ice of process could be made upon some member of the debtor's family at its residence or place of abode. The cases in which the decisions are to that effect are: Fisher v. Phelps, Dodge & Co., 21 Tex. 551; Phillips v. Holman, 26 Tex. 276; Pells v. Snell, 130 Ill. 379, 23 N. E. 117; Hoggett v. Emerson, 8 Kan. 262; Investment Co. v. Bergthold, 60 Kan. 813, 58 Pac. 469; Gibson v. Simmons, 77 Kan. 461, 94 Pac. 1013; Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316; Todman v. Purdy, 5 Nev. 238; Bonnifield v. Price, 1 Wyo. 223; Anthes v. Anthes, 21 Idaho, 302, 121 Pac. 553; Stanley v. Stanley, 47 Ohio St. 225; Kempe v. Bader, 86 Tenn. 189, 6 S. W. 126; Huss v. Central, etc., Co., 66 Ala. 472; Parker v. Kelly, 61 Wis. 552, 21 N. W. 539; Smith v. Smith (D. C.) 210 Fed. 947; Rogers v. Hatch, 44 Cal. 280; Watt v. Wright, 66 Cal. 205, 5 Pac. 91; Foster v. Butler, 164 Cal. 623, 130 Pac. 6. Our statute is an exact transcript from the California statute, and in the case of Rogers v. Hatch, supra, the rule applicable to the facts in the case at bar is stated in the following words: "If, when the cause of action here accrues, the person against whom the same exists resides in the state, and he afterwards departs from the state, his successive absences from the state must be aggregated together and deducted from the whole time which has elapsed since the cause of action accrued, and the balance is the time the statute of limitations has run." The other California cases fully support the foregoing text. The Kansas and Ohio statutes (Gen. St. Kan. 1868, ch. 80, § 21; 2 Bates, Ann. St. Oh. § 4989) are precisely like ours, except in those states the running of the statute is also arrested in case the debtor "absconds or conceals" himself as well as if he "is out of the state." In the other states from which the cases last mentioned are cited the statutes are in legal effect like ours. The only difference, if any, consists of immaterial phraseology. The rule in force in Kansas is stated in the case of Hoggett v. Emerson, supra, thus: place of residence therein, where a summons upon him might be served." The Ohio statute, as before stated, is the same as the Kansas statute, and in Stanley v. Stanley, supra, it is said: "Under the provisions of section 4989, Restate, for the full period of the time limited for vised Statutes, presence of the defendant in the bringing an action, either continuously or in the aggregate, is necessary to constitute a bar of the action." It is not necessary to further review, or It must suffice to say quote from, the cases. that the great-the overwhelming-weight of authority, under statutes like ours, is in support of the decision of the district court. [2] Nor can it be successfully contended that the decisions in those cases which are based upon statutes that are tolled if the debtor "be out of the state" are not supportThere certainly is a ed, by sound reason, very clear and substantial difference between the language "out of the state" and "absent from and resides out of the state." Under the language first referred to mere absence from the state is sufficient, while under the language last referred to it requires both absence and nonresidence. Now one necessarily is absent from the state if he is out of the state, but he may not be a nonresident merely because he is absent from or is out of the state. It is manifest, therefore, that by using different language the Legislatures of the several states must have intended that a dif ferent effect be given to the statutes covering the same subject. To hold that there is no difference between "being out of the state" and being "absent from and resides out of the state" is doing much more than construing the meaning of language, which is a judicial function; it is adding words to those used by the lawmaking body, which is a legislative function. [3] Nor is the contention that the statute continued to run after the defendant left the state again on January 10, 1912, sustained by the authorities. Indeed, the authorities that hold that absence from the state tolls the statute, all agree that the statute runs only during the time the debtor is openly in the state and immediately on his leaving it the statute against ceases to run until his return, and that in computing time all the periods of absence must be considered and added together. is permissible, which is, that the judgment of In view of the foregoing but one conclusion the district court is right, and should be affirmed. Such is the order. Respondent to re cover costs. MCCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur. per did not, the defendant should have informed the shipper of the conditions, in order to excuse liability for delay which the condi OTT v. ATCHISON, T. & S. F. RY. CO. (No. 21191.) (Supreme Court of Kansas. Jan. 12, 1918.) tions occasioned. The defendant complains (Syllabus by the Court.) 1. CARRIERS 213, 230(8)-LIVE STOCK-LIABILITY FOR DELAY-INSTRUCTION - EVI DENCE. In an action for damages for delay in transporting cattle, the court instructed the jury that if, when the cattle were tendered for shipment, the defendant knew of conditions likely to cause delay in transportation, and the shipper did not, the defendant should have informed the shipper of the conditions, in order to excuse liability for delay which the conditions occasioned. Held, the instruction stated the law, and was appropriate to the issues. 2. CARRIERS 218(10)-LIVE STOCK-NOTICE OF LOSS OR INJURY-DELIVERY. The contract of shipment required notice of loss or injury during transportation or at loading or unloading places on the carrier's road. Held, the contract was concluded with delivery, and notice of loss occurring after delivery was not necessary. Appeal from District Court, Barber County. Action by Leonard Ott against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. W. R. Smith, O. J. Wood, and A. A. Scott, all of Topeka, for appellant. Seward I. Field and Samuel Griffin, both of Medicine Lodge, for appellee. of the instruction. It correctly stated the law (10 C. J. 290, tit. Carriers, § 412), and was appropriate to the issue raised by the testimony referred to. [2] The delay in transportation occasioned loss through shrinkage of the cattle before delivery at destination, and after delivery. Notice of loss was not given. The contract of shipment required notice of loss or injury during transportation or at loading or unloading places on the defendant's road. The court instructed the jury that no damages could be allowed for loss occurring before delivery, but that notice of loss after transportation ended was not necessary. The defendant complains of the latter part of the instruction. The instruction was based upon a proper interpretation of the contract, which concluded with delivery. Extra yardage and extra feed, necessary after transportation ended, belong in the same category with ended. Notice of loss of market was not reshrinkage of the cattle after transportation quired by the contract. The jury returned some special findings of fact, which, it is said, are incompatible with the general verdict, are inconsistent with each other, and are not responsive to the issues. A careful scrutiny of the abstract fails BURCH, J. The action was one for dam- to disclose that these questions were presentages resulting from delay in the transporta-ed to the district court. tion of live stock. The plaintiff recovered, and the defendant appeals. The judgment of the district court is affirmed. All the Justices concurring. SHEAHAN et ux. v. KANSAS CITY. (No. 21186.) (Supreme Court of Kansas. Jan. 12, 1918.) (Syllabus by the Court.) 1. APPEAL AND ERROR 345(1)-TIME FOR TAKING APPEAL-EXTENSION-MOTION FOR NEW TRIAL. The plaintiff's claim was stated in a bill of particulars filed with a justice of the peace. The defendant filed no pleadings. In the district court delay in transportation was proved by the plaintiff and admitted by one of the defendant's chief witnesses. There was, in fact, no controversy over the subject, and the defendant merely undertook to excuse the delay. The excuse was an act of God. The testimony was that an unprecedented flood destroyed the bridge by which the defendant reached the Kansas City stockyards, the destination of the cattle. Other railroad bridges in the vicinity were destroyed at the same time, so that several carriers were obliged to use a single track to make deliveries. This resulted in a congestion of traffic, causing unavoidable delay. Sometimes, depending on the number of cars detoured, a shipment would reach the stockyards without delay. The plaintiff testified that the defendant's bridge was washed away more than two weeks before he tendered his cattle for trans-County. portation, and that the defendant did not inform him of the resulting conditions. [1] The court instructed the jury that if, when the cattle were tendered for shipment, the defendant knew of conditions likely to cause delay in transportation, and the ship To review a ruling of the court sustaining judgment for the defendant, it is necessary that a demurrer to plaintiff's evidence and giving the appeal be taken within six months after the ruling is made, and the filing of a motion for a new trial does not operate to extend the time for such appeal. 2. New Trial 104(1)—Newly DiscoverED CUMULATIVE EVIDENCE. A party is not entitled to a new trial on the ground of newly discovered evidence, where to the same point as that offered on the trial. the new evidence is of the same kind and goes Appeal from District Court, Wyandotte Action by C. C. Sheahan and wife against the City of Kansas City, Kan. Judgment for defendant, motion for new trial overruled, and plaintiff's appeal. Affirmed. J. K. Cubbison, of Kansas City, Kan., and W. G. Holt, of Kansas City, Mo., for appel lants. H. J. Smith, Lee Judy, and Thomas Van Cleave, all of Kansas City, Kan., for appellee. JOHNSTON, C. J. This was an action by C. C. Sheahan and his wife, Mary Sheahan, against Kansas City to recover for the death of a daughter. It appears that she was drowned in a pool of a creek bed just east of a bridge in a public street which extended across the creek. The city had used girders to tie the abutments of the bridge together, and it is claimed these operated as a dam, resulting in the formation of the pool. This, it is alleged, constituted an attractive nuisance; that children frequently played there; and that the daughter of plaintiffs was attracted to it and while playing there lost her footing and was drowned. After the plaintiffs had offered their evidence a demurrer thereto was sustained, and, no request being made to open the case for additional evidence, the court on March 30, 1916, gave judgment for the defendant. On the following day a motion for a new trial was made upon the ground, among others, of newly discovered evidence. This motion was not decided until September 16, 1916, when it was overruled. This appeal was taken on December 14, 1916, considerably more than six months after the ruling on the demurrer and the rendition of judgment. [1] Defendant contends that the appeal was taken too late to obtain a review of the decision sustaining the demurrer to the evidence. It has been determined that a demurrer to the evidence raises nothing but a question of law. Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299. To review such a ruling “a motion for a new trial is neither necessary nor proper, and the fact that such a motion is filed will not enlarge the time within which a case may be made upon which to review the ruling on the demurrer." White v. Railway Co., 74 Kan. 778, 88 Pac. 54, 11 Ann. Cas. 550, syl. par. 2. See, also, Van Tuyl v. Morrow, 77 Kan. 849, 92 Pac. 303; Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251. The error assigned on the ruling sustaining the demurrer to the evidence is therefore not open to review, as the appeal was not perfected within six months after the ruling was made. dam under the bridge," and shortly afterwards he was told that the girl had fallen into the water. There was much testimony given at the trial as to the location of the pool, as to the place where Katherine fell into the water and was drowned, and also that children were attracted to the place and frequently played there. Testimony of the girl who was playing with Katherine at the time of the accident was received, and also of a witness who took Katherine's body from the pool. He gave the details as to the conditions at the place of the drowning, the finding and recovery of the body, and mentioned the fact that Corlew, the proposed witness, was present when the body was recovered. [2] It is clear that the proposed evidence, if new, is of the same kind and goes to the same point as that adduced at the trial and adds very little to its strength. It is purely cumulative in character, and that kind of testimony is not a sufficient ground upon which to base a ruling granting a new trial. Clark v. Norman, 24 Kan. 515; Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890; Brown v. Wheeler, 62 Kan. 676, 64 Pac. 594. It follows, therefore, that the judgment of the district court must be affirmed. All the Justices concurring. DAWSON, J. The only question here concerns the propriety of the trial court's refusal to grant a continuance. The plaintiff sued the defendant for the half of a commission on a sale of real estate. At a first trial of the action, there was a verdict for The overruling of the motion for a new trial occurred within the time limited for an appeal, and it may be considered. Only one ground is relied upon-that of newly discovered evidence to be given by a witness named Corlew. The proposed new evidence goes no further than to state the location of the pool; that the children were attracted | plaintiff, but it was for an inadequate sum to and frequently played near it; that the body of Katherine, the child drowned, was taken out of the pool within the limits of the street; and that he had heard Katherine say to another, "Let's go down and play on the and was set aside and a new trial awarded. The second trial was set for October 11, 1916, the plaintiff coming all the way from Minnesota to attend it. On the day set for the trial, the defendant, who resided in Kansas City, Mo., sent a telegram from Alamosa, WEST, J. The plaintiff sued to recover the Colo., stating that he was sick and unable to purchase price of a milk separator and a meattend court, and that he was sending an af- chanical milker sold the defendant. No comfidavit by mail. This telegram was pre-plaint was made of the separator, but it was sented to the court, and an oral application pleaded that the milker injured his cows, was made for a continuance. Counsel for and also damaged the defendant by the deplaintiff immediately telegraphed an attor-crease in the amount of milk they gave, all ney in Alamosa to ascertain the facts. This in the sum of $250; the price of the milker Colorado attorney investigated and promptly being $163. telegraphed an answer that defendant looked well but had refused to let a physician examine him. The telegram of inquiry and answer were also presented to the court, and thereupon the application was denied and the cause proceeded to trial and judgment. On the hearing of the motion for a new trial, the facts of defendant's pretended sickness were thoroughly aired. Defendant and his personal physician made affidavits showing defendant's sickness at and about the time of the trial. The physician swore that defendant was under his care from October 7th until October 14th. Plaintiff produced affidavits of persons who knew defendant and who had seen him on October 11, 1916, and during some days prior thereto and afterwards in Alamosa, Del Norte, and Antonita, Colo.; that he was then apparently in good health; that he took his meals at a hotel in Alamosa; that he attended a fair at Del Norte, 30 miles away, having journeyed thereto by train; and that he was in Antonita, 29 miles from Alamosa, on October 12th, apparently in good health. Other circumstances were shown which tended to discredit the good faith of defendant's physician and to discredit his certificate and affidavit. der this showing, it must be held that there was ample evidence to justify the trial court in holding that on October 11, 1916, the defendant was not sick and unable to come and attend to his lawsuit, and that he had only been feigning sickness to hinder and delay the administration of justice. Un The one assignment of error is that the court erred in refusing a new trial, the motion for which set up inconsistency between the verdict and the findings, and that the latter were unintelligible and unsupported 'by the evidence. The meat of the plaintiff's contention is that the evidence was not sufficient to show that the alleged damage by the loss of milk was caused by the machine, and that from the testimony the amount of damages allowed by the jury could not be ascertained. But an examination of the abstract and counterabstract convinces us that the result reached by the triers of fact was fairly supported, and that the amount allowed the defendant was fully justified by the evidence. We perceive no material inconsistency between the findings or between them and the general verdict. The judgment is therefore affirmed. All the Justices concurring. LESEM et al. v. HARRIS. (No. 21166.) (Supreme Court of Kansas. Jan. 12, 1918.) (Syllabus by the Court.) 1. EVIDENCE 441(1) — PAROL EVIDENCECONTRACT. tract for the payment of money, the answer To the petition to recover on a written conset up an additional written contract made at the same time, and also a verbal contract varying the terms of the written instruments. Held that, under the primer and hornbook rule, such Judgment affirmed. All the Justices con- oral agreement was properly disregarded. curring. 2. PLEADING →345(1) JUDGMENT ON THE PLEADINGS-PETITION AND ANSWER. The petition alleged ownership by the plainEMPIRE CREAM SEPARATOR CO. v. AB- tiffs of a certain lease, a part of the consideration for the written instrument sued on. answer pleaded failure of consideration, and contained a general denial. Held, that it was error to render judgment for plaintiffs on the pleadings. BOTT. (No. 21194.) (Supreme Court of Kansas. Jan. 12, 1918.) (Syllabus by the Court.) FINDINGS SUFFICIENCY OF EVIDENCE-CONSISTENCY. Evidence and findings examined, and the latter are held not to be inconsistent or unsupported. Appeal from District Court, Riley County. Action by the Empire Cream Separator Company against F. C. Abbott. Judgment for defendant, and plaintiff appeals. Affirmed. R. P. Evans and George Clammer, both of Manhattan, for appellant. C. B. Daughters, of Manhattan, for appellee. The 3. MOTION TO MAKE PETITION MORE CERTAIN. The motion to make the petition more definite and certain was properly overruled. Appeal from District Court, Crawford County. Action by L. D. Lesem and others against Ben Harris. Judgment for plaintiff on the pleadings, motion for new trial overruled, and defendant appeals. Modified, and cause remanded. George H. Stuessi, of Pittsburg, for appellant. Arthur Fuller and W. J. True, both of Pittsburg, for appellees. WEST, J. The parties were owners of the capital stock of a shoe company. The plaintiffs sold the defendant their stock and interest in the goods, and in the lease of the building where the business was carried on, for $1,000, evidenced by a written contract. At the same time another written agreement was made, providing for the payment of another $500 on certain conditions. In addition, the answer set up a third agreement, made orally, to the effect that if the defendant should negotiate a certain compromise settlement with the creditors of the company the plaintiffs should transfer all their interest. Further, that if such contemplated settlement could be made by the defendant for a sum not exceeding 50 cents on the dollar for the total liabilities of the company, then after the transfer by plaintiffs of their interest in the stock of goods and lease the defendant was to pay plaintiffs a further sum of $500 as a consideration for the transfer of the stock and lease, but in no event should either of these sums be due or payable to the plaintiffs unless such settlement should be made and consent of the owners to the transfer by the plaintiffs of the lease to the defendant should be obtained and the lease transferred at the same rental value provided in each such lease, which contained a condition that no transfer or assignment could be made without the written consent of the lessors. It was further alleged that after this oral agreement a settlement was attempted, but without avail, because of the conduct of the plaintiffs, thereby eliminating the consideration for the defendant's contract to pay any sum whatever; that it afterwards developed by a proceeding in bankruptcy that the company and not the plaintiffs owned the lease which was ordered sold by the trustee as a part of the estate of the bankrupt company, and that the defendant was compelled to buy in the assets, including the lease. Instead of replying to this answer, plaintiffs moved for judgment on the pleadings, which motion was sustained. The defendant's motion for new trial was overruled, and he appeals. [1] The court correctly construed the allegations of an oral contract as an attempt to vary the terms of the written agreement sued on. But the petition alleged ownership in the plaintiffs of certain shares of capital stock, and of the lease and the delivery of both to the defendant. It is argued by the defendant's counsel that the answer put in issue the ownership of the lease and the delivery of the goods and lease, and this is true. [2] It was alleged that, upon determination that the lease belonged to the estate and not to the plaintiffs, it was put up for sale, and the defendant "was compelled to so purchase the said stock and said lease, as the assets of said corporation, in order to secure the legal title and possession of the same to him. It cannot be told from the answer whether the possession of the lease was taken from the defendant or not. The only clear thing alleged in the answer is failure of consideration. If the plaintiffs did not own the lease, this, of course, would amount only to a partial failure, but laying aside the long story about a verbal agreement, entirely out of harmony with the written contract, the defense indicated was pleaded, and it was error to render judgment on the pleadings. McCready v. Dennis, 73 Kan. 778, 85 Pac. 531; Sparks v. McAllister, 80 Kan. 546, 103 Pac. 127; Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115, 31 L. R. A. (N. S.) 1126. [3] The petition was not vulnerable to the motion to make definite and certain, and such motion was properly overruled. The judgment is modified as indicated, and the cause remanded for further proceedings in accordance herewith. All the Justices concurring. |