dren, if necessary for that purpose." Page 307 | the plaintiff to the defendant should be de of 85 Kan., page 830 of 116 Pac. The word "trust" does not occur in that opinion, except in stating the terms of the decree. In the original opinion in the present case the court said: "The divorce decree charged the defendant with the duty of maintaining and educating the children. In order that the defendant might have means with which to discharge that duty, the court gave her the land in controversy. It was supposed the land would be a source of income, and the purpose was that such income should be devoted, so far as might be necessary, to the support of the children during their minority. That was the full extent of their interest.' Greenwood v. Greenwood, 96 Kan. 591, 597, 152 Pac. 657, 659. stroyed. The contract embraced two sub- There is not a word here about any trust, and in the paragraph just preceding the one quoted the court had pointed out that essential elements of a trust were wanting. If the defendant had complied with her contract and had surrendered possession of the land, the children would have had no stand-stage properties employed to give scenic efing in court as beneficiaries of a trust to call the defendant to account as their trustee. In the original opinion it was said that certain facts which were summarized were fect to the defendant's presentation of her case and had nothing whatever to do with the merits of the book. One of the defendIt is said that the present decision con- ant's counsel feels aggrieved at the remark flicts with the decision rendered in the case as a personal reflection upon him. Instead of Greenwood v. Greenwood, 85 Kan. 303, of meaning to reflect upon the counsel, the 116 Pac. 828. The court not only upholds court undertook to give the best turn it that decision as stare decisis, but fully ap- could to a serious matter with reference to proves it. The decision was that the divorce which he stood on narrow ground. On the court had no power to cancel or set aside face of the brief, his denunciation of the the contract between the plaintiff and the plaintiff and his denunciation of the decision defendant "so far as such contract in no re- of the trial court went dangerously near the spect interfered with the rights of the chil- limit of propriety. Printed briefs which bedren" (Syl.), but that the interest of the chil- come records of this court are not proper dren might be protected. The divorce court vehicles for invective against persons. The had original and continuing power to make attorney for the plaintiff remonstrated any reasonable order for the support of the against the intemperance of counsel's lanchildren. Having made an order upon that guage. In a reply brief counsel disclaimed subject, the parties to the decree could not any personal reflection upon the trial judge take away that support, and any attempt to for making a decree resulting in "monstrous do so, or to substitute some other kind of iniquity." The disclaimer is accepted, but support, would have no effect on the rights it would have been better had it been extendof the children. But the divorce court, nei-ed to include an explanation of what was ther at the time of the original decree nor at the time when the attempt to cancel the contract was made, had any power to lay its hand on a contract between the plaintiff and the defendant further than might be necessary to protect the children. With the validity and the binding quality of the contract as between the plaintiff and the defendant the court had nothing whatever to do. It was concerned solely with the results of the contract on the rights and interest of the children, and had no concern whatever with the results of the contract on the rights and interests of the contracting parties as between themselves. The divorce court conceived that the interests of the children ex-ment that he believed the facts referred to tended so far as to require cancellation of the contract, and as a consequence the cancellation of the defendant's obligation to the plaintiff. This court reversed the judgment because it was not necessary, in order to meant by characterizing the result of the decision as "abhorrent to the dullest sense of justice," and what was meant by twice drawing the distinction between the decision rendered and the decision expected of the "just judge." The reply brief renewed the virulent personal attack on the plaintiff and stated that counsel had no apology to offer for it. The document passed beyond the bounds of legitimate argument to aspersion and revilement. Conceding something to zeal and to genuine emotion, the court passed the matter by as calcium light employed to bring into strong relief the merits of the controversy as counsel saw them. Counsel's state in the original opinion to be relevant and material will be accepted, but the court disagrees with him, and again states its opinion to be that they had nothing whatever to do with the merits of the case. of the application for a rehearing and for a the driver. The plaintiff and her daughterreversal, and it is not deemed necessary to extend this opinion further. The application for a rehearing is denied. The judgment of the district court is again affirmed, and the district court is directed to enter and carry into effect the mandate which has been forwarded to it. JOHNSTON, C. J., and MASON, PORTER, MARSHALL, and DAWSON, JJ., concurring. in-law occupied the rear seat. Crawford avenue in the city of Parsons extends east and west across the defendant's tracks, 24 in number, and the automobile was proceeding toward the west. In the midst of the tracks and north of the crossing stood a car barn. On the first track west of the car barn stood a stock car, the south end of which was in the street. On the next track toward the west stood a coal car, the south end of which was a few feet north of the south end of the stock car. A switch engine moving toward the south on the third WEST, J., concurring in the result, I would add one suggestion. Not only are we increasingly careful to refrain from impugn-track west of the car barn struck the autoing the motives of counsel, but in the fore- mobile. The engine bell was ringing at the going opinion an intended criticism merely of time, and a track foreman of the defendan argument, erroneously taken as a personal ant testified it could be heard at a distance reflection, is correctly construed by the ref- of 400 or 500 yards. The plaintiff and her erence to the "scenic" expression in the orig-husband had not been on the crossing beinal opinion. If a similar regard for the feelings of the court were manifested in all cases and at all times by counsel appearing here, the felicity of the work and practice in this court would be augmented. fore. The plaintiff's son was an employé of the defendant, was familiar with the crossing, and said to his father that he would look out for trains. He testified there was danger in stopping an automobile there because cars were likely to be moved at any time. The automobile proceeded as slowly DENTON v. MISSOURI, K. & T. RY. CO.* as possible without killing the engine, at a (No. 19986.) (Supreme Court of Kansas. March 11, 1916.) NEGLIGENCE 93(2)-RAILROADS 350(21) The evidence and special findings of fact examined, and held, that a woman who was riding in an automobile driven by her husband, and who is injured by a collision between the automobile and a switch engine on a street crossing, was not guilty of negligence as a matter of law. [Ed. Note. For other cases, see Negligence, Cent. Dig. 149: Dec. Dig. 93(2); Railroads, Cent. Dig. § 1176; Dec. Dig. 350(21).] Appeal from District Court, Labette County. Action by Mollie J. Denton against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. speed of about four or five miles per hour. none. She saw no engine and she heard no bell. The defendant was negligent in not complying with a city ordinance requiring a flagman to be stationed at the crossing. With a general verdict for the plaintiff, the jury returned the following special findings: "1. Did the plaintiff, just before the collision in question, see cars upon the side tracks and observe the condition of the crossing with reference to obstructions that would obscure her view of an approaching engine from the north? Ans. Yes. "2. Did the plaintiff, on approaching the crossLing at which the collision occurred, see a railroad track beyond the obstructions and know that engines or cars were likely to be passing over said tracks at any time? Ans. Yes. W. W. Brown, James W. Reid, and E. Burton, all of Parsons, for appellant. W. D. Atkinson, C. E. Pile, and L. E. Goodrich, all of Parsons, for appellee. BURCH, J. The action was one for damages for injuries which a woman, riding in an automobile driven by her husband, sustained by being struck by a switch engine on a street crossing in the defendant's yards in the city of Parsons. The plaintiff recovered, and the defendant appeals. The plaintiff, her husband, F. M. Denton, her son, E. E. Denton, and her son's wife, occupied the automobile. F. M. Denton, sitting on the right-hand side, was driving the car. E. E. Denton occupied the front seat with "3. Did said plaintiff endeavor to have said automobile stopped at any time when passing over the tracks of defendant before it went upon the crossing where the collision occurred? Ans. No. "4. Did the noise of the automobile prevent plaintiff from hearing the ringing of the bell of the engine, as said engine approached the crossing on which the collision occurred? Ans. No. "5. What, if anything, did the plaintiff do to avoid the collision? Ans. Looked and listened. "6. When it first became possible for plaintiff to observe an engine approaching on the tracks where the collision occurred, was the automobile just entering upon said tracks? Ans. Yes. "7. Was said engine stopped as soon as it could be stopped after the employés of defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant discovered the automobile approaching? | ought the plaintiff to have arrogated to herAns. Yes." self control over the automobile and com 9. If you find for the plaintiff, state what elements of damage you include in your verdict. Ans. Bodily pain and permanent injury. "10. Was the automobile, on approaching the crossing, under the control of the operator so that it could have been stopped at any point before entering upon the crossing? Ans. Yes. "11. Do you find that the view of the defendant's employés who were riding upon said engine was obstructed by the cars so that they could not see the approaching automobile until it came from behind the cars about six or seven feet from the crossing? Ans. Yes. "12. Do you find that the employés of the defendant made every effort, after discovering the automobile, to stop said engine and to prevent the collision? Ans. Yes." The defendant's principal contentions are that the plaintiff was guilty of negligence as a matter of law, and that judgment should have been rendered for the defendant on the findings of fact. manded it to stop? The finding is that she saw a track beyond the obstructions to her vision and knew engines and cars were likely to pass over it at any time. There is no finding and no evidence that from her place in the back seat she could see this track was so close to the one on which the coal car stood that the automobile would be in danger before her husband on the front seat could see toward the north. Her opportunities of observation were not equal to those of her husband. She knew his ability as a driver and trusted him, and, what is more, she had the right to trust him. In the case of Williams v. Withington, 88 Kan. 809, 129 Pac. 1148, it was said: "Common sense would dictate that when a wife goes riding with her children in a rig driven by her husband she rightfully relies on him Rail-not to drive so as to imperil those in his charge. The law does not depart from common sense by requiring her, under the circumstances shown here, to impugn her husband's ability to drive and assume the prerogative to dictate to him the manner of driving." Page 813 of 88 Kan., page 1149 of 129 Pac. This is a second appeal. Denton v. way Co., 90 Kan. 51, 133 Pac. 558, 47 L. R. A. (N. S.) 820, Ann. Cas. 1915B, 639. A paragraph of the syllabus of the first opinion reads as follows: "Where a woman is injured through the negligence of a railway company, she is not precluded from recovery by the fact that a contributing cause of her injury was the failure of her husband to exercise due care in the management of the automobile in which they were riding." Paragraph 4. This is the law, and the plaintiff can be defeated only because of her own negligence. L. R. A. 1915B, 953, note. This doctrine applies to the case of a wife riding in an automobile driven by her husband, unless she should know him to be incompetent or under some disability. In the case of Bush v. Railway Co., 62 Kan. 709, 64 Pac. 624, cited by the defendant, the person injured was not relying on the driver of the vehicle in which she was riding, was looking out for herself independThe plaintiff was required to take the pre-ently of him, had equal opportunity with him cautions which a reasonably prudent per- to see and appreciate the danger which son, not in the situation of the automobile threatened them, and in fact was the first driver, but in her situation, would have tak en. to see the approaching train. In the case of Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261, cited by the defendant, the person injured did nothing at all for her own safety. She did not even look or listen, although in the presence of danger, and the accident might have been prevented had she done so. The result is the question of the plaintiff's negligence was properly submitted to the jury. The finding that she exercised due care for her own safety, included in the general verdict, is sustained by the evidence, and judgment for the defendant on the special findings was properly denied. The argument is that she should have stopped the automobile, or should have called her husband's attention to the conditions and requested him to exercise reasonable care. Why should the plaintiff have called her husband's attention to the conditions and exhorted him to use due care? She had confidence in his ability as a driver. The conditions were just as obvious to him as to her. He could see and hear all she could see and hear. He was responsible for the operation of the automobile, not she, and she had no reason to doubt that he was exercising his faculties with diligence. Besides this, there was another observer in the front seat with the driver, who was in fact familiar with the crossing. His safety and his wife's safety were at stake, and there is no evidence of any fact indicating to the plaintiff that her son was not exercising his facul- The judgment of the district court is afties of observation with diligence. Why firmed. All the Justices concurring. The court had no authority, on application by the defendant, to require the plaintiff to join her husband as a defendant. The subject of the ringing of the bell was sufficiently presented to the jury by the instructions given. STATE ex rel. RANDALL, County Attorney, (Syllabus by the Court.) charge 25 cents per 1000 feet of gas for one year after the franchise became effective, and thereafter 30 cents per 1000. At the time of this suit the one-year limit had expired and the company nad given notice of a proposed advance in the rate. At the time the GAS 14(1) GAS COMPANIES CONSTRUC- franchise was granted the Olathe Gas ComTION OF CONTRACT-PUBLIC UTILITIES COM-pany had been supplying its customers from MISSION-POWER TO FIX RATES. the local wells which it owned, but within a few days after the franchise was obtained the company entered into the contract with the Kansas Natural Gas Company for an additional supply of gas. In fact, the Olathe franchise was obtained in contemplation of making the contract with the Kansas Natural Gas Company. Since the execution of that contract the principal part of the gas has been furnished by the Kansas Natural Gas Company and that, with the gas obtained from the local wells, has made, we are told, an adequate supply for the people of the city. The Kansas Natural Gas Company, with which the Olathe Gas Company contracted, Under the provisions of a contract herein set forth between the Olathe Gas Company, which had a franchise from the city for the sale and distribution of gas to the inhabitants of the city, and a gas company, which had a trunk line through the state and furnished gas to this and other companies to be distributed and sold by them to their patrons, and also under the agreed facts herein, it is held, that the Olathe Gas Company is acting as the agent of the trunk line company in the distribution and sale of gas, and that it is therefore subject to the jurisdiction and control of the public utilities commission in the matter of fixing rates to be charged for gas sold to consumers. [Ed. Note.-For other cases, see Gas, Cent. Dig. § 10; Dec. Dig. 14(1).] Appeal from District Court, Johnson has been engaged in transporting gas through County. Injunction by the State, on the relation of C. L. Randall, as County Attorney, etc., against R. S. Litchfield and others, as receivers of the Kansas Natural Gas Company and others. From a judgment for relator, the Olathe Gas Company, defendant, appeals. Affirmed. W. F. Guthrie, of Kansas City, Mo., for appellant. C. L. Randall, of Olathe, for appellee. JOHNSTON, C. J. A temporary restraining order was obtained at the instance of the state against R. S. Litchfield and John M. Landon, receivers of the Kansas Natural Gas Company, and also the Olathe Gas Company, preventing them from advancing the existing rate for gas in the city of Olathe and in Johnson county. The Olathe Gas Company moved to dissolve the injunction, and it was agreed by the parties that the hearing upon the motion should be treated as one on the application of the Olathe Gas Company to vacate and on the application of the plaintiff for a temporary injunction. The motion was denied, and the temporary injunction issued, and the Olathe Gas Company appeals. Kansas and into Missouri. The gas which it has sold has been delivered to consumers in the communities and cities along its pipe lines by distributing companies that were operating under franchises granted by the respective municipalities. The contract with the Olathe Gas Company differs from that made with other distributing companies in that part of the supply of gas furnished the people of Olathe and the 19 patrons outside, has been obtained from its own wells. In a litigation between the state and the receivers of the Kansas Natural Gas Company as well as the distributing companies, it was determined that the power of fixing the rates to be charged consumers was vested in the public utilities commission, and that application for an increase in rates must first be presented to that commission. State ex rel. v. Flannelly, 96 Kan. 372, 152 Pac. 22. The trial court at first granted the temporary injunction preventing the proposed increase of the rate from 25 cents to 30 cents per 1000, but at a later time and after a showing that the public utilities commission had made an order permitting distributing companies to charge 28 cents per 1000, the court modified its former order so as to permit the Olathe Gas Company to charge the 28-cent rate, as fixed by the utilities commission. The Olathe Gas Company was engaged in The contention of the Olathe Gas Company furnishing natural gas to the inhabitants of is that it has a franchise from the city of Olathe and a number of patrons along its Olathe, a city of the second class, which perline in Johnson county. The gas furnished mits it to charge the 30-cent rate; that the was partly obtained from its local fields and company is principally engaged in supplying an additional supply was obtained from the the people of the city of Olathe, since it Kansas Natural Gas Company, with whom it furnishes gas to no one outside of the city, had entered into a contract for a portion of except to 19 farmers residing near its pipe its supply. The Olathe Gas Company was line; and that the public utilities commisoperating under a franchise granted by the sion has no authority to fix the rate which city of Olathe on August 7, 1908, to parties it shall charge. On behalf of the state it is whose rights had been assigned to that com- contended that the Olathe Gas Company, unpany, which authorized the company to der its contract with the Kansas Natural For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied April 14, 1916. Gas Company in contemplation of which the Gas Company, and that the appointment has Olathe franchise was obtained, became the been made. It is agreed, in effect, that the agent of the Kansas Natural Gas Company, gas company would lay a branch line from and is therefore subject to the jurisdiction its trunk line to the limits of the city, and of the public utilities commission. should install a reducing station there through which gas would be delivered into the system of the agent; that the gas company should deliver a volume of gas sufficient, with what the agent obtained from the local wells, to maintain a pressure not exceeding six ounces to the square inch, and if unable to furnish that pressure to all distributors it would furnish a pro rata share of its production. The agent of the company is specifically given "the sole and exclusive agency to distribute, market, and sell its natural gas for domestic and manufacturing purposes"; the agency to continue until August 7, 1928. This exclusive agency is declared to be a personal one which cannot be transferred without the consent of the gas company. It is agreed that the agent shall keep up its system of pipes, mains, and attachments in a condition sufficient to supply the inhabitants with gas and distribute and sell the same to the people, and that all the expense of maintaining the system and of making the sale and distribution is to be borne by the agent. It is required to charge a certain maximum rate to consumers, and a penalty is to be assessed against those who fail to pay bills promptly when due, and a minimum rate is to be fixed. The If the contention of the state is correct, the order of the district court must be upheld. No question is raised as to the validity of the franchise obtained from the city of Olathe, nor as to the purpose of any of its provisions. It does not appear that the city has attempted to change the rates specified in the franchise, and it does appear that the public utilities commission has not authorized an increase of the rate. Neither party has offered testimony as to what would be a reasonable or compensatory rate to be charged for gas. The controlling question in the case is whether the Olathe Gas Company, in the position which it has chosen to take, is subject to the jurisdiction of the public utilities commission so that the rate to be charged for gas cannot be increased, except with the concurrence and authority of that tribunal. If it is an agency of the Kansas Natural Gas Company and its receivers in the sale and delivery of gas to the consumers, it is necessarily within the jurisdiction of the utilities commission. In State ex rel. V. Flannelly, 96 Kan. 372, 152 Pac. 22, the relation of the distributing companies to the Kansas Natural Gas Company was considered, and it was said: "These distributing companies act as the agents of the Kansas Natural Gas Company in the distribution and sale of gas." Page 378 of 96 Kan., page 24 of 152 Pac. The relationship of the distributing companies to the Kansas Natural Gas Company was practically conceded in that case, but it is insisted here that the Olathe Gas Company stands in a different relation because of the peculiar provisions in its contract and under which it sells and distributes more gas than is obtained from the Kansas Natural Gas Company. The provisions of the contract which it made with that gas company must determine the capacity in which it is acting. In describing the parties to the contract the Kansas Natural Gas Company is designated as the "Gas Company," and the Olathe Gas Company as the "agent." The relation of the parties was considered when the contract was executed, and that the franchise from the city must be considered in connection with the contract in determining the relationship follows from the recitals in the latter. It is recited that the agent is about to become the owner of a franchise to maintain a system for the sale and distribution of gas in the city and has some wells about nine miles from the city, from which it has been obtaining gas, but this supply has become insufficient and is expected to diminish until it is exhausted, and that therefore the Olathe Gas Company has asked for the ap agent agrees to sell no gas for other than domestic purposes without the written consent of the gas company, and it is provided that it may sell for manufacturing purposes at prices to be fixed by the gas company, but that the right to do this may be withdrawn by the gas company absolutely, or it may fix new prices and terms which likewise will be subject to withdrawal at its pleasure. The agent agrees to furnish and install meters through which it shall receive gas from its local fields, and during the months of December, January, and February it is to receive all the gas which, with that obtained from the local fields, will fully supply the demand, and through each of the other nine months, to receive the same proportion sold for that month as the amount received by it from the gas company during the three preceding months of December, January, and February bears to the total receipts from the gas company and local wells during those three months, but that during each of the nine months the agent shall account and settle for such proportion of gas, "whether it receives the same in that month or not, the gas company being ready and able to deliver it." Provisions are made for measuring the gas received from the different sources of supply, and it is specified that no part of the gas furnished free by the agent to the city shall be charged against the gas company until the supply from the local fields is ex |