Volume 95 — Kansas Reports

<p>Appeal from Jackson district court; OSCAR Raines, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — Duty of Garnishee in Answering. Rule announced in Lumber Co. v. Bank, 63 Kan. 768, 66 Pac. 1024, relating to duty of garnishee, followed.</p> <p>2. JUDGMENT — Sustained by Competent Evidence. Rule that a judgment just in itself and supported hy competent testimony will not he disturbed, followed.</p> <p>3. Garnishment — Money Deposited to Indemnify Bondsman— When Subject to Garnishment. Where a person arrested for a felony deposited $1000 to indemnify a bondsman, upon condition that if defendant appeared for trial $600 of the deposit should be applied to the satisfaction of a debt due from the pledgor to pledgee and the remaining $400 should be subject to the order of the pledgor, but upon the institution of garnishment proceedings the bondsman surrendered the pledgor to the public authorities .and appropriated $600 of the money to his own use, Held, that this constituted a breach of the conditions of the deposit, and at least $400 of the money in the bondsman’s hands became subject to the garnishment proceedings, especially when the garnishee filed only the nonliability affidavit prescribed hy section 233 of the civil code.</p> <p>4. Same. In the ease just mentioned the garnishee should have made the affidavit prescribed by section 234 of the civil code setting forth the claim of any third party to the funds in his hands.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Third Party Claiming Property Involved — Properly Made Party to Action. One having an interest in property the possession of which is the subject of an action in replevin between other persons may be made a party to the action and take appropriate steps for the protection of his 'interest in the subject matter of the litigation.</p> <p>2. Replevin — Defenses under General Denial. One who claims a lien on a vehicle because of repairs made and care bestowed upon it may under his general denial show that the plaintiff had parted with the ownership and right of possession of the vehicle before the action was begun.</p> <p>3. Same — Error in Instructions — Not Determined in Absence of Evidence. In the absence of the evidence or of its purport it can not be' determined upon appeal that instructions given by the trial court were inapplicable to the issues actually tried, and even if they were not abstractly correct under the pleadings it can not be said that the error was so material as to require a reversal.</p> <p>4. Judgment — Trial Court May Correct Entry as to Costs. The judgment was rendered in favor of the defendant and an intervenor for costs, whereas the verdict of the jury found in favor of the defendant alone. It appears that the form of the judgment, which was prepared by counsel and entered by the clerk, was not brought to the attention of the trial court. Held, that this irregularity could have been corrected without an appeal, and that upon a remand the trial court may correct the entry and make a proper apportionment of the costs.</p>

<p>Appeals from Reno district court; Frank F. Prigg, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Notice of Viewers’ Meeting — Affidavits Showing Service Lost — Presumptions. A finding that a road which was declared established by the board of county commissioners, and which has been used by the public for years, is a regularly laid out highway, will not necessarily be overthrown by the fact that the affidavits showing the service of notice of the viewers’ meeting, which the law requires to be filed with the county clerk, can not be found in his office.</p> <p>2. Same — Change of Highway across Existing Railroad — Duty of Railway Company to Make Safe Crossing. Whether or not the railway company is ordinarily required at its own expense to place a highway, at a point where it is laid out across an existing railroad, in such condition that there shall be no unnecessary interference with travel, this obligation results where a highway which antedates the railroad is vacated and a new road taking its place is established, crossing the track near the same point, and several years thereafter the embankment on which the railroad track is laid is raised some eight feet.</p> <p>3. Same — Manner of Making Railroad Crossing Safe — Within Discretion of Court — Based on Evidence. Where the situation is such that a railway company is under a legal .obligation to restore a highway across its track to a reasonably safe condition for travel, and this result can not be otherwise accomplished, a court may require the construction of a subway, but only where the necessity is clearly shown and supported by competent expert evidence.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>Appeal from Barber district court; Preston B. Gillett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Death — Flagman at Highway Crossing — No Action against Railroad Company. Where a flagman stationed at a highway crossing to give warning of an unsafe condition of the track is struck and killed by a train, no action against the railway company on account of his death can be based on the failure of the enginemen to sound the whistle or to stop the train promptly upon being signaled to do so by torpedoes placed on the track. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Mistake in Compounding Medical Prescription — Arsenical and Strychnine Poisoning — Expert Evidence Not Conclusive. In an action against druggists to recover damages for injuries alleged to have been caused by a mistake in compounding a medical prescription it is held that the expert evidence does not conclusively show that the injuries complained of did not result from arsenical and strychnine poisoning.</p> <p>2. Same — Refusal to Give Requested Instruction Relative to Burden of Proof, Error. In this case the instructions, aside from those defining the issues as raised by the pleadings, were quite general and contained mere abstract propositions of law applicable to,any case of negligence. Held, that under all the circumstances of the case it was error to refuse to give an instruction requested by defendants to the effect that the burden of proof was upon the plaintiff to establish by a preponderance of the evidence that the capsules submitted by her to the expert witnesses for chemical analysis were identical with and of the same lot purchased from the defendants, and that the capsules had not been tampered with nor in any manner changed, and that unless the jury so found, the plaintiff was not entitled to recover.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note and Mortgage — In Default for More Than Fifteen Years— Evidence — Presumptions of Payment. The deposition of one witness and the oral testimony of two other witnesses were introduced in order to overcome the presumptions mentioned in chapter 232 of the Laws of 1911 that the mortgage in question was in default and that its lien had ceased to exist. The trial court found such evidence insufficient for such purpose. Held, that such conclusion, not appearing to be unwarranted, can not be disturbed on appeal.</p>

<p>Appeal from Atchison district court; William A. Jackson, judge.</p>

<p>Appeal from Douglas district court; Charles A. Smart, judge.</p>

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

<p>Appeal from Ottawa district court; Dallas Grover, judge.</p>

<p>Appeal from Clay district court; Sam Kimble, judge.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Delivered after Action Attacking Title• Was Begun— Grantee Chargeable with Notice of Pendency of Action. When a warranty deed is delivered after a petition attacking the title of the grantor is filed in the district court of the county in which the land is situated, the grantee is charged with notice of the pendency of the action, and can acquire no' interest in the property against the plaintiff in the action. (Civ. Code, § 86.)</p>

<p>Appeal from Greenwood district court; Allison T. Ayres, judge.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from' Riley district court; Sam Kimble, judge.</p> <p>G. B. Daughters, of Manhattan, for the appellant.</p> <p>Alvin R. Springer, of Manhattan, for the appellee.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Action for Services — Both Corporation and Its Manager Liable. In an action for services performed for a corporation the evidence is held sufficient to support a verdict against it and its manager.</p>

<p>Appeal from Chautauqua district court; Allison T. Ayres, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Personal Lujuries — Weighing Circumstantial Evidence. Ordinarily, in civil cases, a preponderance of the evidence — the greater convincing weight — controls whether the evidence be direct or circumstantial.</p> <p>2. Same — Special Questions — Not Fairly Answered. When special questions properly submitted are not fairly or consistently answered according to the evidence, a fair trial has not been had and a new trial should be granted.</p>

<p>Appeal from Washington district court; JOHN C. Hogin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Assessments for Special Improvements — Extend to Center of Block Surrounded by Streets — Railway Property Included. Where parts, of streets in .the heart of a city are missing on account of the existence of railroad tracks and rights of way, it is proper for the city, for the assessment of special improvements, to consider that a city 'block covers the smallest unit of city property which is actually surrounded by streets, and to extend the special assessment to the center of such block, even though such assessment may thereby cover the railway property within such block.</p> <p>2. Same — Special Assessment — Injunction—Limitation of Actions. Rule laid down in Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299, that proceedings to challenge legality of special improvements must be commenced within thirty days, followed.</p>

<p>Appeal from Harper district court; Preston B. Gillett, judge.</p>

<p>Appeal from Montgomery ’ district court; Thomas J. Flannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Watercourse — Diversion of Water — Dam to Create a Pond— Injunction Refused. The owner of land through which flowed a small stream, sufficient to supply stock water for pasture, built a dam to create a pond, chiefly for hunting and fishing, a spillway being provided through which the overflow passed into the original channel. This was done with the knowledge of, and without any objection from, a lower riparian. owner, who expressed a favorable opinion of the project. During the second summer thereafter the stream below the dam ceased to flow. The owner sought an injunction against the maintenance of the dam and was denied that relief. Held, that in view of all the circumstances the ruling was not erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander — Evidence in Chief of Plaintiff’s Reputation Improper — But Not Material Error. In an action for slander plaintiff was permitted over defendant’s objections to offer evidence in chief of her reputation and character. Held, that the evidence was not admissible in chief, but since it only tended to prove a fact which the law will presume, its admission was not material error.</p> <p>2. Slander — Proof of Facts Not Alleged in Petition — May be Proven True or Justified under a General Denial. In such an action where the plaintiff for the purpose of showing malice proves the utterance of words not alleged in the petition, the defendant may then prove the truth of these matters under a general denial, or may offer evidence showing conduct of the plaintiff which would excuse or justify the language.</p> <p>3. Slander — What May be Shown under General Denial and Plea of Privilege. Where the defense consists of a general denial and a plea that the matter was privileged, the defendant may, notwithstanding neither justification nor mitigating circumstances has been pleaded, prove the truth, or may prove conduct of the plaintiff justifying the utterance of the words.</p> <p>4. Slander — Conversation between Husband and Wife — Privileged. Where the presence of bystanders at a conversation between husband and wife is a mere casual incident not in any sense sought for by the defendant, the latter will not be deprived of the privilege.</p> <p>5. Slander — Conversation between Husband and Wife — Erroneous instruction. In an action for slander the defendant pleaded a qualified privilege that the words were spoken in a conversation with her husband at a time when she understood her husband was liable to be arrested for his conduct with the plaintiff and another woman where he lived, and that it would result in disgrace being brought upon their family, and that she desired to warn him in the protection of his own interests as well as that of the family. Held, that an instruction charging that if a third person overheard what was said the matter was not privileged unless such person was a mere eavesdropper, was error. ■</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. City — Duty to Keep its Streets Reasonably Safe for Travel— Duty of Traveler to Exercise Reasonable Care Not to Get Hurt. While it is the duty of a city to use reasonable care to keep its streets safe for travel, and while one driving over such streets has a right to assume that this duty has been performed, still-he must for his own protection exercise such care as ordinarily careful persons would use under like circumstances.</p> <p>2. Same — What Constitutes Ordinary Care. What constitutes ordinary care, including the use of one’s senses, must be governed by the circumstances of each case, and what would be carelessness on the part of one driving in the daytime might be prudent and cautious when driving in the nighttime.</p> <p>3. Personal Injuries — X-ray Photograph as Evidence — Proper. The use of an X-ray photograph of a child’s breast is proper when the witness using it desires thereby to illustrate his criticism of an X-ray photograph of an adult purporting to show a fractured rib, the weight and effect of such illustration being for the jury.</p> <p>4. Personal Injuries — Damages—Loss from Disability to Work —Evidence. A plaintiff suing for damages attempted to testify what it cost him to have certain work done — he having been disabled by the injury from performing it — and that he had. it done as cheaply as he could, which testimony was excluded. Held, error, but the result of the trial rendered it immaterial, the verdict against him not being induced thereby.</p> <p>5. New Trial — Newly Discovered Evidence — Cumulative. The' rule that the discovery of cumulative evidence or testimony which by proper endeavor might have been produced on the trial is not sufficient to require a new trial — followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Death — Injuries Received in Car Repair Shops — Proximate Cause — Accident Not a Result of Negligence — No Negligence Shown. Robert Miller was injured while working in car repair shops at a forge, engaged in heating rivets used in building and repairing steel underframes for cars. The forge was situated midway between two railroad tracks fourteen feet apart. One of these tracks was used for placing thereon the steel underframes being.built or repaired. On .the other track cars were placed while the superstructure was being repaired. There was no canopy over the forge to protect the person working there from falling objects. At the time of the injury a car was on the last-mentioned track, by the side of the forge, placed there for repairs. The material composing the roof of any car being repaired in that part was torn off and dropped by the side of the car. Miller had worked at this place and under these circumstances for about two months. Another workman, under the direction of their common employer, went to the top of this car and commenced to remove the sheet iron and tin from the roof. He did this with an iron or steel bar, about three or four feet long, and weighing about ten to fifteen pounds. One end of this bar had claws for pulling nails. The other end was pointed. This workman removed some nails with the claw end of the bar, then reversed it, struck with the pointed end, intending to drive the bar under the metal composing the roof, but missed and struck on top of the metal. The bar slipped from his hands, descended at an angle of about forty-five degrees, struck Miller in the side and penetrated his body. From the injury received he soon died. The employer can not be held liable upon the ground of negligence in failing to provide a canopy for the protection of those working at the forge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Demurrer Properly Overruled. Evidence examined and held sufficient to overrule demurrer.</p> <p>2. Same — Findings within the Issues. Special finding examined and found within the issues and supported by the evidence.</p> <p>3. Same — Verdict—Not Excessive. A verdict for $4383 as damages for the loss of a toe is not necessarily excessive when this sum properly included the consequent blood poisoning, seven months’ confinement in hospital, several painful surgical operations, $633 for loss of time, and permanent injuries.</p> <p>4. Trial — Instructions. Instructions examined and found correct.</p>

<p>Appeal from Anderson district court; Charles A. Smart, judge.</p>

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

<p>Appeal from Sedgwick district court, division No.</p> <p>2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — When Interest is a Penalty and Forfeited. Promissory notes and a mortgage to secure their payment' were executed at the same time. In each 'note it was provided that if it was not paid when due it should draw interest at the rate of ten per cent per annum from its date until paid. In the mortgage it was recited that the notes bore interest at ten per cent after maturity and if not paid when due to draw ten per cent per annum from date. Held, that the interest provided for from the date of the notes to their maturity was a penalty and is forfeited under the provisions of section 4348 of the General Statutes of 1909, but that the holder is entitled to recover the stipulated rate after the maturity of the notes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mechanic’s Lien — Foreclosure — Appeal — Interpretation of Supersedeas Bond. A supersedeas bond given on appeal from & judgment foreclosing a mechanic’s lien, which included a personal judgment for' the amount of the lien against the property owner, interpreted and held to be a statutory bond given under the first subdivision of section 586 of the civil code, relating to stay of execution of judgments for the payment of money.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Extension—New Mortgage Taken — Release of Old Mortgage — Ignorance of Intervening Lien — Lien of First Mortgage Restored. Where the holder of a chattel mortgage, having no knowledge of any intervening change in the title, lends to the mortgagor an additional sum, taking a new mortgage for the total amount on the same and other property, and- releasing the first mortgage on the record, he is not thereby necessarily precluded from relying upon the lien of the first mortgage, as against one who purchased an interest in the property from the mortgagor while the first mortgage was of record and unreleased.</p> <p>2. New Trial — When Unnecessary to Present Excluded Evidence. The requirement of the statute that where a new trial is asked on account of the exclusion of evidence the excluded evidence shall be produced at the hearing of the motion does not apply where the evidence in question had at one time been allowed to go before the jury, and was afterward withdrawn from their consideration.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Chattel-mortgaged Property — Action for Conversion — Petition Stated Cause of Action — Sufficient Evidence to Sustain Judgment. In an action for conversion of property claimed under a chattel mortgage the defendant was a stranger to the mortgage. The petition alleged that the plaintiff was entitled to the possession of the property at the time of the alleged conversion but failed to state that he was entitled to the immediate possession thereof, and also failed to allege that the mortgagor was the owner of the property. A copy of the mortgage attached to the petition showed that the mortgagor was the owner of the preperty. Held:</p> <p>1. As against a demurrer and an objection to evidence the petition is sufficient to advise defendant of the nature of plaintiff’s claim to the property, there being no motion to make the petition more definite and certain.</p> <p>2. Where in such an action the plaintiff has recovered, and the attention of the court and counsel was not directly challenged to the defects in the petition by the demurrer, objection to testimony, or motion for a new trial, the petition will be regarded as amended after judgment.</p>

<p>Appeal from Ellis district court; JACOB C. Ruppenthal, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. General Reputation — Cross-examination as to Derogatory Reports — Negative Answers Final. Where a witness testifies that the defendant has a good general reputation for peace and quietness, and upon cross-examination is asked if he has not heard reports of particular quarrels or acts of violence in which the defendant participated to which the witness returns a negative answer, the defendant is not then entitled to offer testimony to show that the quarrels or acts of violence spoken of never occurred.</p> <p>2. Affray — Exclusion of Certain Evidence Not Error. No error is committed in excluding testimony as to the conclusions of a witness that certain persons engaged in an affray with the defendant appeared to witness to be “trying to get hold of him to get him down.”</p> <p>3. Manslaughter — No Error in Instructing Relative to Higher Degrees of Homicide. The defendant, who was charged with murder in the second degree and convicted of manslaughter in the third degree, complains of instructions that were submitted to the jury upon the higher degrees of homicide. Held, that he suffered no prejudice from the instructions as to the degrees of the offense of which he was acquitted, and, further, that there was testimony in the case which warranted the submission of instructions on the higher degrees.</p> <p>4. Evidence Sustains the Verdict. The evidence in the case is held to be sufficient to support the verdict finding the defendant guilty of manslaughter in thé third degree.</p>

<p>Appeal from Osage district court; Robert C. Heizer, judge.</p>

1; Alston W. Dana, judge. STATEMENT. This case, and others of a similar character, involve the validity of a statute requiring corporations to file annual reports and to pay certain annual fees. The provisions of the statute, so far as they are important to the decision of that question, follow: “Section 1.

<p>Appeal from Shawnee district court; division No. 1; Alston W. Dana, judge.</p>

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

<p>Appeal from Wabaunsee district court; Robert C. Heizer, judge.</p>

<p>Appeal from Allen district court; Oscar Foust, judge.</p>

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

<p>Appeal from Woodson district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange of Property — Missouri Land — Abstract—Expert Evidence Showed Title to be Merchantable. .The testimony of a Missouri lawyer of fifteen years’ experience and of a Missouri abstracter of titles of twenty years’ experience, neither contradicted nor discredited, is sufficient to base a judgment that the title to a tract of Missouri land is merchantable and is vested in the record owner free and clear of incumbrances.</p> <p>2. Same — Indefinite—Pleadings Alleging Defects in Title. One who makes a bargain to trade real estate properties with another can not' avoid his contract on the indefinite plea that the title of the other is “encumbered by liens and clouds so' that the title was unsatisfactory, unmerchantable and defective,” without pleading any specific defects, and without even adducing any evidence in support of such indefinite plea.</p> <p>3. Same — Trial Court — May Not Disregard Competent Evidence. It is not proper for the district court to disregard the evidence of witnesses competent to testify as to'the sufficiency of a title to land in another state, and without either pleading or proof of the law of such other state, to pass judgment by an independent examination of the abstract.</p> <p>Same — Judgment on Issue Not Raised by Pleadings. It is not proper for the district court to give judgment on an issue not fairly raised by the pleadings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Salesman—Breach of Contract — Measure of Daouages. The plaintiff was employed as a traveling salesman for a year at a salary of $125 per month payable monthly. He commenced work on September 1, 1912, and was wrongfully discharged in November. In December he sued for his salary to September 1, 1913. In January, 1913, he accepted employment, which, however, paid npthing beyond expenses. In March he opened a store of his own. When discharged the plaintiff had been paid his salary for September, 1912, and had received a small amount of 'merchandise which was charged to’ his account. The case was tried in June, 1913. Held, a verdict for damages for breach of the contract, equal to the amount of the plaintiff’s salary until he engaged in business for himself, less the credits mentioned, with interest to the time of the trial, will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead — Execution Levied on Land Claimed as Homestead —Evidence—Instructions. In- an action to recover damages for the alleged wrongful levy of an execution on lands claimed by plaintiffs as their homestead, it is held that under the facts shown in the evidence and findings there'was no. error in an instruction which charged that if the plaintiffs at some time occupied the land as a homestead and the house became unfit to live in and for that reason they left the premises, it would not lose its homestead character, provided they proceeded within a reasonable time to make preparation for the return to the same, but that a long-continued residence elsewhere without any act on their part to prepare for a residence on the premises was a circumstance to be considered by the jury in determining the character of the absence from the land and the intent of the plaintiffs.</p> <p>2. Homestead — Instruction — Not Erroneous. In view of the evidence an instruction is approved which charged that if the jury found from the evidence that plaintiffs took no step to show their present intention to erect buildings for the purpose of residing upon the land as a homestead, and in fact, never occupied it as a homestead, it would be the duty of the jury to find for the defendant..</p> <p>3. Same — New Trial — Refusal Not Error. In the present case there was no error in refusing to grant a new trial in view of the findings of the jury, based upon sufficient evidence, to the effect that plaintiffs had never occupied the premises as a homestead.</p>

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

<p>syllabus by the court.</p> <p>1. Change of Place of Residence — Mental Capacity to Make. Evidence that a person suffering from disease which affected his mind took such part in conversations at different times as to indicate that he had a reasonably clear idea of his condition, surroundings and purposes, is sufficient to support a finding that he had capacity to make a change of residence, notwithstanding the testimony of physicians that he was entirely incapable of transacting business and did not know the effect of his acts.</p> <p>2. Witnesses — Transactions with Person Since Deceased. If the present statute providing that in certain cases “no person shall be allowed to testify in his own behalf in respect to any transaction or communication had ‘personally by such party with a deceased person,” ever applies to witnesses who are not parties, its disqualification does not extend to one who is interested in the result of the action only by virtue of being the husband or wife of a defendant against whom a personal judgment is sought.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Personal Injuries — Amended Petition — No New Cause of Action Stated. More than two years after the cause of action arose the petition was amended specifying more definitely a ground of negligence, which, however, was stated in very general terms in the original petition. Held, that no new cause of action was stated.</p> <p>2. Same — Personal Injuries — Release Obtained by Fraud — Evidence. The evidence and findings are held sufficient in this case to sustain the allegations of the reply to the effect that a release relied upon by the defendant was obtained by fraud and misrepresentation.</p> <p>3. Same — Cause of Injury — Evidence of Physician Erroneously Admitted. Under the circumstances of this case it was error to allow a physician who had examined the plaintiff for the first time more than two years after his injury to testify that in his opinion based upon the history of the case a fistula in ano from which he found the plaintiff suffering was caused by traumatic injury.</p>

<p>Appeal from Gove district court; JACOB C. RUPPEN-'THAL, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Condemnation Proceedings — Value of Land, — Evidence of Assessor Competent. A judgment will not be reversed because an assessor testifies that he assessed the real estate in controversy at certain valuations, instead of being asked to give his opinion as to the value of the real estate.</p> <p>2. Same — Excluded Evidence — Not Produced on Motion for New Trial. Error in the exclusion of evidence will not be considered when that evidence is not produced on the hearing of the motion for a new trial.</p> <p>3. Same — Instruction Relative to Value of Land Not Erroneous. When the value of land, arising out of condemnation proceedings, is in issue, an instruction which permits the jury to take into consideration “everything that tends to make' the property more valuable or less valuable” is not erroneous.</p> <p>4. Same — No Error in Court’s Instructions. A judgment will not be reversed because of complaint that the court did not properly, correctly and fully instruct the jury, where the instructions given correctly stated the law and no request was made for other or additional instructions.</p> <p>5. SAME — No “Quotient Verdict.” A judgment will not be reversed because the jury resorted to the process of addition and division, without any agreement that the result of such addition and division should be the verdict, where the jury afterwards deliberated further and agreed upon a verdict.</p> <p>6. Same — Conduct of Jury — No Prejudicial Error Shown. Before a judgment will be reversed because of misconduct of part of the jurors in making statements in the jury room, based on the knowledge of such jurors outside the evidence, where upon the whole record it appears that substantial justice has been done, it must affirmatively appear that the substantial rights of the party complaining have been prejudiced thereby.</p> <p>7. Same — Evidence—Photograph. It is not an abuse of discretion to admit a photograph of land in evidence where the value of the land is in controversy.</p> <p>8. Same — Jurors’ Knowledge of Value of Land — No Prejudice Shown. Knowledge of part of the jurors of the value of land, and statements concerning that value in the jury room, in a case where the value of the land is in controversy, does not justify this court in holding that the verdict of the jury was given under the influence of passion and prejudice.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Horse Trade — Attempt to Rescind — No Error in Record. Where there is no assignment of error and the abstract and brief of appellant only show the determination of the jury on conflicting testimony the judgment must be affirmed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Railroad Crossing — Negligence Found — Not Charged in Petition. Where the negligence found by the jury is not the negligence charged in the petition nor fairly to be inferred therefrom, the defendant is ordinarily entitled to judgment.</p> <p>2. Same. Where through some unknown cause an automobile engine stopped on a railway crossing in the open country and a heavy passenger train was speeding towards the crossing at fifty-five miles an hour from a point in plain view half a mile away, and the occupants of the car stepped out and began to apply themselves in seeking to crank the car and to push it from the track, and where the engineer of the train applied the emergency brakes as soon as he had a chance to discover that the car was stalled on the track, but the train was not stopped in time to prevent a collision, the railway company can not be held to have been negligent nor liable-in damages for^the value of the car.</p>

<p>Appeal from Finney district court; George J. Downer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Land—Breach of Contract — Action to Recover Purchase Money — .Too Late to Attack Petition after Appeal. Where a petition states a cause of action, and an answer thereto is filed, and issues are joined, inconsistencies in the petition will be disregarded in this court where such inconsistencies were not called to the attention of the trial court.</p> <p>2. Same — Findings and Verdict — Conflicting Evidence. Findings of fact and verdict, based on conflicting- evidence, after receiving the approval of the trial court, will not be disturbed in this court.</p> <p>3. Same — No Error in Instructions. All complaints concerning the instructions have been examined, and no substantial error is found in any instruction given, or in the refusal of those requested.</p> <p>4. Same — Findings Harmonize with Each Other and with Verdict. Special findings of the jury have been examined, and are found to harmonize with each other and with the general verdict, and are supported by evidence, although contradicted by other evidence.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Assault and Battery — Measure of Damages — No Prejudicial Error in Instructions. In an action for damages for assault and battery the court inadvertently stated that in such eases damages may be allowed for loss of time occasioned by the physical injuries sustained and for the expense of treating and curing such injuries when there was no claim for nor proof of such damages. The actual damages allowed were fully sustained by the evidence. Held, it will not be assumed that the jury allowed damages not claimed and not proven, and prejudicial error in giving the instruction does not appear.</p> <p>2. Same — Verdict and■ Judgment Sustained. Criticisms of the proceedings examined and held to he without sufficient merit to affect the soundness of the verdict and Judgment.</p>

<p>Appeal from Greeley district court; Albert S. Foulks, judge.</p>

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

<p>Appeal from Cowley district court; CARROLL L. Swarts, judge.</p>

<p>Appeal from Washington district court; JOHN C. Hogin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Inconsistent Causes of Action — Raised for First Time on Appeal. An objection, that causes of action set out in a petition are inconsistent, not called to the attention of the trial court, will not be considered when presented for the first time in this court.</p> <p>2.. Lease — Implied Covenant for Peaceable Possession. As against a lessor, or any one holding under him, a covenant of quiet enjoyment of the premises is implied in a lease silent on that subject.</p> <p>3. Same — Breach — No Possession Given — Damages — Loss of Profits. Loss of profits, when they can be ascertained, is a proper measure of damages where by the act of a lessor the tenant is deprived of the use and occupation of the premises covered by the lease.</p> <p>4. Same — Former Tenant — In Rightful Possession. A lessee, working upon the leased premises on the first day of his term, does not thereby obtain possession thereof, where the premises are in the rightful possession of a prior tenant.</p> <p>5. Same — Verdict and Judgment Sustained. There is nothing in this case to indicate that the verdict Was given under mistake, or the influence of passion or prejudice, nor that the verdict and judgment are contrary to the evidence.</p>

<p>Appeal from Douglas district court; Charles A. Smart, judge.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>Appeal from Rawlins district court; William S. Langmade, judge.</p>

<p>Appeal from Bourbon district court; Charles E. Hulett, judge.</p>

<p>Appeal from Bourbon district court; Charles E. Hulett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Assumption of Mortgage — A Mistake of Scrivener — Question of Fact for Jury. Where the appellant traded an automobile for a livery barn heavily mortgaged, and neither party to the trade mentioned the assumption of the mortgage, and the scrivener of his own volition inserted an assumption clause in the deed obligating the appellant to pay the mortgage, but the appellant never saw the deed nor learned of the assumption clause until long after he in turn had traded off' the barn, the appellant could plead the scrivener’s mistake against one who purchased the mortgage long after its maturity, and such defense raised an issue of fact which appellant had a right to have submitted to a jury.</p>

<p>Appeal from Finney district court; George J. Downer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Construction of Sewer — Compensation Not a Condition Precedent — Injunction. The action was one to enjoin the city from constructing a sewer across certain lots belonging to the defendant. The city was proceeding to construct the sewer without first making an assessment of damages. It is held that section 4 of article 12 of the constitution, providing that no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation, does not apply, and that the city was not obliged to make an assessment of damages before occupying the defendant’s property with the sewer.-</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Bicycle—Collision—Injuries—Violation of Or'dinance No Defense to Action for Damages. The plaintiff, who was riding a bicycle, was injured by the defendant, who was driving an automobile on one of the streets of the city of Kansas City, Mo. In an action for damages sustained on account of the injury it appeared that the plaintiff had no license to ride his bicycle and carried no light, contrary to an ordinance of the city. The absence of a license was not a factor causing the collision, and the defendant testified that he saw the plaintiff when he was a long distance from the point of collision. Held, neither violation of the ordinance constituted a defense to the action.</p> <p>2. Same — Special Findings. Special findings of the jury considered and held not to be conflicting; and held further, that the findings of fact and general verdict are sustained by the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Reformation of Deed — To Show Life Estate — Death of Grantor Pending Action — Administrator May Prosecute Claim. Where a grantor sues to have a deed reformed so as to show the reservation of a life interest and a stipulation charging the land with the payment of indebtedness owed by her at the time of her death, and dies before judgment is rendered, the administrator of her estate may be made a party and prosecute the claim for the benefit of its creditors, where no other property is available for their payment.</p> <p>2. Same. Such a proceeding may be prosecuted by the administrator, although it was instituted by the intervention of the grantor in a partition action between the grantees, and the land had been sold prior to her death, the proceeds being held in court to await the determination of the controversy.</p> <p>3. Same — Pleading of Administrator — Not Demurrable. Where in such case the pleading of the administrator sets out that claims are asserted against the estate, and that its assets are insufficient to meet them, it is not rendered demurrable by the fact that it shows the demands have not been allowed or formally exhibited.</p> <p>4. Same — Decree of Reformation — Justified by the Evidence. A decree of reformation held to be justified, upon the ground that there was evidence that the grantor believed the deed to be so worded as to make her maintenance for life a charge upon the land, and that the grantees accepted it upon that understanding.</p>

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

<p>Appeal from Montgomery district court; THOMAS J. Flannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Three Grounds of Negligence Alleged— Evidence Sufficient to Sustain Either — Good against Demurrer. In an action for personal injury, where the petition alleges negligence, first, in furnishing a tool which was not in a reasonably safe condition; second, in failing to furnish "competent fellow workmen; and third, in not warning the employee of the dangers incident to the work in which he was engaged, a peremptory instruction to find for the defendant because there was no evidence to show negligence on its part is properly refused when there is evidence to establish any one of the three grounds alleged.</p> <p>2. Same — Proper Instruction Refused — No Prejudicial Error. A judgment will not be reversed because an instruction which might properly have been given was refused, where it does not appear that the party complaining was prejudiced thereby.</p> <p>3. Same — Defective Tools — Question for Jury. It is proper to submit to the jury the question of an employer’s negligence in furnishing a tool not in a reasonably safe condition, under an allegation charging such negligence, where the evidence shows that pieces of steel would fly from the tool when in use by workmen, and that such pieces would not fly if the tool were kept in proper condition.</p> <p>4. Workmen’s Compensation Act — Constitutional. Section 46 of chapter 218 of the Laws of 1911, giving the defenses of contributory negligence and assumption of risk to an employer who elects to come within the provisions of the act, and denying those defenses to an employer who does not elect to come within its provisions, is not unconstitutional.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Boundaries — -Rules for Locating Boundaries of City Lots. Under the rule applied in In re Richardson, 74 Kan. 557, 87 Pac. 678, relating to the location upon the ground of lots, blocks, streets and alleys of a platted city, it is held that the evidence in the instant case is insufficient to sustain the judgment which was rendered- fixing certain boundaries.</p>

<p>.Appeal from Neosho district court; James W. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>False Imprisonment — Inducing Officer to Make Arrest — No Warrant — Misleading Instructions. One who in good faith reports to a police officer the violation of a city ordinance, and at the same time asks that the violator be arrested, but does not assume to say what steps shall be taken to that end, is not thereby rendered liable for damages because the arrest is made without the issuance of a warrant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Pasturing Cattle — Duty to Supply Water. A contract to pasture certain cattle during the season in a named pasture, which the owners of the cattle had never seen, implied an agreement to supply water as well as grass.</p> <p>2. Same — Under the contract in question the plaintiff owner is held for ordinary care to keep such pasture supplied with water, and to give the defendants timely notification in case of its failure.</p> <p>3. Same — Ordinary Care — Question for Jury. Such ordinary .• care was a question for submission to the jury upon competent evidence under proper instructions.</p> <p>4. Pasturing Cattle — Failure of Water — Measure of Damages. Failure of water rendered the pasture valueless and worked a failure of consideration which, together with any damage properly shown, should be deducted from the contract price of the pasturage for the season.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Coal Mining- — Gas Explosion — Negligence —Contributory Negligence. The record examined and held sufficient to sustain an award of $800 to a miner injured by an explosion of gas, the presence and extent of which were only guessed at by the fire inspector, notwithstanding the miner’s contributory negligence.</p>

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

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Assignment — Account — Form'of Assignment Good against Demurrer to Petition. In an action upon an account for goods-sold by a corporation, a petition alleging ownership in. the plaintiff by virtue of a written assignment is not rendered demurrable by the fact that the writing does not describe the account otherwise than as that of the defendant, and is-signed only by the vice president, no seal being attached. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Order — To Pay Another’s Debt — Conditional Acceptance. The defendant executed a memorandum in the following form:</p> <p>“Lebo, Kan., June 25-13.</p> <p>“Reed, from Milwaukee Corrug’t. Co. an order from Frank Anderson to pay their note of $409 as soon as proceeds of sale of hardware is available, which I will do.</p> <p>E. L. Traylor.”</p> <p>Held, not to constitute an absolute acceptance of an order to pay another’s debt, but a qualified or conditional acceptance, defendant’s liability depending upon the happening of the condition.</p> <p>2. Same — No Liability until Condition is Fulfilled. The defendant having agreed to exchange a farm for a stock of hardware belonging to Anderson, the stock to be invoiced and any ■ difference in the invoice price and the agreed value of the land to be paid in cash, executed to a third party the memorandum mentioned in the preceding paragraph. When the invoice was completed it was found that the value of the stock was less than the value of the farm. By a subsequent agreement the defendant procured for Anderson a loan on the farm, the proceeds of the loan being applied in payment of the difference due defendant on the exchange and the balance paid to Anderson. Held, that the moneys passing through the hands of the defendant were proceeds of the loan and not proceeds of the sale of the stock of hardware, and that the plaintiff is not entitled to recover from the defendant upon the written memorandum.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Dentist — Negligence—Pulling Tooth — Injuries—Competent Witnesses. A physician and surgeon who had examined the plaintiff’s mouth with the aid of an X-ray machine was competent to testify as to the character of the work done by the defendants’ employee in attempting to extract a tooth, as was also a dentist of eight years’ practice who had also examined the mouth.</p> <p>2. Same — Proof. Proof of some of' the alleged acts of negligence was sufficient without proof of all.</p> <p>3. Same — Exclusion of Evidence. Exclusion of evidence of the amount demanded before beginning the action held immaterial.</p> <p>4. Same — Ordinary Care —• Instructions. An instruction that proof of a lack of ordinary care and.skill was required was not rendered erroneous by the omission in one sentence of the qualifying word “ordinary.”</p> <p>5. Same — Instruction—No Error. An instruction touching a pertinent fact proved' without objection on the trial, though not expressly alleged held proper.</p>

<p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Private Corporations — By-Laws Restricting Transfer of Stock Invalid — Mo/ndamus. By-laws of a private corporation organized under the provisions of chapter 23 of the General Statutes of 1909 (§§ 1695-1936), which require election to membership in the corporation by the board of directors before a transfer of stock will be registered, or which require a stockholder to offer his stock to the corporation at not to exceed par before selling elsewhere, or which otherwise impair the right to dispose of shares of stock as personal property, except that all previous assessments must be paid' and the transfer must be made on the books of the corporation according to such reasonable formalities as may be prescribed, are void, considered either as by-laws of the corporation or as contracts with stockholders.</p> <p>2. Same — Corporations—Purchasing Their Own Capital Stock.. The statutes of this .state forbid private corporations organized under the statute referred to to purchase their own capital stock unless necessary to obtain or secure payment of debts or dues owing the corporation.</p>

<p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

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

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contumacious Witness — Evasive Answers — Sent to' Jail— No Error. Where the court in the exercise of its sound discretion finds it necessary to send a refractory witness to jail for evading a direct and candid answer to a competent question, no error is thereby committed in derogation of the rights of a defendant on trial at the time.</p> <p>2. Witness — Evidence of Convict — Stwtute Changing Rule of Evidence. The recent enactment of senate bill No. 416 (Laws 1915, ch. 267), providing that no person shall be disqualified as a witness in a criminal action by reason of his conviction of a felony, renders a new trial unnecessary on account of the admission of the testimony of such a witness; since, if a new trial were ordered, such testimony would now be admissible beyond cavil or question.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>opinion denying a rehearing.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>Sale op Wheat — False Bill of Lading — Innocent Holder — Damages. On the facts shown in the petition for rehearing, the opinion heretofore rendered in this case (Grain Co. v. Railway Co., 94 Kan. 446,146 Pac. 1180) is modified and the judgment of the district court, so modified, is afSrmed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Live Stock — Wrongfully Quarantined — Damages—Erroneous Instructions When Not Prejudicial. Erroneous instructions in a damage action, with respect to the rightfulness of the defendants’ conduct, can not be prejudicial to the plaintiff where the jury find that the acts complained of were wrong-' ful, but occasioned him no injury.</p> <p>2. Same — Setting Aside Verdict —Attorney’s Fees — Punitive Damages — Instructions. Upon the setting aside of that part of a verdict which allows the plaintiff to recover his attorneys’ fees in the action, he Is not entitled to a new trial on the ground that the jury would have allowed him punitive damages if they had not been erroneously instructed that he could recover his attorneys’ fees, where he invited the error by asking both punitive damages and his attorneys’ fees.</p> <p>3. Same — Refusal to Submjt Certain Special Question — No New Trial Required. The refusal of the court to submit to the jury the question of the liability of one of two defendants (whose offense, if any, was of a less degree) for punitive damages, will not ordinarily be a sufficient ground for granting a new trial, where the jury, although having the opportunity, find no punitive damages against the other defendant.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Allen district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Advancements — Conveyances by Father to Children — Competent Evidence to Show the Father’s Purpose. The presumption that a grant of eighty acres from a father to a minor son was an advancement may be overcome by surrounding circumstances, and by parol evidence of statements made by the father either before or after the grant, following Martin v. Shumway, 89 Kan. 892, 132 Pac. 993.</p> <p>2. Same — Presumptions that a Grant of Land was an-Advancement — Overcome by Parol Testimony. The presumption that a grant of ninety acres from a father to two minor children was an advancement may be overcome by surrounding circumstances and by parol testimony of a district judge who divorced their father and mother and who influenced the father to deed the property direct to them for their support, maintenance and education rather than to their mother whom he thought an unfit person to hold the title.</p> <p>3. Same — Partially Controlled by Equitable Considerations. In this state, the presumption that a gift by a father to his child is intended as an advancement is not statutory but is merely a rule of law adopted by the courts in furtherance of an equitable division of his property among his children, and this presumption should not be so strong or so hard to overcome as to bring about the inequitable result which such presumption was intended to prevent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Defective Sidewalk — Injuries—Written Statement of Accident Left with City Clerk at his Residence Filed within Statutory Time. In an action to recover against a city for damages caused by a defective sidewalk a statement complying in all respects with the provisions of section 870 of the General Statutes of 1909, giving the time, place and circumstances of the accident, was handed to the city clerk at his residence at 11:15 p. m. The next morning the clerk took the notice to his office and stamped it as filed on that date, which was one day more than four months from the time plaintiff was injured. Held, that there was a compliance with section 870 of the General Statutes of 1909, requiring the statement to be filed “with the city clerk” within four months after the injury.</p> <p>2. Same — Conflicting Evidence — Demurrer Wrongfully Sustained. It is the province of the jury to weigh the facts and inferences where there is a conflict in the evidence, and it is error for the court to sustain a demurrer where there is any evidence to sustain the plaintiff’s case.</p>

<p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>SYLLABUS BY'THE COURT.</p> <p>1. CITIES' — Statute Providing for Incorporation of Cities of the Third Class — Action by County Commissioners Final and Conclusive. The act providing for the incorporation of cities of the third class (Gen. Stat. 1909, § 1511) confers authority on the board of county commissioners to determine whether or not a petition for incorporation presented to it is signed by a majority of the electors of the unincorporated town. The authority thus conferred is jurisdiction, which attaches when a petition fair on its face and duly published is filed. Proceedings following resulting in an order effecting incorporation are the exercise of jurisdiction. The legislature having authorized no appeal or other method of review, the action of the board of county commissioners is final and conclusive although irregular and erroneous, and can not be attacked by the state in an action of quo warranto prosecuted against the corporation except for fraud, collusion or other misconduct the substantial equivalent of fraud.</p> <p>2. Same — Special Legislation — Section 1 of Chapter 15S of the Laws of 1915 is Unconstitutional. Section 1 of house bill number 139, passed by the legislature of 1915 (Laws 1915, ch. 153), purporting to cure irregularities in the incorporation of cities of the third class incorporated in the year 1913 is unconstitutional and void as special legislation conferring corporate power. (Const., art. 12, § 1.)</p>

<p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

<p>Appeal from Washington district court; John C. Hogin, judge.</p>

<p>Appeal from Bourbon district court; Charles E. Hulett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Threshing Machine — Warranty Made to Third Party— Liability of Vendor. The seller of an article may be liable upon a warranty of its quality made to another than the purchaser, who is interested in it, and who becomes a surety for the payment of a part of the purchase price.</p> <p>2. Same — Elements of Damage Recoverable. Where the agent of the company selling a threshing machine warrants to a farmer that it will do good work, and thereby induces him to give his note to the buyer, in order that it may be at once endorsed to the company as security for the purchase price,</p> <p>the maker of the note may recover against the company any damages resulting to him from the defective working of the machine, amounting to a breach of warranty, while in use by the buyer in threshing his grain. His remedy is not limited to defeating the payment of the note.</p> <p>3. Same — Using Machine after Discovering Defects- — Not Precluded from Recovery. It can not be said as a matter of law that one who permits a defective machine to be used for a week in threshing his wheat is thereby precluded from recovering, under a warranty of its work, all damages resulting during that time from its defective operation, where efforts were continually made to improve its condition, and where on the third day from the last the warrantor made some repairs, resulting in a good effect, which proved only temporary.</p>

<p>opinion denying a rehearing.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Injury to Employee — Negligence of Fellow Servant. An employer is not liable for an injury to his employee caused by the nonnegligent act of a fellow servant of the inj'ured employee.</p> <p>2. Same — Injuries—Dangerous Place to Worlc — ^-Assumption of Risk. If the place where an employee works is dangerous, and the dangers are open and known, and an employee continues to work at that place, making no complaint or suggestion concerning such dangers, he assumes the risk connected with his work. ■</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange of Land — Conspiracy to Defraud — Sustained by the Evidence. The evidence held to support a finding of a conspiracy on the part of the defendants to defraud the plaintiff of his land by inducing him to exchange it for a worthless deed.</p> <p>2. Same — Error in Verdict and Findings — Returned to Jury for Further Deliberation. Where the verdict and special findings returned by a jury show an inconsistency in amounts, apparently due to a mistake in computation, no error is committed in calling their attention to the matter and sending them out for further deliberation.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>Appeal from Sumner district court; Carroll L. Swarts, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Assumption of Mortgage — Liability of Grantee. A mortgagor, who sells mortgaged real property to one who assumes and agrees to pay the mortgage, may maintain an action against such grantee to recover the amount left unpaid after a sale of the property on a foreclosure of the mortgage, and judgment against the mortgagor for the deficiency, without paying the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal prom Probate Court — Sufficient Notice of Appeal. An affidavit accompanying a notice of appeal reciting that “This notice of appeal is made in good faith and not for the purpose of willful delay” is a sufficient compliance with section 3626 of the General Statutes of 1909.</p> <p>2. Same — Appeal Bond — Cash Deposit in Lieu of Sureties— Sufficient Compliance with the Law. One of a number, of nonresident appellants gave his personal bond in án appeal from the probate court to the district court, and made a deposit of $300 in cash as security,, and this bond and security were approved by the probate court: Held, that such bond and security thus approved were a sufficient compliance with section 3627 of the General Statutes of 1909.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — Measure of Damages for Injuries — Statutes. In case of partial incapacity the rule for measuring compensation due to an injured employee, under the workmen’s compensation act, is prescribed in section 12 of that act, while the limitations as to the amount of recovery are fixed by section 11 of the act.</p> <p>2. Same. In the action of plaintiff for compensation it was agreed that his average earnings prior to the accident were $12 per week, and it was found that the average amount which he would probably be able to earn after the accident was $3 per week; his compensation, therefore, under the act would be fifty per cent of the difference in the earnings before and after the accident, to wit, $4.50 per week.</p> <p>3. Same — Judgment for Lump Sum — No Reduction to be Made for Immediate Payment. While an employer may be allowed redemption from liability under an award of compensation in the form of periodical payments by paying eighty per cent of the amount of payments that will become due, and while an employee who has been awarded compensation in periodical payments by agreement or arbitration may ask for and obtain judgment against the employer for eighty per cent of the sum of the payments due and to become due in cases where there is doubt as to the security of his compensation, these provisions have no application in an action for compensation where the court, in the exercise of its discretion, enters judgment for a lump sum in the first instance.</p> <p>4. Same — Notice of Accident — Presentation of Claim — Waiver. An employer may waive the requirements that notice shall be given to him by an employee of an accident within ten days after the accident occurs and that the claim shall be presented to him within three months after the accident, and, held, that the defendant herein by its acts and statements waived the failure of plaintiff to make a claim for compensation within thre three-months period.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Loading Railroad Ties — Injuries — Evidence — Findings. The evidence examined and held to.sustain special findings of fact and a general verdict in. favor of the plaintiff, who was injured through the defendant’s negligence while loading ties on a flat car.</p>

<p>Appeal from Washington. district court; John Cl Hogin, judge.</p>

<p>SYLLABUS by the court.</p> <p>Actions — To Set Aside Deeds — Fraud and Undue Influence— Conflicting Evidence — Judgment Affirmed. In a suit to set aside conveyances of real estate to plaintiff’s nephews, which he alleged had been procured by fraud and undue influence, there was a conflict in the evidence, and it is held that there being nothing involved in the case but questions of fact, the judgment will be affirmed.</p>

<p>Appeal from Shawnee district court, division No. 1 ; Alston W. Dana, judge.</p>

<p>Appeal from Cowley district court; Carroll L. Swarts, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Engineer Passing Block “Stop” Signal — Jumping to Avoid Collision — Injuries—Comparative Negligence. Where a railway engineer on a dark and foggy morning ran ‘ his train so rapidly that he could not stop before passing a block signal which was sep at “stop,” and to save himself from being caught in an impending collision with the rear of another train a short distance beyond the signal, jumped from his engine and was injured, and where the company had failed to include such other train in the order furnished him listing the trains he would meet and pass, thus leading the engineer to expect no other than the “clear” signal at that place, the issue becomes in effect one of comparative negligence, and under chapter 218 of the Laws of 1911, a recovery is not barred by the engineer’s contributory negligence.</p> <p>2. Same — Prejudicial Error in Record — New Trial. Assignment of errors considered and a new trial ordered, but its scope restricted as authorized by section 307 of the civil code.</p>

<p>Appeal from Bourbon district court; CHARLES E.' Hulett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Street-car Track Extending above Surface of Street — Buggy Overturned — Death of Driver ■ — Demurrer to Evidencé Wrongfully Sustained. The evidence examined and held sufficient as against a demurrer to warrant a finding of liability on the part of the railway company and the city for the death of a traveler on an unpaved street, whose horse became frightened at an approaching car, turned sharply around, and overturned the buggy in which the deceased was riding because the front wheel of the buggy caught against a rail of the street-car track which extended much above the surface of the street.</p>

<p>Appeal from Douglas district court; Charles A. Smart, judge.</p>

<p>Appeal from Wichita district court; Albert S. Foulks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Indian Lands — Annual Crops Growing Thereon — Personal Property. A member of the Prairie Band of Pottawatomie Indians can sell the corn growing on the land allotted to him by the government, and the contract of sale is not a contract touching the land or any interest therein.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Father to Daughter — Valid Delivery. The facts concerning the delivery of a deed considered and held sufficient to constitute a valid delivery.</p> <p>2. Deed — Statute — Joint Tenancies — Effect of Deed, to Two Grantees or the Survivor of the Two. Section 2966 of the General Statutes of 1909 abolishing joint tenancies and survivorship does not make it unlawful for a grantor to convey an estate to two grantees or the survivor of the two; and the survivor may lawfully take the entire fee under such a conveyance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Physician and Surgeon — Obstetrics—Malpractice—Petition States Single Cause of Action. The petition in which the plaintiff alleged in substance that the defendant was employed as a physician to care for her in her confinement and that he negligently produced a premature delivery, causing a laceration, and also failed to advise her of her condition and to carefully and skillfully treat her after the birth of the child, by all of which she was severely injured, states a single cause of action.</p> <p>2. Same — Malpractice—Test of Treatment — Expert Witnesses —Different Schools of Medicine. Whether a physician or surgeon charged with malpractice has treated the patient or performed an operation with reasonable skill and care is ordinarily to be tested by the standards of the school to which the physician or surgeon belongs, but if there is uniformity in the principles and rules of practice of the different schools as to any particular branch a qualified practitioner of any of the schools is competent to testify as to whether the treatment administered or the operation performed within the scope mentioned was properly or negligently done.</p> <p>3. Same — Malpractice—Nonexpert Witnesses. Ordinarily only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or an operation performed with a reasonable degree of skill and care, but testimony as to many matters connected with the treatment of a patient, feuch as the statements and acts of the physician or surgeon as well as the external appearances and manifest conditions which are observable by any one, may be given by nonexpert witnesses.</p> <p>4. Trial — Instruction— Not a Factor in the Verdict — No Error. The propriety of an instruction upon a feature of the case becomes immaterial when a special finding of the jury eliminates that feature from the case and shows that it was not a factor in the verdict.</p> <p>5. Physicians — Obstetrics—Duty Required of Attendant Physician. A physician employed in an obstetrical case is required to care for and aid the patient not only during her confinement and the delivery of the child, but it is his duty to make a careful examination of the patient and give reasonable and proper attention to any lacerations or injuries resulting from the delivery, and if he fails in this respect, or to inform the patient or those caring for her as to her condition, or to give them instructions so that they may act intelligently in the further care and treatment of the patient, he is guilty of negligence and liable for the resulting injuries.</p> <p>6. Trial — Excessive Verdict — May be Modified or Set Aside. The approval of the verdict of the jury is essential to the validity of a judgment based thereon, and in determining whether the amount awarded by the jury is excessive the trial court must act upon its own judgment, and if satisfied that the award is excessive the verdict should be modified or set aside. If there is an absence of passion or prejudice in the jury the court may require the successful party to remit so much of the award as is deemed to be excessive or submit to a new trial.</p> <p>7. Trial — No Prejudicial Error in Record. The instructions examined and found to be within the issues of the case and free from prejudicial error, and the findings and verdict to be supported by the testimony.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Exchange of Property — Land for Worthless Securities — Decree for Rescission Not Inequitable. The trial court havingfrom conflicting evidence fairly found that the defendant had procured the plaintiff’s real estate by exchanging therefor worthless securities represented to be good, the decree that* the defendant reconvey upon payment to him of what he had expended for improvements and a return of such securities, or pay plaintiff such sum and have the title quieted, was not inequitable as to the defendant.</p>

<p>Appeal from Greenwood district court; Allison T„ Ayees, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale op Land — Specific Performance — Demurrer to Evidence Wrongfully Sustained. In an action for specific performance of a contract for the sale of a farm, the issues and plaintiff’s evidence examined and held sufficient against a demurrer to the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobiles — Duty of Driver on Public Street Where Children Are at Play. Ordinarily it is the duty of a person operating an automobile in a street in which there is a group of children playing not only to bring his automobile under control, but to give warning of approach and to manage his car with reference to the risk that children may not exercise ' the care for their own protection that adults are expected to exercise.</p> <p>2. Same — Ordinary Care of Driver of Automobile — Contributory Negligence — Questions for the Jury. Whether the defendants, who were driving an autompbile along a street in which a number of children were playing and collided with and injured one of them, and who approached the children without signals or warnings, exercised ordinary care, or whether the plaintiff, who was over thirteen years old and who started across the street without looking for or observing the approach of the automobile, which was coming at a moderate rate of speed, was guilty of contributory negligence, were questions for the determination of a jury.</p>

<p>Appeal from Cowley district court; Carroll L. Swarts, judge.</p>