Volume 114 — Kansas Reports

<p>Original proceeding in mandamus.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

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

<p>Appeal from Harper district court; George L. Hay, judge.</p>

<p>SYLLABUS BY THE COUKT.</p> <p>1. Collision — Two Automobiles — Personal Injuries — Mental Suffering as an Element of Damages. In an action for damages for personal injury, where mental suffering is an element of the physical pain or is induced by mutilation or disfigurement of the person, or is a necessary consequence of the physical pain or is the natural and proximate result of the physical injury, it may be considered as a proper element of damages.</p> <p>2. Same — Evidence—Special Findings. Rule followed, that when there is sufficient testimony to support the verdict and special findings of the jury, they will not be set aside.</p> <p>3. Same. The evidence examined and found sufficient to sustain the verdict and special findings; also, that the special findings are not so inconsistent, with the general verdict or with one another as to. warrant, their being set aside.</p> <p>4. Same. The instructions examined and found to fairly state all the material issues to the jury.</p>

<p>Appeal from Scott district court; Roscos H. Wilson, judge.</p>

<p>Original proceeding in disbarment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale—Cleaning Attachment to Steam Boiler — Time in Which Cleaner Might Be Tested — No Notice of Dissatisfaction Given. Where a contract for the sale of-a cleaning attachment to a steam boiler allowed the buyer sixty days after it was installed in which to make a trial of its effectiveness, installation is held to have been complete when the cleaner was affixed to the boiler, although by reason of the plant not being operated no test of it was made until later.</p> <p>2. Same — No Error in Instructions Refused. In an action upon a written contract it is held that no error was committed in failing to instruct that under a contract for written notice an oral notice might be sufficient, or in withholding from the jury the issues of fraud and oral warranty.</p>

<p>OPINION DENYING APPLICATION FOR REHEARING.</p> <p>Appeal from Pottawatomie district court; Robert C. Heizer, judge.</p>

<p>Appeal from Cowley district court; Oliver P. Fuller, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action to Set Aside Will — Motion to Set Aside Verdict and for Judgment Notwithstanding the Verdict — Motion Equivalent to Motion for New Trial. A motion to set aside a verdict, and for judgment notwithstanding the verdict, for the reason that the verdict is not supported by the evidence,. is contrary to the evidence, is contrary to the law, and that the records of the case disclose that defendants are entitled to judgment in their favor, held, under the facts in this case, for the purpose of appeal, to be the equivalent of a motion for new trial.</p> <p>2. Same — Insufficient Evidence to Support a Judgment Setting Aside a Will. ■ In a suit to set aside a will because of unsoundness of mind of the testator and undue influence upon him, the evidence examined; and held, insufficient to support a verdict and judgment setting the will aside.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Canned Goods — Default of Purchaser — Findings of Fact — Evidence. Challenged findings of fact made by the trial court are held to be supported by sufficient evidence.</p> <p>2. Same — Continuance of Cause — Judicial Discretion. No abuse of discretion is shown in the refusal of a continuance of the cause asked by the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Escrow — Alleged Unauthorized Surrender of Oil and Oas Lease — Authority Shown — Ratification Proven — Instructions. In an action against an escrow holder for alleged unauthorized surrender of an oil and gas royalty assignment, the evidence examined and held sufficient to maintain a defense that the surrender was authorized, and also that it was ratified; and held also that no prejudice to plaintiff resulted from an instruction to the’ jury, not erroneous in itself nor inconsistent with the other instructions, on one feature of the case which probably should have been ruled on as a matter of law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Personal Injuries — Sufficient Notice of Accident. The proceedings in an action for compensation considered, and held, findings of the jury that notice of accident was given'and that the employer suffered no prejudice from omission to give the notice within ten days, are sustained by the evidence.</p>

<p>Appeal from Norton district court; Willard Simmons, judge.</p>

<p>Appeal from Wyandotte district court, division No. 2; William H. Mc-Camish, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Given for Illegal Consideration — Sixty-fourth Interest in Oil and Gas Lease. A note given for the sale of a one sixty-fourth interest in an oil and gas lease, the seller having no permit from the charter board to sell such fractional interest in the lease, in violation of chapter 153 of the Laws of 1919 and section 9469 of the General Statutes of 1915, prohibiting such sale and making it a felony, is given for an illegal consideration within the meaning of the negotiable instruments law. (Gen. Stat. 1915, § 6582.)</p> <p>2. Same — Indorsee of Illegal Note May Be a Holder in Due Course. The indorsee of such a note, negotiable in form, who is a holder in due course, may recover thereon from the maker.</p>

<p>Appeal from Wyandotte district court, division No. 2; Prank D. Hutchings, judge.</p>

<p>syllabus by the court.</p> <p>1. Will — Devise of Land for Life — Remainder to Life Tenant’s Heirs — Wife of Life Tenant Took Contingent Remainder. A will devised land for life, remainder to the life tenant’s heirs. Held, the wife of the life tenant, living at the time the will became operative, took a contingent remainder, depending on survival of her husband.</p> <p>2. Same — Wife of Life Tenant Had Mortgageable Interest. After the will became operative, the husband and wife gave a mortgage on the land, which was foreclosed. Held, the wife had a mortgageable interest in the land which was conveyed to the purchaser at the foreclosure sale by the sheriff’s deed consummating the foreclosure proceedings.</p> <p>3. Same — Mortgage Foreclosed — Remainder Vested in Grantee in Sheriff’s Deed. The wife survived her husband. Held, the remainder'vested in the successors in interest of the grantee in the sheriff’s deed.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>Appeal from Ellis district court; Isaac T. Purcell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Defect in City Street — No Error in Refusing Certain Requested Instruction. There was a defect in a city street, an opening in a culvert, which had existed for several weeks, into which the plaintiff stepped on a dark night causing her to fall and break her arm. On the trial the court instructed the jury that it was the duty of the city to keep its streets and culverts in a reasonably safe condition for the use .of the public in the ordinary modes in which the same are used at the time and place where the accident happened. The defendant requested and the court refused to give an instruction:</p> <p>“The jury are instructed, that in determining the question of reasonable care to keep its street crossing in safe condition, the location, the extent of the use of the street, and whether or not the street or highway is in a thinly or thickly populated portion of the city, are to be considered. The law does not require the same degree of care over remote streets and highways that are used but little as over those in the center of the city and constantly used.”</p> <p>Held, that there was no error in refusing the requested instruction.</p> <p>2. Same — Plaintiff Not Chargeable with Contributory Negligence as Matter of Law. Under the evidence it is held that the plaintiff was not chargeable as a matter of law with contributory negligence, the most that can be claimed is that it became a question for the jury whether she had exercised due care under the circumstances.</p> <p>3. Same — Verdict Interpreted. The general verdict must be regarded as including a finding that plaintiff was not guilty of contributory negligence.</p>

<p>Appeal from Montgomery district court; Joseph W. Holdren, judge.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge..</p>

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

<p>Original proceeding in quo warranto.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas E. Elcock, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>Appeal from Haskell district court; C. E. Vance, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Physician—Malpractice ■ — Evidence — Demurrer. In an action for damages for malpractice where plaintiff offered no competent evidence of negligence on the part of the defendant the court properly sustained a demurrer to the evidence.</p>

<p>Appeal from Montgomery district court; Joseph W. Holdren, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Shares of Oil and Gas Lease — False Representations — Misjoinder of Causes of Action. Numerous persons defrauded by identical false representations made by the same tort feasor in the sale of shares of an oil and gas lease, may not join their causes of action for damages in one petition.</p>

<p>Appeal from Phillips district court; Willakd Simmons, judge.</p>

<p>SYLLABUS by the court.</p> <p>1. Promissory Note — Assigned by an Innocent Holder — Assignee’s Knowledge of Infirmities — Note Free from All Infirmities. Rule followed that when a negotiable promissory note has been indorsed and transferred in due course to an innocent holder, an assignee under him takes it free of all infirmities, although such assignee may know of infirmities which originally inhered in it.</p> <p>2. Same — A plaintiff in possession of a negotiable promissory note which has once passed through the hands of an innocent holder can maintain an action on it whether his possession is by virtue of ownership or merely for the purpose of collection.</p> <p>3. Same — Instructed Verdict for Plaintiff Proper. Under the facts narrated in the opinion, an instructed verdict in favor of plaintiff was proper.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Remedy to Prevent Sale of Exempt Personal Property from Execution Sale. The remedies of replevin and an action for damages are not sufficiently adequate to prevent a debtor whose exempt personal property is about to be sold upon execution from obtaining an injunction against the sale.</p> <p>2. Exemptions — Office Furniture of Real-estate Agent. The statute exempting from execution "the necessary tools and instruments of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business” is broad enough to cover the office furniture of a real-estate agent.</p> <p>3. Injunctions — Chapter @38, Laws of 1913 Concerning Injunctions Construed. The provisions of the act of 1913 “concerning injunctions in certain cases, and regulating the issuance, terms and conditions of the same” relate wholly to disputes concerning employment, notwithstanding the use of general language, without that limitation, in two of the sections.</p> <p>4. Same — Objections to Restraining Order Not Well Taken. Objections to a restraining order for irregularities are held not to be well taken.</p> <p>5. Same — Demurrer to Petition Properly Overruled. Defects in a petition held not to be serious enough to require the sustaining of a demurrer.</p> <p>6. Same — Injunction Bond. The refusal to order an increase of a bond given upon the- granting of a restraining order is held not to have been error.</p> <p>7. Same — Proper Adjustment and Assessment of Damages. Where personal property has been taken under execution, and by a restraining order issued in an action for injunction and damages, its sale is stayed until a claim of • exemption can be passed upon, no right to additional damages arises from the return of the first execution and issuance of a second, and the continued holding of possession .by the sheriff.</p>