to protect the company's property made it necessary for the watchman to shoot the plaintiff, the servant of the company would bave been acting within the scope of his employment. As held in a case cited in plaintiff's brief: his claim. The plaintiff recovered, and Russell (who will hereafter be spoken of as the defendant) appeals. The following facts are admitted by both parties: The defendant owned a 200-acre tract of land, which included that on which "He was undoubtedly charged by appellants the wheat was grown. In March, 1915, he with the authority, and it was his duty to exer- executed to the plaintiff a five-year lease on cise the discrimination necessary to distinguish the entire tract, the annual rental being between burglars, thieves, depredators, and innocent persons, and to make arrests when called $452.50, for which five notes were given; the for by the circumstances, and to determine the first being due October 1, 1915. In the fall degree of force necessary to be exercised. If, of that year the wheat in question was sown. through want of proper care or the exercise of In January or February, 1916, an oral agreethe proper discrimination, he mistook appellee for a depredator or person who otherwise should ment was made between the parties by which be dealt with in the manner in which he did the lease was in effect canceled and the land deal with him, he was certainly acting within returned to the defendant; the plaintiff rethe apparent scope of his employment, and the taining the right to harvest the wheat and appellants must be held liable for any want of proper discrimination or improper conduct of agreeing to compensate him for the use of his in that respect." Baker et al. v. Ives (Tex. the land in that connection. The dispute Civ. App.) 188 S. W. 950. arises over the amount and character of such agreed compensation. The defendant asserts that the plaintiff was to deliver to him at the railroad station one-third of the grain. The plaintiff asserts that he was to pay him $120, or at the rate of $2 an acre for the wheat land, which amounted to 60 acres. The judgment is affirmed. The defendant's testimony was to the ef WILLIAMS v. KANSAS FLOUR MILLS CO. fect that he made the plaintiff a proposition et al. (No. 21743.) Appeal from District Court, Sedgwick County. Action by Asa Williams against the Kansas Flour Mills Company and George M. Russell. Judgment for plaintiff, and defendant Russell appeals. Affirmed. to surrender the four notes, which had not yet matured, in return for the lease, and take one-third of the wheat crop; that in a subsequent conversation the plaintiff accepted the proposition and the papers were exchanged. The plaintiff corroborated the defendant as to the proposition having been made to him calling for his delivering onethird of the grain; but he testified that he refused to agree to this, and that in the later conversation the defendant offered to exchange the papers "and let the wheat ground go the way it is"; that he was paying under the lease $2 an acre for the wheat land, which comprised 60 acres. [1] 1. The defendant complains of the giving of an instruction reading: "A completed oral contract can only result where there is a meeting of the minds of the contracting parties; that is, they must agree to the same things at the same time. There must be an offer on one side, which is accepted and agreed to upon the other side." It is contended that under the peculiar Noftzger & Gardner, of Wichita, for ap- state of the evidence the instruction was mispellant. leading. The defendant's version of the Walter & Connaughton, of Kingman, for transaction was that he had made a propoappellee. MASON, J. Asa Williams sued the Kansas Flour Mills Company for $234.18 as the balance due for some wheat he had sold to it, being one-third of the purchase price. No issue was made between the plaintiff and the company; but George M. Russell, who claimed that this portion of the price of the wheat should be paid to him, was made a defendant, and filed an answer setting out sition at the first conversation, which the plaintiff accepted at the second, without its having been restated. He asserts that the jury, in applying the instruction in question to this situation, would naturally suppose that he could not recover, inasmuch as the proposal was made at one time and the acceptance at another. We cannot regard it as probable that the jury placed that construction upon the statement quoted. It seems more likely that they understood it in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the sense in which it was intended; that they realized that, in saying that in order to complete a contract the parties must agree to the same things at the same time, the court meant (as applied to the situation referred to) that to have such effect the acceptance of a proposal must be made while it is still in force before it has been withdrawn. any rate, if the instruction was open to misconception, the danger was not so obvious that the defendant could base error upon it, without having asked a fuller exposition of the matter. At [2] 2. The only other complaint made is of an instruction relating to the burden of proof. The jury were told that each party had the burden of showing that the contract which he claimed to have been made was made, and that if it was found that neither was made the plaintiff should recover. The defendant says: "Under the lease that was given, Russell was to receive certain rent. Under the changed tenancy, he was to receive a different rent. The burden was upon the plaintiff, Williams, to establish his agreement, because he was attempting to show that different arrangements had been made than what had been agreed upon. In other words, he was the first to claim in court that a changed contract had taken place." The parties agree that the original lease was annulled by their joint action. As the issues were made up, the defendant was the attacking party; and the burden of proof rested on him, except as it may have been removed by special considerations. The claims of both parties seem to have been fairly placed before the jury, and we see no likelihood of any prejudice having been occasioned by the instruction, even assuming that it was open to criticism. The judgment is affirmed. ΤΟ Аст. SERVANT-WORKMEN'S 385(8)-INJURY COMPENSATION under the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942). 3. MASTER AND SERVANT 385(20)—INJURIES TO SERVANTS-LUMP SUM JUDGMENT. Error assigned on abuse of discretion in an periodical and terminable payments to an inaward of a lump sum judgment instead of jured workman examined, and not sustained. Appeal from District Court, Cherokee County. Action by Paul Raffaghelle against Peter Russell. Judgment for plaintiff, and defend ant appeals. Affirmed. A. B. Keller, George R. Malcolm, and C. O. Pingry, all of Pittsburg, for appellant. A. L. Majors, of Columbus, for appellee. DAWSON, J. The plaintiff was employed in defendant's coal mine. A large rock fell from the roof of the mine and crushed a fellow workman. In response to the latter's appeal for help, plaintiff sustained a femoral rupture while exerting all his strength to lift the rock from the injured man. This case was brought under the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942); and the trial court awarded plaintiff a lump sum judgment computed on the basis of $5 and some cents per week for eight years, pursuant to a finding that plaintiff's injuries were of a permanent nature and partially incapacitated him for work. [1] Defendant contends that there was no evidence to sustain the finding of diminished capacity, and cites part of section 5896 of the General Statutes of 1915, which before the amendment of 1917 (Laws 1917, c. 226) provided: "That (a) the employer shall not be liable under this act in respect of any injury which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he is employed." It is true that plaintiff's injury did not immediately and totally incapacitate him from labor. He continued to work for some time, although he began to feel pain the night following the injury. Plaintiff testified: * "Before I got hurt I used to lay off and have a good time, and after I got hurt I layed off because I hurt. * * * I lay off about two weeks before I came here. * * * Since I was hurt in the mines I worked every day I possibly could and as hard as I could. I have tried my best. In the Illinois mine I did not work alone. There were two men working with * When a big chunk would fall my buddy lifted it for me. *They lifted the large pieces of coal in the car for me because I couldn't lift them myself. * When I am working a knot sticks out on me." me. The statute quoted does not mean that, An injured workman who only in pain and unless a workman's injuries totally disable distress and with the friendly help of his fel- him from laboring for the first two weeks low workmen can earn as much as he did before his injury may maintain an action against succeeding his mishap, he cannot recover. his employer for permanent partial incapacity It means that, unless the injury is suffi ciently serious to disable him for two weeks, the injury is considered by the statute to be too trivial for its concern. The statute would discourage malingering and the harassing of employers with petty claims of little or no merit. But it would never do to say that the courageous workman who sticks to his task notwithstanding his pain and injury is to be penalized for so doing. Neither would it do to say that an injured workman who in pain and distress and with the gratuitous help of his fellow workmen can still earn as much as he was wont to do before his strength and vigor were impaired is not entitled to compensation. A workman who is injured is not compelled then and there to lay off for two weeks to protect his rights under the act. The soldier who is wounded, but who still "carries on," is looked upon as a hero; the injured workman who likewise attempts to "carry on" will lose nothing by so doing when his rights become a matter of judicial determination. [2] The court discerns no trouble as to the sufficiency of the evidence of diminished earning capacity. The plaintiff was so much distressed that he had to go to another state, to a mine where the coal vein was eight feet thick and where his "buddies" (friendly fellow workmen) would help him with heavy lifting. The court attaches no controlling significance to the fact that his semimonthly pay checks were sometimes as large or larger after his injury than they were before he was hurt. The evidence showed that in the days of his full vigor he occasionally took a lay-off to enjoy himself; since his injury he occasionally is compelled to take a lay-off because of pain which now attends his arduous vocation. These were merely circumstances to be considered with all the other facts and circumstances, pro and con, in determining whether plaintiff's claim was genuine or spurious. [3] It is also contended that the court erred-that it abused its discretion-in awarding plaintiff a lump sum judgment, and that, if plaintiff was entitled to compensation, it should have been awarded in periodical payments. It may be true that ordinarily a rupture like a femoral hernia can be successfully treated by a surgical operation which is not considered dangerous to life nor attended by much suffering, and that, if plaintiff would resort thereto, he might be completely restored to his former vigor in a few weeks or months, probably in much less time than eight years. But this court cannot say that on that account the trial court abused its discretion in granting a lump sum judgment. Moreover, in this case, as in many preceding appeals touching this compensation act, counsel urge too strongly the general philosophy upon which compen176 P.-41 sation acts are supposed to be founded, and do not read with close and critical scrutiny the literal text of the Kansas act. Some years ago, when reformers and magazine writers were urging Legislatures to enact these compensation laws, the matter of periodical payments for injured workmen was elaborated, and it was wisely urged that courts or commissions should have power not only to award such judgments, but also to terminate the periodical payments when assured that the injured workman was completely restored. While that doctrine will be found in the Kansas act (section 5926, Gen. Stat. 1915), the Kansas Legislature apparently had a mind of its own, and it provided first and foremost that, where injured workmen are compelled to resort to judicial proceedings to secure compensation, they may be awarded a lump sum judgment, and, secondly, that in the discretion of the trial court the decree may provide for periodical and terminable payments. "The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under the act, or, in the discretion of the trial judge, for periodical payments as in an award." Section 5930, Gen. Stat. 1915. See Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251; Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413; McCracken v. Bridge Co., 96 Kan. 353, 150 Pac. 832, Ann. Cas. 1918B, 689; Id., 96 Kan. 799, 153 Pac. 525, Ann. Cas. 1918B, 689; Halverhout v. Milling Co., 97 Kan. 484, 155 Pac. 916. Since the statute gave the injured workman a right to a lump sum judgment, and merely added a grant of discretionary power to the court to modify that right, a failure to exercise a discretionary power which the trial court might or might not care to use does not ordinarily amount to abuse of discretion. Cases have come before this court, and perhaps this is one itself, where, if we were trial judges, we would probably have awarded periodical and terminable payments, although we realize that such a disposition of the matter would give trial judges additional labor, since it is easier to decree lump sum judgments and get the judicial business completely and finally dispatched while the facts are all fresh in memory; but even so, no abuse of discretion in failure to exercise a mere discretionary power being manifest here, we cannot substitute our judgment for the judgment of the trial court on the very matter which the statute has left to the trial court's determination. Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244 (syl. 5); Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 786. The judgment is affirmed. BUSH v. CITY of TOPEKA et al. (Supreme Court of Kansas. Dec. 7, 1918.) (Syllabus by the Court.) 450(3) 1. MUNICIPAL CORPORATIONS SPECIAL PAVING ASSESSMENT-VALIDITYUNIT. In making and apportioning a special assessment for paving a street in a platted portion of the city, the block is the unit, and the fact that the block may vary in size and shape from others in the city does not affect the rule or the validity of the assessment. 2. MUNICIPAL CORPORATIONS PAVING ASSESSMENT-BLOCK. m450(3) A block so situated must all be regarded as platted ground, although a part of it has not been subdivided into lots of the customary size, and it is subject to assessment from the line of the improved street to the middle of the block. 3. MUNICIPAL CORPORATIONS 487 SPECIAL PAVING ASSESSMENT-ERROR IN OWNER'S FAVOR. The fact that the assessment was extended only 300 feet from the improved street, when it should have been extended to the middle of the block by reason of which the assessment upon the ground of plaintiff, the complaining party, was considerably lessened, is not an error of which the plaintiff can complain. A par ty cannot take advantage of an error which operates to his advantage. Appeal from District Court, Shawnee County. Proceeding by B. F. Bush, receiver of the Missouri Pacific Railway Company, to set aside a special paving assessment on the company's property by the City of Topeka, Kan., and others. Judgment for defendants, and plaintiff appeals. Affirmed. W. A. S. Bird, all of Topeka, for appellant. W. P. Waggener, Walter E. Brown, and George P. Hayden, of Topeka, for appellees. JOHNSTON, C. J. This proceeding involves the validity of a special assessment of the property of plaintiff to pay for paving a portion of Monroe street in the city of Topeka. The tract assessed is a part of a block in the platted portion and near the center of the city, but not all of the block in which the land lies has been subdivided into lots. The plaintiff's tract and the district in which it lies is quite well shown by the accompanying map: It will be observed that the block is larger | plaining more than he is entitled to, he than other blocks surrounding it, and that cannot take advantage of such error, bea part of the western half of the block has cause he has not been hurt. In such a case been subdivided into lots. Only 60 feet of there must be, not only error, but also the tract assessed touches Monroe street, and prejudice of the rights of the appellant. the remainder of it lies behind the lots men- The judgment is affirmed. tioned, but within the west half of the block. All the Justices concurring. The court sustained the assessment; but, instead of imposing it to the middle of the block, it was only placed upon the lots and pieces of land therein to a distance of 300 feet from the improved street. ZEEB v. BAHNMAIER. (No. 21115.) (Supreme Court of Kansas. Dec. 19, 1918.) (Syllabus by Editorial Staff.) APPEAL AND ERROR 1003-REVIEW-VER DICT AGAINST WEIGHT OF EVIDENCE. Verdict contrary to uncontradicted evidence of appellant will be reversed as against the objection that the jury might have disbelieved such testimony, where the fact involved was esed no evidence to prove the same. sential to appellee's action, and he had produc [1, 2] The parties speak of and treat the tract involved as unplatted land evidently because it has not been subdivided into lots of the customary size, and the plaintiff insists that it should be regarded as unplatted ground which is not subject to an assessment, under the rule of McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438. The tract in question is in fact platted ground. It is a part of a block, and the block is the unit upon which an assessment for street improvements is made and apportioned. Gen. Stat. 1915, § 1231; Bowlus v. City of Iola, 82 Kan. 774, 109 Pac. 405; Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801. The block in question is composed of lots and pieces of ground, and the fact that a part of it is not sub-ing, the point is urged that the jury had a land, nor does the fact that it may differ right to disbelieve the testimony of the Bahnin shape and size from other blocks change divided into lots does not make it unplatted Appeal from District Court, Douglas On motion for rehearing. Motion denied. DAWSON, J. In a petition for a rehear er Bahnmaier, was on any errand of service or agency for his father when the accident occurred; and this leaves nothing upon which to fasten liability on the father, and nothing upon which a new trial could be maiers. That may be conceded, but theirs was the only evidence showing whose erthe rule or affect the validity of the assessrand was being prosecuted when the youngment. Larson v. City of Ottawa, 101 Kan. er Bahnmaier committed the tort. If the 422, 166 Pac. 565. In a case involving a simtestimony of the Bahnmaiers was not true, ilar situation in which a like question arose, there is nevertheless a complete lack of eviit was held that the railroad property with-dence to show that the tort-feasor, the youngin a block was subject to assessment. Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836. There is no real conflict between McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438, and the later cases on the subject. The land involved in the McGrew Case was agricultural land which had never been platted into lots or blocks and which lay outside of the platted part of the city. In the later cases the grounds in question were in blocks within platted territory. The statements in the opinion in the McGrew Case on which reliance was placed were used with reference to unplatted land, and the rule in such cases does not apply to land in a block within a platted district. [3] It is said that the decision of the trial court indicates that the case was tried upon the wrong theory, as the assessment was only extended 300 feet from the improved street, which covered less of plaintiff's land than if it had extended to the middle of the block. Under the statute it should have been extended to the middle of the block, and of this the city had reason to complain. As to the plaintiff, it was harmless error, and the rule is that, if the court or other tribunal erroneously gives to the party com based. Rehearing denied. (No. 21440.) 1. SUFFICIENCY OF EVIDENCE. ings that the land claimed is an island. 2. NAVIGABLE WATERS 1(6) ARKANSAS The doctrine touching the Arkansas river, announced in Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041, and State ex rel. v. Akers, 92 Kan. 169, 140 Pac. 637, Ann. Cas. 1916B, 543, followed. Appeal from District Court, Gray County. Action by Gertrude Stogsdill against Josephus Minor and another. Judgment for plaintiff, and defendants appeal. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |