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4. HUSBAND AND WIFE (8 325*)—ALIENATION | actions which abate by the death of either or OF HUSBAND'S AFFECTIONS_RIGHT OF AC- both of the parties when the action is pend

In an action by the wife against a stranger ing are those which are specifically mentionto recover for alienation of the affections of ed in section 418. her husband, an instruction which omits the qualification that the defendant must have act: tiff offered in evidence a letter or fragment

During the progress of the trial the plained knowingly and intentionally was properly refused.

of a letter which she claimed was written [Ed. Note.-For other cases, see Husband by the defendant to plaintiff's husband. She and Wife, Cent. Dig. § 1119; Dec. Dig. $ 325.*] testified that she found the paper in her 5. HUSBAND AND WIFE ($ 335*)-ALIENATION husband's suitcase and that she knew it to

OF HUSBAND'S AFFECTIONS - ACTION — IN- be the handwriting of the defendant. It was
STRUCTIONS.
In such an action, where there is no aver-

not addressed to any person nor signed by ment in the petition charging adultery either any one, and the trial judge stated that he as one of the means of alienation or as a basis was unable to read it intelligently. The obfor damages, an instruction was properly re-Ijection to its introduction was sustained fused which charged that if the defendant was in no way responsible for the alienation of the partly on that ground and partly on the affections of the husband, yet if the jury be- ground that the plaintiff had failed to comlieved that the defendant committed adultery ply with a demand made by the defendant with the husband while the plaintiff and busband were living together as husband and wife, before the trial for an inspection and permisthey should find for the plaintiff.

sion to make copies of any letters or other (Ed. Note.-For other cases, see Husband written communications, which purported to and Wife, Dec. Dig. 335.*]

have been written by the defendant to the Appeal from District Court, Republic plaintiff's husband. The notice was a formCounty; W. T. Dillon, Judge.

al one obviously given under the provisions of Action by Ella M. Powers against Nora section 369 of the old Code Civ. Proc. (section Sumbler. Judgment for defendant, and plain- 366. Code Civ. Proc. 1909; Gen. St. 1909, š tiff appeals. Affirmed.

5961), which reads as follows: "Either party Hugh Alexander and Nelson J. Ward, for or his attorney, if required, shall deliver appellant. B. T. Bullen and W. D. Vance, to the other party or his attorney a copy of for appellee.

any deed, instrument, or other writing where

on the action or defense is founded, or which PORTER, J. Ella M. Powers sued the de- he intends to offer in evidence at the trial. fendant for damages for the alienation of If the plaintiff or defendant shall refuse to her husband's affections. There was a trial furnish the copy or copies required, the party by a jury and a verdict and judgment in fa- so refusing shall not be permitted to give in vor of the defendant. While the action was evidence at the trial the original of which pending here on appeal the plaintiff died a copy has been refused.” and the action has been revived in the name

The plaintiff claims that it was error to of her personal representatives. The defend- exclude the evidence because no order was ant has filed a motion to dismiss on the obtained from the court or judge requiring ground that the action being in tort, it is not compliance by the plaintiff with the demand. one which survives. The motion to dismiss Where the party desiring the inspection of a must be overruled. The code provision which paper or permission to take a copy proceeds controls reads in part: "No action pending under section 368 of the old Code (section in any court shall abate by the death of ei- 365, Code Civ. Proc. 1909 (Gen. St. 1909, $ ther or both the parties thereto, except an 5960]) and obtains an order of the court reaction for libel, slander, malicious prosecu- quiring compliance with the demand, the tion for a nuisance, or against a justice of trial court or judge may, upon refusal to the peace for misconduct in office.

produce, exclude the paper or document from Section 421, old Code Civ. Proc.; section 418, being given in evidence, or, if the party apCode Civ. Proc. 1909; Gen. St. 1909, § 6013. plying for the order desires to use it as evi

There is a claim that the action survives dence, may direct the jury to presume it to because it is "for an injury to the person," be such as the party applying for the order within the meaning of section. 420 of the old by affidavit alleges it to be. The procedure Code (section 417, Code Civ. Proc. 1909; Gen. | in this case was not under that section, but St. 1909, $ 0012), providing that in addition to under the section following, and the evidence the causes of action which survive at com- was not admissible, because of the failure mon law those "for an injury to the person” of the plaintiff to comply with the demand survive, but this contention cannot be sus- which in every respect followed the statute tained for the reason that the language used and was sufficiently definite and certain. in that section refers to physical injuries. The plaintiff asked an instruction to the The cause of action survives, however, under effect that it was unnecessary to find that the provisions of the first section quoted, su- the alleged misconduct of the defendant was pra, because it was pending in court at the the sole cause of plaintiff's husband leaving time of the death of the plaintiff. The only ! plaintiff, but that it would be sufficient, if *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep's Indexes

as

the jury believed from the evidence that the conduct "to seduce, entice, and influence defendant's acts and conduct constituted one plaintiff's said husband to leave and abanof the causes.

don” plaintiff. From the context it is obThis instruction does not state the law vious that "seduce” was employed as a word correctly. It omits the qualification that the synonymous with "entice" or "influence." defendant must have acted intentionally or Adultery is not charged in the petition eiknowingly. Nevins v. Nevins, 68 Kan. 410, ther as one of the means of alienation or 75 Pac. 492; 3 Elliott on Evidence, 88 1643, a basis for damages. In this class of cases 1644. The difference, however, is only that some courts have ruled that evidence of adulwhich arises from the natural presumptions tery is not admissible, in the absence of an indulged in favor of the parent. It is well averment in the petition. In a recent case, established that to recover in such an action just reported in 129 Ky. 1, 110 S. W. 260, 16 against a parent stronger evidence of im- L. R. A. (N. S.) 742, 130 Am. St. Rep. 419, proper motives is required than where the Scott v. O'Brien, the Court of Appeals of action is against a stranger, because parents Kentucky held that there is no ground for have the natural right to manifest affection an action on the mere proof of abandonment, and give advice and protection to a child, and that the husband or wife maintains imunless they act with malice or improper mo- proper relations with the defendant, in the tives which amount to malice. Eagon v. absence of any proof to show that the deEagon, 60 Kan. 697, 703, 57 Pac. 942; Brown fendant wrongfully alienated the affections v. Brown, 124 N. C. 19, 32 S. E. 320, 70 Am. of the plaintiff. In that case, as in this, the St. Rep. 574; Reed v. Reed, 6 Ind. App. 317, wife sued another woman for alienating the 33 N. E. 638, 51 Am. St. Rep. 310; Clow v. affections of the husband, and the action Chapman, 125 Mo. 101, 28 S. W. 328, 26 L. was not based on adultery. R. A. 412, 46 Am. St. Rep. 468; 16 A. & E. We find no error in the instructions nor in Enc. of Law, 866. In his work on evidence, the admission of testimony. The cross-exMr. Elliott says: "In actions against parents amination of defendant's witnesses was not of either the husband or wife of the plain- unduly restricted. They admitted in antiff, a much stronger rule prevails concerning swer to numerous other questions that they the burden of proof, and plaintiff must not were friendly to the defendant and unfriendonly show improper motives of the parent, ly to the plaintiff. but that the alienation was, in a sense, ma Upon a conflict of testimony the jury liciously brought about. Where the action is found for the defendant, and upon the record against a stranger, the 'plaintiff need only the judgment must be affirmed. All the Jusshow that it was wrongfully brought about.” tices concurring. 3 Elliott on Evidence, & 1643. Besides, the court correctly charged the

(83 Kan. 96) jury that in order for the plaintiff to recover it was necessary to show that it was the FARMERS' ALLIANCE INS. CO. OF KANefforts of the defendant which were the con

SAS V. ATCHISON, T. & S. F.

RY. CO. et al. trolling cause that destroyed the affection which plaintiff's husband had for her and (Supreme Court of Kansas. July 9, 1910.) caused their separation, and that the acts of

(Syllabus by the Court.) the defendant were done knowingly and in- 1. EVIDENCE (S. 441*)—MODIFICATION. tentionally, for the purpose of alienating the A release given upon a settlement for damhusband's affections.

ages by fire caused by negligence of a railway Another instruction asked by the plaintiff company, which if it be the only written instruand refused was that even if the defendant bars any further claim, may still be modified by

ment embracing the terms of the settlement, was in no way responsible for the alienation a cotemporaneous written agreement providing of the affections of the plaintiff's husband, that the claimant is to have the amount of a yet if they believed that the defendant com- policy of insurance on the property destroyed in

addition to the sum paid by the railway committed adultery with the husband while the pany at the time the release was given. plaintiff and husband were living together [Ed. Note.-For other cases, see Evidence, and consorting as husband and wife, they Dec. Dig. 8 441.*] should find for the plaintiff. It is sufficient 2. EvIDENCE (8 441*)-RELEASE (8 57*)—Modianswer to the complaint of error that the FICATION—EVIDENCE-PAROL EVIDENCE. petition nowhere alleges adultery, and the claimant assigned his claim for the amount of

After such a settlement as stated above, the instruction was therefore properly refused. the insurance to the insurance company, and It is true, the word "seduce” is used in the that company then paid the amount of the polpetition, but it is used synonymously with icy to him, and then, learning that the railway the words “entice” or “influence,” the lan- tlement of the damages and held a release there

company claimed that it had made a full setguage being that defendant "wrongfully, for, sued the claimant and the railway comwickedly, and maliciously, and for the pur- pany jointly for the amount it had so paid. The pose of separating plaintiff's husband from claimant pleaded another written agreement ex

ecuted as a part of, or cotemporaneous with, the her and depriving plaintiff of all her rights,” release, that he should have the amount of the began and pursued a systematic course of policy in addition to the amount paid by the

TRACT.

railway company.

Parol evidence was given were embraced in the release. The abstract tending to prove the additional cotemporaneous does not show what, if any, reply was made agreement as alleged, and the contents of such agreement. It is held (1) that this evidence by the railway company to the cross-petition. was properly received; (2) that it supports the Upon the trial separate demurrers of the infindings of the jury; (3) that the findings sup surance company and of the railway comport the verdict; and (4) that no material error appears in the instructions concerning such pany to the evidence offered by Hanks were evidence,

overruled. A verdict was rendered in favor [Ed. Note.-For other cases, see Evidence, of Hanks, together with special findings. A Dec. Dig. & 441 ;* Release, Dec. Dig. & 57.*] motion of the insurance company for judg. (Additional Syllabus by Editorial Staff.)

ment on the findings was overruled, and judg.

ment was entered for Hanks on the general 3. CONTRACTS (8 164*)-CONSTRUCTION-DIFFERENT WRITINGS COMPRISING THE CON- verdict. The railway company is not a party

to this appeal. Where two written instruments executed

Allen & Allen and Geo. S. Allen, for apat the same time, concerning the same transaction, comprise a contract, they should be coppellant. Samuel Jones, for appellee. strued together so as to give effect to both when it can be reasonably done. [Ed. Note.-For other cases, see Contracts,

BENSON, J. (after stating the facts as Cent. Dig. $8 746–748; Dec. Dig. § 161.*] above). The question tried by the jury was Appeal from District Court, Rice County. whether the release pleaded contained all

the terms of the settlement, the appellee conAction by the Farmers' Alliance Insurance Company of Kansas against the Atchison, tending that it did not; that another writing

was executed with it as a part of the agreeTopeka & Santa Fé Railway Company and

ment whereby the right of the appellee to D. E. Hanks. Judgment for defendant

the insurance money was reserved to be paid Hanks, and plaintiff appeals. Affirmed.

to him in addition to the $3,200. Upon this The insurance company insured property of issue the jury made the findings which folHanks which was afterwards destroyed by low: “(1) Did the written contract or confire through the negligence of the railway tracts between the A. T. & S. F. Ry. Co. company. Hanks settled with the railway and D. E. Hanks, by which the railroad company receiving $3,200 on account of the company settled its liability for the fire, proloss. The railway company claimed that the vide that D. E. Hanks should have the right settlement was for the entire loss. Hanks to collect the insurance policy on the properclaimed that he was to have $500, the amount ty? Ans. Yes. Does Exhibit A-the so-callof the policy of insurance, in addition to the ed release contain the whole of the written sum of $3,200, so received. The policy con- contract or contracts between D. E. Hanks tained a subrogation clause. After this set- and the railway company made at the time tlement Hanks assigned his claim against of the release of the company? Ans. No. the railway company for this $500 to the in- Was it the written contract between D. E. surance company, stating in the assignment Hanks and the railroad company that D. E. that it was the amount retained by the rail- Hanks should have the sum of $3,200 from way company in the settlement. On receipt the railway company and the right to collect of this assignment the insurance company the insurance policy on the property? Ans. paid the amount of the policy to Hanks. Yes. Was any other written instrument exAfter learning that the railway company ecuted by either the said D. E. Hanks or E. claimed to have paid Hanks the full amount | H. IIemus at the time of the execution of of the loss, the insurance company commenc- said release and draft except the affidavit ed this action against Hanks and the rail- in evidence as Exhibit C? Ans. A question way company to recover the $500 so paid. of doubt, but answered yes. If you answer Attached to the petition is a copy of a re the foregoing question in the affirmative, lease given by Hanks to the railway com- then state fully by whom such instrument pany which purports to be in full satisfac- was executed and what its terms and pro tion and discharge of the entire loss. Hanks visions were. Ans. Terms and provisions answered that in the settlement with the were that defendant should be permitted to railway company the right had been reserv- collect the insurance. Evidence does not ed to him to receive this sum from the insur-prove." ance company, alleging that the terms of the Other findings are that the release pleaded settlement, reduced to writing, so provided. had not been changed since it was signed, By a cross-petition against the railway com- and that it was not obtained by fraud. The pany he also pleaded his right to this $500, facts then are established that there was no and prayed that this right should be confirm- fraudulent alteration of the release pleaded ed, and for equitable relief. The railway but that another writing made and delivered company demurred to the petition which de- with it gave the appellee the right to the inmurrer was sustained. The insurance com

surance money, which is the subject of this pany replied to the answer of Hanks aver-action. ring that all the terms of the settlement It is contended that these findings are bas

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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ed on testimony erroneously admitted, and one of these gentlemen, I don't know now that the court improperly instructed the ju- which one, that they were not paying the ry. These alleged errors relate substantially entire loss, but they were paying the loss, as to the same matter, viz., the parol evidence they had agreed, less the amount of the inrelating to the settlement. It appears that surance policy, and I insisted that the subthe railway company was represented by a stance of this should be in writing. claim adjuster and the appellee by an attor- After I had read Exhibit A (the release), and ney at this settlement; other persons were before Mr. Hanks had signed it and I witalso present. The appellant proved the ex- nessed it, there was something put in writecution and delivery to the adjuster of an ing, and to the best of my recollection it was affidavit of ownership of the property and the what I had demanded—that is, that it stated, release, and that a draft for $3,200 was in substance, it was not to interfere with drawn and delivered to the appellee. Evi- Mr. Hanks' rights under his insurance policy dence was also given of the adjustment and -and I have believed from that time that it payment of the loss by the insurance com- was put in." On cross-examination the witpany to the appellee afterwards. The ap- ness said his recollection was that the appellee then called the attorney who had rep- pellee signed but two papers—the affidavit resented him at the settlement, who testified and release; that he did not remember that to the execution of several papers on that any paper was attached to the release, but occasion. He was shown the release, and that the provision he had insisted on was was asked if there was any other writing. put into it. He also testified that he could The following testimony was given: "Q. not swear that no other paper was attached There was some additional writing, then, in to the release. that instrument than what is shown in Ex Another witness who was present at the hibit A? A. There was. Q. But just how it settlement testified: "Q. Was there some pawas written you do not recall, Judge Clark? pers drawn up there? A. Yes, sir. Q. Did A. I don't know as it was written there, I you see them or hear them read? A. I heard say; I didn't see much of it. Q. But you do them read. Q. Who read them? A. Judge say there was some other writing? A. I do. Clark. Q. Do you know what the papers

Q. Then there was no other instru- were that Judge Clark read there? A. There ment than this signed by any of these par- were other papers drawn up and I did not ties, you mean? A. There was other writing, examine them, so I could not say as to any but whether another instrument, I don't particular one. Q. You don't know what parknow, Q. You may state, Judge Clark, how ticular paper he read? A. No, sir. Q. Now, this writing you refer to was connected with you may state what that particular paper this writing here or what it was? A. The re- you do remember that Judge Clark read said. lation it bore was, it was a part of the agree-A. I can't give the words, but it said that the ment.” The witness was then asked to state railroad company was to give him or pay him the contents of that writing, and upon objec- $3,200 and he was to retain the insurance. tion the attorneys for the other parties were That was the amount of it, but I can't give permitted to examine him concerning it. Aft- the exact language. Q. Then, after that was er this examination the court asked the wit- read, what did they do relative to the papers ness: "The Court: Judge Clark, I will ask there, if anything? A. They signed them you this question: Does Exhibit A express up." The appellee also gave similar testithe entire contract as you understood it as mony. This evidence, if competent, certain entered into by Mr. Hanks that evening in ly tended to prove the claim of the appellee. your office? A. No, sir."

The appellant insists that some of the tesAnother question having been asked by timony offered to prove the existence of an counsel the witness said: "I should like to additional writing relative to the insurance state what happened there, and think I could was received in violation of the rule excludexplain it better that way," and was direct- ing parol evidence varying the terms of a ed by the court to proceed. After some pre- written agreement. The evidence, however, liminary statements the witness said: "Now was not offered for that purpose, but to prove I don't remember whether this Exhibit A was the existence of another writing. Thus, teswritten there in my presence or not. I hard-timony of the appellee was received that aftly think it was, all of it, but I insisted to er discussing the amount of loss by the fire these gentlemen that the written receipt or the adjuster said “that he would give me whatever they called it should state in writ- | $3,200, and I could collect the insurance." ing the fact that it was not to interfere with, Other testimony to the same effect was reor affect, Mr. Hanks' rights under his insur-ceived, but this was in connection with eviance policy. One of these gentlemen said in dence given to show that a written agreesubstance: "We cannot settle for the insur-ment had been made to that effect, and not to auce company, and I said, 'I don't want you prove a parol agreement. When the inquiry to, but I will not consent to Mr. Hanks' giv- relates to the existence of a written contract, ing you a receipt for the entire loss.' He parol evidence of the conversation and cirmust be permitted to retain his rights against cumstances out of which it is claimed that it the insurance company, and I insisted that arose, fairly tending to prove it, is not ex

vary the terms of another writing executed without proof whether filing a transcript of the at the same time. The court limited the evi- judgment of a justice of the peace in a circuit dence to this particular issue, and no error effect of a judgment of the circuit court.

court of that state gives to such judgment the is found in the rulings. Instructions submit

(Ed. Note.-For other cases, see Evidence, ting this issue are also complained of upon Cent. Dig. 51; Dec. Dig. $ 35.*] the ground that the jury were allowed to 2. JUDGMENT (8291*) RECORD FILING predicate their findings upon a parol modifi- TRANSCRIPT OF JUSTICE'S JUDGMENT IN CIRcation of a written agreement, but this is CUIT COURT-EFFECT. not the effect of the instructions, for the souri

to be like those of this state, the filing of

Assuming the statutes of the state of Miscourt stated that the antecedent parol nego- such a transcript in a circuit court does not tiations were not to be considered for the have the effect of making the judgment of the purpose of determining what the real con- justice of the peace the judgment of the cirtract was but for the purpose of ascertain- cuit court. ing whether the written agreement as al. Cent Dig. gg 573, 574; Dec. Dig. $ 291.*]

[Ed. Note.-For other cases, see Judgment, leged was that to which the parties assented, and directed the jury to find what the writ- | 3. EVIDENCE, ($347*) – DOCUMENTARY Evi

DENCE JUSTICE'S JUDGMENT IN

SISTER ten contract was. They were informed that STATE. the writing or writings embodying the agree- In order to make such a judgment admisment must govern. Although some of the sible in evidence as an offset in an action proslanguage used in the instructions may be ecuted in one of the courts of this state, a tran

script of the circuit court record, duly certified subject to criticism, any merely verbal in according to the act of Congress, is not suffiaccuracy is immaterial, especially in view of cient. À transcript of the justice's judgment the finding that there was an additional writ- must be certified according to the statute of this ten agreement, and finding that its terms state; the act of Congress not being applicable.

(Ed. Note.-For other cases, see Evidence, were as the appellee had alleged.

Cent. Dig. 1378; Dec. Dig. $ 347.*) It is urged that as the release upon its

4. JUDGMENT (8 826*)-FOREIGN JUDGMENTS, face purports to be complete, parol evidence FULL FAITH AND CREDIT-JUSTICE'S JUDGcannot be allowed to extend its obligations. MENT. This rule however does not apply where the

A judgment of a justice of the peace of anparol evidence is offered merely to prove an- tion of the full faith and credit clause of the

other state may be brought within the protecother cotemporaneous written contract wbich federal Constitution ; but there are no presumpwith the release constitute the agreement. tions in favor of the authority or jurisdiction All cotemporaneous writings relating to the of such an officer, and those facts must be essame subject-matter are admissible to show known to what faith and credit his acts, and

tablished in some lawful way before it can be the entire agreement. Greenleaf on Evi- proceedings are entitled in this state. dence, 88 277–283; Wilson et al. v. Randall, (Ed. Note.-For other cases, see Judgment, 67 N. Y. 338. “Where two written instru. Cent. Dig. $ 1452; Dec. Dig. § 826.*] ments, executed at the same time concerning

Appeal from District Court, Miami Counthe same transaction, comprise the contract between the parties, they should be constru- ty; W. H. Sheldon, Judge.

Action by John Hindman against the Mised together so as to give force and effect to

souri, Kansas & Texas Railway Company. both of them, when it can be reasonably

Judgment for plaintiff, and defendant ap done.” Windmill Co. v. Piercy, 41 Kan. 763, 21 Pac. 793.

peals. Affirmed. The appellee argues that as the issues be John Madden and W. W. Brown, for aptween the railway company and himself were pellant. Frank M. Sheridan and Charles T. found in his favor, and the railway company Meuser, for appellee. did not appeal, the terms of the settlement are res judicata, and the appellant has no BURCH, J. The plaintiff sued the defendstanding in this court for that reason. It is ant for wages and recovered. On the trial not necessary to consider this question, as the an exemplification of the record of the cir. judgment must be affirmed for the reasons cuit court of Jackson county, Mo., was adalready given.

mitted in evidence on behalf of the defendThe judgment is affirmed. All the Justices ant. This record consisted of a transcript concurring.

from a justice of the peace purporting to

show the proceedings in a garnishment ac(83 Kan, 35)

tion pending before him, terminating in a MISSOURI, K. & T. RY. CO. v. HINDMAN.†

judgment against the railway company as

garnishee, in favor of a creditor of the plain(Supreme Court of Kansas. July 9, 1910.)

tiff here, who was served by publication. (Syllabus by the Court.)

The court ignored this evidence in its in1. EVIDENCE 35*)-JUDICIAL NOTICE--EF-structions to the jury, and the defendant

FECT OF FILING TRANSCRIPT OF JUSTICE'S claims the full faith and credit clause of the
JUDGMENT IN CIRCUIT COURT OF OTIIER federal Constitution has been violated.
STATE.
Judicial notice not being taken of the stat-

The courts of this state will take notice utes of the state of Missouri, it cannot be known l of the Constitution of the state of Missouri •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r lndexes

+ Rehearing deniod September 14, 1910.

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