A. Smith Devenney and Cook & Gossett, for plaintiff in error. Waggener, Doster & Orr and Humbert Riddle, for defendant in error.

PER CURIAM. The trial court was not warranted in sustaining the demurrer to plaintiff's evidence. There is testimony that Hurdle, the deceased, in going to and from his work had used a railroad velocipede on the railroad track for years with the knowledge and consent of the company; that the engineer had some reason to believe that Hurdle would be upon the track about the time that he was run down and killed; that the engineer was looking along the track and must have seen Hurdle a distance of about 600 feet from the point of collision, and that the engineer did not give any signal or warning of approach until just before the collision. Leaving out of consideration the character of Hurdle's license to run the velocipede over the track, whether he had a right to rely upon the giving of certain crossing signals, and whether Hurdle had reason to, or did, believe that the belated train had already passed, we still think the right of recovery was not a question of law for the court. Even if Hurdle was careless in going upon the track. it would be no excuse for the engineer to recklessly run him down. If the engineer saw Hurdle and ran most of the intervening distance without giving warning, or using the ordinary means to save his life, it was a reckless, wanton act, and the company cannot rely upon Hurdle's negligence to protect it from liability. It was admitted by the engineer that he was on the lookout and that he saw Hurdle about 100 yards away when he sounded the whistle and applied the air brake. Other witnesses say, however, that Hurdle was in sight of the engineer about twice that distance, and also that the engineer did not sound the whistle until about the time that the engine struck and killed Hurdle. If it be granted that the engineer blew the whistle about 100 yards away, as he stated, there is still testimony to the effect that he must have run about 300 feet while in sight of Hurdle, without giving any warning or taking any precautions to avert the injury. If that be true, his action may justly be characterized as recklessness. Had the warning been given when he was 600 feet away Hurdle might possibly have thrown himself from the track and saved his life. Whether it was a reckless injury by the engineer, or whether recovery is barred because of Hurdle's own negligence, are questions for the determination of a jury.

Viewing the testimony in the light most favorable to the plaintiff, and allowing ali reasonable inferences in his favor, we think the demurrer to the evidence should have been overruled, and therefore the judgment of the court will be reversed, and the cause remanded for further proceedings.

(73 Kan. 324)

WISNER v. BOARD OF COM'RS OF

BARBER COUNTY et al. (Supreme Court of Kansas. March 10, 1906.) HIGHWAYS ALTERATION - DEFECTIVE PETI

TION.

A defective statement of the change prayed for will not render void a petition for the alteration of a public road, where, notwithstanding such defect, the purpose of the petition can be gathered from the language used.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Highways, § 240.]

(Syllabus by the Court.)

Error from District Court, Barber County; P. B. Gillett, Judge.

Proceedings by the board of county commissioners of Barber county, Kansas, and J. H. Light, for the alteration of a highway. From a judgment of the district court, holding the petition for the alteration sufficient, Sarah E. Wisner brings error. Affirmed.

Noble & Tincher, for plaintiff in error. C. C. Coleman, Atty. Gen., and Samuel Griffin, for defendants in error.

MASON, J. A petition was presented to the commissioners of Barber county for the alteration of a highway. Viewers were appointed, and upon their report the board ordered the desired change. Mrs. Sarah E. Wisner, a landowner whose interests were affected, filed a petition in error in the dis trict court attacking the validity of the proceedings upon the ground that the road petition was void and conferred no jurisdiction on the county board for the reason that it did not intelligibly indicate what action the petitioners wished to have taken. The district court held that the petition was sufficient, and rendered judgment accordingly. Mrs. Wisner prosecutes error.

The road petition in question reads as follows: "The undersigned petitioners. householders of the county of Barber, state of Kansas, and residing in the vicinity of the road herein prayed for, respectfully petition your honorable body to cause to be reviewed, altered, and changed, the following described road, viz.: Road No. 141-Commencing at the southeast corner of the southwest quarter (4) of the southwest quarter (4) of section three (3) township thirty-two (32) south of range (10) west of the sixty P. M., thence north on quarter line according to the Tweedale survey of 1884 to intersect original road, No. 141, said road to be forty feet wide. And your petitioners will, as in duty bound, ever pray," etc.

The defendant in error maintains that the obvious meaning of this is that the petitioners ask that road 141 be changed so as to conform to the description given. The plaintiff in error insists that to bave that effect the petition should have employed some such formula as the following: "To cause to be reviewed, altered, and changed the following numbered road, viz., road No. 141, so that said

road shall be located as follows: Commencing," etc. Clearness would doubtless have been promoted by such a statement, but we think the form that was used was capable of being construed to mean the same thing. It is plain that such is the meaning intended, or that there is an entire failure to express any intelligible idea. The effort should of course be to give force to the language employed if possible, rather than to reject it as meaningless. We think the court properly held that the petition was sufficient.

The district court dismissed the petition in error instead of affirming the action of the commissioners, but, as it is manifest from the record that the ruling was made upon the merits of the controversy, the form of the order is not regarded as material.

The judgment is affirmed. All the Justices concurring.

(73 Kan. 279)

SAMP et al. v. BRADEN. (Supreme Court of Kansas. March 10, 1906.) ERROR, WRIT OF-DISTINCT JUDGMENTS-JU

RISDICTION.

Where several and distinct judgments, each for less than $100, are rendered against different defendants upon their individual liabilities as stockholders in a corporation, they cannot, by aggregating the judgments and uniting in a proceeding in error, give the Supreme Court jurisdiction, although the judgments were rendered in the same action and involved common questions of law.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 276-279.] (Syllabus by the Court.)

Error from District Court, Allen County; Travis Morse, Judge pro tem.

Action by S. H. Braden, receiver of the Elsmore Creamery Company, against Fred Samp and Rudolph Kamping. Judgment for plaintiff, defendants bring error. Dismissed.

Chris Ritter and W. A. Choguill, for plaintiffs in error. McClain & Apt (Oscar Foust, of counsel), for defendant in error.

JOHNSON, C. J. S. H. Braden, as receiver of the Elsmore Creamery Company, brought an action against Fred Samp and Rudolph Kamping to recover upon their individual liabilities as stockholders of that company. They contested their liability upon various grounds, but the court found in favor of the plaintiff, and rendered judgment against Rudolph Kamping for $100, and another judgment against Fred Samp for $100. Although the judgments were embraced in a single entry they were distinct, and were founded upon single shares of stock, each of the face value of $100. Both defendants joined in this proceeding, asking for a reversal of the judgments, but the right to a review is challenged on the ground that the amount or value in controversy is not sufficient to give the court jurisdiction. Under the Code the appellate jurisdiction of the 85 P.-19

court cannot be exercised in cases of this character "unless the amount or value in controversy, exclusive of costs, exceeds $100." Code Civ. Proc. § 542. Neither of the judgments exceeds $100, and the question arises, can the defendants by uniting in one proceeding and aggregating their judgments confer jurisdiction upon this court? There was no joint liability of the defendants, nor is there any unity in the judgments. While both are in favor of the same plaintiff, and were rendered in the same action, each is based upon an independent and individual liability, and they stand as distinct and separate as if they had been awarded in different actions against each defendant. Neither defendant is concerned whether the judgment against the other is affirmed or reversed, nor would the compromise or settlement of a judgment by one defendant affect the liability of the other. Either one might settle the judgment against himself without the consent of the other, and if he did so, it would be clear that there would be no jurisdiction to review the remaining judg ment. While these judgments grow out of the same corporate transactions, and involve some common questions of law, they are not tied together by any common interest, and they must be separately enforced. As to each defendant the judgment against him fixes the amount or value in controversy; and, since neither judgment is sufficient in amount to authorize a review, jurisdiction cannot be obtained by the defendants aggregating judgments which are several and distinct. Richmond v. Brummie, 52 Kan. 247, 34 Pac. 783; Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118; McClelland v. Cragun, 54 Kan. 599, 38 Pac. 776; Zable v. Harris, 82 Ky. 473; Oswald v. Morris, 92 Ky. 48, 17 S. W. 167; Henderson v. Wadsworth, 115 U S. 264, 6 Sup. Ct. 40, 29 L. Ed. 377; Hassall v. Wilcox, 115 U. S. 598, 6 Sup. Ct. 189, 29 L. Ed. 504; Merritt v. Hozey, 4 Rob. (La.) 319; State National Bank v. Allen, 39 La. Ann. 806, 2 South. 600; Samson's Estate, 201 Pa. 591, 51 Atl. 325; Davis v. Upham, 191 Ill. 372, 61 N. E. 76.

The proceeding in error will be dismissed. All the Justices concurring.

Israel Moore & Co., for plaintiff in error. Paul R. Nagle, for defendant in error.

GREENE, J. The plaintiff in error brought his action for divorce alleging extreme cruelty. When he had introduced his evidence, the court sustained a demurrer thereto on the ground that his cause of action was barred by the statute of limitations. It is agreed that the alleged cruelty and the sen aration occurred March 12, 1897, and the petition for divorce was filed August 6, 1904. The attorneys are to be complimented for the brevity of the record. The case-made, the certificate of the judge thereto, and the filing of the clerk of the district court, together with the entry of appearance herein, cover less than one page, and present clearly all the questions in the case.

The law of divorce has been treated in this state as a separate subject, and article 28 of chapter 80 of the General Statutes of 1901 enumerates the causes for which divorces may be granted and the procedure therein. With the exception of the manner of obtaining service of summons, no reference is made, directly or impliedly, to other provisions of the Code. The article contains no limitations upon the time within which the action may be commenced. The general statutes of limitations either specifically name the different causes of action to which the limitations apply or define the nature of such causes, so that the different limitations and the causes to which they apply are easily understood. In these statutes none of the causes for divorce are specifically named, nor can any of such causes be classified with those which are defined in the statute. Some states have fixed the time within which an action for divorce may be commenced after the offense. With few exceptions, these statutes are generally applied to adultery. Independently of the statute, long delay in commencing the action has frequently been taken into account in determining the sincerity of the party, but it has always been held a subject of explanation, and has never been held to be a bar. Bishop on Marriage, Divorce, and Separation, vol. 2, c. 12.

The judgment is reversed. All the Justices concurring.

(73 Kan. 312)

ZIBOLD et al. v. RENEER. (Supreme Court of Kansas. March 10, 1906.) 1. INTOXICATING LIQUORS-CIVIL DAMAGE SUIT-REMOTE AND PROXIMATE INJURIES.

Under section 2465 of the General Statutes of 1901, if a wife be injured in her means of support as the result of an act committed by her intoxicated husband, the person who shall have sold or given to him the liquors, the use of which shall have produced the intoxication, will be liable to her in damages. This statute creates a cause of action unknown to the common law, and authorizes a recovery for both proximate and remote injuries.

[Ed. Note. For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 454.]

2. SAME-PETITION-CONSTRUCTION.

Where, in an action by a wife for loss of means of support against one who is claimed to have sold her husband intoxicating liquors, by the use of which he became intoxicated, it is alleged in the petition that, while so intoxicated, he committed a homicide, was convicted of murder in the first degree, and sentenced to death and confinement in the penitentiary, until such time as an order should be issued by the Governor for his execution, the allegation that he was convicted of murder in the first degree is not, as a matter of law, equivalent to an allegation that he was not intoxicated when he committed the homicide.

(Syllabus by the Court.)

Error from District Court, Atchison Coun ty; B. F. Hudson, Judge. Action by Ruth Reneer against Rosina Zibold and Emma Haegelin. Judgment for plaintiff, and defendants bring error. Affirmed.

Waggener, Doster & Orr, for plaintiffs in error. C. D. Walker and J. L. Berry, for defendant in error.

GREENE, J. Ruth Reneer obtained a judgment against Rosina Zibold and Emma Haegelin upon a petition stating, substantially, that she is the wife of William Douglas Reneer; that the defendants were partners engaged in the manufacture and sale of intoxicating liquors, especially of beer, near the southwest part of the limits of the city of Atchison; that on Sunday, June 3, 1900, the defendants and their authorized agents, Carl Sheele and Kelly Haegelin, at the brewery of the defendants, unlawfully sold, furnished, and gave to plaintiff's husband, and J. Burchart, and C. T. Oathout, quantities of beer, which they drank, thereby becoming intoxicated and being made boisterous, quarrelsome, and wholly indifferent and oblivious to conditions surrounding them; that while in this condition William D. Reneer shot and instantly killed Burchart and Oathout; that in consequence thereof he was informed against, tried, and convicted of murder in the first degree, and was on the 15th day of December, 1900, sentenced to death, and committed to the penitentiary, there to be confined and kept at hard labor until his execution upon a warrant of the Governor of the state; that he still remains so confined, and will ever continue to be, until he shall be executed. A statement follows concerning the earning capacity of William D. Reneer, and his age, and the plaintiff's dependence upon his labor and personal earnings for her means of support, of which she was deprived as a result of the intoxication of her husband produced by the use of the beer SO furnished by the defendant to him. A demurrer was interposed to this petition, which overruled. A trial had, and a verdict and judgment rendered for the plaintiff in the sum of

was

was

$5,000. This proceeding is prosecuted to reverse the judgment.

Several assignments of error are argued at length in the briefs. The two vital questions, however, are presented by the demurrer to the petition. It is contended: First, that the petition shows upon its face that the sale of the intoxicating liquors by the defendants to the plaintiff's husband was not the direct and proximate cause of her loss; second, that the peti tion states that Reneer was convicted of murder in the first degree for the killing of Burchart and Oathout, which is conclusive that he was not intoxicated when he committed the homicide; and therefore the act of the defendants in furnishing the intoxicating liquors was not the remote cause of plaintiff's loss of means of support.

There is no principle better settled at common law than that recoverable damages must be the proximate result of the wrongful act complained of, or that the wrongful act complained of must be the immediate and proximate cause of the injury for which a recovery is sought. Assuming that if the plaintiff be confined to this common-law rule she cannot succeed in her action, the demurrer to the petition should have been sustained, because the sale of the intoxicating liquors to Reneer and his intoxication from the use thereof were not the immediate and direct cause of the plaintiff's loss. The murder, arrest, trial, conviction, and sentence, resulting in the confinement of her husband in the penitentiary, constitutes an independent intervening cause, which was the proximate cause of her loss of support. Under the common-law rule the furnishing of the intoxicating liquor was only the cause of the cause. The statute under which plaintiff seeks to recover reads: "Every wife,

* * *

who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, shall have a right of action, in his or her own name against any person, who shall by selling, bartering, or giving intoxicating liquors, have caused the intoxication of such person for all damages, actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried. .* St. 1901, § 2465.

Gen.

Similar statutory provisions are found in several of the states, but the decisions of the courts construing them are not in harmony on the proposition contended for by plaintiff in error. By the act of February 27, 1873, regulating the sale of intoxicating liquors, the Indiana statute provided: "In addition to the remedy and right of action provided for in section

*

eight of this act, every husband, wife, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, shall have a right of action against any person, or persons who shall, by selling, bartering, or giving away intoxicating liquors have caused the intoxication, in whole or in part, of such person." Laws 1873, p. 151, c. 59, § 12. In the case of Krach et al. v. Heilman, 53 Ind. 517, Krach sold and furnished intoxicating liquors to Heilman, of which he drank until he became so intoxicated that he was compelled to lie down in the bottom of his wagon while returning home. A barrel of salt in the wagon fell upon him causing his death. His widow brought an action to recover damages for her oss of means of support, and the court held that she could not recover because the selling of the intoxicating liquors to Heilman was not the immediate and proximate cause of the plaintiff's loss. It was said in the opinion (page 523): "The rule of law is that the immediate, and not the remote, cause of an event is regarded." The court's attention does not appear to have been turned to the statute under which the right of action was given, nor does there appear to have been any attempt to discover its meaning. No reference is made to the provision of the statute which gave the cause of action, nor any attempt made to construe it, or give its language any meaning, except to determine that it created a new cause of action. The doctrine of this case was followed in Collier v. Early, 54 Ind. 559, and in Backes v. Dant, 55 Ind. 181, without comment and without any reference to the statute or to its application to such actions. Subsequently, in the case of Dunlap v. Wagner, 85 Ind. 529, 44 Am. Rep. 42, the court criticised Krach v. Heilman, supra, and the cases following it, in this language: "It is difficult, if not impossible, to reconcile the doctrine of the case under immediate mention with the earlier cases of Fountain v. Draper, supra [49 Ind. 441], English v. Beard, supra [51 Ind. 489], and Barnaby v. Wood, supra [50 Ind. 405], or the later one of Schlosser v. State ex rel., 55 Ind. 82. Nor has the doctrine anywhere found favor; on the contrary, it has been disapproved." Page 533 of 85 Ind. (44 Am. Rep. 42). In the later case of Homire v. Halfman, 156 Ind. 470, 60 N. E. 154, the defendant sold intoxicating liquor to plaintiff's husband by the use of which he became intoxicated, and while intoxicated shot and killed Seth Nease, for which he was convicted of murder and confined in the penitentiary. The action was to recover damages for loss of support under a statute somewhat different in form, but in substance and effect identical with the one before the court in

Krach v. Heilman, supra. A recovery was had, and the court quoted and relied upon the rule of construction adopted in Beers v. Walhizer, 43 Hun, 254, infra. From an examination of these cases it will be seen that the common-law rule of recovery announced in Krach et al. v. Heilman, supra, is not now the law in Indiana. The Indiana statute is worded like our own, except that ours uses the words "in consequence of such intoxication," where the Indiana statute uses the words "on account of the use of such intoxicating liquors so sold."

Our attention is also called to the cases of Shugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359, Schmidt et al. v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446, and Schulte v. Schleeper, 210 III. 357, 71 N. E. 325, wherein that court, in construing a statute substantially like our own, held that the furnishing of the intoxicating liquor must be the proximate cause of the injury or loss for which a recovery is sought, or, in other words, that the common-law rule, was not changed by the statute. It is probable that there are other states which have adopted the Illinois rule of construction, and, while such precedents are of great weight, the reasoning is neither convincing nor satisfactory. The Legislature created a right of action unknown to the common law. In creating this new right, it could, and did, extend the rule to include consequential and remote damages.

The excessive use of intoxicating liquors as a beverage is an unmixed evil. The only purpose accomplished by it is to breed and propagate vice. The legislative shafts have been leveled at this practice in nearly if not every state, and in almost every conceivable manner which looked toward its regulation, control, or entire suppression. It is quite in accord with this policy that Kansas passed the statute invoked by the defendant in error. It was known to the Legislature, as it is to all other persons, that the use of intoxicating liquors as a beverage makes drunkards; that an intoxicated person is incapable of caring for himself, is always in danger of being injured, and is likely to inflict injury upon athers, at the cost of his liberty, possibly his life; that he habitually neglects his business and family; that the harm resulting from the excessive use of intoxicating liquors always falls most pitilessly upon the dependents of the user, not infrequently pauperizing himself and family. The idea naturally suggested itself to the Legislature that, if the sellers of intoxicants were made liable to those who should sustain injury to person or property or means of support, by an intoxicated person or in consequence of intoxication, the hazard would be so great that fewer persons would engage in the business, and those who would engage in it would exercise more caution. The Legislature therefore gave a cause of action and

created a liability for these injuries where none existed at common law. It is apparent that it was the intention of the Legislature to make this remedy effective and of practical utility, and that its enforcement should not be hampered by technical common-law rules. It was intended to provide a remedy against the persons furnishing the liquor which should produce the intoxication, where the injuries sustained in person, property, or means of support should result, in whole or in part, from such intoxication. Any other construction would, in a large measure, defeat the object of the statute. Persons who are openly engaged in a business prohibited by law, the results of which are to enrich themselves and make paupers and criminals of others, have no complaint against a liberal construction of a statute intended to make them responsible in civil damages to those who have been injured as a result of the illegal traffic in which they are engaged.

This court does not stand alone in this construction of the statute. There are many cases which hold that these statutes, creating a new cause of action, by their terms clearly eliminate the common-law rule of proximate cause, and hold that the plaintiff may recover where the loss sustained is the result of intoxication induced in whole or in part by liquors furnished by the defendant. Among these, the leading case is Beers v. Walhizer, supra. The statute under consideration was substantially like ours. The facts upon which the plaintiff relied were that the defendant sold her husband intoxicating liquors, the use of which caused him to become intoxicated, and while intoxicated and in consequence thereof he shot and killed one Barfield, for which he was arrested, convicted, and sentenced to a term of years in the penitentiary. The contention there, as here, was that the selling of the intoxicating liquor was not the proximate cause of the loss sustained by the plaintiff. It was said in the opinion: "Under the act it is necessary that two facts should concur, besides the sale or gift of the liquor by the defendant, to constitute a cause of action, to wit, intoxication resulting from its use, in whole or in part, and the loss of the means of support by the plaintiff in consequence of such intoxication. The statute requires nothing more. The act itself establishes a rule of evidence, applicable to and controlling in all cases arising under its provisions, which in some respects is new, and has produced a radical change of the common-law rule. The statute makes no distinction whether the loss of the means of support is the direct or remote result of the intoxication. It only requires that it should be established that the loss of the means of support is the result of such intoxication." This doctrine was approved and followed in Homire v. Halfman, supra. In Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, the court said: "The Legislature * * may change the rule of the common law, which