davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12

No. 90 o52.
Bessie Hubbard minor, by her next
friend and father, Pitt Hubbard, Appellee
The City of Wichita. Appellant.
Appeal from Sedgwick County.
First Division.
REVERSED.
Syllabus. By the Court. Marshall. J.
The maintenance of a geological garden
in a public park by a city is a govern
mental function, and the city. is not liza
BILE in damages for injuries inflicted on
visitors by animals through the negligence
Of the city's officers agents in not
properly combining the animals.
Johnston, c. r., Burch, J., Mason, J.,
Porter, J., and Dawson, j., concurring.
West J.. dissenting.
A true copy
Attest: D. A VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 20,09S.
Julia A. Gordon, Appellant,

No. 20,09S.
a Julia A. Gordon, Appellant,
H. A. Russell. w. E. Ham, II Waters
R. S. Fillmore, Gust A. johnson, Carrie
L. Hunter. Administrative of the Es-
tate of William Hunter Deceased, and
the Electric Plaster Company, a cor
poration, AppeIlees.
Appeal from Marshall County.
REVERSED.
Syllabus By the Court West J.
l. Certain stockholders and Officers of
corporation borrowed money to be used
for such corporation, giving their joint
note. Interest was paid for nine years
after maturity by one of the makers who
was secretary and treasurer Of the cor
poratfon. with its funds. The corporation
did not execute the note Held that the
makers cannot under these circumstances
lions rhe theory that they are sureties,
and have personally made no payments.
2. 1t is not perceived how there can be
surety without principal
2 The Judgment was rendered October
II. 1914, the motion for new trial being
overrule October. % thereafter April p
Administrative of one of the defendants
who had departed this life. shortly after
the trial below Notice of appeal was
served on the administrators April -,
1915 Held that she is In court
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 20, 300.
Mamie Bacon, Appellee,


Mamie Bacon, Appellee,
VS..
John W. Lederbrand, ct al, wv. M. Dick
son, Appellant)
Appeal from Hodgeman County.
AFFIRMED.
Syllabus. By the Court. Marshall J.
purchaser of real property, the record
ed deed to whose grantor contains the fol-
lowing: Same to be free and clear of all
encumbrance except . second
mortgage of Seventeen Hundred and Fifty
Dollar (S175O) due Jan. 1st, 1914. which said
second party assumes and agrees to pay,
is not an innocent purchaser against such
mortgage, although at the time of the con-
veyanee to him the mortgage is not record
ed and he has no actual notice thereof.
All the Justices concurring
true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 20.204.
II. NJ. Witt. Appellee,

Edward D Boothe. Appellant.
Appeal from johnson County.
MODIFIED.
Syllabus. BY the Court. Marshall. J.
81 1. A purchaser OF real property under
an oral contract who pays part of the
purchase price takes possession of the
property under the contract. and retains
possession until the commencement of an
action against him for the recovery of the
balance of the purchase price. can not
defeat that action by setting up the statute
of frauds.
2. The purchaser of tract of land who
obtains a deed therefor is entitled to re-
ceive the unpaid purchase money outstand-
ing on q previous contract for the sale of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
D. A. VALENTINE,
Clerk Supreme Court

No. 20,634.
The State of Kansas, Appellee,
VS..
Barney Kimble, Appellant
Appeal from Riley County.
AFFIRMED.
Syllabus. By the Court. Burch. J.
1. Section % of the act relating to roads
and highways laws 1911, CHI. 24S) provides
for the punishment of anyone who will
fully obstructs any road drain, which sub
1ect is within the scope of the title of the
act.
2. Assignments of trial errors examined
and held to be without substantial merit
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE
tSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 20,26o.
Paroda Hankins, Appellee.

vs.
John Lewis. Appellant
Appeal from Sedgwick County. Division
Number l.
AFFIRMED.
Syllabus. BY the Court West 7.
No error is found herein regarding the
admission of evidence, the giving or re-
fusing of instructions, the demurrer to the
evidence. the denial of q new trial the
award of damages.
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, 1916-07-12
No. 20,O69.
Carrie Whitsel, Appellee,

NO. ZU,UbJ.
Carrie Whitsel, Appellee,
d. NJ. Watts. Appellant.
Appeal from Bourbon County.
AFFIRMED.
Syllabus. By the Court. Johnston. G. J.
l. In general there can be no recovery
for fright or mental anguish unless it re-
suits in or is accompanied by bodily in
jury.
.. A recovery may be had for bodily in
juries which are the natural and proximate
result of extreme fright caused by negli-
gence and especially where the fright is
caused by wiiful wrong or an act so
grossly negligent to show utter indif-
ference to consequences.
All the justices concurring.
true copy
Attest: D. A VA milne,
ISeal-l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 2O.3O9.
w. A. Kramer, Appellant,

w. A. Kramer, Appellant,
The Farmers State Bank of Galva, Appel
lee.
ADpeal from Mcpherson County.
DISMISSED.
Syllabus. By the Court Mason: j
A contention that the trial court failed
70 follow the statute in taxing costs raises
no question concerning the violation of the
constitutional prohibition against depriv
ing a person of property without due
process of law.
All the Justices eoncurring.
A true copy -
Attest: d. A NAAEN IlN T.
TSeai1 Clerk SUPREME Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 20.543.
Charles NJ. Wallace, Appellant.


The City of Winfield Appellee.
Appeal from CowIey County.
AFFIRMED.
Syllabus. BY the Court Johnston, c. ].
L One who has obtained water power
rights in flowing stream has no owner
ship in the water itself but only a right
to its use. and If the water is diverted
from the stream he may recover damages
for any loss or injury actually sustained
but is not entitled TO recover the value
of the water diverted
2 A city of the second class is author
lied to exercise the right of eminent do
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
LEGAL.


put them in condition for holding the ship
ment, where the maximum charge for such
repairs is fixed by the tariff on file with
the interstate commerce commission.
2. The tEree-year statute of limitations
applies to actions to recover the cost Of
repairing cars to put them in condition to
receive the property to be shipped therein,
and the statute begins to run on each
item when the shipment is made.
3. The words actual cost of the same"
in the following tariff provision,
when cars furnished by carriers named
below for grain or other loading require
repairing in order to insure against leak
age in transit, and material necessary for
this repair is furnished by the shipper, the
carrier will pay the actual cost of the
same, but not to exceed eighty cents per
car"
include the cost of the material and labor
necessary to repair, but do not include the
cost OF inspecting or cleaning cars or the
cost of attaching grain doors.
4. The admission in evidence of Santa
Fe Cooperage Circular No. II did not
prejudice any substantial right of the de-
PENDANT
All the Justices eoncurring.
A true copy.
Attest: d. A. VALENTINE,
LSeal-1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 20,293.
Mrs. Rose L. Malaney, Appellant,


Mrs. Rose L. Malaney, Appellant,
Allen N. Cameron and o. c. Brown, as
Administrator, etc, Appellees-
Appeal from Douglas County.
AFFIRMED.
Syllabus. By the Court. Mason, j.
1. Inasmuch as the statutory proceeding
for adopting child includes the consent
of the probate Judge, no legal adoption
can result from the mere contract and
conduct of the parties, although under GER
tain circumstances property rights grow
ing out of promises made in that con-
nectton may be enforced.
2 The question suggested but not de-
termined whether a contract between the
father of a four year-old girl and mar
ried couple reciting that he relinQuishea
to them his rights to her "for to have and
claim as their own is to be Interpreted
as including a promise of adoption on
their part
8. The presumption of delivery arising
from the possession of deed by a grantee
arises even in the absence of evidence that
such possession was obtained prior to the
death of the grantor-
4. The evidence held not to overcome
the presumption of delivery arising from
possession of a deed.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
LEGAL.


transaction, and If the note is not paid to
the company at maturity, the forfeiture
clause in the policy for nonpayment of the
premium note will protect the insurance
:, 8. Where a premium note is taken by
capacity as agent and the note is delivered
TO Inc company, and by arrangement
between the agent and the company, he is
cohdlt1onally charged with the company's
snare OF the premium, the charge to be re-
mltted II the note is not paid. the premium
from the inception Of the transaetion not
Wltnstand1ng that 1T Is payable to the
agent; and where the policy issued to the
the note is paid at maturity, a failure of
me me assured TO pay the premium note avoids
:, /. A life insurance policy was issued to
the husband of the plaintiff beneficiary.
If any premium or premium note was not
paid when due. The insured gave his note
afep ded TSe in its
made payable to the agent of the insurance
company. but 1t was admitted that he
and that he delivered it to the company. It
was also admitted that for the convenience
and ea aer insurance company and its agent
them, when premium note was taken for
an insurance policy the agent should be
share of the premium and that the charge
should be RENTED if the note was not
palu, put tnat IN such case the agent should
paw the medical fee for examining the APP
pI1cant for the policy, HELD, that the in
surance company was interested in the
premium note as owner from the inception
OF the transaction and that these admis-
s1ons show that credit was not independ-
emily extended to the applicant by the
agent on his own responsibility and that by
the plain terms of the policy the default
of the insured to pay the premium note
when due relieved the insurance company
from liability on the death of the insured.
3. The allegations of fact and admis-
sions of facts relating to a settlement of a
debatable liability on an insurance policy
examined and the settlement sustained.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
[SeaE1A Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12

No. 20,307.
James Frost a Minor, ETC., Appellant,
The City of Topeka, Appellee.
Appeal from Shawnee County.
First Division.
AFFIRMED.
Syllabus. By the Court. Burch, J.
Dynamite caps were used in blasting
preparatory to installing water and sewer
systems in the city's detention hospital
while it under construction. En-
ployees of the city negligently failed to
move an unused sack of caps from the
grounds completion of the hospital.
The plaintiff, a child of nine years, was
taken to the hospital with his parents.
who were afflicted with smallpox, and was
allowed to play about the grounds. He
found the caps and exploded one of them
and was injured. The hospital was estab-
lished, owned and maintained by the city
for the sole purpose of OBTAINING and
treating persons afflicted with smallpox.
Held, the city is not liable in damages
for the plaintiffs injury.
All the justices concurring.
true copy.
Attest: d. A. VALENTINE,
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12

No. 20,322
Myrtle NJ. Campbell, Appellant,
VS..
George T. Cubbon, Appellee
Appeal from Sedgwick County.
Second Division.)
REVERSED.
Syllabus, By the Court. Porter, +,
L A judgment in a suit to remove a
cloud cast upon plaintiffs title to real
estate by a fraudulent deed is not res
5udicata on the question of damages sus-
penses incurred in clearing the title, and
resulting from the wrongful acts of the
grantee in procuring the deed.
T. Plaintiff sued defendant in the
county where he resided to recover dam
ages for his fraud in procuring from her
deed purporting to convey real estate
in another county. Defendant pleaded as
res tudicata former judgment obtained
against him In the county where the land
was situated, In which action plaintiff
sued to set the deed aside and to quiet her
title, but set up no claim for damages.
Held, error to sustain a demurrer to plain
tiff's evidence on the ground that she
should have pleaded and proved her claim
Tor damages in the former suit.
3. Where error is predicated solely upon
tiff's evidence, but the facts are not dis
puted and the ruling is expressly based
upon question of law, 1t is not necessary
for the appellant to have a transcript of
the evidence made or to bring up the evil
dence.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
LEGAL.

ances required by the statute can not be
reversed at the instance of the defendant
because the gneral verdict or other findings
are not supported by the evidence.
All the JUSTICES concurrlng.
A true copy.
Attest: d. A VALENTINE,
[SeaIl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12

No. 20.277.
George A. Mosby, Appellee,
The Board of County Commissioners of the
County of Greenwood and Oliver Rock
hill County Treasurer, etc, Appel
lants.
Appeal from Greenwood County
REVERSED AND REMANDED.
Syllabus. BY the Court. Johnston. e. J.
1. The provisions of chapter 24S of the
Laws of 1885, amended by chapter 364
of the Laws of 1901. which authorizes the
assessment of property brought into the
state after March LIST and prior to Sep
TENDER LIST of any year and which con-
tains an exception that resident owner
will not be required to pay taxes on such
property If he shall show to the assessor
that the property has been listed for taxa
ton for that year in some other county of
the state or in some other state or terri
tory. is not unjust discrinlina ton
against a nonresident nor does IL deny to
him the equal protection of the laws
2 1t is competent for the state to i'm
pose taxes upon all property brought with
in its Jurisdiction and this power Is not
lost because such property may have been
subjected to taxation for that year in the
state from which it was brought
All the Justices concurriug.
A true copy.
Attest: d. A. VALENTINE.
lSeal-1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
LEGAL.

= A(I-SrtaA1. - -
First published in the Topeka State
Journal July 10. 1916-1
Office of the City Clerk,
Topeka, Kansas, July 10 1914
MEETING OF THE BOARD OF SUPER
VISORS OF ELECTIONS.
A meeting of the board of supervisors
of elections will be held at the office OF
the City Clerk on Tuesday, July 25, 1915.
vising the registration hearing appeais
from the decision of the City Clerk. and
the consideration of bids for furnishing
meals and the delivery of supplies to
the election boards for the Primary cleo
ton to be held Tuesday. August 1, 1916,
also any other business that may prop
erly come before the Board of Supervisors
Bids for furnishing meals for the cleo
ton boards solicited. also bids for
the delivery of election supplies to poll
ing places must be on file at the office OF
the City Clerk on or before O'Clock D. N
Tuesday July e. 1919 soprp,
Chairman Of Board Of Supervisors
Eta M. Covell, Secretary
(Seal.)
First Published In The Topeka State
Journal Wednesday. June %. 1916-1
State of Kansas, Shawnee County. So.
In the Matter of the Estate Of H d.
Booge. late of Shawnee County: Kansas
notice. OF APPOINTMENT.
Notice is hereby given that on the 26th
day of June A. ID. 1915. the undersfgned
was. by the Probate Court of shavnes
County. Kansas duly appointed Adminfs-
Shawnee County. deceased. All parties In
terested In said estate VIII take notice and
govern themselves accordingly.
L. M. GRUBBS, Administrators.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12

No. 20,120.
w. F. Miller and Perry A. Miller, Appel
lants,
George b. Moore, Appellee.
Appeal from Cowley County. .
ts-.i REVERSED. -a+.s- h'.7sf- y p
Syllabus. BY the Court. Mason. J.
In statutory survey the location of the
line dividing two quarters of a section so
as to make their areas unequal is not 5ustt-
fled merely by evidenfe that the adjoining
such acquiescence was due to an agree
ment between them to regard as the true
line one that had been pointed out to them
being made to the source of his infOr-
nation on the subject
All the Justices concurrtng.
Attest: D. A. VALENTINE,
[Sea1.l Clerk Supreme Court
No. 20,1e7.
J. J. w. F. Muenzenmayer, Partners,
Appellees,
Robert M. Hay and Mary S. Hay, Appel
lants.
Appeal from Geary County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
l. Where a party to an action pleads
facts which constitute two causes of action,
one for rescission of a contract and the
contained in the contract, it is proper for
the court to require the party to elect on
which of the two causes of action he will
2 An error in the exclusion of evidence
on the trial Of a cause can not be consider
ed by this court unless it is produced on
the hearing of the motion for a new trial.
g. A Judgment will not be reversed for
error in giving or refusing to give instruc-
lions to the jury in refusing to submit
special questions, when based on evidence
excluded on the trial, and it is necessary
to have that evidence to determine the cor
rectness of the instructions given or re-
fused, and to determine whether the ques-
lions should have been submitted, where
that evidence is not produced on the hear
ing of the motion for a tril
4. Where parties agree to submit a
cause to a jury on special questions and
for a general verdict, and agree that the
court shall then render such Judgment as
it might deem proper, it is not reversible
error for the court to refuse to give an
instruction question Of fact which
does not materially affect those necessary
for the court to know in order to render
Judgment.
Under the circumstances disclosed
in the last para graph, Judgment will not
be reversed for error in refusing to sub
nit special questions where the answers
to those submitted give the court suffi-
cient facts on which to render judgment.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
(SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
D. A. VALENTINE,
Clerk Supreme Court,
No. PISS.
1. Kasparek, Appellant,

No. PISS.
/. Kasparek, Appellant
Vern e. Throop, Appellee
Appeal from Washington County,
AFFIRMED.
syllabus By the Court West T.
l. When, under the provisions of sec
tons 9236 to 9240 of the General Statutes
or 1909, tax warrant regular upon its face
is issued by the county treasurer and de-
livered to the sheriff for execution the lat
ter, If acting in good faith, is not liable
for damages in executing such warrant
whether or not the taxes were properly and
legally levied.
2 Whether, under section 923s a pro-
ceeding in court must precede the Issuance
of tax warrant, and whether the execu-
ton applies to one who, having removed
portion of his stock merchandise from
the state, has left sufficient to pay the tax
not decided.
All the JUSTICES concurring
true copy.
Attest: D. A VALENTINE
ISeal.] Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
D. A. VALENTINE.
Clerk Supreme Court.

No. 19,945.
Abe Danciger, ct al, Partners, etc, APP
pellants,
D. G. Cooley, Appellee
Appeal from Shawnee County
division No. L.
Rehearing Denied
OPINION DENYING A REHEARINCi
Syllabus. By the Court. Mason J
In the absence of any Interpretation by
the United States supreme court, the fell
eral statute forbfdding a common carrier
or any other person to collect the pur-
chase price of intoxicating liquor from
the cons1gnee, in connection with its
transportation into one state from an
other. will be construed oy this court as
applying to an agent of shipper who de-
hyers the bill of iading upon payment of
a draft for the price.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
BONDS.

THOS. J. MYERS. broker. Columbfsn B1dz,
Investment securities. railroad and gov
eminent bones. grain and copper stock1
mortgages bought. sold and placed.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
UNDERTAKING.

l.. NJ. PENWELL. funeral director and
embalmer. T e. Jones. Asst First efass
C. p. HAWLEY Co. undertakern. era
balming, lis East sth ave Phone ~
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
Office of the City Clerk.

>~--~>-~>--~>~>--~-<
First published in the Topeka State
Journal July 10, 1916.l
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12

No 20,261.
William Henry Marshall, Appellee,
vs..
William S. Anderson and Charles Swee-
ney, Partners as the Anderson Coal
Company, Appellants.
Appeal from Crawford County.
AFFIRMED.
Syllabus. By the Court. Johnston, C. J.
An inexperienced shot-firer was injured
by a premature explosion and recovered
damages from his employer on the ground
of the negligence of the latter in falling
to instruct and warn him of the dangers
furnish him with suitable and safe APP
planes with which to work The evidence
is examined and held to be sufficient to
sustain the finding of the jury that the
injury was the result of the negligence of
the defendant and not the negligence of
the plaintiff
All the Justices concurring.
true copy.
Attest: d. A VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-07-12
No. 2O,331.
J. F. White, Appellant,

NO. 2O,331.
J. f. White, Appellant,
Steve Houser and John Sharfey, as Sher-
lift of Kearny County, State of Kansas,
Appellees.
Appeal from Kearny County
AFFIRMED.
Syllabus. By the Court West, J.
l. The owner of land patented under
the homestead law, upon which an execu-
ton has been levied based on indebtedness
antedating the issuance of final receipt
or patent, u. s. rev. Stat. Sec 2296) upon
whom no personal service has been made,
after sale and before the redemption per-
1od fixed by the court has expired, the
attention of the court not having been
called to such indebtedness cannot main
tain an action to remove from such home
stead the apparent lien of such Judgment.
The holder of another Judgment who
had attached the same land subject to lle
one referred to, after his attachment had
been quashed for want of service, by re-
deeming from such prior judgment could
subject the land to the payment of his
lien by subrogation to the rights of such
prior judgment creditor.
Johnston, c. J., Burch. J., Mason, J.,
Porter, j., and Marshall. J., concurring.
West, J., and Dawson, J., dissenting
a true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.