davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
Alternate FOR PROCEEDING PAGE
LEGAL.

first devise anything was intended to pass
excepting the two quarter quarters de-
scribed, as laid out by the government
surveyors
). The admission of evidence of the
construction of will by the probate court
held to be nonprejudicial, because the in
depreciation in support of which 1t was
offered was correct as matter OF law.
4. Where the owner of tract of land
claims that he and his grantors acquired
an adjoining strip by boundary agree
ment and by adverse possession, no error
is committed against him ia admitting in
evidence the deeds through which he
claims, and which make no reference to
such strip.
). In such situation no error is com
mitted by admitting evidence that the
property continued to be carried on the
tax rolls by the original descriptions
The overruling of objections to tes-
timony on the ground of its stating the
mere conclusions of the witness held not
prejudicial where the facts were fully de-
veloped.
Z. The evidence held not to show con-
clusively that the defendant had acquired
title by boundary agreement or adverse
possession.
S. Instructions requested regarding adj
verse possession held to have been prop
erly refused.
9. The instructions given held not to
afford ground of reversal
All the Justices concurring.
\ true copy
Attest D. A. VALENTINE.
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. POSTS.
Agnes Deister. Appellee.

The Atchison. Topeka and Santa Fe Rail-
way Company. Appellant.
Appeal from Harvey County.
AFFIRMED.
Syllabus. BY the Court. Burch. J
1. work train came into a station
track, took spur track, and passed over
a sidewalk leading to the depot which
was near the crossing. At the front of
the train were three flat cars. Next came
the caboose;, with its red lights showing
in front. The engine was ct the rear of
the train. which was 400 feet long The
spur track curved sharply around an en-
bankment to the crossing, and the side
walk came down one side of the embank-
ment to the crossing. The embankment pre-
flat ears the curve, until within six or
eight feet of the track. A pedestrian ran
down the walk on his way to the station
hesitated moment when a few feet from
leading flat ear, which came from behind
the bank at a speed of ten miles per hour
There was no light on the forward end
of the leading ear. or other light visible
except the red lights on the caboose The
air whistle on the forward end of the
of the light conditions, the deceased could
not see the flat cars when he arrived at
the track.
1t is held. the jury were warranted in
finding that warnings such as the engine
whistle, sounded when the train was at
the outskirts of town, the engine bell,
ringing when the engine was around the
curve and GOO feet away, automatic
crossing bell ringing at the main line
track 80 feet away, and noise of the train
should have been displayed at the forward
end of the leading car, and the air whistle
should have been sounded.
3 The subject of the contributory neg
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20,596.
J. n. Wilson. Appellee,

The Board of County Commissioners of
the County of Allen. ct. al, Appellees,
and the Board of Education of the City
of lola, Appellant.
Appeal from Allen County.
REVERSED.
Syllabus. By the Court. Porter. J.
The payment of school taxes without
protest and in the belief that the land
constituted part of a school district com
prising a city Of the second class is a
voluntary payment, and after the taxes
have been paid over to the board of edu-
cation and have been disbursed for school
purposes, it is too late for the land
owner to maintain an action to recover
them on the ground that the lands had
been detached from the district in which
they were assessed.
All the Justices concurring.
true copy.
Attest: ID. A. VALENTINE.
TSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
LEGAL

scribed, trial by jury is not demandable
as a matter of right
;. In an action by the heirs of
grantor to cancel deed on the ground
OF undue influence exercised over the
grantor by the grantees, who were not
related to him, statements of the grantor.
both before and after execution of the
deed, showing his feelings toward his rela-
tives and toward the grantees, his desire
and intention with respect to the DISPOSE
actuated him in making the deed, the
details of the transaction eliminating in
the deed and the reasons for them, and
other statements revealing the operation
of his mind in other business and prop
erty. relations with the grantees, may be
received in evidence. when not too re-
mote, as the basis for an inference re-
speeding the grantor's freedom from re-
straint at the time the deed was made.
All the Justices concurrlng.
true copy.
Attest D. A. VALENTINE.
lSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 2O.574.
Il. NJ. SaylOrs, Appellee,


The State Bank of Allen, ct al, Appellant.
Appeal from Lyon County.
AFFIRMED.
Syllabus. BY the Court. Dawson, J.
1. 1t is not ultra wires for a bank to
agree to honor oyerdraft checks for Il
regular customer.
.. When an agreement has been effect
ed whereby certain profits and advantages
have been procured by a banking corpora
ton, a defense that the contract was ultra
wires will not be cOuntenanced to permit
the bank to avoid its undertaking pur-
suant to such contract.
3. The president of a bank made an
agreement with a stock buyer whereby the
latter was to purchase live stock and ship
them to market and pay for them by
drawing checks on the bank. The bank
agreed to pay these checks, and was to
receive three dollars per carload of the
live stock thus bought and shipped. and
eight per cent interest the money used
in this business. The returns from the
shipments were made to the bank and the
stock buyers account was credited from
time to time with the net proceeds. Held
that the bank cannot avoid its liability
to pay check given in payment of cattle
purchased by the stock buyer pursuant to
such agreement
A. The consideration for such an agree
ment between the bank and its customer
considered and held sufficient to support
the contract.
All the Justices concurrIng.
A true copy
Attest d. A. VALENTINE.
lSea'.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No 2O,591.
The Standard Asphalt & Rubber Company,
Appellee,

The Standard Asphalt * Rubber Company,
Appellee,
The Texas Euilding Company. ct al, lThe
pany APP ellant)
appeal from Montgomery County.
AFFIRMED.
Syllabus. BY the Court. Johnston. c. j.
1. III building contract. the perform
ance of which WAS secured by a guaranty
company. provisions were included for al
rations and additions and that payments
should be made i'll particular way as the
work progressed. Because of the inability
CATIONS they accrued upon the work an
arrangement was entered into between the
contractor and the railway company by
which payments were made in different
way. but the change in the plan of pay
ments made in good faith and did not
result IN injury to the guaranty company,
the change did not operate to relieve it
from liability upon its bond.
> The bond of the guaranty company
General Statu, of 1909, sections 70O6 and
1907. and is required for the protection and
benefit of laborers and mechanics and
those who furnish material for railroad
construction. Such claimants have rights
under the bond independent of the rights
of the obligee and no acts or omissions
of the obligee of the contractor. for
which the laborers. mechanics or material
men are not responsible, will relieve the
biIity under the bond for the claims of the
laborers. mechanics and materialmen.
All the Justices concurring..
A true copy.
Attest: u. a. VALENTINE.
ISeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20,604.
L. c. Fisher, Appellee,

w. H. O'Brien. Appellant.
Appeal from Sedgwick County.
division No. IL
AFFIRMED.
Syllabus. BY the Court Mason, l.
1. Independently of any statute it is
negligence as a matter of law to drive an
automobile along the highway on a dark
night at such speed that it can not be
stopped within the distance that objects
can be seen ahead of it.
p The rule above stated applies where,
by reason of his headlights having given
out, the driver is using "a lantern hung in
front of his radiator.
5. In an action against the driver of
an automobile on account of personal in
jury resulting from collision, alleged to
have been due to excessive speed and a
dim light it is not error to instruct that
if by such driving the life or limb of
any one were endangered this constituted
negligence because of the violation of the
statute forbidding rate of speed such as
to endanger the life limb of any per-
son.
A. An instruction that the jury may
make use of the general knowledge they
possess in common with the rest of man
kind is unobjectionable.
g. The refusal of various requested in
eous.
s. In an action against the driver if
an automobile charged with having neg
ligently run into a wagon. where the de
PENDANT maintained that the injury COM
planned of was the result of the frighten-
ing of led horses attached thereto, evil
dence offered by him that the plaintiff
had been instructed by his employer to
bring the horses by a different road on
account of their wildness held to have
been properly rejected.
All the Justices concurring.
true copy
Att: y. A VALENTINE
tSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
LEGAL.

ligence of the deceased was properly sub
mitted to. the jury, and the material find
ings of fact returned by the jury were
sustained by the evidence.
3. Rules of a railway company govern
ing the conduct of it's employees in the
affecting the safety of the jublic. such as
the giving of signals and the displaying
of lights, are some evidence of the meas
ure of caution which ought to be exhibited
in situations to which the rules apply
All the Justices concurring.
A true copy
Attest: y. A. VALENTINE,
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 2O,391.
r. II. Silk, Appellee,

NO 2O,o9l.
r. Ii. Silk, Appellee,
Armour and Company, Appellant.
Opinion Denying 1fehearing.
JUDGMENT MODIFIED.
Syllabus. BY the Court. Porter, j.
l. 1t is not necessary in order to con-
stitute dispute between the parties that
the employee should state in precise terms
just what he demands, or that the claims
of either party be stated succinctly, and
in detail, provided there be lack of
agreement. or arbitration The employer
may admit the injury and his liability
generally under the compensation act, but
if he and the injured employee do not
agree to the nature and extent of the
injuries, so. far as these things affect the
duration of the disability, and the diff
ferenees between them are not submitted
to arbitration, dispute exists which au-
thorizes the employee to maintain an ac-
ton to have the facts determined.
,. Where the employer raises by his
answer the question of the duration and
extent of the workmans incapacity. and
offers evidence in support of such an
swer, he cannot be heard to say that there
was no dispute at the time the action
was commenced.
All the Justices concurring.
A true copy.
Attest: u. A. VALENTINE,
[Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20,293.
Mrs. Rose L. Malaney, Appellant

No 20,293.
Mrs. Rose L. Malaney, Appellant
VS..
Allen y. Cameron and o. C. Brown, as
Administrator, etc, Appellees.
Appeal from Douglas County
REHEARING DENIED.
OPINION DENYING A HEARING.
Syllabus. BY the Court Mason, j.
Under the statute providing that the
property of an intestate, who is survived
by neither spouse, issue nor parent. shall
be disposed of in the same manner as II
a parent had outlived him and died in its
possession and ownership, property inner
tied by one son of deceased father from
another can not be subjected to the pay
ment of Indebtedness owed by the father
to any one other than the deceased son.
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

NJ -b.uO-p-
J. NJ. Ivey, Appellee,


Union Pacific Railroad Company, Appel
liant.
Appeal from Saline County
REVERSED.
Syllabus. BY the Court. Burch. j.
1. The action was one for damages by
member of railway switching crew Tor
personal injuries inflicted by the movement
of a freight car while he was between the
rails of the track adjusting the car auto
matte coupling device, a duty which he
was required to perform. The petition
alleged that the plaintiffs associates knew
or ought to have known. of his situation
The court instructed the jury that recovery
depended on such knowledge, actual or i'm
puted. The jury found specially that no
meml er of the switching crew, other than
the plaintiff, had reasonable cause to be-
Heve he WAS in position of danger when
the at which he was working was
moved, Held. the instruction was material
and correct, and that the finding pre-
cluded recovery.
,. In answer To request 70 state In
what the negligence of the defendant con
sisted. the jury stated an on ssion not
com planned of not submitted to the jury
basis of recovery. and which under
the finding already referred to. was not
an actionable omission. Held. the answer
acquitted the defendant of the negligence
pleaded and precluded recovery
All the Justices concurring.
true copy.
Attest d. A. VALENTINE.
lSeal. Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20.5T3.
Dolly Murray, Appellee.

The Empire District Electric Company.
Appellant.
Appeal from Cherokee County.
AFEIRMED.
Syllabus. By the Court. Marshall, J.
/. 1t is not error to refuse to submit
to the Jury special questions which as
sumo. as established, facts about which
the evidence is contradictory or which ask
for immaterial answers that can be used
only as the basis for argument in deter
mining what the material facts are.
2 1t is not error to refuse to give re-
uuested instructions. where they are given
in other Instructions substantially as re-
ouested: nor to modify requested in
structions so as to make them correctly
state the law
g. Where facts are cOnclusively estab-
lished by the evidence or are admitted by
the parties on the trial, it is not reversi-
Bile error for the court to refuse to in
struct the jury that such facts are estab-
lished or admitted. where the court gives
to the jury an instruction directing the
Jury to take into consideration the evil
dence to establish such facts
f. In instructing the jury. it is not
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No 20.517.
The State of Kansas. ex REL Appellant
c. Gerhards. ct. al, Appellees.
Appeal from Sedgwick County
division No. IL
REVERSED.
Syllabus BY the Court. Dawson T
1. Rule followed that where a petition
states cause of action and the evidence
adduced in support of it covers every
material allegation of the petition. a de-
murrer to the evidence cannot be sus-
tanned
?. Where persons assume to take prop
erty by virtue of a will bequeathing it to
them. they are liable for the inheritance
taxes imposed the exercise of their
right of succession under the WILL and
it is immateriaI that they might have
otherwise established their right to the
property through a contract or as eestuis
que trust, followed the State VS.. Mollier
&c Kan. 514. $40. 152 Pac. III.
3. The familiar rule followed that the
statute of limitations does not run
against the State.
All the Justices concurring.
true copy
Attest: p. A. VALENTINE
[Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
d. A. VALENTINE.
Clerk Supreme Court.
No. 2O.5SS.
Charles l. Geiger, Appellee,

No. 20. SIS.
Charles l. Geiger, Appellee
VI. w. CardwelI. Appellant
Appeal from Shawnee County.
division No. L.
AFFIRMED.
Syllabus BY the Court. Mason. j..
I. Where one who has contracted to buy
certain property for about $4,000. the
transaction involving his ASSUMPTION of an
obligation which he discovers, after having
paid $1,000 on the purchase price. to be
about $500 larger than the seller had repre-
scented. lie does not waive his right to re-
cover damages on account of the fraud by
accepting the property and completing the
payment
.. Where one who has agreed to buy
certain property discovers, while the con-
tract is still wholly eXecutory, that fraud
ulent representations had been made to in
duce the trade, his election to complete the
purchase does not preclude him from
claiming damages on account of the fraud,
if 1t was induced by an agreement to arbt-
trate the matter in dispute, which the VEN
dor later refUSel to carry out.
All the Justices concurring.
a true copy
Attest II. \ VALENTINE.
tSc.h-I clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

Nos 2O.552, &c 553.
Charles l. Lush and Louisa Rush.
Appellees-
R. A. Leavitt. Appellee, C. V. Cox and
Bette G. Cox, Appellants.
Appeal from Sedgwick County.
division No. ~
AFFIRMED.
Syllabus. By the Court. Mason. J.
1. One who sells land through an agent
is responsible in damages for the fraud
of the agent in making false statements
concerning its character, by which the sale
is effected, although the principal
had no knowledge of their having been
made.
>. The evidence held sufficient to sup
port finding that the land sold was the
property of the person in whose name the
title stood. and that the person making
the false representations was his agent in
effectfng the sale.
3. The owner of land who adopts the
acts of another in negotiating its sale,
thereby makes him his agent, and renders
himself liable to the buyer in any dam
ages sustained by reason of false state
ments by which the sale was effected,
made by such person for that purpose be-
fore the agency was created, notwithstand
ing the owner had no personal knowledge
of the fraud.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 2O.532.
Laura Belle Evans, Appellee,

No. 20532
Laura Belle Evans, Appellee,
The City of Hutchinson. Appellant
Appeal from Reno County.
AFFIRMED
Syllabus. By the Court. Mason, j.
1. In an action for injury alleged
to have been caused by a defect in side
walk, objection to evidence as to the
condition of the walk after the accident
held not to be well taken, because there
was room for an inference that no change
in that respect had taken place, and be-
cause the specific objection had not been
urged at the trial.
9 1t can not be said as a matter of
law that city is not liable for in
jury to a pedestrian resulting from n fall
due to a depression in sidewalk caused
by the scaling off of the cement crust
over space two feet long and six inches
wide, although its depth is found to be
about half an inch.
g. Nor can 1t be said as matter of
law that the existence of such defect for
a period of several years was not suffi
cient basis for charging the city with
notice of it's existence.
f. The instructions in such case held to
have sufficiently defined the duty of the
city.
s. The answer to a special question held
to be sufficiently responsive.
6. The evidence held to support the
verdict.
All the Justices concurring.
true copy.
Attest: y. A VALENTINE.
Scal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. POSES.
J. L. Bumstead, Appellee

j. L. BumStead, Appellee
The Missouri Pacific Railway Company,
Appeal from Sedgwick County
Second Division.
REVERSED.
Syllabus. BY the Court West. J.
The plaintiff was a freight conductor
Durand and return. He came to Durand
on the morning of January 5, 1915 with
a train of interstate cars. registered in
what is called the rest book, got lunch,
reports and then went to bed in the
cabOose as he had done for some four
teen years. At the expiration of eight
hours and thirty minutes he was liable
at any time to be called. The yard
master had full charge as to making up
where the plaintiff was and would have
him called About seven O'Clock that
evening the yard clerk-an emplOye of
the defendant who knew the plaintiff was
staying in the caboose-called him to
leave with his train about eight-fifteen
quired to report for duty thirty minutes
before his train to leave when he
would go and get his orders and get
ready to go out His time began when
the train starteu. After being called and
while dressing preparatory to going and
ing for duty, the crew making up his
train moved certain cars-part of them
interstate the caboose VIC
lently to injure him. Held, that he
was not at the time engaged in service
in interstate commerce within the terms
of the federal Employers Liability Act.
All the Justices concurring.
A true copy
Attest: d. A. VALENTINE.
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
LEGAL.


Gent to warrant instructions concerning
the negligence of the carrier in the trans
pOrtation of the car.
4. The measure of damages was prop
erly submitted to the jury, following Rail-
way Co. VS.. Fry, "a Kan. 546. 81 Pac. I54,
and s. c. 40 Kan. n. 9S Pac. 205.
.. The evidence was sufficient to prove
negligence the part of the defendant.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 204aS

No 70, 49S.
Anna Huston, ct. al, Appellants
Henry Goemann, ct. al, AppelIees
Appeal from Barber County
AFFIRMED.
Syllabus BY the Court Burch, ]
l. The proceedings considered. and held
that the form and the essential nature of
the action characterize it as an equitable
one for the cancellation of deed on the
ground of undue influence.
.. In an action of the character de-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20,S40.
Mabel NJ Combs, Appellant,


Milo NJ Combs, Appellee.
Appeal from Wyandotte District Court.
First Division.
AFFIRMED.
Syllabus BY the Court West j.
dotte county has three divisions and three
judges it is one court, and it was not
error to refuse the transfer from the first
motion to modify a former decree rem
dered by. the first division.
the first division in 1912. In 1916 the
defendant filed a motion to modify the
Of the parties. short time before this
the plaintiff brought q suit in the third
division, alleging. among other things, a
husband and wife and that Immediately
thereafter they lived and cohabited togeth-
er as man and WIFE the. subsequent fail
ure of the defendant to keep such agree
ment and his marriage to another woman,
and praying for separate support for her
of this suit did not impair the Jurisdiction
of the first division of the court to hear
and determine the motion.
3. An offer on the hearing of the mo-
ton to show in behalf of the plaintiff that
subsequently to the decree of divorce the
parties in every respect resumed marital
relations after which the defendant went
away and married another woman, was
refused. Held, that while such evidence
would have been competent as affecting
the fitness of the defendant to have the
custody of the child, its rejection was not
cial error.
4. The modification of the former de-
cree is no bar to any relief the plaintiff
may be entitled to either by motion or by
Il separate suit.
5. An admission that one ground of
the defendants motion was not correct did
not preclude the court from granting the
modification on another ground supported
by competent evidence.
All the Justices concuIring.
A true copy
Attest: d. A. VALENTINE,
(Sea1.) Clerk Supreme Court