"Q. None whatever? A. No, sir. to their substantial rights. In this connection "Q. And the property interests that she did it may be observed that the interest of the have were entirely conveyed to you? A. Yes, administratrix in this litigation is quite pla sir. "Q. And you have all of that property? A. Yes, sir. "Q. In case of her death there would be no estate to distribute among the other children? A. No, sir." tonic. She has been careful not to oppose Mary Pirotte. Should the administratrix win, she would not have a penny's worth of property to administer. The district court treated Mary Pirotte with remarkable leniency, and, if the strict legality for which she The consideration for the deeds was made argues were applied to her, she would come up of the following items: (1) $3,315 loaned by Mary Pirotte to her father. Her father died in 1913. She made no claim against his estate, there was no evidence that Elizabeth Pirotte was liable in any way for payment of the debt, and at the time the deeds were made the debt was not legally collectable from anybody. (2) $3,035 loaned by Mary Pirotte to her mother before the deeds were executed. (3) $1,500 owed by Elizabeth Pirotte to her son Peter, which Mary Pirotte assumed and agreed to pay. In her answer Mary Pirotte acknowledged liability to the plaintiff for this sum. (4) An agreement by Mary Pirotte to support Elizabeth Pirotte while she lived, and to furnish her such medical aid, nursing, hospital, and other care, as she might require. At the time of the trial, which occurred on April 24 and 25, 1919, Mary Pirotte had advanced the sum of $3,450 under this agreement. The judgment against Mary Pirotte was rendered on April 29, 1919, and on that day Elizabeth Pirotte died. The court found the parties to the deeds did not actually intend to hinder, delay, or defraud Elizabeth Pirotte's creditors; but, after adjudging that Mary Pirotte should pay the bank the $1,500 item, the court gave her a first lien for $9,800, the full amount of all her loans and advancements, instead of absolute title under her deeds. After providing that the bank should first exhaust some property which Peter Pirotte had conveyed to a trustee for the bank's benefit, the bank was given a second lien. Mary Pirotte complains of this judgment. out of a second trial with a second lien. All the Justices concurring. A city ordinance requiring the closing of public schools in the city during the existence of an emergency caused by a general scarcity of fuel was held void, and the city was enjoined at the suit of the school authorities from closstaying the judgment, and before the appeal ing the schools. The city appealed without could be determined the emergency had passed. Held that the validity of the ordinance is no longer a matter of controversy which affects the rights of either party, for no decision the court might make could furnish the basis for an order that could be carried into effect. Appeal from District Court, Trego County. Suit by School District No. 1 in Trego County, Kan., and others against H. F. Kline, as Mayor of the City of WaKeeney, and A. W. Heyl and others, as Councilmen thereof, and others, to enjoin the enforcement of an ordinance. From an order granting an injunetion, defendants appeal. Appeal dismissed. Herman Long, of WaKeeney, for appellants. John R. Parsons of WaKeeney, for appellees. PORTER, J. The appeal is from an order granting an injunction restraining the enforcement of a city ordinance. [2] It may be conceded the judgment was erroneous, but not as against Mary Pirotte. The evidence disclosed that Elizabeth Pirotte was insolvent, and the deeds, though made and accepted without fraudulent intent, were fraudulent in law, because they appropriated property of Elizabeth Pirotte to payment of a debt she did not owe. Besides that, as to On December 10, 1919, the city of WaKeenthe bank, the agreement to support constitut-ey enacted an ordinance prohibiting the use ed a mere debt due to Elizabeth Pirotte, and of fuel for certain purposes "until such time the bank was privileged to resort to the land as further supplies may be obtained, in Mary Pirotte's hands to the extent of its in accordance with the rules and regulations value in excess of the consideration actually of the National Fuel Administration." The paid. Farlin v. Sook, 30 Kan. 401, 1 Pac. title of the ordinance set forth its purpose, 123, 46 Am. Rep. 100. which was to provide "for the conservation Some questions of practice are raised by of the fuel supply during the existing emerthe appellants. It is not necessary to discuss gency." The ordinance prohibited public asthem. The appellants suffered no prejudice semblages, other than funerals, prohibited (193 P.) the usual and ordinary church services and 1919, a landowner whose property is approlodge meetings oftener than once each month, priated for an improved highway is entitled and provided for the closing of public to all the damages which he sustains thereby schools, theaters, moving picture shows, pool without deduction or set-off for benefits achalls, and billiard halls, but permitted a few cruing to his remaining land; because the statute provides that, later, when the improved kinds of business, deemed essential, to re- road is completed, the cost thereof, in part, main open during certain hours each day. shall be apportioned and levied upon the benAppropriate fines and forfeitures for the vio-efited property in accordance with the benefits lation of the ordinance were provided. accruing thereto. Appeal from District Court, Douglas County. The public school authorities of the city brought this action, alleging that the ordinance was unreasonable, arbitrary, and oppressive, and that the city was without auGeorge A. Anderson, owner, appealed to the thority to interfere with the operation of District Court from an award of the Board public schools, alleging further that the of County Commissioners of Douglas County schools had on hand a sufficient supply of to determine whether benefits to land by concoal to continue operation. The answer of struction of an improved highway were to be the defendants set forth a copy of the ordi- considered in diminution of damages for the nance and admitted the intention of the city part appropriated. Verdict and judgment for to enforce its provisions. The court sustain-plaintiff in a certain sum, and the Commised a motion for judgment in plaintiffs' fa- sioners appeal. Affirmed. vor on the pleadings, and granted the injunction restraining defendants from closing the public schools. The defendants appeal. No stay of the judgment was procured by the defendants, and the appeal was permitted to take its ordinary course; no attempt being made to have the cause advanced for an early hearing. J. B. Wilson, of Lawrence, for appellant. DAWSON, J. This appeal is to determine whether the benefits which may accrue to land by the construction of a paved and improved highway upon it are to be considered in diminution of damages for the part appro It is apparent that the questions present-priated for its construction. The board of county commissioners of ed by the appeal have become moot by reason of the fact that the ordinance has spent Douglas county proceeded regularly by auits force. It was enacted to cover an emer-thority of statute to appropriate a strip of gency which no longer exists. The mere ap- which was designed to connect Ft. Leavenplaintiff's land for an improved highway peal from the judgment did not stay the proceedings, and the school authorities were per-worth and Ft. Riley, via Douglas county. mitted to continue the operation of the The board appraised the plaintiff's damages at $600. This sum was declined, and plaintiff school during the existence of the emergency. The validity of the ordinance is no longer appealed to the district court, where a verdict a matter of controversy which affects the and judgment for $1,850 was entered in his behalf. rights of either party. No order this court might make could be carried into effect. The case therefore becomes moot, leaving nothing to be determined except an abstract proposition of law which concerns neither party. Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104, and Anderson v. Cloud County, 90 Kan. 15, 132 Pac. 996, and cases cited in those opinions. The appeal is dismissed. All the Justices concurring. (107 Kan. 655) ANDERSON v. BOARD OF COM'RS OF DOUGLAS COUNTY. (No. 22834.) (Supreme Court of Kansas. Nov. 6, 1920.) (Syllabus by the Court.) The commissioners appeal, and the matter to be reviewed by this court, as stated by their counsel, is: "The question of the correctness of the trial judge in refusing to admit testimony showing the benefit accruing to the landowner and appellee in this matter, by reason of the hard surface improvement of the road in question, and the further alleged error of the trial court in instructing the jury that such benefits to the landowner should not be considered by them." The pertinent statute itself must furnish the answer to this question, and citations from decisions in other cases, like Tobie v. Comm'rs of Brown Co., 20 Kan. 14, under different statutes, are not controlling. The appropriation of the plaintiff's land was authorized by chapter 265 of the Session Laws of 1917 as amended by chapter 246 of the Session Laws of 1919. Section 3 of the latter act, in part, reads: Eminent domain 145(4)-Owner of property appropriated in part for highway entitled to damages without deduction for benefits. Under chapter 265, Laws of 1917, and * When the petition filed for the imamendments thereto, chapter 246, Laws of provement of a road describes a road which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * * has not been legally established as a public * The view all and ap "The right of appeal from the award of damages made by the board of county commissioners shall be the same as is now provided by law in other road cases, but such appeal shall not delay any work upon or in relation to said road." It will be observed that this section does not authorize or require that any deduction or set-off be made for benefits, general or special, which may inure to the landowner for the improved road constructed over his land. That matter is to be determined when the (Syllabus by the Court.) 1. Master and servant 121 (3)-Monument works a "manufacturing establishment," within Factory Act, as to covering cogwheels. A plant in which rough stones are shaped, dressed, lettered, and converted into tombstones and monuments is a "manufacturing establishment" within the meaning of the Factory Act. road is completed. Section 5 of the same act and Phrases, Second Series, Manufacturing Es[Ed. Note.-For other definitions, see Words provides: tablishment.] "Upon the completion of any improvement under the provisions of this act the county commisioners shall meet at their office and apportion the cost thereof as follows: (a) If all or any portion of said road improvement is entitled to and does receive federal or state aid or donations, the same shall be applied to the cost of the improvement for the purposes and to the extent for which the same were given. (b) The remainder of the cost shall be apportioned: fifty per cent. to the county; twenty-five per cent. to the taxable property within the township or townships in which the benefit district is situated * * * ; and twenty-five per cent. among the several tracts of land within the benefit district designated in the map, according to the benefits accruing to the real property and improvements thereon within the limits shown by said map." 4. Master and servant 284 (2)-Case for jury. The evidence in the case held to be sufficient to take the case to the jury. Appeal from District Court, Reno County. As a taxpayer of the United States the plaintiff will contribute with all other taxpayers to the amount of federal aid given by the national government toward this improveAction by Fred Pack against Martin ment. He will also pay as a county taxpayer; Grimes and William M. Jones, doing business and he will pay as a township taxpayer. In under the firm name of the Hutchinson Monaddition thereto, he will also have to pay the ument Works. Demurrer to plaintiff's evisum appropriated against his property ac-dence sustained, judgment rendered for decording to the benefits accruing to it by rea- fendants, and plaintiff appeals. Reversed son of the improvement. It will thus be seen that the statute provides that the damages for the land taken are to be determined and paid for without any deductions when the land is appropriated; and the benefits accruing to the land not taken are to be determined later when the improved road is completed and when a certain percentage of the cost of it is apportioned to the benefited property. This special apportionment of part of the cost is only justifiable because of the benefit to the prop and remanded. Taylor & Connaughton, of Hutchinson, for appellant. Williams & Martindell, of Hutchinson, for appellees. JOHNSTON, C. J. This action was brought by Fred Pack to recover damages for the loss of a finger, alleged to have been caused by the negligence of Martin L. Grimes and William M. Jones, doing business under (193 P.) the firm name of Hutchinson Monument monument works of defendants are a manWorks. The court sustained a demurrer to ufacturing establishment within the meaning plaintiff's evidence, and gave judgment for of the Factory Act. Caspar v. Lewin, 82 defendant. Plaintiff appeals. Kan. 604, 109 Pac. 657, 49 L. R. A. (N. S.) 526; Raines v. Stone, 87 Kan. 116, 123 Pac. 871; Bubb, Adm'x, v. Railway Co., 89 Kan. 303, 131 Pac. 575; Buchanan v. Blair, 90 Kan. 420, 133 Pac. 709. See, also, Laws 1917, c. 226, § 2. The derrick or lifting machine, was a part of the factory. It was used in connection with other processes in carrying on defendant's business, and was an essential part of the establishment. [3] There is a contention that, as plaintiff was not an employé of defendants, he was not entitled to the protection of the act. This protection is given not only to employés, but it is also extended to other persons working in the establishment. Gen. Stat. 1915, § 5890. The scope of the protection was considered in Caspar v. Lewin, supra, wherein it was said: [1, 2] It appears that defendants were carrying on the business of converting rough stones into tombstones and monuments. At the end of the factory building in which the shaping, dressing, and lettering were done, a derrick had been erected to be used in load-although in the yard outside of the building, ing the tombstones and monuments when finished upon transfer wagons and trucks. It was operated by means of levers, pulleys, ropes, cogwheels, and cranks. On the day of the accident the defendants called the Union Transfer Company, for whom plaintiff was working, and asked them to move certain tombstones and monuments to the cemetery. That company sent the plaintiff and another of its employés to perform the task, and while plaintiff was assisting in the work, and was turning a cogwheel in order to lower the tackle and fasten it upon a part of a monument, so that it might be lifted upon the wagon, an employé of the defendants carelessly seized and jerked a rope, causing the cogwheel to revolve rapidly and in such a way as to draw plaintiff's finger between the cogwheels and cut it off. Some time before the accident there had been a guard over the cogwheel, but it had been removed at that time. Shortly afterwards a guard was pro vided. In this action the plaintiff was asking for the benefit and protection afforded by the factory act, and he contends that his evidence made a prima facie case for a recovery. In support of the ruling sustaining the demurrer to plaintiff's evidence, defendants contend that it was not shown that the defendant's plant is a factory. In it rough stones were shaped, dressed, lettered, and converted into tombstones and monuments. In the Factory Act it is enacted that a manufacturing establishment includes certain mills, shops, and works that are specifically named, and added that it also includes: Any other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form." Gen. Stat. 1915, § 5892. "The statute is a Factory Act and an Employers' Liability Act combined. It bears internal evidence that the Employers' Liability Acts of other states had been studied. They are usually drawn in favor of 'an employé,' and consequently are held to exclude employés of subcontractors. To meet this defect the protection of the act was extended, not only to persons employed, but also to persons laborstaple Employers' Liability Act, however, exing, in a manufacturing establishment. The pressly limits its application to 'an employé, who at the time of the injury is in the exercise of due care.' Laws Colo. 1893, c. 77; Acts Ind. 1893, c. 130; St. Mass. 1887, c. 270; Laws N. Y. 1902, c. 600. The omission of any such restriction from the Kansas law appears to have been deliberate and intentional." The plaintiff was laboring in the establishment when he was injured and fairly comes within the provisions of the act. [4] Another contention is that the plaintiff was a volunteer when he was assisting in loading the monuments; that it was the work of others, and no part of his duty. The testimony in this regard is not strong, but it was shown that in several other instances he had helped to load monuments without objection or interference, and under the circumstances he cannot be regarded as a trespasser. Whether he was laboring in the establishment with the consent of the defendants, or a mere trespasser, was under the In Jeffries v. Elevator Co., 102 Kan. 811, evidence a question of fact for the jury, and 176 Pac. 631, it is said: "All establishments for the modification of natural products to adapt them to human needs are embraced in the act." Under the authority of the cases dealing with this subject, there is no doubt that the we conclude that there was sufficient evidence to take the case to the jury. For the error in sustaining the demurrer to the evidence, the judgment is reversed, and the cause remanded for further proceedings. All the Justices concurring. (107 Kan. 681) BRADSHAW v. FARMERS' & BANKERS' LIFE INS. CO. (No. 22847.)* (Supreme Court of Kansas. Nov. 6, 1920.) (Syllabus by the Court.) Insurance 515 Limitation of liability to premiums paid in case of death while in military or naval service held binding. A provision in a life insurance policy was to the effect that, if the insured engaged in military or naval service and died while in such service, the extent of the liability of the insurer should be the return of the premiums paid on the policy. It was also provided that the limitation would not apply if an insured engaging in the service should obtain a permit from the insurer and pay the extra premiums required. The insured, who had been inducted into military service under the Selective Service Act (U. S. Comp. St. 1918, U. S. Comp. St. Supp. 1919, §§ 2044a-2044k) and was acting as chief blacksmith of his company in a training camp, died of pneumonia. Held, that the agreement limiting the liability of the insurer where the insured engaged in military service was one the parties had a right to make and is binding upon both of them, and that the extent of the liability of the insurer on a policy was the amount of the premiums paid thereon; and held further that the limitation of liability applies equally to persons inducted into the military service under the Selective Service Act, as to those who voluntarily enlist in that service. Appeal from District Court, Harper County. Action by O. C. Bradshaw, as administrator of the estate of Emmett Elton Bradshaw, against the Farmers' & Bankers Life Insurance Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions. J. A. Brubacher, of Wichita, for appellant. Donald Muir and Henry J. Brady, both of Anthony, for appellee. JOHNSTON, C. J. This action was brought by O. C. Bradshaw, as administrator, against the Farmers' & Bankers' Life Insurance Company, upon a life insurance policy. The plaintiff recovered judgment, and defendant appeals. The policy was issued on the life of Emmett Elton Bradshaw on November 27, 1917, and the premium for the first year, $86.90, was paid. Included in the policy was a military and naval service clause, which reads as follows: "If, within five years from the date of this policy, the insured shall engage in military or naval service in time of war, the liability of the company, in event of the death of the insured while so engaged, or within six months thereafter, will be limited to the return of the regular premium paid thereon, exclusive of any extra premium, less any indebtedness to the company hereon; "Unless, before or within one month after engaging in such service, or at the time of issuance hereof if the insured be already so engaged, the insured shall secure permit for such service and pay to the company, at its home office in Wichita, Kansas, such extra premium as may be required by the company, and, in like manner, shall pay, annually thereafter, on each anniversary of this policy or within one month thereafter, while the insured shall continue to be so engaged, such extra premium as may be required by the company. "Within one year after the termination of the war the company will return such portion of the extra premium as in its judgment will not be required to cover the extra hazard. In event that the insured enters such service any total and permanent disability benefit or double indemnity for accidental death benefit shall be canceled automatically upon such entry and any premium paid for such benefit or benefits shall no longer be collected. "Service in the Aviation Corps or on submarines within five years from date of this policy is a risk not assumed under this contract and in event of death while engaged in such service the amount payable shall be limited to the return of the regular premium paid hereon exclusive of any extra premium paid for military or naval service, less any indebtedness to the company hereon." Under a rule of the insurance company permits for military and naval service were granted upon payment of an added premium of $37.50 per year on each $1,000 of insurance. After the issuance of the policy and about June 1, 1918, Emmett Elton Bradshaw was inducted into the military service under the provisions of the Selective Service Law (U. S. Comp. St. 1918, U. S. Comp. St. Supp. 1919, §§ 2044a-2044k) and sent to Camp Ft. Logan in Colorado, where he was assigned to duty as a member of a cavalry troop which was shortly afterwards transferred to Ft. D. A. Russell in Wyoming. There he was assigned to duty as a blacksmith and horse shoer, but was drilled in the cavalry service which he had been assigned was transferred and trained as a marksman. The troop to into a battery of field artillery on September 8, 1918, and that battery was sent to a camp near West Point, Ky. After arriving at the camp in Kentucky, he served as chief blacksmith for his company, drawing the pay of a About three weeks after arriving at that top sergeant, but was not required to drill. camp he had an attack of influenza and died as the result of lobar pneumonia on October 13, 1918, in a hospital at Camp Taylor. From the time he entered the military service until his illness he wore the uniform of a soldier and was under military supervision. While being transferred from the fort in Wyoming to the camp in Kentucky he traveled on a pass given by a superior officer which read: "Pass Sergeant and Horseshoer Bradshaw." When the claim for insurance was present For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |