City of McPherson v. Nichols

• Decision Date: 09 April 1892
• Parties: THE CITY OF MCPHERSON v. JOSIE NICHOLS
• Court: Kansas Supreme Court

29 P. 679

48 Kan. 430

THE CITY OF MCPHERSON v. JOSIE NICHOLS

Supreme Court of Kansas

April 9, 1892

Error from McPherson District Court.

THE opinion states the facts. Judgment for plaintiff, Nichols, at the September term, 1888. The defendant City brings the case to this court.

Judgment affirmed.

W. J Travis, and D. C. Welch, for plaintiff in error.

Milliken & Galle, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of McPherson county, by Josie Nichols against the city of McPherson, to recover for the use of her house for 26 days, during the months of February and March, 1889, and for her services during that period of time, and also for bed clothing and furniture used during that period and afterward taken and appropriated by the city. The case was tried before the court and a jury, and the plaintiff recovered, for her services, $78; for the articles taken, $163.75; total, $241.75, and nothing for the use of her house, as for some reason the court took that item away from the jury; and the defendant, as plaintiff in error, brings the case to this court for review.

It appears that in the month of February, 1888, a smallpox epidemic occurred in the city of McPherson. At the same time the plaintiff, Josie Nichols, owned and kept a hotel known as the "Tremont House." On February 19, the city authorities took the possession and charge of this hot hot hotel, and converted it substantially into a pest-house; and it remained in the charge of the city authorities for about 26 days, during which time the plaintiff, at the request, as she claims, of the city's authorized agents, devoted her services largely to taking care of persons afflicted with the small-pox; and at the expiration of such period the city authorities took the possession of much of the infected bed clothing and other articles and took them to the county poor-house, agreeing, as the plaintiff claims, that the city would pay her for the same. The city claims, however, that whatever it or its officers or agents did, they did merely as overseers of the poor, and as agents of the county.

Many of the questions discussed by counsel for the plaintiff in error in their brief, and also in their oral argument, cannot be considered by this court, as it clearly appears from the record that we do not have all the evidence before us which was introduced on the trial of the case. It is true that the record states, at the close of the evidence brought to this court, as follows: "This was all the evidence given in the case;" but we know from other portions of the record that this is not true. It is claimed by the defendant in error, plaintiff below, that certain city ordinances were introduced in evidence, and the record shows this to be the case, and the court below charged the jury upon the theory that such was true, and counsel for the plaintiff in error, defendant below, admit in their brief that such ordinances were introduced in evidence; and yet no such ordinances, nor any ordinances, are found in the record. This discredits the statement above quoted, that "this was all the evidence given in the case." How much more of the evidence has been omitted from the record we cannot tell. Probably, however, we have all the oral testimony taken by the stenographer, and probably the foregoing statement that "this was all the evidence given in the case," was intended to mean that it was simply all the oral testimony given in the case. Now, as these ordinances are not in the record, it is impossible for us to know just what they contained. We cannot take judicial notice of them. (12 Am. & Eng. Encyc. of Law, 168; City of Austin v. Walton [Texas, June 17, 1887], 5 S.W. 70; Garland v. City of Denver [Col., Oct. 16, 1888], 19 P. 460; W....