TION.

In an action by the wife against a stranger to recover for alienation of the affections of her husband, an instruction which omits the qualification that the defendant must have acted knowingly and intentionally was properly refused.

STRUCTIONS.

[Ed. Note. For other cases, see Husband and Wife, Dec. Dig. § 335.*]

partly on that ground and partly on the ground that the plaintiff had failed to comply with a demand made by the defendant before the trial for an inspection and permission to make copies of any letters or other written communications, which purported to have been written by the defendant to the

Hugh Alexander and Nelson J. Ward, for appellant. B. T. Bullen and W. D. Vance, for appellee.

PORTER, J. Ella M. Powers sued the defendant for damages for the alienation of her husband's affections. There was a trial by a jury and a verdict and judgment in favor of the defendant. While the action was pending here on appeal the plaintiff died and the action has been revived in the name of her personal representatives. The defendant has filed a motion to dismiss on the ground that the action being in tort, it is not one which survives. The motion to dismiss must be overruled. The code provision which controls reads in part: "No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution for a nuisance, or against a justice of the peace for misconduct in office. Section 421, old Code Civ. Proc.; section 418, Code Civ. Proc. 1909; Gen. St. 1909, § 6013. There is a claim that the action survives because it is "for an injury to the person," within the meaning of section. 420 of the old Code (section 417, Code Civ. Proc. 1909; Gen. St. 1909, § 6012), providing that in addition to the causes of action which survive at common law those "for an injury to the person" survive, but this contention cannot be sustained for the reason that the language used in that section refers to physical injuries. The cause of action survives, however, under the provisions of the first section quoted, supra, because it was pending in court at the time of the death of the plaintiff. The only

5961), which reads as follows: "Either party or his attorney, if required, shall deliver to the other party or his attorney a copy of any deed, instrument, or other writing whereon the action or defense is founded, or which

he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused."

The plaintiff claims that it was error to exclude the evidence because no order was obtained from the court or judge requiring compliance by the plaintiff with the demand. Where the party desiring the inspection of a paper or permission to take a copy proceeds under section 368 of the old Code (section 365, Code Civ. Proc. 1909 [Gen. St. 1909, § 5960]) and obtains an order of the court requiring compliance with the demand, the trial court or judge may, upon refusal to produce, exclude the paper or document from being given in evidence, or, if the party applying for the order desires to use it as evidence, may direct the jury to presume it to be such as the party applying for the order by affidavit alleges it to be. The procedure in this case was not under that section, but under the section following, and the evidence was not admissible, because of the failure of the plaintiff to comply with the demand which in every respect followed the statute and was sufficiently definite and certain.

The plaintiff asked an instruction to the effect that it was unnecessary to find that the alleged misconduct of the defendant was the sole cause of plaintiff's husband leaving plaintiff, but that it would be sufficient, if

the jury believed from the evidence that the defendant's acts and conduct constituted one of the causes.

This instruction does not state the law correctly. It omits the qualification that the defendant must have acted intentionally or knowingly. Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492; 3 Elliott on Evidence, §§ 1643, 1644. The difference, however, is only that which arises from the natural presumptions indulged in favor of the parent. It is well established that to recover in such an action against a parent stronger evidence of improper motives is required than where the action is against a stranger, because parents have the natural right to manifest affection and give advice and protection to a child, unless they act with malice or improper motives which amount to malice. Eagon v. Eagon, 60 Kan. 697, 705, 57 Pac. 942; Brown v. Brown, 124 N. C. 19, 32 S. E. 320, 70 Am. St. Rep. 574; Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638, 51 Am. St. Rep. 310; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, 26 L. R. A. 412, 46 Am. St. Rep. 468; 16 A. & E. Enc. of Law, 866. In his work on evidence, Mr. Elliott says: "In actions against parents of either the husband or wife of the plaintiff, a much stronger rule prevails concerning the burden of proof, and plaintiff must not only show improper motives of the parent, but that the alienation was, in a sense, maliciously brought about. Where the action is against a stranger, the plaintiff need only show that it was wrongfully brought about." 3 Elliott on Evidence, § 1643.

Besides, the court correctly charged the jury that in order for the plaintiff to recover it was necessary to show that it was the efforts of the defendant which were the controlling cause that destroyed the affection which plaintiff's husband had for her and caused their separation, and that the acts of the defendant were done knowingly and intentionally, for the purpose of alienating the husband's affections.

Another instruction asked by the plaintiff and refused was that even if the defendant was in no way responsible for the alienation of the affections of the plaintiff's husband, yet if they believed that the defendant committed adultery with the husband while the plaintiff and husband were living together and consorting as husband and wife, they should find for the plaintiff. It is sufficient answer to the complaint of error that the petition nowhere alleges adultery, and the instruction was therefore properly refused. It is true, the word "seduce" is used in the petition, but it is used synonymously with the words "entice" or "influence," the language being that defendant "wrongfully, wickedly, and maliciously, and for the purpose of separating plaintiff's husband from her and depriving plaintiff of all her rights," began and pursued a systematic course of

conduct "to seduce, entice, and influence plaintiff's said husband to leave and abandon" plaintiff. From the context it is obvious that "seduce" was employed as a word synonymous with "entice" or "influence."

Adultery is not charged in the petition either as one of the means of alienation or as a basis for damages. In this class of cases some courts have ruled that evidence of adultery is not admissible, in the absence of an averment in the petition. In a recent case, just reported in 129 Ky. 1, 110 S. W. 260, 16 L. R. A. (N. S.) 742, 130 Am. St. Rep. 419, Scott v. O'Brien, the Court of Appeals of Kentucky held that there is no ground for an action on the mere proof of abandonment, and that the husband or wife maintains improper relations with the defendant, in the absence of any proof to show that the defendant wrongfully alienated the affections of the plaintiff. In that case, as in this, the wife sued another woman for alienating the affections of the husband, and the action was not based on adultery.

We find no error in the instructions nor in the admission of testimony. The cross-examination of defendant's witnesses was not unduly restricted. They admitted in answer to numerous other questions that they were friendly to the defendant and unfriendly to the plaintiff.

Upon a conflict of testimony the jury found for the defendant, and upon the record the judgment must be affirmed. All the Justices concurring.

(83 Kan. 96)

FARMERS' ALLIANCE INS. CO. OF KAN-
SAS v. ATCHISON, T. & S. F.
RY. CO. et al.

(Supreme Court of Kansas. July 9, 1910.) (Syllabus by the Court.)

1. EVIDENCE (§ 441*)-MODIFICATION.

A release given upon a settlement for damages by fire caused by negligence of a railway company, which if it be the only written instrument embracing the terms of the settlement, bars any further claim, may still be modified by a cotemporaneous written agreement providing that the claimant is to have the amount of a policy of insurance on the property destroyed in addition to the sum paid by the railway company at the time the release was given.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 441.*]

2. EVIDENCE (§ 441*)-RELEASE (§ 57*)-MODIFICATION-EVIDENCE-PAROL EVIDENCE.

claimant assigned his claim for the amount of After such a settlement as stated above, the the insurance to the insurance company, and that company then paid the amount of the policy to him, and then, learning that the railway company claimed that it had made a full settlement of the damages and held a release therefor, sued the claimant and the railway company jointly for the amount it had so paid. The claimant pleaded another written agreement executed as a part of, or cotemporaneous with, the release, that he should have the amount of the policy in addition to the amount paid by the

railway company.

evidence.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 441;* Release, Dec. Dig. § 57.*]

(Additional Syllabus by Editorial Staff.) 3. CONTRACTS (§ 164*)-CONSTRUCTION-DIFFERENT WRITINGS COMPRISING THE CONTRACT.

Where two written instruments executed at the same time, concerning the same transaction, comprise a contract, they should be construed together so as to give effect to both when it can be reasonably done.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 746-748; Dec. Dig. § 164.*] Appeal from District Court, Rice County. Action by the Farmers' Alliance Insurance Company of Kansas against the Atchison, Topeka & Santa Fé Railway Company and D. E. Hanks. Judgment for defendant Hanks, and plaintiff appeals. Affirmed.

The insurance company insured property of Hanks which was afterwards destroyed by fire through the negligence of the railway company. Hanks settled with the railway company receiving $3,200 on account of the loss. The railway company claimed that the settlement was for the entire loss. Hanks claimed that he was to have $500, the amount of the policy of insurance, in addition to the sum of $3,200, so received. The policy contained a subrogation clause. After this settlement Hanks assigned his claim against the railway company for this $500 to the insurance company, stating in the assignment that it was the amount retained by the railway company in the settlement. On receipt of this assignment the insurance company paid the amount of the policy to Hanks. After learning that the railway company claimed to have paid Hanks the full amount of the loss, the insurance company commenced this action against Hanks and the railway company to recover the $500 so paid. Attached to the petition is a copy of a release given by Hanks to the railway company which purports to be in full satisfaction and discharge of the entire loss. Hanks answered that in the settlement with the railway company the right had been reserved to him to receive this sum from the insurance company, alleging that the terms of the settlement, reduced to writing, so provided. By a cross-petition against the railway company he also pleaded his right to this $500, and prayed that this right should be confirmed, and for equitable relief. The railway company demurred to the petition which demurrer was sustained. The insurance company replied to the answer of Hanks averring that all the terms of the settlement

Allen & Allen and Geo. S. Allen, for appellant. Samuel Jones, for appellee.

BENSON, J. (after stating the facts as above). The question tried by the jury was Whether the release pleaded contained all

the terms of the settlement, the appellee contending that it did not; that another writing was executed with it as a part of the agreement whereby the right of the appellee to the insurance money was reserved to be paid to him in addition to the $3,200. Upon this issue the jury made the findings which follow: "(1) Did the written contract or contracts between the A. T. & S. F. Ry. Co. and D. E. Hanks, by which the railroad company settled its liability for the fire, provide that D. E. Hanks should have the right to collect the insurance policy on the property? Ans. Yes. Does Exhibit A-the so-called release-contain the whole of the written contract or contracts between D. E. Hanks and the railway company made at the time of the release of the company? Ans. No. Was it the written contract between D. E. Hanks and the railroad company that D. E. Hanks should have the sum of $3,200 from the railway company and the right to collect the insurance policy on the property? Ans. Yes. Was any other written instrument executed by either the said D. E. Hanks or E. H. Hemus at the time of the execution of said release and draft except the affidavit in evidence as Exhibit C? Ans. A question of doubt, but answered yes. If you answer the foregoing question in the affirmative, then state fully by whom such instrument was executed and what its terms and provisions were. Ans. Terms and provisions were that defendant should be permitted to collect the insurance. Evidence does not prove."

Other findings are that the release pleaded had not been changed since it was signed, and that it was not obtained by fraud. The facts then are established that there was no fraudulent alteration of the release pleaded but that another writing made and delivered with it gave the appellee the right to the insurance money, which is the subject of this action.

It is contended that these findings are bas

vary the terms of another writing executed at the same time. The court limited the evidence to this particular issue, and no error is found in the rulings. Instructions submitting this issue are also complained of upon the ground that the jury were allowed to predicate their findings upon a parol modification of a written agreement, but this is not the effect of the instructions, for the court stated that the antecedent parol negotiations were not to be considered for the purpose of determining what the real contract was but for the purpose of ascertaining whether the written agreement as alleged was that to which the parties assented, and directed the jury to find what the written contract was. They were informed that the writing or writings embodying the agreement must govern. Although some of the language used in the instructions may be subject to criticism, any merely verbal inaccuracy is immaterial, especially in view of the finding that there was an additional written agreement, and finding that its terms were as the appellee had alleged.

It is urged that as the release upon its face purports to be complete, parol evidence cannot be allowed to extend its obligations. This rule however does not apply where the parol evidence is offered merely to prove another cotemporaneous written contract which with the release constitute the agreement. All cotemporaneous writings relating to the same subject-matter are admissible to show the entire agreement. Greenleaf on Evidence, §§ 277-283; Wilson et al. v. Randall, 67 N. Y. 338. "Where two written instruments, executed at the same time concerning the same transaction, comprise the contract between the parties, they should be construed together so as to give force and effect to both of them, when it can be reasonably done." Windmill Co. v. Piercy, 41 Kan. 763, 21 Pac. 793.

The appellee argues that as the issues between the railway company and himself were found in his favor, and the railway company did not appeal, the terms of the settlement are res judicata, and the appellant has no standing in this court for that reason. It is not necessary to consider this question, as the judgment must be affirmed for the reasons already given.

without proof whether filing a transcript of the judgment of a justice of the peace in a circuit effect of a judgment of the circuit court. court of that state gives to such judgment the

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 51; Dec. Dig. § 35.*] 2. JUDGMENT (§ 291*) RECORD FILING TRANSCRIPT OF JUSTICE'S JUDGMENT IN CIRCUIT COURT-EFFECT.

souri to be like those of this state, the filing of Assuming the statutes of the state of Missuch a transcript in a circuit court does not have the effect of making the judgment of the justice of the peace the judgment of the circuit court.

Cent. Dig. §§ 573, 574; Dec. Dig. § 291.*] [Ed. Note. For other cases, see Judgment, 3. EVIDENCE (§ 347*) - DOCUMENTARY EVIDENCE JUSTICE'S JUDGMENT IN SISTER STATE.

In order to make such a judgment admissible in evidence as an offset in an action prosecuted in one of the courts of this state, a transcript of the circuit court record, duly certified according to the act of Congress, is not sufficient. A transcript of the justice's judgment must be certified according to the statute of this state; the act of Congress not being applicable. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 1378; Dec. Dig. § 347.*] 4. JUDGMENT (§ 826*)-FOREIGN JUDGMENTS— FULL FAITH AND CREDIT-JUSTICE'S JUDGMENT.

A judgment of a justice of the peace of antion of the full faith and credit clause of the other state may be brought within the protecfederal Constitution; but there are no presumptions in favor of the authority or jurisdiction of such an officer, and those facts must be esknown to what faith and credit his acts and tablished in some lawful way before it can be proceedings are entitled in this state.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1452; Dec. Dig. § 826.*]

Appeal from District Court, Miami County; W. H. Sheldon, Judge.

Action by John Hindman against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant ap

peals. Affirmed.

John Madden and W. W. Brown, for appellant. Frank M. Sheridan and Charles T. Meuser, for appellee.

BURCH, J. The plaintiff sued the defendant for wages and recovered. On the trial an exemplification of the record of the circuit court of Jackson county, Mo., was admitted in evidence on behalf of the defend

(83 Kan. 35)

MISSOURI, K. & T. RY. CO. v. HINDMAN. (Supreme Court of Kansas. July 9, 1910.)

(Syllabus by the Court.)

1. EVIDENCE (§ 35*)-JUDICIAL NOTICE-EFFECT OF FILING TRANSCRIPT OF JUSTICE'S JUDGMENT IN CIRCUIT COURT OF OTHER STATE.

Judicial notice not being taken of the statutes of the state of Missouri, it cannot be known

from a justice of the peace purporting to show the proceedings in a garnishment action pending before him, terminating in a garnishee, in favor of a creditor of the plainjudgment against the railway company as

tiff here, who was served by publication. The court ignored this evidence in its instructions to the jury, and the defendant claims the full faith and credit clause of the federal Constitution has been violated.

The courts of this state will take notice of the Constitution of the state of Missouri