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And we think, notwithstanding the fact shows so conclusively that the jury did not that the witness was not a civil engineer, he take into consideration any injury to the freewas perfectly competent, under his testimo- hold, but that their verdict was based enny, to make such a rough draft as is indi- tirely and exclusively on a computation of cated by the plat offered. The map, it is the value of the timber proven to have been true, indicates two subdivisions of land of removed from the land, that it would be 40 acres each, but any one who could discov- working an injustice to the respondents to er a surveyor's corner post could sketch this reverse this case for the error of the court map with sufficient accuracy to meet the re- in wrongly instructing the jury on this propoquirements of this case. The objection, sition. therefore, that the map itself was incompe- As we have before indicated, we find no tent, by reason of the extraneous matter up- merit in the other exceptions, and as all on its face, not having been brought to the questions of fact, including alleged settleattention of the court, the appellants will ments and payments, were passed upon by not be allowed to avail themselves of it here. the jury in favor of the respondents, the judg.
Objection is also raised to the instructions ment will be affirmed. given by the court to the jury. The court instructed the jury with reference to the
ANDERS, GORDON, and SCOTT, JJ., conmeasure of damages, as follows: "You are
HOYT, C. J., dissents. instructed: That, in estimating the damages that plaintiffs have suffered by reason of the acts of the defendants, you should include
(11 Wash. 296) in such estimate the value of the trees or tim- BYERS v. ROTHSCHILD et al. (MCANber or shrubs cut or injured or removed or
DREWS, Intervener). destroyed, if any. That plaintiffs are entitled (Supreme Court of Washington, March 1, to have such damages as will make good the
1895.) diminished value of their lands on account PURCHASER ON EXECUTION RIGHT TO Rexts of the cutting, removing, injuring, or de
RENT FALLING DUE ON SUNDAY-REVIEW
ON APPEAL-PRESUMPTIONS. stroying of the trees, timber, or shrubs there
1. Under Code Proc. $ 519, giving the exon. The measure of damages would be the
ecution purchaser of premises the right of posvalue of the trees or timber standing upon session until redemption, unless they are in posthe lands, and the diminished value of the
session of a tenant holding under an unexpired
lease, in which case he is given the right to reland, if any, by reason of their having been
ceive the rents during the same period, such a cut or removed or injured or destroyed. That purchaser of premises is not entitled to rents beif, by reason of the cutting or removal or in- yond the day of redemption, though the rents juring or destroying the trees, timber, or
are payable in advance.
2. Where rent falls due on Sunday, suit shrubs on the land by the defendants, plain- therefor cannot be maintained until the next day. tiffs have suffered damage to their freehold 3 A judgment which shows that it was rene and interest in the lands other than the mar- dered on the pleadings and oral admissions of ket value of the trees standing upon the land,
the parties, which admissions do not appear on
the record, will not be disturbed. then you should render a verdict for plaintiffs equal to such damage, in addition to
Appeal from superior court, King county; such market value of the trees or timber."
R. Osborn, Judge. It is urged by the appellants that there are
Action by Alpheus Byers against E. S.
Rothschild and others. Martin McAndrews two elements of damages implied in this charge, viz. the value of the timber cut, and
intervened. From a judgment for defendthe injury done to the land by reason of the
ants, plaintiff appeals. Affirmed. cutting; and that the former is comprehend- Byers, McElwain & Byers, for appellant. ed in the latter; and that, under the phrase- William Martin, for respondents. ology of this instruction, the jury would be misled, and would give double damages. In DUNBAR, J. This action is brought under the judgment of the writer of this opinion, section 519 of the Code of Proceilure. The this instruction was exactly right, and is complaint alleges, in substance, that on the borne out by the authorities; but the judg- 9th day of March, 1894, the plaintiff pur. ment of the majority of this court is to the chased at sheriff's sale certain described real effect that the court did not lay down the estate in King county, state of Washington; proper rule for the measurement of damages, that at said date the defendants were holding but that the jury were not misled by the in- possession of said premises under an unex. struction, and that, therefore, there should pired lease; that said lease was made by not be a reversal on that ground, since it the former owner of the premises, one Marwas error without prejudice. Admitting the tin McAndrews, and was so conditioned that proposition so warmly contended for by the said defendants should pay as rental for said appellants, that, where error appears in the premises the sum of $275 per month; that instructions of the court, a reversal must fol- by the terms of said lease, and by virtue low, unless it affirmatively appears from the of the law, on the 1st day of April, 1894, there record that no prejudice followed the error, became due and owing from said defendit seems to us that the whole record in this ants to the plaintiff, for the rent of said case, and especially the verdict of the jury, premises, for the month of April, 1894, the sum of $275; alleged demand, nonpayment, or the value of the use and occupation there. and demand for judgment for the said sum of during the same period. What is meant of $275 and costs of the action. Rothschild by “during the same period"? Evidently, & Wilzinski, the defendants, answered, ad- the same period that the purchaser is entitled mitting the lease; alleging payment to one to where there is no tenant holding under Martin McAndrews up to the time of the an unexpired lease, viz. from the day of sale commencement of the action; affirmed that until a resale or redemption. There is no they were ready to pay rent to whomsoever provision of this law even suggestive of the the court should direct; asked that the com- idea that the purchaser should be entitled to plaint as to them be dismissed, and that the possession beyond the day of redemption, or said Martin McAndrews be allowed and re- that he shall be entitled to receive the rents quired to intervene, to the end that their or the value of the use and occupation of the rights be protected, and that they might not property beyond the day of redemption; and be subjected to another action for the same the fact that the rent in this instance was rent and claim. McAndrews did intervene, payable in advance, if such is shown from and filed an answer denying that the plaintiff the allegations of the complaint, cannot add was the owner of the premises; denying to the rights of the execution purchaser unthat by the terms of the lease and by virtue der the law. So that, even conceding that of the law there was due and owing from the execution purchaser would be entitled to defendants to plaintiff, for the rent of the an action against the tenant for the price premises, for the month of April, 1894, the contracted for between the tenant and the sum of $275; and for an affirmative defense landlord, all that the plaintiff in this case alleged that, prior to the commencement of could under any circumstances collect would the above-entitled action, McAndrews ten- be the amount of rent due from the 1st to dered to plaintiff the full amount, with all the 5th of April. But he would not even interest and all costs necessary to redeem the be entitled to bring the action in advance premises from said sheriff's sale, and that for that amount, for he could not know, plaintiff refused to accept the same; that under the law granting the right of redemp. on or about the 2d day of April, 1894, he tion, what proportion of this amount he duly served the plaintiff with a written no- would be entitled to until it had already be. tice of his intention to redeem the premises come due by lapse of time. The fact that described from said sheriff's sale; that there- this land was redeemed so shortly after this after, on the 5th day of April, he did redeem suit was commenced shows the impracticathe same by paying to Woolery, the sheriff bility and injustice of the rule contended for of King county, the sum of $49.70, the by the appellant. Again, the 1st day of April amount necessary to redeem said premises, fell on Sunday, which is a nonjudicial day, and the amount demanded by said sheriff to and the tenant would be entitled to the 2d redeem the same; and that said redemption day of April to make the payment to his in all respects complied with the law pertain- landlord, under their contract; and this ing thereto. There were some other allega- action was commenced before his time for tions in relation to attachment in a garnish- making the payment had expired. This may ment proceeding, which it is not necessary be a technical holding, but appellant here to notice here. The reply denied the tender is seeking to obtain a technical advantage, alleged in intervener's answer; admitted the and cannot complain if the construction notice of redemption on the 2d day of April, which he contends for is applied to his comand the redemption thereafter, on the 5th plaint. Laying all these questions aside, day of April. The cause came on for trial the appellant, under the record as presented June 7, 1894, and, prior to impaneling a to the court, could not maintain this action jury, appellant, by his attorneys, in open here in any event, and it is not necessary court, moved for judgment on the pleadings. for us to go into a discussion of the quesThe motion was overruled; whereupon the tion whether or not the judgment should have respondents moved for judgment, which mo- been rendered for respondents upon the tion was granted. From such judgment this pleadings, for, according to the record, this appeal is taken.
case was submitted, not only upon the pleadThis action could not be maintained, in any ings, but upon oral admissions made by the event, for any length of time exceeding that respective parties. The judgment recites the which intervened between the 1st day of following: “This cause having come on regApril and the 5th day of April, the day on ularly for trial on the 7th day of June, 1894, which it is conceded the land was redeemed. before Richard Osborn, judge of said court, The law provides that the purchaser from the and the plaintiff appearing in person and by day of the sale until a resale or redemption, his attorneys, Byers, McElwain & Byers, and the redemptioner from the day of his and the defendants in person and by their redemption until another redemption, shall attorney, William Martin, and said cause be entitled to possession of the property pur- having been duly submitted to the court for chased or redeemed, unless the same be in its decision upon motion for judgment upon the possession of a tenant holding under an the pleadings and upon oral admissions made unexpired lease, and in such case shall be by the respective parties in open court of all entitled to receive from such tenant the rents the facts in said cause, and the same being
fully submitted, and after hearing argument izing and empowering said Brehm to settle by counsel for the respective parties, and the or sue on said claim, and recover damages court being now fully advised in the prem- therefor, as fully as I have power to do at ises, finds from said admissions that inter- this time; and said Brehm is to and hereby vener Martin McAndrews was the owner in agrees to pay to me for my said claim an fee simple of the property described in plain amount equal to whatever he may recover tiff's complaint, at all the times mentioned and receive thereon, to be due and payable therein, and as a matter of law that defend. only after the same comes into the hands of ‘ants are entitled to judgment." The appel- said Brehm, less all costs, expenses, attorlant has not seen fit to bring to this court ney's fees, and one per centin addition therethe record of what these oral admissions were to, in consideration hereof, and of his agreewhich were made by the respective parties in ing to take said claims on the terms herein." open court of all the facts in the cause, and In the assignment it is stated that on Deconsequently this court cannot pass upon cember 6, 1887, the Kansas Construction their sufficientcy, and must conclude that the Company, by its negligence, set and permit. judge who tried the cause, and who passed ted fire to escape from the right of way of the upon these matters which were submitted to Midland Railway Company, thereby burning him outside of the pleadings, had sufficient and destroying property of a certain descriptestimony before him to justify the judgment tion and of a stated value. The answer of which he rendered in the cause; the pre- the railway company was-First, a denial; sumption being that the judgment was sus- and, next, that the plaintiff was not the real tained by the facts presented to the court party in interest, and had no capacity to sue; until the contrary is shown. The judgment and, third, that the contracts and agreements will therefore be affirmed.
between him and the parties alleged to have
been injured were champertous and contrary HOYT, C. J., and SCOTT, ANDERS, and to public policy, and that by such agreement GORDON, JJ., concur.
the plaintiff had undertaken to prosecute the
own expense, for a part of the proceeds, in (54 Kan. 751)
case of a recovery. The Kansas Construction
Company was not served, and did not appear KANSAS MIDLAND RY. CO. V. BREHM.
or answer in the case, and no judgment was (Supreme Court of Kansas. March 9, 1895.)
rendered against it. Brehm recovered upon ASSIGNMENT OF RIGHT OF ACTION.
seven of the claims against the railway comUnder our statutes, a right of action against a party for negligently and wrongfully
pany, the total amount of the recovery being destroying property by fire is not assignable.
$635. (Syllabus by the Court.)
It is first contended that Brehm cannot main
tain an action upon any of these claims, for Error from district court, Reno county; L.
the reason that the same do not arise out of Houk, Judge.
contract, and are not assignable. It is said Action by John M. Brehm against the Kan
that the parties attempted to assign to Brehm sas Midland Railway Company. Judgment
a naked cause of action for a tort pure and for plaintiff, and defendant brings error. Re
simple. They do not assign to him any propversed.
erty or property right, but simply a cause of A. A. Hurd and Robert Dunlap, for plain- action for an alleged wrong which had been tiff in error. G. A. Vandeveer and D, H. done to them. It is urged that it is not the Martin, for defendant in error.
policy of the law to permit the assignment of
torts, whereby one undertakes to recover JOHNSTON, J. This
action damages for a wrong alleged to have been brought by John M. Brehm against the Kan- suffered by another, and that the one who sas Midland Railway Company and the Kan- suffers should be willing to vindicate his own sas Construction & Improvement Company wrong if he .conceives himself to be injured. to recover damages alleged to have been suf- To permit another to speculate on such a fered by nine other parties through the negli- cause of action tends unduly to increase litigent escape of fire from the locomotives of gation, and smacks of champerty and mainthe defendants below, which, it is averred, tenance. As the only right which Brehm had burnt up and destroyed hay and other prop- to any of the claims was obtained upon aserty belonging to those parties. These claims signment and transfer from those who had for damages were assigned to Brehm. Two been injured, he cannot recover on any of of them appear to have been assigned to and them if such claims are not assignable. It purchased by him outright, for a specific con- was a principle of the common law that a sideration, and the remainder of the claims chose in action or right to a thing not in poswere conditionally assigned to him. The con- session could not be assigned, and that no man ditions were as follows: "Now, I have and do could purchase another's right to a suit, either hereby transfer, assign, and set over to John in whole or in part. This rule has been M. Brehm all my said claim against said somewhat modified, and later courts of equi. company, or against whomsoever it may be, ty have recognized and enforced the assignbecause of said damages, hereby fully author- ment of choses in action arising out of con
tract. ID 2 Story, Eq. Jur. § 1040h, the rule money, it was treated as a chose in action is stated as follows: "So, an assignment of a arising out of contract, and was therefore asbare right to file a bill in equity for a fraud signable. Shortly afterwards the same subcommitted upon the assignor will be held ject was under consideration, when it was void, as contrary to public policy and as sa- said: "At common law no chose in action voring of the character of maintenance, of was negotiable, or even assignable. In equi. which we shall presently speak. So, a mere ty every chose in action, except à tort, was right of action for a tort is not, for the like assignable; but it was assignable subject :3 reason, assignable. Indeed, it has been laid all equities that might be set up against it. down as a general rule that, where an equi- Under our statutes every chose in action is table interest is assigned, in order to give the assignable, except a tort, the same as it was assignee a locus standi in judicio in a court in equity. Civ. Code, § 26.” McCrum v. of equity, the party assigning such right Corby, 11 Kan. 464, 470. In this view, the must have some substantial possession, and defendant in error was not entitled to mainsome capability of personal enjoyment, and tain the action, and hence the judgment of not a mere naked right to overset a local in- the district court must be reversed. All the strument or to maintain a suit." The general Justices concurring. doctrine, both at law and in equity, is that a right of action for a pure tort is not the subject of assignment. This rule has been chan
(54 Kan. 766) ged to some extent by statute, and the pro GERMAN REFORM CHURCH et al. v. ABvisions with reference to what choses in ac
BEY et al. tion will survive or abate by the death of
(Supreme Court of Kansas. March 9, 1895.) either or both of the parties have been held
RECORD ON APPEAL. to modify this rule, so that everything which
Where the case made is neither attested survives and can be transmitted to the execu- by the clerk nor has the seal of the court at tor or administrator of the assignor in case tached, the appeal will be dismissed. of death is assignable. Smith v. Railroad Error from district court, Doniphan counCo., 28 Barb. 605, and cases cited. Sections ty; R. C. Bassett, Judge. 420 and 421 of our Code prescribe what ac- Action between Alberta E. Abbey and othtions may survive to the personal representa- ers and the German Reform Church and tives of a party in case of his death, and, if others. From the judgment, the German, these provisions stood alone, it might, per- Reform Church and others bring error. Dishaps, be said that the legislature intended to missed. modify the common-law rule so that all rights of action which survive might pass by as
S. L. Ryan and F. H. Denning, for plain.
tiffs in error. Albert Perry, for defendants signment. Such provisions have been held to
in error. have that effect in other states. We have another provision, however, adopted at the same
PER CURIAM. The case made, as pretime, which clearly indicates a legislative in
sented, does not comply with the statutory, tent to restrict the assignment of choses in ac
provisions. It is not attested by the clerk, tion to those arising out of contract. In sec
nor is the seal of the district court attached tion 26 of the Code it is provided that "every
thereto. The judgment, therefore, cannot action must be prosecuted in the name of the
be reviewed. Karr v. Hudson, 19 Kan. 474. real party in interest, except as otherwise provided in section 28; but this section shall not be deemed to authorize the assignment of a
(55 Kan. 62) thing in action, not arising out of contract."
CHEROKEE & P. COAL & MIN. CO. V. Evidently this provision recognizes the lim
DICKSON itation which existed at common law when the Code was adopted, and inferentially, at
(Supreme Court of Kansas. March 9, 1895.) least, provides that a chose in action arising
NEGLIGENCE OF MASTER-OPINION EVIDENCE
DECLARATIONS. out of a pure tort is not assignable. To meet
1. Where the principal question to be tried the objection that a right of action arising
in the case is whether a coemployé of the plainout of torts of this character is not assigna- tiff was a competent and skillful miner, it is ble, defendant in error relies upon Steward v. error to permit a witness, who is himself a skillBalderston, 10 Kan. 131. While some of the
ful miner, over the objection of the defendant,
to give his opinion as to the skill and compe language of the opinion in that case might tency of such coemployé. seem to warrant the view taken by defendant 2. In an action against the principal, proof in error, it is manifest that the case cannot
of declarations or admissions made by an agent
with reference to a past occurrence, and not in be regarded as an authority that a right of
connection with the performance of any duty action arising out of a tort is assignable. or business for his employer, is hearsay testiThe subject-matter of that action was a claim mony, and inadmissible. for money wrongfully taken; but as the par
(Syllabus by the Court.) ty injured in such a case can waive the tort, Error from district court, Crawford coun. and sue as upon an implied contract (Challiss ty; J. S. West, Judge. V. Wylie, 35 Kan. 506, 11 Pac. 438), and as Action by John Dickson against the Chero there was an implied agreement to pay the kee & Pittsburgh Coal & Mining Company.
A. A. Hurd, Robert Dunlap, and 0. J. Wood, for plaintiff in error. Morris Clig gitt, for defendant in error.
Judgment for plaintiff, and defendant brings error. Reversed.
This action was brought by John Dickson against the Cherokee & Pittsburgh Coal & Mining Company to recover damages for injuries sustained by Dickson while working in the defendant's mine near Frontenac, in Crawford county. William Elwood was the pit boss in charge of this mine, with power to employ and discharge miners. The petition alleges, and the proof shows, that Dickson was working in what is called the "smoke room,” which is an entry next to the main east entry in the mine. Next south from this smoke room was a room in which one Gustav Dufresne mined coal. Between the main east entry and the smoke room there was a pillar of coal about 20 feet wide. Between the smoke room and Dufresne's room a pillar of coal was left, which the petition alleges should have been five or six feet through, but which was in fact, according to the testimony of the plaintiff's witnesses, only about three feet through. Into this pillar or rib of coal Dufresne drilled a hole, and put in a blast of powder, which he exploded. Instead of throwing the coal out into his room, the blast blew out through the rib into the smoke room, and burned the plaintiff, who was about entering the smoke room from a crosscut between the main east entry and the smoke room. It is charged that Dufresne was unskillful, incompetent, and without experience in mining coal by blasting, of which facts the defendant was informed, and that the injury to the plaintiff was the result of the unskillful manner in which the blast was put in. The jury rendered a general verdict in favor of the plaintiff for $2,000, and answered special questions submitted at the request of the defendant as follows: "Q. 1. Was Gustav Dufresne practical and experienced miner at the time plaintiff was injured ? A. No. Q. 2. If you auswer question 1 in the negative, did the defendant know that he was not? A. Yes. Q. 3. Did not Gustav Dufresne fire the shot that injured the plaintiff ? A. Yes. Q. 4. Was Gustav Dufresne a colaborer and fel. low servant with the plaintiff? A. Yes. Q. 5. Was Gustav Dufresne, on the morning the injury to plaintiff occurred, making an air course between his room and the smoke room, under the direction of William Elwood? A. No. Q. 6. Were any shots fired in the room in which Gustav Dufresne was working, after the shot that burned Dickson? A. No. Q. 7. Was the break through made by Dufresne at or near the face of his room? (Refused and excepted to by defendant.) Q. 8. How long before the 19th of September, 1888, had Dufresne been working in said mine? A. Two or three months. Q. 9. Did not Gustav Dufresne mine as much coal, and get it out in as good condition, as an average miner, and use his tools as an experienced miner? A. No."
ALLEN, J. (after stating the facts). The defendant in error contends that the record does not contain all the evidence, and that the questions argued by the plaintiff in error are not raised by the record. There is no recital in the case made that it contained all of the evidence. The record shows, after reciting the impa neling the jury that “there. upon the trial proceeded, and the following evidence was introduced.” Then follows testimony of witnesses for the plaintiff, after which it recites that “thereupon the plaintiff, having introduced all of his evidence. rests his case.” Then it shows the filing and overruling of a demurrer to the evidence. Then that “thereupon the defendant introduced the following evidence," and, after the defendant had rested, and the plaintiff introduced rebuttal evidence, it contains the recital “that thereupon the parties, hay. ing introduced all their evidence, the judge instructs the jury.” We think the fair in. ference from these recitals alone would be that the testimony is all here, but on page 78 occurs the following: "Thereupon the plaintiff offers in evidence the deposition of George Kennedy, as agreed upon by the parties, which is marked 'Exhibit A,' and made a part of the files in this case.” No deposition of George Kennedy appears in the testimony, nor is there any Exhibit A in the case, but just before the acknowledgment of service of the case of plaintiff's attorney there is a paper, not identified in any manner, but apparently a copy of a very brief statement, signed by George Kennedy, and sworn to before the clerk. It is possible that this is what is referred to as the deposition of George Kennedy, but there is nothing to identify it as such. The case of Lebold v. Bank, 51 Kan. 381, 32 Pac. 1103, does not hold that no error with reference to the introduction of testimony can be reviewed unless all of the testimony is brought to this court. It was merely held that, where a claim of error is based on the facts shown by the testimony, all the testimony must be included in the record. The language used in the syllabus and opinion is perhaps not as accurate as it should have been. Where error is predicated on the admission or rejection of testimony, it is only necessary to incorporate so much of the evidence as is necessary to clearly present the points.
The questions presented on the merits relate to the admission and rejection of testi. mony.
In order to warrant a recovery by the plaintiff it was incumbent on him to prove that Gustav Dufresne was wanting in skill as a miner; that this was known to the defendant, or could have been known with the exercise of reasonable care; that the injury to the plaintiff was caused by the improper and unskillful act of Dufresne. To