Page images
PDF
EPUB

3. SAME EVIDENCE.

A boy about 11 years of age was sent by his father to deliver a package to a passenger on a train which was expected to stop at the station. Held, that the boy, while engaged in making such delivery and returning to the station platform, was rightfully on the premises of the railroad company, and entitled to be protected at least by the exercise of ordinary care. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, § 869.] 4. SAME.

When a railroad company causes a passenger train to stop on a side track, leaving other tracks between it and the depot platform, it is negligence to permit another train to pass between such passenger train and the depot at a high rate of speed, and without giving warning thereof by ringing the bell, sounding the whistle, or otherwise, while business is being rightfully transacted with the standing train, and the company will be liable to any person rightfully there who is injured thereby.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, § 872.]

(Syllabus by the Court.)

Error from District Court, Clay County; O. L. Moore, Judge.

Action by Clarence McElroy against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wm. R. Smith, O. J. Wood, and A. A. Scott, for plaintiff in error. Coleman & Williams, for defendant in error.

GRAVES, J. Clarence McElroy, a boy about 11 years of age, was struck by a passing engine on the railroad of the plaintiff in error at the station of Aurora, in Cloud county, and was injured so that his left foot had to be amputated immediately in front of his ankle. He commenced this action in the district court of Clay county May 3, 1905, and recovered a judgment of $3,000. The railway company, being dissatisfied, brings the case here for review.

At the station of Aurora, the north-bound passenger train and the one going south pass each other. The north-bound train, as a rule, arrives first, and stops on a side track, leaving the main track between it and the depot platform. Passengers leaving the train and those getting on are compelled to cross over the main track. If the train going south arrives before the north-bound train leaves, which it does ordinarily, no stop is made until reaching the depot platform. The plaintiff on the occasion in question was sent by his father, who was engaged in business at that place, to deliver a small package of merchandise to a passenger on the northbound train. The boy delivered the package to the passenger while the train was standing on the side track, and, before he got across the main track on his return, he was struck by the engine of the train going south as it was approaching the platfrom. No warning by whistle, bell, or otherwise was given to indicate the coming of the train from the north. The plaintiff did not look

or listen for the incoming train, or take any care to avoid danger therefrom. Much has been said in argument concerning the degree of care due from the company to the plaintiff, and upon the question of plaintiff's contributory negligence. Many special questions of fact were submitted to and answered by the jury for the purpose of developing these propositions. In our view of the case, however, it will be unnecessary to consider all of the questions presented. Where a railroad company finds it necessary or convenient in the transaction of its business to have a passenger train stop on a side track, leaving one or more tracks between such train and the depot platform, that method may be adopted, but if it is, then, as between the company and other people, the entire space between the depot and the train must be regarded the same as if it all together constituted the platform.

One of the special questions presented to the jury in this case, and its answer thereto, reads: "Q. 29. If you find that the defendant, the Atchison, Topeka & Santa Fé Railway Company, was negligent, then state fully, first, in what respect it was negligent; and, second, what agent or employé was guilty of such negligence. A. Because it al lowed the main track next to the station to be used as a platform to transfer passengers, baggage, mail, and express from the northbound passenger train, known as 'No. 307,' to and from the station, that said company had no proper signals, alarms, and safeguards at Aurora; second, that the train crew of the south-bound train No. 306 failed to either ring the bell or blow the whistle on approaching the station." Under this finding of fact, it will be unnecessary to consider the strict legal relation existing between the plaintiff and the company, or to define the exact degree of diligence due from the company to the plaintiff. It is conceded that the plaintiff was rightfully where he received the injury, and that the company owed him at least reasonable and ordinary care. Under this conceded rule, we think the case may be decided. What constitutes ordinary care must always be determined from the circumstances of the situation being considered. In 1 Thomp. on Neg. § 25, it is said: "The care, caution, and diligence required by the law is always measured by the circumstances of the particular case, and the rule of admeasurement is 'the greater the hazard, the greater the care required.'" The situation presented in this case shows that the plaintiff in error, when it ran the train going south into the station, was chargeable with notice that its patrons and other people were scattered over the space between the depot and the other train, engaged, as people are on such occasions, removing baggage, hurrying on and off the train, giving and receiving parting and welcoming salutations, and were generally in a state of confusion, which would make them less liable to notice the approach

of danger and less prepared to avoid it than under ordinary circumstances. It knew that the people so situated had a right to feel secure and safe from any danger on account of the negligent operation of trains in their midst, and would feel entirely free from any necessity for the exercise of care or caution. These and other conditions always present upon such occasions constitute the situation, by which must be measured the degree of care with which a person of ordinary caution and prudence would run a passenger train among people thus engaged. The conduct of the company in running its train at a high rate of speed, without warning of any kind. was culpable negligence. The plaintiff and other persons there were under no duty or obligation to anticipate and guard against negligence on the part of the railroad company. They had the right to feel secure from injury on account of passing trains. They might rest upon this feeling of security until warned or notified of danger. The ordinary rule of "look and listen" has no application to such a situation. When a railroad operates a train under such circumstances, it assumes the peril. These conclusions result from the application of the most obvious and familiar rules of human conduct. 2 Shearman & Redfield on Neg. § 525; 1 Thomp. on Neg. $ 25-31, 968 et seq.; 3 Thomp. on Neg. § 2705; Tubbs v. Michigan Central Railroad Co.. 107 Mich. 108, 64 N. W. 1061, 61 Am. St. Rep. 320; Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. Cent. & H. R. R. Co., 84 N. Y. 241; Denver & R. G. R. Co. v. Hodgson, 18 Colo. 117, 31 Pac. 954.

purpose, and that Ware had refused to account for or return the money upon demand. Ware's answer was a general denial. On the trial it was shown that $150 was first paid, and later a payment of $2,350 was made, when the following receipt was given: "Topeka, Kans., Oct. 25, 1901. Received of E. C. Spinney, twenty three hundred and fifty dollars ($2,350) to be used to pay necessary expenses of combining the management of the National Aid Asso. and the Bankers' Union of the World, as per contract, if such combination shall be effected, and to be returned to E. C. Spinney, in case it is not. [Signed] M. Ware, S D. Cooley.' The preliminary agreement is as follows: "Oct. 12, 1901. Memorandum of agreement between L. K. Lewis, president, S. D. Cooley, secretary, M. Ware, medical director, Harry Wright, director, and the National Aid Association, and E. C. Spinney, president and general manager of the Bankers' Union of the World. (1) Cooley, Lewis, Ware, and Wright agree to work faithfully to secure a combination and amalgamation of the National Aid and the Bankers' Union of the World. (2) Spinney and the Bankers' Union of the World agree to pay Lewis, Cooley, Ware $12.500, as follows: $2,500 as needed subject to Ware's check, and $10,000$1,000 a month. $1,000 a month. (3) Liabilities of which the National Aid has official notice not exceeding $27,330 uncontested, and $7,000 contested, to be assumed and agreed to be paid by the Bankers' Union of the World and Spinney, according to constitution and by-laws of the National Aid. (4) National Aid to turn over office furniture and supplies, but no money

The judgment is affirmed. All the Justices except $1,300 with National Security Comconcurring.

[blocks in formation]

A principal who places money in the hands of an agent to be disbursed to others, and for an illegal purpose, does not necessarily forfeit his right to such money, but may require the agent to account to him for so much of it as has not been expended or appropriated to the unlawful purpose.

[Ed. Note. For cases in point, see Cent. Dig. vol. 11. Contracts, §§ 684, 688.]

(Syllabus by the Court.)

Error from District Court, Shawnee County: A. W. Dana, Judge.

Action by E. C. Spinney against M. Ware. Judgment for plaintiff, and defendant brings error. Affirmed.

Action to recover $2,500 given by Edmund C. Spinney to M. Ware for the alleged purpose of paying the necessary expenses incident to the convening of the board of directors of the National Aid Association, but which, it was alleged, was not used for that

pany. (5) Pt. and Secy. personally gt. that official notice has been received of liabilities in excess of amounts here named. (6) Spinney to pay all expenses directors coming together if deal fails, not exceeding $150. L. K. Lewis, Pres., S. D. Cooley, Secy., M. Ware. Med. Dir., Harry Wright, Director, Bankers' Union of the World, by E. C. Spinney, Pres. and Gen. Mgr." In the formal agreement subsequently made, signed by the officers of the two organizations and providing for their consolidation, the following stipulations were made concerning the money in question: "(3) The said E. C. Spinney and the Bankers' Union of the World, upon their part, agree to pay to the said Lewis, Cooley, Ware, and Wright, to defray the necessary expenses of the consummation of the said consolidation, the sum of twenty-five hundred dollars, as the same shall be needed, which sum shall be subject to the check of the said M. Ware. In the event that the said Lewis, Cooley, Ware, and Wright shall earnestly and faithfully do all in their power to consummate said consolidation, and shall, through no fault of theirs or either of them fail therein, then, and in that event, the said E. C. Spinney and the said the Bankers' Union shall pay only one-half of the expenses of convening the said board of directors of the said association, which,

in no event, shall exceed three hundred dollars, one-half thereof, one hundred and fifty dollars, to be paid by the said E. C. Spinney.” In the same contract was a provision to pay Lewis, Cooley, and Ware the sum of $10,000 in 30 equal monthly installments, which installments were evidenced by promissory notes of the Bankers' Union by E. C. Spinney as president and also personally. These notes became the subject of controversy between the Bankers' Union and W. T. Scott, an assignee of Ware, in which it was held that the union was not bound upon the notes, but that Spinney was personally liable for their payment. Scott v. Bankers' Union, 73 Kan. 575, 85 Pac. 604; Bankers' Union v. Crawford, 67 Kan. 449, 73 Pac. 79, 100 Am. St. Rep. 465.

Upon all the testimony in the case the court specially found: "(1) The defendant and S. D. Cooley received from L. A. Stebbins the sum of $150 paid to him by the plaintiff by his check of October 12, 1901. (2) The $150 referred to in finding No. 1 was used and applied by S. D. Cooley in part payment of the expenses of holding the directors' meeting of October 26, 1901, of the board of directors of the National Aid Association. (3) The balance of the expenses of the directors' meeting mentioned in the second finding herein was paid by S. D. Cooley with the funds of the National Aid Association. (3) That on October 26, 1901, the plaintiff deposited in the Central National Bank of Topeka, Kan., a draft or check drawn by the Bankers' Union of the World on a bank in Omaha for $1,400, and a check drawn by the plaintiff on a bank in Omaha for $1,000, and received in lieu thereof a deposit slip or ticket showing that plaintiff had deposited to the credit of M. Ware $2,350 and $50 in cash. That said money was received by said defendant to disburse to others in behalf of plaintiff. (4) The defendant received the $2.350 deposited by plaintiff in the Central National Bank to the credit of said M. Ware on October 26, 1901. (4) The court finds from the evidence that the purpose for which the money in controversy was delivered to and placed in the hands of defendant was to bring about, ef⚫fect, and consummate a combination and consolidation of the National Aid Association, a fraternal beneficiary association, being a corporation organized under the laws of the state of Kansas, and the Bankers' Union of the World, a fraternal beneficiary association, being a corporation organized under the laws of the state of Nebraska, in pursuance of and as provided in the written memorandum of agreement of October 12, 1901, as supplemented by the written contract of October 26, 1901, in evidence herein. (5) No part of said $2,350 deposited by the plaintiff in the Central National Bank to the credit of said M. Ware on October 26, 1901, was used in paying the necessary expenses of holding the directors' meeting of the board. of directors of the National Aid Association

of October 26, 1901. (6) The directors' meeting of the board of directors of the National Aid Association of October 26, 1901, was called and held for the purpose of combining the management of the National Aid Association and the Bankers' Union of the World. (7) The combining the management of the National Aid Association Aid Association and the Bankers' Union of the World contemplated was effected by the resignation of the officers of the National Aid Association and the election of such officers in their stead of persons holding the managing offices of the Bankers' Union of the World, and such resignation, election, and substitution was fully effected by the action of the directors' meeting of the board of directors of the National Aid Association of October 26, 1901. (8) The management of the National Aid Association and the Bankers' Union of the World was combined by the action of the directors' meeting of October 26, 1901, of the board of directors of the National Aid Association. (9) None of the disbursements by the defendant of the $2,350 received by him from the plaintiff by the deposit in the Central National Bank to the credit of said M. Ware were for the necessary expenses of combining the management of the National Aid Association and the Bankers' Union of the World other than the $670 paid Harry Wright and the $30 paid for the banquet at the Hotel Throop. (10) The plaintiff demanded of defendant the money remaining in his hands and not used in paying the necessary expenses of combining the management of the National Aid Association and the Bankers' Union of the World before the commencement of this action. (10%) That said defendant did not comply with the demand made upon him by the plaintiff, and has not accounted for $1,650 remaining of the $2,350 so received by him, after paying Wright $670, and after paying $30 for the banquet at the Hotel Throop."

Conclusion of Law: "Plaintiff is entitled to judgment against defendant for $1,650, with interest at 6 per cent. from November 26, 1901."

Judgment was accordingly entered, of which Ware complains.

Geo. E. Overmeyer and Frank Doster, for plaintiff in error. E. A. Austin, for defendant in error.

JOHNSTON, C. J. (after stating the facts as above). The error assigned by Ware is that the judgment of the trial court was against the law and the evidence, and contrary to the findings made by the court itself. It is insisted that the evidence, written or oral, shows Ware to have been acting in a fiduciary capacity, that the money was paid to him to induce a violation of a trust, and that, even if the $2,500 was given to Ware as Spinney's agent to pay the expenses of the consolidation of the fraternal organizations, it was still part of a contract wherein $10,

000 was agreed to be paid to Ware and his associates on personal account. It is also said that there was an unexpressed purpose that the money should be corruptly used to bring about the consolidation of the companies. On the other hand, counsel for Spinney calls attention to testimony that the $2,500 was turned over to Ware to be used, as far as necessary, to pay the expenses of calling and holding a meeting of the directors of the National Aid Association, with a view of authorizing the consolidation and also to the receipt given when the money was paid, in which it was recited that it was to be used to pay the necessary expenses of combining the organizations. Ile also refers to the formal contract, in which it was expressly stated that the $2,500 was placed with Ware to defray the necessary expenses of the consummation of the consolidation, as the same should be needed. There is sufficient testimony to sustain the findings of the court as to the purpose for which the money was paid. It was placed with Ware to be paid to others in accomplishment of that purpose, and not for his own use or benefit. This provision was independent of the one in which provision was made to turn over to Ware and others $10000 in notes, in payment of their personal claims, and which were the subject of litigation in Scott v. Bankers' Union, 73 Kan. 575, 85 Pac. 604. It is contended here that the transaction was not contrary to good morals, and attention is called to the fact that the cited case proceeded on the theory that it was not illegal. While it was there held that the contract under which the notes were given to Ware and others was not binding on the Bankers' Union, it was enforceable against Spinney, who had individually signed the notes. In speaking of the transfer of the membership of the National Aid Association, which was insolvent, to the Bankers' Union, which was a going concern, Justice Graves remarked: "The transaction in which they [the notes] were given was not unlawful or contrary to public policy. The consolidation of such corporations might be desirable and useful to both associations, and proper and legitimate in every way. The officers of the National Aid Association did not attempt to sell their company nor to betray their trust. They only undertook to advise with and urge the subordinate lodges and members to consent to the proposed merger and this was proper. The National Aid Association could not exist alone, and any change which promised protection to its certificate holders was desirable. We think this effort on the part of the officers was not vicious, but commendable."

Assuming, however, that the purpose was unlawful, as some of the testimony tends to show, Spinney was not barred from a recovery of so much of the money as was unexpended. The general rule is that the law will not aid either party to an illegel agreenient, but an exception is made where the

illegal agreement or purpose has not been carried out. This was not an action to enforce the agreement between Spinney and his agent, Ware, nor is the judgment rendered by the court in any sense an affirmance of the agreement. Granting that the purpose of the parties is unlawful, the action is rather a repudiation of that purpose and a disaffirmance of the agreement. "The broad rule has been laid down that, when money or property is delivered by a principal to his agent for an illegal purpose or carrying into execution an illegal contract, the agent cannot set up such illegal object to prevent a recovery by the principal from the agent of such money or property so long as it remains in his hands." 15 A. & E. Encyc. of Law, 1009. In the note accompanying this text may be found a large number of sustaining authorities. The agent cannot retain the money merely because the transaction in contemplation was illegal. The illegality that defeats a recovery of the money is not in the intent alone. It has been well said that: "Persons may not be punished either in civil or criminal courts for unlawful intentions. It is the consummation of these unlawful intentions that places a party without the law. If the unlawful intention is not carried out, if nothing is done under it, my servant has my property and I am entitled to its return. As in the present case he is acting under a special agency which I have a right to revoke at any time before the performance, and when so revoked I am entitled to my own. It cannot be better public policy to deny me a recovery of the stock than to encourage my agent to commit a criminal offense." Wasserman v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209. Until the contemplated action is executed, the money converted to the illegal use, the parties are given an opportunity to repent and rescind, and the doctrine of locus penitentiæ, as it is called, is applied. "Seeing the error of his ways the law says a party may withdraw from the transaction; and it extends to him a helping hand by offering him the inducement of giving back to him anything of value with which he has parted." Wasserman v. Sloss, supra. The same view was well expressed by the Supreme Court of Maine where it was said that: "The law encourages a repudiation of the illegal contract, even by a guilty participator, as long as it remains an executory contract or the illegal purpose has not been put in operation. *** It best comports with public policy to arrest the illegal transaction before it is consummated." Tyler v. Carlisle, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301. In Morgan v. Groff, 4 Barb. (N. Y.) 524, it was said "that as long as the money deposited with an agent for an illegal purpose remains unemployed, or if the purpose be countermanded by the principal before its application, it is a debt which can be recovered from the agent by the principal, either at law or in equity."

The principle of these cases has been adopted and applied in this state. In the case of Hardy v. Jones, 63 Kan. 8, 64 Pac. 969, 88 Am. St. Rep. 223, an action was brought by a principal to require his agents to account to him for money placed in their hands to purchase property at a judicial sale, under an agreement which had for its purpose the suppression of competition at the sale. After the sale there remained in the hands of the agents a portion of the fund placed in their hands, and they refused to account for this, on the ground that their agreement was void as against public policy. The court refused to listen to this reason or excuse, saying: "That as long as an illegal contract remains unexecuted neither party can be held to its terms. At any time before Hardy and Turbish had acted in behalf of Jones, the latter might have revoked their authority or they, upon their part, might have refused to execute their agency, but even in such case the agents could have been compelled to account to their principal for his money. So likewise will they be compelled to account for any unexpended balance remaining over from the execution of the illegal agreement. The surplus money now held by them is not held in pursuance of an illegal agreement to suppress competition at a judicial sale. The sale has been had, and the unexpended purchase money is now held by the plaintiff in error the same as they would hold any other money of the defendant in error." See, also, Pollock v. Agner, 54 Kan. 618, 38 Pac. 781; Peters v. Grim, 149 Pa. 164, 24 Atl. 192, 34 Am. St. Rep. 599; Adams Express Co. v. Reno, 48 Mo. 264: Bank v. Wallace, 61 N. H. 24; Norton v. Blinn, 39 Ohio St. 145; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163, 32 Am. Rep. 731; Clarke v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98; Congress, etc., Springs Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Wood on Master and Servant,

202; Dunlap's Paley on Agency, *66; 9 Cyc. 554-557. The fact that Ware was an officer of and owed duties to the National Aid Association does not affect the application of the rule requiring him to account for the money received and not yet disbursed. It is assumed that he was acting unlawfully, but he was acting as the representative of Spinney, and held Spinney's money to be used for the purpose stated. Under the rule of the authorities, it is his duty to account to Spinney for the unexpended portion of the money, and this duty does not arise out of the illegal agreement and purpose, but out of the receipt and retention of the money of another, and which has not been converted to the proposed illegal use.

There appears to be nothing substantial in the claim that there was a departure from the pleadings, nor do we find any ground for a reversal.

The judgment will therefore be affirmed. All the Justices concurring.

(76 Kan. 336)

HAVEL v. DECATUR COUNTY AB.

STRACT CO.

(Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 5, 1907.)

1. TAXATION-TAX DEED-VALIDITY-IRREGU

LARITIES.

A tax deed, which has been recorded more than five years, and under which the purchaser and his grantee have, since its issuance, been in the actual continuous possession of the land, making valuable improvements thereon, will not be held void on its face by reason of not being in the exact form prescribed by the statute, provided all the essential facts prescribed in the statutory form are. by a fair construction of the language of the deed, therein recited.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, $ 1504.]

2. SAME-RESIDENCE OF PURCHASER.

The residence of the purchaser who is named in a tax deed and who is not fictitious is not, in a legal sense, a recital therein, and the omission thereof will not render the deed void upon its face.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45. Taxation, § 1504.]

(Syllabus by the Court.)

Error froin District Court, Rawlins County; A. C. T. Geiger, Judge.

Action by Rozi Havel against the Decatur County Abstract Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with instructions to enter judgment for plaintiff.

The plaintiff in error brought suit in the district court of Rawlins county to quiet her title to a tract of land which she claimed to own in that county. The defendant abstract company answered, denying the plaintiff's title, and set up a mortgage on the land and asked a foreclosure thereof. At the trial, it developed that the plaintiff's title rested upon a tax deed issued to C. F. McGrew more than five years before the commencement of the action. The court adjudged the tax deed void, and allowed the plaintiff a a first lien for taxes paid, and awarded the defendant a second lien for the amount of its mortgage, and ordered a foreclosure and sale of the lands to satisfy the liens. The plaintiff brings the case here.

J. P. Noble, for plaintiff in error. Dempster Scott, for defendant in error.

SMITH, J. As said in the brief of each party, the only question in this case is whether the tax deed is void upon its face. If the deed is void, the judgment should be affirmed; otherwise, the plaintiff is entitled to all the relief prayed for in her petition, and the defendant is entitled to nothing.

The deed was duly acknowledged and was duly recorded on the day following its issuance. The court also finds that the plaintiff and her immediate grantors had been in the actual possession of the land from the date of the deed to the time of the trial, and had paid all the subsequent taxes, and had made valuable improvements there

« PreviousContinue »