Volume 112 — Kansas Reports

<p>HEADNOTE BY THE REPORTER.</p> <p>Mutual Benefit Insurance — Payment oj Assessments — No Forfeiture. Where it is shown that a deceased member of a mutual benefit insurance company, prior to his death, had paid into his lodge sufficient funds to cover all legal assessments against him, no forfeiture can be declared, even though the lodge may have applied the funds paid in such manner as to ostensibly show that the assured was in arrears for the last assessment prior to his death.</p>

<p>Appeal from Leavenworth district court; James H. Wendorpp, judge.</p>

<p>Appeal from Franklin district court; Hugh Means, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Delivery Before Death of Grantor. There was evidence to support the finding of the trial court that certain Warranty deeds were delivered to the grantees by depositing the deeds in a bank with instructions to deliver them to the grantees on the death of the grantor.</p>

<p>Appeal from Montgomery district court; P. L. Courtwright, judge pro tem.</p>

<p>Appeal from Bourbon district court; Edward C. Gates, judge.</p>

<p>Appeal from Douglas district court; Hugh Means, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Law — Seizure of Automobile by Sheriff Without Warrant — Warrant Subsequently Obtained — Possession TJnder Warrant Lawful. Where a sheriff seizes an automobile in which he has found intoxicating liquor concealed and holds it without process for about an hour, during which time he obtains a warrant on his own complaint charging that it had been used in transporting intoxicating liquor, although it be assumed that he had no right to take the car before he had obtained the warrant, nevertheless from that time his possession is lawful, notwithstanding a trial results in a judgment for the return of the car to its owner, the court finding that the charges with respect to its use were not sustained.</p> <p>2. Same — Appeal Stays Execution of Judgment. In the situation stated in the foregoing paragraph an appeal by the state stays the execution of the judgment releasing the car and entitles the sheriff to its continued possession during the pendency of the app.eal.</p> <p>3. Same — Seizure of Automobile — Neither Malice nor Want of Probable Cause Shown. It is held that whether or not a sheriff is entitled to the same immunity as public prosecutors from liability in an action for malicious prosecution, the evidence in this case has no tendency to show either malice or want of probable cause.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Proceeds op Exempt Property — Cannot Be Reached by Creditor. A judgment against a defendant for the value of plaintiff’s exempt property cannot be offset by a debt owing from him to the defendant. (Treat v. Wilson, 65 Kan. 729, 70 Pac. 893.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction Bond — Sureties—Signatures o} Surety to Qualification oj Sureties Only — No Signature to Bond — Surety Bond. The defendant signed the qualification of sureties on an injunction bond approved by the judge of the district court, but did not sign the bond in any other place. The qualification recited that defendant was surety on the bond. Action was commenced against him on the bond. His demurrer to the petition was sustained. He gave no further attention to the action, and judgment was rendered against him by default on an amended petition. He soon thereafter filed a motion to set aside the judgment and tendered an answer, in substance denying that he had signed the bond, but he did not plead anything to avoid the signature. He admitted in open court that he signed the qualification of sureties on the bond. Held, not error to deny the motion to set aside the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Boundary Line — Division Fence — Acquiescence of Parties— Adverse Possession. Where an owner of eighty acres of land sold the north forty acres of it to a grantee, and the grantor- and grantee measured off the conveyed land with a rope, both intending to have an official survey made some time but they never did, and where they erected a line fence knowing that it was two feet over on the land of the grantor but did not know that the fence actually encroached from 13 feet to 99% feet on the grantor’s land, and each used and occupied their respective lands up to the fence and no further, and the grantee and his successor claimed all the land north of the fence and the grantor knew of that claim and acquiesced in it for over twenty years, it is immaterial to the respective rights of the present title holders where the true line may be; the grantee of the north forty acres and his successor held all the land north of the fence by adverse possession, and the appellant owner of the south forty acres is barred of all claim thereto because of notice and acquiescence on the part of his grantor for a period in excess of that prescribed by the statute of limitations.</p> <p>2. Same — No Prejudicial Error. Other assignments of error examined, and nothing prejudicial to appellant discerned therein.</p>

<p>Appeal from Stafford district court; Daniel" A. Baijia, judge...</p>

<p>Appeal from Reno district court; William G. Fairchild, judge.</p>

<p>Appeal from Marion district court; Cassius M. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Auto Insurance — Loss by Fire■ — Waiver of Warranty by Insurer. In construing policies of insurance the rule is that notwithstanding the agreement of parties a warranty may, by reason of facts and circumstances, be regarded as waived by the company, or, which amounts to the same thing, the company may be estopped to rely upon the warranty.</p> <p>2. Same — Notice of Facts Chargeable to Insurance Company. An insurance company cannot defend on the ground that the policy was void at its inception if it had knowledge of the facts when it executed the contract and took the premium.</p> <p>3. Same. On general principles, a knowledge which would be sufficient to lead any prudent person to inquire about the matter, when it could easily be ascertained, will be regarded as a knowledge of the fact, because the courts will not impute to the company the fraudulent intent to deliver and receive pay for an invalid policy.</p> <p>4. Same — Misdescription of Car Insured — No Fraudulent Intent. In an action to recover on a fire insurance policy covering a used automobile, where the' defense Was that the application falsely warranted that the car was a 1918 model and that the owner had paid a certain price for it, held, on the facts stated in the opinion, there was evidence sufficient to warrant the jury in finding that there Was no purpose of evasion in the representations.</p> <p>5. Same — Attorney’s Fee Properly Allowed. Section 5479 of the General Statutes of 1915, authorizing the allowance of an attorney’s fees in all actions in whiqh judgment is rendered against an insurance company on a policy insuring personal property, is broad enough to authorize the allowance of an attorney’s fee in actions brought against mutual indemnity associations insuring personal property.</p>

<p>Appeal from Reno district court; William G. Fairchild, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rural High-school District — When Organization May Be Questioned by Private Individuals. It is no justiciable concern of private litigants that there may be an infirmity in the organization of a rural high-school district, such infirmity being a matter of which the state alone may complain, at the instance of its authorized public officers;'but when such defect or infirmity in the organization of the district likewise affects a proposed issue of bonds which was authorized simultaneously with the proceedings to organize the district, an action involving the same facts may be maintained by private litigants to enjoin such illegal-bond issue and consequent assessments and tax levies, under section 265 of the civil code.</p> <p>2. Same — Proposition to Establish Rural Iligh-school District — Notice oj Election Must Define Territory to be Included. Under chapter 284 of the Session Laws of 1917, when a petition of legal electors is presented to the board of county commissioners requesting the calling of an election on the proposition to establish a rural high-school district and on the proposition to issue bonds of the proposed district to build a schoolhouse and purchase a site, it is essential that the publication notice of the election shall define the territory to be created into such rural high-school district and to be subjected to assessment and taxation for the payment of the bond issue, so that the electors concerned may be duly apprised of their interest in such election; and where the notice of the election contains a discrepancy affecting 400 acres of the territory proposed to be subjected to the bond issue’, such notice is so materially defective as to vitiate the bond election held pursuant thereto.</p> <p>3. Same — Election—Establishing Rural High-school District — Form of Ballot Legally Sufficient. At an election called to vote on the proposition to establish .a rural high-school district and on the proposition to issue bonds of the proposed district to build a schoolhouse and purchase a site at a designated place, a ballot which was so arranged as to give the electors an opportunity to express their wishes on these two main propositions was legally sufficient, and it was unnecessary to subdivide the second of these into three separate propositions — (1) the issue of bonds, (2) the purchase of a site, and (3) the location of the schoolhouse.</p> <p>4. Same — Election—To Be Held Only Once in Two Years. The statutory provision that no election shall be called to vote on the proposition to establish a rural high-school district oftener than once in two years unless more than half the legal voters petition therefor relates to elections called to vote on the same or substantially similar propositions; and it has no application to a case where, after an election was called in a proposed district having a territory of 82 sections of land, a later election was called in another proposed district having a territory of 70 sections, only 17 of which were included in the territory concerned in the first election.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Insurance — Unjustifiable Interference by Insurer with Contract Rights — Action for Damages — An Action on the Policy. An action to recover for an unjustifiable interference with contract rights, by which an insurer through its influence and persuasion induced the insured to avoid the maturity of the insurance and thereby prevented the payment of a judgment against the insured for the loss sustained, is held to be one on the policy or contract of indemnity, following the rule of Emerson v. Indemnity Association, 105 Kan. 242, 182 Pac. 647.</p> <p>2. Same — Amendment to Petition — No Change in Form of Action. An amendment to plaintiff’s petition is held to have been a mere elaboration of the facts alleged in the original petition which did not change the nature or form of the action.</p> <p>3. Same — ■Evidence Established Wrongful Interference with Contract Rights by the Insurer. The evidence examined, and held to be sufficient to sustain the general finding of the juiy to the effect that the defendant wrongfully interfered with contract rights and prevented the payment of the judgment against the insured.</p> <p>4. Same — Proper Instructions. It is further held that the evidence furnished a basis for the -instructions challenged by the defendant and that they are without material error.</p> <p>5. Same — Matters Presented on Cross-appeal Not Reviewable. The plaintiff is not entitled to a review of rulings on the admission of evidence assigned on his cross-appeal where he did not ask the trial court to set aside the verdict or to grant a new trial and where the same question was definitely determined on a former appeal.</p> <p>6. Same — Interest on Amount of Recovery. The plaintiff was entitled to interest on his recovery for the wrongful interference of the defendants, and, it appearing that interest on the recovery was not included in the verdict, the trial court had the power and it was its duty to add interest on the recovery from the time of the interference.</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutch-ings, judge.</p>

<p>Appeal from Sedgwick district court, division No. 3; Jesse D. Wall, judge.</p>

<p>Appeal from Reno district court; William G. Fairchild, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Exclusion of Immaterial Matters on Cross-examination. It is not reversible error to exclude immaterial matters on cross-examination.</p> <p>2. Same — Chattel Mortgage on Exempt Property — Not Signed by Wife — Purchase Price of Automobile — Mortgage Valid. A chattel mortgage on exempt personal property given to secure a note executed for the purchase price of the property is valid although not signed by the wife of the mortgagor, and a subsequent chattel mortgage on the same property executed to secure a renewal note to take up the first note is also valid although not signed by the wife of the mortgagor.</p> <p>3. Same — Concealment of Chattel-mortgaged Property — Requested Instructions. There was evidence which tended to prove that the defendant had concealed chattel-mortgaged property with the intent to defraud the mortgagee, and a requested instruction that the defendant be discharged was properly refused. '</p> <p>4. Same — Requested Instructions. A requested instruction, partly good and, partly bad, may be refused.</p> <p>5. Same — Evidence—Declarations of Defendant Made After Crime was Completed. Declarations by a chattel mortgagor charged with concealing the mortgaged property with the intent to defraud the mortgagee, made after the transaction constituting the crime had been completed, may be rejected when offered in evidence by the chattel mortgagor in his defense on the trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Embezzlement — Money Collected by Agent on Principal’s Mortgage. A record mortgagee who has sold and assigned a real-estate note and mortgage to a purchaser is liable to prosecution and punishment as an embezzler if he receives payment from the mortgagor and discharges the mortgage of record and converts the money so received to his own use without the consent of the assignee.</p> <p>2. Same — Agency—Estopped to Deny Agency. One who assumes and exercises the function of a collection agent for another cannot be heard to deny his agency, and he may be punished as an embezzler if he converts the money so received to his own use without the consent of its owner — following The State v. Spaulding, 24 Kan. (Dass. Ed.) syl. ¶ 4.</p> <p>3. Same — Evidence—Question oj Fact for Jury. Under the evidence adduced, the question whether defendant had embezzled or merely borrowed the money of the prosecuting witness was for the jury to decide.</p> <p>4. Same — No Defense to Charge of Embezzlement. The fact that the mortgagor paid the money to defendant as record mortgagee did not under the circumstances relieve the defendant of the consequences of his wrongful conversion of it.</p> <p>5. Same — Embezzlement by a Partnership — Embezzlement by Each Partner Thereof. A member of a partnership who wrongfully converts the money, of his principal to the uses of the partnership converts it to his own use within the meaning of section 134 of the crimes act.</p> <p>6. Same — Evidence of Other Similar Crimes. In a prosecution for embezzlement, evidence of other similar crimes is competent to prove intent.</p> <p>7. Same — Rulings on Evidence. Certain testimony of defendant which was stricken out examined, and held, not prejudicial, and held, also, that the testimony was properly subject to the particular objection lodged against it.</p> <p>8. Same — Instructions. Instructions examined and no error discerned therein.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Foreclosure of Tax Lien — Service by Publication — Application to Open up Judgment — Insufficient Application. In order to open a judgment, rendered on service by publication, foreclosing tax liens on real property under sections 11476-11482 of the General Statutes of 1915, the owner, who was not named as a party to the action but who was included in the description, “the unknown heirs, executors, administrators, devisees, trustees, successors, and assigns,” must, in his answer, allege a defense to the action. The^sheriff’s sale under such a judgment will not be set aside on the application of the owner unless he shows that before the sale he paid or tendered to the clerk or sheriff the amount of the tax lien as determined by the judgment, with interest on the amount of the lien, and apportioned costs.'</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer,. judge.</p>

<p>Appeal from Miami district court; Jabez O. Rankin, judge.</p>

<p>Appeal from Leavenworth district court; James H. Wendorff, judge.</p>

<p>Appeal from Osborne district court; William R. Mitchell, judge.</p>

<p>Appeal from Miami district court; Jabez 0. Rastkin, judge.</p>

<p>Appeal from Douglas district court; Hugh Means, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Finding—Retroflexed Uterus Not a Disease — Conflicting Evidence. A finding by the jury that a retroflexed uterus, from which symptoms had developed, did not amount to a disease is warranted where there is medical testimony tending to support each side of the question.</p> <p>2. Same. Where an applicant for life insurance, who knew she had a retro-flexed uterus, accompanied by painful symtoms, stated that she had no uterine or ovarian disease, proof that according to correct medical usage these conditions amount to a disease does not necessarily establish fraudulent misrepresentation on her part.</p> <p>3. Same — Questions in Application — Answers Not Conclusive Proof of Fraudulent Misrepresentation. Where an applicant for life insurance to the question, “On what dates and for what complaints have you been attended by a physician during the past three years?” answered “Doctor Watkins, Farmington, Mo. Influenza, Jan., 1920,” conclusive proof of fraudulent misrepresentation or concealment on her part does not result from the fact that at about the same time she had also been treated by another doctor (an osteopath) for the same trouble, which was primarily influenza, accompanied by a retroflexed uterus.</p> <p>4. Same. Where an applicant for life insurance returned an affirmative answer to the question, “Are you now in good health?” fraudulent misrepresentation on her part is not necessarily established by the fact that she had within a few months received treatment for a retroflexed uterus and had been advised that an operative procédure might be required for its correction.</p> <p>5. Same — Rulings of Court Nonprejudicial. Various rulings in a case where the issue was whether fraudulent misrepresentations had been made by an applicant for life insuranace are held to have been correct or at all events nonprejudicial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Alimony Awarded Wife Wholly Inadequate. Alimony allowed to a wife on her being granted a divorce from her husband on account of his fault should be based on the necessities of the wife and the ability of the husband to pay. An award of 1300 alimony where the husband owns property worth $6,000 to $8,000 and the wife owns $1,000 to $1,500 is entirely inadequate and disproportionate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Action Against City —Failure to File Claim Within Four Months — Action Barred. Chapter 143, Laws 1919, provides:, “That no action shall be maintained against any city of the second class, by any person or corporation in any court for damages on account of,injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a written statement giving the time and place of the happening of the accident or injury received and the circumstances relating thereto.” Held: ■</p> <p>1st. To create a condition precedent to the maintenance of such an action; '</p> <p>2d. To apply to minors as well as to adults;</p> <p>3d. The requirements of the statute cannot be waived by the mayor or any other city official; and</p> <p>4th. The legislature has power to enact a statute making such a condition precedent.</p>

<p>Appeal from Lyon district court; William C. Harris, judge.</p>

<p>syllabus by the court.</p> <p>School District — Validity of Annexation of Adjoining Territory — Can Be Raised Only by the State. The existence of a school district or the validity of. the annexation of adjoining territory to the district made by the board of education in pursuance of a valid law may not be tested in an injunction proceeding brought by a private party under civil code section 265, to enjoin the imposition of a tax on the ground that the annexation to and reorganization of the district was invalid.</p>

<p>Appeal from Marion district court; Cassius M. Claek, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Land — Statute of Frauds — Written Receipt for Part Purchase Price— Signed by Vendor Only — Purchaser Not Bound. A written instrument acknowledging receipt of a payment upon the purchase price of a farm, specifying the balance due, with other details to be performed by the vendor, and which is signed by the vendor only, while binding on him, does not bind the purchasér, following Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164; id., 49 Kan. 416, 419, 30 Pac. 459.</p> <p>2. Statute of Frauds — Receipt and Certain Bonds — Bank Stock Placed in Escrow — Defective Title in Vendor — Vendee Entitled to Stock in Escrow. Assuming that a valid contract for the sale and purchase of a farm was established by the written receipt of part payment and acknowledgment of the vendor and by a separate assignment of certain bank stock by the vendee, which instruments were placed in the hands of a third party as escrow holder to await full performance by vendor and vendee, it is held that the evidence adduced in plaintiff’s behalf was sufficient, as against a demurrer, to show that the contract failed through want of title in the vendor and not through the fault of the vendee, and that the vendee’s administrator was entitled to recover the bank stock from the escrow holder.</p> <p>3. Same — Evidence—Communication With Deceased Person. A contracting vendor’s testimony touching the oral features of an agreement between him and the deceased contracting vendee, relating to the sale and purchase of land, was incompetent under section 320 of the civil code, which disquali-' fies a witness to testify in his own behalf concerning any transaction or communication had personally by such witness with a deceased person, in an. action where the adverse party is the administrator of the deceased contracting vendee.</p> <p>4. Same — Trial Without a Jury — Effect of Incompetent Evidence. Rule followed, that where a cause is tried without a jury the presumption is that the trial court disregarded all incompetent testimony and that its judgment was not based thereon.</p> <p>5. Pbactice — Opening Case for Further Evidence. No prejudicial error is necessarily committed by a trial court in permitting a cause submittted to it to be reopened for the purpose of introducing further testimony on either side.</p>

<p>Error from Lyon district court; William A. Randolph, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Law — Persistent Violator — Qualifications of Justice of the Peace— Evidence. In a prosecution of one charged with being a persistent violator of the prohibitory liquor law, where the evidence shows that the previous conviction was before a justice of the peace, the state is not required to introduce the records showing the nomination, election, and qualification . of the justice of the peace.</p> <p>2. Same — Former Conviction — Admission of Defendant — Instruction. In a criminal prosecution where the state offers evidence tending to establish a material element of the offense, and the defendant takes the witness stand and in his testimony admits all the facts necessary to establish the element of the offense in question, it is not error for the court to tell the jury in his instructions that the defendant has admitted that element of the offense, and that they should have no trouble in reaching a determination on that element of the offense.</p> <p>3. Same. Evidence examined, and held sufficient to support the verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroad — Under Federal Control — Action for Personal Injuries — Limitation of Action. Subdivision (a) of section 206 of the transportation act of 1920 (41 U. S. Stat. at Large, ch. 91, p. 461), provided that actions based on causes of action growing out of federal control of the railroads, might be commenced against an agent to be designated by the president, within the period of limitations prescribed by state or federal statutes, “but not' later than two years from the date of the passage of this act.” Subdivision (6) provided for service of process to bring the designated agent into court, and providing for filing in the office of the clerk of each district court of ' the United States,(lists of persons on whom process might be served. The act took effect on February 29, 1920; the agent was designated by the president on March 11, and fists were filed with the clerk of the United States district court for Kansas on June 4. The plaintiff’s cause of action arose in October, 1919, but he did not make the federal agent a party to the action which he commenced, until April 12, 1922. Held, an indispensable condition to liability of the federal agent was not complied with, and the district court should have dismissed the action.</p>

<p>Appeal from Shawnee district court, division No. 1; James A. McCi/cjbe, judge.</p>