Union Pacific Railway Co. v. Shook
Court of Appeals of Kansas
Memorandum . — Error from Dickinson, district court; M. B. Nicholson, judge. Action by William H. Shook against The Union Pacific Railway Company to recover damages for breach of contract. Judgment for plaintiff. Defendant brings the case to this court.
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Memorandum . — Error from Dickinson, district court; M. B. Nicholson, judge. Action by William H. Shook against The Union Pacific Railway Company to recover damages for breach of contract. Judgment for plaintiff. Defendant brings the case to this court. The statement of the case, as made by Gilkeson, P. J., is as follows: Some time in February, 1891, the defendant in error, accompanied by his son George, who at that time was nearly 13 years of age, started from Baird, Iowa, to go to Abilene, Kan., via Omaha and Lincoln, Neb. At Omaha the defendant in error purchased a ticket from that point…
1Opinion of the Court
The opinion of the court was delivered by
Gilkeson, P. J. :
Various errors are assigned by the plaintiff in error, but we need not consider all of them. The determination of the first question presented disposes of this case. Is this an action ex contractu or ex delicto f This must be determined by the pleadings, and we think the allegations thereof demonstrate it to be ex contractu. They clearly show that the plaintiff below intended to and did waive the tort. It is true that there are some expressions used adapted to allegations in an action ex delicto, but, taken as a whole, they, would not…
2Cases cited1 opinion
- Walrath v. WhittekindSupreme Court of Kansas · 1881
3Cited by2 opinions
- Peoples State Bank v. Hoisington Cooperative Mercantile Manufacturing Ass'nSupreme Court of Kansas · 1925
- Missouri Pacific Railway Co. v. PhelpsCourt of Appeals of Kansas · 1900