not ride upon it, but would have to pay fare; that, when the train reached Holliday, the conductor inquired of Rice what he was going to do; that Rice then refused to pay fare or get off the train; that the conductor then took hold of Rice's coat-collar, and led him to the platform of the station, or to the last step of the car; that then a friend told Rice to come back, and he would give him money to pay his fare; the conductor perinitted Rice to take his seat and ride to his destination; that, when Rice was informed he would have to pay his fare or leave the car, it was his duty to do one or the other; that he should have paid his fare, and relied upon his remedy to recover it back; that, if he could not do this, he should have quietly left the train, and not provoked or made necessary an assault; that therefore he should have recovered only 71 cents, that amount being the sum assessed by the jury for his pecuniary loss. The railroad company asked instructions which tended to limit the amount of damages that Rice was entitled to recover to the exact fare paid by him, with interest thereon. The court refused to give these instructions, but directed the jury, among other things, as follows: "I instruct you that if you find the plaintiff presented to the conductor for his passage a limited ticket, good only for three days from the date of its sale; and that the conductor, from the mutilated and worn condition of the ticket, was unable to read the date on the ticket, and honestly believed that the ticket was an old one, and not good; and for this reason, and without any unnecessary force or indignity to the plaintiff, required him to pay his fare or get off, and did, upon refusal and failure to pay fare, remove said plaintiff without any unnecessary force, and without injury to his person, to the platform of the car, or to the platform or ground at a regular station; and then plaintiff paid his fare, and continued his journey on the same train, and without delay,—then, if you find as a fact that the ticket presented by plaintiff was a good and valid ticket, and that the conductor had no right to collect this fare from the plaintiff, you must find a verdict for the plaintiff, and the measure of his damages would be the amount of fare paid by him, with interest at seven per cent. per annum from October 30th, 1885, and actual compensation for the injury and outrage, if any, suffered by plaintiff from the alleged assault." We perceive no error in this instruction. In actions for the recovery of damages for the wrongful expulsion of a passenger from a train, the passenger may recover for his time, inconvenience, the necessary expenses to which he is subjected, and if treated with violence, or in an insulting manner, for the injuries to his person and feelings. If the expulsion be malicious, or through negligence which is gross and wanton, then exemplary damages may be awarded. "There is a special duty on the carrier to protect its passengers, not only against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of its own servants; and for a breach of that duty it ought to be compelled to make the amplest reparation. The law wisely and justly holds it to a strict and rigorous accountability. We would not relax in the slightest degree this strict accountability. We know that upon it, in no small degree, depends the safety and comfort of passengers." Railway Co. v. Weaver, 16 Kan. 456; Railway Co. v. Kessler, 18 Kan. 523. We fully concede that no one has a right to resort to force to compel the performance of a contract made with him by another; and a passenger about to be wrongfully expelled from a railroad train need not require force to be exerted to secure his rights, or increase his damages. For any breach of contract or gross negligence on the part of the conductor, or the other employes of a railroad company, redress must be sought in the courts, rather than by the strong arm of the person who thinks himself about to be deprived of his rights. A passenger should not be permitted to invite a wrong, and then complain of it. Hall v. Railroad Co., 15 Fed. Rep. 57; Townsend v. Railroad Co., 56 N. Y. 301; Bradshaw v. Railroad Co., 135 Mass. 409, Rail. road Co. v. Connell, 112 Ili. 296; Car Co. v. Reed, 75 Ill. 125; 3 Wood, Ry.

Law, § 364. Of course, a party upon a train may resist when, under the circumstances, resistance is necessary for the protection of his life, or to prevent probable serious injury; nor can a party be lawfully ejected from a train while in motion, so that his being put off would subject him to great peril. In this case Rice made no unreasonable resistance. He did not resort to force or violence. Having a good ticket, and being entitled to ride, he refused to pay fare or get off the train. The conductor had no difficulty in leading him off, and about all that Rice did was merely to assert his lawful right to ride upon the train. Where a passenger with a clear right and a clean ticket is entitled to ride on that trip and train, and is wrongfully ejected without forcible resistance upon his part, the jury are, and ought to be, allowed great latitude in assessing damages. They should award liberal damages in full compensation for the injuries received. The quiet and peaceable behavior of a passenger is to his advantage, rather than to his detriment.

Complaint is also made of other instructions to the court regarding the measure of damages. Among other things, the.court said to the jury that if "the assault was malicious, and without cause or provocation, or was accompanied by acts of gross insult, outrage, or oppression, you may award the plaintiff exemplary or vindictive damages." Also, "that in estimating damages they might take into consideration the indignity, insult, and injury to plaintiff's feelings by being publicly expelled." Further, that, if they found "there was on the part of the conductor either malice, gross negligence, or oppression, they would not be confined in fixing damages to the actual damages received, but were justified in giving exemplary damages." It is said that these instructions were misleading and erroneous, because there was no evidence whatever to show that the conductor acted with malice or gross negligence. Upon the evidence of Rice, corroborated by McCulloch, another passenger, who said that he saw Rice purchase the ticket on October 29th, there was evidence before the jury upon which to found these instructions. Hufford v. Railroad Co., (Mich.) 31 N. W. Rep. 544. The forcible expulsion of Rice from the car where he was rightfully seated was such a wrong as is inevitably accompanied with more or less outrage and insult. There was no excuse for the act of expulsion, except the honest mistake or the gross negligence of the conductor. If that mistake was due to such reckless indifference to the rights of a passenger on the part of the conductor as established gross negligence, amounting to wantonness, and the jury so found, they might find exemplary damages. Railroad Co. v. Kessler, supra; Railroad Co. v. Rice, 10 Kan. 426. Whether the conductor was grossly negligent, amounting to wantonness, or actuated by malice, were matters before the jury, for their determination upon the evidence. Under the authority of Titus v. Corkins, 21 Kan. 722, Rice was entitled to recover the expenses incurred by hira in the litigation, if entitled to exemplary damages. Hall v. Railroad Co., 15 Fed. Rep. 95-97 The amount of the verdict in this case was only $117.46; therefore the damages are not so excessive as to indicate passion or prejudice on the part of the jury. The other matters submitted are immaterial.

The judgment of the district court will be affirmed.
All the justices concurring.

(38 Kan. 496)

HENTIG v. REDDEN.

(Supreme Court of Kansas. February 11, 1888.)

1. EJECTMENT - MESNE PROFITS AND IMPROVEMENTS-OCCUPYING CLAIMANTS' LAWPROCEDURE.

Where proceedings under the occupying claimant law have been commenced without request by either party, or a journal entry therefor, held, that such proceedings are without jurisdiction, and void.

2. SAME-EXTENT OF RIGHT SIDEWALKS.

Under the occupying claimant law, the party in possession is entitled to pay for all lasting and valuable improvements, and such improvements would include a sidewalk extending along-side of the property, where the sidewalk was necessary to the property, or when ordered or directed by law, or by the ordinance of a city. (Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Shawnee county; JOHN GUTHRIE, Judge.

This was an action in ejectment, and for rents and profits, brought by the defendant in error against the plaintiff in error for the recovery of the possession of certain lots in the city of Topeka. Judgment was rendered for the plaintiff for the possession of the premises, upon the payment of certain taxes found due to the defendant; and the defendant, plaintiff in error, removed the case to the supreme court on error, and by the decision of this court the judgment was affirmed as to the right of possession by the plaintiff, but reversed as to the computation of taxes due the defendant, and the case was remanded to the district court of Shawnee county to find the amount of said taxes. After the mandate of the supreme court was received by the district court of said county, and before the case was reached for trial on the question of taxes, for which it was remanded, and without the request of either party for the benefit of the occupying claimant act, and without a journal entry being made, or any order showing such request, the plaintiff caused notice to be served upon the defendant that upon a certain day a jury drawn under the occupying claimant law would proceed to assess the improvements upon the lots in controversy. Afterwards a jury was drawn; and the sheriff, by the order of the court, was directed to proceed with the jury to assess the improvements on said lots. On the day the jury was impaneled, the parties appeared, and the record and bill of exceptions show substantially the following facts: It was agreed by the parties that the evidence might be introduced to the jury by each party, and that the judge of the court might rule upon all questions of relevancy or competency of such evidence, and explain to the jury their duty in the premises. It was then admitted to the jury by the plaintiff, defendant in error, that all the improvements on the lots in question were put there by the defendant; also, it was shown the gross amount of rent the defendant had received from the said property, with the improvements thereon. The defendant, plaintiff in error, then offered competent evidence to show that she had constructed a sidewalk along the west side of said property, as directed by an ordinance of said city of Topeka, at a cost of $40, and that said sidewalk was not assessed as a tax against the property; the amount expended by her in the collection of the rents received by her from said property, including the rent of the improvements thereon, and the incidental repairs made to said property during the time said property was so rented, and the rental value of the lots in controversy, exclusive of the improvements; and that said rental value of said lots, exclusive of the improvements, did not exceed the taxes for the same period. All of which evidence, so offered by the defendant, was objected to by the plaintiff, and said objections were sustained by the court, and all of said evidence so offered by the defendant was excluded from the jury. Thereupon the jury returned their verdict in proper form to the court; whereupon the defendant filed her exceptions and objections to said verdict, which were as follows: (1) For the reason that no order or journal entry had been made at the request of either party to the suit; (2) that said verdict was not based upon evidence before the jury; (3) that said verdict was contrary to law; (4) that said verdict was not in accordance with the facts, and not in conformity to the statute in such cases made and provided,--which objections were by the court overruled, and excepted to by the defendant. Afterwards the case came on for final hearing on the question of taxes due the defendant, and the court found the amount of taxes legally due thereon, and

thereupon rendered the following judgment: "It is further ordered, adjudged, and decreed that the said sum of $340.85, so found to be due for taxes, interest, penalties, and costs to the defendant, A. J. Hentig, and the same is adjudged a lien on said lots Nos. 408, 410, 412, and 414 on Clay street, in the city of Topeka, and that the plaintiff pay to said A. J. Hentig said sum of money within 60 days from this date, with interest at the rate of seven per cent. per annum; and that the plaintiff shall not be let into possession of said premises until the same is paid, with interest. And now the exceptions of A. J. Hentig, defendant, to the verdict of the jury drawn in this action under the occupying claimant act to assess the value of the lasting improvements made on said lots Nos. 408, 410, 412, and 414 on Clay street, in the city of Topeka, described in plaintiff's petition, coming on to be heard, and the court having heard the argument of counsel, and being fully advised in the premises, on consideration does overrule said exceptions; to which ruling of the court said A. J. Hentig objects and excepts. It is therefore, on consideration, ordered, adjudged, and decreed by the court that the plaintiff, within 60 days from this date, pay to said A. J. Hentig, defendant, the sum of $450.00, with interest from this date at the rate of 7 per cent. per annum; and in default of the plaintiff's paying to said A. J. Hentig both of the foregoing sums, to-wit, $342.85 for taxes, interest, penalties, and costs, with interest, and the said sum of $450.00 assessed by said jury, with interest, within 60 days from this date, then in that event it is on consideration further ordered, adjudged, and decreed that the said A. J. Hentig pay into the clerk's office for the plaintiff the sum of $250.00, with interest from this date at the rate of 7 per cent. per annum." Whereupon the defendant, plaintiff in error, filed her motion for a new trial upor all the grounds enumerated in the statute; which motion for a new trial was overruled by the court. The defendant now brings the case here for review. F. G. Hentig, for plaintiff in error. H. H. Harris, for defendant in error.

CLOGSTON, C., (after stating the facts as above.) This controversy is in relation to the rights of the parties under the occupying claimant act. The record brought to this court presents such a mixture of things that we are not able to clearly say that the facts that we deduce therefroin are absolutely correct, but we will assume that they are. Section 603, Code Civil Proc., provides how the occupying claimant shall set in motion its provisions. It says: "Sec. 603. The court rendering judgment, in any case provided for by this act, against the occupying claimant, shall, at the request of either party, cause a journal entry thereof to be made; and the sheriff and the clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men, of the jurymen returned to serve as such for the proper county, in the same manner as the sheriff and county clerk are required by law to draw a jury in other cases; and immediately thereupon the clerk shall issue an order to the sheriff, under the seal of the court, setting forth the names of the jury, and the duty to be performed under this article."

This request by either party, provided for, gives the court power and jurisdiction to order the entry to be made upon the journal, and to the sheriff and clerk of the court the right to draw a jury, but without such request in the first instance no jurisdiction is given; and as no such request is found in the record, and no order or journal entry was made, the sheriff and clerk had no authority to draw a jury to assess the improvements on the property in controversy, and all proceedings thereunder are therefore void, unless the appearance of the defendant before the jury, and the stipulation entered into by the parties that the judge of the district court might pass upon the evidence to be submitted to the jury, was a waiver of the jurisdiction, and estops the defendant from now asserting that the proceedings were void. It is a wellrecognized principle that if a party to an action, over which the court has obtained no jurisdiction, presents himself, and becomes a party to the proceed

ings, that he has waived the jurisdiction; but the appearance must be in some matter before the court. This, then, presents the question, was the stipulation between the parties to submit the controversy from a sheriff's jury to one before the court, or, as the stipulation reads, "the judge of the court," such an appearance as will waive the request for the benefit of the occupying claimant act? The bill of exceptions shows that the ruling on the testimony was by the court, and the court allowed and signed the bill of exceptions. The plaintiff, defendant in error, insists that all this took place before the sheriff's jury, and not before the court; that the judge of the court, by the stipulation, was allowed to pass upon the testimony, and that by reason of this stipulation the nature of the proceeding was not changed. If this is true, then the appearance of the defendant would not give the court jurisdiction when it is shown that the jurisdiction of the court was challenged at the time the verdict of the jury was first filed therein. But upon this proposition we are not clear, and, as the proceedings before said jury will require a reversal of the action, it is not material now to determine whether the court had jurisdiction of the parties or not; for, if it did, then a new trial ought to have been granted.

The defendant offered proof of the construction of a sidewalk along one side of the property in controversy, at a cost to her of $40. This evidence was excluded from the jury. This was error. The sidewalk, or other improvements required by law or by an ordinance of a city, is an improvement that attaches to the property; and because the defendant paid for such sidewalk, instead of having it charged up as a tax against the property, could make no difference to the plaintiff. The defendant offered competent evidence to show the charges and expenses paid by her in the collection of the rents and the incidental repairs made on the property, which was also excluded. If the plaintiff is entitled to recover from the defendant the rent of the premises, including the rents of the houses erected thereon by the defendant, then it was competent for the defendant to show what the net amount of rent so collected by her was, and she might show the charges of collection, the repairs made on the propepty, and the like, and such charges were competent to be shown when the gross amount of rent had been ascertained by the plaintiff. As to the question whether the plaintiff was entitled to receive the net rent of the lot, including the improvements, we express no opinion. We are therefore of the opinion that, if the court had jurisdiction, the exclusion of the evidence offered by the defendant was error requiring a reversal of the case.

It is recommended that the judgment of the court below be reversed.

PER CURIAM. It is so ordered; all the justices concurring.

(38 Kan. 456)

NEWMAN et al. v. WOODSON NAT. BANK.

(Supreme Court of Kansas. February 11, 1888.) ATTACHMENT--INTERVENTION-OWNERSHIP OF PROPERTY.

Where personal property is attached as the property of R., and is claimed by N., as interpleader in the action, and in the evidence introduced it is shown that the property attached was used by R. in cultivating and stocking the farm of N., under a contract which provided that N. was to furnish the money and R. was to use it in buying such implements and stock as he thought proper, and was given authority to sell the same without consultation with N., but was required from time to time to report all his transactions to N., and to pay him in cash the net proceeds of the farm and net increase of the stock, and at the end of 10 years repay in money the amount advanced, less the amount expended upon the farm in permanent improvements, held, that N. was simply a creditor of R., and not the owner of the property attached.

(Syllabus by Holt, C.)

Commissioners' decision. Error to district court, Woodson county; L. STILLWELL, Judge.