davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20.142.
Fred Z. Pasho, Appellee,

No. 20.1i2.
Fred Z. Pasho, Appellee,
n. s. Blitz. Appellant.
Appeal from Shawnee County.
division No. IL
AFFIRMED.
Syllabus. BY the Court. Dawson, J.
1. Where the grounds urged for a new
trial are certain eXtraneous incidents
TRANSPORTING in court concurrently with the
trial which may have prejudiced the jury,
the determination of the trial court there
on is ordinarily conclusive.
.. Rule followed that new trial is
not demandable as n matter of right on a
showing of mere cumulative evidence adj
duced in support of the motion for a new
trial.
3. Rule followed that where a new trial
is sought on account of the absence of a
material witness at the trial, diligence to
ascertain the whereabouts of such witness
and to secure her attendance must be
shown.
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. 2O,513.
John AudO. Appellee.
The Western Coal & Mining Company,
a CorpoTTa a IN = appellant
Barney Napute- Appellee,
The Western Coal & Mining Company.
Corporation, Appellant.
Appeal from Crawford County.
AFFIRMED.
Syllabus. By the Court. Marshall J.
1. a mining company mined the coal
then conveyed the land, reservfng all the
underlying coal and other minerals. Moth
ing was said in the deed about subjacent
support. The purchaser knew that the
coal had been mined from part of the land.
but had no personal knowledge of-the
manner in which the mine had been
worked. A portion of the surface over that
part of the land from which the coal had
been mined previous to the making of the
conveyed. Held, that the purchaser has
a cause of action against the mining COM
pany for the damage caused by the sub
sidence of the surface
3 Such a of action does not
accrue until the subsistence of the land
occurs, and the statute of limitations does
not begin to run until that time.
toned in section 1 of this syllabus. con-
tains an option to repurchase the land at
the average price per acre paid by the
purchaser, a judgment denying specific
performance of such option will not be
reversed where ten years have elapsed
since the execution of the deed. and where
the purchaser has made extensive improve
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
II. A. VALENTINE,
Clerk Supreme Court.
No 20,G01.
Carl A. Scriven, Appellant.

No 2UUUI.
Carl A. Scriven, Appellant.
City of Leba ION. ct al, Appellees.
Appeal from Smith County.
REVERSED.
Syllabus. BY the Court. Dawson. ].
In a city of the third class having a
p tpulation of one thousand Inhabitants
and whose requisite revenues for govern =
mental purposes are 81 500 per annum an
occupation tax of $3.50 per annum on the
sale of sweet cider by keeper of a res
taurant and confectionery is unjust I'M
reasonable and void under the limitations
of the city charter act, Gen. Stat. 1909.
secs. 1861, 1862 and Laws 1915, CHI. Isl. sec.
u and section 5 of article l. of the State
Constitution. following City of Lyons v.
Cooper. 80 Kan. 1924. IS Pac. 296
All the Justices concurrinG.
y true copy.
Attest: D. A. VALENTINE.
[Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20,527.
Bessie e. Bryant, Appellant,

Bessie E. Bryant, Appellant,
Watson Beeson Flanner. ct. al, Appellees
Appeal from Johnson County
AFFIRMED.
Syllabus. BY the Court Burch. J.
The rule applied that in the interpreta-
ton of will to ascertain the intention
of the testator, the whole will should be
considered and effect given to every part,
if consistent with a general purpose ap-
parent from the nature of the instrument: :
and held, that a single clause of a single
item of will containing words which
considered alone, would create an estate
tail, and would nullify the remainder of
the item and several other items of the
will, was not intended by the testator to
have that effect.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
ISeal-l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. o0.5S3.
George W. Spar, Appellant,

No. 2O.5s3
George W. Spar, Appellant,
The Globe Surety Company of Kansas
City, Missouri. Appellee.
Appeal from sedgwick County.
AFFIRMED
Syllabus. By the Court Porter, j.
1. An order of the probate court APP
of an insane person and releasing and
discharging the guardian. is final judg-
ment of a court of comDetent jurisdiction
and is not subject to collateral attack.
2 An order of the probate court re-
leasing and discharging the guardian of
an insane person cannot be attacked in
an action in the district court against the
surety of the guardian alone in action
brought by the ward after his legal dis
ing it appears that the guardian is a nom
resident of the state.
B. The final Judgment releasing the
guardian released the surety on the guard
I. After his legal disabilities had been
removed. the ward filed motion in the
releasing and discharging the guardian:
who had removed to another state. The
only service obtained upon the guardian
was by publication under an order of the
probate court Held, there being no stat
utory authority for obtaining service by
publication in a proceeding where the only
probate court acquired Jurisdiction to
make an order setting aside the former
judgment
bate court to set aside a final settlement
of n guardian is not the commencement
of an action within the provisions of sec
persons under any legal disabilities to
bring certain actions within one year after
such disabilities have been removed.
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
BOARD AND ROOMS.

MODERN rooms with board. 81 day. IS
per week. Topeka Hotel. 122 West 9th.
WANTEO-Man and wife. or two gentle-
to room and board 1875 Kansas ave-
MODERN furnished rooms and board. 627
Monroe.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No. 20511.
W. C. Leahmer, Appellant.
c. E. Mccullough. ct. al. "a E.
Hostetler, Appellee).
Appeal from Finney County
AFFIRMED.
Syllabus. BY the Court. West. j.
When the plaintiff purchased the note
sued on. payable to the order of A E. Hos
teller, the first three lines Endorsed there
on were:
"A. f. Hostetler.
Without recourse
NJ. E. Long recourse
Held, that oral evidence was competent
to show that the words without recourse
were written by and intended to apply to
the payee, A. L. Hostetler.
All the Justices eoncurring.
A true copy.
Attest: D. A VALEN TINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
LEGAL.

ments on the land, greatly enhancing its
value and no offer is made to pay for
such improvements.
All the Justices eOncurring.
A true copy.
Attest ID. A. VALENTINE,
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 2O.520
Charles NJ. johnson, Appellee.

No. 2O520
Charles NJ. johnson, Appellee.
VS..
James Huffaker. ct al. elizabeth
Cunningham. Appellant)
Appeal from Barber County.
AFFIRMED.
Syllabus. by the Court. Johnston. c. J.
promise to pay existing note and
mortgage executed by another. made to
subserve the purpose and protect the IN
terest of the promisor who had become
the owner of the mortgaged land, the
consideration for the promise being the
forbearance of the creditor to whom the
promise was made in bringing fore
closure proceeding, constitutes an original
undertaking of the promisor and is valid
though not in writing.
Burch, J., Mason, J., Porter. T.. West, J..
and Marshall, J.. concurring.
Dawson, J., dissenting.
true copy
Attest: D. A VALENTINE.
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 2O.599.
Lizzie Pritchard, Administrative,
Appellant,

Lizzie Pritchard, Administrative
Appellant,
The Atchison. Topeka & Santa Fe Railway
Company, Appellee.
Appeal from Sedgwick County.
Division No. 1.
AFFIRMED.
Syllabus. By the Court Marshall 7
A person in automobile who attempts
to cross a railroad track without looking
for approaching trains. where there is a
place thirty feet from the track from
which an approaching train can be plainly
seen, or who looks and sees the train COM
ing and attempts to cross in front of it.
is guilty of such contributoFy negligence
as prevents any recovery of damages for
injuries sustained in a collision with the
train.
All the Justices concurring
A true copy.
Attest: D. A. VALEN TINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
LEGAL.
Published in The Topeka State Journal,
January 49, 1871
SUPREME COURT SYL[ABI
No. 20,602.
The Missouri Pacific Railway Company,
Appellant,
Loren SprOul, Appellee
Appeal from Butler County

Loren Sproul, Appellee
Appeal from Butler County
AFFIRMED.
syllabus by the Court Johnston, e !
The moving of buildings along streets Is
a recognized and proper use of them ana
in the absence of a statutory or municipal
regulation as to lle manner of moving tne
buildings or as to the raising or removal
of wires placed by railroad or other COM
pany across streets so that buildings may
be moved along the streets. the expense OF
raising or removing the wires to allow a
building to pass where the interference Is
not unreasonable and the expense is neon
siderable should be borne by the railroad
company rather than by the house mover:
Burch, J., Mason, J.. Porter. j., west d.
and Marshall, j., concurring.
Dawson, J., dissenting.
a true copy.
Attest: d. A VALENTINE,
Seal Clerk supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
D. A. VALENTINE.
Clerk Supreme Court.


Maryland Casualty Company, a corpora
ton, Appellant,
Cherryvale Gas, Light & Power Company
corporation, Appellee.
Appeal from Montgomery County.
REVERSED.
Syllabus. By the Court Dawson, J.
L. Where natural gas has been negi-
ed with a match by a person who is
searching for the gas leak, and an exp1o-
sion results, the consequent damages are
attributable to the explosion of the gas
the gas to escape.
p Where an insurance company issues
policy of insurance covering loss or dam
age to property, it is not bound to quib-
BILE with the policy holder as to whether
the loss falls precisely within the terms
of the policy. 1t may pay the loss. and
it will thereby become subrogated to all
the rights of the injured party in an
action against the wrongdoer.
B. Rule followed that on a demurrer
to the plaintiffs evidence in support of
given full credence and considered in its
most favorable light towards the party
which adduced it.
t. Where the servant of gas company,
pany for gas service, turns on the gas
at the wrong stop-boX whereby the gas
escapes and enters neighboring property
and is ignited by who is testing the
explosion results, the consequent damage
makes a prima facie case against the gas
company which cannot be met by de-
murrer to plaintiffs evidence.
D. The question of splitting of causes
of action considered, and held that such
defense cannot be used to strengthen
demurrer to plaintiffs 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, 1917-01-13
D. A. VALENTINE.
Clerk Supreme Court.

No. 2O.539
The Park View Hospital Company,
Appellee,
VS..
Randolph Lodge No ZIG, Independent
Order of Odd Fellows. Corporation,
Appellant
Appeal from Riley County.
AFFIRMED.
Syllabus BY the Court. Marshall J.
l. A judgment will not be reversed for
dence where the demurring party supplies
the necessary proof in the evidence intro
.. If is not error to admit, in evidence
against an incorporated lodge, the oral
statements of the members of its regu-
GERS, while they are acting within their
authority.
B. 1t is not error to refuse to give in
structions which do not correctly state
the law. nor to refuse to give those that
do correctly state the law, where they are
given in other instructions substantially AS
requested.
f. An instruction may be lengthy; it
may involve all the conditions of the right
of party to recover; 1t may set out those
conditions in detail; and it may be based
partly evidence that is uncontradicted-
3. A lodge may ratify the unauthorized
acts of its officers or properly constituted
lodge has ratified such unauthorized
acts, may be submitted to the jury undeI )
proper Instructions.
g. The evidence and the findings of tn :
the jury were not contradictory to the evi |
dence but were sustained by it.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
LEGAL.

error for the court to repeatedly state ma
ter1al facts, where undue prominence is
not wen to them, and where the issues
can not be properly submitted to the jury
without such repetition.
D. A judgment will not be reversed for
the reason that a part of instruction
may be subject to criticism. where that
part is controlled and governed by an
other part of the same instruction in
which the law is clearly and correctly
stated
6. The rule concerning positive and
negative testimony was correctly stated
in the instructions.
Z. Where it is error to give to the jury
the rule of res ipsa loquitur concerning
one alleged negligent act, if the rule can
not apply to a different negligent act
found by the jury, and if it appears from
the whole of the instructions that the jury
could not have been mfsled thereby, the
Judgment based the verdict and find
1ngS will not be disturbed
.. A Judgment will not be reversed for
Irregularities in the formation of the jury.
unless it appears that the party complain
ing was prejudiced thereby. following
1880.
o. Other matters complained of have
been examined and are held not sufficient
to warrant reversal of the judgment
Johnston. C.. J.. Burch, J., Mason, j.,
and West, j., concurrfng.
Porter, J.. dissenting.
Dawson, j., concurring specially.
true copy.
Attest: y. A. VALENTINE.
ISeaL Clerk Suoreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

and there is evidence to show that the
payee had knowledge of the condition at
the time the note was delivered to him
by the principal
= All the Justices concurring.
VA true copy.
Attest: D. A VALENTINE.
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No. 20.5O1
Warren L. Moore, Appellee.
vs..
The Peet Brothers Manufacturing
Company. Appellant.
Appeal from Wyandotte County.
division No. II
AFFIRMED.
Syllabus. by the Court. Mason, J.
A lump sum Judgment under the work
mems compens ation act, based on a find
ing of permanent total disability, can
not be set aside, as being against equity
and conscience nor is case established
for the granting of new trial upon the
ground of newly discovered evidence. upon
showing that the injured workman is
conducting a cleaning, pressing and tailor
ing business out of which he is making
twelve to fifteen dollars a week. where it is
not shown that any of the physical labor
In connection Herewith is done by him
self
All the Justices concurring
true copy. -
Attest. D. A. VALENTINE.
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
D. A. VALENTINE.
Clerk Supreme Court.
No. 2O,536.
w. c. Hill. Appellee,

No. 20,536
w. c. Hill. Appellee,
VS..
The Missouri Pacific Railway Company,
Appellant.
Appeal from Barber County.
AFFIRMED.
Syllabus. BY the Court. West. J.
A finding that the defendants section
men set out more fire at one time than
they could control is not departure
from the allegation that they
"Negligently allowed the fire so set to
escape and burn over the entire eighty
acres of land. and were negligent in set
ting out the fire at the time.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
No. 20,593.
Bertha Minner, Appellant,

The Great Western Accident Association,
Appellee.
Appeal from Sedgwick County.
division No. -
Syllabus. By the Court Burch. J.
An accident insurance policy provided
for two kinds of indemnity, accident in
demnity and sickness indemnity. Sick
ness indemnity was payable only in the
event of disability for a period of seven
days or more. Disability occasioned by
gas was classified as sickness, the pro-
vision of the policy relating to the sub
ject reading follows:
Disability or loss, fatal or otherwise,
caused by or resulting wholly or in part
directly or indirectly from gas, !.
in any manner taken or administered.
voluntarily or involuntarily, shall
be classified as sickness and shall be
subject to the provisions. conditions and
limitations governing sickness Insurance
herein set forth, the original cause of
such disability Notwithstanding"
1t is held that no recovery could be had
for. the death of the insured on September
20, caused by accidentally and uninten-
accidentally escaped into his sleeping
room the night of September 10 and
the morning of September 20.
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, 1917-01-13

40 ACRE FARM, MILE OF TOPEKA.
SUITABLE FOR DAIRY. POULTRY,
FINE STOCK, FRUIT.
This close -to-city farm has good large
barn, fairly good room house. young
orchard, 20 acres alfalfa. $500 an acre and
right up against the best city in th&
world-TOPEKA. Terms Is cash. 1-3
a small city home. balance Is at 51a ~
cent to suit your convenience.
J. T. BELL, 735 Fillmore Phone 81
THREE corner lots, Third and Courtl
Kenwood. Part down. balance 81
month without interest. Bargain
at once. Birchfield, Merchants NJ
bank.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No. 205SO.
The Stewart Poultry Company, Appellee,
The Erie Railroad Company. Appellant.
Appeal from Shawnee County.
First Division.
AFFIRMED.
Syllabus. By the Court Marshall T.
l. A connecting carrier in an interstate
shipment of a of poultry, is liable
directly to the holder of the bill of Iading
for the damages caused by negligence in
transporting the car over the connecting
carriers road. where the loss sustained
has been caused by a decrease in the
market price of poultry. although the bill
of lading stipulated that the carrier was
not bound to transport the car in time
for any particular market.
= A Judgment will not be reversed on
account of the admission of secondary or
incompetent evidence, where the facts
which that evidence tends to prove are
established by other primary and eompe-
tent evidence, unless it affirmatively ap-
pears that the admission of the secondary
or incompetent evidence prejudicially
affected the substantial rights of the party
complaining.
An unnecessary delay of eighteen
hours in the transportation of a car of
poultry over a line of railroad, is suffi-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13
D. A. VALENTINE,
Clerk Supreme Court.
No. 2U594.

No. 2O,594.
Louis l.. Hinnen and Edwin L. Hinnen
Appellees,
Noah Artz. Appellant
Appeal from Butler County
AFFIRMED
Syllabus. By the Court. Mason ].
1. No error is committed in allowing
petition in ejectment to be amended by
changing the description of the property
sought to be recovered, where no eonten-
ton is made that the bar of the statute
of limitations has fallen between the be-
ginning of the action and the making of
the amendment.
.. Where a will after disposing of the
southwest quarter of the southwest quar-
ter and the northwest quarter of the
northwest quarter of section of land
owned by the testator, in devising the
remainder of the section speaks of each
of these tracts as 1.-The 40 acres" already
so disposed of. although in fact neither
contains quite that area, such reference
does not Justify an inference that by the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No. 2O.547.
Joseph Schopper, Appellee,
Guy Grimes, Appellant
Appeal from Douglas County.
AFFIRMED.
Syllabus. By the Court. Burch ]
The evidence examined. and held suffi-
Gent to sustain Judgment approving a
survey.
All the Justices concurring
A true copy.
Attest: D. A VALENTINE
ISeal-I Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No. 2O545.
h. l.. O'Neil. as Assignee of Frank
O'Neil, Appellee,
W. A. Eppler, Appellant.
W. A. Eppler. Appellant.
Frank O'Neil. Appellee
Appeal from Trego County.
AFFIRMED.
Syllabus. BY the Court. Johnston, G. J.
1. Under section 102 of the Civil Code
parties holding cross demands against
each other, under such circumstances that
If one had brought a suit against the
other a counterclaim or setoff could have
been set up. will not be deprived of the
of limitations. but If the demand of one
party becomes completely barred before
the demand of the other comes into exis-
tence, the barred demand is not available
as setoff against the live demand.
provides in effect that if an action be
commenced within due time and the judg-
ment thereon be reversed or if the plaintiff
fails in such action otherwise than on the
merits and the time limited for the bring
ing of an action has expired. he may bring
new action within one yer after such
reversal or failure, does not apply where
there was service of summons in the
first proceedings and no action was in fact
commenced.
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.497.
Charles E. Pennington, Appellant,
VS..
John D. Tolle. ct. al, Appellees-
Appeal from Allen County.
AFFIRMED.
Syllabus BY the Court Johnston. c. ].
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No. 2O,5S6.
n. L. Duncan, Appellee,
The Kan-O-Tex Refining Co., a cor
poration, Appellant
Appeal from Greenwood County.
AFFIRMED.
Syllabus. By the Court. West, J.
There being competent evidence to sup
port the alleged contract of employment,
the verdict, having been approved by the
stand.
All the Justices ccncurring
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-01-13

No &c. 500.
Emma Il. Lyons, Appellant.
White Rock Township. of the County of
Repub ic Appellee.
Appeal from Republic County.
AFFIRMED.
Syllabus BY the Court Porter. J
In an action against a township to re-
cover for injuries resulting from a defec-
tive highway caused by Il contractor re-
moving the planks from Il cuvert to use
them i'll constructing a new culvert there
was no evidence to show that the township
authorized the planks to be removed and
no evidence to show that the tow lship
trustee had actual notice of the defective
condition of the highway five days prior
to the injury: held that demurrer to the
evidence was rightly sustained.
All the Justices Concurring-
A true copy
Attest; II. A. VALENTINE,
ISeaLl Clerk Supreme Court