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strument was in evidence and compared with them bound by the lease, there still remainher own signature, and there was a variance ed the other defense that plaintiffs had failed in the spelling of her name as it was written to comply with its terms. They admitted in different parts of the instrument and the their failure to comply within the time stipacknowledgment. On the trial the court call-ulated, and sought to avoid the effect thereof ed a jury in an advisory capacity, and sub- by showing facts constituting a waiver and mitted to them certain special questions, and estoppel on the part of defendants. This gave an instruction that the burden was on raised an issue of fact upon which the evithe plaintiffs to prove the due execution of dence was conflicting, the defendants conthe lease by the fair weight and preponder- tending that they used the gas not with the ance of the evidence. It is claimed that this intent to ratify the lease, but relying upon was error and that the court evidently mis- the promises of the plaintiffs to have a new conceived the law, and, in adopting the find- and satisfactory lease executed. ings, failed to give proper weight to the evi- The court found all the issues in favor of dence. Conceding that the instruction was the defendants. If there had been a special erroneous, it has been often held that the finding in favor of plaintiffs on the quesdisposal of the burden of proof is of slight tion of estoppel, the general finding would importance, and, where all the evidence has have been narrowed down so as to appear been introduced, it becomes immaterial where conclusively to rest on the defense of alterthe burden rests. McCormick v. Holmes, ation. But there is no special finding on that 41 Kan. 265, 21 Pac. 108; Milling Co. v. Ellis, issue, and the plaintiffs neglected to ask the 76 Kan. 795, 92 Pac. 1114. The procedure court to make further findings or to modify followed in this case is a fair illustration. those made. They are therefore bound by Plaintiffs assumed the burden at the outset, the findings which the court did make. Cowand offered the evidence of expert witnesses ling v. Greenleaf, 33 Kan. 570, 6 Pac. 907; to prove that the signature of Mrs. Fletcher Shuler v. Lashhorn, 67 Kan, 691, 74 Pac. 264. was genuine. The case was tried by the There was evidence sufficient to support a court with the aid of a jury, and, since all finding that the defendants were not estopthe evidence either side had to offer was in- ped, and a finding to this effect is necessarily troduced, it will be assumed that the court, included in the general finding of the court in adopting the findings of the jury, gave from which there is no escape for the plainproper weight to all the competent evidence. tiffs. We have carefully examined the claim of er- The judgment will be affirmed. All the ror in the admission of evidence, and find Justices concur. nothing which would warrant a reversal. The questions objected to were proper crossexamination. It is quite apparent that the court attached considerable importance to

BOARD OF COM'RS OF ATCHISON the defense that the lease was altered after

COUNTY v. SMITH. it was signed and acknowledged. Five of

(Supreme Court of Kansas. Nov. 6, 1909.) the six questions submitted to the jury hing-1. SHERIFFS AND CONSTABLES (829*)--COMed upon the fact of alteration, and the court


Chapter 250, p. 421, Laws 1903, regulating adopted the findings which were all against the compensation of the sheriff and other ofthe plaintiffs on that issue, which was whol- ficers of Atchison county, is not superseded or ly immaterial if the plaintiffs' contentions annulled by chapter 227, p. 379, Laws 1905, and are correct as to the law in respect to the must be measured by the provisions of the ear

the compensation of the sheriff of that county alteration of written instruments.

act. were necessary to decide the question, we [Ed. Note.–For other cases, see Sheriffs and would be inclined to hold with plaintiffs that Constables, Dec. Dig. § 29.*] since Joseph Fletcher testified that it was 2. CONSTITUTIONAL LAW (8 63*)—DELEGATION his intention at the time he executed the

OF LEGISLATIVE POWERS — COMPENSATION lease and also the intention of the notary to


The provision of the act of 1905 (Laws have the lease cover the northwest quarter of 1905, p. 379, c. 227), that the extra allowance section 20, and it appeared beyond question for boarding and lodging prisoners shall not be that the figure “4” in the typewritten lease operative until the board of county commission

ers of the county shall make an order in writwas the result of a mere typographical er- ing to that effect and shall enter the same on ror, the alteration was not such a one as their journal, is not an invalid delegation of would avoid the instrument, because it was

legislative power. a correction which expressed the intent of al' Law, Cent. Dig. 88 108-114; Dec. Dig. §

[Ed. Note.-For other cases, see Constitutionboth parties, and was not a material altera- 63.*] tion. 2 Cyc. 148, D, and cases cited.

(Syllabus by the Court.) There are reasons, however, which render it unnecessary to consider or determine what Error from District Court, Atchison Counkind of alterations will avoid a written in- ty; B. F. Hudson, Judge. strument of this character. Irrespective of Action by James A. Smith against the whether defendants were either or both of Board of County Commissioners of Atchison The spe

County. Judgment for plaintiff. Defendant has received full compensation. brings error. Reversed and remanded. cial act was passed prior to the recent

W. W. Guthrie and T. A. Moxcey, for amendment of the Constitution in relation to plaintiff in error. James W. Orr and W. P.

James W. Orr and W. P. the enactment of special laws; but in fact Waggener, for defendant in error.

no claim is made that the act violates any

provision of the Constitution. It is contendJOHNSTON, C. J. The question for decided, however, that the act of 1905 supplants sion in this case is whether James A. Smith, the special act in respect to the boarding and the sheriff of Atchison county, is entitled to lodging of prisoners. It is general in charrecover compensation for official services un-acter and provides, among other things, that der chapter 250, p. 421, of the Laws of 1903, in counties where sheriff's fees are regulated

, or according to the provisions of chapter 227, by a general law the sheriff shall receive an

, p. 379, of the Laws of 1905. The sheriff pre- additional allowance of 10 cents per day for sented a claim for boarding prisoners during boarding and lodging prisoners; but it is the years of 1905 and 1906, and his account provided that the additional fees shall not was allowed at the rate of 40 cents per day be paid in any county until the board of for each prisoner. He was also allowed fees county commissioners shall make an order and actual expenses for taking prisoners to in writing to that effect and shall enter the penal institutions and patients to charitable same on their journal. There are two patent institutions; but these allowances were for reasons why the sheriff of Atchison county the maximum compensation provided for by may not receive the additional allowance the act of 1903. On the theory that he was which he claims by virtue of this act. The entitled to compensation under the act of first one is that his fees and compensation 1905, he presented to the board of county are not regulated by a general law, but are commissioners a bill asking 10 cents per day expressly provided for in the special act of for each person boarded in addition to the al-1903. For that reason alone the sheriff may lowance already made, amounting to $702.60, not avail himself of the provisions of the and his claim also included $109.50 more than later act. Another reason which bars any had been previously allowed for conveying claim of his for the additional compensation prisoners and patients to the prisons and is that the commissioners have not made the hospitals, as well as an extra fee of $2 for written order bringing the county within the drawing a jury. The claims were disallowed scope of the act. It is argued that this proby the board; but in an action brought in the vision is an invalid delegation of legislative district court judgment awarding him the power. The act is in itself complete; but amount claimed was rendered.

its operation depends upon the will and acChapter 230 of the Laws of 1903 is a spe- tion of the board of county commissioners. cial act fixing the compensation of the sher-Laws, the operation of which depend upon iff and several other officers of Atchison such a contingency, have been frequently county. It provides that the sheriff may sustained. Noffzigger v. McAllister, 12 Kan. charge, as full compensation for his services. 315; Keyes v. Snyder, 15 Kan. 143; L. L. & certain fees prescribed in another act, and G. R. Co. v. Com’rs of Douglass County, 18 then proceeds to provide that he may retain Kan. 169; Phoenix Ins. Co. v. Welch, Supt., fees up to the amount of $2,500 per annum, 29 Kan. 672; State ex rel. v. Hunter, 38 and that, if in any year the total amount of Kan. 578, 17 Pac. 177. the fees collected in the county exclusive of

Aside from this consideration, the Conthe amount allowed for carrying persons to stitution provides that the Legislature may penal and charitable institutions shall be confer upon tribunals transacting the county more than $2,500, he shall be required to business such powers of local legislation and pay one-third of such excess into the county administration as it may deem expedient. treasury; but, in case the amount of the fees Under this provision the power of the kind collected is less than the sheriff is permitted in question can be given to the board of to retain, the commissioners are authorized county commissioners. Noffzigger v. McAlto make good the deficiency by an allowance, lister, supra; Com’rs of Harper Co. v. State and the uncollected fees, when paid, are to ex rel., 47 Kan. 283, 27 Pac. 997. The shergo into the county treasury. This act is iff, having received all of the fees to which more liberal in its provisions for the sheriff he is entitled as measured by the controlthan was the general law in existence when ling statutes, cannot recover the additional the former was enacted. It fixed the com- amounts claimed. pensation of the sheriff of Atchison county, The judgment of the district court will at least until the passage of the act of 1905, therefore be reversed, and the cause remandand is still the controlling law, unless it has ed, with directions to enter judgment in fabeen superseded or restricted by the act of vor of the appellants. All the Justices 1905. If the special act governs, the sheriff concur.

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is the ruling of the court permitting the readWILMOTH v. WHEATON.

ing by the stenographer of his stenographic (Supreme Court of Kansas. Nov. 6, 1909.) notes of the testimony of two witnesses taken 1. EVIDENCE ($ 582")-STENOGRAPHIC NOTES- at a former trial, and the objection made in


each case was that the notes had not been The provisions of section 1, c. 494, p. 810, transcribed and certified to by the court ste

. Laws 1905, do not constitute a restriction of the use to be made of stenographic notes in nogragher, as required by law. As to one of a nisi prius trial, but are an extension of such the witnesses, it was admitted that he had use.

been subpoenaed, but at the time of the trial [Ed. Note. For other cases, see Evidence,

was out of the county. As to the other, there Cent. Dig. 8 2422; Dec. Dig. $ 582.*]

was testimony that at the time of the trial 2. EVIDENCE (8 582*)—EVIDENCE ON FORMER he was in St. Louis, and it does not appear TRIAL. To reproduce the testimony of a witness de- whether or not any diligence had been exer

a ceased or absent from the jurisdiction of the cised to have him in court. However, there court who has testified to the fact in issue on a is no objection as to either witness that such former trial, it is not error to permit the court stenographer to translate and read his steno diligence had not been exercised. The only graphic notes of such evidence in the hearing of question then presented is whether section 1, the jury, instead of requiring that the notes be c. 494, p. 810, Laws 1905, is a limitation upon transcribed and certified. [Ed. Note.--For other cases, see Evidence, porters to a written transcript of the notes

the use of the stenographic notes of court reCent. Dig. $8 2419-2423; Dec. Dig. $ 582.*]

certified or verified by the affidavit of the (Syllabus by the Court.)

stenographer as a true transcript. Prior to 3. WORDS AND PIIRASES—"TRANSCRIBE." Technically the word “transcribe” means 1885, which authorized the appointment by

the enactment of chapter 189, p. 305, Laws to write across or over. As generally used, it

As generally means to reduce to writing, and, as applied to district courts of court stenographers, the notes of a stenographer as he is required to only method of securing the evidence which translate his notes before he can transcribe had once been given in court by a witness, them, his translation can be as accurately expressed in words as in writing, and such trans- afterward deceased, was to call witnesses lation would be as binding on his conscience as who had been present and heard his testihis certificate to the notes transcribed.

mony on the former trial; and, if a witness Error from District Court, Allen County; had departed from the jurisdiction of the Oscar Foust, Judge.

court after the former trial, his evidence Action by D. D. Wilmoth against C. H. might be reproduced in the same manner. Wheaton. Verdict for defendant, and plain- After the appointment of stenographers in tiff brings error. Affirmed.

the district courts, the courts recognizing that Cullison & McMillan and Chris Ritter, for the notes of a stenographer taken at the time plaintiff in error. Baxter D. McClain, for were probably more accurate than the memdefendant in error.

ory of any witness who may have heard the

words repeated, the practice was to have the SMITII, J. The plaintiff in error brought stenographer sworn as a witness and to have suit before a justice of the peace in Allen him read his notes in aid of his memory; county against the defendant in error to re- the fiction being generally maintained that, cover damages for injury to his team and like other witnesses, he must speak from wagon resulting from a collision between the memory. Experience having demonstrated team and an automobile. By appeal the case the impartiality and almost absolute accurawas taken to the district court of the county cy of the notes of court stenographers, the where it was tried to a jury three different Legislature enacted chapter 494, p. 810, 'Laws times. The first trial resulted in a hung 1905, Section 1 of which reads as follows: jury, the second in a small verdict for plain- “That the transcript of notes of any duly aptiff, which was set aside by the court and pointed court stenographer of any proceeda new trial granted, and a third trial re- ings taken by such stenographer in any court sulted in a verdict for the defendant. To of record in the state of Kansas which shall correct alleged errors in the last trial plain- thereafter be transcribed by such stenogratiff in error brings the case here.

pher, and thereafter verified by his affidaThe only issue of fact tried in the case was vit as being a full and true transcript of whether or not Wheaton was the owner and the notes taken by him at any trial or othoccupant of the automobile involved in the er legal proceeding before such court of reccollision. A number of witnesses undertook ord, or certified by him to be a true copy to identify Wheaton as the driver of the au- of all the evidence of any witness or witnesstomobile at the time of the collision, and a es used and examined in any such legal prolarger number, including himself, testified to ceedings before a court of record, may be an alibi for him, and a number testified that introduced in evidence by any party desiring Wheaton's automobile was at the time of the to use the same under like circumstances and collision in a garage knocked down and in with like effect as the deposition of such no possible condition for use.

witness or witnesses." The plaintiff in erThe only error complained of on the trial ror contends that this act is a limitation upon the use of such notes, and that the provi

On Rehearing. sion for one method of use excludes all oth-3. CARRIERS ($ 320*)-INJURY TO PASSENGERS ers. We cannot consent to this construction -NEGLIGENCE OF CONDUCTOR.

Where the conductor of a freight train while of the act. It was evidently enacted as an riding in the caboose with a number of passen; extension of the use of stenographer's notes, gers discovers that one of the cars, is on fire and and not as a limitation upon such use. Tech- announces the fact in a loud voice and excitnically, of course, the word “transcribe” ed manner, his conduct may be such as naturalmeans to write across or over. As generally interior of the caboose has become a place of

ly to lead the passengers to suppose that the used, it means to reduce to writing. The danger and to seek safety on the platform; and stenographer has mentally to translate his held that, under the facts of this case, whether notes before he can transcribe them, and his his conduct was of that character was a ques

. translation can be as accurately expressed [Ed. Note.-For other cases, see Carriers, by him in words as in writing, and he is, of Cent. Dig. $$ 1315–1324; Dec. Dig. $ 320.*] course, sworn correctly to translate his notes, 4. CARRIERS ($ 295*)-INJURY TO PASSENGERS which should be as binding upon his con- -NEGLIGENCE OF CONDUCTOR. science as his certificate to notes transcribed ;

It is negligence for a conductor to cause a and especially, as is usual in such cases, the at a time when a sudden stopping of the train

passenger to go upon the platform unnecessarily stenographer has no interest to report other is to be expected. wise than accurately.

[Ed. Note.--For other cases, see Carriers, Also it is contended that it is not to be Cent. Dig. $ 1199; Dec. Dig. $ 295.*] presumed that the Legislature enacted a fu- 5. CARRIERS (8 160*) - INJURIES TO PASSENtile provision which the above section would


CRUAL OF RIGHT OF ACTION. be if it made no difference in the method of

Where a contract provides that no suit producing evidence. It is sufficient to say it shall be brought upon it unless within six is not futile. The transcript of the evidence months after a cause of action shall accrue, and may be used in various ways in courts other shall be a condition

precedent to the bringing of

that the giving of a notice within a fixed time than upon nisi prius trials, and section 1, such suit, assuming these provisions to be valid, supra, is an extension of its use in such trials, the six months within which the suit must be as the transcribed notes may be used even brought does not begin to run until the notice is

given. in the absence of the stenographer, if certi

[Ed. Note. For other cases, see Carriers, Dec. fied by him.

Dig. § 160.*] The court committed no error in allowing Burch and Porter, JJ., dissenting. the reading of the notes, and the judgment

(Syllabus by the Court.) is affirmed. All the Justices concurring.

Error from District Court, Marion County; 0. L. Moore, Judge.

Action by A. C. James against the ChiCHICAGO, R. I. & P. RY. CO. v. JAMES.

cago, Rock Island & Pacific Railway Com(Supreme Court of Kansas. Nov. 6, 1909.)

pany. Judgment for plaintiff, and defendant 1. INJURY TO PASSENGERS.

brings error. Affirmed. A car of a freight train moving about 30 miles an hour between stations was ignited by

See, also, 100 Pac. 641. sparks from the engine. The conductor discov

M. A. Low, Paul E. Walker, and J. D. Mcered the fire, and announced it to several passengers in the caboose. One of them ran to the Farland, for plaintiff in error. W. H. Carrear platform, and was looking forward along penter, for defendant in error. the side of the train, when a severe lurch caused by the application of the brakes by the engineer threw him to the ground, causing severe

MASON, J. A. C. James, with other pasjuries. In an action to recover damages there- sengers, was riding in the caboose of a for, held, evidence that the conductor called out freight train on which he had cattle in shipin 'a loud voice and excited manner within the ment. Sparks from the engine ignited hay hearing of the passengers that the train or a car was on fire, and that thereupon the plaintiff in one of the cars. The conductor discovered became excited and alarmed, and ran to the rear the fire, and uttered an exclamation regardplatform to see where the fire was, and what ing it. James ran to the rear platform, from danger he was in, if any, and to provide for his safety if there was any danger from fire, his in- which he fell, receiving serious injuries, on jury resulting from his being upon the platform account of which he brought an action while the train was suddenly stopped, does not against the railway company, recovering a tend to establish such negligence on the part of judgment to reverse which this action is the conductor as to render the company liable. 2. INJURY TO PASSENGERS—EVIDENCE.

brought. A number of questions have been Evidence that the lurch which threw the argued, but the view taken of the matter plaintiff to the ground was caused by the engi-by this court makes it necessary to consider neer making an emergency application of the only this one: Did the evidence tend to air brakes, and that the train could have been stopped almost as quickly, and with less jolting, charge the company with actionable negliby a more gradual application, resulting in an gence either (a) by reason of the manner in ordinary or service stop, does not tend to estab- which the conductor and brakeman announced lish such negligence on the part of the engineer to the passengers the existence of the fire, or as to render the company liable.

Johnston, C. J., and Mason and Benson, JJ., (b) by reason of the fact that the engineer by dissenting.

using the emergency brake, instead of a less abrupt means of stopping the train, caused , ger, or to make the announcement in a loud an unnecessary lurch of the caboose?

voice and in a manner deemed to show exThe evidence necessary to a determination citement. of the first part of this inquiry is found The direct evidence on the subject of the largely in the testimony of the plaintiff, and engineer's conduct was that on his discovery may be fairly summarized thus: The train of the fire the train was brought to a standwas between stations running about 30 miles still by the ordinary or service stop. There an hour. About noon the conductor, who was was such evidence, however, of the different seated with the passengers under the cupola, effects ordinarily produced, according to how said in an excited manner and in a voice so the air brake is used, and of the degree loud that they heard him distinctly above of jolting that actually resulted in this inthe rumbling of the train either "This damn stance, as to leave room for the inference train is burning," or "That damned car is that in fact an emergency application was afire.” A brakeman who had been in the made. For the purposes of the case, therecupola at once jumped to the floor, and said, fore, the evidence must be deemed to have “Take buckets,” or “Grab buckets,” adding established that the emergency stop was

” something about the fire. The plaintiff, used, instead of the service stop. The time being much excited and alarmed by the word thereby saved is shown to have been slight, “fire,” rushed to the rear of the car to see and the argument is made in behalf of the where the fire was and what danger he was plaintiff that the more gradual method would in, if any, and to provide for his safety if have answered the purpose as well as the there was danger from fire. He went out abrupt one that was employed, and that upon the platform, descended to the first the lurch of the caboose that caused his fall step, and looked up the side of the train, was due to the unnecessarily sudden appliwhen a lurch of the car threw him off. The cation of the brake, which therefore contheory of the plaintiff is that the conduct of stituted actionable negligence. In the soluthe conductor and brakeman was of such a tion of this question, as of that already disnature that the effect produced on the plain- cussed, little aid is to be had from the decitiff could reasonably have been anticipated, sions. The general principle is not doubtful. and that it was negligence to communicate The only difficulty lies in its application. to him the fact of the fire in such a manner. The court concludes, however, that where an This feature of the case turns upon the engineer of a freight train containing cattle, soundness of this contention. None of the the shippers of which are riding in the cacases cited by either party is of any special boose, discovers while between stations a fire value in determining this question. of in one of the cars, he is justified in bringing course, a panic might well be regarded as the his train to a stop as soon as is consistent natural result of an abrupt announcement of with safety to the passengers while in the a fire made on a vessel at sea, or in a crowd- caboose, and his use of the speediest means ed auditorium, or even in any large building. to accomplish that purpose, although it necBut the possible peril to passengers in a essarily results in more or less severe jolting, caboose from a fire elsewhere in the train cannot be regarded as such negligence as to is not so imminent or so great as to present charge the railway company with liability an analogous situation. If the action of the for injuries resulting to a passenger standtrainmen in announcing the fire did consti- | ing on the platform of the caboose of whose tute negligence, it must be because it was presence in that place he had no knowledge. their duty either to conceal from the plain- It results from this view that the demurtiff the fact of the fire, or in telling him ofrer to the plaintiff's evidence should have it to caution him to remain in the car, or at been sustained, and on that account the least to advise him that he was in no per- judgment is reversed. sonal danger. The words used contained nothing to suggest any dangerous condition BURCH, SMITH, PORTER, and GRAVES, beyond the mere fact that a car somewhere JJ., concurring. JOHNSTON, C. J., and MAon the train was on fire. They were not ad- SON and BENSON, JJ., dissenting. dressed specifically to the passengers. That they were spoken loudly did not add to or

On Rehearing. change their meaning. The noise of the MASON, J. The facts are stated in the train required them to be loud in order to be original opinion. The vital inquiry for the heard. And their significance could not be further consideration of which a rehearing affected by their having been uttered in what was granted is this: Did the evidence justhe plaintiff regarded as an excited manner. tify the trial court in submitting to the jury The expression used by the conductor sug- the question whether the words and conduct gested the excitement of irritation rather of the conductor and brakeman on the disthan of fear. This court is of the opinion covery of the fire were such as naturally to that as a matter of law it was not negligence lead the plaintiff to suppose that by reason for the trainmen to inform the passengers of of it the interior of the caboose had become the existence of a fire on the train, or to give a place of danger, and to seek safety on the the information without any accompanying platform? If so, the verdict must stand; for,

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