said Laura J. Bledsoe, as defendant in said action and plaintiff herein. That said Laura J. Bledsoe, as defendant in said action wherein A. Scott Bledsoe was plaintiff, employed counsel, and on or about April 30, 1898, filed an amended answer in said action against her, praying for a divorce on her part from said A. Scott Bledsoe, plaintiff in said action. That said action was duly tried in said court in Davison county on May 28, 1898, and was by the court decided in favor of said Laura J. Bledsoe, defendant in said action, and a decree of divorce and a judgment for alimony was duly and legally granted to said Laura J. Bledsoe on the day of June, 1898," which judgment and decree reads: "This action having been brought to trial by the court, and a decision therein having been rendered for the defendant and filed, now on motion of Winsor & Mohr, the defendant's counsel, it is adjudged that the marriage between the plaintiff, A. Bledsoe, and the defendant, Laura J. Bledsoe, be dissolved, and the same is hereby dissolved accordingly, and the said parties are and each of them is freed from the obligations thereof. And it is further adjudged that the charge, control, and custody of Nellie Bledsoe, aged eight years, and the only issue of said marriage, is hereby awarded to the defendant, Laura J. Bledsoe, and that the plaintiff, A. Bledsoe, pay into the hands of the clerk of this court, on the 1st day of July, 1898, and on the 1st day of each and every month thereafter, up to and including the 1st day of January, 1911, when she shall become of age, the sum of $25 for the support, maintenance, and education of the said child, Nellie Bledsoe, and for the support of the defendant, her mother, and that such sums be promptly transmitted by the clerk to the defendant at her post office address at Emporia, Kan., by post office money order or draft from bank of this city on a responsible bank in Chicago, Ill. And it is further adjudged that it shall be lawful for the defendant, Laura J. Bledsoe, to marry again, in the same manner as if the plaintiff, A. Bledsoe, were actually dead; but that it shall not be lawful for the plaintiff, A. Bledsoe, to marry again until the defendant, Laura J. Bledsoe, is actually dead. Adjudged that the defendant recover of the plaintiff dollars and cents, her costs in this action, to be taxed by the clerk. Done in open court at the city of Mitchell, this

day

of June, 1898.' That said proceedings, decree, and judgment have not been reversed nor appealed from, and are in full force and effect, and have at all times been recognized as valid and binding by said Laura J. Bledsoe, defendant in said action and plaintiff herein, as is shown by the fact that on July 16, 1904, the plaintiff herein commenced an action, No. 22,857, in this court to enforce the collection of the judgment for alimony rendered in her favor against said A. Scott Bledsoe, in said divorce proceedings,

which action is still pending and undetermined in this court, and to which reference is hereby made." Third. The two-year statute of limitations.

To this answer the plaintiff filed a reply which reads: "Comes now said plaintiff, and for her reply to the answer of defendant herein said plaintiff says that the decree of divorce referred to and set out in said answer is the same decree of divorce referred to and alleged to be void in the amended petition of the plaintiff herein, and in the petition of this plaintiff against A. Scott Bledsoe and this defendant, No. 22,857, in this court, referred to in the answer herein, a copy of which petition in said other action is attached to and made a part of the demurrer of this plaintiff to the answer herein, and the same is here referred to as a part of this reply, and this plaintiff further says that she has never recognized the same as legal or binding in said other action, or otherwise."

On motion the words "a copy of which petition in said other action is attached to and made a part of the demurrer of this plaintiff to the answer herein" were stricken out, and then the defendant moved for judgment on the pleadings, which motion was sustained.

Edwin A. Austin and Otis E. Hungate, for plaintiff in error. W. A. S. Bird and Geo. Overmyer, for defendant in error.

GRAVES, J. (after stating the facts as above). The principal part of the argument presented in this case is confined to a discussion concerning the jurisdiction of the circuit court in South Dakota, where the plaintiff obtained a divorce from her husband. This subject is fully discussed, and many authorities are cited by each party. In the view we have taken, however, this question is not controlling. The complaint made by the plaintiff is that the district court erroneously entered judgment in favor of the defendant upon the pleadings. This question must be determined from the facts alleged. The averments of these pleadings show, in substance, that A. Scott Bledsoe commenced an action in the state of South Dakota to obtain a divorce from his then wife, the plaintiff in this action. In that action she appeared and filed an answer and cross-petition, in which she asked for a divorce, for the custody of their infant child, and for alimony. The prayer of the cross-petition was granted, and she obtained the decree requested. This decree was entered in 1898, more than seven years before she commenced this action in Shawnee county. She has retained the exclusive possession and control of the child during that time. The judgment for alimony still stands in her favor. A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from his adversary through its judgment, and, after having ob tained the relief desired, repudiate the action of the court on the ground that it was with

out jurisdiction. The question of whether the court had jurisdiction, either of the subjectmatter of the action, or of the parties, is not important in such cases. Parties are barred from such conduct, not because the judgment obtained is conclusive as an adjudication, but for the reason that such a practice cannot be tolerated. People who invoke the action of a court, and through negligence or falsehood, mislead the court as to the existence of the facts upon which its jurisdiction depends, and obtain a judgment for relief, will not afterwards be heard to deny the validity of such judgment. 16 Cyc. 795-800; Ogden v. Stokes, 25 Kan. 517.

This rule has been frequently applied to actions for divorce, where the decree was obtained in one state and afterwards attacked in another. In the case of In re Ellis' Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514, it was held: “If both parties voluntarily appear in an action for divorce in the court of another state and submit to its jurisdiction, they are bound by the judgment, and cannot avoid it, in a collateral proceeding in this state, by proof that, when the action was brought and judgment rendered, neither of them was a resident of that state, but that both were residents of this state." The facts of that case show that Matthew Ellis died intestate. Eight years before that his wife, at his request, obtained a divorce from him in the state of Wisconsin, and he subsequently married and left as his widow Flora Ellis. The two women contested for his estate, each claiming to be his lawful widow. The former contended that the Wisconsin divorce obtained by her was void, for the reason that she was not a resident of that state at that time, and therefore the court did not have jurisdiction. This contention was overruled. In argument the court said: "It may seem anomalous that a judgment of divorce can be so far effectual between the parties as to extinguish all rights of property dependent on the marriage relation, without being effectual to protect them from accountability to the state for their subsequent acts. One reason why they ought not to be permitted, by going into another state and procuring a divorce, to escape accountability to the laws of their state is that their act is a fraud upon the state, and an attempt to evade its laws, to which it in no wise consents, and it may therefore complain. But the parties do consent, and why should they be heard to complain of the consequences to them of what they have done? Why should they be permitted to escape those consequences by saying: 'It is true that by false oath made by one of us, and connived at by the other, we committed a fraud in the Wisconsin court, and induced it to take cognizance of the case; but now we ask to avoid its judgment by proof of our fraud and perjury or subornation of perjury.' Because we do not think it can be done the parties must, so far as their individual interests are concerned, abide by the judg

ment they procured that court to render." This case resembles the one presented here quite closely. Bledsoe left Kansas, and went to South Dakota to obtain a divorce. His wife followed. In his petition he pleaded residence, as required by the law of that state. The wife filed a cross-petition, in which she alleged "that for more than three months before the commencement of this action the plaintiff has been and now is a resident of the state of South Dakota." Apparently the only reason for this allegation was a desire to leave the question of jurisdiction unchallenged. As an affirmative allegation of residence it was, perhaps, insufficient, but it might be construed as an admission of the plaintiff's averment of that fact. In the case of Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 195, 93 Am. St. Rep. 631, it was held: "A party cannot be heard to impeach a judgment which he himself has procured to be entered in his own favor." In that action there was a controversy between two women, both claiming to be the widow of the deceased, and, therefore, entitled to a part of his estate. One of them left the deceased, who resided in the state of New York, and went to Massachusetts, where she obtained a divorce from her husband, who did not appear in the action. After the decree she remained in the state of Massachusetts. Her divorced husband subsequently married again. It was claimed that the Massachusetts divorce was void for the reason that the court did not have jurisdiction. The objection was overruled, and the decree sustained. In the case of Waldo v. Waldo, 52 Mich. 94, 17 N. W. 710, it was held: "An Indiana divorce cannot be impeached, in a purely collateral civil action in Michigan, by seeking to show that the residence of the complainant in the divorce suit was not such as to give the Indiana court jurisdiction." See, also, In re Morrisson, 52 Hun, 102, 5 N. Y. Supp. 90; In re Swales' Estate, 172 N. Y. 651, 65 N. E. 1122. The following cases, while not directly in point, are of the same general effect: In re Richardson's Estate, 132 Pa. 292, 19 Atl. 82; Kinnier v. Kinnier, 45 N. Y. 535, 6 Am. Rep. 132; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Ellis v. White, 61 Iowa, 644, 17 N. W. 28.

While the rule applied in this case does not rest upon the doctrine of estoppel as that term is ordinarily understood, yet there are some facts present which indicate that an ordinary estoppel might be applied. The plaintiff complains of the defendant for having alienated the affections of her husband. Her right to recover for the acts complained of, which occurred before the divorce was granted, has been long since barred by the statute of limitations. When the plaintiff procured the divorce, the defendant, having knowledge thereof, had a right to assume that the plaintiff no longer had, or claimed, any rights to the affections or society of her former husband, A. Scott Bledsoe, and that any relations which she might assume with him

thereafter would not in any way infringe upon the rights of the plaintiff. The conduct of the plaintiff in this respect is almost tantamount to an express withdrawal of objection to the illicit relations existing between the defendant and the plaintiff's husband at the time of the divorce. But for the decree these relations might have ceased. By it, they were probably encouraged.

We conclude that the plaintiff should not be permitted to impeach the Dakota decree. This conclusion disposes of all the other questions in the case, and they need not be considered.

The judgment of the district court is affirmed.

(77 Kan. 654)

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. DESPAIN.

(Supreme Court of Kansas. April 11, 1908.) 1. INSURANCE-ACTION ON ACCIDENT POLICYINSTRUCTIONS.

In an action on a policy which insured plaintiff against the effects of bodily injuries sustained during the term of the policy and caused solely through external, violent, and accidental means, and wherein it was stipulated that a certain indemnity should be paid if the irrecoverable loss of the sight of both his eyes should result from such injuries independently of all other causes, and that the policy did not cover anything of which the sole or secondary or contributory cause is, or which occurs while the insured is affected by, or under the influence of, bodily infirmity, where the plaintiff averred that he lost his sight by reason of an injury sustained at a certain time, and where one of the defenses of the insurance company was that an injury received long before that time, and prior to the issuance of the policy, contributed to, if it did not wholly cause, the blindness of defendant, and where testimony tending to support that defense was produced by defendant, as well as another defense to the effect that the warranties, upon which the policy was issued, were false, it was the duty of the trial court to submit these questions to the jury. 2. SAME.

In instructing the jury the court should not restrict or ignore any of the issues formed by the pleadings and supported by the proof, and where defendant pleads several defenses and offers proof to sustain them, a charge by the court which ignores one or more of such defenses and authorizes the return of a verdict against defendant if the jury decides other issues in favor of the plaintiff is error.

(Syllabus by the Court.)

Error from Court of Common Pleas, Wyandotte County; William G. Holt, Judge.

Action by William Despain against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Action on an accident insurance policy issued December 20, 1904, to William Despain by the Pacific Mutual Life Insurance Company of California, to recover $2,000 as indemnity for the loss of the sight of both eyes resulting, as it was alleged, from an accidental injury sustained on January 1, 1905. The defense of the company was that plain

tiff's loss of sight was due to an injury received in October, 1904, and that this injury was a sole or contributing cause of the loss of sight of one or both eyes. It was also alleged that the warranties in plaintiff's application for insurance were false, and, further, that the required notice of the injury was not given. In the reply it was alleged that there had been waivers of some of the conditions of the contract of insurance. Testimony was introduced tending to show that plaintiff lost the sight of his eyes from the injury of January 1, 1905, and a great deal of testimony in behalf of the defendant to the effect that the loss was occasioned in whole, or in part, by the October injury which was sustained before the policy was issued. In charging the jury the following instructions were given: "(1) The defendant issued an insurance policy to the plaintiff, on the 20th day of December, 1904, by the terms of which it agreed to pay the plaintiff the sum of $250 if, solely by external, violent, and accidental means, the irrecoverable loss of the sight of one eye shall result to the plaintiff, within ninety days; and if, within the same time and by the same means, the irrecoverable loss of the sight of both eyes shall so result, the defendant agreed to pay the plaintiff the sum of $2,000. In consideration of the issuance of the insurance policy sued on, the plaintiff agreed to pay the defendant the sum of $25. Most of the questions arising from the evidence are questions of law, which have been settled by the court, and so that you will not be confused by these legal questions you will confine your deliberations to determining the questions of fact presented to you in the following instructions: (2) If, before the 20th day of December, 1904, the plaintiff received an injury to his right eye, which totally destroyed the sight of said eye, then he cannot recover any damages from the defendant by reason of losing the sight of his right eye; and if he lost the sight of his left eye by reason of an injury to his right eye received by him before the 20th of December, 1904, then he cannot recover any damages for the loss of the sight of his left eye. (3) On the other hand, if, before the 20th day of December, 1904, the plaintiff did not receive an injury to his right eye of sufficient force and severity to destroy the sight of his right eye, and on said day he had the sight of his right eye, and on the 1st day of January, 1905, received an external, violent and accidental injury to his right eye, whereby he lost, irrecoverably, the sight of his right eye as the result of an external, violent, and accidental injury received by him on the 1st day of January, 1905, within ninety days from that date, then he is entitled to a verdict against the defendant for the sum of $270.12; and if, within ninety days from the 1st day of January, 1905, and after the plaintiff lost, irrecoverably, the sight of his right eye, he also lost irrecoverably the sight of his left eye as the result of an external, violent, and ac

cidental injury to his right eye on the 1st day of January, 1905, then he is entitled to a verdict against the defendant for the sum of $2,142.87. (4) If the plaintiff did not, on the 1st day of January, 1905, receive an external, violent, and accidental injury to his right eye, or if, on the 1st day of January, 1905, the plaintiff did receive an external, violent and accidental injury to his right eye, and the irrecoverable loss of the sight of his right eye did not result from said injury within ninety days from said date, then in either of such cases, you cannot render a verdict for the plaintiff and against the defendant for the loss of the sight of his right eye; and if the plaintiff did not lose, irrecoverably, the sight of his left eye within ninety days from the 1st day of January, 1905, as the result of an external, violent, and accidental injury to his right eye, received by him on the 1st day of January, 1905, then he is not entitled to any verdict against the defendant for the loss of the sight of his left eye; and it is only in case the plaintiff has lost, irrecoverably, the sight of both eyes, as the result, within ninety days, of an external, violent, and accidental injury received by the plain tiff on the 1st day of January, 1905, that he would be entitled to a verdict against the defendant for the sum of $2,142.87. (5) The burden of proof is upon the plaintiff to establish to your satisfaction, by the preponderance of all the evidence, that on the 15th day of December, 1904, he enjoyed the sight of both his eyes, and that on the 1st day of January, 1905, the irrecoverable loss of the sight of one or both of his eyes was caused solely by external, violent, and accidental means, within ninety days from that date; and if the evidence upon such matters is evenly balanced, or if it preponderates or weighs more heavily against the truth or existence of said fact, then the plaintiff cannot recover, and your verdict should be for the defendant."

The remaining instructions had reference to rules for determining the credibility of witnesses and the weight of the evidence. The trial resulted in a verdict in favor of the plaintiff for $2,142.87. The insurance company complains.

Rosenberger & Reed, for plaintiff in error. C. O. Littick and T. B. Anderson, for defendant in error.

JOHNSTON, C. J. (after stating the facts as above). The principal complaint of the insurance company is that the trial court in its charge to the jury in effect excluded material issues and withdrew from the jury defenses which were vital and upon which there was strong supporting evidence. One of these was that the injury sustained by Despain about three months before the policy was issued contributed to, if it did not cause, the blindness of one or both of his eyes. Another was the defense that the poli

cy was void by reason of the breaches of warranty in the application. Whether the blindness was solely or only partly the result of an injury sustained before the contract of insurance was made was a very important consideration in the case. The policy, upon which the action was brought, insured Despain against the "effects of bodily injuries sustained during the term of this policy and caused solely by external, violent, and accidental means," and provided that indemnity in the sum of $2,000 should be paid in case "the irrecoverable loss of the sight of both eyes" should "result from such injuries within ninety days independently of all other causes," and further that "if the irrecoverable loss of the sight of one eye shall so result within ninety days the company will pay oneeighth of the principal sum of the policy." In the policy was the additional provision that the insurance did not cover "anything of which the sole or secondary or contributory cause is, or which occurs while affected by or under the influence of bodily infirmity." That the right eye of Despain was injured on October 9, 1904, is conceded, and that he went to the hospital where he remained and received medical treatment of the injured eye for about a month is not denied. The severity and effect of the wound then received is in dispute. The physician, who examined the eye when he came to the hospital, stated that he found a bruise on the nose near the corner of the right eye, a rupture of the eyeball about half an inch long, through which some of the humors or contents of the eye were escaping; that the crystalline lens of the eye had been dislodged and was found in the conjunctival sac that surrounds the eye, and considerable blood was also found within the eye. The dislodged lens was removed and thrown away and treatment, intended to facilitate the healing of the wound, was administered. The hospital physicians advised him that as the right eye would be of no further use it should be removed and that its retention would produce sympathetic epithelioma. One of the doctors testified that sympathetic inflammation ordinarily sets in from 6 to 12 weeks after the injury and effects the destruction of the other eye from within 3 to 6 months. The earliest appearance of that affection ever known to any of the witnesses was three weeks after the injury. The doctor who examined his eyes after the injury of January 1, 1905, said that injury was trivial in comparison with the former one and that it could not have been the cause of the loss of the sight of the left eye but that this loss must have been the result of the October injury. There was other medical testimony of the same character, and some of it was that the January injury might have accelerated the sympathetic affection of the left eye but that it could not have been the sole cause of the blindness of that eye. Despain, on the other hand, claimed and testified that the October injury to the right eye was slight,

that the wound to the right eye in fact healed and that the eye was restored to its normal condition by the middle of November, more than a month before the insurance policy was issued. In this state of the evidence it became very material for the jury to determine whether the October injury contributed to the loss of sight of either or both of the plaintiff's eyes. That hurt was not within the life of the policy and unless his blindness was the result of an injury sustained solely by external, violent, and accidental means within the life of the policy and independently of all other causes he was not entitled to indemnity. If the injury of October was the secondary or contributing cause of the blindness no recovery could be had under the policy. Now, the second and third instructions effectually eliminated any possible contributory effect of the injury inflicted before the policy was issued. In the second instruction the jury were told that the total destruction of the sight of the right eye before the issuance of the policy and the loss of the sight of the left eye by reason of that injury would bar a recovery, but the court stopped short of saying that if this injury contributed to the loss of sight no recovery Icould be had. In the third instruction the jury were in effect advised that if the injury of October was not of sufficient force and severity to destroy the sight of the right eye it would not weigh in the consideration of the case. By these instructions nothing short of the total destruction of sight by the prior injury was available as a defense. But for these restrictions, who can say that the jury might not have inferred that the October injury, although it did not absolutely destroy the vision of the right eye, did severely wound it and that the second injury only accelerated the effect of the first and in a degree contributed to the final loss of sight? Who can say that the sympathetic inflammation which caused the loss of the left eye was not wholly, or even partly, due to the first injury? The wound was serious, and according to the testimony of defendant the doctors told the plaintiff that the loss of vision of the left eye would necessarily follow from sympathetic affection if the right eye was not removed. He did not permit its removal and the pain and symptoms of sympathetic inflammation began to be manifest about the length of time after the October injury that the doctors said it usually appeared. There was expert testimony that the last injury could not have been the cause of the blindness of the left eye, and the insurance company might have argued to the jury that there was not sufficient time for the inflammation, resulting from the January injury, to be transmitted along the optic nerve to the left eye; and who can say that the jury might not, if opportunity had been given, have found that one injury caused the loss of sight of one eye while the other injury occasioned the loss of sight of the remaining eye? If the

October injury contributed to the loss of sight of the right eye, but the loss of the left eye was wholly the result of the January injury, the plaintiff could only recover for the loss of one eye. The insurance company would only be liable for $250 if only one eye was lost as the result of the January injury, but if that injury caused the loss of both eyes it would be liable for the full amount of $2,000. At any rate, the contributory effect of the first injury was of vital importance to the case, and should have been submitted to the jury. Plaintiff concedes that if there was testimony from which the inference might have been drawn that the October injury was a contributing cause of his blindness there would be ground for complaining of the instruction. He insists, however, that all of the plaintiff's evidence was to the effect that the blindness was wholly due to the January injury, and that all of the defendant's testimony tended to show that it resulted entirely from the October injury, and that, therefore, there was no necessity for submitting the question to the jury, or at least no prejudice from the failure to instruct upon the question. Who can say, however, that the jury might not have believed the plaintiff's evidence as to certain features and circumstances, and disbelieved it as to others, and why might not the jury have given credit to some of the defendant's testimony as to the severity and effect of one injury, or deemed the testimony of the plaintiff as to the extent of the other more worthy of belief? Since the jury are at liberty to accept so much of the testimony of a witness as it deems credible, and reject the remainder, and since it may, upon the whole testimony, draw its own inferences as to degree and extent, the plaintiff's claim that there was no occasion to submit the contributory, effect of the first injury cannot be upheld. The same omissions and defects are manifest in other of the instructions.

No feature of the representations in the warranties written in the application, and which are confessedly false, was submitted to the jury. It was contended that the representations of the insured and his answers to the questions were correctly given by him, but incorrectly written in the contract by the agents of the defendant and, believing that they had written the answers correctly, he did not read them. On this proposition the testimony is in dispute. It was further claimed by the plaintiff that the policy was issued after the agents were correctly informed as to all the facts including the former injury, the hospital treatment, the payment of $85 to plaintiff by the railway company because of that injury, and that the insurance company therefore waived the conditions which, upon the face of the contract, appeared to have been violated. There is a sharp conflict in the evidence as to the representations made by Despain, and also as to the negotiations between him and the agents at the