego County.
AFFIRMED.
Syllabus. By the Court Dawson, J.
1. The rule that n servant must account
to his master for earnings received from
outside employment ordinarily relates to
employment in the same kind of business
in WHICH his master is engaged and does
not relate to the servants earnings in
another kind of business in which his
master is not interested and which is not
inimical or prejudicial to his masters bus
mess.
2 The PLAINTIFF employed the defendant
to manage its business of buying and sell
ing grain and coal and to keep open dur
ing business hours its offices and ware
houses and to keep Its books and accounts.
The defendant with the knowledge and
acquiescence of plaintiff undertook for
another employer the business of selling
flour a business which the plaintiff had
considered and decided not to engage in.
No complaint was made that the defendant
neglected plaintiffs business on account
of the other employment Held, that the
defendants earnings in the sale of flour
are his own property and the plaintiff has
no legal claim thereto.
3. Ordinarily a manager of business
is not .guarantor of its credits extended
nor an insurer against mistakes and In
the absence of negligence, he is not per-
sonally liable for an uncoliectible debt.
4. Where an elevator company lays
claim to moneys earned and collected by
its manager for the use of It's scales, and
the jury finds that the amount collected
was somewhere between $12 and $50, and
that the manager paid out between SO and
$25 for help In operating the scales, and
that the manager retained no part OF the
earnings to his own use, the plaintiff fails
to establish it's cause of action.
PrejudictaI error cannot be based
upon the admission of incompetent testi-
mony when it is not shown to have I'M
properly affected the result.
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, 1916-02-19

No. 1898
The Manhattan State Bank, Appellant

No. 1093S
The Manhattan State Bank, Appellant
F. II. Haid and Elizabeth Haid. Appellees
Appeal from Douglas County.
AFFIRMED.
Syllabus. BY the Court Burch J.
/. The provisions of a will Interpreted
and held that it did not confer on the ex-
ecutors naked power to sell real estate and
distribute the proceeds TO heirs who took
title by descent. but that on the death of
the testatrix an equitable conversion of the
real estate into personality took place and
title passed to the executors to enable them
to carry out certain trusts created by the
will.
2. In order to carry out partition agree
ment among heirs the executors of the
will referred to executed to the wife of
one of them and executors deed
purDOrting to convey tract of
land apportioned to the grantees
husband by the partition agree
ment. 1t was believed deed from the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1874.
Rena Buck Young, Appellant,


Rena Buck Young, Appellant,
VS..
l.. d. Buck, ct al. (EIizabeth Buck, ct al,
Appellees).
Appeal from Allen Couty.
Rehearing Denied.
OPINION DENYING A REHEARING.
Syllabus. By the Court. Mason, J.
1. Although during the tendency of an
action for the recovery of money the de
which is at once recorded. the circum-
stances being such as to charge the plain
tiff Immediately with notice Of its exef Gu
statute of limitations (requiring actions
for relief on the ground Of fraud to be
covery of the fraud does not begin to
run against an action to subject the land
conveyed to the payment of the plaintiffs
in the original action, provided it is prose-
cuted with reasonable diligence.
resorted to attachment does not affect his
rights with respect to subjecting to the
payment of his Judgment land fraudulently
conveyed by his debtor.
All the Justices concurring.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
No. 1o701.
Merriam Mortgage Company, Appellee,
St. Paul Fire & Marine Insurance Com
Appeal from Shawnee couty,
Second Division.
AFFIRMED.
Syllabus By the Court Burch, J.
l.. One who. voluntarily pays a judgment
rendered against him by a district court
cannot question the justice validity of
the Judgment by subsequent appeal to this
court
2 The rule that the burdens and the
benefits of a contract, remedy, or course
Of conduct must be accepted together or
renounced together applied in considering
an application by an insurance company
for subrogation under a mortgage clause
attached to one of its policies, made
after all liability on the policy had been
denied and the mortgage had been COM
PEELED to establish his right by litigating
the matter to final Judgment
g. Under sections 1882 and 1868 of the
General Statutes of 1909, the court, in rem
dering Judgment against a fire insurance
company on a policy of insurance written
in this state, is authorized to allow the
plaintiff reasonable sum as an attorney
fee although the policy relates to proper
ty situated in the state of Oklahoma.
T The statute referred to does not au-
thorize this court to allow the plaintiff an
attorney fee on appeal by an insurance com
pany from Judgment rendered against it.
All the Justices concurr1ng.
true copy.
Attest: d. A vALETINE
tSeal.l Clerk Supreme Court.