57 Kan. 521 | Kan. | 1896
The agreement made by Mr. Barker does not belong in this class. It does not impress us as unreasonable or unusual. A case had been tried in the District Court of Franklin County involving the negligence of the Railway Company and the contributory negligence of Mrs. Pavey in relation to the casualty whereby she received the personal injuries, — the subject of that action and of this. John A. Pavey was present with his wife at the time she was hurt. Plis contributory negligence perhaps would not defeat her right of action, while it might have that effect as to his own ; but undoubtedly, on the trial, the attorney representing the Railway Company might have waived the defense of contributory negligence, even though raised by the pleadings. The stipulation was mutually advantageous. It saved each party the trouble and expense of taking the testimony as to the casualty without the risk of its loss by the death, removal or absence of the witnesses. A final judgment in favor of the defendant in Mrs. Pavey's case would have ended this one ; while an affirmance of the judgment already obtained was to be conclusive in this on the question of negligence, leaving for trial only the amount of the recovery. We regard the stipulation in the light of a waiver of proof on the question of negligence upon a certain condition not unreasonable in itself. Such waivers by attorneys are common either before or during the trial without the express authority of the client, and they should usually be upheld unless in
3. Wife's petitionnot competent, when. III. The Court was right in excluding the amended petition in Mrs. Pavey’s case, even upon the assumption that she may have sought damages therein which were also claimed by the plaintiff in his petition. We must presume that she recovered in that action only the damages to which she was entitled, whatever her claim may have been; but if her judgment had been for more, this would be no sufficient reason for depriving the plaintiff of damages which he had sustained. There was no relation between the two cases as to the amount of damages which the respective plaintiffs were entitled to recover.
For the error in admitting in evidence the syllabus and the opinion in Mrs. Pavey’s case the judgment must be reversed and the case remanded for a new trial.