davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 20.44S.
Orville Kington, Appellant,


o. 3. Looney, Appellee.
AFFIRMED.
syllabus By the Court. Porter. J.
1. A contract for the sale and purchase
of tract of land was entered into in 1905
A warranty deed from the grantor to the
purchaser and the purchase money were
placed in escrow to be held until the
third party. The land was sold for the
taxes Of 1906, and in 1910 while the litiga-
ton between the grantor and the third
which cut off the rights of all the parties.
fund deposited in escrow the case turned
ties to the contract rested the obligation
to pay the taxes of 1906. Held, there was
sufficient evidence to the effect that the
grantor continued in possession to sustain
a judgment that it was his duty to pay
the taxes.
p Although admissions contained in a
pleading of a party in other litigation are
admissible against him in a subsequent
action between him and stranger, they
are not conclusive of the facts alleged,
but are open to explanation rebuttal.
They are admissible as statements against
the present interest of the party who made
them.
All the Justices concurring.
A true copy.
Attest D. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 2O,6S9.
Remigi Ricardo, Appellee, =

No. oO6S9.
Remigi Ricardo, Appellee,
vs.
The Central Coal & Coke Company, ct al,
Appellants.
Appeal from Cherokee County.
REVERSED.
Syllabus By the Court. Marshall. J.
1. The whole of the room in which coal
miner works while mining coal and while
pushing cars used by him in his work,
is the miners working place; and no part
of it is a travelling way within the meaning
of section 6276 of the General Statutes of
1915
>. Evidence is admissible to show that
it is the custom for mine operators to put
room in a safe condition when startin 6
coal miner to work in the room after it
has been partially worked out by another
miner.
3. coal miner who is directed to work
in room that has been partially worked
out by another miner, may be employed
to prop the room and make it safe before
he commences to mine the coal therefrom :
and where there is evidence tending =. to
show such employment, an instruction
should be given submitting the question of
such employment to the jury.
All the Justices concurring.
A true copy.
Attest: u. A VALENTINE.
tSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 1898.
L. NJ. Hicks, Plaintiff,

No. 1898.
L. NJ. Hicks, Plaintiff,
w. E. Davis, as Auditor of the State of
Kansas, Defendant.
Original Proceeding in Mandamus.
Motion for allowance of damages.
Denied.
syllabus By the Court. Dawson, J.
Rule followed that executive officers are
not liable for errors in the performance of
duties involving discretion and judgment,
in the absence of malice, oppression in
office or willful misconduct.
(Rallroad Co. V. Nation, SO Kan. 237,
100 Pac. 1881
All the Justices concurring.
A true copy.
Attests D. A VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
d. A. VALENTINE.
Clerk Supreme Court.
No. 20,3s3.
Edward DeHardt, Appellee,

The Atchison, Topeka & Santa Fe Railway
Company, Appellant.
Appeal from Wyandotte County.
division No. p
AFFIRMED.
Syllabus BY the Court Mason, j.
1. The rule that it is negligence a
matter of law for the driver of auto
mobile to attempt to cross a railroad track
without stopping, where without doing so
he can not assure himself that no train
is approaching, does not apply where, as
the automobile approaches the crossing. the
train is standing still, the rear car being
near the highway, and collision results
from sudden starting of the engine
=. Where freight car is standing near
a crossing it can not be said as matter
of Jaw that the driver of an automobile is
the track without assuring himself that no
train is about to run into the car and force
it over the highway.
s. The evidence held not to show con-
clusiyely that the car by which an auto
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17

SENATE BILL NO. III.
night and day jsiiers to oe be- ef IN attendance
upon the jails of certain counties in Kan
sas; fixing their duties and powers. and
Be 1t enacted by the Legislature of the
State of Kansas:
ulation of 10000 and less than 10000 the
sheriff shall appoint two suitable and COM
one o as ho a shs and dspny
ance upon and have charge of the Jail dur
ing the night, and one of whom shall be
in attendance upon and have charge of the
jail during the day, subject TO the super
vision. control and direction of the sheriff;
writing, under the hand of the sheriff
each appointment to be filed in the office of
the county clerk such persons SO appointed
shall be general deputy sheriffs as is now
provided by law, and shall hold office dur
ing the pleasure of the sheriff; any revo-
shall be in writing, under the hand of the
sheriff. and shall be filed in the office OF
Sec. 2 That for the purpose of providing
compensation for such jailers, the county
commissioners of the counties to which this
act applies shall allow sum not more than
ty treasury in regular monthly INSTALL
ments, upon duly itemized and verified
vouchers signed by the persons perform
ing the services. said vouchers to be APP
proved by the sheriff; provided. that
nothing herein contained shall be held to
affect the provisions of section 4713 of the
General Statutes Of Kansas for the year
1ylJ
Sec. 3. This act shall take effect and
be in force from and after its publication
in the official state paper.
hereby certify that the above Bill origi-
mated in the Senate, and passed that body
March 3, 1917,
Senate concurred in House Amendments
March s, 1917,
w. Y MORGAN
President of the Senate.
E. u. GEORGE,
Secretary of the Senate.
Passed the House March s, 1917,
A. NJ. KEENE.
Speaker of the House.
CLARENCE w. MILLER,
Chief Clerk of the House.
Approved March II, 1917,
ARTHUR CAPPER, Governor.
State of Kansas
Office of Secretary of State.
/, J. T. BOTKIN, Secretary of State of
| the State of Kansas, do hereby certify that
| the above and foregoing is correct copy
| OF the original enrolled bill now on file
| in my office.
IN TESTIMONY WHEREOF, have
hereunto subscribed my name
| and affixed my official seal.
lSeaL1 this 18th day of March
| 7. r. BOTKIN,
Secretary of State.
| By E. A. CORNELL,
Asst. Secretary of State.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 20,730.
]. Smith, Appellee,

No. 20,730.
]. Smith, Appellee,
VS..
Fred OFT, Jr., ct. al, Appellants.
Appeal from Greenwood County
AFFIRMED.
Syllabus. By the Court. Johnston, G. j.
l. The provision relating to partition
fences in section 1906 of the General Stat
utes. of 1915, does not imply that if the
fectiye fence which he was to maintain
and Injuries the property of another, he
can escape liability for the injury because
the other had not kept his part of the
fence in good repair and up to the legal
standard.
2 The evidence in the case is held to
be sufficient to sustain the finding that
the cattle which cansed the injury passed
through that part of the fence which de-
PENDANTS had agreed to maintain
All the Justices concurring.
A true copy. -
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17

No. 20646.
Charles Gamble, by his next friend, James
S. Gamble, Appellee,
The Uncle Sam Oil Company of Kansas,
Appeal from Wyandotte County.
division No. ).
REVERSED AND REMANDED.
Syllabus By the Court Johnston, c: j.
1. An ordinary motor truck moving
along a public street can not be regarded
as an attractive alfuring vehicle to an
intelligent boy about fifteen years old who
is accustomed to the traffic of the streets,
and the doctrine of the turntable cases
is not applicable in an action brought by
the boy to recover for injuries sustained
while trying to board the moving truck.
2. The fact that the plaintiff and other
boys had previously boarded or chung to
an invitation from the defendant to the
plaintiff to board a moving truck and evil
dence of that character was inadmissible
in the case.
5. Testimony that a person who CHANGED
to be riding with the driver in charge of
the truck and who was not an employe OF
the direction of the plaintiff did not tend
to prove negligence on the part of the de-
PENDANT and was not admissible.
4. The plaintiff intelligent young
man who was accustomed to street traf-
fic, who undertook to board the defend
ants motor car which was moving at a
was a conscious trespasser and responsible
for his own negligence unless the driver
of the motor car wilfully and wantonly
failed to protect him after he learned of
his peril.
3. The evidence examined and it is held
not sufficient to uphold the finding that
defendant was negligent toward the plain
tiff.
Burch, J., Mason. J., West, J., Marshall,
J, and Dawson, J., concurring. Porter,
J., dissenting.
A true copy.
Attest: d. A. VALENTINE,
(Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 20,IO0.
G. w. Masterson, Appellee,

Mark Masterson and Dot Masterson, Ap-
pellants.
Appeal from Franklin County.
MODIFIED.
Syllabus. By the Court. Mason, J.
When an uncle enters into an agreement
that a nephew is to live with him and
care for him during his life and in return
is to receive his property at his death,
and the arrangement is acted upon for a
time and then abandoned for reasons not
chargeable to one party more than to the
other, the nephew upon settlement should
receive some compensation for his SER
vices already rendered. and in the absence
Of circumstances suggesting a different
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 2O4o3
f. L. Arnold, surviving partner, etc,
Appellant,

No. 204o3.
E. Il. Arnold, surviving partner, etc,
Appellant,
o. G Barner ct al. AAppellees.
AFFIRMED.
Syllabus. By the Court. Dawson, j.
1. Ordinarily an abstracter who is EN-
ployed to bring up to date an abstract
previously made is only expected and re-
Ouired to examine and certify as to mat
ters which have been brought on the rec
ords during the Intervening period. and
in such event his liability would be limited
to such errors as were made IN the ex-
VS.. Barner, 81 Kan. 769, 772, 1879 Pac. 404 }
=. When an abstract of title to real es-
tate is presented to an abstracter to be
brought down TO date and he enters there
in such matters are of record affecting
the title since the date of the last alb
stracter's certificate or verifies the fact
that the public records do not disclose any
change in the status of the title. and he
appends to the abstract the RECITAL
end 1900, or the like, followed by his
name and official title. such recital is a
certificate guaranteeing that the abstract
any changes in the title between the dates
mentioned in the recital, but 1t does not
mean that he verifies or recertiffes the &C.
curacy of earlier entries in the abstract
prior to those dates.
3. The posting of an abstract between
certain dates is the process Of transferring
ords as may affect the title to the prop
erty between those dates.
. 4 When cause of action is in fact
barred by the statute of limitations but
the allegations of the petition are so broad
that they cannot be met by demurrer, the
defendant may enter a general denial, and
may then await a failure of proof which
will strip the cause of action down to the
bare facts where the pertfnency or the
statute of limitations will become appar-
emit and may then interpose a demurrer 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, 1917-03-17
No. 20,414.
Charles C. Smith, Appellant,

No. 20414.
Charles C. Smith, Appellant,
The Solvay Process Company, Appellee
Appeal from Reno County.
AFFIRMED.
Syllabus. BY the Court. Johnston, c. J.
Under the workmens compensation act
the failure to make a claim for compen sa-
ton for an injury within three months
after the accident is a bar to a recovery.
? The failure to give notice of the in
jury within ten days after the accident is
not a bar If no prejudice to the employer
results from the failure or if it was oc-
casioned by mistake, incapacity, or other
reasonable cause; but no such exceptions
are made as TO a failure to claim COM
pensation within the prescribed time
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal( Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 20-3Sf
Algonite Stone Manufacturing Company,
Appellant,

No. 20.3Sf.
Algonite Stone Manufacturing Company,
Appellant,
vs.
Fidelity & Deposit Company of Maryland,
Appellee
Appeal from Sedgwick County.
Division No. p
REVERSED.
Syllabus. By the Court. Porter, J.
A surety bond to guarantee the faithful
performance of contract for the erection
Of a building. which by reference makes
the contract and specifications a part OF
the bond the specifications requiring the
contractor upon final settlement to furnish
satisfactory evidence that all persons who
performed labor or furnished materials
under the contract have been fully paid
otherwise reservinG to the owner The right
to retain final payment until all liabilities
are fully discharged by paying them from
such money is held to have been intend
ed for the benefit of laborers and mater
ialmen under the contract: and therefore
they may maintain a snit on the bond to
enforce their claims without having filed
mechanics liens
Johnston; c. J.. Birch, j., Mason. j.,
Marshall. J. and Dawson. J.. eoucurring.
Porter. j. and West. J.. dissenting.
4 true copy.
Attest: D. A VALENTINE,
lSealD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 20,4O9.
L. c. Smith, Etc, Appellee,

No. 2O,4O9
l.. {. Smith, Etc, Appellee,
C. E. Easter, ct al, Appellees, F. H.
Woodbury.. Appellant.
Appeal from Usage County.
Reversed in Part
Syllabus. By the Court Marshall, J.
1. c. E. Easter contracted under the
name of c. Z. Easter & Co. to build a
residence for F. H. Woodbury., and gave
bond signed by c. E. Easter & Co, c. E.
Easter, R.. H. Agard, and the United States
Fidelity & Guaranty Company Held.
=. In the bond described in section
of this syllabus, c. L. Easter & Co. was
named as principal and the United States
Fidelity & Guaranty Company as surety.
The name of r. H. Agard was not recited
i'll the bond. Held. that II. H. Agard was
a surety on the bond.
). Both the contract described in section
1, and the bond described in section 2 of
this syllabus, provided that the contractor
should, at his cost and expense furnish
all the labor and material for the construc-
ton of building. X. H. Agard filed a
mechanics lien for material furnished by
struction of the building. The amount
which the owner paid, under the contract,
together with the amount of the unpaid
mechanics liens filed. exceeded the con-
tract price by more than the amount of
the claim of X. H. Agard- Held, that r. H.
Agard was not entitled to foreclose his
lien on the property.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
LEGAL

their three-fourths of the corporate prop
possession pursuant thereto. Before for
NAL execution of such conveyance the prop
erty was damaged by flood caused by the
breaking of dam negligently constructed.
HELD, that the son, thus in possession
under claim of ownership, and in equitable
ownership in fact. can maintain an. action
for damages to the property.
.. In an action for damages caused by
the breaking of a dam which damaged a
i Ia ana destroyed farm proper.y, Mnete
ly constructed and insufficient to sustain
the pressure of the waters impounded by
it, it is not a material variance that the
Aroof showed and the jury found that the
water flowed over the dam, softening and
disintegrating it, before it gave way and
released the waters which did the damage.
All'the justices Scn~urring.
A true copy.
! Attest: D. A. VALENTINE.
(SealD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17

No. 20.962
George Ellis and Mary Ellis, Appellants,
VS..
The Nevius Coal Company, Appellee
Appeal from Crawford County.
AFFIRMED
Syllabus. BY the Court Burch ].
The term legal adoption" found in the
following provision of the workmen's com
pensation act, children and parents in
clude that relation by legal adoption"
Gen. Stat. 1915, s59O3 III }, means adop-
ton according to the statute governing
that subject, and does not extend to a
child taken into a family and treated as
natural a offspring under an agreement to
adopt Which was not performed.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17

No 20,6S3.
The Wichita Union Terminal Railway
Company, Appellee,
The Kansas City, Mexico & Orient Rail
road Company, Appellant.
Appeal from Sedgwick County.
division No. IL
AFFIRMED.
Syllabus BY the Court Mason. J.
l. The pIeadings held sufficient to pre-
sent an issue whether a liability to pay
an overdue subscription was imposed by
the purchase of corporate stock irrespec-
tive of any express agreement to do So
- Where one has acquired possession
of corporate stock under such circum-
stances that he is at liberty to reject the
title, to hold it, any act in his dealings
with the company which shows an cleo
ton of the latter course is sufficient to
render him liable upon an unpaid subscrip-
ton. although no transfer has been made
on the books.
g. A reservation. in a decree for the sale
of all the assets of a corporation, of juris-
bilities assumed by the purchaser. does not
deprive another court of jurisdiction to try
out the question whether such purchaser
has become liable for the unpaid sub
scription to corporate stock included in
such assets by having subsequently elect
ed to be treated the owner of such
stock.
T. letter written by a committee in
behalf of a railroad company to another
CORPORATION. held to amount to such an
an unpaid subscription to stock of such
corporation in its possession as upon ac-
ceptance to constitute contract.
B. A letter from the railroad company
not to continue an arrangement which
would presumably make such stock OF
greater value to it. held not to amount to
Withdrawal of the offer, the right to vote
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 2o.440.

No. 20,440
The Farmers State Bank. Appellant,
VS..
Henry J. Schuette and Hannah Schuette,
Appellees.
Appeal from Washington County.
AFFIRMED
Syllabus. By the Court. Porter, J
The evidence is examined and held SUI
ficient to sustain a finding that the grounds
stated in the affidavit for attachment were
not true, and therefore the order dissolv-
ing the attachment is affirmed
All the Justices concurring-
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
LEGAL.


the stock and draw dividends upon it
the contract
g. The delay in acting upon such an
offer held not to have been so great as
to prevent a contract resulting from its
acceptance.
Z. Evidence objected to held to have
been either admissible or non-prejud1-
cial
All the Justices concurrlng.
A true copy.
Attest: d. A VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17


basis may be allowed the proportion of the
value of the property that the time the con-
tract was in force bears to that period
with the addition of the then remaining
life expectancy of the uncle.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
No. 20,444.
Mary McAndrew, Appellee,


W. L. Sowell, Appellee and Mahlon Bishop,
Appellant.
Appeal from Shawnee County.
division No. L.
AFFIRMED.
Syllabus. By the Court. Mason. j.
l. Under the provision of the code that
an allegation of the execution of a written
instrument is taken as true unless denied
under oath, the omission to verify the de-
NAL of a statement in a petition that the
owner of mortgaged real estate had CON
veyed it to the defendant by deed CON
tanning a clause by which the grantee as
sumed and agreed to pay the incumbrance,
is equivalent to an admission that such a
deed was executed and the execution in
this sense includes the delivery to and
acceptance by the defendant.
g. 2. The assumption by a grantee of an
incumbrance upon the property conveyed
is not promise to pay the debt of another
in such sense as to bring it within the
statute of frauds.
All the Justices concurring.
A true copy. -
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
u. A. VALENTINE.
Clerk Supreme Court.
No. 20,713.
Leon Matassarin, Appellee,

No. 20,113.
Leon Matassarin, Appellee,
The Wichita Railroad & Light Company,
ct al, Appellant.
Appeal from Sedgwick County.
Division No. 1.
AFFIRMED.
Syllabus By the Court Dawson: J.
1. When plaintiffs evidence is chal-
lenged by demurrer, all the evidence ad-
duced in support of his cause of action
is entitled to most favorable consideration !;
and it is immaterial that the testimony OF
some of his witnesses may be contradictory
to or inconsistent with that portion of it
which tends to support his cause of action.
. Rule followed that where plaintiff
negligence merely furnishes the situation
or condition whereby the unrelated, un :
foreseen and unanticipated negligence Of
another does him an injury, the PLAINTIFF
negligence is not necessarily contr1butory
nor does it necessarily bar recovery for
his damages sustained.
g. An instruction within the principle
announced in Syllabus = examined and held
not to be a pronouncement of the discarded
doctrine of comparative negligence.
Johnston. c. J., Mason, J., West, j., and
Marshall, J., concurring.
Burch. J. and Porter, J. dissent from the
third paragraph of the syllabus and cor
responding portion of the opinion.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
LEGAL.

mobile was struck while the driver was at
tempting to cross the track was in motion
as he was approaching the crossing.
4. The findings of negligence held to
show sufficient basis of liability.
3. The misconduct of counsel in bring
ing irrelevant matter before the jury held
not to be so manifestly prejudicial as to
warrant a reversal.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-03-17
Clerk Supreme Court.
No. 2O,710.
Il. NJ. Dunning, Appellant,

NO. ZU,GlU-
X. NJ Dunning, Appellant,
vs.
w. H. Poster, ct. al. Appellees.
Appeal from Johnson County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
l. A judgment on an interplea filed in
an attachment proceeding under section IS
of the code of civil procedure, is bind
ing on the interpleader and on the par
ties to the action. and is a bar to another
action by the interpleader for the recov-
cry of the possession of the property In
controversy.
.. An entry on the docket Of a Justice of
the peace as follows: Demurrer to evil
dence filed by plaintiff, n. M. Bisel, Court
sustained demurrer, and rendered judg-
ment against claimant for COSTS shows
that Judgment was rendered against the
claimant for costs.
All the Justices concurring.
A true copy.
Attest: u. A VALENTINE,
tSenli Clerk Supreme Court