CITY OF ABILENE v. COWPERTHWAIT. (Supreme Court of Kansas. Nov. 11, 1893.) MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS -NEGLIGENCE OF ABUTTING OWNER.

1. The corporate authorities of a city permitted a lot owner to make a dangerous cellarway in a sidewalk and street in front of his house, which he subsequently covered with a frail trapdoor that was defective in construction, and around which no safeguards were placed. It remained in this condition for about two months, when a person traveling over the sidewalk stepped upon the trapdoor, which broke down, and precipitated him into the excavation below, causing severe personal injuries. Held, that the city cannot relieve itself from responsibility because the dangerous and unguarded opening was made and covered by the lot owner; that it was the duty of the city authorities to supervise the work of covering the cellarway, and to cause the use of suitable precautions to prevent accidents; and that under the facts and circumstances of the case the city was negligent, and liable for the injury sustained.

2. Where a diligent performance of the duty of supervision in the construction of a covering over a perilous excavation in a street would bring knowledge to the officers of the defect and the dangerous character of the same, a want of such knowledge is negligence. (Syllabus by the Court.)

Error from district court, Dickinson county; M. B. Nicholson, Judge.

Action for personal injuries by George W. Cowperthwait against the city of Abilene. Plaintiff had judgment, and defendant brings error. Affirmed.

Stambaugh & Hurd, for plaintiff in error. J. H. Mahan and Burton & Moore, for defendant in error.

JOHNSTON, J. George W. Cowperthwait fell through a sidewalk on one of the principal streets of Abilene, which was constructed over an excavation, and was severely injured. Business houses fronted upon the sidewalk, which was built of wood. Prior to February, 1888, an owner of abutting prop erty was permitted to have an opening in the sidewalk for a cellarway, about six feet long and two feet and four inches in width, which he used as an entrance into the basement of the building. For a time the opening was inclosed with a wooden railing, but in February, 1888, the owner placed a frail covering over the opening, after which the railing was removed. The covering or door was constructed of 2x4 scantling, placed lengthwise of the opening, about 18 inches apart, upon which were nailed inch boards about 28 inches long. This trapdoor was loosely placed over the opening, the north end resting upon the upper step of the stairway leading into the basement, and the south end resting upon a scantling or board nailed to one of the stringers sup porting the sidewalk. In the following month, Cowperthwait, while passing along the street, met two other persons at the point where the trapdoor had been placed in the walk, and, while standing upon it, conversing with

them, the south end gave way and feli down, throwing him into the excavation below. The jury found that the accident and injury resulted from the negligence of the city, and awarded Cowperthwalt damages in the sum of $2,100.

The city contends that the testimony produced is insufficient to sustain the verdict and judgment. It clearly appears to us that the trapdoor was defectively constructed, and, without a railing or other protection, made the sidewalk unsafe for public travel. It is true that the perilous opening in the sidewalk was made, and the railing which was once there removed, by the adjoining owner, and not by the city; but the corporate authorities are vested with full con trol of the streets and sidewalks, and are required to maintain them in a reasonably safe condition for public travel. The city cannot escape liability by permitting the owner to make a dangerous and unguarded opening in the sidewalk. It was unquestionably negligent in allowing a dangerous cellarway to be constructed in the sidewalk, “and nothing will wholly terminate the negligence of the city except to so close up the cellarway as to make it permanently and constantly safe for those traveling on the sidewalk." Smith v. City of Leavenworth, 15 Kan. 81. "If the city permits a lot owner to occupy the sidewalk, or obstruct the free passage over it, or endanger its safety by excavations beneath it, it does not thereby relieve itself from responsibility. It is, as to third parties, the same as though it had done these things itself." Jansen v. City of Atchison, 16 Kan. 385. The city cannot be held liable unless it had notice, actual or implied. of the defect in the sidewalk; nor can the existence of the defect or the negligence of the defendant be inferred from the mere occurrence of the accident. The officers or the city, however, were aware of the unauthorized excavation in the street, which had existed for a long time prior to Febru ary, 1888. They knew it had been formerly guarded by a railing, and that this, although insufficient, had been removed. They knew, or should have known, that a loose trapdoor had been placed over this opening. It was the duty of the city to supervise the work of covering the opening, and to cause the use of suitable precautions to prevent accidents. If the officers had exercised a reasonable supervision of the street and walk when the covering was placed there and the railing removed, the perilous character of the place would have been apparent. They would have seen that the ends of the boards on the trapdoor were not nailed to the walk nor to the adjoining building, and that it was liable to be displaced, and occasion such an injury as befell Cowperthwait. They knew, or should have known. that for a period of about two months there was no railing around the trapdoor, or other suitable safeguards for the prevention of

accidents. With a knowledge of these facts, and charged as the city authorities are with notice of those which they should know, it cannot be said that the city was without notice. A reasonable supervision on their part would have discovered the defect in time to have prevented the injury. The end of the door which fell rested upon an insecure attachment, the character of which was detailed to the jury. Although some witnesses stated that it was a good job, enough was shown to establish that it was faulty in construction, and, in view of the dangerous excavation beneath, that it was improperly guarded. There was sufficient testimony respecting the negligence of the city officers, including, as it does, the question of notice, to take the case to the jury, and its finding upon these questions is conclusive. There was a clear omission of duty on the part of the city officers, which makes the city liable for the injury, although they may have had no actual notice of the defect in the attachment upon which the south end of the door rested. Diligent performance of the duty of supervision in the construction of the door would have brought knowledge of the defect. In some cases a want of knowledge is negligence. Boucher V. City of New Haven, 40 Conn. 456. No sufficient reasons have been shown for setting aside the verdict, and therefore the judgment of the district court must be affirmed. All the justices concurring.

Upon an issue of fact as to whether a transfer of property was made to hinder, delay, or defraud creditors, it is competent, where the one making the transfer is a witness, to inquire of him whether in making the transfer he intended to hinder, delay, or defraud his creditors. Gardom v. Woodward, 25 Pac. Rep. 199, 44 Kan. 758.

(Syllabus by the Court.)

Error from district court, Ness county; V. H. Grinstead, Judge.

Action by L. M. Bice against P. A. Rogers. There was judgment for defendant, and plaintiff brings error. Reversed.

N. H. Stidger and Geo. S. Redd, for plaintiff in error. Buchan, Freeman & Porter and James McCartney, for defendant in error.

JOHNSTON, J. This was an action of replevin brought by L. M. Bice against P. A. Rogers, as sheriff of Ness county, to recover the possession of a stock of merchandise. The plaintiff claimed a special ownership in the property under a chattel mortgage executed to him by his son to indemnify the father for an indebtedness of over $7,000, for which he had become security for the son, and which he was subsequently com

pelled to pay. The sheriff claimed under an attachment levied at the instance of several of the creditors of G. D. Bice, who alleged and claimed that the mortgage was not given in good faith, but was made with the intent to defraud, hinder, and delay the creditors of G. D. Bice. It was shown and found by the jury that L. M. Bice was security for G. D. Bice in the Ness City Bank for the sum of $7,000, and that more than that amount of such security debt has since been paid by L. M. Bice. Although the chattel mortgage was given to indemnify L. M. Bice against this security debt, it was specifically found by the jury that the mortgage was given to hinder and delay the creditors of G. D. Bice, and that this was the purpose of both G. D. and L. M. Bice in the making and taking of the mortgage.

The purpose and good faith of the parties to this transaction were the principal ques tions submitted to the jury. Having alleged that the mortgage was made with fraudulent intent, it devolved upon the defendant to show that it was executed for the alleged purpose. Some proof was offered tending to show a fraudulent intent on the part of G. D. Bice, and, after the admission of this testimony, Bice was called as a witness in rebuttal, and was asked the following question: "Mr. Bice, I will ask you what your intentions were in making the chattel mortgage to the plaintiff in this case." An objection was made by the defendant, upon the ground that it was not rebuttal testimony, which objection was sustained by the court. The plaintiff then offered to prove that the witness"had no intention, in the execution of the mortgage in question, to hinder, delay, or defraud any of his creditors, but that the plaintiff was security for him for a large amount of indebtedness, to the amount of about $7,000, and that the only intention witness had was to secure the plaintiff by reason thereof." They also offered to prove by the same witness that his father only took this mortgage as security, and with no other intention. The offer was refused, upon the ground that it was not rebuttal testimony, and the exclusion of this testimony is the principal error complained of.

Under the issues in the case, the intent of Bice in the execution of the mortgage became a material question, and, when proof was offered tending to show that his purpose was to hinder, delay, or defraud his creditors, it was competent for him to rebut and contradict it with testimony showing honesty and good faith. It is now contended that the form of the question and of the offer were too broad and general, but no such objection was raised to their admission. The only objection made was that it was not rebuttal testimony. We think the testimony should have been admitted, and that its exclusion was prejudicial error. It is now well settled that, upon an issue of fact as te

whether a transfer of property was made for the purpose of hindering, delaying, or defrauding creditors, it is competent, where the one who transfers is a witness, to inquire of him whether, in making the transfer, he intended to hinder, delay, or defraud his creditors. Gardom v. Woodward, 44 Kan. 758, 25 Pac. Rep. 199. Some other objections are made, but none of them are deemed to be sufficiently material to require comment. The judgment of the district court must be reversed, and the cause remanded for a new trial. All the justices concurring.

FIRST NAT. BANK OF ABILENE v.
NAILL, Sheriff, et al.

(Supreme Court of Kansas. Nov. 11, 1893.) FRAUDULENT CONVEYANCES-CHATTEL MORTGAGE TO SECURE DEBT.

1. It is not a fraud on other creditors for one having a valid claim to obtain security for the amount actually due by chattel mortgage, where no more property is covered than is necessary to secure the debt.

2. A bank having a claim against an insolvent firm, which is consulted by a firm of other creditors with reference to collecting and securing their claim, is not legally bound to disclose the existence of its claim to such firm, but may keep silent, and protect its own interest, provided it is guilty of no fraudulent conduct, and does nothing more than is necessary to its own protection.

(Syllabus by the Court.)

Error from district court, Dickinson county; M. B. Nicholson, Judge.

Action by the First National Bank of Abilene against D. W. Naill and others. Defendants had judgment, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by ALLEN, J.:

The First National Bank of Abilene, as plaintiff, brought this action against D. W. Naill, sheriff of Dickinson county, and Lawrence, Manning & Cushing, to recover the value of a stock of boots, shoes, and other merchandise, claiming under a chattel mortgage executed by M. P. Shearer & Co. on the 4th of June, 1888, to secure a note for $4,444, and alleging the wrongful conversion thereof by the defendants. Defendant Naill answered, alleging that the mortgage to plaintiff was given to defraud, hinder, and delay the creditors of M. P. Shearer & Co., and that, as sheriff, he had levied six writs of attachment, each having duly come into his hands, on the property in controversy. Lawrence, Manning & Cushing also answered, denying that Shearer & Co. were indebted to the plaintiff, and alleging that Shearer & Co. were indebted to them in about the sum of $1,586.50, and that the bank was, and had been, their agents for the collection of their claim; that plaintiff, while acting as their agent, had colluded with Shearer & Co. to defraud them, and to hinder and delay them in the collection of their debt; and

that they had caused the property to be attached to satisfy their claim. The case was tried with a jury, and a general verdict rendered in favor of the defendants. Three special questions were also answered,-one submitted by plaintiff, as follows: "What amount did M. P. Shearer & Co. owe the plaintiff on the 4th day of June, A. D. 1888? Answer. $4,444,"-and two by defendants: "(1) Was it a part of the inducement of the plaintiff, in taking the mortgage, to enable M. P. Shearer & Co. to accomplish a preference of creditors? Answer. Yes. (2) Was it part of the inducement of plaintiff, in taking the mortgage, to enable M. P. Shearer & Co. to place their property beyond the reach of creditor or creditors not sustaining confidential relations with M. P. Shearer & Co? A. Yes." A motion for a new trial was overruled, and judgment entered in favor of defendants on the verdict. The evidence tends to show that the value of the stock of goods was about $5,000.

Stambaugh & Hurd, for plaintiff in error J. H. Mahan and Burton & Moore, for de fendants in error.

ALLEN, J., (after stating the facts.) In order to uphold the judgment in this case, under the issues tried, it must appear, either that the plaintiff's mortgage was made for the purpose of hindering, delaying, or defrauding other creditors of M. P. Shearer & Co., or that the relations of the plaintiff with Lawrence, Manning & Cushing were such as to preclude it from the right to obtain security of its own claim to the exclusion of Lawrence, Manning & Cushing. The jury settled the question as to the validity of plaintiff's claim by finding that there was an actual indebtedness owing by Shearer & Co. to the bank,-of the amount mentioned in the mortgage. As the highest estimate placed on the value of the mortgaged stock of goods was about $5,000, it cannot be claimed that more property was covered by the mortgage than was fairly necessary to secure plaintiff's claim. Under this state of facts, although the giving of this mortgage might operate to deprive all other creditors of any opportunity to collect their debts, it still is not fraudulent. In this state, a debtor has a right to pay or secure one creditor in preference, and to the exclusion, of others. Bliss v. Couch, 46 Kan. 400, 26, Pac. Rep. 706; Randall v. Shaw, 28 Kan. 419; Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. Rep. 329.

Were the relations of the bank to Lawrence, Manning & Cushing such as to preclude it from the right to secure its claim to their exclusion? It appears from the evidence that the claims of Lawrence, Manning & Cushing against Shearer & Co. had been sent to the bank for collection. On April 23, 1888, the cashier of the bank, Mosher, wrote for instructions to hand to an attorney, saying, "It is hardly in our line to assume the func