operation rule in Kansas

2013Co., 266 Pa. 463 , 109 A. 649 (1920), as a matter of law the court found there could be no negligence in using an ordinary object in an ordinary way: “The law demands tire use of due, reasonable, and ordinary care; but under the operation of this principle, it is a general rule that where an appliance, machine, structure or object is not obviously or inherently dangerous, and has been in daily use, and has proved uniformly adequate, safe and convenient, it may be further continued without the imputation of negligence, although it might have been made safer at slight expense.

2013Co., 266 Pa. 463 , 109 A. 649 (1920), as a matter of law the court found there could be no negligence in using an ordinary object in an ordinary way: “The law demands tire use of due, reasonable, and ordinary care; but under the operation of this principle, it is a general rule that where an appliance, machine, structure or object is not obviously or inherently dangerous, and has been in daily use, and has proved uniformly adequate, safe and convenient, it may be further continued without the imputation of negligence, although it might have been made safer at slight expense.

2012Here, the Court of Appeals described the operation of the rule as follows: “If a jury convicts of a greater offense, having been given the opportunity to consider a lesser offense, and that verdict necessarily establishes a factual element that would be legally inconsistent with an even lower offense on which no instruction were given, the defendant cannot have suffered any prejudice from the failure to give that instruction.” Simmons, 45 Kan.

1989Rev. 1173 , 1200 (1931): ‘The operation of the doctrine of punitive damages gives the plaintiff an undeserved windfall that has nothing to do with the reparative function, which is duly served (at least in theory) by the allowance of compensatory damages.’ ” 233 Kan. at 992 .

1989"The operation of the rule, as we said in Inkley [ v. Forest Fiber Products Co., 288 Or. 337 , 605 P.2d 1175 (1980)], provides certainty in a way which is `somewhat arbitrary.' It operates generally for the benefit of the interests of claimants.

1989"The operation of the rule, as we said in Inkley [ v. Forest Fiber Products Co., 288 Or. 337 , 605 P.2d 1175 (1980)], provides certainty in a way which is `somewhat arbitrary.' It operates generally for the benefit of the interests of claimants.

1981Beverlin v. First National Bank, 151 Kan. 307 , 98 P.2d 200 (1940); Beloit Bldg.

1981Beverlin v. First National Bank, 151 Kan. 307 , 98 P.2d 200 (1940); Beloit Bldg.

1959In Chaplin v. Chaplin, 105 Kan. 481 , 184 Pac. 984 , the court said: “The appellants invoke the rule that in construing a deed the first of two repugnant clauses must control . . . while in some circumstances there may still be a field for the operation of that rule, it cannot prevail against the practice in this jurisdiction of endeavoring to ascertain the actual intention of of the grantor from a consideration of all parts of the deed . . .” (p.482.) Appellees contend the two clauses in the farm lease under consideration are not repugnant, stating: “. . .

1959In Chaplin v. Chaplin, 105 Kan. 481 , 184 Pac. 984 , the court said: “The appellants invoke the rule that in construing a deed the first of two repugnant clauses must control . . . while in some circumstances there may still be a field for the operation of that rule, it cannot prevail against the practice in this jurisdiction of endeavoring to ascertain the actual intention of of the grantor from a consideration of all parts of the deed . . .” (p.482.) Appellees contend the two clauses in the farm lease under consideration are not repugnant, stating: “. . .

1942Bank, 68 Fla. 324 , 67 So. 188 , it was there held: “One who gives a note in renewal of another note, with knowledge at the time of a partial failure of consideration for the original note, or false representations by the payee, etc., waives such defense, and cannot set it up to defeat a recovery on the renewal note.

1940Even where the crimes charged are different, and a plea of former jeopardy therefore unavailable, a criminal judgment is res judicata of every matter determined by it, where the conditions essential to the operation of this doctrine are present. . . .” (p. 1364.) The question came before the supreme court of the United States in the case United States v. Oppenheimer, 242 U. S. 85 , 37 S. Ct. 68 , 61 L.

1940Even where the crimes charged are different, and a plea of former jeopardy therefore unavailable, a criminal judgment is res judicata of every matter determined by it, where the conditions essential to the operation of this doctrine are present. . . .” (p. 1364.) The question came before the supreme court of the United States in the case United States v. Oppenheimer, 242 U. S. 85 , 37 S. Ct. 68 , 61 L.

1936Our attention is also-, directed to .a statement from 8 Couch, Cyclopedia of Insurance Law (§ 2150),- as follows: “The principles or doctrines of waiver and estoppel also apply in case of fraternal or lodge insurance, and also to mutual- insurance companies doing business on the assessment plan.” (p. 6939.) Two cases are cited in the footnote in support of the above statement, Trotter v. Grand Lodge, 132 Iowa 513 , 109 N. W. 1099 , 7 L.

1936Our attention is also-, directed to .a statement from 8 Couch, Cyclopedia of Insurance Law (§ 2150),- as follows: “The principles or doctrines of waiver and estoppel also apply in case of fraternal or lodge insurance, and also to mutual- insurance companies doing business on the assessment plan.” (p. 6939.) Two cases are cited in the footnote in support of the above statement, Trotter v. Grand Lodge, 132 Iowa 513 , 109 N. W. 1099 , 7 L.

1934The text and intent of the antenuptial contract are so plain that they need neither construction nor elaboration, and it only remains for the court to enforce it according to its terms: Touching the case of Boulls v. Boulls, 137 Kan. 880 , 22 P. 2d 465 , relied on by the cross-appellant, there might be room for the operation of the rule there stated if the widow’s first specific claim for $10,000 were resisted, but the plain text of the contract governs her right to half the surplus over $85,000.

1934The text and intent of the antenuptial contract are so plain that they need neither construction nor elaboration, and it only remains for the court to enforce it according to its terms: Touching the case of Boulls v. Boulls, 137 Kan. 880 , 22 P. 2d 465 , relied on by the cross-appellant, there might be room for the operation of the rule there stated if the widow’s first specific claim for $10,000 were resisted, but the plain text of the contract governs her right to half the surplus over $85,000.

1930The findings of the trial court do not warrant an interpretation that the defendant sustained two distinct injuries so as to make room for the operation of the rule announced in Stefan v. Elevator Co., 106 Kan. 369 , syl. ¶ 3, 187 Pac. 861 , and later analogoús cases.

1930The findings of the trial court do not warrant an interpretation that the defendant sustained two distinct injuries so as to make room for the operation of the rule announced in Stefan v. Elevator Co., 106 Kan. 369 , syl. ¶ 3, 187 Pac. 861 , and later analogoús cases.

1929(South Bend Pulley Co. v. Fidelity, etc., Co., 32 Ind. App. 255 .) Naturally the party who is charged with being liable over can always make the defense that the circumstances are such that he is not liable over.

1928(Citing decisions.) In order that a voluntary conveyance may be upheld as against existing creditors it is essential that the property retained by his debtor should be clearly and amply sufficient to satisfy all his existing debts.” In Hardware Co. v. Semke, 105 Kan. 628 , 185 Pac. 732 , it was said: “Some reliance is placed upon the finding of the court that she had no actual intent to hinder, delay or defraud creditors when she accepted the conveyance.

1928(Citing decisions.) In order that a voluntary conveyance may be upheld as against existing creditors it is essential that the property retained by his debtor should be clearly and amply sufficient to satisfy all his existing debts.” In Hardware Co. v. Semke, 105 Kan. 628 , 185 Pac. 732 , it was said: “Some reliance is placed upon the finding of the court that she had no actual intent to hinder, delay or defraud creditors when she accepted the conveyance.

1921The devise is then an estate tail, which, under our Act of 1855, is to be construed- as a fee simple. ¥e do not think that any such trust was created by the will as to .prevent the operation of the rule that an estate for life with a remainder to the issue of the first devisee, is an estate tail in law.” (p. 36.) That our law on this subject is unaffected by specific legislation was declared in Ewing v. Nesbitt, 88 Kan. 708, 715 , 129 Pac. 1131 .

1921The devise is then an estate tail, which, under our Act of 1855, is to be construed- as a fee simple. ¥e do not think that any such trust was created by the will as to .prevent the operation of the rule that an estate for life with a remainder to the issue of the first devisee, is an estate tail in law.” (p. 36.) That our law on this subject is unaffected by specific legislation was declared in Ewing v. Nesbitt, 88 Kan. 708, 715 , 129 Pac. 1131 .

1919(Durand v. Higgins, 67 Kan. 110, 124 , 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 453 , 96 Pac. 854 ;) Whiie in some circumstances there may still be a field for the operation of that rule, it cannot prevail against the practice in this jurisdiction of endeavoring to ascertain the actual intention of the grantor from a consideration of all parts of the deed.

1919(Durand v. Higgins, 67 Kan. 110, 124 , 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 453 , 96 Pac. 854 ;) Whiie in some circumstances there may still be a field for the operation of that rule, it cannot prevail against the practice in this jurisdiction of endeavoring to ascertain the actual intention of the grantor from a consideration of all parts of the deed.

1919(Markham v. Waterman, 105 Kan. 93, 95, 96 , 182 Pac. 546 .) The appellants also cite cases (such as Nolan v. Otney, 75 Kan. 311 , 89 Pac. 690 ) to the effect that the reservation of a life interest in the grantor does not render the instrument testamentary in character, since it permits the immediate vesting of the title, the enjoyment alone being postponed.

1919(Markham v. Waterman, 105 Kan. 93, 95, 96 , 182 Pac. 546 .) The appellants also cite cases (such as Nolan v. Otney, 75 Kan. 311 , 89 Pac. 690 ) to the effect that the reservation of a life interest in the grantor does not render the instrument testamentary in character, since it permits the immediate vesting of the title, the enjoyment alone being postponed.

1919(Durand v. Higgins, 67 Kan. 110, 124 , 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 453 , 96 Pac. 854 ;) Whiie in some circumstances there may still be a field for the operation of that rule, it cannot prevail against the practice in this jurisdiction of endeavoring to ascertain the actual intention of the grantor from a consideration of all parts of the deed.

1919(Durand v. Higgins, 67 Kan. 110, 124 , 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 453 , 96 Pac. 854 ;) Whiie in some circumstances there may still be a field for the operation of that rule, it cannot prevail against the practice in this jurisdiction of endeavoring to ascertain the actual intention of the grantor from a consideration of all parts of the deed.

1919(Markham v. Waterman, 105 Kan. 93, 95, 96 , 182 Pac. 546 .) The appellants also cite cases (such as Nolan v. Otney, 75 Kan. 311 , 89 Pac. 690 ) to the effect that the reservation of a life interest in the grantor does not render the instrument testamentary in character, since it permits the immediate vesting of the title, the enjoyment alone being postponed.

1916(Bryant v. Proctor, 53 Ky. 451 .) Thus it has been held that the payment of a debt or any part of the debt before it is due is something which the debtor is not under legal obligation to •do and therefore furnishes a legal consideration for a contract to release or cancel a debt; and any new consideration moving from the debtor toward the creditor will take the agreement ■out of the operation of the rule. (1 C.

1908In order that a servant may be relieved from the operation of the doctrine of assumed risk from a defect complained of and the danger of which he was no longer willing to incur, it is essential that his remaining in the employment was induced by the promise of the master to remedy the defect, when he would not otherwise have done so; and where the reliance is placed, not upon the promise, but upon an assurance of absence of danger, he can not recover.” In the case of Gowen v. Harley, 56 Fed. 973 , 6 C.

1908In order that a servant may be relieved from the operation of the doctrine of assumed risk from a defect complained of and the danger of which he was no longer willing to incur, it is essential that his remaining in the employment was induced by the promise of the master to remedy the defect, when he would not otherwise have done so; and where the reliance is placed, not upon the promise, but upon an assurance of absence of danger, he can not recover.” In the case of Gowen v. Harley, 56 Fed. 973 , 6 C.

1900It may be remarked that the instances in which the concurrent jurisdiction results from the operation of this principle, at least in the United States, are most frequently cases of accounting or of discovery followed by relief.” As tending to support this view, see, also, Klemp v. Winter, 23 Kan. 699 ; Busenbark v. Busenbark, 33 id. 572, 7 Pac. 245 ; Proctor v. Dicklow, 57 id. 119 , 45 Pac. 86 ; Carter v. Christie, 57 id. 492, 46 Pac. 964 .

1900It may be remarked that the instances in which the concurrent jurisdiction results from the operation of this principle, at least in the United States, are most frequently cases of accounting or of discovery followed by relief.” As tending to support this view, see, also, Klemp v. Winter, 23 Kan. 699 ; Busenbark v. Busenbark, 33 id. 572, 7 Pac. 245 ; Proctor v. Dicklow, 57 id. 119 , 45 Pac. 86 ; Carter v. Christie, 57 id. 492, 46 Pac. 964 .

1900It may be remarked that the instances in which the concurrent jurisdiction results from the operation of this principle, at least in the United States, are most frequently cases of accounting or of discovery followed by relief.” As tending to support this view, see, also, Klemp v. Winter, 23 Kan. 699 ; Busenbark v. Busenbark, 33 id. 572, 7 Pac. 245 ; Proctor v. Dicklow, 57 id. 119 , 45 Pac. 86 ; Carter v. Christie, 57 id. 492, 46 Pac. 964 .

1899Co. v. Talbot et al., 113 Ind. 373 , 14 N. E. 586 .) As tending to support the validity of the act, the following cases are cited : Wahlgren v. Kansas City, 42 Kan. 243 , 21 Pac. 1068 ; Turner v. New York, 168 U. S. 90 , 18 Sup. Ct. 38; Tarpley v. Hamer et al., 9 Sm. & M.

1899Co. v. Talbot et al., 113 Ind. 373 , 14 N. E. 586 .) As tending to support the validity of the act, the following cases are cited : Wahlgren v. Kansas City, 42 Kan. 243 , 21 Pac. 1068 ; Turner v. New York, 168 U. S. 90 , 18 Sup. Ct. 38; Tarpley v. Hamer et al., 9 Sm. & M.

1899Co. v. Talbot et al., 113 Ind. 373 , 14 N. E. 586 .) As tending to support the validity of the act, the following cases are cited : Wahlgren v. Kansas City, 42 Kan. 243 , 21 Pac. 1068 ; Turner v. New York, 168 U. S. 90 , 18 Sup. Ct. 38; Tarpley v. Hamer et al., 9 Sm. & M.

1899Co. v. Talbot et al., 113 Ind. 373 , 14 N. E. 586 .) As tending to support the validity of the act, the following cases are cited : Wahlgren v. Kansas City, 42 Kan. 243 , 21 Pac. 1068 ; Turner v. New York, 168 U. S. 90 , 18 Sup. Ct. 38; Tarpley v. Hamer et al., 9 Sm. & M.

1897In the case of Lisle v. Cheney ( 36 Kan. 578 ), the facts are almost exactly the same as in this case ; however, the precise question was not specifically raised, and the court held, upon the opinion of Commissioner Simpson, that a lien was created for the entire judgment, at the date of its rendition, upon all the property owned by the defendant, a married woman, and upon property thereafter acquired by her.

1893Dec. 316 .) The doctrine of this case was afterward considered in Tilton v. Nelson, 27 Barb. 595 , and, in the opinion by Emott, J., he says: “The question is presented whether ignorance of the law will prevent the application of the rule of equitable estoppel;” and referring to the. decision in the principal case, he says that, when a party thus asserts his ignorance of his title to avoid an estoppel, he encounters two principles of law of general application.