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prove the first of these essentials, Richard of knowledge and experience as a miner. Wilson was called as a witness for the plain- | Experts are usually called to testify with tiff, and, over the objection and exception of reference to some particular acts or matters the defendant, testified as follows: "Q. I of which men in general are not competent will ask you to state if you know Gustav to judge, and are permitted to give opinions Dufresne, A. Yes, sir; I do.
Q. Do you on matters concerning which their judgment know his nationality? A. No sir. Q. Can is superior to that of men in other callings, you tell from his name? A. No, I could not. because of a special line of education and exQ. Could you give any opinion? A. Yes, sir. perience. These expressions of opinion are Q. From his name, from his appearance, and allowed only with reference to those matters from his conduct, have you an opinion what concerning which the generality of mankind his nationality was? A. I have. Q. What? are not supposed to have sufficient knowledge A. An Italian. Q. I will ask you to state, to judge from a mere statement of such facts if you know, whether or not Dufresne was a and circumstances connected therewith as competent coal miner, from what you have can be drawn from witnesses. In such cases seen of his work, or what you have seen of those having peculiar skill and superior him? A. Yes, sir. Q. Was he, or was he knowledge are permitted to aid the jury by not, a competent miner? A. He was not." their opinions. But the opinion here asked On cross-examination this witness testified: of Richard Wilson, who appears himself to "Q. And you don't know, as a matter of fact, be an expert coal miner, is whether another whether he was an experienced or inexperi- man is an expert miner, and this in a case enced miner? A. From his appearance I where that is one of the main questions to be would judge he was not. Q. I am asking tried. We do not regard this as the proper you from your own knowledge. A. No, sir; mode of inquiry. It would be competent and I do not. Q. Now, you said from his appear- proper to show what his occupation had been, ance he was an inexperienced miner. What how much experience he had had as a miner, do you mean by that? A. He worked bare- the general manner in which he did his work, footed and naked. I never saw a miner in and to show by those who were skilled in that way in my life before. Q. Because of the business wherein his work differed from that you think he was an inexperienced that of a skillful miner. Whether proof of miner? A. Yes, sir; and from others. Q. | particular unskillful or negligent acts, accomDo you know anything about the coal he took panied by proof of notice thereof to the emout? A. No, sir. Q. Know anything about ployer, is permissible or not, it is unneceshow he handled his tools? A. No, sir. Q. sary now to determine. It would also be How he drilled ? A. No, sir. Q. You judge proper to show his general reputation where alone from the fact that he worked bare- he worked as to skill. An employer must be footed and naked? A. Yes, sir. Q. And presumed to know the general reputation of you want this jury to understand that this his employés, though he might not know of man was inexperienced because he was bare- particular negligent or unskillful acts. These footed and naked? A. Yes, sir. Q. Without we deem the general principles to be gleaned taking into consideration how he mined, or from the authorities, though it must be conhow he handled his tools? A. That is my fessed that they are not entirely harmonious. opinion of it." It also appears from Wild In Butler v. Railroad Co., 54 N. W. 208, it son's testimony that he himself did not work was held by the supreme court of Iowa that in the mine, while Dufresne was there, prior "in an action for death, caused by the alto the time of the accident by which the leged unskillfulness of defendant's engineer, plaintiff was injured, and it does not appear a witness cannot testify as to the engineer's that he ever saw him at work in the mine. skill, since that is an ultimate fact to be deWilliam Elwood, a witness for the defendant, termined by the jury." In the cases of testified that Dufresne was a competent and Brabo v. Martin, 5 La. 275, and Tullis v. experienced miner. The jury, in answering | Kidd, 12 Ala. 648, it was held that the opinthe first question submitted to them, find ion of one witness is inadmissible as proof that Dufresne was not a practical and ex- before a jury of the professional skill of anperienced miner. The question we have to other. On the other hand, in the case of answer is whether, where one of the main Laros v. Com., 84 Pa. St. 200, it was held issues to be tried in the case is the compe- that "it is competent for one expert to testify tency and skill of an employé, witnesses ac- to the skill of another where the knowledge quainted with him, and with the special em- of the witness is derived from personal obployment in which he is engaged, may give servation.” It was said in that case by Chief their opinions as to his qualifications. Where Justice Agnew: "If I have seen a workman a question as to the skill of an individual doing his work frequently, and know his arises incidentally in the course of a trial, it skill myself, surely, if I am myself a judge is not uncommon for witnesses well acquain- of such work, I can testify to his skill.”. We ted with him and with his calling to testify have examined the cases of Wright v. Hardy, directly as to his skill, but in this case it was 22 Wis. 348; Jones V. Angell, 95 Ind. 376; essential to the plaintiff's right of recovery Olmsted v. Gere, 100 Pa. St. 127,-none of that he should show that Dufresne was not which are exactly in point.
Some courts a fit person to mine coal, because of a want hold that, for the purpose of showing incompetency, the prior acts and conduct of the 2. Without any showir.g of authority by the person on specific occasions may be given in will or otherwise, the executor of the estate of a
deceased person will not be held authorized to evidence, accompanied by proof of notice to
bind the estate by a new contract for the comthe employer. Baulec v. Railroad Co., 59 N. pletion of a building, for the erection of which Y. 336. On the other hand, it has been held the deceased had contracted, but the executor, that proof of particular acts of negligence is
being also an heir and interested in the property,
may bind himself personally by any contract he inadmissible, and that the employer can only
authorizes. be made liable by proof of general reputa- 3. Where no separate contract is made for tion. Frazier v. Railroad Co., 38 Pa. St. the erection of a distinct portion of a building, a
statement for a mechanic's lien filed before the 104; Hatt v. Nay, 144 Mass. 186, 10 N. E.
completion of the building is premature and in807. We think it was not proper to allow effectual. Wilson to give his opinion to the jury as to
4. Defendants in a trial court, who file cross the competency of Dufresne as a miner, and
petitions asking affirmative relief against code
fendants, in order to obtain any relief in this court especially so as it appeared from the cross
from an adverse decision below, must either join examination that he had no personal knowl- as plaintiffs in error or file cross petitions in eredge as to Dufresne's experience or skill as
ror here. a miner.
(Syllabus by the Court.) · The plaintiff was recalled as a witness in Error from district court, Finney county; rebuttal, and asked the following questions: A. J. Abbott, Judge. "Q. You heard Mr. Elwood testify, did you? The Chicago Lumber Company, of Kansas, A. Yes, sir. Q. I will ask you if, in the con- a corporation, brought suit against William versation that Mr. Elwood had with you the M. Tomlinson, Harry C. Lucas, executor of evening that you were hurt, that he stated to the will of Thomas Lucas, deceased, Silas T. you substantially that: 'I was afraid of the Lucas, and others, heirs of said Thomas Frenchmen myself. They get so excited at Lucas, and divers other parties having claims shooting times. That is the reason I put against the property, to recover a judgment them all in one entry.' A. Yes, sir." This against said Tomlinson and the heirs of testimony was objected to by the defendant. said Lucas, and foreclose a mechanic's lien The general rule is that admissions of an on certain lots in Garden City. Judgment agent, in order to bind the principal, must for plaintiff against Tomlinson alone, and be made in the course of his employment, plaintiff brings error. Reversed. and in connection with and as explanatory The petition alleges that W. M. Tomlinson of something that he does by authority of his and Thomas Lucas entered into a contract employer. Dodge v. Childs, 38 Kan, 526, 16 with one J. A. Case for the erection of a twoPac. 815; Railway Co. v. O'Brien, 119 U. S. story stone building on lots belonging to said 99, 7 Sup. Ct. 118. Mere narrations of past Tomlinson and Lucas; that, shortly after occurrences, or admissions disconnected from making the contract, Thomas Lucas died; any service for his employer, are subject to that Harry C. Lucas was appointed and the objections which exclude hearsay testi- qualified as executor of his will; that the mony. Was the admission of the objection- deceased left as his heirs Agnes M. Lucas, able testimony above mentioned of such im- | Silas T. Lucas, Emma Lucas, Isabella Luportance as to require a reversal of the judg- cas McKinney, Amy Lucas Reeves, and said ment? The writer inclines to the opinion Harry C. Lucas; that S. T. Lucas was aythat in the imperfect condition of the record thorized by said executor and said heirs to the errors are not sufficient to compel a re- represent the interests of said parties in the versal. The majority of the court, however, construction of said building; that said Case hold otherwise, and that, where error is clear- abandoned his contract before the complely shown with reference to a vital issue in tion of the building; that Tomlinson and S. the case, it must be presumed to have in- T. Lucas, in behalf of said heirs, thereupon fluenced the verdict, unless the record affirm- entered into a contract with the plaintiff, by atively rebuts the presumption. Gilmer v. the terms of which it was agreed that the Higley, 110 U. S. 47, 3 Sup. Ct. 471. For plaintiff should furnish the lumber necessary the errors mentioned in admitting incompe- for the completion of such building, and that tent testimony, the judgment must be re- said Tomlinson and said Lucases would pay versed, and a new trial ordered. All the jus- the plaintiff both for the lumber thereafter to tices concurring.
be furnished and for a part thereof which
had been furnished under a contract with (54 Kan. 770)
said Case. The petition also alleged the file CHICAGO LUMBER CO. V. TOMLINSON
ing of a statement claiming a mechanic's et al.
lien on the 3d of September, 1887, and of an (Supreme Court of Kansas. March 9, 1895.)
amended statement on the 6th of September. EFFECT OF APPEAL-CASE MADE-POWERS OF Ex.
The first statement alleges that the materials ECUTORS- MECHANIC'S LIEN-STATEMENT were furnished under a contract with John -Cross PETITION IN ERROR.
A. Case, contractor for the erection of said 1. The power of a trial judge over a case building, and with Callahan and Smith as made for the supreme court ceases after the same has been settled, attested, and filed, and a
his successors in the contract. It does not subsequent unverified certificate cannot be con
allege any contract directly with the owners. sidered.
The second statement avers a subsequent contract with the owners. The amended Co., by authorized agent or otherwise, cause petition was filed on the 16th of July, 1888. to be filed a mechanic's lien against the On the 30th of July, 1888, a demurrer on be- property of the defendants ? And, if so, half of the defendants was filed by C. W. when was it filed? . The only lien that was Morse as attorney. Answers and cross filed was filed September 3, 1837. The lien petitions were thereafter filed by J. A. statement of September 6, 1887, was never Sankey, Felker & Ganschow, and Rob- filed. Sixteenth. Did the Chicago Lumber ert E. Gray. Various motions with ref- Co., by authorized agent or otherwise, cause erence to the pleadings were filed and pass- to be filed a second mechanic's lien against ed upon by the court, and afterwards an the property of the defendants in this cause, answer was filed by Harry C. Lucas and W. as described in the petition herein? No. M. Tomlinson, which was verified by Tom- Seventeenth. If the court finds that two linson, denying generally the allegations of liens were filed by the plaintiff against the the petition. The case came on for trial at defendants, was the amount claimed to be the February terın, 1890, and was submitted due the same in both liens? Yes." "Twento the court without a jury. The record re- ty. What authority, if any, did Silas T. cites: "And the plaintiff and the cross peti- Lucas have to represent Thomas Lucas and tioners in the cross petition in open court the heirs of Thomas Lucas, and did S. T. called the attention of the court to the Lucas receive additional authority after the fact that the following named defendants, death of Thomas Lucas? If he did, from to wit, Agnes M. Lucas, Silas T. Lucas, whom did he receive it, and what was its Emma Lucas, Isabella Lucas, Amy Lu- extent? Thomas Lucas told Silas T. Lucas cas, and Amanda 0. Tomlinson, were in to 'go ahead and finish the building.' He had default for the want of an answer, and the no other authority that could bind the escourt thereupon noted a default as to each tate.” “Twenty-two. What interest, if any, of the last-named defendants." The court, has Silas T. Lucas in the described properafter hearing the testimony, at the request of ty? None whatever. Twenty-three. In what Tomlinson and H. C. Lucas, answered cer- way or by what title is the described proptain questions submitted, among which are erty held by the respective defendants, and the following: "First. Under what con- do they hold it jointly or severally? They tracts, if any, did the Chicago Lumber Com- hold it severally. Twenty-four. When was pany furnish any building material that was the building known as and called the 'Tomused in the construction of building on lots linson and Lucas Building completed? About 11 and 12 in block No. 36 during the months September 8, 1887.” "Twenty-seven. Did of March, April, May, and all that part of the defendants Tomlinson and Thomas LuJune preceding the 27th day, in the year cas in his lifetime contract with J. A. Case 1887? Ans. Under a contract with J. A. to furnish the materials and erect the buildCase. Second. What amount of material, ing in question? No.” On the request of and what was the value of the same, was the plaintiff and cross petitioners, the court furnished by the Chicago Lumber Company, made the following findings: "First. When if any, during the months of March, April, was the first item of material furnished by. May, and all that part of June, 1887, pre- plaintiff for the erection of the building in ceding the 27th day, used in the construction question? On the 21st day of March, 1897." of said building? Material to the amount “Third. When did Thomas Lucas die? In and value of $747.98. Third. To whom was the latter part of March, 1887. Fourth. the above material sold and delivered, if to Who had charge of the interests of the Lucas any one? To J. A. Case. Fourth. Was any
estate and heirs in said building after the material furnished by the Chicago Lumber death of Thomas Lucas? Silas T. Lucas. Co. for said building, that went into the con- Fifth. State whether or not Silas T. Lucas struction of the same, after the 27th day of represented the estate of Thomas Lucas in June, 1887? Yes. Fifth. What amount of the matter referred to in the last answer, material was furnished by the Chicago Lum- and whether or not the expenses of said Silas ber Co. for said building after the 27th day T. Lucas were paid by the executor of said of June, 1897? To the amount of $1,306.08." estate. He represented the executor, Harry "Seventh. Under what contract, if any, did C. Lucas, and his expenses were paid by the the Chicago Lumber Co. furnish the material estate. Sixth. Did not Silas T. Lucas and for said building after the 27th day of June, William M. Tomlinson, after the death of 1887? Under a contract made with Silas T. Thomas Lucas, meet at Garden City and Lucas and Wm. Tomlinson. Eighth. When jointly treat with and contract with the was this last-mentioned contract made, if | plaintiff and cross petitioners? Yes. Seventh. made at all? About June 27, 1887.” “Thir- | Please state the inducement, if any, that teenth. If you find a contract was made by caused the plaintiff and cross petitioners to the defendants, or either of them, to pay complete their several contracts in regard to the debt of Case to the Chicago Lumber Co., said building, if they did so complete them. when was it made, and with whom? About State what benefits, if any, moved to the June 27, 1887, with S. Guerrier and John defendants Tomlinson and Lucas' estateCobry, by Silas T. Lucas and Wm. Tomlin- Lucas' heirs-by the completion above reson,” “Fifteenth. Did the Chicago Lumber ferred to, and to either of them. They were
promised by Silas T. Lucas and Wm. Tomlin- Garden City property, shows that' S. T. son that the debts contracted by Case should Lucas, his brother, had authority to reprebe paid, and that all additional claims for sent him and make necessary contracts for labor and material should be paid." "Thir- the protection of his interests in the propteenth. Did not the executor of the estate oferty. While he could not, executor, Thomas Lucas account in his final report for without express authority in the will, bind disbursements made by said Silas T. Lucas the estate by a new contract, he certainly in the erection of the building in controversy, could bind himself, individually, as one of and said Silas T. Lucas' expenses in looking the parties in interest. As to the other after same? Yes. Fourteenth. How much, if heirs of Thomas Lucas, the record scems to anything, is due the plaintiff for the material show that C. W. Morse filed a demurrer in furnished and described in the petition? $2,- the case for them, which was overruled, 502.97." The court found as conclusions of and then made further appearance. law that the plaintiff was entitled to a person- | Just before the commencement of the trial, al judgment against W. M. Tomlinson for the the court noted a default on the part of the amount found due, but was not entitled to Lucas heirs other than the executor; but any lien, nor to any judgment against any of the court seems to have tried the case as the Lucases.
though H. C. Lucas, the executor, were deMilton Brown, Valentine, Godard & Valen- fending for all of the heirs. The court tine, and Rightmire & Schenck, for plaintiff
held that S. T. Lucas had no authority to in error. A. J. Hoskinson, for defendants in bind any of the heirs of his father, and deerror' ..
nied a judgment against any of them, as
well as refused a lien against the property. ALLEN, J. (after stating the facts). Tne In the state of the record, and considering defendants in error again challenge the the manner in which the case was tried case made on the ground that it was never and disposed of by the court, we do not served on the defendants. This question feel warranted in directing judgment was raised by motion and decided adverse- against the heirs who are apparently in dely to the defendants in error at the Febru- fault. The proof relied on to show that s. ary, 1893, session of the court. A supple- T. Lucas was authorized to make any conmental certificate signed by the trial judge, tract binding them is very weak, if not abdated February 4, 1895, without any at- solutely wanting. It is urged by the plaintestation, has been attached to the case tiff in error that the facts that the exmade, but this cannot be considered. The penses of S. T. Lucas in looking after the jurisdiction of the trial judge terminated business at Garden City were paid by the when he signed and settled the case on the executor out of the funds of the estate, and 23d of January, 1891. Lewis v. Linscott, that certain payments were made by his 37 Kan. 379, 15 Pac. 158; Graham v. Shaw, direction on the contract, and that the exec38 Kan. 734, 17 Pac. 332.
utor's final account, showing these disburse The trial judge held that Harry C. Lucas, ments, was assented to and accepted by all as executor, had no power to bind the es- the heirs, show a ratification by them of all tate of his father, Thomas Lucas, deceased, that was done by S. T. Lucas. But the setfor the completion of the building. Thoni- tlement only shows payments made prior as Lucas was a resident of Allen county, to the 27th of June, when it is alleged the Ind. H. C Lucas, the executor, resided in new contract was made for the completion Chicago, and all of the heirs of the estate of the building after its abandonment by of Thomas Lucas Were nonresidents of Case, and the payments, other than that of Kansas. Silas T. Lucas, althoughi a son of $100 to S. T. Lucas, were made in the name Thomas Lucas, had received an advance- of J. A. Case, the original contractor. This ment from his father amounting to more certainly does not show any ratification by than his share of the estate, and therefore the heirs of the contract subsequently made had no interest in the estate left by his by S. T. Lucas with the plaintiff in this father. He, however, looked after his fa- case. S. T. Lucas undoubtedly had power ther's interest in the contract for the erec- to bind himself personally, even though he tion of the Garden City building, at his had no interest in the property; and we father's request, prior to his death, and think the evidence in the case shows that continued to look after the matter after his he had authority to bind H. C. Lucas so death. H. C. Lucas testified, among other far as his interests were affected, and that things: "Q. Have you not had correspond the court erred in denying any judgment ence with Mr. C. W. Morse, one of the against H. C. Lucas. agents referred to, in connection with this The findings of the court show that the building? A. The total business done down building was not completed until about the there was attended to by my brother. O. Sth of September, while the statement for Was done with your knowledge and con- the lien was filed on the 3d, and therefore sent? A. By my brother. Yes, sir." We premature. The court also finds that the think the testimony of H. C. Lucas, who second statement was never filed. As the was entitled to a share in his father's es- first statement claimed only under a subtate, and was therefore interested in the contract with John A. Case, and with Callahan and Smith, as his successors, the on this motion. Under the evidence in the plaintiffs would be confined in their proof case, no attachment could be sustained to what they furnished under such a sub- against Harry C. Lucas, as executor, whatcontract, and the court's conclusion of law ever the rights of the parties might be that the plaintiffs were not entitled to a against the heirs interested in the estate. mechanic's lien is supported by the findings For the errors pointed out, the judgment of fact. Of course, the plaintiffs cannot must be reversed, and a new trial ordered. successfully urge inconsistent claims. If All the justices concurring. the materials were furnished by them under a subcontract with J. A. Case, who alone contracted directly with Tomlinson
(54 Kan. 732) and Lucas for the erection of the building,
GERMAN FIRE INS. CO. V. BOARD OF their only remedy would be against Case
COM’RS OF SHAWNEE COUNfor a personal judgment, and against Tom
TY et al. linson and Lucas for a lien on the property
OAKLAND HOME INS. CO. v. SAME. only. The plaintiffs, however, seem to have placed their main dependence on the sub
(Supreme Court of Kansas. March 9, 1895.) sequent contract made with Tomlinson and
ISSURANCE-Condition. S. T. Lucas; and the amended mechanic's
A policy of insurance against fire con
taining a condition which forbids the keeping or lien prepared by them and claimed to have
use of gasoline upon the insured premises is been filed on the 6th of September, but avoided by a violation of the condition by one which the court finds was not filed in fact, who occupies the premises with the implied conis framed on the theory of this subsequent
sent of the assured. contract. If this statement was not filed in
(Syllabus by the Court.) fact, or was prematurely filed, before the Error from district court, Shawnee county; completion of the building, the plaintiffs John Guthrie, Judge. would not be entitled to any lien, but Actions by the board of county commissionmight be entitled to a personal judgment ers of Shawnee county and others against against such of the defendants as author- the German Fire Insurance Company and the ized the making of the new contract, or Oakland Home Insurance Company. Judgsubsequently ratified it.
ments for plaintiffs, and defendans bring erThe trial court found that there was due ror. Reversed. to the defendants who filed cross petitions, Two cases were brought by the board of for labor and material furnished for the county commissioners of Shawnee county, same building, the following sums: J. A. Kan., one against the German Fire Insurance Sankey, $1,111.96; Felker & Ganschow, $1,- Company and the other against the Oakland 916.24; R. E. Gray, $537.50. Counsel for Home Insurance Company, to recover upon plaintiffs in error says in his brief: “In be- two policies insuring a building situated uphalf of the cross petitioners, we submit on the fair ground in Shawnee county, and their case upon the propositions announced known as a "grand stand." It was alleged by us in support of the petition in error by that the building was wholly destroyed by plaintiffs in error, for the same error per- fire on September 28, 1888, and that although meates the ruling denying each of them a proofs of loss had been made, and all the convalid mechanic's lien." None of these par- ditions of the contract had been performed ties appear in court as plaintiffs in error, by the board of county commissioners, the nor has any cross petition in error been companies had refused to adjust or pay the filed by either of them. They, therefore, loss. A judgment for $1,000 was asked for in so far as we are informed, have never had each case. The answers of the insurance any case pending in this court, except so companies are substantially the same, and far as their interests might be affected by were-First, a general denial; second, an the decision of the case brought here by the averment that the fire occurred through the Chicago Lumber Company. Their claims unlawful act of third persons and through for affirmative relief are not before this the gross negligence and neglect of the plaincourt in any manner.
tiff; and, third, that the premises were so A petition in error has also been filed and occupied as to increase the risk without the separately numbered, referring to the same consent of the insurance companies being incase made, and complaining of the ruling of dorsed upon the policies, and that gasoline the court on a motion made by H. C. Lucas, or some volatile burning fluid was kept and as executor, to discharge the attachment is- used, and was permitted by the plaintiff to sued in the action against the property of be kept and used, on the premises, by reaThomas Lucas, deceased, on the ground, son of which an explosion occurred, which among others, that the evidence on the trial destroyed the property, and that had the shows that the estate of Thomas Lucas is plaintiff not permitted gasoline to be used not liable upon the contract sued on in this upon the premises the loss would not have action. Even if we were to treat the pe- occurred. The case was submitted to the tition in error as properly attached to the court upon an agreed statement of facts, case made, and entitled to consideration, which is as follows: "First. The policies of there is no error in the ruling of the court insurance were issued, as alleged by plaintiffs