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evidence tending to show that the city's negligence was the sole cause of the injury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 505, 596-612; Dec. Dig. § 252.*]

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Mary J. Spalding against Fred Ziegler, Kansas City, and another. From a judgment for plaintiff, the City appeals. Affirmed.

A. F. Evans, City Counselor, and J. W. Garner and A. F. Smith, Asst. City Counselors, all of Kansas City, for appellant. W. W. Calvin, of Kansas City, for respondent.

stood in the street at a point three or four feet west of the entrance to the roadway designated as "C" and two or three feet in front of the building. A heavy ladder, described by some of the witnesses as fourteen feet long, was lying on the pavement between plaintiff and the building with its east end projecting about two feet into entrance "C" and its west end near the pedestrian's entrance we have described. A market wagon, owned by the individual defendants and driven into entrance "C" by their employé, struck the projecting end of the ladder with enough force to swing its other and longer part out into the street and cause it to strike plaintiff, who fell to the paveJOHNSON, J. Plaintiff sued to recover ment with her legs under the ladder. While damages for personal injuries she alleges in this position the wagon ran were caused by the negligence of defendants. ladder, breaking both of her legs. A trial in the circuit court resulted in a verdict and judgment for plaintiff against Kansas City in the sum of $5,500, and against her as to the individual defendants, Fred Ziegler and his wife. The city alone appealed, and the principal contention of its counsel is that the court erred in not peremptorily directing the jury to return a verdict in its favor.

Plaintiff, who was 64 years of age, was injured at 8 o'clock in the evening of Saturday, October 8, 1910, on the north side of Fourth street between Main and Walnut streets in Kansas City. The street in this block runs between the old and new market houses, and is paved the entire distance between the buildings, but has no sidewalk in front of the new building, which is on the north side of the street and extends back to Third street. The city owns and operates the market houses for revenue and had completed and opened the new building for business several days before the date of plaintiff's injury. Six paved driveways, designated respectively by the letters "A," "B," "C," "D," "E," and "F," ran through the building from north to south and were separated by sidewalks on a higher level. Market wagons were driven into the building on these roadways and backed up to the sidewalks, where business was transacted between the gardners and their customers. Each roadway entered the building through a door or archway in the south end, and one of these archways, designated as "C," was the place of the act that culminated in the injury of plaintiff. That archway is eight feet seven inches wide and eighteen feet and four inches east of another archway in the front of the building which connects Fourth street with one of the interior sidewalks. Plaintiff and her daughter had been marketing on this sidewalk and came into the street through the latter door with two filled baskets. On reaching the street the younger woman went back into the building to purchase some things she had forgotton, leaving plaintiff with the baskets to await her return. While waiting, plaintiff

over the

The petition alleges: "That defendant Kansas City, Mo., its agents, servants, and employés carelessly and negligently placed and carelessly and negligently allowed and permitted said ladder to be placed upon its sidewalk, at the time and place aforesaid, and in the place and position aforesaid, when it knew, or by the exercise of reasonable care might have known, that said ladder, if placed, or allowed to be placed, in the place and position aforesaid and at the time aforesaid, would render said sidewalk, at said point, dangerous and unsafe for travel or occupancy by pedestrians, and would likely cause and would cause damage and injury to pedestrians passing along or occupying said street at said point; and further carelessly and negligently allowed and permitted said ladder to be and to remain in said place and position, for a sufficient length of time, after it knew, or by the exercise of reasonable care should have known, of its said place and position, to have removed the same from the place and position it occupied, and thus and thereby have rendered its sidewalk at said, point reasonably safe for travel thereon, and thus and thereby have averted and prevented the injury to plaintiff, all of which, however, it carelessly and negligently failed and omitted to do. That defendants Fred Ziegler and Mrs. Fred Ziegler, through their agent, servant, and employé, carelessly and negligently failed and omitted to remove said ladder from its place and position aforesaid before attempting to drive their said team and wagon into and through said gateway or archway; and carelessly and negligently, through their agent, servant, and employé, drove their team and wagon into and through said gateway or archway and upon and against said ladder, which lay at said point, when they knew, or by the exercise of reasonable care might have known, of the presence, place, and position of said ladder, and when they knew, or by the exercise of reasonable care and foresight might have known and anticipated, that if their said wagon were to come into contact with said

ladder, in its said place and position, that the same might produce and would likely produce damage and injury to pedestrians who might be on the sidewalk at said point, or standing near by and within range of said ladder when the same would be set in motion by coming in contact with their said wagon," etc.

the circuit court and in their briefs before us appear to misconceive the nature of the pleaded cause and of the duty the city owed plaintiff. They argue that plaintiff's right to recover is restricted by her petition and should have been restricted in her proof to the precise state of facts that existed at the time of her injury; that the gist of her pleaded cause is the alleged negligence of the city in not discovering and removing the obstrūction from entrance "C"; and that, since the uncontradicted testimony of the policeman shows that the obstruction had been removed from that entrance an hour before the injury, there is no room in the evidence for a reasonable inference of negligence. Further they argue that it was error for the court to admit evidence of the prior obstructions of this entrance by the ladder.

The ladder belonged to the city, and all the evidence shows that when not in use it was kept lying in the street against the building and in the space between entrance "C" and the entrance for pedestrians. The market master introduced as a witness by defendants testified that on the preceding day he saw the ladder lying "along in front of the wall between entrance 'C' and the pedestrian's entrance to the west of entrance 'C,'" and that the west end of the ladder projected a short distance into the pedestrian's entrance. Another witness for the defendants, a policeman at the market, testified to seeing the ladder an hour or more before the injury lying against the front of the building with its east end projecting into entrance "C," and stated that he moved it westward, but did not notice whether he moved it back far enough to place its other end in the pedestrian's entrance. Witnesses for plaintiff testified to seeing the ladder at various times on the day of the injury lying in the space between the two entrances. Sometimes it projected into one entrance and sometimes into the other. There is some evidence relating to the length of the ladder and to the distance between the two entrances, to the effect that the wall space was longer than the ladder; but we are inclined to question the accuracy of this evidence in view of the fact, about which there is no substantial controversy, that, every time the ladder was shifted from obstructing one entrance, its other end always was thrust into the other. The policeman testified on cross-examination: "Q. Wasn't it (the ladder) so long that if it was moved out of one entrance it projected into the other entrance? A. I didn't pay any attention to that. Q. You didn't pay any attention to see whether it was moved out of one entrance it went into another entrance? A. No, sir. * Q. You knew that wagons were passing in and out of that entrance all the time, too, didn't you? A. Yes, sir. Q. What was your object in pushing it away? A. So the wagons could go in and out without touching it." The evidence most favorable to the cause of action pleaded against the city supports an inference that the ladder had been kept in that place two days; that it was so long that it could not be kept there without obstructing one or the other of the two entrances; and that the employés of the city who were charged with the duty of keeping the entrances free from dangerous obstructions negligently suffered the ladder to remain in a place that was both unsuitable and dangerous. We find no prejudicial error in the rulings

[1] Plaintiff at the time of her injury was on a public street where she had a right to be, and the city owed her the duty of exercising reasonable care to keep the street free from dangerous traps and pitfalls.

[2] The negligence as portrayed by her evidence consisted in keeping the ladder in the space between the two entrances where it would be in the way either of pedestrians using one entrance or of vehicles using the other.


The intermittent obstruction of each entrance should not be recognized as due to separate and independent wrongs, but as the natural results of the single wrong of keeping the ladder in a place where it would obstruct the two passageways alternately and would menace the safety of persons rightfully on the street while it was projecting in the way of vehicles using entrance "C.” Such being the nature of the action, the court properly received evidence tending to show that the ladder had been kept in this place two days in the manner we have described, and that empoyés of the city whose duty it was to remove or report such obstructions had actual or constructive knowledge of its presence.

[3] It was the duty of the market master and his assistant to exercise reasonable care to keep the interior of the building and its entrances in a reasonably safe condition and to see to it that the entrances were not blocked in any way to endanger people on the street, and it was the duty of the policeman to see that the street was kept clear of dangerous obstructions.

[4] The court did not err in admitting evidence relating to the character of the use of the building and the street, to the number of employés of the city on duty in and around the building, and to the duties of the various employés with respect to the removal or reporting of obstructions in the street and passageways. Such evidence had a direct bearing on the issues of actual and constructive notice to the city.

city's demurrer to the evidence was properly cient, though it does not show the record enoverruled. tries showing the taking of such steps.

[5] Objections to the first instruction given at the request of plaintiff are found to be without merit. This instruction is long, but we do not find it unnecessarily verbose nor in any wise misleading. It embraces hypotheses under which the jury were authorized to find a verdict against all of the defendants, or against the city alone, but omitted to include one for a verdict based on the idea that negligence of the driver of the wagon was the sole cause of the injury. Such an inference has evidentiary support, but plaintiff was not compelled to include it in her instructions, and its omission from them could not be regarded otherwise than as mere nondirection. The criticism that the instruction declares as a matter of law that it was negligence on the part of the city merely to leave the ladder in the position it was in at the time of the injury is based on a strained and unsound analysis of the language of the instruction.

[6] Complaint is made of the refusal of the following instruction asked by the city: "The jury are instructed that, if your finding in the case is in favor of the defendants Zieglers, then your verdict must be for the defendant Kansas City." That instruction was properly refused. While there was ample evidence before the jury to sustain a conclusion that the injury was caused by concurring negligence of the city in obstructing the wagon entrance and of the driver of the wagon in not avoiding the obstruction, there also is evidentiary support for the conclusion that the negligence of the city was the sole cause of the injury, and that the driver was not guilty of negligence in failing to see and

avoid the ladder.

Other points made against the rulings of the court on instructions have been sufficiently answered in what we have said on the de

murrer to the evidence. Much stress is laid in the briefs and arguments of the city on the subject of the alleged misconduct of counsel for plaintiff at the trial. Some of his remarks in the presence of the jury were improper, but they were provoked by counsel for defendant city and were excusable under

the circumstances.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2595-2597, 2600-2605; Dec. Dig. § 586.*]


In an action by the receiver of a corporation against a stockholder to recover the balance on his subscription, a judgment for plaintiff necessarily including a finding that defendant was a stockholder, slight evidence on this point was sufficient, and if there was any evidence to show that he was a stockholder it would be given its fullest probative force on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.*]


In an action by the receiver of a corporation to collect the balance of a stock subscription from one who denied that he was a stockholder, the books and records of the corporation not containing his signature or other similar act to which he was a party, if unsupported by other evidence, were not admissible to prove his membership in the corporation.

Cent. Dig. §§ 633-636; Dec. Dig. § 171.*] [Ed. Note.-For other cases, see Corporations, 4. EVIDENCE (§ 178*)-SECONDARY EVIDENCE


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Persons participating in the character of stockholders in the meetings of the corporation and in the conduct of its business by paying calls assessed against them, and in other ways, are estopped to deny that they are stockholders as against the corporation or its receiver.

[Ed. Note.-For other cases, see Corporations,

The case was fairly tried, and the judg- Cent. Dig. §§ 624-632; Dec. Dig. § 170.*] ment is affirmed. All concur.

GUILBERT v. KESSINGER. (Kansas City Court of Appeals. Missouri. June 16, 1913.)


Where it was shown that W. L. K. attended meetings of the directors of a corporation and acted as director, the articles of association containing the name of W. S. K., although not conclusive that W. L. K. was a stockholder, was evidence of that fact; there being no evidence that there was any such person as W. S. K.

Cent. Dig. §§ 633-636; Dec. Dig. § 171.*] [Ed. Note.-For other cases, see Corporations, 8. CORPORATIONS (§ 171*)-STOCKHOLDERSEVIDENCE OF MEMBERSHIP.

1. APPEAL AND ERROR (§ 586*)-ABSTRACTSHOWING FILING OF BILL OF EXCEPTIONS. Under the express provisions of Kansas City Court of Appeals Rule 26 (159 S. W. vii). an abstract, which states that a bill of exceptions was filed and that the other steps requir ed to perfect an appeal were duly taken, is suffiFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

While a person cannot be shown to be a stockholder in a corporation by the declarations

of the corporation's officers, this may be shown | 14. CORPORATIONS by such officers' sworn testimony.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 633-636; Dec. Dig. § 171.*] 9. CORPORATIONS (§ 171*) - STOCKHOLDERS EVIDENCE OF MEMBERSHIP.

Where it was shown that an alleged stockholder in a corporation attended directors' meet; ings, acted as a director, and paid calls and assessments on his stock, the corporate minutes and records were admissible to explain the force and meaning of the payment of such calls by comparing such payments with those of other stockholders, and also on the principle that having attended the meetings and participated therein he had knowledge of what was done. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 633-636; Dec. Dig. § 171.*] 10. CORPORATIONS (§ 556*)-APPOINTMENT OF RECEIVER-PARTIES.

Unless otherwise provided by statute, only judgment or lien creditors can maintain an action to have a receiver of a corporation ap


[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2219-2226; Dec. Dig. § 556.*] 11. CORPORATIONS (§ 553*)-APPOINTMENT OF RECEIVER-PARTIES.

Under Gen. St. Kan. 1901, § 4701, authorizing the appointment of a receiver in an action by a creditor to subject property or funds to his claims, or in cases provided by statute, when a corporation has been dissolved, is insolvent, or in imminent danger of insolvency, section 1310, providing that a corporation shall be deemed dissolved for the purpose of enabling creditors to prosecute suits against the stock holders to enforce their individual liability, if the corporation suspends business for more than one year, section 1315, making stockholders liable to creditors for unpaid subscriptions, and in addition for an amount equal to the par value of their stock, such liability to be considered an asset of the corporation in the event of insolvency, and collected by a receiver for the benefit of all creditors, and section 1302, providing that if an execution shall have been is sued against the property of a corporation and no property can be found the corporation shall be deemed to be insolvent and a receiver may be appointed who shall sue for unpaid subscriptions and for the stockholders' additional liability, where it was shown that a corporation was insolvent and had suspended business for more than one year, a receiver could be appointed although no execution against the corporation had been returned unsatisfied.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. § 553.*] 12. CORPORATIONS (§ 559*) — RECEIVER — APPOINTMENT-COLLATERAL ATTACK.

The appointment of a receiver for a corporation was not void and could not be attacked collaterally, even if erroneous, because no judgment had been rendered against the corporation

and execution returned unsatisfied.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2241-2252, 2259; Dec. Dig. § 559.*]


Under the express provisions of Rev. St. 1909, § 1800, in an action by the receiver of a corporation, an objection to his capacity to sue because no judgment had been rendered against the corporation and execution returned unsatisfied was waived by a failure to demur; the absence of such judgment and execution appearing on the face of the petition.

[Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 117-121; Dec. Dig. § 76.*]

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Under the statutes of Kansas, it was not necessary, before a receiver of a corporation might collect unpaid stock subscriptions and the the stock, that a suit should be instituted to additional liability equal to the par value of determine the amount of the corporate indebtedness and the amount for which each stockholder shall be liable, as under Gen. St. 1901, § 1302, providing that should the collections made by the receiver exceed the amount necessary to pay all claims, together with the costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, the equalizing of the liabilities between the stockholders is to be accomplished in the receivership case, and such a suit was particularly unnecessary where the court in the receivership case found the names and number of creditors, the debts due them, the names of the stockholders, and the par valstockholders, except one who alone was a resiue of their stock, and where all of the solvent dent of Missouri, voluntarily paid their sub


[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1016-1023, 1068-1075, 2268-2271; Dec. Dig. § 261.*]



The findings of the court contained in a decree in a suit for the appointment of a receiver for an insolvent corporation were prima facie evidence against foreign stockholders who were not parties to such suit.

[Ed. Note. For other cases, see Corporations. Cent. Dig. §§ 2241-2252, 2259; Dec. Dig. § 559.*] 16. LIMITATION OF ACTIONS (§ 66*)-ACCRUAL OF RIGHT OF ACTION-STOCK SUBSCRIPTIONS.

Limitations do not run as against subscriptions to stock payable as called for until a call, or its equivalent, has been made.

of Actions, Cent. Dig. §§ 353-375; Dec. Dig. § [Ed. Note.-For other cases, see Limitation




Under Rev. St. 1909, § 1895, providing that when a cause of action has been barred by the laws of the state in which it originated such bar shall be a complete defense to any action thereon in this state, a Kansas limitation statute would not bar a suit in this state on a cause of action originating in Kansas, where it was not barred in Kansas under Gen. St. 1901, § 4449, providing that, if when a cause of action accrues against a person he be out of the state, the period limited for the commencement of the action shall not begin to run until he comes into the state.

of Actions, Cent. Dig. §§ 4-8; Dec. Dig. § 2.*] [Ed. Note.-For other cases, see Limitation 18. LIMITATION OF ACTIONS (§ 2*)-ACCRUAL OF RIGHT OF ACTION-STOCK SUBSCRIP


As under the Kansas statutes a creditor could not have a proceeding instituted against the stockholders of a corporation until a receiver was appointed and ordered by the court to proceed against them, limitations did not run until the appointment of a receiver.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 4-8; Dec. Dig. § 2.*] Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by E. J. Guilbert, receiver of the

Buckeye Land & Town Company, against W. I found and stated the names and addresses of

L. Kessinger. Judgment for plaintiff, and defendant appeals. Affirmed.

C. H. Nearing, of Kansas City, for appellant. Jos. S. Rust, of Kansas City, and Lee Monroe, of Topeka, Kan., for respondent.

the stockholders of said corporation at that time, the number of shares of each, and or

dered the receiver to proceed by suit or suits or otherwise to collect all amounts due from said stockholders for unpaid subscriptions on stock, and also an amount in addition thereto equal to the par value of the stock owned by each of them, for the benefit of all the creditors of the corporation, un

til the receiver had collected a sufficient sum

to liquidate all debts of the corporation and the expenses of the receivership.

In the list of stockholders so found by the court was the name of appellant as holding 100 shares of the par value of $50 each. All of the stockholders, not insolvent and dead, paid the respective amounts due from them under the above order, except appellant herein. And this is a suit begun July 27, 1905, by the receiver against him in the circuit court of Jackson county, Mo., to recover the balance of his unpaid subscription due on the 100 shares alleged to be held by him and the double liability thereon imposed by the laws of Kansas. tried by the court on May 25, 1912, and judgment was rendered in favor of the receiver Defendant appealed. for $5,710.

The case was

TRIMBLE, J. The Buckeye Land & Town Company was a Kansas corporation organized in 1887, with a capital stock of $50,000 divided into 1,000 shares of $50 each. It was, and is now, claimed by the plaintiff that the defendant (who is appellant here) was one of its directors and stockholders, but paid into the corporate treasury on his stock less than 20 per cent. of its face or par value. On January 6, 1899, the corporation executed a note to Houston Hay for $1,046 due 90 days after date. On January 11, 1902, the corporation became, and thereafter remained, insolvent. On that day the administrator of the estate of Houston Hay brought suit in the district court of Logan county, Kan., to recover judgment on said note, and for the purpose of having a receiver appointed for said corporation. The petition in that suit alleged the execution and ownership of the note in sufficient terms to entitle plaintiff to a judgment thereon, and then alleged that said corporation was insolvent, had wholly suspended business for more than one year prior to the commencement of the action; that it owed debts amounting to more than $7,500; that suits were pending against it in other states; that it owned certain lands worth about $1,500 as its only assets; that it was necessary for the protection of the assets and the creditors that a receiver be appointed. Three days later, January 14, 1902, the corporation entered its appearance, and E. J. Guilbert was appointed receiver and qualified, and has ever since been acting as such. On April 10, 1902, judgment was rendered on said note for $1,244.74 with 6 per cent. interest from date of judgment and for costs. Afterwards, on the same day, the court ordered the receiver to give the notice by publication to all creditors of said corporation to present their claims to said receiver on or before June 25, 1902, and to send to all known creditors a notice thereof by registered mail. The court further ordered the receiver to advertise and sell at public auction to the highest bidder all land and real estate belonging to said corporation and make report on or before June 30, 1902. This the receiver did, and the sale made by him of all the assets of the corporation was duly approved by [2] Appellant's first point is that there is said district court. Afterwards, on Novem- no evidence that appellant ever subscribed ber 11, 1903, a further order and decree for stock or at any time became a stockwas made in said cause, in which it was holder of the Buckeye Land & Town Comfound that the corporation owed seven cred- pany. As the judgment of the trial court itors, naming them, in various amounts ag- against appellant necessarily includes a findgregating $14,660.15, one of which was the ing that he was a stockholder, slight eviestate of Houston Hay, deceased, holding the dence will be sufficient to prevent appellant's

[1] Before disposing of the points involved in the case, attention must be given to the objection offered by respondent that appellant's abstract is insufficient because it fails to show by recital of record entries that the bill of exceptions was ever signed or ordered filed, or that any exception was taken to the order overruling the motion for new trial, or rather, and to be more nearly exact, that the exception appears in the record proper but not in the bill of exceptions. A careful examination of the record, however, discloses that this exception appears both in the record and in the bill of exceptions. And, while the abstract may not show all the record entries sufficient to perfect the appeal, yet there are statements showing that all the required steps were duly taken. Under rule 26 (159 S. W. vii), adopted by this court January 6, 1913, "if the abstract states the appeal was duly taken, then, absent a record showing to the contrary, by respondent, it will be presumed the proper steps were taken at the proper time and term." And "it shall be sufficient if his abstract state the bill of exceptions was duly filed." The appeal was properly taken, and the case will be considered on its merits.

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