fect, expressions of the common-law duty of a carrier and in line with the dictates of common humanity. Held, that for the promulgation of such rules and the failure to warn the deceased of the dangers incident to the presence of intoxicated passengers the company is not liable; such rules being proper, and such warning being needless. Servant, Cent. Dig. §§ 308, 309; Dec. Dig. 154.] [Ed. Note.-For other cases, see Master and Appeal from District Court, Shawnee County, Division 1. Action by J. E. Drake and another against the Topeka Railway Company. From judgAfment for defendant, plaintiffs appeal. firmed. J. M. Stark, of Topeka, for appellants. Ferry, Doran & Dean, of Topeka, for appellee. WEST, J. The plaintiffs appeal from an order sustaining a demurrer to their petition. A street car conductor was shot and fatally wounded by a drunken passenger. The petition alleged, in substance, that in obedience to his company's rules, and in accordance with his duty, the deceased remonstrated with this passenger and sought to maintain order and proper conduct on the car, which angered the passenger, who upon arriving at his destination addressed profane and insulting language to the conductor, and was requested by him to leave the car, and thereupon backed out into the vestibule, and just as he was leaving the car fired the fatal shot; that the shooting was the result of the efforts made by the conductor to maintain order; that his assailant was too drunk to be responsible for his actions; and that the deceased sustained his injuries wholly and solely by reason of the rules and regulations of the company and his obedience thereof and compliance therewith. These rules are, in substance, that employés are required to exercise constant care to prevent injury to persons or property, and in all cases of doubt to take the safe side; that conductors and motormen must treat all passengers with politeness, avoid difficulty, and exercise patience, forbearance, and self-control under all conditions, and must not make threatening gestures or use loud, uncivil, indecent, or profane language, even under the greatest provocation; that no passenger shall be forcibly ejected without the order of an inspector, starter, or official of the company, unless the conduct of the passenger is dangerous or grossly offensive. No passenger shall (Supreme Court of Kansas. Dec. 11, 1915.) be ejected for mere intoxication unless dan (Syllabus by the Court.) MASTER AND SERVANT 154 INJURY TO A conductor on a street car was shot and mortally wounded by a drunken passenger who became incensed because mildly remonstrated with by the conductor, who in dealing with him followed the rules prescribed by the company for such emergencies, which rules were, in ef gerous or offensive, and then with great care, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes monstrated with the disorderly passenger | W. 589, 9 Am. St. Rep. 336, is in line with the without any attempt to eject him was the Wurtenberger Case. that he will be in danger of injury by strikers is bound to warn him of such danger—a situation not presented nor analogous to the one set up in the petition. Howe v. Buffalo, N. Y. & Erie R. R. Co., 37 N. Y. 297, involved the liability of the company for the ejection of a passenger by its conductor, who in obedience to its rules refused to take a ticket issued by another company. The conductor was sued and held liable, and this decision fixed the liability over of his employer. cause of the injury, in the sense that it can Holshouser v. Denver G. & E. Co., 18 Colo. be attributed to the negligence of the com- App. 431, 72 Pac. 289, holds that an employpany. It is alleged that the effect and pur-er who puts an employé at work knowing pose of such rules were to benefit and protect the defendant's property, and to protect it from the claims of passengers arising on account of the wrongful acts of other passengers, and that such rules wrongfully placed the deceased in a situation of danger. But the rules appear to be but a fair expression of the common-law duty devolving up on common carriers, and also the natural duty which would be required by the dictates of humanity, and in no just sense can it be said that the rules made the car a place of danger to the conductor, because it is apparent that it was the malevolence of the murderous passenger that made the place dangerous and caused the injury. No liability can arise save from failure of duty. While it is argued that the company owed it to its employé not to make the rules quoted, and also the affirmative duty to warn him, it is apparent that such rules were quite fair to him; their natural effect being to avert, rather than to court, danger. A conductor soon becomes more familiar with the passengers on his run than the officers of the company, and no conductor need be told what everybody knows that a drunken man is likely to be dangerous. He was told by the rules, however, how to act when such a character had to be dealt with, and, had he exceeded them and attempted to assault, eject, or resist his assailant more promptly or more forcibly than he did, he would probably have only met his mortal injury the sooner. T. & N. O. Ry. Co., v. Echols, 87 Tex. 339, 27 S. W. 60, 28 S. W. 517, declares the doc trine that, while it is the master's duty to make rules for the safety of his employés in a complex business, in a work which an ordinary workman can readily understand, and which involves no dangerous machinery or extra hazard, such rules are not required. Herr v. Green, 156 Iowa, 532, 136 N. W. 511, 137 N. W. 917, was the ordinary case of a servant ordered to perform a dangerous task; his obedience not carrying with it an assumption of risk. Kelly v. Shelby R. Co., 22 S. W. 445, 15 Ky. Law Rep. 311, is somewhat similar in fact and effect to the Holshouser Case; the plaintiff's nonsuit being affirmed. In Holmes v. Southern Pacific Co., 120 Cal. 357, 52 Pac. 652, a rule of the company that a stick must be used in making certain couplings was held to be void if impracticable, and it was declared that the nonobservance of such a rule would be no defense. Counsel rely on cited authorities, a numWarn v. N. Y. C. & H. R. R. R. Co., 80 ber of which will be briefly noticed. Wur-Hun, 71, 29 N. Y. Supp. 897, holds that a cortenberger v. Railway Co., 68 Kan. 642, 75 poration, in making rules for its employés, Pac. 1049, declared the rule that, where a must use ordinary care to anticipate and master orders a servant into a place of dan- guard against dangers. Our attention is callger, he will not be denied a recovery for an ed to Labatt on Master and Servant, §§ 7416injury received in consequence of his obedi- 7430, as a side light on this case. These secence on account of contributory negligence tions discuss actions against employers for or assumption of risk, "unless the danger injuries caused by their servants, especially was so glaring that no prudent man would in assault cases, but do not touch upon an have entered into it, even under orders from action by a servant against his company for one having authority over him." There the an assault committed by a passenger. workman while operating a hydraulic jack expressed his fears of its condition, but was assured of its safety by the foreman and directed to proceed. In Railroad Co. v. Morris, 76 Kan. 836, 93 Pac. 153, 13 L. R. A. (N. S.) 1100, a similar ruling was made; the injured party having been ordered to stop a . moving car in accordance with certain rules of the railroad company. It was said in the opinion that he was required to be loyal as well as to be careful, and the same might be said of the conductor in this case, which presents no situation of an employé suddenly ordered into a place of danger. Stephens v. Hannibal & St. J. Ry. Co., 96 Mo. 207, 9 S. The case principally relied on is Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160. There a carpenter, while engaged in tearing away some boards from a fence inclosing a lot owned by the defendant, was shot by some one who claimed possession of the lot. The trial court instructed that, if the defendant knew or had reason to believe that resistance would be offered, it was his duty to impart such knowledge to his employé. This was held proper, and it was said: "The general principle which forbids the employer to expose the employé to unusual risks in the course of his employment, and to conceal from him the fact of such danger, is not affected by the fact that the danger known to the em ployer arose from the tortious or felonious purposes or designs of third persons acting in hostility to the interests of the employer and through agencies beyond his control." 44 Cal. 192, 13 Am. Rep. 160. It is true that the petition alleges that the officers of the company were more experienced in the operation of street cars than the deceased, and well knew that the rules would place him in a situation of danger and were enacted for the purpose of protecting the company from claims of passengers arising from the wrongful acts of other passengers. It was alleged that the defendant had not elected to come within the provisions of the Compensation Act (chapter 218, Laws of 1911), and it is urged that for this reason it cannot plead assumption of risk. But, while the petition was demurred to, and hence assumption was not pleaded, the fact remains that no defense need be pleaded until a cause of action is stated, and none can be stated without alleging some failure of duty. already indicated, we are unable to deduce such failure from the averments of the petition, and are therefore constrained to hold that the demurrer was rightfully sustained. The judgment is affirmed. All the Justices concurring. force that the evidence introduced, if given its widest scope and most liberal interpretation, does not tend to establish a defense. The defendant does not undertake to meet this argument upon the merits, but insists that the granting of a new trial was within the discretion of the trial court, and cannot be reviewed here. The motion for a new trial set out four grounds: (1) Abuse of discretion of the court, misconduct of the plaintiff, accident, and surprise; (2) erroneous trial rulings; (3) that the verdict was contrary to the evidence; and (4) newly discovered evidence. The fourth ground may be disregarded, since no affidavits were filed, as required by the Code. Civ. Code, § 307 (Gen. St. 1909, § 5901). No proceedings are pointed out to which the first and second may apply, and none are apparent from the record brought here. If the evidence had presented an issue of fact on which the case had been submitted to the jury, the power of the trial court to grant a new trial on the third ground could not be doubted, since without its approval the verdict would not support a judgment. K. C., W. & N. W. R. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108. But the peremptory instruction to return a verdict had substantially the same effect as sustaining a demurrer to the evidence, and a plausible argument is made that the ruling turned upon a naked question of (Supreme Court of Kansas. Dec. 11, 1915.) law and is subject to review. The practice (96 Kan: 719) GERMAN AMERICAN STATE BANK V. (Syllabus by the Court.) As APPEAL AND Error 979-Order GrantinG with respect to the two rulings, however, is not precisely similar. It has been held that, while a motion for a new trial is not a preAn order granting a new trial, after a di- requisite to an appeal from an order sustainrected verdict has been returned against the party having the burden of proof, will not being a demurrer to evidence (Wagner v. Railreversed, where for anything shown in the rec-way Co., 73 Kan. 283, 85 Pac. 299), a differord it may have been induced by a belief of the ent rule prevails upon a directed verdict for trial court that the failure to make a prima the defendant (Darling v. Railway Co., 76 facie case was excusable and capable of remedy. Kan. 893, 93 Pac. 612, 94 Pac. 202). If we [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3871-3873, 3877; Dec. were sure that the trial court granted the Dig. 979.] new trial because upon further consideration it had reached the conclusion that the evidence introduced tended to establish a de Appeal from District Court, Atchison County. Action by the German American State Bank against H. C. Goodrich. From judgment for defendant, plaintiff appeals. firmed. Af E. D. McKeever, of Topeka, and T. A. Moxcey, of Atchison, for appellant. Hazen & Gaw and J. J. Schenck, all of Topeka, and Walter E. Brown, of Atchison, for appellee. MASON, J. The German American State Bank sued H. C. Goodrich upon a promissory note. An answer and reply were filed. The burden of proof was held to rest upon the defendant. At the conclusion of his evidence the court directed a verdict for the plaintiff, upon which judgment was rendered. The defendant filed a motion for a new trial, which was granted. The plaintiff appeals. The plaintiff argues with much apparent fense, the ruling, being based purely upon a question of law, could be reviewed. But the record is silent as to why the order was made. Assuming that the answer stated a defense (and as to that matter we express no opinion whatever, the question not having been passed upon by the trial court, nor argued here), the court may have been of the opinion that, although the defendant had failed to make a prima facie case in its support, the failure, even if not due to any erroneous ruling against him, was for some reason excusable, and that justice would be promoted by allowing him another opportunity to introduce evidence. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes YOUNG v. MARTIN et al. (No. 19748.) (Supreme Court of Kansas. Dec. 11, 1915.) (Syllabus by the Court.) 1. JUDGMENT 159- DEFAULT TION TO OPEN-VERIFICATION. APPLICA An application to open a judgment obtained by publication service, which recites all the requisite facts prescribed by section 83 of the Civil Code (Gen. St. 1909, § 5676), is not void merely because the affidavit in support of such application is only verified by defendant's attorney on information and belief. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 310, 312, 313; Dec. Dig. 159.] 2. JUDGMENT 159 APPLICATION TO OPEN -VERIFICATION-AMENDMENT. When such application and affidavit are filed within time to open a judgment, such affidavit may be amended or supplemented by positive verification after the time to open the judgment would otherwise have expired. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 310, 312, 313; Dec. Dig. 159.] 3. ATTORNEY AND CLIENT 71, 103 AUTHORITY TO REPRESENT CLIENT-RATIFICATION-ISSUES EVIDENCE. In the absence of an issue squarely raised as to the right of an attorney to appear for a client, it is not error to exclude testimony to show such want of authority; and such an issue becomes immaterial when the client afterwards ratifies the acts of his attorney. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 97-101, 154; Dec. Dig. 71, 103.] Appeal from District Court, Rice County. Action by Hanna A. Young against Nancy S. Martin and others. From judgment for defendants, plaintiff appeals. Affirmed. F. Dumont Smith, of Hutchinson, for appellant. Russell & Russell, of Great Bend, for appellees. McCulley, and William R. McCulley, was effected by publication. On April 6, 1910, a default judgment was rendered against these defendants. On April 3, 1913, three days before this judgment became absolute, the defendant Vanatta and the two McCulleys filed their application to open the judgment. Notice was served on plaintiff, and the defendants' answer was attached to the application. To conform to the statute requiring the defendants in such case "to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense" (Civil Code, § 83 [Gen. St. 1909, § 5676]), their attorney filed an affidavit in part as follows: "That he is duly authorized attorney for the defendants above named; that each of the said defendants, Richard M. Vanatta, William V. McCulley, and William R. McCulley, is a nonresident of the state of Kansas, and is absent from Rice county, Kan., at the present time; davit as attorney for the said parties; that affithat this affiant has full power to make this affiant has read the above and foregoing application on behalf of the said defendants; and that the matters and things therein set forth and the allegations and averments therein contained are true, as this affiant is informed and verily be lieved." When the application came on to be heard, the court took it under advisement; and thereafter the defendants, by leave of court, filed amended and supplemental affidavits sufficient in scope and form to warrant the court in granting their application if they had been filed in time. The court granted the application, and set aside the judgment as to these defendants; but later the attorneys withdrew their appearance for the Mc-. Culleys, and the judgment was reinstated as to them; and after a hearing, Richard Vanatta was adjudged to have an interest in the land in controversy. The appellant offered to prove by the defendant Richard Vanatta that he personally did not know of the pendency of the action prior to April 6, 1913, and that he had not employed or authorized any attorney to appear for him prior to that date. This proffered evidence was excluded. In substance the errors assigned are: (1) Opening of the judgment on the affidavit filed by counsel "on information and belief”; and (2) the exclusion of evidence. [1] 1. Counsel for appellant concedes that the first of these is practically the only question in the case. It would be gratifying if we could say that the authorities and precDAWSON, J. This appeal chiefly presents edents on this question were clearer and the narrow question whether an application more harmonious. We do find, however, a is sufficient to open a judgment obtained by strong analogy between the present question publication service when verified by defend- and those which have arisen on publication ant's attorney "on information and belief." service initiated on defective affidavits. Any The facts in brief were these: On January | valid judgment must be based on valid serv12, 1910, the plaintiff brought a suit to quiet ice. A valid service by publication can be title to a quarter section of land in Rice based only on a positive affidavit. But this county. Service on some of the defendants, court has repeatedly held that, while an afincluding Richard M. Vanatta, William V. fidavit for publication service, verified only "on information and belief," is invalid, it is not void, and even after judgment such defective affidavit may be amended by positive verification. Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Long v. Fife, 45 Kan. 271, 25 Pac. 594, 23 Am. St. Rep. 724; Morris v. Robbins, 83 Kan. 335, 111 Pac. 470. These cases likewise show that mere formal defects may be corrected by amendment. mon that the attorney, the agent, must act upon his own judgment, skill, and learning, and depend upon his client's later acquiescence. Here the defendant Vanatta was present in the courtroom, presumably advising with his counsel and ratifying what his counsel had already done in his behalf. Dresser v. Wood, 15 Kan. 344, syl. 6; 4 Cyc. 927. This judgment is affirmed. All the Justices concurring. (96 Kan. 666) ELLSWORTH et al. v. TRINKLE.* (No. 19578.) Dec. 11, 1915.) [2] What is the purpose of affidavits to support an application to open a judgment? It is "to make it appear to the satisfaction of the court" that the defendants had no actual notice of the action in time to appear and make their defense. The important mat- (Supreme Court of Kansas. ter is the fact of their want of notice, and that the court be satisfied on that point. If the affidavits recite all the necessary facts 1. to challenge the attention and conscience of the court, it would be a hard rule to hold that because of defective verification, or verification in the only way an attorney employed by a nonresident client could verify, the chancellor should have regard to the form rather than the substance of the plea before him. We think the analogous cases already cited must govern here. Assuming that the verification of counsel "on information and belief" was invalid, it certainly was not void. It could be amended or supple mented by positive affidavits while the application was still pending, even though the three years had elapsed ere they were filed; and the district court did not err in opening this judgment on the showing thus made. (Syllabus by the Court.) CORPORATIONS 117, 121-PARTIES ——15 -CORPORATE STOCK-SALES-ACTION TO RE- The evidence examined, and held sufficient [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 504-506; Dec. Dig. 117, 121; Parties, Cent. Dig. § 14; Dec. Dig. 15.] 2. DAMAGES 67-ALLOWANCE-ACTION FOR MONEY WRONGFULLY OBTAINED. repay money wrongfully obtained, and in an acThe law implies a promise immediately to tion to recover the price of shares of corporate stock, which the plaintiff was induced to buy erly allowed by way of damages for retention through the defendant's fraud, interest is propof the money during the time the defendant had the use of it. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 135, 136; Dec. Dig. 67.] Appeal from District Court, Miami County. Action by W. E. Ellsworth and others against Charles F. Trinkle. From judgment for plaintiffs, defendant appeals. Affirmed. Charles F. Trinkle, of La Cygne, for appellant. Sheridan & Sheridan, of Paola, for appellees. the defendant appeals. [3] 2. Complaint is made because the court would not permit the defendant Vanatta to be questioned by plaintiff's counsel to show that prior to April 6, 1913, he had no knowledge of the pendency of the action to quiet plaintiff's title against him, and that prior to that date he had not employed the attorney who made the affidavit in his behalf. April 6, 1913, was the date on which the BURCH, J. The action was one to rethree years allowed by the statute to open a cover the price of shares of corporate stock, judgment on publication service would ex- which the plaintiffs were fraudulently inpire. Vanatta's attorney had filed his ap-duced to buy. The plaintiffs recovered, and plication, notice, and affidavit on April 3d. If the court had permitted this evidence, it would have been another item of testimony to show that on equitable grounds the judgment should have been opened-the matter about which plaintiff principally appeals. We search this record in vain to find that any issue was squarely raised challenging the right of counsel to appear for Vanatta (4 Cyc. 928), applying the elementary rule of principal and agent that when the principal afterwards ratifies the act of the agent and adopts it as his own, it is no concern of others that the agent's act did not, in the first instance, have the positive sanction of his principal. This rule is even more elastic where the principal and agent are client and attorney, for in such cases it is very com [1] W. I. Ellsworth is the husband of Helen B. Ellsworth, and W. E. Ellsworth is their son. The three were named as plaintiffs, and the contention is they should have sued separately. There was sufficient evidence that the money paid for the shares of stock came from a common fund to sustain the special finding of the jury that the stock was paid for jointly. On discovering that they had been defrauded, the plaintiffs made a search for the defendant for the purpose of returning the certificates of stock. The search was continued for several days, but the defendant could not be found, so tender was made in the petition and at the trial. The doctrine of tender has been rationalized in recent times, For cther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |