davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 20205.
Ira Rnth r-nnE Annnll.

Ira Rothrock, Appellant.
County of Douglas in the State Of Kan
sas, Appellee.
Appeal from Douglas County
AFFIRMED.
Syllabus. BY the Court. Dawson. 7.
1. The liza bility of county for damages
occasioned by the fall of a bridge on a
county road is statutory and unless the
damages alleged fall strictly within the
terms of the statute imposing such liability
there can be no recovery.
?. One who attempts to ride across n
bridge on the tender of a fifteen horse
power traction engine (weighing more than
three tonsi when he sees and knows that
the operators of the traction engine. in dis
obedience Of the statute. are driving the
engine across without the statutory plank
occasioned by the fall of the bridge under
the weight of the engine.
:. Plaintiff who owned n threshing
chine hired the owners of n fifteen horse
power traction engine. presumably weigh
ing more than three tons. to haul his
thresher over a county road and bridge.
The crossing was attem pied without plank
ing the bridge as required by section 40
of chapter 2fS of the Laws OF 1911 The
bridge fell under the weight of the engine
tender was precipitated into a creek thirty
four feet below and severely injured. Held
that he charged with notice of the
statute. and with notice that an attempt
out planking was dangerous and that he
voluntarily rode into a place of danger.
and that such contributory negligence on
his part bars him from any claim against
the county for damages.
All the Justices concurrfng.
A true copy.
Attest: y. A. VALENTINE
ISonl.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 20.195.
The State of Kansas, Appellee,

No. 70, 195.
The State of Kansas, Appellee,
VS..
Gertrude Whitworth. Appellant
Appeal from Leavenworth County.
AFFIRMED.
Syllabus. BY the Court. Marshall. ]
Where two Separate offenseS, involving
two separate and independent transactions,
are charged in separate counts i'll an in
formation, verdict of not guilty to one
count is not Il bar to further prosecution,
or verdict of not guilty, on the other
count.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaLJ Clerk SUPREME Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
so. 20.21T.

The Board of County Commissioners of
Cloud County, Appellee,
vs..
A OFT. ct al. Appellants.
Appeal from Cloud County.
AFFIRMED
Syllabus. BY the Court Burch, J
A register of deeds was allowed as COM
penshation 81 100 in fees. and if any year
the fees collected were more than that
sum. One-half the excess In the middle
of 4 year II statute took effect giving him
a salary and requiring all fees to be
turned into the treasury At that time he
had collected S1.002 in fees. Held, he was
not entitled to all the fees but should be
compensated Mt the rate of 81. 100 per year
for the time until the statute took effect
plus one-half the excess fees
All tie Justices concurring.
a true copy.
Attest: II. 4. VALENTINE
tSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 20.211.
Stevens. Appellnnt

No. 90 I'll.
Gusta Stevens. Appellant
VS..
Clara Z. Inch. ExecutriX of the Estate of
Edgar T. Inch. Appellee.
Appeal from Labette County.
REVERSED.
syllabus. by the Court Rurch. :
The plaintiff sold her interest in n fail
ing mercantile business to her partner
who was without funds but who hoped to
save the business and pay the plaintiff
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 2O,661.
William Knoll, Appellee.

No. 2O,661.
William Knoll Appellee,
The City of Salina, Appellant.
Appeal from Saline County.
AFFIRMED
1. An employer can not avoid the pay
ment of compensation to an injured en-
ploye under the workmen's compensation
act because written notice of the accident
was not given to the employer by the en-
ployee within ten days after the accident
occurred unless the employer has been
prejudiced by the lack of such notice.
p Nor is recovery barred by the
failure of the injured empioye to make
written demand for compensation within
three months after the accident if an oral
demand was made within that time.
s. The provision of the statute that
claims demands against city of the
second class shall be presented in writing
duly itemized and verified and that I'M
less so presented and verified
allowed by the city officers, applies
to demands of INJURED employees against
city under the workmens compensation
act
4. If action for compensation is
brought against city of the second
class upon claim not so presented and
verified recovery may be had upon it,
but recovery be had against the
city for the costs of the action.
Burch, J., Mason, J., Porter, J., Marshall,
J., and Dawson. j.. concurring.
West, J., concurring specially
A true copy.
Attest: d. A. VALENTINE,
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 2O,371.
Gus Norris, Appellant

No. 2O371
Gus Norris, Appellant.
Ross Township, Appellee.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. BY the Court. Porter, J.
In an action against n township to re-
cover damages for injuries alleged to have
been caused by defect in the highway, 1t
is held, that the petition fails to state u
cause of action for the reason that it
shows the proNimate cause of plaintiffs
injury was the frightening of his horse
and not defective condition of the high
way.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
tSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 19,T62.
Pauline Raedell, Appellee.

Leslie L. Anderson and NJ. Reddy, Appel
lants.
Appeal from Harper County.
Opinion on Isehearing.
AFFIRMED.
Syllabus. By the Court Dawson, ]
1. In 1888, the grantor of the plaintiff
owned part IT. of city lot In narpeT The
the defendant Jointly owned an adjacent
part of the, same lot. Buildings were
erected on these grounds and stairway
was made in the building exclusively owned
by plaintiff grantor which gave access to
and defendants grantor used the stairway.
Later the stairway was closed, without OBJ
lection from defendants grantor or from
twenty years. HELD, that whether the use
of the stairway was license or merely
permissive- the closing of the stairway and
effect revocation of the right to its use.
=. A claim of right to a stairway as
an nppanage to adjacent property is cut off
owner of the adjacent property is barred
from all right, title or interest in the
property which includes the stairway.
Such Judgment also bars all right to the
space over the stairway.
J. Injunction is proper remedy against
is not demandable as a matter of right in
a suit against such trespassers.
f. No prescriptive right in realty arises
unless the owner of the property has notice
of the exercise of that right and of a claim
thereto. or unless the exercise of the right
is SO visible, open and notorious that notice
may be presumed
8. No reversible error can be predicated
upon an order of the district judge at
chambers allowing the filing of an amended
petition and of additional parties defend
ant, when the issues are thereafter made up
and the cause fully tried out and where no
prejudicial result can be traced to such ir-
regularity. (Civ. Code, sections al, ISL
q. Findings of fact examined and found
established by the evidence, and con-
illusions of law based thereon examined
and held to be free from error.
All the Justices concurrinE.
A true copy.
Attest: d. A. VALENTINE,
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
d. A. VALENTINE.
Clerk Supreme Court

No. 20 235
The Commercial National Bank, Appellee
The Hutchinson BOX Board and Paper
Company, and Emerson Carey Appel
lantS.
Appeal from Reno County.
AFFIRMED.
Syllabus. BY the Court Marshall. l.
parol contract made at the time of or
previous to the execution of a negotiable
promissory note can not be pleaded nor
proved to show that the note was not to be
paid ut maturity but was to be extended for
a definite period.
All the Justices concurring.
true copy.
Attest: II. A VALENTINE.
lSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 1891.
Belle Isidgeway, Appellee,

Belle Ridgeway, Appellee,
The Modern Woodmen of America, Appel
liant.
Appeal from Saline County.
REVERSED.
Syllabus. BY the Court Mason, J.
L. Where the bylaws of a fraternal
beneficiary society provide that the engag
ing by member in specified dangerous
occupation shall exempt it from liability on
account of his death directly treaceable
thereto, the acceptance of dues from a
member after he has engaged in such oc-
cupation, with knowledge of the fact. does
not constitute waiver of the exemption
referred to-
,. No waiver results in that situation
from the fact that the society, after learn
ing that member has lost his life through
engaging in the prohibited occupation. at
the request of the beneficiary furnishes
blanks upon which to make proofs of death,
without giving notice of an Intention to re-
sist payment. otherwise than by a general
statement that the supplying use use of
the blanks should waive no right to deny
the liability.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17

No. 20.5S5.
The State of Kansas, Appellee,
Robert Kenney and Bud Harding,
Appellants.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court Mason, J.
l. The evidence examined and held to be
sufficient to support conviction on u
charge of burglary and larceny.
= Evidence of an attempt of the defend
ant in a criminal case to break Jail pending
trial is admissible as tending to show guilt
All the Justices concurring.
A true copy. -
Attest: D. A VALENTINE,
ISeaIl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
D. A. VALENTINE,
Clerk Supreme Court.
No. 1885.
Grace Allen, Appellee,

No. 1885.
Grace Allen, Appellee,
VS..
NJ S. Cheer, appellant.
Appeal from Shawnee County.
End Division.
AFFIRMED.
Syllabus. By the Court. Dawson. J:
l. The rule that a waiver of right of
forfeiture must be pleaded before it can be
considered does not apply when evidence
tending to show the waiver is introduced
without objection, and when the testimony
of the defendant who is insisting on the
forfeiture tends to show a waiver, and
when his request for the submission of
special questions on the subject of waiver
is allowed.
, When a vendor of real estate, under
a contract of sale and to convey title
when payments are completed, by his
course of conduct has waived the default
of the vendee and the vendeeS assignee,
and Wrongfully RECEIVERS possession of the
property, and the vendees assignee COM
mences an action for damages thereon, it
is not error for the court to instruct the
jury that both parties are seeking to treat
3. Where a vendor of real estate re-
ceiyes a payment on the purchase price and
afterwards repudiates the contract and
wrongfully RECEIVERS possession of the
property, and the vendee elects to treat
the contract as repudiated, the measure of
damages where no other elements of dam
age are stablished is correctly defined to
less the rental value of the property while
in possession of the vendee.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
GSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
d. A. VALENTINE,
Clerk Supreme Court
No. 2O.542.

No. 20.542.
William V. Girten, Appellee,
National Zinc Company. Appellant.
Appeal from Wyandotte County.
Third Division.
MODIFIED AND AFFIRMED.
Syllabus By the Court West, J.
l. In Il coi1oquy between court and coun-
sci before beginning the impaneling of a
jury to try case under the Workmen's
Compensation Act, the court in response to
suggestion that long the employer
is not in default action to recover can
be brought, replied:
That theory would shut a man out from
his right to recover a lump sum and would
not give him any discretion
Held that neither this remark the in
structions show that the court failed to
exercise its discretion i'll the matter of
periodical payments lump judg
inent-
2 While the jury returned a general
verdict they also made the necessary find
1ngs on which the court could enter judg
nent and hence such general verdict did
not constitute material error.
j. Notwithstanding section $50 of the
Clvn Code causes on appeal must be de-
termined upon the record coming from the
trial court tIn re Burnette, 73 Kan. 609, So
Pac- oI5 Hess V. Conway, % Kan. 246,
144 Pac. 205.)
4. On account of an excess in the judg-
ment it is ordered modified. 1t is then
affirmed.
All the justices concurring.
true copy.
Attest: ID. A. VALENTINE,
lSeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
LEGAL.
SUPREME COURT SYLLABI
CONTINUED from Preceding rage.l
No. 1895.
GeOrgia n Erickson, Appellant,

continued from Preceding IaEe-)
No. 1926.
GeOrgia y. Erickson, Appellant,
John Erickson and Josephine Erickson,
AppelleeS-
Appeal from Butler County.
AFFIRMED.
syllabus. by the Court Porter, j.
l. Plaintiff testified to statements made
by defendants in conversations had with
her but the court refused to permit her to
state what she said to them. The state
ments excluded were self serving in char
actcr and did not tend to explain the
language of the defendants. Held. not
error.
. In an action in which plaintiff sued
TO recover damages from the parents of
her deceased husband for alternating his
affections. letter written Plaintiff by her
husband prior to their marriage Of
fered as evidence of his affection for
Plaintiff. Held. incompetent as against the
defendants.
,. In view Of certain admissions Of the
Plaintiff it Is held that notwithstanding
there what may be called sctntilla
Of evidence to support ner claim. the ruling
sustaining n demurrer to the evidence Will
not be disturbed
Johnston. & J.. Burch. J.. Mason. J.,
and Marshall. J. concurring West, J., and
Dawson. j.. dissenting.
\ true copy.
Attest: D. A. VALENTINE,
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
u. A. VALENTINE.
Clerk Supreme Court

No. 2O,OOI.
The Hogan Milling Company, ct al, APP
pelants-
The City OF Junction city. Kansas, ct al,
Appelles
Appeal from Geary County.
AFFIRMED.
Syllabus. by the Court. Marshall, J.
1. Under chapter 123 of the Laws of
1911. "a city of the second class may pro-
vide for the improvement of an inter
vening connecting street between parallel
streets that improved, although the
connecting improvement begins at the end
Of the Improvement on one of the parallel
streets
= Chapter 123 of the Laws OF 1911. CT
fecting the amendment of existing laws by
Implication. is not within the purview of
section IT, Of article of the state con-
stitution. Following Parker Washington
Go. vs.. Kansas city, IS Kan. I'D, 50 Hac
ISL
All the Justices concurring.
a true copy.
Attest n. A. VALENTINE.
tSeai.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
d. A. VALENTINE.
Clerk Supreme Court.
No. 20,7O5.
G. X. Kleinhein, Appellant,

No. 20,7O5.
C. X. Kleinhein Appellant,
The Board of Commissioners of The City
of Wichita, ct al, Appellees.
Appeal from Sedgwick County
Second Division.
AFFIRMED.
Syllabus. By the Court. Durch, j.
city ordinance, passed pursuant to
statutory authority, regulating the weight
and grade of plumbing material, examined
and held, to be within the purpose of the
unable to say that either the statute or
the ordinance is invalid because it has
no direct or substantial relation to the
public health and welfare.
Johnston. C.. J., Mason, J., Porter, J.,
West, J., and Marshall, J., concurring.
Dawson, J., dissenting.
true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
d. A. VALENTINE,
Clerk Supreme Court
No. 1865.
Charles Golf, Appellant,

NO. 1868
Charles Golf, Appellant,
vs.
Thomas Franklin Golf. ct al. Appellees.
Appeal from Graham County.
AFFIRMED.
Syllabus. By the Court. Mason, j.
1. A statement in the record of order
granting Il new trial. that the ruling was
finding not sustained by sufficient
competent evidence does not necessarily
imply that the court would have approved
such finding If it had been satisfied of the
competency Of all the evidence on the sub
1ect that had been admitted at the trial.
= The entire record held not to show
that finding which set aside would
have been approved except for the con-
clusfon of the court that a part of the evil
dence introduced was incompetent and
should therefore be disregarded.
g. Where the court sets aside a finding
which may have been in part the basis
of the general verdict, new trial must
be granted unless the remaining findings
in themselves require judgment.
f. The refusal to carry out a verbal
promise to reconvey land, the title to which
is transferred by a writing absolute at its
face, cannot in itself constitute such a
fraud as to make the grantee a trustee for
the grantor by operation Of law. Nor
will the mere fact that the parties are
father and son show such confidential re-
lations to change the rule.
5. The petition and evidence held to be
sufficient to take to the jury the question
whether there had been such part perform
ance of oral contract creating trust
Notwithstanding the statute of frauds in
relation to such trusts.
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, 1916-06-17
d. A. VALENTINE,
Clerk Supreme Court.

No. 20,222
Severy State Bank, Appellee,
W. w. Gragg. Appellant.
Appeal from Elk County.
AFFIRMED.
Syllabus. By the Court Porter. j.
1. In an action by bank against a
customer to recover alleged overdraft,
entries in the books of the bank made in
the regular course of business com
petent (Civ. Code. sec. aSi) in favor of the
bank prima facie evidence of the con-
dition of defendants account, and also
to show to whose account checks drawn
by him had been paid
.. In this action 1t is held that the de-
PENDANT suffered no prejudice by the tes-
timony of a deputy bank commissioner to
the effect that when he took charge of
the bank he found draft drawn against
the defendant which the bank had paid
about 90 days previous and had been
carrying cash item, and that he di-
rected the bookkeeper to charge the draft
to defendants account. which was done.
3. Other evidence examined and the in
structions considered. and held. there was
no error authorizing a reversal.
All the Justices concurring.
A true copy.
Attest: d. A VALETINE,
[Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
No. 1871.
Clyde Maris, A Minor, ETC., AppellaI


Clyde Maris, Minor, etc, Appellant,
The Lawrence Railway and Light Com
pany, Appellee.
Appeal from Douglas County.
AFFIRMED
Syllabus. By the Court. Porter, J.
1. An objection is properly sustained to
a question which calls for a mere
clusion of the witness upon one of the
ultimate facts which it is the duty of the
jury to determine.
=. In an action to recover damages for
injuries resulting from n collision between
a motorcycle upon which plaintiff was
riding and street car of the defendant,
the doctrine of "the last clear chance" does
not apply, where the negligence of the de-
PENDANT is predicated upon the theory that
defendant should have discovered the
plaintiffs danger in time to have avoided
the injury, but did not in fact discover it.
3. Where the special findings showing
In detail just what occurred contradict
and overturn the finding of negligence,
they control. and it is proper in such case
to set aside the verdict in plaintiffs favor
and render judgment for defendant upon
the findings.
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, 1916-06-17
LEGAL.
published in the Topeka State journal,
June 10, 191G)

published in the Topeka State journal,
June IL, 191G)
NOTICE OF APPLICATION or BUSI-
NESS COLLEGE FOR A PERMIT TO
CANVASS IN THE STATE
OF KANSAS.
Notice is hereby given that the Man
haitian Business College of Manhattan
Kansas, has made application to the for "A
permit to canvass in the state Of Kansas
for the purpose of selling tuition in ad-
vance. or te contract. or to secure notes for
tuition from students before their regis
tration in the business college herein
named. If satisfactory proof is furnished
that the above named business college is
incompetent to furnish such a course OF
instruction as it advertises, that the
moral surroundings of the institution are
not good or that the premises are kent
in unhealthy condition or II the
agents of said institution use misrepre-
sentative or fraudulent methods in Sc
curing contracts, notes or cash from pros
pective students. in such case permit
will not be granted to such business col
lege.
W. ID. ROSS
Sfafp rfuf
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17

Attest: d. A. VALENTINE,
lSeall Clerk supreme Court.
No. 10000.
Pittman & Harrison Company, Appellant,
Eugene r. Hayes doing business as Hayes
Produce Co, Appellee
Appeal from Shawnee County. Div. p
AFFIRMED.
L Rule followed that the allowance of
belated amendments to pleadings is within
the sound discretion of the trial court
,. case will not be reversed on exeep-
lions to instructions which do not relate
to the issue upon which the cause was de-
termined.
3. In an action for damages for breach
of contract, compromise and settlement
were pleaded and proved and the jury so
found In such case, the accuracy of in
structions touching other defenses also
l. Whether the corruption Of the Pre-
vailing, party (Civ. code, section 800
clause 9TH by giving perjured testimony
in an unrelated and superfluous defense
can be said to have been instrumental in
procuring a verdict on the principal and
successful defense, is question OF fact
determination thereon is ordinarily con-
elusive
8 In support of a motion for a new
trial under the sixth clause of section 800
of the civil code, which relates to "corrup-
ton of the prevailing party. the defeat
ed party Introduced evidence tending
strongly to show that the witnesses whose
full defense to an action for damages com
mitted perjury in their evidence to prove
a second and unrelated defense; held that
while the district court with much pro
priety might have granted a new trial on
such showing. it cannot be ordered by the
supreme court.
All the Justices concurring.
A true copy. -
Attest: D. A VALENTINE
(SealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17
d. A. VALENTINE.
Clerk Supreme Court
No 2o,225aa
L. b. Martin. Appellee,

7. b. Martin. Appellee,
vs..
The Atchison, Topeka & Santa Fe Rail
way Company. Appellant
Appeal from Hamilton Comfy.
MODIFIED
Syllabus. By the Court. Marshall. J.
l. The evidence and findings of fact on
the question of negligence in maintaining
a cattle guard have been examined, and
it is held that the evidence supports the
finding of the jury that the defendant was
negligent and that the findings of the
jury are not inconsistent with the finding
of negligence.
2 Where a cause is remanded for the
determine zion of n single fact, other ques-
lions not involved in the determination OF
that fact should not be considered by the
trial court.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal.l Clerk supreme Court.