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and constructed its railroad across it. On the done, took hand cars, and in company with trial of the appeal the award of damages was the section boss and a number of men went largely increased

This sum

was not paid, but the defendant continued to occupy the land

to the place where the rail had been removcondemned, and to operate its railroad across ed, for the purpose of repairing the track. it. After a number of months' delay and neg. He found the plaintiff there, who objected lect on the part of the company to pay the

to his replacing the rail. The plaintiff asaward, the plaintiff tore up one of the rails in the track, and placed a post with boards serted his right to prevent the company from nailed across it between the rails. His pur- crossing what he claimed to be his land, bepose in tearing up the rail and placing the ob

cause his damages had not been paid. After struction on the track was to assert his right to the possession of the land, and he took pre

some controversy, the road master arrested cautions to prevent accidents by giving notice him, and took him to Cullison. A warrant to the company. Thereupon the employés of for his arrest was sworn out by the section the company caused his arrest. Held, in an

foreman, but the complaint was sworn to action to recover damages for false imprisonment and malicious arrest, that it was error

and the warrant issued in Banner township for the court to charge that the arrest was by a justice of the peace of Richland townmade without probable cause, and that the

ship. After the arrest an agreement was encourt should have charged the reverse,-that there was probable cause.

tered into between the plaintiff and the at(Syllabus by the Court.)

torney for the railroad company to the ef

fect that the plaintiff should not interfere Error from district court, Pratt county;

with the operation of the company's trains, W. O. Bashore, Judge.

and that the damages for the right of way Action by Y. J. Quinn against the Wichita

should be paid to him within a week. The & Western Railway Company. From a judg- prosecution was thereupon dismissed, and ment for plaintiff, defendant brings error.

the plaintiff released from custody. On the Reversed.

27th of July, 1887, this action was brought This action was commenced by W. J. against the Kingman, Pratt & Western RailQuinn against the Kingman, Pratt & West- road Company to recover damages for the ern Railroad Company to recover damages arrest. A judgment was obtained, to refor a malicious arrest unlawfully made. The verse which the company prosecuted proplaintiff was in the possession of a half sec- ceedings in error in this court. While the tion of land in Richland township, Pratt case was pending here, and on the 18th of county, the title to 'one quarter section of July, 1889, articles of consolidation were enwhich was in the name of his wife, and the tered into by the Kingman, Pratt & Western other in his own name. In the summer of Railroad Company and the Wichita & West1886, the Kingman, Pratt & Western Rail- ern Railroad Company, and the name of the road Company caused a right of way for its Wichita & Western Railway Company was railroad to be condemned across the plain- adopted for the new company. On the 6th tiff's land. From the award of the commis- of May, 1890, the Wichita & Western Railsioners the plaintiff appealed to the district way Company was, on its own motion, subcourt, where he obtained an award of $1,650 stituted as plaintiff in error in this court. as his damages,-a sum largely in excess of Afterwards the case was heard, the judgthat allowed by the commissioners. While ment of the district court reversed, and the the apreal was pending, the railroad com- cause remanded for a new trial. 25 Pac. 1068.

pany nad constructed its road across the No proceedings were had in the district court

plaintiff's land. The company took time to prior to the reversal of the judgment for the make a case for the supreme court, but no purpose of reviving the judgment against petition in error was ever filed to reverse the the consolidated company. By leave of judgment. The company continued to oper- court, an amended petition was afterwards ate the railroad, and did not pay the plain- | filed alleging the consolidation, that the tiff his damages. Afterwards he instituted Wichita & Western Railway Company had proceedings to enjoin the operation of the succeeded to all the property of the Kingrailroad across his land. A temporary order man, Pratt & Western Railroad Company, of injunction having been obtained, proceed- and had assumed all its debts and liabilities. ings were instituted before the judge of the The company objected to the filing of this district court to punish the defendant for amended and supplemental petition on the violating the injunction. The order was held ground that no order had ever been made void, and the injunction dissolved on the substituting the Wichita & Western Rail27th of June, 1887. On the 16th of July, way Company as defendant. The objection 1887, the plaintiff's damages still remaining being overruled, and the amended petition unpaid, he took a rail out of the track of the filed, the defendant answered with a genrailroad where it crossed his land, and set eral denial. The case was tried to a jury, a post up near the center of the track, across resulting in a verdict and judgment in fawhich he nailed boards, for the purpose of vor of the plaintiff for $2,600. This proceedpreventing the railroad company from run- ing is prosecuted to reverse the judgment. ning its trains across his land. Notice was given and precautions were taken to prevent E. D. Kenna, A. A. Hurd, and F. W. Bentaccident to any train passing along the road. ley, for plaintiff in error. J. C. Ellis and E. The road master, learning what had been A. Austin, for defendant in error.

ne fixture of any railroad, or shall wilfully in

ALLEN, J. (after stating the facts). The first proposition urged is that more than one year elapsed after the consolidation of the two railroad companies without any proceedling in the district court to revive the judgment against the new corporation. It is insisted that the cases of Railway Co. v. Smith, 40 Kan. 192, 19 Pac. 636, Cunkle v. Railroad Co., 54 Kan. 194, 40 Pac. 181, and Railroad Co. v. Butts, 55 Kan. 600, 41 Pac. 948, are decisive of this case, and that under these authorities the action in the district court was dead, and could not be revived without the consent of the railway company. Counsel for the defendant in error has argued at length, both orally and in the brief, against the soundness of the rule declared in these cases, but we are not disposed to re-examine the question. This case, however, is different from either of those cited. The new company voluntarily took the place of the old in this court. The only purpose of the proceeding here was to reverse a judgment for the payment of which the new company was liable. The error complained of here, and for which the judgment of the district court was reversed, was in the refusal of the trial court to grant the defendant a new trial. The new company was, therefore, after being substituted as plaintiff in error here, prosecuting an action in this court to obtain a new trial in the district court. This court, at its instance, reversed the judgment of the trial court, and granted it the new trial it desired. The mandate of this court thereupon issued to the lower court commanding it to grant the new trial, not to the old, dead company, but to the new, living company, which had taken its place. Can it be that, after having asked and obtained through the command of this court a new trial of the case, it may still urge that it has never consented to become a party in that court? Can it be a party for the purpose of vacating and setting aside the judgment where the plaintiff's cause of action still remains, and where this court merely grants a new trial, and yet claim that it is not a party for the purpose of any further proceeding in that court? We think it must take the burdens and benefits of the judg. ment obtained here together; that it must follow into the district court the mandate sent there at its instance, and must abide the result of a new trial; that the substitution under these circumstances must be treated as having been made with the consent of the defendant.

In the fourth instruction given by the court, and excepted to by the defendant, the jury were told that the facts proven in this case did not constitute probable cause for the plaintiff's arrest. Section 104 of the act concerning crimes and punishments, reads: “Any person who shall wilfully throw down, break, remove, displace, cut, split, burn, or in any manner destroy or injure any of the rails, sills, switches, cross-ties, piles, bridges,

jure or destroy any embankment of any railroad within this state, now constructed or in process of construction, or of any railroad which shall hereafter be constructed, or be in process of construction in this state, shall, on conviction thereof, be punished by confinement and hard labor in the penitentiary not less than one nor more than three years." Gen. St. 1889, par. 2238. According to his own testimony, the plaintiff willfully removed a rail from the track of the railroad constructed and operated over his land. He also willfully placed an obstruction on the track, which is made a crime by section 103 of the same act. His only justification for his acts was that he owned the land, and that, as the railroad company had failed to pay him the damages he had been awarded, he had a right to resume possession of it. Whatever the rights of the defendant might have been in an action to recover the land occupied by the railroad company, he had no right to take the law into his own hands, and proceed to tear up the railroad track. It might be that on a trial the fact that he acted in good faith under the claim of right might have shielded him from punishment as for a crime under the section of the statute quoted. But, as his acts constituted a crime within the letter of the statute, there was probable cause for his arrest, and the instruction given was erroneous. Railroad Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286; State V. Johns (Mo. Sup.) 27 S. W. 111); Clifton v. State, 73 Ala. 473.

Other claims of error are discussed in the brief, but, as the same questions may not arise again, we deem it unnecessary to discuss them in detail. The one already considered compels a reversal of the judgment. All the justices concurring.

(57 Kan. 798) READING TP. V. TELFER. (Supreme Court of Kansas. March 6, i897.) HIGHWAYS-IMPUTED NEGLIGENCE-CONTRIBUTORY

NEGLIGENCE-DAMAGES. 1. The negligence of a husband in driving with his wife in a vehicle over a defective highway, whereby injury occurs to the wife, cannot be imputed to her in bar of an action for damages against the township permitting such defects, where it is not shown that the husband was under the direction and control of the wife at the time.

2. The statute (section 1, c. 237, Laws 1887: paragraph 7131, Gen. St. 1889), giving a right of action against counties and townships in favor of persons who, without contribuing negligence, sustain damages by reason of defective bridges or highways, changes neither the burden of pleading or proof, so as to require a plaintiff suing for damages for injuries caused by such defects to allege or prove nonnegligence on his part.

3. In order to constitute a public road a "defective highway” within the meaning of the statute above cited, it is not necessary that it shall first be improved, and put in condition for

travel, and then allowed to become defective It was contended in the court below that through lack of repair.

the evidence showed the husband to have 4. The evidence in this case does not show the damages allowed ($5,165) to be excessive.

been guilty of contributory negligence in (Syllabus by the Court.)

driving over a highway known by him to be

defective and dangerous, and that such negError from district court, Lyon county; W.

ligence was imputable to the wife, and, beA. Randolph, Judge.

ing so, barred a recovery by her; and a reAction by Elizabeth A. Telfer against Read

quest for instructions to the jury predicated ing township. From a judgment for plaintiff,

upon this view of the law was preferred, defendant brings error. Affirmed.

and refused by the court. The first claim of Chas. B. Graves, H. D. Dickson, and I. E. error arises upon this refusal. This claim is Lambert, for plaintiff in error. E. W. Cun- rested upon an assumed or implied agency ningham and W. T. McCarty, for defendant of the husband in driving the vehicle under in error.

the direction and command of the wife, or as

a participant with her in a joint venture or DOSTER, C. J. Mrs. Elizabeth A. Telfer enterprise. Before proceeding to the consid: and her husband lived in Reading township, eration of this claim of error, it may be well Lyon county. July 19, 1892, they started to to state that no charge of negligence is made visit Jrs. Telfer's mother, some miles dis- against the wife herself, either in the briefs tant, in a spring wagon. Mr. Telfer acted as or oral argument of counsel, other than the driver. The highway at a certain point legal imputation to her of the husband's negcrossed a ravine with steep and rocky banks, ligence under the facts proved. The queswhich rendered it a difficult and dangerous tion of her personal negligence in contributplace. In endeavoring to cross, the wagon ing to the injury was submitted to the jury was "tipped over” on account of the rough- under instructions of which no complaint is ness and difficulty of the descent of one of made, and was found in her favor. It is the banks, and Mrs. Telfer was severely in- claimed that the visit to the mother was unjured thereby. The defect in the highway dertaken by the husband at the solicitation causing the accident was known throughout of his wife; that it was her visit, and not the neighborhood, and, being on an open his; and that, if such does not appear as a prairie, most of the travel had avoided it by fact from the evidence, the least that can be going around some distance on either side; said is that it was a joint venture by both but a few weeks previous to the accident the husband and wife; and from each of these owners of the adjacent lands had fenced the alternative propositions of fact a deduction same up, compelling travelers to pursue the of agency in the husband for the wife is line of the highway, and thus cross the place drawn, and from thence the legal imputain question, and a short time before the ac- tion of negligence is derived. The question cident the husband and wife had crossed the is, therefore, squarely presented whether the place where it occurred. The township trus- contributory negligence of the husband in tee had actual knowledge of the defect in the driving his wife over a defective highway highway at that point, and contemplated put- can be imputed to her in bar of an action ting it presently in better condition. The against the person principally or primarily plaintiff, Mrs. Telfer, brought suit against responsible for the injury. Our judgment is the township in which the accident occurred that it cannot; but the authorities, it may as to recover for her injuries, under the statute well be admitted, are conflicting, irreconcil(section 1, c. 237, Sess. Laws 1887; para- ably so, and are numerous in support of each graph 7131, Gen. St. 1889), which reads as side of the contention. That the principal follows: "Any person who shall without con- cannot recover for injuries to which the negtributing negligence on his part sustain dam- ligence of his agent and a third person have ages by reason of any defective bridge, cul- contributed, is settled beyond dispute, both vert, or highway, may recover such damages upon reason and authority. The difficult from the county or township wherein such question is, under what circumstances can defective bridge, culvert, or highway is lo- an agency be implied or said to exist? The cated, as hereinafter provided; that is to plaintiff in error in this case would imply it, say, such recovery may be from the county as some of the courts have done, from the when such damage was caused by a defec- relation of husband and wife. Yahn v. City tive bridge constructed wholly or partially of Ottumwa, GO Iowa, 429, 13 N. W. 257; by such county, and when the chairman of Carlisle v. Town of Sheldon, 38 Vt. 410; Pridthe board of county commissioners of such eaux v. City of Mineral Point, 43 Wis. 513. county shall have had notice of such defect The defendant in error contends that such for at least five days prior to the time when cannot be done. Hoag v. Railroad Co., 111 such damage was sustained; and in other N. Y. 199, 18 N. E. 618; Railway Co, v. Creek cases such recovery may be from the town- (Ind. Sup.) 29 N. E. 481; Railroad Co. v. ship where the trustee of such township shall Spilker, 134 Ind. 380, 33 N. E. 280, and 34 N. have had like notice of such defect.” A ver- E. 218; Railway Co. v. McIntosh (Ind. Sup.) dict was returned and judgment rendered in 38 N. E. 476; Flori v. City of St. Louis, 3 Mo. her favor, from which the township prose- App. 231. The fact, if it be such, that the cutes this proceeding in error.

journey was undertaken at the solicitation of the wife, possesses no weight. It cannot favor with the courts, and has been very inbe that one who merely secures from another frequently applied in our own. the favor of transportation in a private Complaint is made that the court erred in vehicle takes upon herself or himself all risk instructing the jury that the burden of proof of the driver's negligence en route. To so was upon defendant to establish contributohold would minimize the problem for con- ry negligence upon the part of the plaintiff. sideration into a mere question of fact as to The rule in ordinary cases is that contribuwhich of the travelers solicited the other,- tory negligence is a defense to be alleged and the one the favor of a journey, or the other proved; but it is claimed that the statute the pleasure of company. If the one who above quoted changes the rule of pleading, asks to be carried hence is the master, so, on and shifts the burden of proof, as to cases the other hand, the one who invites to a ride falling within its terms. We do not assent to is also the master. If the maiden who begs this view. While the statute gives a right of her escort a carriage drive is the mistress of action to “persons who shall, without conthroughout the journey, so the gallant who tributing negligence on their part, sustain invites his lady would likewise be the master damages,” etc., yet its object was not to until her safe return. It may be conceded declare a rule either of pleading or of evithat persons of mutual purpose and equal dence, but to declare a rule of right. The privileges of direction and control, who travel common law is that persons who, without in the same vehicle, in pursuit of a common contributing negligence on their part, susobject, are the agents of each other in such tain damages by reason of the negligence of a sense that the negligent act of one in fur- others, are entitled to redress for their intherance of the common scheme is imputable juries; but because of the nature of quasi to all; but such mutuality or equality of di- | corporations, such as counties and townrection and control does not exist in the case ships, whose functions and purposes are enof a journey taken by husband and wife. tirely public, they have been held to be Say what we may in advocacy of the civil without the rule of compulsion to respond and political equality of the sexes, there are for the negligent acts of their officers. Comconditions of inequality between the same missioners v. Riggs, 24 Kan. 255; Eikenberin other respects which the law recognizes, ry v. Bazar Tp., 22 Kan. 5.36. This defect and out of which grow differing rights and in the common law was remedied by the enliabilities. One of these is instanced in the actment of the statute in question, and the case of a journey by husband and wife, such only effect of such statute was to bring a as was undertaken by the parties in question. class of cases within the operation of the By the universal sense of mankind, a priv- common law of negligence which hitherto ilege of management, a superiority of con- had been without. This statute simply detrol, a right of mastery on such occasions is clared as to counties and townships what accorded to the husband, which forbids the has always been the law with respect to idea of a co-ordinate authority, much less a cities, private corporations, and individuals. supremacy of command in the wife. His A contrary view has been held in Walker physical strength and dexterity are greater; v. Chester Co., 40 S. C. 312, 18 S. E. 936. his knowledge, judgment, and discretion as- But it does not meet our approval. sumed to be greater; all sentiments and in- It is also claimed that the defect in the stincts of manhood and chivalry impose upon highway where the plaintiff received her inhim the obligation to care for and protect his juries was not a “defective highway," withweaker and confiding companion; and all in the meaning of the statute; that, to conthese justify the assumption by him of the stitute it such, the road should first have labors and responsibilities of the journey, been improved at the point in question, and with their accompanying rights of direction then allowed to become defective through and control. The special facts of cases may lack of repair. It is thought that the stat. show the wife to be the controlling spirit, ute (section 5, c. 108, Laws 1883; paragraph the active and responsible party, and the 7133, Gen. St. 1859) re-enforces this view, husband an agent, or even a mere passenger; because it requires township officers “to but in cases where such facts are not shown keep roads in repair, and improve them as the court must presume, in accordance with far as practicable,” and because “permanent the ordinary-almost universal-experience of roads" need only be constructed “whenever mankind, that the husband assumed and was the available means will permit.” We canallowed the responsible management of the not assent to this view. A laid-out and journey. A review of the opposing decisions opened road is none the less a public highupon this question for the purpose of ex- way because not yet put in condition for hibiting the reasoning of the same, and ap- travel. The statute which gives the right proving that of some and combating that of action contains no exceptions to its terms, of others, would be profitless, and hence is and it and the one which provides for the not undertaken. It may be remarked, how- improvement and repair of public roads reever, that the doctrine of imputable negli- late to such widely differing subjects that gence, except when countenanced by statute, they cannot be construed in pari materia. is a fiction of the law which finds small Besides, the statute which gives the right

of action in question is a remedial one, and should, therefore, be liberally, rather than restrictively, construed.

Finally, it is urged that the amount of recovery ($5,165) is excessive. We do not think so. The injuries were of a peculiar nature, followed by much pain and prolonged confinement to the sick room. According to the testimony of physicians, they are permanent in some respects, and entail consequences of a character which money can hardly compensate. The judgment of the court below is affirmed. All the justices concurring.

(57 Kan. 812) NEW HAMPSHIRE BANKING CO. v.

BALL et al. (Supreme Court of Kansas. March 6, 1897.) DISMISSAL OF ACTION ABATEMENT DEATH OF

DEFENDANT. 1. The right of the plaintiff to dismiss his action without prejudice at any time before the final submission of the same is absolute, and the denial of his application to so dismiss is prejudicial error.

2. Where a court finds that a party to an action has been dead for a period so long that the action cannot be revived without the consent of parties, which is not given, the action abates, and should be dismissed at the costs of plaintiff. In such a case a judgment barring and canceling the cause of action is erroneous.

(Syllabus by the Court.)

Error from district court, Kingman county; W. A. Bashore, Judge.

Action by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball. From a refusal of leave to dismiss, plaintiff brings error. Reversed.

Adams & Adams and Hay & Hay, for plaintiff in error. C. W. Fairchild and W. C. Tetirick, for defendants in error.

udice. The court, however, denied the application to dismiss without prejudice, and thereupon, on application of the defendants to dismiss with prejudice, testimony was heard, and a finding made that there had been no legal revivor of the action within one year after it could have been first inade, and that the action died. The conclusion of the court was that the action had not only abated, but that the cause of action upon the note and mortgage was absolutely barred, and that the plaintiff had lost all right to enforce payment of the note. The judgment was that the action should be dismissed with prejudice to a future action on the note and mortgage.

The plaintiff is entitled to control the disposition of its action, where the application is seasonably made, and until the final submission of the cause. It was a commonlaw right, and in this state the statute expressly provides that the plaintiff may dismiss without prejudice to a future action before the final submission of the case to the jury, or to the court, where the trial is by the court. Civil Code, § 397. Until that time the right is absolute, to be exercised by the plaintiff at its option, and without the consent of the defendants. The court committed error in denying the application, and in proceeding to the trial of the cause. Amos v. Association, 21 Kan. 474; Ashmead v. Ashmead, 23 Kan. 263. The court was not justified in dismissing the case with prejudice, and even if the facts are as found by the court-that there was no revivor within one year after revivor could be first made it would not warrant the court in enteri!ıg an order and judgment barring and canceling the plaintiff's note and mortgage. If, by lapse of time, the action cannot be revived, it abates, and any rights that have been acquired by virtue of the pendency of the suit will be lost to the plaintiff. It is not to be treated, however, as a statute of limitations against the cause of action; and the extent to which the court is authorized is indicated in section 435 of the Code, namely to “order the action to be dismissed at the costs of the plaintiff." The judgment of the district court will be reversed, and the cause remanded for further proceedings. All the justices concurring.

JOHNSTON, J. An action was brought by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball to recover upon a promissory note given by them for $2,000, and to foreclose a mortgage which they had given as security for the payment of the note. Other persons who claimed an interest in the real estate were made parties. Within four months thereafter, Hiram L. Ball, who held the legal title to the mortgaged land, died, and left surviving him his wife and three sons. Within a year from his death a motion was made to revive the action against the administrator of the estate and the heirs, and the motion was allowed. More than a year after the death of Hiram L. Ball the heirs and administrator challenged the validity of the revivor upon the ground that the attorney who appeared to have consented to a revivor for them was without authority, and did not in fact consent to a revivor. Before the question was determined, or a trial upon the merits had been reached, the plaintiff offered and undertook to dismiss the action without prej

(57 Kan. 815) STATE v. COUNTRYMAN. (Supreme Court of Kansas. March 6, 1897.) PRELIMINARY EXAMINATION-EVIDENCE-TERMS OP

COURT STATUTES REPEAL HOMICIDE SELF-DEFENSE - DEAI'LY WEAPONS -- HARMLESS ERROR.

1. A complaint before a justice of the peace, charging an assault with intent to kill, followed by a warrant of arrest, which recites such complaint in full, with docket entries showing arraignment, plea of not guilty, findings of the commission of such offense, and probable cause to believe the defendant guilty thereof, to

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