davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
d. A. VALENTINE,


Ernest Smith, Appellee.
B. F.. Bush, Receiver of the Missouri Pa
cific Railway Company, Appellant.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. BY the Court Porter. J
1. Although train sheets and records
of railway company, made before the
which show that no engine train
operated at or near place where the fire
in question occurred, are entitled to great
weight as evidence, this court can not
weigh the effect of them as against evil
dence of persons who testified that they
saw an engine operating there at the time.
,. The following instruction should
not have been given, in view of the char
acter of the conflicting evidence upon the
issue Of fact to which it refers
You are instructed that under the law
of this state Il positive statement of wit
ness as to an existing fact with relation
to seeing hearing a thing, which he
was lit position to see or hear. is of
greater value than the statement of a wit
ness who testified that he did not see or
hear a thing
3 The petition alleged the fire was
caused by negligence in operating en-
CINE, and also negligence in falling to pro-
vide sufficient devices to prevent sparks.
found that the fire was caused by care
less handling of the engine. or because of
the defective condition of the smokestack
There was no evidence from which the jury
could have answered differently. Held,
following Hilligoss V. Railway Co. 81 Kan.
80. III Pac. 3S3, it was not necessary in
order to support the verdict that the iury
agree among themselves as to which of the
two acts of negligence occasioned the fire
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
LEGAL

provision in the will that if any son should
die before the termination of the life
estate. such sons share should be paid to
his descendants and should not lapse, is
mere direction in accordance with the
statute of descents and distributions and
does not fairly imply that the sons may
not absolutely dispose of the undivided
interests vested in them by their fathers
will.
5. Where a life tenancy and remainders
are carved out of an estate by will, and
the remaindermen are in esse definitely
ascertained, and nothing but their death
before the termination of the life tenancy
can defeat their title, the remainders thus
created and bestowed by the will are
vested absolutely in the remaindermen.
Burch J., West, ]. and Marshall, J.,
concurring.
Johnston. c. J., Mason, J. and Porter, J.,
dissenting in part.
A true copy.
Attest: d. A. VALENTINE,
(SealD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
LEGAL
No. 30,96S.
I. II. Griffith, Appellee,
No an-a6s


t. II. Griffith. Appellee.
The Atchison, Topeks s Santa Ee Railway
minal Railway Company, Appellants.
t. II. Griffith, Appellant,
City of wichita, Appellee
Appeal from Sedgwick County.
Division No. .
Syllabus. by the Court. West, j.
1. In an action for damages for the
but one ground, it was error to permit
proof of another ground and to give in
structions and submit findings pertaining
amounts allowed on account Of each. the
error was rendered practically harmless as
that part of the Judgment might have
been eliminated
= Damages were permitted to be proved
on the basis of the PLAINTIFFS right to Occur
py part of certain street but this proof
was eliminated by an instruction given
and the error, if any, was thereby neutral
lied.
). Certain special questions which the
defendants assert were not within the
having been answered in accordance with
differences fairly to be drawn from physi-
cal facts shown by the record no error
in their submission is disclosed.
4. The finding that one Of the defendants
rearranged certain railroad tracks. thereby
obstructing travel in the street. did not
lieve the other defen liant from response
bility therefor in view of another finding
to the effect that such Encouragement was a
&
were both engaged.
.. The jury expressly found that GER
tain depression in street rendered the
passage Of teams and vehicles thence into
another street Impossible and by another
finding stated with equal perspicuity that
Notwithstanding such depression ii would
have been practical for teams. wagons
and other vehicles to pass from the one
street into the other. Held, that such in
consistent and contradictory findings cam
not be permitted to stand.
| q. 1t appearing from the entire record
and from the testimony of the PLAINTIFF him
self that the cement wall complained of as
a barricade did not have the effect to in
crease the obstruction to travel, 1t is held
that the plaintiff .annot recover on account
of the erection of such wall.
Z. From the location of different ave-
nues of approach shown by the record ami
. from the space i'll the street occupied by
the plaintiff by a platform or a loading
dock in front of his own buildings II is held
that he is not shown to have been dam
aged by the Encouragement of railroad
tracks complained of.
s. The claim for damages not having
/ been filed with the city clerk in the time
required by the statute the judgment in
favor of the city must for this reason, re-
gartiless of others, be affirmed.
All the Justices coneurring.
A true copy.
Attest: ID. A. VALENTINE,
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
LEGAL

see into the store TO the place where the
robbery was committed.
). A photograph of one charged with the
commission of crime may be introduced
in evidence for the purpose of corroborat-
ing a witness who identifies the one
charged, and the fact that it was found in
a rogues gallery does not render the
photograph incompetent
4. The testimony of a defendant in a
criminal action given on former or an
other trial. may be introduced in evidence
against him.
>. The evidence Las been examined and
it is held that 1t was sufficient TO sustain
the verdict, and that the verdict was not
contrary to law nor to the evidence.
All the Justices concurring.
A true copy.
Attest; d. A. VALENTINE.
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. PILL.
NJ. c. Williams, Appellee,

The Home Insurance Company. Appellant.
Appeal from Harper County.
Affirmed in Part.
Reversed in Part.
Syllabus. By the Court. Porter, ].
l. In an action ON an alleged oral con-
tract for insurance, it is held the facts
stated in the opinion. that the insurance
company by retaining control and eXercis-
ing ownership over the premium paid
to its local agent is estOpped to. deny that
it contracted to insure plaintiffs wheat
crop against loss by hail, Notwithstanding
it's local agent had no authority to make
an oral contract for insurance.
.. Evidence of the amounts paid by the
defendant to other persons in settlement
of losses TO wheat crops occasioned by the
same storm is held in the circumstances
stated in the opinion, incompetent; and
because of the failure of plaintiff to es-
tablish by competent evidence the amount
of his loss. the judgment is reversed and
the cause remanded for trial of that issue
All the justices eoncurring
A true copy.
Attest: D. A. VALENTINE,
tSeal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21.159.
Il. NJ. McCue, Appellant,

J. W. Hope, Appellee
Appeal from Finney County.
AFFIRMED.
Syllabus BY the Court Mason, !.
1. The enlargement Of the issues beyond
those specifically presented by the plead
ings held not TO have been prejudicial.
:. Language in an instruction defining
the character of the action held to have
been in accordance with the decision of this
c0urt on a former appeal.
q. The withdrawal of evidence with
reference to one item of an account held
not to have been erroneous.
4. The evidence held to have warranted
the submission to the jury of the contro-
versy regarding several items Of an ac-
count
All the Justices concurIinE.
\ true copy.
Attest: y. A. VALENTINE,
(Seul) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 20, sos.
Rebecca Harvey, Appellee,

City of Bonner Springs, Kansas, Appellant
Appeal from Wyandotte County.
Division No. ).
AFFIRMED.
Syllabus. By the Court. Porter. J.
l. In an action against city under Sec.
damages in consequence of the action of a
mob, the petition is held sufficient TO state
cause of action, and the plaintiffs evil
dence is held sufficient against a de-
murrer
>. Upon the facts stated in the opinion
it is held that the court committed no
error in refusing to direct verdict for
the defendant.
,. In an action against a city to recover
damages for the acts of alleged mob
in causing the death of plaintiffs husband,
the answer alleged hat he had committed
felony by shooting at the city marshal
with a revolver, that the city marshal who
was also deputy sheriff. summoned Il
posse to aid in arresting him; that he re-
sisted arrest and was killed while in the
act of drawing his revolver and that the
killing Justified. Held, that the in
structions given correctly stated the law
upon the issue raised by the answer
4. In such case it is held that it was
a question of fact for the jury to deter
mine whether the plaintiffs husband had
committed felony, and also whether the
crowd of men around plaintiffs house were
acting in good faith in attempting to arrest
belief that it was necessary to do so. or
whether as plaintiff claimed, they formed
during the time they were assembled a
purpose and intent to take his life. and that
in carrying out that unlawful purpose he
was killed
s. On the facts stated in the opinion it
is held that the court not declare as
matter Of law that the persons summoned
by the officer in the present case did not
constitute a mob within the meaning of
the statute, since the motive which actu-
ated them not only when they assembled,
but also at the time the. death of plain
tiff's husband was brought about, became
questions of fact: and if these vital
issues. reasonable minds might draw differ
ent conclusions from the evidence the YER
dict in plaintiffs favor can not be dis
turbed.
Burch. j., Mason, J., and West, J., con-
curing.
Johnston. c. J., Marshall. ]. and Dawson.
J., dissenting
A true copy.
Attest: d. A VALENTINE.
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
D. A. VALENTINE,
Clerk Supreme Court.
No. 21,1O1.
j}urrton Allison, Appellee,


George Hern, Chief of Police, George Hern,
Jr., and H. E. Colby, Appellants.
Appeal from Reno County.
Syllabus. BY the Court West, J.
Under an ordinance requiring the search
of a place charged to be kept for the
maintenance of a nuisance and directing
the seizure and destruction Of all property
used for such purpose, the driver of a taxi
cab was arrested on the charge of using
such vehicle on the streets of the city Of
Hutchinson for the purpose of maintaining
a nuisance by keeping Intoxicating liquors
therein for unlawful sale. The ordinance
did not provide for notice and hearing be
fore destroying such property, but the
driver and the owner were nevertheless
notified that a hearing would be had be-
fore the police judge to show cause why
the taxicab should not be adjudged for
feited and ordered destroyed. He'd, that
pending such determination the vehicle was
rightfully in the custody of the officers
and not the subject of replevin by its
owner
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. p. $50.
Belle Holcomb, A

No. 21 .0S0.
Belle Holcomb, Appellee.
Clifton Township. Appellant
Appeal from Wilson County
AFFIRMED
Syllabus. by the Court Porter
In action to recover for fniuries al
legged to have been occasioned by defective
gunrd rails on township bridge, IL Is held.
that the record fails to disclose prejudice
or passion on the part of the Jury and me
findings being sustained by evidence show
ing that the Plaintiff was without fault
that the guard rails were Insufficient tbsf
this was the proximate cause of piaintiff's
injuries, and that the township trustee had
due notice of the defect a fud0ment
against the township can not be tifstilrhed
All the Justices concurring
true copy.
Attest: d. A. VALENTINE
tSeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21.3OS.
Alfred Leslie, Appellee,


The Proctor & Gamble Manufacturing Com
pany, Corporation, Appellant
Appeal from Wyandotte County.
Division No. One.
AFFIRMED.
Syllabus. BY the Court Dawson. ].
l. Where minor has sustained personal
injuries which his father and the wrong
doer settled for an inadequate sum, such
minor on attaining his majority may
bring an action against the wrongdoer for
his injuries notwithstanding the settlement
negotiated by his father.
> An inadequate settlement by a father
for his minor son injuries does not bar
action by the son on attaining his majority,
although the father aud the wrongdoer had
by agreement filed action in city court
(Iike that of justice of the peace) for the
agreed sum and Judgment had been taken
thereon against the wrongdoer without evil
dence, without judicial consideration. and
with only a perfunctOrv entry of the judg-
ment by the city court for the agreed sum.
, In she circum stances narrated in para
graphs 1 and > of the syllabus, It was
necessary for the son to give any counten-
ance to the Judgment in the city court nor
to appeal from that judgment, he could
properly proceed by an independent action
in court having general Jurisdiction both
at law and in equity and have the judg
ment Of the city court set aside as a per-
tinent incident to the securing of adequate
redress for his injuries.
4. On attaining his majority, the plain
tiff brouSyh an action in the district court
in which his petition, in substance. alleged
that when he was seventeen years old he
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
D. A. VALENTINE.
Clerk Supreme Court
No. PHI.
Halia L. Allen, Appellee.


The National Council of The knights and
Ladies of Security, Appellant.
Appeal from Cherokee County -a--
AFFIRMED s----
syllabus. By the Court. Porter, ].
1. In an action upon fraternal benefit
certificate where the defense was that the
assured had been suspended for non-pay-
ment of dues and had not been legally re-
instated at the time of her death, it is
held, 1t was not error to admit evidence of
PENDANT to accept dues and assessments
from members who were delinquent and to
,reinstate them.
charged that the acts of the officers of the
local lodge, although unauthorized in the
first instance, if ratified with the knowl
edge of the superior officers having au-
thority, amount to a waiver of any right
or forfeiture then existing in favor of the
society and against the member; that
notice given to the officers of the local
lodge is notice to the National Council !:
that in receiving payments of dues and as
sessmentS the local financier was in fact
and in law. an agent Of the defendant and
not of the member. and that IA bylaw
making the financier of the subordinate
lodge the agent of the members, is void.
s. BY reason of special finding that at
the time she was reinstated the member
not in bad health, it is held that an
instruction respecting the provision of the
bylaws that payment of back dues and
assessments constitute warranty that the
members health is good, could not have
prejudiced the defendant and became i'm
material.
T. after accepting from the Denef1clary
the dues and assessments for the months Of
December and January and retaining them
until after the death of the assured it was
too late for the defendant to question the
authority of the beneficiary to make the
payments.
8. Where the jury return a verdict in
plaintiffs favor for the amount of benefit
certificate with interest at SO, and the
court, without having the verdict corrected,
renders Judgment for the amount with GO
from the date of the assured's death, held,
there no error irregularity of which
the defendant can complain.
All the Justices concurring
A true copy.
Attest: d. A VALENTINE,
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

NO. 2l.l3l.
Robert G. Postlethwaite Administrator of
the Estate Of John c. Postlethwaite, De-
ceased. Appellee,
Frank 2. Edison and Jessie L. McCabe.
Appellants
Appeal from Shawnee County. Second
Division
MODIFIED.
Syllabus. BY the Court. West ]
The former opinion (Postlethwaite V.
as the deliberate holding of this court
> y husband and wife mutually willed
their property including a homestead to
their survivor for life with mower of dis
occupied by the devisors. and by the sur
viving wife until her deceased. the chill
dren then having homes elsewhere and NOT
occupying the land devised judgment OBJ
to his estate by revivor against his admin
istratrix. Held, that the children took the
land freed from its homestead character
and it could by this suit be subjected to
the payment of the Judgment
3 The homestead character of real estate
depends on family occupancy-not on the
source of title.
T. Only the interest of the Judgment
error to sustain demurrer to that part
Of the amended answer setting up that the
homestead was acquired by the joint eff
forts and money of the husband and wife
and held by them as tenants in common.
,. The will not being ambiguous the trial
court correctly refused evidence eNplana-
tory of the devisor's intentions, and prop
erly struck from the answer allegations of
what such intentions we're
g. The will was not an alienation or con-
veyance of the homestead.
All the Justices concurring.
Attest; u. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
ID. A. VALENTINE,
Clerk Supreme Court.
No. II .0JT.
Bertram. Brice- Nash, Appellant,

The Hutchinson Interurban Railway Com
pany, Appellee.
Appeal from Reno County
AFFIRMED.
Syllabus. BY the Court Johnston G. r
1. plaintiff whose action is disposed
Of otherwise than on the merits can not
in new action brought within n year en-
graft causes that are barred upOn catls q
pleaded In the first action that are aot
barred.
2 Herein IT is held that the cause of ac-
ton stated in the second action is sub
stantially the same as that pleaded in the
=. A verdict of the jury must be set
aside where special findings material to ffs
support are determined by the court to he
contrary to the evidence.
All the Justices concurring.
A true copy.
Attest ID. A. VALENTINE
(SealD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
u. A. VALENTINE.
Clerk Supreme Court.
No. 21.127.
Benjamin Mullarky, Appellee,

H. A. Marker. Appellant.
Appeal from Jewell County
AFFIRMED.
Syllabus. BY the Court. Mason J
1. In an action for relief on the ground
of fraud the evidence held to have been
sufficient to warrant submitting to the
jury the matter on which the verdict was
based.
>. The overruling of a motion to re-
quire different causes of action to be
separately stated and numbered, being a
matter of discretion, is ordinarily not sub
iect to review.
3. Where a demurrer to a petition on
the ground of misjoinder is based upon the
claim that one of the defendants is not
affected by one of the causes Of action,
the sustaining of a demurrer to the evil
dence as to that defendant prevents the
everything of the demurrer on that ground
from being material appeal
4. The overruling of a motion to strike
matter from a petition held not to have
been preiudicial.
). rulings admitting evidence held not
to have been erroneous.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 2o,992.
J. J. Walsh. Appellant,


VS.
The Kansas Fuel Company and W. H
Barrett, Appellees.
Appeal from Wilson County.
REVERSED.
Syllabus BY the Court. Marshall. T.
/ Where a contract is not ambiguous,
and there is no charge of fraud accident or
mistake the intention of the parties must
be ascertained from the contract, and its
construction is a matter of law for the
court and should not be submitted to the
jury.
3 An action for darsages caused by the
subsistence of the surface of land. brought
about by mining coal therefrom. is not
barred by the statute of limitations until
two years have elapsed after the surface
has subsidized
3 There was evidence which tended to
show that the surface of the land had sub
sided in $50 200 different places within
two years prior to the commencement of
this action. and there was also evidence
which tended to show the decrease in the
value of the surface of the land caused by
the subsistence of that surface.
All the Justices concurring-
Attest: d. A. VALENTINE.
(SeaI) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No 21,124.
Erwin Stevenson, Appellee,
VS..
thur Stevenson. ct al. Appellants.

Arthur Stevenson, ct al, Appellants.
Appeal from Smith County.
AFFIRMED.
Syllabus By the Court. Dawson. J.
1. Where testator bequeaths a life
estate in his property to his widow and the
remainder undivided to his sons share and
share alike. the sons acquire a vested re-
mainder in the property, and they may sell
and dispose of their undivided interests
subject to the rights of the widow under
her life estate.
. After a testator has disposed of his
property by Withdrawing and beQueath-
ing a life estate therein to his widow and
beQueathing the remainder to his sons
in undivided equal shares, a subsequent
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21,135.
J. t. Walz, Appellant,
Peter Keller. ct al. Appeliees.
Appeal from TregO County.
AEETTsNTTTn


Peter Keller. ct a., Appeliees
Appeal from TregO County.
AFFIRMED.
Syllabus BY the Court. Johnston, c. J.
1. A homestead right attaches to land OBJ
tanned under contract of purchase where
the purchaser and his wife occupy the land
as a residence, and a new contract mOdi-
flying the contract of purchase and stipu-
lating for "a surrender of possession in
certain events and also contract of lease
executed between the purchaser and the
seller, none of which were signed by the
wife and to which she gave no consent,
are absolutely void.
>. Although the homestead may be sold
for the payment of obligations contracted
for Its purchase. the purchaser and his wife
are not precluded from defending the
homestead right as against actions brought
by the seller for rent and fOrcible de-
tainer based on the void contracts above
mentioned
All the Justices concurring.
a true copy.
Attest: u. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21, 146.
Cecil Y. Sh:nn, Appeilee

National Travellers Benefit Association, APP
pellant.
Appeal from Cloud County.
AFFIRMED.
Syllabus BY the Court. West J.
l. When an insurance agent propounds
to a customer the categorical list of ques-
lions provided by the company and leaves
out such answers given by him as would
work a refusal of the application, and the
company takes his money and issues his
policy-it and not the applicant is held
responsible for the situation thus arising.
Such company can not defeat action
or admissions contained in such appltca-
stion which-the insured at the instance of
the agent signed without reading and
without knowledge of its contents.
Al the Justices roncurring.
A true copy.
Attest: -H y. A VALENTINE,