THE PACIFIC REPORTER VOLUME 171 (102 Kan. 400) plaintiff's hands off the handholds caused EASTMAN v. ATCHISON, T. & S. F. RY. him to fall; that the train was moving about CO. (No. 21261.) (Supreme Court of Kansas. Feb. 9, 1918. Rehearing Denied March 15, 1918.) (Syllabus by the Court.) 1. MASTER AND SERVANT 264(11)-ACTION FOR INJURY-ALLEGATION AND PROOF-VARIANCE. The plaintiff alleged that the defendant's roadmaster directed him to board a car which it had negligently left in an unsafe condition. The jury found the negligence to consist of the direction of the roadmaster to board the car. Held that, as the negligence charged was not proved, the plaintiff cannot recover. 2. TRIAL 350(6)- SPECIAL FINDINGS-REQUEST TO FIND ACTS OF NEGLIGENCE. It is proper practice to request the jury to find what the defendant's acts of negligence were. 3. TRIAL 351(2)-SUBMISSION OF SPECIAL QUESTION. A submitted question is examined, and not found to contain any pitfall or trap for the unwary juror. Appeal from District Court, Harper County. Action by C. W. Eastman against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with direction to enter judgment for defendant. W. R. Smith, O. J. Wood, and A. A. Scott, all of Topeka, for appellant. E. C. Wilcox and Myrtle Youngberg, both of Anthony, and H. C. Kirkendall, of Cherokee, Okl., for appellee. a mile an hour when the roadmaster motioned or told him to get on board, and four or five miles an hour when the plaintiff received his injury; that the roadmaster directed him to get on when to any one using ordinary prudence it was obviously of great danger for plaintiff to make the attempt; that if he had attempted to board the car where the roadmaster was standing when first told so to do, he would not have gotten on without injury; that the plaintiff was damaged $1,300, to which he contributed $300 by his own negli. gence. "Q. 2. If you find for plaintiff, then state in what respect the defendant was negligent, at the time and place in question. A. The defendant company was negligent in that Roadmaster Carpenter requested or signaled the plaintiff to board its train." It will be observed that there was no allegation of negligence on the part of the roadmaster, and the jury found none regarding The defendant the condition of the train. therefore invokes the rule that the charged negligence was not found, and hence there can be no recovery. To this the plaintiff responds that the found negligence is restricted to the immediate time and place of the injury. and should be construed together with the general verdict, the finding meaning that the roadmaster was negligent in directing the plaintiff to board the train, and the general verdict meaning that the company was negligent in respect to the condition of the WEST, J. The plaintiff, a section foreman, car. The trouble with this argument is that recovered a judgment for injuries received the jury had a chance and were specially rein boarding a passenger train. The defend-quested to advise the parties what the deant appeals. fendant's negligence consisted of, and left out [1] The petition alleged that, being where everything but the direction to get on board, his duties of inspecting the track and super-something which the plaintiff had not in his intending the repair thereof required him to petition denounced or even denominated as be, he was ordered and motioned by the roadmaster, who was standing on the platform of a coach of one of defendant's trains, to get on the back end of the coach and ride with him to the depot; that the defendant had negligently failed to provide the coach with proper steps, but had permitted them to get old and worn and slanted and covered with sleet and ice, and in attempting to get on the car he slipped and fell and was dragged and inJured. The jury found that the slipping of negligence. McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Spinden v. Railway Co., 95 Kan. 475, 480, 148 Pac. 747; Case v. Yoakum, 99 Kan. 253, 161 Pac. 642; Parks v. Railway Co., 100 Kan. 219, 163 Pac. 1066. [2] The plaintiff also appeals, and complains that the court permitted the jury to answer the quoted question No. 2, and also No. 9, which, with its answer, is as follows: "Q. 9. Did the roadmaster, Carpenter, direct the plaintiff to get on the train when to any For other cares see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes one using ordinary prudence it was obviously of great danger for plaintiff to attempt to get on? A. Yes." Appeal from District Court, Reno County. Suit for injunction by the Riverside Park Association against the City of Hutchinson The objection to No. 2 was that it was and others. Judgment for plaintiff, and de"improper to require the jury to enumerate fendants appeal. Reversed and cause rethe acts of negligence by a question so form-manded, with instructions to enter judgment ed," and to No. 9 that it was "formed in for defendants. such a way that it was liable to mislead the jury and cause an answer the reverse of their intention." It is urged that the jury should not have been left to say what the defendant's negligence was, but should have been given a direct question which could be answered by "Yes" or "No." This very sort of question, however, was held proper in Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177, and in Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999. [3] Question No. 9 is referred to by counsel as one "framed by the most skilled wording of high-classed specialists, calculated to induce a miscarriage of the justice," and it is said that, if the answer is "Yes," it finds the defendant guilty of contributory negligence, and, if "No," it finds the defendant guilty of no negligence. But this does not condemn the question, which asks for something which the parties have a right to know, and in which we fail to discover any pitfall or trap to catch the unwary juror. We have overlooked nothing suggested by either side, and fail to find in the record any error materially prejudicial to the plaintiff, but are impelled by the settled rule heretofore repeatedly announced to hold that the negligence relied on by the plaintiff was not shown, and hence that he failed in his action and cannot recover. The judgment is reversed, with directions to enter Juugment for the defendant. the Justices concurring. (102 Kan. 488) RIVERSIDE PARK ASS'N v. CITY OF (Syllabus by the Court.) All SPE- Walter F. Jones, of Hutchinson, for appellants. E. T. Foote, of Hutchinson, for appellee. MUNICIPAL CORPORATIONS 513(5) CIAL IMPROVEMENT ASSESSMENT FOR INJUNCTION-LIMITATIONS. On July 30, 1915, a contract was made for The statutory limitation that an action cannot be maintained to enjoin or contest a the paving, and as first drawn up it providspecial assessment for the improvement of a ed for the paving to extend to the river, but street unless it is begun within 30 days after it was afterward changed (and according the amount due on each lot or piece of ground assessed is ascertained (Gen. St. 1915, § 1217) applies to invalidity as well as irregularity in the proceedings, including objections that the taxing district extends over too much ground, and also where the land assessed included abutting ground not platted, and also lots and blocks lying beyond the unplatted part which did not abut on the improved street. Invalid proceedings of the kind named, which would defeat an assessment if attacked in time, are not open to attack if the time limit has expired. to the testimony of the city clerk, without authority for the change) to read, from Avenue F to the south line of Riverside addition and Handy's addition. On November 17, 1915, appraisers appointed by the city commissioners made an appraisement of lots 275 to 285 in Riverside addition and lots 276 to 288 in Handy's addition, but nothing south of that was included in the report. On November 26, 1915, the city the assessment was fraudulent and void. commissioners, acting as a board of equal- The Legislature manifestly intended to bar ization, made some changes in the apprais- an action for every defect, whether it be for ers' report, and then also included an as- irregularity, or invalidity, if not begun withsessment of lots 20 to 32 in Dixon's addition, in the prescribed time. Within that time tract A, tract C, and Belle Dixon tract; and the plaintiff might have contested the right in an ordinance published February 17, 1916, of the city commissioners to make an assessthe assessment for all of the lots and tracts ment on property which the appraisers had mentioned was made. Plaintiff is the owner not included in their report and also where of lots 23 to 32 and tracts C and D in Dix- the taxing district had extended beyond the on's addition, and taxes upon this property, legal limits. The intention of the Legislature except tract D, were certified by the city was that public improvements should not be clerk upon the roll, to be collected. Plain-long delayed by contests of this character nor tiff's action to enjoin its collection was the assessment proceedings interrupted by bebrought December 11, 1916. The pavement was completed as far as the point where the horizontal lines are shown on the plat, awaiting the completion of a new bridge by the county. The pavement on the approach to the bridge, indicated on the plat by the vertical lines, is to be paid for by the county. The injunction prayed for was granted as to lots 23 to 32 in Dixon's addition. The defendants appeal. The only question we need to consider is one of limitation on the right of plaintiff to enjoin or contest the levy of the special assessment. Under a statutory provision the right to enjoin or contest such a levy can be exercised only within 30 days after the assessment is ascertained. Gen. Stat. 1915, § 1217. Plaintiff did not commence this action until ten months after the assessment had been ascertained. It is insisted by the plaintiff that the city acted without authority, in that it assessed property not adjoining the street to be improved, and also that the assessment attempted was not made in the manner prescribed by law. The bar of the statute applies even if the defendants acted without authority in the inclusion of properIt ty that was not subject to assessment. has already been determined that the 30-day limitation applies to void assessments as well as to irregular ones. City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82. In Rockwell V. Junction City, 92 Kan. 513, 141 Pac. 299, Ann. Cas. 1916B, 315, and the same case on rehearing, 93 Kan. 1, 142 Pac. 268, it was ruled that the limitation in question cuts off all defenses of every kind and character, including assessments fraudulently made and those which were made without jurisdiction or authority. That holding has been followed and approved in Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Arment v. Dodge City, 97 Kan. 94, 154 Pac. 219; Wyandotte County v. Haskell, 97 Kan. 304, 154 Pac. 1029. No more reason can be found for excepting from the limitation a defense that the assessment is invalid because of including platted and unplatted land or land extending too far from the improved street than there was for excepting a defense that lated litigation; and so property owners who propose to challenge an assessment for any kind of defect are required to do so promptly or not at all. The validity of such a law is beyond question. It follows that the judgment must be reversed and the cause remanded, with instructions to enter judgment for the defendants. All the Justices concurring. Proof of a feeling of insecurity was sufficient to support the plaintiff's allegation that it deemed itself insecure; the reasonableness of such feeling being immaterial. Appeal from District Court, Ellis County. Replevin by the First National Bank of Hays City, Kan., against A. P. Staab and Jacob P. Staab. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded. A. D. Gilkeson and C. M. Holmquist, both of Hays, and C. Monroe, of Topeka, for appellant. E. A. Rea and J. P. Shutts, both of Hays, for appellees. WEST, J. The plaintiff bank loaned Jacob Staab $175.25, taking his note payable on demand, which note his father was to but did not sign, secured by a chattel mortgage on some wheat and other property already mortgaged to the bank by the defendants to secure indebtedness which had been running and accumulating for a number of years. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes no wise indicated either, but also went counter to the rule that the plain terms of a promissory note cannot be varied by oral testimony. This rule is clearly set forth in Stevens v. Inch, 98 Kan. 306, 158 Pac. 43, and Bank v. Paper Co., 98 Kan. 350, 158 Pac. 44. It is but fair, however, to say that both of these decisions were rendered after the trial of this action. The bank brought replevin, and in its affida- | the answer which did not allege any fraud vit fixed the value of the wheat at $3,000, or mutual mistake and the evidence which in and the other property at $1,730. No rede livery bond was given. The bank sold the wheat for $600 and the other property for $971.50. The defendants pleaded an oral agreement on the part of plaintiff's cashier when the note of Jacob Staab was given that no action would be taken on the chattel mortgages until the wheat was threshed and marketed, and prayed judgment for a return of the property or the sum of $4,500 and costs. The defendants recovered a judgment for $3,900, and the plaintiff appeals, assigning as errors the admission of evidence as to the alleged agreement and certain other rulings touching evidence and instructions. [3] It is complained that the affidavit was permitted to go to the jury on the question of the value of the property. The court refused an instruction that it should not be considered, and charged that while not an absolute test of the value, and while made [1, 2] The principal complaint is that the only for the purpose of fairly approximating alleged parol agreement contradicted the the value in fixing the amount of bond to terms of the note given by Jacob Staab. The be given, it might be considered so far as it latter testified: That when he gave this de- threw light upon the question of a feeling of mand note he thought it was the same as insecurity. There was no error in this of any other, and would “give a man time; which the plaintiff can complain, for the thirty days or ninety days." That he un- court might have gone further and charged derstood from the cashier from what he said that the affidavit might be considered touchthat he was to pay after the wheat was ing the question of value and the plaintiff's threshed and marketed, and that he would estimate thereof. Crawford v. Furlong, 21 not have signed these notes and chattel mort-Kan. 698, Hoisington v. Armstrong, 22 Kan. gage if he had known that the bank would 110, Mills v. Mills, 39 Kan. 455, 18 Pac. 521, demand payment within 30 days and before and 34 Cyc. 1605. the wheat was threshed and marketed. cross-examination he testified that: On The note was not to be paid until after harvest. "Q. Who told you that? A. Mr. Madden. Q. What did he say? Give us his exact language. A. 'Now,' he says, 'I want you to straighten out these notes this fall.' I says, 'I will just as soon as I thresh.' I says, I can't pay them before that.' Q. And that is what he said? A. Yes. Q. He didn't say he would not try to collect them before that; he had any particular time? A. No; he never said that." The court instructed that: * * * [4] On the question as to whether the bank actually deemed itself insecure, the jury were correctly charged that if, when the property was taken, the cashier took possession with the conviction of insecurity in his mind, that was sufficient. The cashier not only testified to this feeling of insecurity, but gave cogent reasons therefor. It is complained that there was no evidence to the contrary, and that the jury were erroneously permitted to pass on the question. The court instructed that: As the cashier had testified that he had such feeling at the time "then upon the facts of the case if you think it is at all fairly and reasonably possible to believe that he had such feelheld that the bank had a right to take possesing, then you should so find, and it should be sion of the property." There is nothing on the face of the record to impugn his credibility in the slightest, except the matter of value fixed in the affidavit, but this particular part of the charge is not complained of. "Evidence has been presented as to the agree ment regarding the maturity of the note given by Jacob P. Stabb and of the alleged extension of his father's note until threshing or marketing time. If, at the time that the defendant Jacob P. Staab signed the notes in controversy, ho and the bank made an agreement to the effect that payment thereon was not to be made nor demanded until after the wheat of the defendant was threshed and marketed, and if it was understood and agreed at such time between said defendant and the bank that said notes should not mature nor be One of the provisions of the mortgage was due and payable until after threshing and marketing the wheat, such agreement, if any, would that possession might be taken if the bank be binding upon the plaintiff as well as the de- should deem itself insecure. It was alleged fendant, even though the note taken provided that it did so deem itself. The answer conthat it was due and payable on demand,' pro-tained a general denial. It was proper, vided that by reason either of accident or mutual mistake of both parties, or of fraud on the part of the bank, the note did not express the contract or agreement of the parties in relation to the maturity of said note." We are compelled to hold that this instruction not only went beyond the allegations of therefore, to permit proof as to such alleged feeling of insecurity; the reasonableness thereof being entirely immaterial. The judgment is reversed, and the cause remanded for further proceedings. All the Justices concurring. |