ed and without notice, was irregular, but no [tham, Butler county. Their son, John G. prejudice to defendants' substantial rights Erickson, met the plaintiff in Kansas City, is traceable thereto, and we are forbidden and after a brief courtship they were married to reverse a case on mere technical grounds on the 16th day of November, 1911. The pewhen the net result approximates substan- |tition alleged that shortly after the marriage tial justice. Civ. Code, §§ 141, 581 (Gen. St. the defendants, maliciously intending to de1909, §§ 5734, 6176); Root v. Packing Co., 94 prive the plaintiff of the affections, support, Kan, 339, 345, 147 Pac. 69; Elevator Co. and maintenance of her husband, tried to inv. Harrison, 97 Kan. 289, 293, 154 Pac. 1016. duce the plaintiff to leave and abandon their After two hearings in this case we find no son and separate from him, and that upon tangible ground upon which to base a re- her refusal to do so, they maliciously and versal, and the judgment is therefore af- persistently advised, influenced, and entreatfirmed. All the Justices concurring. ed him to fail to support and maintain her and to abandon and leave her, and, finally, on the 27th day of December, 1911, succeeded in their designs, and persuaded him to abandon action against her for divorce, and to make her, and shortly afterwards to commence an false and humiliating accusations against her; that on the 28th day of March, 1913, during the pendency of the divorce suit, John G. Erickson died. (98 Kan. 244) ERICKSON v. ERICKSON et al. (No. 19995.) (Supreme Court of Kansas. June 10, 1916.) (Syllabus by the Court.) 1. EVIDENCE 271(1)-DECLARATIONS-SELFSERVING DECLARATIONS. Plaintiff testified to statements made by defendants in conversations had with her, but the court refused to permit her to state what she said to them. The statements excluded were selfserving in character, and did not tend to explain the language of the defendants. Held, not error. ALIENA [1, 2] The court permitted the plaintiff to testify to statements made to her by defendants, but refused to permit her to tell all she said to them in the same conversations. The statements excluded were, for the most part, incompetent because of their self-serving na [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1068, 1070; Dec. Dig. 271(1).] ture, and, besides, they did not tend to throw 2. HUSBAND AND WIFE 333(3) TION OF AFFECTIONS-ACTIONS EVIDENCE. In an action in which plaintiff sued to recover damages from the parents of her deceased husband for alienating his affections, a letter, written plaintiff by her husband prior to their marriage, was offered as evidence of his affection for plaintiff. Held, incompetent as against the defendants. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1124; Dec. Dig. 333(3).] additional light upon the language used by the defendants. A letter written to the plaintiff by her husband before the marriage was offered to show his affection for her. It was not competent evidence against the defendants. The presumption is that he had affection for her or he would not have married her. [3] The principal claim made in the appeal 3. HUSBAND AND WIFE 335-ALIENATION is that the case is one which should have OF AFFECTIONS-ACTIONS EVIDENCE. In view of certain admissions of the plaintiff, it is held that, notwithstanding there was what may be called a scintilla of evidence to support her claim, the ruling sustaining a demurrer to the evidence will not be disturbed. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1126; Dec. Dig. 335.] gone to the jury, and that it was error to sustain the demurrer to the evidence. There was very little testimony tending to show that the defendants were in any respect responsible for the separation of the plaintiff and her husband. She admitted that the statements in her verified answer to the petition for divorce were substantially true. In that answer she alleged that her husband had never, at any time, provided a home for her, or made any attempt to do so; that she was compelled to live at the home of his parents, which was contrary to her wishes; that on the day of her marriage her husband became intoxicated and remained in that condition for a week, after which he left her in Kansas City and went to his parents' home, and made no effort to have her join him. In her sworn answer she also stated that her husband was an habitual drunkard; that while she lived with him she contracted from him a loathsome disease, and that he refused to lend her assistance to recover her health; that prior to the marriage he represented to her that he was wealthy, and that he owned an interest in his father's ranch and cattle, and had a The defendants live on a ranch near La-large bank account; that these statements West and Dawson, JJ., dissenting. Walter H. Maloney, of Kansas City, Mo., and Kramer & Benson, of El Dorado, for appellant. Aikman & Aikman, of El Dorado, and Hackney & Lafferty, of Winfield, for appellees. PORTER, J. The action in the district court was one in which the plaintiff sued to recover damages from the parents of her deceased husband for alienation of his affections. It was not brought until after his death. This is an appeal from a ruling of the trial court sustaining a demurrer to the plaintiff's evidence. were untrue; that she learned when she went to Latham she would be required to do the housework and look after the home of her husband's parents, and that she was physically unable to do this; that she left the ranch and went to Kansas City with her husband's consent and under his instructions, and that he refused and failed to furnish her money to return to Latham, that he failed to write her and neglected to answer her letters; that he never contributed at any time to her support; that during the short time she remained with him at Latham he repeatedly stated that he did not want to live longer with her, and urged her to leave him; that on the 2d day of January, 1912, her husband called to see her at the home of her parents in Kansas City; that he was in a drunken stupor, and was abusive and ill-tempered; and that he offered her and her parents numerous indignities. Her testimony is that she had never seen either of the defendants until the day after her marriage, when her husband took her to Excelsior Springs near Kansas City and introduced her to his mother. A few days later he left her and went to Latham. During the next two weeks she had several conversations with Mrs. Erickson, who told her she had made a mistake in marrying John; that she could never get along with him; that he had no way of making a living for her; that he drank and was not fit to live with; that he was "burnt up" with disease; that he was thorize the court to take the case from the jury. But the plaintiff admitted that her sworn statements in the divorce proceeding were true. If they were true, it is difficult to see how she could have had a cause of action against the defendants. All the statements about her son which the mother made to the plaintiff appear to have been the truth. To her sorrow plaintiff herself learned of their truth very soon after her marriage. While there was what may be called a scintilla of evidence tending to support the plaintiff's contentions, we think the trial court was doubtless convinced, as we are, that this is a case which should never have been brought. If upon plaintiff's own testimony the jury had returned a verdict in her favor, it would have been the duty of the trial court to set it aside. In view of all the conceded facts, we think this is not a case which calls for an application of the rule that if there is any evidence tending to support the plaintiff's claim, the case must be submitted to the jury. For these reasons the judgment will be affirmed. JOHNSTON, C. J., and BURCH, MASON, and MARSHALL, JJ., concurring. WEST, J., dissenting. DAWSON, J. (dissenting). So far as the facts can be gleaned from the printed page, I have little sympathy with plaintiff's claim. She may have been a mere adventuress, entitled to no consideration; but I do not think the bailiff or the bystanders, should usurp the judge of a district court, any more than the province of the jury. There is at least a bare possibility that the plaintiff was an innocent and much injured woman, and that the defendants did meddle with her domestic felicity, and that they largely prevented it. In any event, and tested by oft-repeated decisions of this court, the plaintiff's evidence was sufficient to call for the regular and legitimate exercise of the jury's functions. therefore dissent. still in love with his first wife and always had been; that if she would not go to Latham and live with him, she (Mrs. Erickson) would set her up in the millinery business or send her to school; that afterwards Mrs. Erickson paid the expense of taking her to Latham. She testified that after she had been at the ranch a short time Mrs. Erickson advised her to go to Kansas City and visit her family, and said John could not go. She remained at the ranch for only two weeks, and then went back to her parents, and never afterward lived with her husband. There was no evidence of any conduct of Mr. Erickson that tended to support plaintiff's claim, except that he had very little to say to her during her stay at the ranch, and refused to WICHITA WATER CO. v. CITY OF WICHIallow his son to accompany her to Kansas City. There was evidence tending to support the averments in the petition to the effect that the parents sought to persuade plaintiff not to live with her husband, at least, that the mother had done so; but there was no substantial testimony to show that defendants alienated the affections of their son for his wife, or that they induced him to bring proceedings for divorce. Of course, under the rule so often declared (see Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Bowes v. Sly, 96 Kan. 388, 152 Pac. 17; Hyland v. Railway Co., 96 Kan. 432, 151 Pac. 1107), the mere fact that there were contradictions in plaintiff's testimony would not au TA. (No. 20015.) (98 Kan. 256) (Supreme Court of Kansas. June 10, 1916.) (Syllabus by the Court.) 1. LIMITATION OF ACTIONS 21(1)—LIMITATION APPLICABLE-ACTION FOR SERVICE AND MATERIALS. It is too late under the statute of limitations to begin an action for services and materials since the services were performed and the mawhen three years and two months have elapsed terials furnished before the action is begun. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 90, 94, 96, 98; Dec. Dig. 21(1).] 2. MUNICIPAL CORPORATIONS 230, 248(3)--CONTRACTS-AUTHORITY OF OFFICERS. A city commissioner has no power to bind a city to pay for services and materials, nor does For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-4 the written acknowledgment of the mayor as to the justice of the claim amount to a legal ratification of the promise of the commissioner. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 654-656, 686; Dec. Dig. 230, 248(3).] CON 3. MUNICIPAL CORPORATIONS 243 [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 675-677; Dec. Dig. 243.] 4. WATERS AND WATER COURSES 194-MUNICIPAL CORPORATIONS-POWERS-ORDERS TO WATER COMPANY. A city of the first class has power to make reasonable orders directing a water company to relocate its water mains and hydrants to conform to the establishment of another and later public utility; and the exercise of such power is governmental, and the city is not liable for the expenses incurred by the water company in making such changes in obedience to the city's commands. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 280; Dec. Dig. 194.] David Smyth and J. W. Smyth, both of Wichita, for appellant. J. A. Conly and R. C. Foulston, both of Wichita, for appellee. DAWSON, J. The Wichita Water Company sued the city of Wichita on three counts: (a) For labor and materials used in protecting a bridge and one of its approaches which were threatened by a flood in January, 1910; (b) for water used in wagons for flushing and sprinkling the streets; and (c) for expenses incurred in changing water mains and hydrants to conform to the grades and elevations of the new union depot in Wichita. A demurrer to the evidence was sustained to the first and third causes of action. The water company was given judgment for $75 and interest for the water used by the city for sprinkling the streets, but received nothing for water used From this result it in flushing the streets. appeals. [1-3] 1. Was the demurrer to the evidence properly sustained as to the first count? The evidence showed that on January 14, 1910, a flood on the Little Arkansas river threatened the destruction of the Central avenue bridge in Wichita and its eastern approach and threatened to inundate the neighboring part of the city. One of the members of the city government, the commissioner of streets and public improvements, requested the plaintiff's assistant superintendent to use its men and teams and to secure additional help and material to protect the bridge, and this commissioner agreed that the city would pay these expenses. The city did not pay. [Ed. Note.-For other cases, see Waters and On February 4, 1913, the mayor wrote a letWater Courses, Cent. Dig. § 274; Dec. Dig.ter to the plaintiff saying that he thought 200(1).] 5. WATERS AND WATER COURSES 200(1) 6. WATERS AND WATER COURSES 200(2) MUNICIPAL CORPORATIONS WATER SUPPLY -LIABILITY OF MUNICIPALITY. Where an old ordinance prescribes the method whereby the city may flush its sewers and gutters, the question whether the city must pay for any water used in flushing sewers and gutters in a more modern and efficient manner depends upon whether more water is used by the later method. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 274; Dec. Dig. 200(2).] 7. JURY 89—GROUNDS OF CHALLENGE-IN TEREST-TAXPAYER OF CITY. Civ. there was some merit in plaintiff's claim for protecting the river bank and bridge, admitted that some money was due thereon, but that he could not ascertain the amount and suggested that the plaintiff bring an action in court to determine the matter. This action was filed on March 15, 1913. This was about three years and two months after the services were rendered and after the materials were furnished. The claim was therefore barred by the statute of limitations. Code, § 17, cl. 2 (Gen. St. 1909, § 5610). Moreover, the promise of one commissioner could not bind the city. His promise on behalf of the city was unenforceable, unless this commissioner, in compliance with his promise, had taken up the matter with the city government and had formally secured its ratification. 28 Cyc. 646. This holds true, also, as to the mayor's acknowledgment that "some money" was due on "the river bank claim." The mayor could not give validity to a claim by acknowledging its justice. 28 Cyc. 647. For that matter, if every member of the city government, acting independAf ently and not in their organized capacity as the city commission, had said or done the In an action where a money judgment is demanded against a city, no ground of peremptory challenge is established by showing merely that a challenged uror is a taxpayer of the city. Older decision to the contrary no longer control since the enactment of chapter 236 of the Laws of 1913. [Ed. Note. For other cases, see Jury, Cent. Dig. 88 411, 412; Dec. Dig. 89.] Appeal from District Court, Sedgwick County. Action by the Wichita Water Company against the City of Wichita. From a judgment for defendant, plaintiff appeals. firmed. same, no contract, no legal obligation, would | dered at the expense of the public utility have followed. Root v. Topeka, 63 Kan. 129, 131, 65 Pac. 233; 28 Cyc. 643, 644. The statutes prescribe the methods by which contracts with a city are to be made. Gen. Stat. 1909, § 9037, cl. 4; Id., §§ 1234, 1237, 1294, 1298. And see generally Gen. Stat. 1909, c. 17, art. 20. company. Thus as a municipality increases its population and business becomes congested, telephone wires may be ordered removed and located elsewhere, railroads may be required to establish new and more expensive crossings, larger terminals, additional connections, etc. State ex rel. v. Railroad ComWhile there is no escape from the fore-panies, 85 Kan. 649, 118 Pac. 872; City of going proposition, we are not unmindful that, Emporia v. Railway Co., 88 Kan. 611, 129 in time of flood or other disaster threatening Pac. 161. Of course, the exercise of such the welfare of a city, it may be imperatively powers must be reasonable, otherwise the necessary that some official take the initia-courts will withhold or enjoin their enforcetive and do what ought to be done to avert ment. Paola v. Wentz, 79 Kan. 148, 98 Pac. loss or suffering; but in every such case it 775, 131 Am. St. Rep. 290; City of Emporia must be assumed that he does so in full v. Railway Co., 94 Kan. 718, 147 Pac. 1095; confidence that the city will promptly ratify Telephone Co. v. Utilities Commission, 97 his unauthorized acts, and one who deals Kan? 136, 154 Pac. 262. with such officer knowing his technical want of power does so in mere expectation that the city will ratify. In any meritorious case, as in an emergency of flood, fire, or pestilence, there would be no difficulty in securing ratification if promptly undertaken. If the matter is left to drift for several years until the personnel of the commission has changed and until the gravity of the situation under which the unauthorized contract was made is largely forgotten, there is no help for it. There is a presumption that a meritorious claim will be promptly presented, and, in any event, the claimant must assert his right within the time fixed by the statute of limitations. It is a thoroughly established proposition that a city has a dual capacity: One as an agency of the state in which it exercises powers purely governmental, legislative and public; the other is proprietary, commercial, and quasi private. City of Wichita v. Wichita Railroad & Light Co., 96 Kan. 606, 608, 152 Pac. 768. In the exercise of its governmental powers, whether that exercise be wise or foolish, just or unjust, it is never liable thereon in the absence of a statute imposing such liability. Of course in its other capacity, the proprietary, commercial, and quasi private one, it may be subjected to liabilities and judgments like ordinary private corporations and individuals. Nor can [4] 2. Turning next to the third cause of there be any doubts that the city of Wichita action, it seems clear that the plaintiff canwas exercising its purely governmental funcnot recover its expenses in changing the locations when it ordered the plaintiff to change tion of its water mains and hydrants to conform to the establishment of the new union station. The plaintiff received its corporate existence and privileges from the state, but these were and are subject to further future regulation, and even subject to revocation and repeal. Const. art. 12, § 1. To a limited extent, this is also true as to the privileges granted to the plaintiff by the state's agent, the city of Wichita. Anderson v. Fuller et al, 51 Fla. 380, 41 South. 684, 6 L. R. A. (N. S.) 1026, 120 Am. St. Rep. 170. It was not out of regard for the plaintiff that it was given a franchise to place its mains and hydrants in the streets of Wichita. It was out of regard for the public welfare. Neither was it out of regard for the railroads that permission was granted to erect a union depot. It also was for the public convenience. And when modern invention shall have devised new public conveniences and utilities for the public welfare, the older utilities like the plaintiff and the union depot may again have to reorder their establishments to make room 33 Kan. 176, 5 Pac. 772. the location of its water mains and hydrants. In this respect the city is not liable for the expenses of the plaintiff incurred in obedience to the city's commands. Edson v. Olathe, 81 Kan. 328, 105 Pac. 521, 36 L. R. A. (N. S.) 861; Fire Insurance Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; Pond on Public Utilities, §§ 3 and 4, and cases cited. The decided cases go so far as to say that a city cannot bargain away its powers to subject the grantees of franchises to further regulation and control as future public necessities may require. Edson v. Olathe, 81 Kan. 328, 105 Pac. 521, 36 L. R. A. (N. S.) 861; Crowder et al. v. Town of Sullivan et al., 128 Ind. 486, 28 N. E. 94, 13 L. R. A. 647; Snouffer v. C. R. & M. City Ry. Co., 118 See, also, note in Iowa, 287, 92 N. W. 79. 6 L. R. A. (N. S.) 1026. [5, 6] 3. Turning now briefly to the plaintiff's grievance that it was not permitted to recover for the water used in wagons to flush the streets: Viewing this question strictly, the plaintiff's contention is technically correct. In consideration of the franchise grant and the payment of a stipulated hydrant rental, the city now pays about $25,000 per annum to the plaintiff. The ordinance granting the franchise provides for the use of the hydrants for fires, etc., and for flushing and washing the sewers and gutters, and it provides that: "Not more than two hydrants shall be opened at any one time nor oftener than twice a week, nor longer than two hours at a time, nor discharge through any orifice greater than one and one-half inches." It must be conceded that the furnishing of water for the city's flushing wagons does not come within the terms of this ordinance. It may be that the use of flushing wagons is the modern and better way to do this work, but the city should pay for the water thus used if it involves any excess of water over the old way prescribed by the ordinance. But since it cannot be presumed and the facts are wanting to show whether the new method of flushing required more water than the old, the plaintiff failed to establish this cause of action. We need do no more than suggest this as an equitable consideration in any future dealings between the water company and the city in the use of these flushing wagons. [7] 4. Yet another error is presented. The plaintiff objected to three of the jurors on the ground that they were residents and taxpayers of Wichita. This is no longer an absolute disqualification (Laws of 1913, c. 236), although such juror may be examined on his voir dire to determine his impartiality. Nothing was shown here, however, that the challenged jurors would hesitate to do their duty notwithstanding their slight and inconsequential interest as taxpayers in the outcome of the lawsuit. which protected the rights of the complaining party. [Ed. Note. For other cases, see Trial, Cent. Dig. 316; Dec. Dig. 133(1).] 5. TIME 9(4)-COMPUTATION-Days. Notice by actual knowledge of the defective condition of the streets on Monday amounted to the statutory requirement of notice "for at least five days prior to the time when such damage was sustained," the injury occurring the following Saturday about dark. [Ed. Note.-For other cases, see Time, Cent. Dig. §§ 19-23; Dec. Dig. 9(4).] LIABILITIES FOR INJURIES ABSENCE OF Rules followed that absence of safeguard constitutes a defect, and actual knowledge of conditions naturally productive of injury obtained while repairing the highway constitutes notice of defect. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 480, 483, 484, 486-490; Dec. Dig. 193, 194.] Appeal from District Court, Jewell County. Action by Reuben H. Amis against the Board of County Commissioners of the County of Jewell and another. From a judgment for plaintiff, defendant Center Township appeals. Affirmed. R. W. Turner and D. F. Stanley, both of Mankato, for appellant. Mahin & Mahin, of Smith Center, and D. M. McCarthy, of Mankato, for appellee. WEST, J. [1] The plaintiff recovered a judgment against the township for damages sustained by being thrown from an automobile which is alleged to have been turned over by reason of obstructions piled in the The judgment is affirmed. All the Justic- highway at the end of a bridge under proes concurring. cess of repair by the township board. It Iwas charged that the board had determined to tear out the old bridge and construct a new one of cement at the same place and for the purpose of constructing such cement bridge hauled sand and stone and placed it in the roadway at a point near where the bridge was to be constructed and on the abutment, negligently piling the stone across the traveled track at a point about eight feet west of the old bridge in such a manner as to completely obstruct the travel by a vehicle over the highway, and placing large quantities of sand on either side of the track in such manner as to cause it to run into the traveled track, thereby causing the road, The fact that the township was repairing a bridge did not relieve it from liability for leav-highway, and bridge to become defective, out ing the highway approaching the same in a defective and dangerous condition. [Ed. Note. For other cases, see Highways, Cent. Dig. 88 520, 521; Dec. Dig. 204.] 3. ADMISSION OF EVIDENCE-NO ERROR. Complaints regarding admission of evidence examined, and found to be without substantial basis. 4. TRIAL 133(1)-ARGUMENT OF COUNSEL ACTION OF Court. Certain statements made in argument by counsel assigned as error are disposed of by the prompt and sufficient action of the trial court of repair, and dangerous to travel in the ordinary way and at the usual and lawful rate of speed; that the plaintiff, with others, approached the place in an automobile at a lawful and reasonable rate of speed, and the car ran into and struck the sand in such a manner. as to upset it, throw the plaintiff out and injure him; that there were no barriers, signs, notices, or other warnings placed on the east side of the bridge to apprise him of the danger or defective condition of the highway. The jury found that there was a defect For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |