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(103 Kan. 714)

wagon was hit by the street car. He looked SALISBURY v. WICHITA R. & LIGHT CO. again, when he attempted to cross the track;

(No. 21698.)

(Supreme Court of Kansas. Nov. 9, 1918.)

(Syllabus by the Court.)

1. STREET RAILROADS 99(7), 117(28) CROSSING TRACK CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

A person driving a loaded wagon has the right to cross an electric street railroad track in front of an approaching street car, if he has time to cross safely before the car reaches him; but if, on looking, he fails to see an approaching car, or if he sees it, but misjudges its speed or its distance, and an accident results, in which he is injured, the question of contributory negligence on his part is one of fact for the jury. 2. APPEAL AND ERROR 1067-REVERSAL FAILURE TO GIVE MATERIAL INSTRUCTION. Where a material instruction, that should be given, is requested, but is not given, either by itself or in any other instruction, the verdict should be set aside, and a new trial should be granted.

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but the car was then on him.

The defendant's argument is that, if Salisbury had looked when he reached the street on which the track was laid, he would have seen the approaching car. The defendant further argues that Salisbury was guilty of contributory negligence in attempting to cross in front of the car which he had seen, or that, if he did not see the car, he must have failed to look. The defendant seeks to invoke the rule which requires one to look and listen when about to cross a railroad track, and if necessary to stop before attempting to cross, and which holds one guilty of contributory negligence if he attempts to cross in front of an approaching train after he has seen it. That rule does not apply to one who is attempting to cross a street railroad. In Railroad Co. v. Gallagher, 68

Appeal from District Court, Sedgwick Kan. 424, 75 Pac. 469, 64 L. R. A. 344, this County. court said:

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MARSHALL, J. The defendant appeals from a judgment against it for personal and property injury sustained by I. Salisbury in a collision with one of the defendant's street cars in Wichita.

[1] 1. The first question argued is that the court erred in overruling the defendant's demurrer to the plaintiff's evidence. The defendant insists that the plaintiff's evidence showed that Salisbury was guilty of contributory negligence, and that, for that reason, the demurrer to the plaintiff's evidence should have been sustained. There was evidence to prove the following facts:

At the time of the accident Salisbury, with a team and loaded wagon, was attempting to drive across the defendant's electric street railroad tracks in front of an approaching street car. The street along the tracks was being paved, and brick were piled along the track from two to five feet high. This prevented Salisbury from crossing the track on the street on which he was driving. He was compelled to turn from that street, and go along the street car track for about 40 feet, where there was a crossing place. From the street on which he was approaching the track, and from the place of the collision, he could see an approaching car for 300 feet. When he approached the track, he looked to ascertain if a car were coming; but he did not see any car. He then drove along the track, and attempted to cross it, when his

"A traveler may cross an electric street railway track in front of an approaching car, which he plainly sees and distinctly hears, and not be negligent. If, in view of his distance from the car, the rate of speed of its approach, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross, a traveler may do so, and the propriety of his conduct is ordinarily a question for the jury."

See, also, Railway Co. v. Summers, 75 Kan. 342, 89 Pac. 652; Railway Co. v. Schriver, 80 Kan. 540, 542, 103 Pac. 994, 24 L. R. A. (N. S.) 492; Marple v. Railway Co., 85 Kan. 699, 118 Pac. 690; Wiley v. Interurban Railway Co., 89 Kan. 84, 130 Pac. 659; note, L. R. A. 1917C, 692; 36 Cyc. 1554.

The question of Salisbury's contributory negligence was one for the jury and could not be determined on a demurrer to the evidence.

[2] 2. Another matter urged by the defendant is that the court committed error in refusing to give the following instruction:

"If you find from the evidence that the plaintiff looked to the west for an approaching car before going upon the track, and you further find that, at the time he so looked, the said car was there approaching and within view of him, then you are instructed that plaintiff is chargeplaintiff claims that he did not see said car able with knowledge of its approach, although approaching."

That instruction correctly stated the law. Railway Co. v. Agnew, 65 Kaň. 478, 70 Pac. 345, and note in 15 L. R. A. (N. S.) 259. It was error to refuse to give it unless it was substantially given in other instructions. The court did instruct the jury as follows:

"You are further instructed that it was the duty of the plaintiff to take notice of the fact that street cars were liable to pass along the tracks of the defendant company at any time."

The latter instruction was good as far as it went, but it did not give the law concerning an approaching car which the plaintiff did not see. The former charged the plaintiff

with knowledge of the approaching car, | to pay an obligation at another bank that while the latter charged him with notice of the fact that a street car was liable to pass at any time. There is a material difference between the two, when applied to street car traffic within a city. Knowledge that a street car is approaching is quite different from notice that one may approach at any time. If the instruction requested had been given, it may be that the jury would not have found that the plaintiff exercised diligence before going upon the track.

had been accumulating there for silos and other improvements he had put on his place; that he owed this other bank about $3,500, for which it held security on cattle and horses worth about $2,000 and some implements worth about $100; that when he built the silos he drew his checks, and this bank paid them. "I expected to use this money the same as any other money. I never intended to use any of this money to pay off the loan on the homestead." He intended to pay two of the plaintiffs out of this money if he did not get another place; he intended to pay them some time. He had owed them for a number of years and intended to pay them out of this money he got if he got no other. He was treating this monDOUGLAS v. ey the same as any other.

For the error in refusing to give the instruction requested, the judgment is reversed, and a new trial is directed. All the Justices concurring.

(103 Kan. 711)

KESSLER v. FROST et al.

SAME. WILSON v. SAME.
(No. 21670.)

(Supreme Court of Kansas. Nov. 9, 1918.)

(Syllabus by the Court.)

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The wife testified that the money deposited in the bank in her husband's name "came from the loan we made on the home." She knew of her husband's owing the other bank the money advanced to build silos. She and her husband talked over the matter of making the loan. She signed the note and mortgage in order to raise money to pay the money advanced by the other bank to pay for silos and other improvements on the farm. That was the reason she consented to mortgage the homestead.

It appears that the husband had talked Some of trading his farm for western land, but he testified that he did not intend to do so when he made this loan; "this is the only place I ever owned, and everything I bought went on this place."

It was alleged that the notes sued on were for money which went to the erection of improvements on the homestead, but this claim was waived by all but one of the plaintiffs whose claim of lien was by the trial court denied. Hence the exemption question is the only one presented.

[1] Of course, any part of the deposit which Mr. Frost intended to use for ordinary expenses would not be exempt; but as only about $100 seems to have been thus used, and as the amount garnished was ap

WEST, J. A bank in which the defendant Frost had deposited certain money was gar-parently enough to pay all the claim sued on, nished in actions to recover on certain promissory notes. The garnishments were discharged on the ground that the money was exempt, and the plaintiffs appeal.

The defendant asserts the exempt character of the fund because borrowed for the purpose of paying for improvements on his homestead. His evidence, in substance, was that he with his family had occupied his farm as a homestead for about 18 years; that about June, 1917, he made a loan thereon for $6,000, paid off a loan of $3,600 out of the proceeds and a commission note or two, paid the garnishee about $500, drew out about $100 for his own use, and left about $1,100 in the bank, with which he intended

the result depends on the character of the remaining fund on deposit, which character in turn depends on the intention the depositor had when he left it in the bank. Smith v. Gore, 23 Kan. 488, 33 Am. Rep. 188; Milberger v. Veselsky, 97 Kan. 433, 155 Pac. 957. In Brenneke v. Duigenan, 6 Kan. App. 229, 49 Pac. 687, it was held that

"The husband and wife have a right to sell or mortgage the homestead, and the money derived from such sale or mortgage is exempt." Syl. 1.

The defendants could have sold their homestead and devoted the proceeds to other purposes, or they could have used the proceeds to buy another homestead, and, such

intention existing, such proceeds would be exempt. The general purport of the husband's testimony was that he intended to repay the other bank the money it had advanced for building silos. The wife testified that for this purpose only she signed the mortgage, and there is therefore fair support for the conclusion of the trial court that the money was exempt.

A mortgage on the homestead for the purpose of paying for improvements could not legally harm general creditors. Neither could they resort to the proceeds to pay their nonlienable claims.

for want of notice, and the second, which was approved, was essentially a duplication of the first. The result was to establish the west line of the new part of the cemetery some distance west of an old hedge, and to establish Webb's west line accordingly. The appellants claim the hedge was the true cemetery line, and that the effect of the survey was to move Webb's west line over on their land.

While the appellants make some technical objections to the survey, there is no doubt that it correctly established the disputed boundaries, unless it were defective because [2] The motion to discharge the garnish- it ignored the hedge. In one of the deeds ment was heard by the court on an ad- pertinent to the controversy one of the calls journed day of the June term. A jury was was "the McDonald line," and it is claimed demanded and denied. The statute (section the hedge constituted the McDonald line. 7215, Gen. Stat. 1915) provides that issues of It is further claimed that the hedge was an law and motions may be heard by the court old landmark, an ancient monument, and a or judge in term time or vacation. No au- known and recognized boundary acquiesced thorities are cited to buttress the conten- in since 1863. On the other side, it is said tion that on hearing of this motion the plain- that in deed descriptions by metes and tiffs were entitled to a jury. Usually mo- bounds there is no reference to the hedge, tions are triable by the court. Indeed, the such as would have been almost inevitable presentation and determination of a motion if the hedge had been a recognized boundary. have been termed a hearing instead of a It is further said that the hedge not only was trial. McDermott v. Halleck, 65 Kan. 403, not an ancient boundary known and acquiesc69 Pac. 335. There is no provision for mak- ed in, but that it was well understood the ing up issues as to the trial of motions. Ber-city owned ground sufficient for two rows of ry v. Dewey, 102 Kan. 392, 170 Pac. 1000. Juries are for the trial of issues of fact, and a demand for a jury on the hearing of these motions was properly denied.

The judgment is affirmed. All the Justices concurring.

(103 Kan. 693)

McDONALD et al. v. CITY OF IOLA et al. (No. 21631.)

(Supreme Court of Kansas. Nov. 9, 1918.)

(Syllabus by the Court.)

BOUNDARIES 37(1)-SURVEY-EVIDENCE. The evidence examined, and held to sustain the judgment of the district court approving a

survey.

Appeal from District Court, Allen County. Appeal by L. A. McDonald and others from the judgment of the district court approving a survey instituted by the City of Iola and another establishing certain boundaries. Affirmed.

Apt & Apt, of Iola, for appellants.

G. R. Gard and S. A. Gard, both of Iola, for appellees.

BURCH, J. The appeal was taken from the judgment of the district court approving a survey establishing certain boundaries. The survey was instituted by the city of Iola, the owner of the Iola cemetery, which consists of two parts, the old and the new, and by S. Webb, the owner of a tract of land lying west of the cemetery. The surveyor made two reports. The first was set aside

cemetery lots west of the hedge, and the ancestor of the appellants, from whom they derived title, at one time stated he would try to buy the ground. The question of fact thus presented was determined by the trial court in favor of the survey, and the finding is supported by abundant evidence.

The judgment of the district court is affirmed. All the Justices concurring.

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On the question involved, did the plaintiff herein deliver to the defendant a deed purporting to convey a tract of land with the intention that it should become effective as a present conveyance, the trial court found that there was a delivery, and it is held, that there is sufficient evidence to uphold the finding.

2. DEEDS 56(7), 179-DELIVERY-SURREN DER OF TITLE.

Where there is a complete delivery of a deed by grantor, the fact that the grantee subsequently handed the instrument back to the grantor, with the request that she should try to obtain the signature of another person who had an interest in the land, did not defeat the delivery already made, nor operate as a surrender of the title transferred.

(Additional Syllabus by Editorial Staff.) 3. DEEDS 56(1)-DELIVERY-INTENTION. Delivery is largely a matter of intention, and the test is: Did the grantor by words and acts evidence an intention to part with control

of the instrument, and regard it as a present, deed, directed the scrivener to deliver it operative, and binding conveyance?

Appeal from District Court, Cheyenne County.

Action to quiet title by Eva Donaldson against John Brewer. Judgment for defendant and plaintiff appeals. Affirmed.

J. L. Finley, of St. Francis, and J. P. Noble, of Oberlin, for appellant.

E. E. Kite, of St. Francis, and E. F. Murphy, of Goodland, for appellee.

JOHNSTON, C. J. Action to quiet title to a tract of land, in which judgment was given against the plaintiff, who appeals. Eva Donaldson, the plaintiff, executed a deed purporting to convey a tract of land in Cheyenne county to the defendant, John Brewer, a half-brother of the plaintiff, and whether or not there was a delivery of the instrument is the question which divides the parties. The mother of the plaintiff, Mrs. Brewer, died owning personal property and real estate. Before her death she had arranged for the preparation of a will giving her personal property in equal shares to the plaintiff and defendant, her stepson, who had been residing with Mrs. Brewer, and also to give him the tract of real estate in question; but she died before the will was executed. The plaintiff, who was the only heir of her mother, had been residing with her husband in Wyoming for two or three years before the death of her mother. The defendant, not being an heir of Mrs. Brewer, acquired no interest in her estate; but, within a day or two after her mother's death, the plaintiff expressed a purpose to carry out the wish of her mother and proceeded to do so by transferring to the defendant one-half of the personal property. She also informed him that, as it appeared to have been her mother's purpose to give him the tract of land involved, she would give effect to that purpose by a conveyance of the land to the defendant. Subsequently she procured a deed to be prepared and afterwards executed it and formally acknowledged its execution. There is a dispute in the testimony as to the directions given by her to the scrivener ia respect to the delivery of the deed. She testified that after signing it the instrument was left with the scrivener for some writing or indorsement thereon, and at the same time she discussed with him whether he should forward it to her husband in Wyo ming for signature or she should do so herself, telling him that her purpose was to transfer the land if her husband would give his consent to the transfer, and not otherwise. She testified that the defendant brought the instrument to her on the day it was executed, and shortly afterwards she sent it to her husband, who declined to sign it, and for that reason the deed had never been delivered. On the other hand, there is the testimony of several witnesses to the effect that the plaintiff, after executing the

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to the defendant; that within a few hours
afterwards she met the defendant on the
street, and told him that the deed had been
executed and was in the hands of the
scrivener ready for him, and that he might
go and get it. Within a few minutes after
this information was given him, the defend-
ant went to the office of the scrivener, and
the deed was handed to him in accordance
with the plaintiff's directions.
testimony, too, that when the deed was
prepared she did not request the scrivener
to name her husband as one of the grantors
or to provide for an acknowledgment of his
signature, but that after the delivery of
the deed, when defendant learned that the
husband would still have an inchoate in-
terest in the land, he desired to obtain that
interest, and procured the plaintiff to for-
ward it to her husband for his signature.
This she did within a few days, but, instead
of signing it, he caused it to be burned.

[1-3] We have here only a question of
fact: Was there an unconditional delivery
of the deed? As has been repeatedly decid-
ed, delivery is largely a matter of intention,
and the test is:
words and acts evidence an intention to
Did the grantor by her
part with control of the instrument, and
regard it as a present, operative, and bind-
ing conveyance? Wuester v. Folin, 60 Kan.
334, 56 Pac. 490; Kelsa v. Graves, 64 Kan.
777, 68 Pac. 607; Doty v. Barber, 78 Kaл.
636, 97 Pac. 964; Zeitlow v. Zeitlow, 84 Kan.
713, 115 Pac. 573. The evidence of the de-
fendant, although contradicted, fairly tends
to support that theory. If the plaintiff,
when she caused the deed to be given to
the defendant, intended to divest herself of
title, the delivery was complete, and the
fact that defendant afterwards handed it
to her to obtain the signature of her hus-
band, so as to accomplish a transfer of his
interest, did not defeat the delivery, made
nor operate as a surrender of the title she
had transferred. Good v. Williams, 81 Kan.
388, 105 Pac. 433, 135 Am. St. Rep. 392;
13 Cyc. 563.

Plaintiff insists that, as the transfer claimed by the defendant is a gift, the proof of delivery should be stronger and more convincing than in case of a purchase on a consideration. It is claimed by defendant that the payment of certain charges against the estate of Mrs. Brewer and the land, paid by him with the knowledge and consent of plaintiff, constituted a sufficient consideration; but, treating the transfer as a pure donation, it must still be held that the evidence was sufficient to support the finding and judgment of the court. Granting that a higher character of proof was necessary, it was the province of the court to determine whether it was sufficiently clear and convincing to prove a delivery of the gift. The fact that there was strong contradictory evidence cannot overthrow the finding of the trial court based, as we have seen,

(Kan.

on evidence which of itself established the to have the order set aside upon the ground fact of delivery. that he had since ascertained that his anJudgment affirmed. All the Justices con- swer was not true. curring. He alleged that it had been made upon the theory that Schell had transferred a meat market to him for a consideration of $650 on which a cash pay

(103 Kan. 604)

JEWELL v. SCHELL (ELLIS, Garnishee). ment of $100 was made, and that he had

(No. 21134.)

(Supreme Court of Kansas. Nov. 9, 1918.)

(Syllabus by the Court.)

1. GARNISHMENT 146, 193–Order on GaRNISHMENT-VACATION-SUFFICIENCY OF AP

PLICATION.

A garnishee who purchased property from the defendant, leaving a balance of the purchase price unpaid, believing that the defendant owned the property, and had the right to transfer it when in fact he had previously disposed of it, made answer in response to the garnishment summons that he was indebted to the defendant for the balance of the purchase price, and an order directing the payment of the money into the court was accordingly made. Shortly afterwards, the garnishee learned that the defendant had previously mortgaged and disposed of the property, and that consequently he was not indebted to the defendant, and further learned that plaintiff had procured the defendant to mortgage the property and had received and applied the proceeds of it upon another account, and therefore knew that the garnishee had not acquired the property and was not indebted for it, and that knowing these things plaintiff had led and allowed the garnishee to believe that the defendant had the right to transfer the property. Held, on application promptly made by the garnishee, that there were sufficient grounds to warrant the court in setting aside the order on the garnishee and in allowing him to correct his answer so as to state the actual facts as to his indebtedness to the defendant.

an

2. GARNISHMENT 105-RIGHTS OF PLAIN

TIFF.

The plaintiff can have no greater rights as against the garnishee than the defendant has, and, where it appears that the garnishee was not in fact indebted to the defendant when the process was served, the plaintiff can claim

nothing from him.

Appeal from District Court, Sherman County.

De

Action by J. M. Jewell against H. C. Schell, with garnishment against Frank Ellis. murrer to garnishee's petition to vacate order to pay money into court overruled, and plaintiff appeals. Affirmed.

C. C. Perdieu, of Goodland, for appellant. Frank J. Horton, of Goodland, for appellees.

learned since his answer was given that the meat market was covered by a chattel mortgage; that Schell had no right to sell or not in fact indebted to Schell in any sum. deliver the property to him; and that he was There was a further allegation that the plaintiff himself had sold the meat market to the defendant and procured the latter to mortgage the property giving the proceeds to plaintiff in part payment of the property sold, and that plaintiff not only knew of the mortgage, but also well knew that by reason of the mortgage the garnishee was not in fact indebted to the defendant in any sum, and with this knowledge plaintiff allowed and led the garnishee to believe that there were no claims against the property. The garnishee states that he was unacquainted with garnishment proceedings; and, on the advice of the clerk of the district court, he made the original answer as to his indebtedness; that he acted in good faith when he gave the mistaken answer, believing that a complete transfer of the property had been made to him, and, when he learned of the mistake and the facts as to the fraud of the plaintiff, he promptly moved to set the order aside. The plaintiff demurred to the petition of the garnishee asking for the vacation of the order, and, it being overruled, the plaintiff appeals.

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[1, 2] It is contended that the grounds stated in the petition did not warrant the court in vacating the order. The averments show clearly enough that the garnishee was mistaken in his original answer. urally supposed that the defendant had the and that, having only paid $100 on the propright to transfer the meat market to him, balance. erty, he was indebted to defendant for the property had been mortgaged, as he had The plaintiff understood that the procured the mortgage to be made and had applied the proceeds of it upon a claim he had against the defendant. He allowed the garnishee to think that he was acquiring the ownership of the property and was indebted JOHNSTON, C. J. This proceeding was to the defendant when he knew of the mortbrought to set aside a garnishment order. gage and that there was in fact no debt. No J. M. Jewell instituted an action for the re- equities arose in favor of the plaintiff by covery of money from H. C. Schell and caus- reason of the answer and order. Upon learned a summons of garnishment to be served ing the facts, the garnishee moved promptly, on Frank Ellis, who appeared and answered and no one was prejudiced by the erroneous that he was indebted to Schell in the sum of answer or the order based on it. In vacating $558. Upon this answer the court ordered the order and allowing a correct answer, the garnishee to pay into court out of the the court did no more than to allow the money in his hands belonging to Schell a truth to be told. If the order is treated as sum sufficient to pay plaintiff's judgment a judgment, it was properly opened up and against defendant, being $539. Shortly aft- vacated. There was not only the mistake of erwards, the garnishee appeared and asked the garnishee, but there was the misrepre

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