davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 20,51
VIM. Pinson and Emma Pinson, Emma
Pinson, Appellee),
VIM. Young and John Young, Partners,
etc, ct al, (Wm. Young and The indie
pendent Powder Company, a Corpora
ton, Appellants).
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court Dawson, J.
1. Evidence examined and held sufficient
to fix responsibility for the negligent stor
age of dynamite.
2. Where dynamite is stored in a build
ing in violation of a city ordinance and
the dynamite is exploded by a fire in the
building, and a fireman on duty at the
building is killed thereby, such negligent
storage of the dynamite is a proximate
cause of the death of the fireman.
3. Requested instructions examined and
held properly refused, and appellants
rights duly recognized in those given.
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.S63.
Matte E. Parrick, Appellee,

Matte E. Parrick, Appellee,
School District No. l. Counties of Riley
and Geary, Etc. Appellant
Appeal from Riley County.
AFFIRMED.
Syllabus. By the Court Dawson. J.
L Where a teacher was employed by the
members of the school board without a
formal meeting of the board and a con-
tract was signed by two members of the
board engaging her services for a school
term of eight months. and the contract de-
Hyered to her, and under such irregular
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
d. A. VALENTINE.
Clerk Supreme Court
No. 20,94O.
George W. Mccormick Appellant,

george W. McNOTu1lCk. Appellant,
go Theodore d. Mccormick. Appellee.
Appeal from Riley County.
AFFIRMED.
Syllabus. By the Court Johnston, c. J.
]. If the court refuses to grant n di-
vorce to parties il may under Section 66S
of the civil code make an equitable divis-
ion and disposition OF their property al
though no demand for such division and
disposition had been made by either of the
parties in the pleadings originally filed
by them.
.. After refusing a divorce in such a
case the court may in Its discretion direct
the parties to set forth their Claims MS to
property rights and what each would re-
gard 10 DO an equitable division of their
property. but as such n division is Incl
dental to the divorce proceeding such
written statements or additional pleadings
are not essential to the authority of the
court to make n division.
= 3. The evidence examined and held to be
sufficient to sustain the findings and
Judgment Of the trial court.
All the Justices concurring.
true copy.
Attest: u. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
LEGAL.


employment she was permitted to teach for
four months, and school warrants for her
services signed by the members of the
board were issued each month in her favor
and she was paid pursuant thereto in ac-
cordance with her contract, the circum
stances recited amount to a ratification of
her irregular contract of employment.
,. Where a school board informally de-
termines to have a midwinter vacation of
two weeks on account of bad roads and
shortage of coal, and the teacher occupies
her vacation by getting married and post
pones the reopening of school for another
week on that account notifying the board
Of her purpose to defer the reopening of
the school but not receiving their assent
thereto, the conduct of the teacher in fail
ing to reopen the school at the time in
formally determined upon by the board is
question of negligence governed by sec
ton 1919 of the General Statutes of 1915.
B. The statute governing the dismissal
of a teacher for negligence requires the
concurrence of the county superintendent
without which a dismissal of the teacher
by the board does not relieve the school
district from liability to the teacher under
the contract of employment
All the Justices coneurring
A true copy.
Attest: D. A. VALENTINE,
(SeaI) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 20,619.
s. r. Scott, Appellee.

No. 20,619-
8. r. Scott, Appellee.
J. E. Shewell, Appellant
Appeal from Woodson County.
AFFIRMED.
Syllabus. By the Court. Porter. J.
1. Where the only purpose of motion
to make the petition more definite and
certain is to require plaintiff to plead his
evidence, it should be overruled.
.. In a suit for an accounting between
partners held there was variance be-
tween the petition and the evidence which
changed the cause of action to one to recover
damages for defendants failure to carry
out the terms Of a settlement.
3. The findings of fact and conclusions
of law are found to be sustained by suf
ficient 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, 1917-05-19
No 20.74S.
No. 20.S60.
In the Matter of the Estate of T. w. Nose
ley. Deceased,
Of AM


No. 20.S60.
In the Matter of the Estate of T. w. Nose
ley. Deceased,
The State of Kansas, Appellant,
Paul r. Nagle, Executor, etc. Appellee.
Appeal from Stafford County.
REVERSED.
Syllabus. By the Court. Dawson, J.
1. The repeal of the inheritance tax act
of 1909 (Ch. PAS Gen. Stat. 1909. S. 9265-9291-)
by chapter $50 of the Laws of 1913 did not
relieve the executor of an estate nor the
imposed upon them by the act.
. Rule followed that no inaction, pro-
era estimation delay on the part of public
officers will prevent the state from recover
ing its due, nor bar the states right there
8. A statute requiring certain public Of
ficials within six months to commence pro-
ceedings to collect sum of money due
the state is a mere legislative direction to
those officers; and 1t is not a statute OF
limitations in favor of the debtor. by the
invocation of which he can defeat the
states claim.
4. Where the inheritance tax under the
act of 1909 was not paid by an executor of
to pay the tax, order of a probate court
approving his final account and d1scharg-
ing the executor before he had paid the
tax is invalid and should be set aside on
motion of the state.
5. Rule followed that older statutes must
be read in the light of later legislative
enactments and are subordinated thereto
and must be harmoniZed Herewith Other
wise the older statutes must give way to
the later enactments and by implication are
repealed thereby.
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,S44.

No. 2O,S44-
Sarah Curtiss, Appellee,
VS..
Emma L. Reaume. doing business under
the name and style of The Peoples Light
and Ice Plant Appellant.
Appeal from Ellsworth County
AFFIRMED.
Syllabus BY the Court. West, J.
1. Refusal to set aside certain findings
complained of held proper.
2. The refusal to render judgment for
the defendant on the special findings was
not error.
3. The instructions given fully and cor
rectly covered the law of the case and the
trial court committed no error in the
fusal of those requested by the defend
ant.
4 The plaintiffs right to recover rest
ed on the circumstances shown; the de-
Tense. the testimony of one youthful
witness naturally and admittedly fright
ened by the tragedy out of which this case
arose. Held, that the verdict which was
manifestly reached by force of the cir
cumstances shown. having been approved
by the trial court cannot be disturbed.
s. No error appearing to have been
committed during the trial the motion for
a new trial was properly denied.
Johnston, c. J., Burch, J., Mason. J.,
Marshall, T., and Dawson, j., concurring-
Porter, 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
No 20. $50
Minneapolis Steel & Machinery Company,
Appellant,

Minneapolis Steel & Machinery Company,
Appellant,
Henry Schalansky, Appellee.
Appeal from Smith County.
AFFIRMED.
Syllabus BY the Court. Marshall. J.
1. Where a mutual mistake in written
contract is alleged and reformation is
asked, oral evidence may be introduced to
prove the mistake and the contract as it
should have been.
2. Where a mutual mistake in written
contract is alleged and reformation is
asked and where the evidence is suffi-
cient to show the mistake and the con-
tract, a demurrer to the evidence should
not be sustained.
3. A motion to set aside a finding of the
jury should not be allowed where the evil
dence fairly tends to prove the fact found.
4. The law of mutual mistake, as ap-
piled to the issues and the evidence in this
case, was correctly set out in the instruc-
tons
5. 1t is not error to refuse to give an
instruction matter that is immaterial.
Johnston, c. J., Burch, J.. Mason, J.,
West, J., and Dawson, J., concurring.
Porter, 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
n. A. VALENTINE.
Clerk Supreme Court.
No. 2O,.}3G
George f. Bennington, ct al, Appellees.

NeOFEe Il. bfWhInEIOH, ct IN, AppeIIees,
VS..
George L. Wagner and Hattie Ellis,
Appellants.
Appeal from Morris County
Opin.o n DENYING Petition for Rehearing.
Syllabus. BY the Court Dawson, J.
1. The supreme court accepts true
- trial courts findings of fact when
DIZZY are based upon competent evidence e
and on appeal 1t Is of no consequence that
Il re may have been much contradictory
evidence adduced Mt the trial. which, If be
ieved by the trial court, would have com
PEELED entirely different findings of fact
and an entirely different Judgment (Bay
er VS.. Cockrill. Kan. 2S2, Syl. rs: Wide
man vs.. Faivre, 100 KAN, 1913 Pac.
$40. Syl. ITO. 81
3 when the error assigned is that the
findings and Judgment are contrary to
the evidence II IS only necessary on appeal
to consider whether there is some compe-
tent and sufficient evidence upon which
the Judgment is based; and n considera-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 20,677.
Ben Gehlenberg, Appellant,

No. POST.
Ben Gehlenberg, Appellant,
VS.
]. o. Hartley, ct al. as The Board Of
County Commissioners of the County OF
Appeal from Saline County.
AFFIRMED.
Syllabus. BY the Court Burch, J.
L. The general rule that silence of the
record of tribunal of inferior jurisdiction
cases of collateral attack to those jurisdic-
tional facts only which the law directs the
tribunal to enter upon its record.
.. To be sufficient against collateral
attack, the recitals of records relating to
hibit technical precision. They should be
literally construed and however informal,
should be upheld whenever enough appears
to show with reasonable certainty that the
requirements of the law were complied
with.
ings of the board of county commissioners
in establishing road, and of the road
record, considered, and held to show valid
service of notice of the meeting of view
erS.
4. Under the provisions of section 8,
chapter los, Laws of 1874, providing that
the plat of a road have been recorded pur-
suant to order of the board of county COM
missioners. from thenceforth said road
shall be considered a public highway" the
record indicated is prima faeie evidence
that the road was legally established. and
a land owner attacking collaterally the ex-
istence of the road has the burden of estab-
fishing the non-existence of jurisdictional
facts
D. Discrepancies in the road record re-
garding the time and place of the meeting
of the viewers considered, and held insult
ficient to impair the prima facie validity of
the proceedings.
g. The evidence considered and held
sufficient to sustain the finding that a
road was opened in fact by travel within
seven years from the time 1t was estab-
lished.
All the Justices concurring.
a true copy.
Attest: D. A. VALENTINE.
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 20S36
A. NJ Everhart, Appellee,
Clint Welch. Appellant
Appeal from Pottawatomie County.
Syllabus BY the Court Burch. J.
L In this state registration of breed
ing animals is registration oonformably
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
LEGAL.

dence cannot aid in correctly determining
that question.
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. 20,642.
The Salina Northern Railroad Company.
Appellee,
VS..
n. n. Allison. Appellant
Appeal from Saline County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
1. In condemning land for the right of
way of a railroad. the notice authorized
by section 2192 of the General Statutes of
1915 is sufficient, even though no map
or profile has been filed, notice given
as required by sections 1880 and 2S31 fol-
lowing Missouri river, F. s. Il G. R. Co..
vs. Shepard. 8 Kan. 647.
.. The notice provided for by section
2192 of the General Statutes of 1915 binds
the lessee of the real property condemned
although no compensation is given to him,
following c. K. & w. Rid Co. VS.. Grower,
Al Kan. $50, 81 Pac. TO.
3. Such notice is binding on the les:
see, even though he is in the open and
notorious possession of the real property.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
[Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 81 .O39
State of Kansas, Appellee,
VS..
Steve Rogl, Appellant.
Appeal from Crawford County.
AFFIRMED
Syllabus. By the Court Porter, ].
The evidence examined and held suf-
ficient to sustain a Judgment convicting
defendant of maintaining a nuisance in
violation of the prohibitory law.
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. 81, 219.
W. E. Roll, Appellee,


W. E. Roll, Appellee,
VS..
The Monarch Cement Company,
Appellant
Appeal from Allen County.
AFFIRMED.
Syllabus. By the Court. Mason, J
1. In an action under the workmens
compensation act the jury -eturned an
affirmative answer to the question whether
the plaintiff at the time of the trial
totally incapacitated from performing Ia
Dor, and a negative answer to the ques-
ton whether he at that time par
TALLY incapacitated. Held, that in ac-
cordance with the rule that special find
ings must be given such reasonable con-
struction as will harmonic them with
each other and with the general verdict,
the latter answer should be interpreted
to mean that the plaintiff was not par
TALLY incapacitated because he still
totally incapacitated.
2. Where the amount of a general YER
dict is substantially what might be ar
rived at consistently with the special find
ings, and no motion for new trial is
filed, a reversal will not be ordered be-
cause of a slight discrepancy that might
be the result of an inaccurate computa-
ton.
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. 20,555.
Robert 7. Jensen, Appellant,

No. 20555.
Robert Z. Jensen, Appellant,
E. G. Finnup and william Wonn,
Appellees.
Appeal from Kearny County.
AFFIRMED.
Syllabus. BY the Court. Johnston, c. J.
In proceeding by settler under chap
ter 295 of the Laws of 1913 to acquire
title to a tract of island land the survey
which he caused to be made, the affidavit
of settlement which he filed and the notice
of the proceeding given by the county
clerk. described land other than that set
tied upon and which constituted no part of
an island, and no statement was made by
the surveyor as to the nature and flow of
the water in the stream which surrounds
the lands sought to be appropriated. Held,
that the non compliance of the settler with
the statutory requirements justified the
court in Diminishing the proceeding.
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
LEGAL.
SUPREME COURT SYLLADI
No. 20,406.
c. T. Ratliffe. Appellee,

Bertha A. Cease, Appellant
Appeal from Sedgwick County.
Second Division.
MODIFIED.
Syllabus. By the Court. West J.
The plaintiff contracted with the defend
ant for one hundred dollars to procure for
her an exchange of her property for that of
another and fifteen hundred dollars to
boot He arranged with the other party to
pay the plaintiff five hundred dollars and
the defendant one thousand dollars, but re-
ported to the defendant that thousand
dollars was the most boot he could get
such party to pay, assuring her that he
was working for her interest The de-
PENDANT contracted to exchange for one
thousand dollars. Before final delivery of
the papers she learned that this party was
to pay the plaintiff the five hundred dol
lars, but went ahead with the trade.
The plaintiff sued for his commission OF
one hundred dollars. The defendant set up
the fraud and counterclaimed for five hun
dred dollars damages. Held, that by his
conduct the plaintiff lost all right to his
commission and became liable TO the de-
PENDANT for the five hundred dollars
Johnston, G. J.. Burch. J., Mason, j..
Porter. J., Marshall, J. and Dawson, j.
concurring.
West j. dissenting.
A true copy.
Attest: u. A. VALENTINE.
(Seall Clerk supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
UNDERTAKING


L. NJ. PENwELL. funeral director ana
embllmer- First class service 5Os-51o
Quincy St Telephone 1872.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
No. 2O,647.
D. r. Griffith, Appellee,

VS..
The Atchison, Topeka & Santa Fe Railway
Company, Appellant.
Appeal from Wyandotte County.
division No. 81
AFFIRMED.
Syllabus. BY the Court. Dawson J.
1. The facts touching the settlement
and satisfaction of a claim for damages
by an injured railway passenger eXamin-
ed and held to present a fair question for
.. Where a person is travelling on a
freight train and it is necessary for him
to walk between railroad tracks in a
switchboard to change trains and to reach
the caboose in which he is to continue his
journey, it is not negligence for the yard
master to direct him to go alone down
through the switchboard at night
3. Where person is walking between
the tracks of a switchboard under the cir
cumstances outlined in section 2 of the
syllabus, and is injured by an engine COM
ing up behind him. it is sufficient to sus
tain a jury's finding of the railway com
pany's negligence when it is shown that
the engine crew did not keep a sufficient
lookout, ard were not even aware of his
presence although he was carrying a light
ed lantern as he met and passed close by
Johnston, c. J.. Mason. J., West, J., and
Marshall, J., concurring.
Bureh. J.. Porter, J., and Dawson, j.,
dissenting
A true copy.
Attest: D. A. VALENTINE,
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

NO 2lU3l.
Elder Mercantile Company, Appellee,
The Ottawa Investment Co. and The Com
merce Trust Co.. Defendants
The Dobson Investment Co, State Bank
of Ottawa and +. c. Dobson, Appellants
S. ID. Peacock and Howard w. Peacock
Partners S. D. Peacock & Son, J. S.
Small. Ottawa Brick q Tile Co. J. b.
Betterman, The National Marble Co,
James L. Peak. The Abel Elevator Co.,
Rohybaugh & Co, Appellees.
Appeal from Franklin County.
AFFIRMED WITH MODIFICATION.
OF ONE ITEM.
Syllabus. By the Court West. J.
1. When the owner of real estate begins
the construction of building thereon and
for want of funds to continue its con-
struction or for other reason suspends the
work but with Intention and desire to
complete it as soon as possible. and later
contracts with a building firm for such
completion which is begun, held. that as to
such owner such suspension does not con-
stitute abandonment Of the work
2. When the material men are not ad-
vised and do not know of such intention
and desire to complete the building they
may treat the work as abandoned and
file liens.
3. When, after 50 treating it and so
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

No. 20.SOS
John Henry Albach, ct al, Appellees,
VS..
The Fraternal Aid Union, corporation,
Appellant.
Appeal from Wyandotte County.
division No. -
REVERSED.
Syllabus. BY the Court. Dawson, J.
/. Chapter 210 of the Session Laws of
1913, Gen. Stat. 1915. ss541S-5420) author
ICES the consolidation or merger of fra
ternal beneficiary corporations under the
supervision of the superintendent of in
surance and with his approval.
2. A fraternal insurance corporation Of
Kansas and fraternal insurance corpo-
ration of Colorado effected a merger pur-
Colorado under the supervision of the
insurance departments of both states and
with their approval. Certain members
and insurance certificate holders of the
Kansas corporation filed an action charg-
ing irregularities. fraud, etc, in bringing
about the merger, praying for the APP
pointment of a receiver and for a segre-
cation of the assets and affairs of the
merged corporations, and to restore the
independence of the Kansas corporation
Held, that where there is no powerful and
peculiar equity involved, an action of
such gravity only be commenced in
the name of the state on the relation of
its responsible legal representative. and
that the plaintiffs as private individuals
cannot maintain it
All the Justices concurring.
true copy.
Attest: D. A VALENTINE
tSeal-I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
FARM LOANS


FARM LOANS. 5 and g per cent &,
Nichols Realty Co.. $50 Kan. Ave. Tel ar
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19
Nos. 2O,O23 and 2O,175.
J. F.. FeipbIev Annallanf

Nos. 2O,o23 and 2o,175.
]. E. Feighley, Appellant,
The C. Hoffman & So Son Milling Company.
ct al, Appellees.
John j. Wider, Appellant,
The C Hoffman & Son Sc; Milling COMPANY.
ct al, Appellees
AAP R%ap f from D Gr5 on, County.
Syllabus. By the Court. Johnston, c. J.
1; The doctrine of Edens VS. Fletcher,
10 Kan 139, 9S Pac. 7s4, to the effect that
an Acknowledgement by the plaintiff of
satisfaction against one of several defend
ants sued as joint wrongdoers which con-
stttutes onl y partial payment of the dam
reserves the right to proceed against the
other wrongdoers does not operate to re-
lease the others where it appears that the
parties to the arrangement did not intend
such a result, reaffirmed and applied
The rule applied that upon a de-
murrer to the PLAINTIFFS evidence the court
can not weigh the evidence nor settle
conflicts in it, but that if the evidence
most favorable to plaintiff tends to sup
must be overruled and the case submitted
to the jury.
All the justices concurring except Daw-
son, j., who did not sit
true copy.
Attest; D. A VALENTINE,
ISeal-I Clerk Supreme Court
No. 1e,455.
The State of Kansas, ex rel, John s.
Dawson as Attorney-General, etc, Plain
tiff,
The Kansas Flour Mills Company. ct al
Defendants.
Original Proceeding in Mandamus
Writ Allowed in Part
Denied in Part.
Syllabus. By the Court Marshall 7
1. writ of mandamus will issue at
the suit of the state to compel a corpora
ton which is the owner of a dam to lower
it to the height authorized by law; but
before such a writ will issue. it must be
shown by a clear preponderance of the
evidence that the dam is higher than is
authorized.
, A dam built by an individual under a
special act of the legislature, does not be-
come illegal by reason of being trans
ferred to a corporation.
All the Justices concurring except Daw-
son, 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

w. WHEELER. scientific watch maEe,
LOG East eth ST. Phone 643.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-05-19

FRAMiNG. regiIding. mat MAKING 1o16G,
ing done by j. ID. Sullivan. 122-I94 " SRI