needs but an occasional keg of beer and beer | gas-fitting business in the city of Ardmore, drinking to transform a lodgeroom into a Okl. By agreement of the partners the plainnuisance. On an issue as to whether the tiff went to Ardmore to take charge of the place was an innocent lodgeroom or a nui- business at a salary of $85 per month. His sance, the sheriff's evidence was competent, salary and all other expenses were to be paid and the court's instructions (5 and 7) empha-out of the proceeds of the business, and the sized the necessity that before the defendant profits, if any, were to be shared equally. could be convicted, the jury must find from The business was a losing venture. The rethe evidence that a nuisance was being main-ceipts for six months were $3,000.10; the tained at the place described in the informa- disbursements, $3,683.62; and certain other tion at the time it was filed. The general expenditures were borne by the plaintiff perfinding of the jury must control. It is not sonally. The plaintiff closed out the business contended here that the evidence did not sup- in April, 1908, and shipped the remaining port the verdict. goods on hand to the defendants, who had an The judgment is affirmed. All the Justices independent partnership in other business concurring. elsewhere. BROOKS v. CAMPBELL et al. (No. 19876.)* 1. PARTNERSHIP 315 - DISSOLUTION Ac- TRACT. When a partnership business is closed out, a cause of action for an accounting and settlement arises between the partners, under an implied contract mutually and equally to share the profits and bear the burdens of the partnership. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 731; Dec. Dig. 315.] 2. PARTNERSHIP 321 ACTION FOR ACCOUNTING AND SETTLEMENT. A partnership business was closed out in April, 1908. An action for an accounting and settlement and for moneys due to one partner from the other partners was not begun until September, 1913. Held, that such action was barred by the statute of limitations. Code Civ. Proc. § 17, subd. 2 (Gen. St. 1909, § 5610). [Ed. Note.-For other cases, see Partnership, OF STATUTE - INTERRUPTION BY PAYMENT - A partnership of three members established a business at Ardmore, Okl. The business was a failure, and was closed out by the plaintiff, as manager, with the consent of the other partners. Two years and three months later plaintiff collected a claim against a railway company for the loss of goods shipped by him to the other partners upon closing out the partnership business. Plaintiff voluntarily placed the sum collected to the credit of the defunct partnership. Held, that such voluntary payment did not interrupt the running of the statute of limitations in plaintiff's own favor. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. 155.] This action was brought on September 19, 1913, and the later amended petition set out the foregoing facts, and pleaded the state of the accounts between plaintiff and defendants, showing a balance due him, and alleging the existence of "some unsettled accounts." His petition continues: "That certain goods shipped to the defendant at the time said business was closed were lost, and said firm had a claim against the Missouri Pacific Railway Company for the loss of said goods, which claim the defendant Walter Campbell, of said [independent] firm of Campbell & Beeler, instructed this plaintiff to collect. That he proceeded to collect the claim, but did not succeed therein until the 1st day of August, 1910, when said company paid $100 in settlement of such claim, which was placed to the credit of the firm of Brooks, Beeler & Campbell on the 1st day of August, 1910. That since the 1st day of August. 1910, each of said defendants have been absent from the state of Kansas at times for more than a total of 60 days." The plaintiff prayed for a commission to examine the books and accounts of the firm, for a determination of the partners' several interests, and for a judgment for the amount claimed to be due him from his copartners. The district court sustained a demurrer to the amended petition, and the case is here for review. [1, 2] 1. Was this action barred by the statute of limitations? There is an implied obligation between general partners that on the termination of the partnership they will account to each other and settle and pay any balances due among themselves. To bring about such accounting and settlement a cause of action will lie. Norman v. Conn, 20 Kan. 159; Turner v. Otis, 30 Kan. 1, 1 Pac. 19; Appeal from District Court, Montgomery Clarke v. Mills, 36 Kan. 393, 13 Pac. 569; County. Action by O. P. Brooks against Walter K. Campbell and another. From a judgment for defendants, plaintiff appeals. Affirmed. Brooks & Buckles, of Sedan, for appellant. Thomas E. Wagstaff and S. P. Miles, both of Independence, for appellees. 30 Cyc. 681, 713; 1 M. A. L. 762. In the petition it was alleged that the partnership business was closed in April, 1908. This action was not begun until September 19, 1913, some 5 years and 5 months thereafter. Unless the partnership business was unsettled, and we will consider that later, the plaintiff's cause of action for an accounting DAWSON, J. In October, 1907, the plain- arose in April, 1908, and was barred in tiff and defendants formed a partnership for April, 1911. If, as alleged, his partners owed the purpose of conducting a plumbing and the plaintiff a balance of money, it too was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes barred in April, 1911. Civ. Code, § 17, subd. | Miller et al., 75 Va. 442; Riddle v. White2 (Gen. St. 1909, § 5610). If there were un-hill, 135 U. S. 621, 10 Sup. Ct. 924, 34 L. Ed. settled accounts, the statute would not begin 282. They relate to partnerships being to run until they were disposed of. Bush- wound up in due course, realizing assets, nell on Limitations and Adverse Possession, satisfying debts, etc. Obviously no statute $$ 57, 66, 67, 207, 208; 2 Wood on Limita- of limitations would run in such cases. tions, § 211, and note. Here, so far as shown by the petition, the only item unsettled-that is, unpaid-was the claim agaist the railway company for a shipment of goods lost in transit. The plaintiff says that "Walter Campbell, of the firm of Campbell & Beeler, instructed the plaintiff to collect" that item. It should go without saying that the firm of Campbell & Beeler, an independent firm, had no interest in the affairs of the partnership under consideration, which was the firm of Brooks, Beeler & Campbell. But, laying aside that point as a technicality, let it be considered that Campbell, a partner of the Ardmore firm of Brooks, Beeler & Campbell, instructed the plaintiff, Brooks, to collect the claim against the Missouri Pacific Railway. He did not authorize, nor can it be fairly said from the pleadings that he directed, that the amount which might be collected from the railway company should be "placed to the credit" of the defunct firm of Brooks, Beeler & Campbell. It seems hardly fair to permit this voluntary payment by Brooks in 1910 to the defunct firm to interrupt the running of the statute of limitations in his own favor. Hancock v. Cook, 18 Pick. (35 Mass.) 30. It would be stretching language unduly to characterize the railway company as a "customer" of the defunct firm. There is, however, apparently no end of authority for holding that the cause of action for accounting and settlement between partners arises on the dissolution of the partnership, or in such a case as pleaded by appellant when "with the consent of the defendants [his partners] he closed out the business when it was found to be unprofitable, and plaintiff shipped to the defendants the stock of goods remaining on hand when said business was discontinued." Some of these authorities which we have examined in detail are: Adams v. Taylor, 14 Ark. 62; Wilhelm v. Caylor, Ex'r of Rinel, 32 Md. 151; Codman v. Rogers, 10 Pick. (Mass.) 112; Atwater v. Fowler, 1 Edw. Ch. (N. Y.) 417; Murray v. Coster, 20 Johns. (N. Y.) 576, 11 Am. Dec. 333; Appleby v. Brown, 24 N. Y. 143; Coleman v. Second Avenue R. R. Co., 38 N. Y. 201; Dwinelle v. Edey, 102 N. Y. 423, 7 N. E. 422; Gray v. Green, 125 N. Y. 203, 206, 26 N. E. 253; Coalter v. Coalter, 1 Rob. (Va.) 79; Angell on Limitations, 8 69; Wood, Limitation of Actions, 116. [3] From the foregoing we must hold that the cause of action for the accounting and settlement on the implied obligation of partners arose when the partnership business was closed out in 1908, and an action thereon filed in 1913 was barred by the statute of limitations (Civ. Code, § 17, subd. 2, and the voluntary payment to the defunct partnership in 1910 by the plaintiff did not interrupt in his own favor the running of the statute (52 L. R. A. 707, note 3). The demurrer was properly sustained, and All the Justices the judgment is affirmed. concurring. FIECHTER v. FIECHTER. (No. 19397.)* (Supreme Court of Kansas. Feb. 12, 1916.) We have examined the authorities cited by appellant. The first was the case of Green v. Williams, 21 Kan. 65, which was largely one of agency, and it was properly held that the statute did not run, because there was no demand and refusal to pay and because the agent lived in another state. The other case cited by appellant (Benoist et al. v. Markey, Tutor, et al., 25 La. Ann. 59), is much more to the point. There the firm of Benoist, Shaw, Murphy & Newman had formed a partnership in 1859. Its business was ruined by the Civil War, and there was nothing done towards a settlement of the partnership business until 1866, when suit was begun It is the duty of the judge of the district and a receiver appointed upon the appli- court to preside during the trial of cases; and where, over the objections of one of the parties, cation of the parties. Litigation of several he calls the clerk to preside at the argument of years' duration ensued. This was a plain a case and leaves the courtroom, a very slight case where the statute should not be held to showing of prejudice is sufficient to authorize a begin to run until a settlement of the partner-reversal of the judgment with direction to grant a new trial. ship affairs had been effected, and until the [Ed. Note. For other cases, see Appeal and partners could have an opportunity to com- Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. mence proceedings under the judgment set-1046.] (Syllabus by the Court.) APPEAL AND ERROR 1046 GROUND FOR REVERSAL-ABSENCE OF Judge. tling the respective rights of the liquidat- Appeal from District Court, Decatur ing partners. County. Other cases holding that the statute does Action by Jennie D. Fiechter against Ernnot under all circumstances begin to run on est E. Fiechter. From judgment for defendthe dissolution of the partnership are: Hol- ant, plaintiff appeals. Reversed and new loway v. Turner, 61 Md. 217; Jordan v. trial ordered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes H. O. Caster, of Oberlin, for appellant. J. he would have difficulty in confining the arP. Noble, of Oberlin, for appellee. guments of counsel to the real issues in the case. The plaintiff objected to the action of the judge in turning the business of the court over to the clerk, and it ought not to require very much of a showing of prejudice to authorize a new trial. There are several things in connection with this case that satisfy us that plaintiff was denied a fair trial. In a criminal case, State v. Beuerman, 59 Kan. 586, 591, 53 Pac. 874, 875, it was said in the opinion: PORTER, J. This is an ordinary suit to foreclose a mortgage on real estate. The plaintiff is the wife of the defendant, but when the suit was filed they had separated. The husband answered, admitting the execution of the note and mortgage, and alleging that they were given without any consideration. As a second defense the answer alleged that the parties were husband and wife, and that the note and mortgage were "The absence of the judge during the progress given for and in contemplation of securing a of a trial cannot be sanctioned. The argument divorce without any defense thereto, and are it is essential that it should be conducted in the of a cause is an important part of the trial, and therefore void as against public policy. The presence and hearing of the judge, who must ulcause was tried to a jury, and a verdict re-timately approve the proceedings and render turned in favor of the defendant. A motion judgment. The hearing and conduct of the arfor a new trial was overruled and plaintiff appeals. Since the trial the courthouse burned, and the stenographer's notes were lost. Plaintiff has been unable to procure a transcript of the evidence. There are no errors assigned in plaintiff's abstract; but in the brief complaint is made that the trial court committed an abuse of discretion which prevented plaintiff having a fair trial. The abstract contains this statement: "Just prior to the argument to the jury the court called upon the clerk of the district court to preside and keep time at the arguments, saying that he had himself some other matters to attend to. Whereupon the appellant objected to the court's leaving the room and objected to any one else presiding except the judge himself, saying that considerable irrelevant matter had leaked in during the trial of the case and that he feared that the argument would not be confined to the testimony. The court jokingly replied that he did not think that if he remained he would be able to keep attorneys for either side within the testimony, and left the courtroom and remained absent during the arguments." It is further stated in the abstract that during the argument the jury was told by counsel for defendant that the plaintiff was of bad moral character, and that this statement was made notwithstanding that depositions offered by the defendant for the sole purpose of attacking the personal and moral character of the plaintiff had been rejected by the court as incompetent and irrelevant. Some of the facts contained in plaintiff's abstract as to what occurred are denied by the defendant in a counter abstract, in which it is asserted that the judge remained in the courtroom during the argument to the jury of counsel for plaintiff. We think the record discloses prejudicial error. A party has a right to complain of the action of a judge in calling the clerk to preside at a trial and leaving the courtroom. This ought to be the rule in any lawsuit; and it certainly applies to a case that has been warmly contested, and where prejudice is likely to result from statements outside the record made during arguments. Apparently enough had already transpired to satisfy the judge that gument is almost, if not quite, as important as the hearing and reception of testimony; and the judge should be present to see that counsel in their arguments do no go beyond the bounds of legitimate discussion and to determine any objections that may be raised. In fact, there can be no court without a judge, and he cannot even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that transpires in the trial in ceedings upon the motion for a new trial." order that he may intelligently review the pro The judgment is reversed, and a new trial ordered. All the Justices concurring. The evidence of the plaintiff showed that the character of the work of removing the pipe which fell on the deceased and the dangers incident thereto were apparent to him, and in atdid he was sufficiently at fault to bar a recovtempting to perform such work in the way he ery. Held, the demurrer to such evidence was rightfully sustained. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 987-996; Dec. Dig. 281.] Appeal from District Court, Cowley County. Action by Dollie Udey against the City of Winfield, to recover damages for death of plaintiff's husband. From judgment for defendant, plaintiff appeals. Affirmed. Jackson & Noble, of Winfield, for appellant. James A. McDermott, of Winfield, for appellee. WEST, J. The widow of Alberta Udey brought this action for the benefit of herself Sec and her children to recover damages for the ing 15 persons in the employ of its electric death of her husband, alleging in substance light and waterworks plant, and that therethat the defendant city owned, conducted, fore the ordinary defenses of assumption of and operated for profit an electric light plant risk and contributory negligence do not apand waterworks system; that it had more ply. Assuming, without deciding, that a muthan 15 workmen continuously in its employ-nicipal corporation like the defendant, if emment in that line of business, and had not ploying the requisite number of persons in elected to come within the provisions of the such plant, should be deemed to be an employWorkmen's Compensation Act (chapter 218 er within the meaning of the act in question, of the Laws of 1911); that the deceased was it must be held that the testimony failed to in the employment of the defendant, and one show that 15 persons were thus employed. Welfelt was the superintendent and chief en- The number could not be completed without gineer of the plaintiff; that on the 21st day including mere clerical employés in the office of March, 1912, and for many years thereto- of the city clerk. The testimony showed that fore, there was a cast iron pipe about 30 feet | the plant was located at the old fair grounds, long at the old plant, which had been used where there was a stone building, as also as a conduit from the filter to the clear wa- equipment for operating the plant; that a ter basin, and was suspended about 21⁄2 feet bookkeeper and a stenographer at the city from the ground, by being fastened at one clerk's office performed the clerical duties, end to the filter and at the other end to the which included entries with reference to the clear water basin; that the deceased was light, water, and street departments. ordered by Welfelt to disconnect about 10 tion 6 provides that the act shall apply only feet of this pipe for use at the electric light to the employment in the course of the emand water plant; that in order to disconnect ployer's trade or business on, in, or about a such portion it was necessary to unbolt the railway, factory, mine, or quarry, electric rivets or screws in the joints of the pipes, building, or engineering work, laundry, natwhich Udey attempted to do under such or- ural gas plant, and all employments where der; that in trying to disconnect the pipe, in a process requiring the use of any dangerand after a part had been disconnected, such ous explosive or inflammable materials is pipe was left, for want of due care by the carried on, which is conducted for the purdefendant, suspended in midair about 21⁄2 pose of business, trade, or gain, each of feet, with only a fastening at one end, and which employments is hereby determined to without any other prop or support; that it be especially dangerous, in which, from the had been exposed, and had become weak and nature, conditions, or means of prosecution corroded; "that the defendant was guilty of of the work therein, extraordinary risk to negligence, carelessness, and want of due the life and limb of the workman engaged care in unbolting the rivets of said pipe with- therein are inherent, necessary, or substanout any props and supports, or any arrange- tially unavoidable. The title of the act is: ments therefor, and by reason thereof it "An act to provide compensation for workbroke and fell upon said Udey without any men injured in certain hazardous industries." fault upon his part, and while in perform- It is not within the letter or spirit of this ance of duty, and so bruised and wounded statute that clerical employés like the clerk him as to cause his death." The answer ad- and stenographer in the city clerk's office mitted that the city had not elected to come should be included within the list of those enwithin the provisions of the Workmen's Com-gaged in the hazardous enterprise of operatpensation Act; denied generally the allega- ing an electric light and waterworks systions of the petition, except as specifically tem. admitted; alleged contributory negligence, Considerable argument has been directed that the deceased was foreman of the old wa- to the proprietary character of the work inter plant and had for many years known volved; but, as the city makes no claim of the condition of each and every part thereof, exemption on the ground of exercising govand that if a portion of the pipe was left sus-ernmental functions, that matter need not be pended it was the result of the work of Udey, without the knowledge, direction, or consent of Welfelt or any other servant of the city. The court sustained a demurrer to the plaintiff's evidence, from which ruling he appeals. Section 46 of chapter 218 of the Laws of 1911 provides that it shall not be a defense to any employer who shall not have elected to come within such provisions that the employé either expressly or impliedly assumed the risk of the hazard complained of, or that he was guilty of contributory negligence, but such negligence shall be considered in assessing the amount of recovery. considered. [2] This leaves one question: Whether or not, considering the case as an ordinary common-law action for damages, it can be said that the court erred in sustaining the demurrer to the evidence. In other words, did the evidence of plaintiff show or tend to show actionable negligence on the part of the city? The deceased was foreman of the water lines, had been foreman a long time, had had the running of the old plant, and was well informed as to the situation and condition. It was attempted to be shown by a subsequent statement of the superintendent that the lat[1] It is contended that the defendant was ter had stepped away to find some timber or within the terms of the act by reason of hav-boards to place under the pipe to hold it up, what was necessary to be done in and about the work which he had been engaged in. True, Udey was attempting to remove the and when he returned he found that Udey was dead; but this was excluded as not part of the res gestæ. From the evidence, we have only this situation: The pipe was sus-pipe under the order or direction of the forepended above the surface of the ground, and underneath was an excavation or ditch 22 to 31⁄2 feet deep. Udey undertook to remove a portion thereof without placing any supports thereunder; that he had an S-wrench for the purpose of removing the taps from the bolts which held the sections of the pipe together; that a natural way to remove those on the underside would be to work in the ditch underneath, although by reaching over and around, the nuts could be loosened without getting underneath the pipe; that Udey was found in the ditch, crushed to death by a portion of the pipe, which had fallen upon him; that it had broken off where it joined the flanges, and the broken or largest end had fallen upon him, a part of the bolts from the flanges at the place where the pipe had broken having been removed; the wrench was in his jacket over his chest, not in his pocket, but sticking where it had been crushed in his clothing where the pipe was lying on him. No board or other material was seen near the place by which the pipe could have been supported. The foreman testified, among other things, that: "At the time Udey was killed they were undertaking to take out a piece of the pipe to take to the present waterworks and install it there as a part of its equipment; that he desired to take something like 7 feet of this pipe, and that it was to be taken between two joints, and that Udey was to commence on the 8-inch pipe; that in order to do this it would be necessary to unbolt at the joints; that Udey was taken there by him for the purpose of unbolting these joints; that there was nobody there except Udey and himself; and that he was not present when the pipe fell." man, Welfelt. But there is nothing whatever to indicate that Udey did not have as full and complete a knowledge and comprehension of the nature of the work and the dangers incident thereto as Welfelt had. On the contrary, it appears that he was quite familiar with the situation, the dangers of which were apparent. It is clear that Udey did proceed to unbolt the pipe without its being supported so as to prevent its falling when it should come apart. But in order for the plaintiff to recover some actionable negligence on the part of the city must appearnegligence which does not unavoidably involve contributory negligence or assumption of risk on the part of the deceased. In what way the body came to be in the ditch, whether by accident or design, we do not know, and verdicts cannot rest on conjecture. Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251, L. R. A. 1915F, 1000, and cases there cited. The rule that it is the duty of the master to provide a safe place to work does not apply to a place made dangerous by the very work being done. West v. Packing Co., 86 Kan. 890, 122 Pac. 1024. And in attempting to remove the pipe without support the work necessarily became more and more dangerous as it progressed, a fact which must have been apparent to the deceased. But, aside from all this, if we assume or infer from the evidence that the death was caused by a fall of the pipe resulting from Udey's being put to work in a place unsafe because the pipe was not supported, and that in thus putting him to work the city, through its superintendent, was guilty of negligence, it is still inescapable that the danger was apparent to him, as well as to the superintendent, and that he was equally at fault, or sufficiently at fault, in proceeding without complaint, and without taking measures to protect himself, to bar a recovery. Metz v. Railway Co., 90 Kan. 463, 135 Pac. 578, 2 M. A. L. 396. He testified that it would have been possible for any one working there to put a board under the end of the pipe, as the piece they were working on had to be unbolted near the filter tub. A witness, H. B. Dix, testified that the bolts had all been removed from the flanges at the basin at the east end, and that a part of the bolts had been removed from the flanges at the place where it broke and fell on the deceased. T. B. Myers, who had been superintendent of the old water plant, testified, among other things, that while theoretically it might not be necessary to get under the pipe, from a practical point CITY OF IOLA v. MISSOURI PAC. RY. CO. of view he thought it would; that if he had been working there he would have thought the practical thing would have been to get under the pipe to loosen the underbolts, and that he thought it would be necessary; that it was necessary to shore up the pipe and keep it from falling into the ditch; that it was his judgment that it was best to shore this pipe up in the first instance in order to loosen or release the bolts; that Udey had some practical knowledge, and might know The judgment is therefore affirmed. All the Justices concurring. (No. 19904.) |