davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16

No. 21,379.
Alfred Scott, by his next friend, Henry
Scott, Appellee,
The Kansas State Fair Association, Appel
liant. ct al.
Appeal from Shawnee County.
First Division.
AFFIRMED.
Syllabus. BY the Court. Marshall, J.
1. Whether the plaintiff, boy ten yea RS
old of average intelligence, who, while at
tenoipg automobile races, occupies
dangerous place after repeated warnings of
the danger. is guilty of such contributory
negligence as will prevent his recovering
damages for the injuries he sustained by
being run over by one of the racing auto
mobiles. is a question of fact to be de-
termined by the jury.
.. On an oral compromise with several
joint tort feasors. reservation of the right
to proceed against the other joint tort
feasors may be made orally.
All the Justices concurring.
A true copy.
Attest: u. A VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

of her son, a verdict and judgment for
$1,000 is not excessive. where the decea sed
was 33 years old at the time of his death,
was in good health and vigorous, and
was accommodating property, and was able
to earn about $1,000 a year.
10. Financial benefits derived by the
heir of a person who has lost his life by
the wrongful act of another cannot be
deducted from the damages sustained and
the verdict and Judgment be reduced by
the benefits received.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 21,36o

E. c. Fair, Appellee,
The Union Traction Company, Appellant
Appeal from Montgomery County.
REVERSED.
Syllabus. By the Court Burch, J.
The evidence and findings considered,
and held, the proximate cause of collision
between a street car and an automobile
was the unlawful speed at which the auto
mobile was driven, although at the moment
of collision the automobile was moving at a
lawful rate of speed. Held further, the
plaintiff, who was an occupant but not the
driver of the automobile, was guilty of
negligence which contributed to his injury
Ali the Justices roncurring.
A true copy.
Attest: D, A. VALENTINE
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16

No. 81 1884
Vashti c. Wayman, Appellant,
August Soller and T. C. Dodd, ST., Ap-
pellees.
Appeal from Washington County.
DISMISSED.
Syllabus. By the Court Johnston, c. J.
In an action for the recovery of money
only, in which a party is resisting the
recovery of any amount and Judgment is
rendered for $62. from which such party
attempts to take an appeal, the amount
in controversy as to such party is fixed
by the amount of the judgment and it
being less than 500 no appeal lies to the
supreme court.
Ali the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 1.403.
James E. Drysdale, Appellee

No. q. 403.
James E. Drysdale, Appellee
VS..
William Wetz, Fred Wetz and Herman
Wetz, Appellants.
Appeal from Barber County.
AFFIRMED.
Syllabus. By the Court. Porter, ].
1. The order in which proof of a con-
spiracy is received rests to a large extent
in the discretion of the court and in this
case it is held that defendants were not
prejudiced by the admission in evidence
of declarations made by one of the defend
ants before proof of the conspiracy, it
being followed up by sufficient evidence to
establish the existence of the conspiracy
as alleged.
9. An instruction is not to be condemned
by separating from its context language
in one part of it and ignoring the in
struction as whole.
2. Objections to certain instructions ex-
amined and held to be without merit.
the abstract making no reference to the
other instructions given.
4. While testifying a witness, one of
the defendants made voluntary statement
outside of the case which called for a re-
buke by the court and an admonition not
to repeat the offense. Held, that the incl
dent was not likely to have prejudiced
defendants, but If 1t did they cannot COM
plain.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

alleys, parks and the like vests in the
county forever in trust for the public by
operation of law.
2. The lawful possession, dominion and
control of all levees, streets, and the like,
dedicated to the public by the founders of
a TOWNSHIP, are vested in the city by opera
ton of law.
3. city cannot by executing a deed of
conveyance to part of public levee dis
able itself of its public municipal power
nor relinquish its public municipal duty to
control the property for the public good.
4. Those rights, duties and privileges
conferred and imposed upon a municipal
corporation exclusively for the public
scbes 1e a aSsa
session. and statutes of Limitation are not
ordinarily applicable thereto.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

ran away and injured the plaintiff. In an
action to recover for the injuries on the
ground that the defendant was liable under
the statute. held. that the court rightly
sustained a demurrer to the evidence.
All the Justices concurring.
A true copy.
Attest: ID. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 81. 36s.
NJ S. Gillidett. Appellee,

No. 81 .36s
NJ s. Gillfdett, Appellee,
James H. Hayden, Appellant
Appeal from Meade County
AFFIRMED.
Syllabus BY the Court Mason J.
A contract for the sale of land provided
that the buyer should pay interest at per
cent on the agreed price from the date the
title was approved: 1t also contained n pro-
vision that he should pay the interest on
an existing mortgage on the land for 81 900.
bearing s per cent until the date named for
the payment Of 5000 on the purchase
price: in an action in which the sole con-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

troversy was as to the date when by the
approval of the title the buyer became
liable for interest, held, that the existence
of such mortgage could not be regarded 10
an obstacle to the approval of the title, at
least where by oral evidence an under
standing was shown to the effect that the
mortgage was to be satisfied out of the
$5,0 900 payment
All the Justices concurring.
4 true copy.
Attest: D. A VALENTINE,
ISeal.j Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

from the whole will. In the present case,
it is held that the will created such a trust
and that the trust property cannot be
reached by creditors of the cestui que
trust.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

nocence: and that with respect to an alibi
it did not devolve upon him to prove that
defense, but that an acquittal must follow
If the jury had a reasonable doubt whether
he was personally present at the time of
the alleged offense: held. that at least in
the absence of a specific request 1t was
not error to omit to instruct in so many
words that the burden of proof was on the
state, that the burden never shifted. and
that the defendant was presumed to be in
nocent until the contrary was proved.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 81 61.
L. Finn, Appellee,

Mamie Alexander and John Collision, APP
pellants.
Appeal from Lane ounty.
AFFIRMED.
Syllabus. By the Court. Johnston. c. J.
1. Title to the land of another cannot
be acquired by adverse possession unless
the possession is open, notorious. hostile
and exclusive possession OF such s
nature and notoriety that the owner may be
presumed to know that the occupant is
claiming title inconsistent with his own.
=. Occupancy of land in common with
the owner or with his consent and in recog-
milton of his right is not sufficient to con-
stitute adverse possession.
3. Payment of taxes. although not a
controlling circumstance. is one of the
means by which ownership Is asserted and
the failure to pay. taxes weakens claim
Of ownership by advance possession.
4. The general finding of the court that
the defendant had failed to sustain her
claim Of title by adverse Possession is held
to be sustained by the evidence.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE.
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16

No. 21.131
Robert G. Postlethwaite. Administrator Of
the Estate of John c. Postlethwaite
Deceased, Appellee.
Frank P. Edison and Jessie L. McCabe Ap-
pelants.
Appeal from Shawnee County.
(Second Division.)
Opinion Rehearing. Former Decision
Adhered to.
Syllabus By the Court. Wes.. ].
i. Rule folio wed that n will Is not a
conveyance an alienation of the real
estate described therein.
.. Creditors" as the expression is used
in section 11152 of the General Statutes of
1915 concerning wills means and includes
general creditors.
Mason. J., Marshall, J., and Dawson. J.,
concurring.
Porter. J.. Johnston, c. J., and Burch. J..
dissenting.
true copy.
Attest: j.. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
d. A. VALENTINE,
Clerk Supreme Court
No. 21,343.
Henry Null. Appellant,

No. p, 343
Henry Null. Appellant
James Boyle, Charles Boyle and Ed Boyle.
Appellees.
Appeal from Clark County
AFFIRMED.
Syllabus. By the Court Mason. ].
1. Where the owner of land makes a CON
tract with tenants that they are to raise
harvest and thresh a crop of wheat thereon.
delivering to him one-third thereof at
railway station. in the absence of any
has no claim against them for a share of
the proceeds of pasturing the growing
crop.
2. In an action by the owner against the
tenants under such a contract. for damages
done to the land by the pasturage, it is not
error to instruct that they had right to
pasture the growing crop. being respon-
sible to the owner for any resulting injury,
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. q, 147.
Celina Lasnier, Appellee,

No. 81 ,147
Celina Lasnier, Appellee,
Helen Martin ct al, Appellants.
Appeal from Cloud County.
AFFIRMED.
Syllabus. By the Court. Dawson, J.
l. Failure to provide a transcript of the
evidence does not necessarily require the
dismissal Of an appeal. 1t merely ex-
cludes from the scope of the review those
features of the lawsuit dependent thereon.
2 The rule against perpetuities is that
no future interest in property can lawfully
be created which does not necessarily vest
within twentyone years after some life
lives presently in being, excluding from
such computation Of years the incipient life
or fnfants in ventra mere.
j. Provisions of will which direct that
no disposition of certain property shall be
made within twenty-one years after the
death of my beloved wife" are void under
the rule against perpetuities
T. When future estate attempted to be
created by a will fails because 1t offends
the rule against perpetuities, the property
thus Intellectually disposed of vests at once
in the heirs heirs at law; and a rent
charge on the abortive future estate during
the illegal interim of suspension fails there
with.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16

No. q. $50.
Fannie Cusick, Appellee,
W. +. Miller, Appellant.
Appeal from Cowley County.
AFFIRMED
Syllabus. BY the Court. Burch. J.
1. A pedestrian arriving at a street inter
section which he desires and attempts to
cross is not necessarily guilty of contribu-
tory negligence because he does not look
behind him for approaching automobiles
2. Various assignments of error relating
to evidence, Instructions. special findings
and the general verdict. considered, and
held. none of them is sufficient to warrant
a reversal.
All the Justices concurring-
A true copy.
Attest: D. A. VALENTINE,
(Se:l) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 21.140.
A. Z. Everitt, Appellee,

a T. EVerItt, Appellee,
William Henry Haskins, ct al, Appellants.
Appeal from Cloud County.
REVERSED.
Syllabus BY the Court. Marshall. J.
To create a spendthrift trust, a will need
not expressly declare that the interest of
the cestui que trust shall be beyond the
reach of his creditors. 1t is sufficient If
that intention can be clearly ascertained
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16

WE HAVE $3.50 ono AVAILABLE =
for tonns farms md rify property at
positively the lowest rates being made
II you wish a new loan or 10 change
in~-r"sa rour Tom call or write
BETZER IEALTY & LOAN CO.
New England Bldg. Established fsea
MONEY To LOAN On ALI. KTNIIS JF
f PERSONAL PROPERTY
Horses cattle. pianos. diamonds. houss-
hold goods. libraries typewrffers. aufoa
rle.-F Thomas, SO Kansas avenua
Tel oss
~ oT Money fo Loan
tMXO NORLF 4 60
9Th srd Kansas Ave
Over Topeka State Bank
LOANS MADE on personal security: afs9
to saiaried perso-s. L. Biscoe, SO x. a.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No 81 oS0

No. Il. $50.
The Board of County Commissioners of the
County of Douglas in the State of Kan
sas, Appellant,
The City of Lawrence, Municipal Cor
poration. Appellee.
Appeal from Douglas County.
AFFIRMED.
Syllabus By the Court Dawson, J.
l. When the founders of city or town
execute file and record the plat of the
property devoted by them to TOWNSHIP
purposes the fee title of the levees. streets.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
d. A. VALENTINE.
Clerk Supreme Court.



Jessie Giersch, Administrative Of the Estate
The Atchison. Topeka and Santa Fe Rail-
way Company. Appellant.
Appeal from Lyon County.
REVERSED.
Syllabus. BY the Court West. J.
l. The evidence examined and found to
support the findings of the jury.
.. The record examined and held to dis
close no substantial error as to the merits
of the case.
3. Under the Federal Employers Liabii-
ity Act the cause of action accrues within
two years from the date of the death of the
deceased and personal representative APP
pointed more than two years from such
date cannot maintain an action.
4. The widow brought her action under
the state statute and recovered n judgment
which was reversed. When reached the
second time for trial leave was given to
amend by interlineation by increa sing the
amount of recovery prayed for and by the
allegation of the widows appointment IS
administrators and bv striking out the for
mer allegation that no administration had
been had nor any personal representative
appointed. The plaintiffs interstate was
killed more than two years before this
time while engaged in interstate commerce
Held that the statute of limitations had run
and that the plaintiff as administrators
cannot recover.
Burch, J.. Porter, J., Marshall j. and
Dawson, J.. concurring.
Mason, J.. and Johnston, c. J., dissent
ing.
true copy.
Attest n. A. VALENTINE.
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. q, 564
The State of Kansas, Appellee,

No. II ,564.
The State of Kansas, Appellee,
L. o. Hoffman. Appellant
Appeal from Shawnee County.
division No. l.
AFFIRMED.
Syllabus BY the Court. Mason, j.
L No error is committed in refusing to
allow a witness to testify as to what he
understood a person to mean by an express
sion he had used, when the situation Is
such that all the f.ata from which an in
ference on the subject might be drawn
could readily be made available to the jury.
. In a criminal case tie jury were told
that they should acquit the defendant IN
less they found from the evidence beyond
reasonable doubt all the facts (which
were enumerated) necessary to constitute
the offense. that no presumption of guilt
existed on account of the defendant being
charged with crime but that every pre-
sumption of law was In favor Of his in
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
UNDERTAKING

THE L. NJ PENwELL Undertaking. Co.
5Os-50s-510 Quincy street. Telephone 1872
II. ". ROMGARONER. Undertaken. Fer
sonal sersice. Masonic Bldg Phone la
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 21.149-
Nellie Boyd Evans. Appellee.

vs.
The woodman Accident Association. APP
pellant.
Appeal from Sedgwick County.
division No. -
AFFIRMED.
Syllabus BY the Court. Johnston, c. J.
/ A clause in an accident insurance
contract provided that If the insured was
injured while engaged temporarily or
otherwise. in any occupation. work. risk
or exposure classified by this Association
. as more hazardous than that under which
this certificate is issued, or while doing
any part of the work of any one so classi-
fled. I or my beneficiary shall be entitled
only to the benefits provided by this As
increased hazard" and the insured who
had been in charge of city schools for
years and was classified in the certifi-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 21.396.
Frank Thompson, Appellant,

Frank THOMPSON, AppeIIant,
VS..
Missouri Kansas & Texas Railway Com
pany, Appellee.
Appeal from Miami County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
An action for compensation for property
of the plaintiff destroyed through the
negligence of the defendant is not brought
upon the same cause of action as one to
recover an amount agreed to be paid in
compromise of a claim of that character,
and the tendency Of an action founded on
such an agreement does not suspend the
running of the statute of limitations against
an action on the tort
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 21,336.
Joseph Biernacki, Appellee,

No. 81 ,336.
Joseph Biernacki, Appellee,
VS..
John Ratzlaff. Appellant.
Appeal from Ford County.
AFFIRMED.
Syllabus. By the Court Dawson, ].
1. Rule followed that verdict and judg-
ment supported by substantial though
conflicting evidence cannot be disturbed on
appeal.
2. Rule followed that the production of
cumulative evidence in SUPPORT of motion
for a new trial is addressed to the sound
discretion of the trial court and does not
require the granting of a new trial as
strict matter of right.
3. Evidence examined and held sufficient
to support a verdict and judgment for
damages arising from a collision of auto
mobiles on the public highway.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
LEGAL

cate superintendent of a city school was
accidentally killed while cutting down a
tree about six months after the end of
the term of school, in order to obtain fire
wood for his father Occasionally while
teaching and In vacations he did some
work his farm near the school and
some chores for his father. In contest
as to the extent of the benefits due it is
held that the clause quoted applies to oc-
equations rather than to casual or incl
dental acts which might pertain to occu-
pations other than those named in the GER
tificate, and that under the testimony in
the case the jury was justified in finding
that the insured had not changed his oc-
cupation and that the work he was doing
when he was killed pertained as much to
that Of teacher as that of farmer
2. The general rule is that if the terms
of an accident policy are obscure or open
to more than one construction, that one
which is more favorable to the insured
must prevail.
All the Justices concurring.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The National Bank of Webb City, Missouri,
Corporation, Appellee.
S. S. Dickinson, ]. t. NJ. Knox. John
E. Wagner, F. D. Lowrey and j. A Dill
Ion, Appellants.
Appeal from Pawnee County
AFFIRMED.
Syllabus. By the Court West, J.
makers are primarily liable thereon.
2. A note signed by five joint makers
contained this language: I'VE, the
makers, sureties, endorsers and guarantors
of this note hereby severa1ly waive pre-
sentiment for payment, notice of non-pay-
ment, protest and notice of protest and
consent that time of payment may be ex-
tended without notice thereof to any of the
sureties of this note" Held, that such
note is negotiable.
3. Under the law as expressed In the
negotiable instruments act there was moth
ing on such note to indicate that any party
thereto was a surety. and the quoted SEN
tence was meaningless and did not render
the instrument a courier impeded with
luggage.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
Chas. H. Prather, ct al, Appellees,
VS..
John Eden, ct al, Appellees,
John A. Wyer), Appellant.
Appeal from kingman County.
AFFIRMED.
Syllabus. BY the Court. West, j.
1. The court properly exercised its dis
erection IN refusing separate trials of the
issues.
>. The burden of proving fraud was
properly placed on the party alleging it.
3. There was no error respecting instruc-
tons or in refusing a new trial.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE
| (Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16

No. q, 100.
The Capital Iron Works Company, Appellee
Vs.
The Chicago Bonding and Surety Company,
Appellant, and John Kaspar. Appellee.
Appeal from Shawnee County.
division No. IL
AFFIRMED.
Syllabus. BY the Court. Burch. j.
The terms of bond given in connection
with a contract for the erection of public
building considered and held. the bond
was one to supersede mechanics liens. to
which the general statute of limitations
applies.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
D. A. VALENTINE,
Clerk Supreme Court.

No. 81 ,342
]. P. Canaday and Winnie r. Canaday,
Appellants,
Frank Miller and Jennie Miller Appellees
Appeal from Miami County
AFFIRMED.
Syllabus. By the Court. Burch, J.
1. A vendor agreed to make abstracts of
title and perfect title to the satisfaction of
the vendee. The vendee took the opinion
of able lawyers who advised him the alb
stracts furnished were insufficient and the
title rendered was not marketable. and re-
fused to complete the purchase. Held
specific performance should not be decreed.
?. The evidence relating to the title of
real estate in the state of Arkansas consid-
cred. and held, the title is not marketable
under the laws of that state.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
lSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-03-16
No. 21.0T9.
Catherine Mulcahy, Appellee

Catherine Mulcahy, Appellee
who Cirv Of Moline. Elk County, Kansas
Appellant.
Appeal from Elk County
w. On Rehearing. ...,
1,o,-a-sol and demanded with Instructions
SvIlabus. By the Court DAWSON ;,
SWhere court record shows that an
adiournment of court sine die was an IN,
nounced by the sheriff and tHeot thef the
acknowledgements sng was made pursuant to an
order Of the and the personal 2oom Was
~ -en,,ired 70 give such order validity
"G Burch. J.. Mason, j., Porter j. ana
West, J.. concurring. and Mar
shalt j. dissenting.
A true copy. rNrJNp.
TSeaiS Clerk Supreme Court