davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 20,577.
A A. Seckman, Appellee,

The Monarch Cement Company. Appellant.
Appeal from Allen County.
AFFIRMEn
Syllabus By the Court. Mason, J.
1. The evidence in an action under the
workmen's compensation act held to war
rant a finding that permanent partial in
capacity resulted from the loss of the ends
of the second and third fingers of the
left hand of a workman who had already
last a part of the thumb and first finger
of the same hand.
?. The provision of the statute that in
case of partial incapacity periodical pay
ments shall not be less than 50 a week
relates to the amount of recovery. and not
merely to the manner Of its payment; 1t
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 2O.623.
William E. Sauvain, Appellee,

No. 20.623.
William E Sauvain, Appellee,
A C. BatteIle, Appellant.
Appeal from Franklin County.
AFFIRMED.
Syllabus. BY the Court. West. J.
1. The evidence examined and held to
support the findings.
2. On the theory of total incapacity as
found, the conclusion of law as to the sum
allowed was correct.
3. The tried by the court
and the findings are convincing that the
Judgment rested the theory of total
incapacity. Held that an expression in
one of the findings indicating partial ca
pacity only does not in the situation pre-
sented by the record work such incon-
sistency to require reversal.
4. Rule followed that workman par
TALLY or totally incapacitated is not to be
denied COMPENSATION on account of obtain
ing work even more remunerative which
he has the physical ability 70 do.
Ali the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
u. A. VALENTINE.
Clerk Supreme Court



Charstro Strom. a. ]. Strom. f. NJ Strom
and L. o. Strom, Appellants,
r. A Wood. as Sheriff of Morris County,
Kansas and w. l.. Rude. Appellees.
Appeal from Morris County.
AFFIRMED.
Syllabus BY the Court. West. j.
i. a viii gave certain property, to the
widow of the testator so long as she shall
ness; or shall not become remarked; and
when either of such contingencies snail
happen, then l direct hat all Sald proper
ty, both real and personal snail at once oe
distributed among my children and helrs
at law, the issue of myself and by said
wife and my said wife. Charsto Strom, as
the laws of Descent and Distribution of
the State of Kansas provide and direct;
Held that such will vested in the widow
n life estate to be enlarged to a one half
interest in fee by remarriage or dlsab,ill i
and vested in the children the remainder
in all subject to being diminished to
vested remainder in one-half by the dlsa-
biIity or rtmarriage of their mother
. A uevisee is presumed 70 accept a
devise favorable to him. and II he desire
to renounce he should do so within a rea-
sonabIe time.
~ A timely remuneration relates back to
the death of the testator.
4. A judgment was recovered IN MOTIFS 1nrG
county against the devisee April I, 19lO
The testator died and his will giving the
devisee an interest in certain land IN the
same county was prObated May 10, 1911
Executions the judgment were ISSUED
January 6. 1915 and later. March II, l9io
levy. was nude on the devisee'S interest in
the land. April %, 1916 the sheriff began
to advertise a sale to enioin which this suit
was begun. April "A 1916 the devisee fi ,ied
a disclaimer. Held, that the Judgment had
already been for years lien on his inter
est which by larse of time and non acton
he is presumed to have accepted;
5. The amended petition alleged that
the estate had not reached final settle
ment but averred that the executriX had
been appointed more than five years. There
was no allegation of unpaid claims: Held
that it will not be presumed that the sale
of land was necessary for the payment OF
debts.
All the Justices concurr1ng.
true copy. -
Attest: u. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
D. A. VALENTINE,
Clerk Supreme Court.

No. 20,779.
Mrs. Maude Griffith. Administrators, ETC.,
Appellee,
Midland Valley Railroad Company, APP
pellant.
Appeal from Cowley County.
AFFIRMED.
Syllabus. By the Court; Dawson Dawson, D. !.
railway company engaged in interstate
commerce for the wrongful death of a
workman employed in that commerce,
which is sought to be maintained by the
deceased workman's administrators for the
benefit of his widow and infant children
is not removable as a matter of law merely
because the petition does not contain a
specific allegation that the widow and
worlman for their support. when the Pc
tition otherwise clearly discloses that the
action is sought to be maintained under
clearly discIoses that the recovery for dam
ages is not demanded under state law;
cause of action against an employer for
the wrongful death of its workman. and
held that demurrer thereto was properly
g. Certain impeaching testimony exam
ined and held to be relevant to the issues,
pertinent to the anteeedent testimony
sought to be impeached, not collateral,
properly restricted to purposes of impeach-
ment and admissible.
4. 1t is not error to refuse an instruc-
ton limiting the scope and purpose of GER
tain evidence admitted, when 1t is re-
quested as one Of thirty instructions
of the evidence, and when the court, at
the time of the Introduction of the evil
dence, explained to the jury the purpose OF
the evidence and limited its application
thereto.
s. 1t is not prejudicial error to admit in
evidence a deposition of a resident of the
county whose usual employment Is outside
the state, when the deposition contains
the cross-eXamination of the deponent,
when both plaintiff and defendant had
caused the issue and service of subpoenas
for his personal attendance as witness
without avail, when an attachment for the
effort had been made to serve 1t, and when
the trial court made a finding that both
plaintiff and defendant had used their best
efforts to procure his attendance and that
the deponent was either absent from the
Jurisdiction or that the sheriff could not
find him in time to secure his personal
testimony.
G. other matters of evidence examined
and held admissible
Z. Examination of refused instruction.
and held the subject sufficiently and favor
ably covered by instructions given.
s. instruction touching matters to be
under the federal employers liability act
considered and held within the fair in
tendment of the act and in harmony with
pertinent, authoritative presidents pertain
ing thereto.
8. Verdict and award of damages con-
sidered and held not excessive under the
circumstances.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 20,S62
Sam c. Caldwell and Edith Caldwell,
Appellees,
c. d. Skinner and ]. S. Gayhart,
Appellants.
Appeal from Shawnee County.
division No. p
AFFIRMED.
Syllabus BY the Court. Johnston, c. J..
Where goods are delivered in good con-
dition to a warehouseman for hire and it
is shown that they have not been delivered
on demand and payment of charges by the
depositor but have been destroyed by fire
while in the custody of the warehouse
man, the burden is upon him to absolve
himself from negligence by showing a law
full excuse for his failure to deliver the
goods in compliance with the demand.
All the Justices concurring.
A true copy.
Attest d. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 1,16J
e. H. Nelson and w. c. Nelson,
Appellants,


school District No. ct al, Appellees.
Appeal from Ottawa County
AFFIRMED.
SYLLABUS BY the Court Marshall, J.
j. Under section 9409 of the General
Statutes of 1915, a record of a school boa Ri
meeting showing an order by the board
describing certain land and declaring that
the appropriation of such land is neces-
sary for the purposes of a school house
site and Fairgrounds, is sufficient to au-
thortze a proceeding for the condemnation
OF the land where it appears that n sur
yey of the land has been made and n plat
has been filed with the clerk.
2. Where a school district, in which ID
situated a city of the third class has
voted to change it's school house site under
section S915 of the General Statutes of
1915, the school board may then proceed
under sections 940S-9414 of the General
Statutes of 1915 to condemn the new
site.
3. A school board acting under Sec
lions 940S-o414 of the General Statutes Of
1915 may condemn more than one and
one-haf acres for a school house site and
Fairgrounds
A. Where land has been selected for "a
school house site, it is not necessary for
the school board to try to purchase the
land at reasonable price or procure II
by donation or otherwise, before fustf-
tutiDg condemnation proceedings, II the
owner of the land refuses to convey or
donate the land to the school district
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE
Seal.t Clerk Supreme Courf
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 2O.s77.
The Morehead Manufacturing Company.
Corporation, Appellant,
The Western Straw Products Company and
The Hutchinson Box Board & Paper
Company, Appellees.
Appeal from Reno County.
AFFIRMED.
'i T. The plaintiff s sold iGuT Vacuum trap "
ito be returned to us at our expense
at the end of sixty days from date Of in.
Eoife IF It does not n DO IT'S T0Gs properly
Complaint Of its failure to work was
months the plaintiff intended and at
tempted-but unsuccessfully-to make the
trap work properly, thus in effect waving
that the plaintiff is not entitled to recover.
All the Justices concurring.
Attest: D. A VALENTINE,
(Seal) Clerk Supreme Court.
No. 2O.S69.
No. 2O,S70
No. 20.S71
John A. Boutross and +. A. Boutross,
name and style of Boutross Brothers, APP
pellees.
The Palatine Insurance Company, Limited,
of London, England, Corporation,
The Continental Insurance Company of
The eT Tide1ty Fire Insurance Com
pany of New York, a Corporation, APP
pellantS.
Appeal from wyandotte County Division
AFFIRMED.
Syllabus. By the Court. Porter, J.
L. In an action upon an award of ap
praisers appointed to determine a loss
under policies of fire insurance, held upon
the facts stated in the opinion that the
award not void because the appraisers
failed to comply strictly with pro
mission in that the he 9f shah
then determine the actual cash value of
each article and place the damages on
each at definite sum per yard, pound,
bushel or gallon, etc., as the case may re-
quire in their proper columns"
vided for the appointment of two ap-
praisers who shall appoint an umpire. and
that an award signed by any two of the
three should be binding upon the parties.
Held, that one of the appraisers could not
by Withdrawing from the appraisal pre-
vent the other two from completing the
award.
g. The amount claimed in the proof of
loss will not preclude the assured from
showing a greater loss, where the insurer
has not been misled or induced to change
its position by the statements in such
preliminary proof
A. In such action where the answer
pleads that the award was false and fraud
ulent the defendant has the burden of
proof but on the facts stated in the opinion,
1t is held that a ruling placing the burden
of proof on the plaintiff and depriving
defendant Of the right to open and close
can not be regarded as error which justi-
flies a reversal.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 2O.SSz.

No. POSSE.
J. X. Hammond and Il. 3. Hammond, Part
ners, etc. Appellees,
The Western Casualty Guaranty In
surance Company and The Western In
demnity Company. Appellants.
Appeal from Sedgwick County, First Di-
vision,
AFFIRMED.
Syllabus By the Court. Marshall. ].
1. Where a policy of insurance differ
emit from that applied for has been fraudu-
lently issued, the recipient of the policy
may, without reading it, assume that it
conforms to the application; and an action
thereon is not barred until two years after
the fraud is discovered.
.. Where fraud in issuing a policy of
insurance and a mistake in the policy, are
alleged. and reformation is asked, and
where the evidence supports the allegations,
the court is justified in reforming the
policy and in rendering Judgment thereon.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 21,152.
James Ii. Ruth, Appellee,


The Witherspoon Engler Company,
Appellant
Appeal from Wyandotte County,
(Third Division)
AFFIRMED.
syllabus. By the Court. Marshall, J.
!. 1t is OF reversible error to refuse to
give an instruction stating in detail the law
covering issue submitted to the jury
where the court clearly states the same
rule in general language in the instruc-
tor given
2. The refusal of the court to permit
the cross-examiration of a witness to es-
tablish defense, will not cause a rever-
sal of the judgment, where the witness
who was party to the action, could have
been produced by the party seeking TO
cross-examine him, and where the evil
dence sought to be introduced by cross
examination was shown by records intro
duced In evidence by the party cross-ex-
aiming.
3. Under the workmen's compensation
act, jury trial is waived unless de-
manded and where it is not demanded.
court may call a jury to find the facts
and may render judgment on the findings
of the jury.
All the Justices concurring
true COR
Attest: d. A. VALENTINE.
(Seal-) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 20,S55.
George Mcdaniel, Appellant.

No. 20S55.
George Mcdaniel, Appellant,
C. E Putnam. Appellee.
Appeal from Franklin County.
AFFIRMED.
Syllabus. BY the Court Porter J.
1. A claim payable on the death of an
other person is not a contingent claim that
might never accrue, but is absolute, I'M
conditional claim payable in the future.
the time of payment only being uncertain :;
it is a claim accrued when created, the
payment merely postponed until the hap
pening Of an event which must surely
transpire.
.. Except by some provision in a will
requiring the keeping open of an estate
longer than two years the statute controls
person has no power by an oral agree
ment with his creditor to establish a diff
ferent rule to the time for the pre-
sentation Of a claim against his estate than
the rule declared by the statute Of mon
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
D. A. VALENTINE,
Clerk Supreme Court.
No. 2O,S39.
S. S. Hawks, Appellee,

No 20,S39.
S. S. Hawks, Appellee,
The Atchiscn, Topeka & Santa Fe Railway
Company. Appellant.
Appeal from Sedgwick County.
division No. IL
AFFIRMED.
Syllabus. By the Court Mason. J.
Where a new trial is granted after a
verdict for the defendant, this court will
not ordinarily undertake upon an appeal
from such order to determine whether
the plaintiff failed to make a prima facie
case, inasmuch the trial court may have
thought a new trial advisable even if that
were true. regarding the failure as excus-
able and remediable
All the Justices concurring.
A true copy
Attest: D. A VALENTINE.
(Seal-) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
D. A. VALENTINE,
Clerk Supreme Court.

No. 10000.
Arthur Brigham. by Celia Brigham, His
Mother and Next Friend, Appellant
The Union Traction Company, Appellee
Appeal from Montgomery County.
AFFIRMED.
Syllabus. BY the Court Burch. ].
The evidence considered, and held in
sufficient to establish actionable negli-
gence on the part of an interurban rail-
way company toward passenger who was
injured by coming in contact with a troll
ley pole at the side of the track while
riding on the bottom step of a car.
All the Justices concurring.
true copy.
Attest; D. A. VALENTINE,
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 20,576.
Maude Ralph, Appellee,

Maude Ralph, Appellee,
Milo E. Ball, ct al, Appellants.
Appeal from Butler County.
AFFIRMED.
Syllabus. By the Court. Burch,
The devisee in will probated in 1924
was given real property, provided life
tenant under the will died without leaving
issue surviving her. In April, 1898, the
devisee, who was then a minor, executed a
deed of the property to the life tenant,
without consideration. In December. 1SgS,
the devisee attained her majority: In
April, 1900, the life tenant died without
issue surviving her. In December, 1901,
the devisee disaffirmed the deed. In July,
1914 she commenced an action to recover
the property from the husband of the life
tenant. who claimed adverse possession
from April, 1898. Held, the action was not
barred by either section 10 or section 10
of the civil code, and section 16 does
not apply by analogy in determining
whether or not the deed was disaffirmed
within reasonable time.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
Nos. 1S,967 and 1917.
Consolidated.
Mary ]. Holloway, Appellee,


Consolidated.
Mary J. Holloway, Appellee,
Peoples Water Company, Appellant,
Appeal from WOodson County.
AFFIRMED.
Syllabus By the Court. West J
l. The admission in evidence of a Ger
tain deposition and letter, if error, was
immaterial.
> That portion of the decree of May
ID, 1912 retaining the cause for further
orders should the same be deemed neces-
sary IN the future. to in justice and equity
conserve and protect the rights of respec-
tive parties hereto left the court with
jurisdiction to modify or change such de-
cree at a subsequent term and before final
dismissal of the suit
3 The evidence supports the findings
and DEGREES and orders of the trial court
f. Under section POS of the General Stat
utes OF 1913 the fine for contempt in vio-
latnS an injunction goes to the support
of common schools although the proceed
ing TO punish for such contempt was in
TINS case tlvli rather than criminal
D. Restitution" used in section 71.5S
Of the General Statutes of 1915, when ap-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 2O,3JO.
Seth Ely. Appellee,
VS..
The Wichita Natural Gas Company,
Appellant.
No. 20351
Bell Brothers & Mcdonald, Appellee,
The Wichita Natural Gas Company.
Appellant
Appeal from Neosho County.
Former Judgment of Reversal Adhered To.
OPINION ON REHEARING.
Syllabus. BY the Court. Mason. J.
l. The rights Of one who had contracted
to purchase certain gas, but refused to ac-
cept that which rendered on the
ground that it did not conform to the re-
quirements, held not to be affected by his
refusal to sign a writing authorizing the
seller to dispose of it elsewhere
.. A decision that gas rendered under
n contract was not merchantable within
the meaning of that term as there employ
ed held not to involve violation of the
14th amendment to the federal constitution.
All the Justices concurring.
A true copy.
Attest: n. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 2O,452.
J. E. Ball. Appellee,

No. 20,452
J. E. Ball, Appellee,
Charles Collins and e. V. Holding,
Appellants.
Appeal from Bourbon County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
l. Rule followed that If, upon weighing
the evidence, the trial court is dissatisfied
with the verdict of the jury. it is his duty
to set aside the verdict and grant a new
trial.
2. Error in overruling a demurrer to
evidence will not cause the reversal of an
order granting a new trial, where the ap-
peal is specifically from that order
All the Justices concurring except West,
J., who did not sit.
A true copy.
Attest: D. A VALENTINE
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
LEGAL.

means that the workman shall be entitled
to receive at least that amount for every
week that the incapacity continues until
the statutory limit of eight years is
reached.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
i(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
D. A. VALENTINE,
Clerk Supreme Court.
No. 2O,s49.
A. s. Bennett, Appellee,


A S. Bennett, Appellee,
VS..
The Missouri Pacific Railway Company,
Appellant
Appeal from Shawnee County.
division No. ~
AFFIRMED.
Syllabus. By the Court. Johnston, c. J.
1. A railroad company undertook by a
stipulation in a bill of fading to carry
grain to a certain point and there deliver
it to another carrier by which it was to
be transported to destination; but the
company failed to transport and deliver
the grain to the connecting carrier as it
had agreed to do. 1t forwarded the grain
in another way which occasioned loss to
the shipper. Held, in an action brought
by the shipper against the railroad COM
pany for breach of contract, that the COM
pany is liable for the loss resulting from
its failure to comply with the agreement
stipulated i'll the bill of lading.
. The evidence is held to he sufficient
to sustain the findings and Judgment of
the trial court
Burch. J.. west, J., and Dawson, J.,
concurring
Mason, J.. Porter, J., and Marshall, J.,
dissenting.
true copy. -
Attest: d A VALENTINE,
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
D. A. VALENTINE,
Clerk Supreme Court
No. 2O.6T4.
B. w. Pettijohn, Appellee,

B. W. Pettijohn, Appellee,
Saint Paul Fire & Marine Insurance
Company, Appellant.
Appeal from Norton County.
REVERSED AND RENAMED.
Syllabus. BY the Court Johnston, C j.
l. A provision in fire insurance policy
that the taking of other insurance without
the consent of the secretary and general
agent of the insurer shall avoid the entire
policy is binding on the parties and the
taking of additional insurance without
such consent defeats a recovery under the
policy unless the condition has been waiv-
ed or abrogated by an authorized officer
or agent of the company.
2. A local soliciting agent without au-
thority to write or issue policies but who
merely procures applications. collects pre-
miums and sometimes delivers policies
when payments are made, is not a general
agent of the insurer and his knowledge
that other insurance had been subsequent
ly taken is not chargeable to the insurer {:
nor did the insurer herein in any way
waive or abrogate the condition which was
violated by the insured.
Burch, J.. Mason. j.. Porter, J.. Mar
shall. J.. and Dawson. T.. concurring.
Johnston. C. J., and West, J., dissenting.
A true copy.
Attest: d. A. VALENTINE.
{Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
Nc. 81 ,03j.
The State of Kansas, Appellee,

10y Shives, Appellant
Appeal from Reno County.
AFFIRMED.
Syllabus BY the Court. Mason, j.
In a prosecution for the sale of in
toxicating liquor the evidence held suffi-
Client to sustain a conviction, although the
witnesses " no drank it professed not to be
certain as to the character of the beverage
sold
. The omission to give an instruction
regarding circum stantial evidence held not
to have constituted error.
g. Testimony regarding a fact is not to
be characterized as opinion evidence be
cause the witness undertakes to give only
his belief in the matter.
4. A remark by the trial judge suggest
ing a doubt of the candor of witness
held to have had a sufficient basis to pre-
vent its constituting error
All the Justices concurrtng.
A true copy.
Attest: y. A. VALENTINE.
[SeaLI Clerk Supreme Court