Carr, Carr & Evans, of Des Moines, Iowa, and Isaac A. Rigby, of Concordia, for appellant. Pulsifer & Hunt, of Concordia, for appellee.

WEST, J. The plaintiff recovered a judgment on an accident policy, and the defendant appeals. The application began as fol

lows:

"I hereby make application for membership in the association, basing my application upon the following representation of facts, all of which I hereby certify to be true, complete and material to the risk. I agree that any statement made by me to the agent or solicitor of this application shall not bind the association unless written hereon."

The defendant contends that the parties by agreement stipulated that the statements

quoted were material to the risk and in the nature of warranties, and that the statement in the application that the plaintiff had had no surgical advice regarding illness or injury during the preceding five years except once, and that he had never received or been refused compensation for accidental injury on a policy for insurance except on one occasion, were in fact untrue and known so to be by the plaintiff but not known to the defendant when the policy was issued, and that as the latter contained the provision that it should be void if there had been any fraud or misrepresentation by the member concerning the insurance the company is not liable. The plaintiff was permitted to and did testify in substance that the application was written at a hotel and shoved across the table to him by the agent and signed without reading and without knowledge of its contents and without knowledge that the agent had not written in the answers given by the plaintiff. Further, that he told the agent that he had received a certain sum from an association of Columbus in 1914, another from a Commercial Men's Association in 1915, and also in 1911 or 1912, on account of being struck by the falling of a tent pole in a windstorm and by falling in an attempt to board a train.

In other words, it is the old story, according to the plaintiff, of the applicant making full and complete answers, and of the agent leaving out everything likely to result in a refusal; the applicant assuming and supposing that his answers had been written down as he gave them. Authorities are cited in the brief and were referred to in the

This court by a long line of decisions is on record to the effect that, when an insurance agent seeking business and finding a prospect puts him through the categorical examination provided by the company and leaves out such answers given by him as would work a refusal of his application, and the company takes his money and issues his policy, it, and not the applicant, is held responsible for the situation thus arising. When, as testified to in this case, the customer makes truthful answers, and the paper supposedly containing them is shoved across the table to him for a signature, and he immediately signs without reading, it does not lie in the mouth of the company to criticize him for trusting the honesty of its agent in writing the answers as given. And if it is revealed that the application contained warranties and admissions of the agent's lack of authority, this cannot avail the company, whose agent has not called the customer's attention thereto, but who has received his signed application knowing that he has no knowledge of what it contained.

This rule, so manifestly in accord with common sense and fair dealing, has abundant support in the decisions of other courts, and still meets with the approval of this court. The following authorities are cited without quotation as abundantly supporting what has been said: Continental Ins. Co. v. Pearce, 39 Kan. 396, 18 Pac. 291, 7 Am. St. Rep. 557; Insurance Co. v. Gray, 44 Kan. 731, 25 Pac. 197: Despain v. Insurance Co., 81 Kan. 722, 106 Pac. 1027; Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245; Broady v. Fire Ass'n, 94 Kan. 245, 146 Pac. 343; 14 R. C. L. 1159, § 340; Deming Investment Co. v. Shawnee Fire Ins. Co., 16 Okl. 1, 83 Pac. 918, 4 L. R. A. (N. S.) 607, and note: Suravitz v. Prudential Ins. Co., 244 Pa. 582, 91 Atl. 495, L. R. A. 1915A, 273, and note.

The assignments of error all involve the operation of the rule thus announced.

The learned trial court in its rulings and instructions followed this rule, and the judg ment is affirmed. All the Justices concurring.

(Syllabus by the Court:)

1. APPEAL AND ERROR 995-QUESTION OF

FACT-WEIGHT OF EVIDENCE.

Although train sheets and records of a railway company, made before the occurrence of a fire could have been known, which show that no engine or train was operated at or near place where the fire in question occurred, are entitled to great weight as evidence, this court cannot weigh the effect of them as against evidence of persons who testified that they saw an engine operating there at the time.

2. TRIAL 206-INSTRUCTION-CONFLICTING EVIDENCE.

The following instruction should not have been given, in view of the character of the conflicting evidence upon the issue of fact to which it refers: "You are instructed that under the law of this state a positive statement of a witness as to an existing fact with relation to seeing or hearing a thing, which he was in a position to see or hear, is of greater value than the statement of a witness who testified that he did not see or hear a thing."

3. TRIAL 355(2)-VERDICT SPECIAL IN

TERROGATORIES-NEGLIGENCE.

The petition alleged the fire was caused by negligence in operating the engine, and also negligence in failing to provide sufficient devices to prevent sparks. In answer to a special question the jury found that the fire was caused by careless handling of the engine, or because of the defective condition of the smokestack. There was no evidence from which the jury could have answered differently. Held, following Hilligoss v. Railway Co., 84 Kan. 372, 114 Pac. 383, it was not necessary in order to support the verdict that the jury agree among themselves as to which of the two acts of negligence occasioned the fire.

Appeal from District Court, Cherokee County.

Action by Ernest Smith against B. F. Bush, receiver of the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. P. Waggener and W. E. Brown, both of Atchison, and Al. F. Williams, of Columbus, for appellant. C. A. McNeill, of Columbus, and E. B. Morgan, of Galena, for appellee.

PORTER, J. This is an action for damages to property alleged to have been destroyed by fire caused through the negligent operation of defendant's trains. Plaintiff recovered, and defendant appeals.

out live sparks, and was negligent in hardling and operating the engine, and suddenly threw on the steam with too great force, causing a powerful exhaust through the smokestack, which caused the hot coal, Cinders, and sparks to be blown several hundred feet, setting fire to and destroying three buildings belonging to plaintiff of a value of $2,100, and personal property located in the buildings. Judgment was asked for $2,800 damages, and for attorney's fees. The answer was a general denial, and the further statement that defendant's engines were properly equipped and properly handled. At the first trial the jury disagreed. On the second trial there was a verdict for plaintiff for $1,800 damages, and $150 attorney's fees.

[1] 1. The defendant seeks a reversal on the ground that the record discloses that the verdict is based upon perjured testimony. Plaintiff produced a number of witnesses who testified that they saw an engine on defendant's tracks before the fire. John Machetta, a coal miner, and his wife testified that between half past 10 and half past 11 they were going home, and saw an engine on the track; that it was running down grade; was pulling hard, and throwing lots of sparks. A boy of 15 testified to the same thing, and a girl of 11 years old testified that she saw the engine, and that it was pulling hard. Two or three other witnesses testified to having heard an engine puffing on the tracks sometime before the fire occurred. The testimony showed conclusively that at the place where these witnesses claimed to have seen the engine, it must have been running down grade. None of these witnesses saw anything attached to the engine. Defendant produced four witnesses who testified they were near the station a short time before the fire broke out. One of these was the station agent of defendant, and one was the superintendent of public schools at Carona. These two had just walked for a half mile on the tracks at the place and in the direction from which plaintiff's witnesses claimed to have seen an engine. All of the four testified there was no engine to be seen anywhere about. The defendant also produced the train sheets and train records and the testimony of the train dispatcher, all of which show that the last train through Carona before the fire was a little after 5 o'clock in the evening, and that the next train after that did not arrive until 12:30 in the morning, which was after the fire. We think the most that can be said is

that the record disclosed a case which would

that it was not possible for an engine to have been operating on the tracks in question at the time and place testified to by the witnesses for the plaintiff. The trial court heard and saw the witnesses, and has approved the verdict, and regardless of what this court might think as to the weight of the testimony, we are foreclosed by the ruling of the trial court on the motion.

[2] 2. One of the principal contentions is that the trial court erred in giving the following instruction:

"You are instructed that under the law of this state a positive statement of a witness as to an existing fact with relation to seeing or hearing a thing, which he was in a position to see or hear, is of greater value than the statement of a witness who testified that he did not see or hear a thing."

It is insisted that this misled the jury, and was relied upon in the argument on behalf of plaintiff in the court below; that by the instruction the court overlooked and ignored the question whether or not defendant had offered any positive testimony to show that there was no engine there, and whether or not defendant's witnesses were in as good a position to see as plaintiff's witnesses, and whether or not they were equally credible witnesses. The defendant relies on K. C., Ft. S. & G. Rd. Co. v. Lane, 33 Kan. 702, 7 Pac. 587, in which a refusal to give such an instruction was held not error because it ignored all modifying circumstances, and assumed that no positive testimony was offered by the other side. The decision has been followed and approved in Missouri Pacific v. Pierce, 39 Kan. 391, 18 Pac. 305, and Union Pacific V. Geary, 52 Kan. 308, 34 Pac. 887. In view of the character of the testimony offered by defendant on the issue of whether there was

any engine or train at the place in question, the instruction should not have been given, but we are not prepared to say that it constitutes in this case reversible error.

[3] 3. At the request of the defendant special questions were submitted, among which the jury were asked, in case they found the fire was caused by any negligence on the part of the defendant, then to state fully the act or acts of negligence of which the defendant, its agents or servants were guilty. The answer to this question was as follows: "Because of the careless handling of the engine, or because of the defective condition of the smokestack of the engine."

It is insisted these findings show that the jury have never agreed as to the act of negligence upon which they base their verdict; that six of them may have believed the engine was properly equipped, but negligently handled; the other six may have believed from the evidence that the engine was properly handled, but negligently equipped. The defendant urges that the case falls within the principle held controlling in the case of Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156, where a very similar question was involved, but which arose in a different manner. In

that case, as in this, the petition alleged that the engine was negligently operated, and also alleged negligence in the equipment as to attachments and devices. The trial court refused to submit certain special questions at the request of the defendant, the purpose of which was to require the jury in case they found for the plaintiff to state whether they believed from the evidence the fire was occasioned by a defect in the engine or by reason of improper operation. A judgment in plaintiff's favor was reversed, and a new trial ordered because of the refusal to submit these questions. In the opinion it was said:

"While the statute makes the setting out of a fire caused by the operation of a road prima facie evidence of negligence, still when the jury find that the fire originated from the enof the defendant, also to find whether it was gine, they should be required, upon the request caused by insufficient equinment or by improper management. We cannot agree with the contention of plaintiff's counsel that if half of the jurors believed the fire was caused by a defect in the engine, and the other half that it was caused by improper operation, the plaintiff would still be entitled to recover. If this were true there bility of the defendant on twelve different bases might be a consensus of opinion as to the liaon which such opinion could rest, each relied on by only one of the jurors, and none by all. facts of the case as well as to the general reTheir unanimous opinion as to the essential sult must be in favor of the prevailing party." 89 Kan. 576, 132 Pac. 157.

The doctrine of that case, however, has no room for application in the present case, for the reason that there was no evidence from which the jury could have returned a different answer. The defendant claimed that it had no engine operating at that place, and while the answer alleged that its engines were properly equipped and properly handled, fense. Proof that the fire was caused by the no evidence was offered in support of this deoperation of the railroad is prima facie evidence that it was the result of negligence. led by the decision in Hilligoss v. Railway Co., Gen. Stat. 1915, § 8473. The case is control84 Kan. 372, 114 Pac. 383, where the jury were unable to determine from the evidence whether the fire was caused by negligence in operation or in equipment of the engine, and returned as an answer to the question, "Don't know." The defendant asked that they be required to make a more definite answer, and complained that the court refused its request. It was held that because of the presumption created by the statute, "it is not necessary, in order to sustain a verdict for the plaintiff, that the jury shall be able to specify in what respect the defendant was negligent." It was said in the opinion:

"If in the present action no evidence whatever had been introduced on the subject of negligence beyond the bare fact that the fire was set out by the defendant's engine, and the same questions had been submitted, the jury would necessarily have answered them just as they did." 84 Kan. 374, 114 Pac. 384.

The statutory presumption prevails until it is met with evidence sufficient, in the minds

lord. On the contrary, by its express terms the tenant agreed that during the life of the lease it would at its own expense "keep said premises and every part thereof in good The defendant offered to show a

MASON, J. T. F. Garner brought an action against his tenant, the Dodge City Wholesale Grocery Company, for a balance due as rent, and for injuries done to the rented property. The defendant denied liability, and set up a counterclaim by reason of injuries to goods caused by a defective roof. Judgment was rendered for the plaintiff, and the defendant appeals.

[1] 1. When the case was reached for trial, the defendant's attorney asked a continuance on account of the absence of a witness, the president of the company. The request was denied, and complaint is made of that ruling. No such showing was made as to give the defendant a right to a continuance under the statute. The matter rested in the discretion of the trial court. It appears that the witness had been present a few days before, and had known of the case being set for trial. In that situation there is no room for a contention that there was any abuse of discretion.

[2] 2. The lease was in writing, and contained no provision for repairs by the land

tion. The court properly rejected the offer. 24 Cyc. 1085.

"It has frequently been held that the landlord is under no obligation to make repairs, unless such a stipulation is made a part of the original contract, and that any subsequent promise to make repairs, founded merely on the relation of the parties, and not one of the considerations of the lease, is without consideration, and creates no liability." 16 R. C. L. 1033.

[3] 3. The final complaint is of the refusal of the court to allow proof of injuries to the plaintiff's goods caused by the leaky roof. Whether or not this would have afforded a proper measure of damages if the landlord had agreed to make repairs (as to which see Murrell v. Crawford, 169 Pac. 561, decided at this session), in the absence of such an agreement no liability on the part of the plaintiff was created by the facts offered to be shown, since he was under no implied duty in that respect (16 R. C. L. 1030-1033). The appellant cites many cases in which the landlord was held liable for damages on account of losses occasioned by his failure to repair, but in each of them he had expressly assumed such an obligation, or, as in Mann v. Fuller, 63 Kan. 664, 66 Pac. 627, had attempted to make repairs and injury resulted from

the unskillfulness of the work.

The judgment is affirmed. All the Justices concurring.

WALSH v. KANSAS FUEL CO. et al. (No. 20992.) (Supreme Court of Kansas. Dec. 8, 1917.) (Syllabus by the Court.)

1. CONTRACTS 176(1)-EVIDENCE-448CONSTRUCTION INTENTION OF PARTIES-QUESTION FOR JURY.

Where a contract is not ambiguous, and there is no charge of fraud, accident, or mistake, the intention of the parties must be ascertained from the contract, and its construction is a matter of law for the court and should not be submitted to the jury.

2. LIMITATION OF ACTIONS 55(5)-INJURY TO REAL PROPERTY BY MINING OPERATION— SUBSIDENCE OF SURFACE.

An action for damages caused by the subsidence of the surface of land, brought about by mining coal therefrom, is not barred by the statute of limitations until two years have elapsed after the surface has subsided.

3. MINES AND MINERALS 125-SUBSIDENCE OF LAND-ACTION FOR DAMAGES EVIDENCE. There was evidence which tended to show that the surface of the land had subsided in 250 or 260 different places within two years prior to the commencement of this action, and there was also evidence which tended to show the decrease

in the value of the surface of the land caused by the subsidence of that surface.

Appeal from District Court, County.

Action by J. J. Walsh against the Kansas Fuel Company and W. H. Barrett. Judgment for defendants, and plaintiff appeals from the judgment in favor of defendant Kansas Fuel Company. Reversed, and new trial directed as to that defendant.

C. A. McNeill, of Columbus, Maurice McNeill, of Kansas City, Mo., and P. C..Young, of Fredonia, for appellant. Al. F. Williams and Skidmore & Walker, all of Columbus, and W. R. Thurmond, of Kansas City, Mo., for appellees.

MARSHALL, J. In this action the plaintiff seeks to recover damages for the subsidence of the surface of real property, caused by mining coal therefrom. Judgment was rendered in favor of the defendants, and the plaintiff appeals from the judgment in favor of the Kansas Fuel Company.

And in the opinion said:

[1] 1. Complaint is made of an instruction in which the court told the jury that the plaintiff's intention to waive subjacent support was a question of fact for them to determine from the lease, acts, and conduct of the parties in relation thereto. That instruction was as follows:

"You are instructed as a matter of law that the owner of real estate, who leases the same for mining purposes, nevertheless has the right to subjacent support of the surface. And he will not be deemed to have waived, conveyed, or lost such right, unless it appears from the language used in the lease or conveyance that it was the intention to convey that also. The matter of construing a contract or other written instrument is a matter to be disposed of by the court; and you are instructed that, according to the terms and condition of the mining contract or lease entered into between the plaintiff and defendant W. H. Barrett, it does not clearly appear to have been the intention of the plaintiff J. J. Walsh to convey his rights to the subjacent support to the surface of the land leased. The question as to whether or not such was his intention is a question of fact for you to determine from the lease and the acts and conduct of the parties in relation thereto at the time of making and subsequent thereto. Should you betieve from all the evidence that it was the intention of the plaintiff Mr. Walsh to convey the right to subjacent support to the surface, then and in such an event he can recover nothing in this action, and your verdict should be for the defendants. And in determining the intent of Mr. Walsh at the time the lease was made, you have the right to take into consideration all his subsequent acts and conduct in relation thereto as shown by the evidence, and determine there

the usual sense." "The contract in this case is not ambiguous in 91 Kan. 313, 137 Pac. 943, 50 L. R. A. (N. S.) 686.

To show that the plaintiff waived subjacent support, the Kansas Fuel Company relies on the following language contained in the lease:

"Said second party to work and mine said coal in a good, careful, and workmanlike manner, and not leave unnecessarily any coal which should be and can be mined with safety to the mine and miner, and said second party shall not be required to work low places or rolls which cannot be mined except at a loss."

The language quoted does not clearly indicate any intention on the part of the plaintiff to waive the right to subjacent support for the surface of the land. That question was disposed of on the former appeal.

The instruction was misleading and should not have been given. The terms of the lease cannot in any way be altered, varied, or contradicted, except for fraud, accident, or mistake. None of these things were alleged, and no attempt was made to prove any of them.

[2] 2. Another complaint is made of the following instruction:

"You are instructed that, in estimating the damages that may have occurred within the two years as heretofore pointed out, you are not to count the damages from the time you may have found the cave-ins to have occurred, but you are to count the damage on from the time when the coal may have been removed. Therefore you are instructed that, if you find for the plaintiff, he can only recover for the damages to such portion of the land as to which the coal may have been removed within the two years next preceding April 20, 1912."

The instruction was erroneous. In Audo v. Mining Co., 99 Kan. 454, 162 Pac. 344, it was held that a cause of action for damages caused by the subsidence of land into exca