davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 20.540-
The State of Kansas, Ap


The State of Kansas, Appellee,
Porter Patterson, Appellant
Appeal from Shawnee County Second
Division
AFFIRMED.
Syllabus By the. Court Marshall. J.
l. In prosecution for persistent viola
ton of the prohibitory liquor law, II Is
not error to deny motion of the defen-
dant to require the state to elect on which
of several prior convictions alleged in ana
proved under each count it Will rely for
conviction on that count
2. Certain alleged errors in the admls-
sion of evidence have been examined The
evidence complained of was competent
3. There was no error in the cross e1-
animation of the defendant
4. 1t is not much misconduct as viii
cause judgment of conviction to be re-
versed for county attorney. in his clos
ing argument to jury. to say that II the
jury should disregard the evidence of Ger
tain witnesses and return a verdict OF not
guilty, 1T would be of use to try other
criminal cases and that he might we'll
dismiss them, for the reason that the state
depends for conviction in those cases upon
the same class of testimony as that intro
duced on the trial in which the argument
is made
5. Certain instructions have been ex-
amined- They fully cover the law con-
corning the matters complained of. and
there was no error in giving or refusing
Instructions
All the Justices concurring except Daw-
A true copy.
Attest: d. A VALENTINE,
(SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
LEGAL.

responsible.
2. The evidence is held not to Justify a
finding that the permanent character of
an employees disability is the result of the
injury received in the course of his EN-
ployment, rather than of unskillful sur
gical treatment and the verdict is set aside
for that reason and because the issue re-
lating to malpractice was not sufficiently
presented to the jury.
3. In an action under the workmen s
compensation act evidence of the manner in
which the injury was received is ordinarily
irrelevant and testimony given in that con-
nection of i'll treatment of the plaintiff by
the foreman under whom he worked may
be preJudicial as tending to arouse feeling
against the defendant in the minds of the
jury.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
ELECTION PROCLAMATION.

Mayors OIIlcc, IOpekd, h4nsas
WHEREAS. on May sth- ls16, the Board
1f dnaS sse OF the Gg OF No
entitled IAN ordinance authorizing and
directing the Mayor of the City of Topeka.
Kansas, to issue a proclamation calling
to the legal voters Of said city propositions
city and issue the bonds of said city to
pay for the construction Of said improve
WHEREAS. said ordinance was duly ap-
proved May Sth. 1916, and was duly
published and took effect on May sth. 1916.
WHEREAS, said ordinance provided that
said election should be held on Wednesday,
Now THEREFORE,, ,. E. House;
No es Do hereby 0a and
gives notice that an election will be held
Nav sa ss city fg,e or for } op M
hitting to the voters of said city the fol-
lowing sR REn9qp1'iTfiHapEs iFo11owING RE
ADOPTED?
Shall the Mayor and Commissioners Of
large the east wing of the City Hall. in
said City, by extending the same thirty
Gsol feet east, and to purchase land neees;
install elevator in said City Hall. and
borrow the sum of Seventy seven Thou
and issue the bonds. of said City in that
amount mt II to pay th he 10I r oy,>c
ADOPTED?
the City Of Topeka b, be authorized to con-
on Fifth and Jackson Streets. in said City,
and borrow the sum of Twenty-Five Thou
sand. Five Hundred Dollars 1872 10000
and issue the bonds. of said City in that
amount to pay therefore,"
The ballots used at said election shall
have printed thereon each of said PROPOSE
tions in words and figures as above set
he of or
all Of said propositions, then the Mayor
and Commissioners shall be authorized TO
ton for which shall have received the ma
jority. of the votes cast at said election,
specified in such proposition for the con-
strucion Of such improvement. Said bonds
than five hundred dollars ts50o.Ool and
not more than one Thousand dollars
ts10ooO0l. and the same shall be run
shall bear interest at the rate of four fD
per cent per annun. payable semI-annualIy
and the same shall not be sold for less
than their face value and no commission
or compensation shall be allowed for their
sale. Before any Of the said bonds shall
be issued and before any contract shall be
let for the construction of such improve
ment. plans and specifications therefor
shall be on file and approved and adopted
by the Mayor and Commissioners and such
Improvement shall be constructed In ac-
lions. No contract shall be let for the con-
struction of such improvement to exceed in
cost the amount above specified in the re-
spective proposition therefor.
Said election shall be held under and
pursuant to the general election laws of
the State of Kansas: the opening and clos
ing Of the rolls and the selection of per
sons to serve as judges and clerks at sad
election, in each Of the election precincts
of said city. and the canvas of the return
and the declaration Of the result thereof.
shall be done and carried on at the time
and in the manner as provided by law.
n WITNESS WHEREOF. / have here
unto set my hand, this 10th day of Nav.
1916.
JAY T.. HOUSE
Mayor City of Topeka. Shawnee County.
Kansas
Attest; ETA NJ. covELL. City Clerk.
ISeal-l
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 20.16S.
f. H. Van Nata, Appellee,

No. 20.16S.
E. II. Van Nata, Appellee,
VS..
Nellie f. Snyder, Appellant.
Appeal from Republic County.
REVERSED.
Syllabus. By the Court Burch. J.
1. A woman was induced to purchase a
the vendor. The contract of sale was ex-
ecuted on both sides, the vendee paying
half the consideration in cash and execut-
ing and delivering notes secured by mort
gage for the remainder. After the trans
action was concluded, but on the same day,
the vendee discovered the fraud. The notes
we're payable monthly, beginning July 1,
1913. The vendee paid ten of them, the
last on October 10. 1913, and meanwhile oc-
cupied the property without complaining
OF the fraud. In January, 1915, the vendor
brought suit to recover on the unpaid notes
and to foreclose the mortgage. The vendee
was without business experience and had
relied entirely on the vendor whom she re-
garded as friend. She was ashamed to
think the vendor had beaten her. was
afraid to make him angry and antagonistic,
did not know what to do that would do any
good, and was ignorant of her rights until
she consulted an attorney after she was
sued. Held, the fraud was not waived or
condoned and a counterclaim for damages
for the difference between the value of the
property as it was and as it was repre-
sented to be was wrongfuily disallewed.
= The first paragraph of the syllabus
of the case of Thresher Co. V. Gruben. 6
Kan. app. 66j, 90 Pac. ca, Is overruled.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
lSeaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 9,S04.
Vida Malet, Appellee,

No. 1854.
Vida Malet, Appellee,
vs..
James Haney. ct al. Appellant.
Appeal from Sherman County.
AFFIRMED.
Syllabus. By the Court. West, J.
1. tax deed however perfect in form
and valid in law does not give the holder
right to take possession by force or vio-
lence of the land described in such deed.
2. Error in charging that attorneys
fee may be allowed was rendered harmless
in this case by the subsequent remittitur
of such fee.
g. The statute prescribing no qualifica-
tons for commissioners in partition, the
appointment of witnesses in the case who
had testified to the value of the property
involved did not of itself work material
prejudice.
T. A mistake in the charge as to the date
when the defendant obtained a certain quit
claim deed was not substantially pre-
judicial. full opportunity being had to cor
rect such date in the argument by reference
to the evidence on that point
8. The remittitur of a substantial por-
ton of the sum awarded by the jury was
not a confession of passion or prejudice. a
remititur being proper only in the absence
of passion and prejudice.
All the eusuces concurring.
A true copy.
Attest: D. A. VALENTINE.
tSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 1865.
Rosa A. Null, Appellant,

No. 1858.
Rosa A. Null, Appellant,
D. o. Potts Appellee
Appeal from Sedgwick County.
Second Division.
AFFIRMED.
Syllabus. By the Court Burch ].
The action was one against a so-called
agent and trustee Tor money coming into
his hands for which he had not accounted
after demand therefor. The petition dis
closed that the money came into the de-
fendant's hands more than three years be-
fore the action was commenced. In re-
Spouse to a motion the court ordered the
certain by stating approximately the date
of the demand, noncompliance with which
gave rise to the cause of action. The
plaintiff was unable to comply with the
order. Held, the action was properly dis
missed.
All the Justices concurrfng.
a true copy.
Attest: D. A. VALENTINE
tSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 2O.530.
The State of Kansas, Appellee,

The State of Kansas, Appellee,
George w. Gaunt, Appellant
Appeal fIom Rawlins County.
AFFIRMED.
Syllabus. BY the Court. Mason, j.
1. The defendant in a criminal case
having offered no evidence regarding his
reputation, no error is committed in re-
fusfng instructions to the effect that his
character is presumed to be good and that
this presumption is the equivalent OF cyl
structed that he WIS to be regarded as of
good character except so far as his own
testimony might show the contrary
9 The refusal of various instructions in
homicide case held not to have been
erroneous
petent to testify is ordinarily a question
for tie final determination of the trial
having been admitted it is proper to sub
nit to the jury the question of the weight
to be given 1t.
4. Where proper instructions given
regarding the consideration of the testi-
mony of a -year-old witness, 1t is not
error to omit to refer specifically to that
of another witness seven years of age,
that matter being covered by the general
charge.
not error to refuse request for an in
struction that the jury should consider the
omission of the state to produce dying
statement of the deceased where the only
evidence on this subject indicates that
6. The discretion of the court in relation
to the cross examination by the defendant
of his own witness held not to have been
abused.
Z In a prosecution for homicide, the
state having admitted the bad reputation
of the person killed with respect to being
peaeeable and law-abiding, no error was
committed in sustaining its objection to
evidence that he had been divorced for
adultery and cruelty and had been prose-
cuted for various public offenses.
s. The evidence held to warrant con-
viction.
o. Judgment under the 'ndeterminate
sentence act held not TO be invalid by rea-
son of emitting to state the minimum
length of the term, the law placing it at
All the Justices .concurring.
A true copy.
At.c-t: D. A VALENTINE.
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
LEGAL.

offense was complete if any of the things
mentioned were deposited or allowed to
remain, whatever the quantity. circum-
stances, or length of time. Held, the sec
tons of the ordinance was beyond the
authority conferred cities of the second
class to secure the general health and to
prevent and remove nuisances
Mason, j., Porter. j., West, j., and Daw-
son. J., concurring.
Johnston, C. J., and Marshall. J.. dis
senting.
a true copy.
Attest: D. A. VALENTINE
ISeaL] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 2O.147.
Alex. B. Shulsky, Appellee,

No. 20.1i7.
Alex. B. Shulsky, Appellee,
Mary f. Shulsky, Appellant.
Appeal from Doniphan County.
REVERSED.
Syllabus. By the Court. Porter J.
l. If a properly executed will incor-
porates in itself by reference deed not so
executed. the deed leIerred to, If it was
in existence a the time of the execution of
the will and is so accurately described
therein as to assure its identity, takes ef-
feet as part of the will.
, A Will devised to each of six children
of the testator a specific tract of land. each
devise followed by the words for which
deed has already been made AT the same
time the testator executed the six deeds
referred to in the will, placed them in one
envelope with the will and handed the en-
velope to a banker with instructions to de-
liver the deeds at his death to the grantees
and to deposit the will in the probate
court. Five years thereafter he took the
papers from the bank, destroyed the will
and some of the deeds. and made new
will and new deeds in place of those de-
stroyed- He then placed the new will and
the deeds in envelope and handed them
to the banker with the same directions as
before. Held. that tha daads were parts OF
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 2O,19l.
Bessie f. Lewis. Appellee.

No. 90, 191.
Bessie +. Lewis, Appellee,
The Sells Floto Shows Company, Appellant.
Appealed from Shawnee County.
(Diy. IL
AFFIRMED.
Syllabus. By the Court. West, J.
1. The evidence and findings examined
and held to be such as to uphold the gen.
eral verdict.
2. Those attending circus performances
need not assume that the seats provided by
the management are unsafe or make a
critical examination of their fitness for the
use which patrons are invited to make
of them.
g. new trial is not to be granted for
newly discovered evidence until there is a
fair showing of diligence and unless such
evidence would probably require a differ
ent decision.
All the Justices concurring.
A tue copy.
Attest: D. A. VALENTINE,
tSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 19,SSs.
j. W. Stark, Appellee,


Hunter NJ. Meriwether. ct al, Defendants,
Hunter NJ. Meriwether. Appellant
Appeal from Wyandotte County.
Division s.
AFFIRMED.
Syllabus. By the Court. Porter, J.
1. Whether accertions have been formed
from the main bank of stream to an
island In the channel or from the island to
the bank is a question of material fact to
be determined from the evidence construed,
of course, by reference to well established
principles governing the law of accretions.
1t is none the less question of fact
.. The proper method or rule for appor-
tiOning accretions on rivers or other bodies
of water between adjoining proprietors de-
ponds upon varying circumstances and con-
ditions so that 1t is impracticable to state Il
general rule that will apply in all cases.
3. On the facts stated in the opinion,
held, that the adoption of a rule of appor-
tionment between two adjoining proprie-
tors by which each acquires frontage on
the new shore proportional to his frontage
on the old one, by an extension of the orig
inal side lines will not be disturbed.
All the Justices concurrtng.
true copy.
Attest: d. A. VALENTINE,
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 20, 193.
George Eiler. Appellant,

VS..
The Atchison. Topeka & Santa Fee Railway
Company, Appellee
Appeal from Finney County.
Syllabus. BY the Court. Marshall. J.
l. The plaintiff shipped car of cattle
from Beloft to Garden City and went with
the under a livestock shippers contract
While the car was standing alone on a side
track at Strong City, he undertook to
climbed to the top of a ladder on the side
of the car. and thinking that he could see
better from the. end of the car. placed
his right foot on step of the ladder on
the end, with his left hand took hold of
the brakewheel at the end of the to the
bend over so that he could take hold of
wooden slat in the end of the car with his
right hand, intending to climb down toward
the lower opposite corner of the car at the
end until he could get a good view of the
cattle. He was thrown to the ground and
injured by the brakewheel turning He
was guilty of such negligence as prevents
his recovery for the injuries sustained by
him.
q Under such circumstances the defend
ant was not guilty of negligence toward
the plaintiff.
injury sustained by a caretaker of live
stock while climbing about the car contain
ing the livestock, it is not reversible error
to exclude evidence showing custom
among livestock shippers to climb about
and over stock cars in caring for the live
party shows that his negligence caused his
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, 1916-05-13
D. A VALENTINE.
Clerk Supreme Court.
No. 2O.167.


Samuel c. Kanzius, ct al,
& Guaranty Insurance Company, Appel
liant: The Board of County Commission
ers of the County of Barton. Appellee.)
Mo HpbffFflIE siS'l AND Df1 &FF iP@dfa
Syllabus BY the Court. Johnston. C. J.
with county COMMISSIONER to build build and and
repair a number of bridges and the faith
full performance of the contract was guar
anteed by a bonding company. The con-
struction company failed to carry out the
contract, and the bonding company having
missioners employed others to furnish the
work, and when 1t was done allowed and
paid the bills deemed to be necessary and
reasonable for the compilations of the con-
tract but the construction company and
the bonding company refused to reimburse
the commissioners for the outlay. In this
action against the contraction and bonding
companies the contract is interpreted and
although found to be somewhat ambigu-
Gus is held to be valid: that upon the de-
fault of the construction company and the
refusal of the bonding company to COM
thorized to employ a builder to finish the
work and to be entitled to recover for labor
and other expenses reasonably necessary to
complete the work in accordance with the
contract, and that the plan adopted of pay
ing such builder the cost of labor and ma
for things not easily Enumerated and which
INVISIBLE.
agreed to construct a bridge with a con-
crete floor laid the concrete in the latter
part of March in the presence and with the
consent of an inspector employed by the
county commissioners. The night follow
ing there was sudden change of tempera-
ture which resulted in freezing and disin-
tegrating the concrete SO that the floor had
to be relaid. No provision was made in
the contract to relieve the contractor from
the effects of frosts, storms or like cas-
ualty. Held, that the loss caused by the
freezing of the concrete falls upon the con-
tractor.
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, 1916-05-13
No. 2O.194.
Martha A. Wilson, Appellant,

No. 20.194
Martha A. Wilson, Appellant,
George A Highley ct al. Appellees.
Appeal from Wilson County.
AFFIRMED
Syllabus BY the Court Dawson. ].
A mother conveyed her land to her two
sons In 1892 upon an alleged oral agree
ment that they would keep, care for her
and elothe aud look after her during her
natural life The deed recited consid-
Grafton of $1,000. After the death of the
mother twenty-five years later, her daugh-
ter brought action against her brothers.
her petition alleging that they had wholly
failed To nerforpa their oral agreement. and
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
IEGA-


the will and testamentary in character !;
that the execution of the will and the
deeds constitutes one transaction; that the
intention of the testator was that the
deeds should not operate until his death.
and that, being parts of the will, they were
subject to revocation.
Johnston. c. j.. Burch, J., Mason, J.,
West. j., and Dawson. j., concurring.
Marshall, J. dissenting.
A true copy.
Attest: D. A VALENTINE,
tSeal-l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 2o,152.
Geo. A. Morris, Appellant

No. 20, 49,.
Geo. A Morris, Appellant,
James Hettinger, Appellee:
GnDeaI from Reno County.
AFFIRMED.
a-,1.tuz By the Court. West j.
Tba rule declared in Clark V. Nichols,
10 u me e ree 1O0 Pac GIG, that in redeeming
from foreclosure judgment the contract
rate of interest governs followed
Johnston. C. J., Burch. J., Porter, d.
MsrahaIl. j. and Dawson, J.. concurrlhg.
Macon, J., dissenting.
A.tast. d. A. VALENTINE,
H1SesII Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 20,163.
J. H. Garfield, Appellee,

No. 2O,163.
J. H. Garfield, Appellee,
VS..
The Connecticut Fire Insurance Company,
of Hartford, Conn, a corporation, APP
pellant.
Appeal from Cowley County.
REVERSED.
Syllabus. By the Court. Dawson, J.
Where a lawsuit arises over an insur-
ance policy and the plaintiff claims a total
loss and demands the full amount of the
policy, $1,000, and the insurance company
tenders $3.50 in settlement, and the jury
finds the loss under the policy to be 5000,
the plaintiff is not entitled to have an at
torney's fee taxed against the defendants
as part of the costs.
All the Justices concurrlng.
true copy.
Attest: D. A VALENTINE,
lSeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13
No. 20.526.
The City of Gcodland, Appellee,

l.. w. Popejoy. Appellant.
Appeal from Sherman County.
REVERSED.
Syllabus. BY the Court Burch. J.
A section Of an ordinance of a city of
the second class made it unlawful for an
owner or occupant to deposit tin cans
manure, ashes, garbage aud other refuse
matter on his lots or to allow such matter
to remain on his lots. The condition that
the refuse matter should be offensive to
others or detrimental to the public health
or welfare was not recognized. no distinc-
ton was made between nocuous and in
nocuous deposits or accumulations and the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-05-13

No 2o.1TS
Evens and Howard Fire Brick Company,
Appellant,
Fred larry and Eldred larry, etc. Re-
vived in the name of Mary A. larry, as
Administrative. etc, ct al, Appellees.
Appeal from Leavenworth County.
REVERSED.
Syllabus. By the Court. Dawson, ].
1. Where the facts and correspondence
show that a sale of sewer pipe was made
clearly show that there warranty
a finding that the sewer pipe was sold
with an oral and written warranty that
the articles would pass inspection can not
be sustained.
.. Where goods are sold subject to in
spection. the vendor is not liable for dam
ages occasioned to the vendee because
such goods do not meet with approval on
inspection.
2. Where sewer pipe is sold subject to
inspection and part of it is approved on
inspection and part of it which was dis
approved inspection is used by the ven
dec elsewhere, and part of it is sold and
the remainder is retained by the vendee.
the approved pipe must be paid for at the
agreed purchase price, the pipe used else
where must likewise be paid for after de-
Quoting n reasonable charge for its trans
the pipe sold by vendee must be ac-
counted for, and the remaining pipe re-
tanned by the vendee must be paid for at
what 1t is reasonably worth.
All the Justices concurring.
A true copy.
Attest: n. A VALENTINE,
ISeall Clerk Supreme Court