Kan.) of his stepson the defendant tried to sell his farm and made certain journeys to other parts of the country. At Easter, 1914, Virgil Harold was at the place where the Chamberlains and the defendant lived, being a chum of one of the Chamberlain boys, and, although he and the defendant met, no trouble appears to have arisen and no fault appears to have been found by Mr. Wimer by reason of Harold's presence. In June thereafter the defendant began helping in the construction of a house for a neighbor a mile east of him, and on July 2d thereafter Virgil Harold drove up to the place where Wimer was working, and after remaining there a while went to the Wimer place, unhitched his horse, and had supper with the Chamberlains, intending to go that evening to an ice cream supper. Some time before this the pistol carried by the defendant got out of repair and he procured another, but did not have it upon his person on the day last referred to. He came home that evening, according to the testimony of some of the witnesses, some what earlier than usual. Virgil Harold's horse was in the barn, and after supper he went out to hitch up to his single buggy. Robert Chamberlain testified, among other things: hand out and had this gun in it, and he leveled ** ** started to run.' The testimony showed that Harold was unarmed, and that the fatal shot was in the back near the spine. Other members of the Chamberlain family who were present gave substantially the same account of the shoot ing. The defendant himself testified, among other things: That he ran out of the north door of the dining room into the yard, through the gate in the direction of the barn and saw Wimer standing in front of Harold with a gun in his hand about six feet from the deceased. "I saw Wimer have a revolver in his right hand; Virgil's hands were hanging down to his sides, the way I looked at him; I heard no shots up to that time; Wimer spoke first; as near as I can give "; I didn't it, I heard him say, "You hear Virgil say anything; when Wimer swore That he heard on the day of the shooting that that oath he commenced shooting right away Virgil was down at Chamberlain's and heard fired three shots, two in quick succession with some one say that he stayed there half of his a short pause before the third; I saw Virge time; that when he ordered him away upon turn and commence to run as quick as he could; that 'occasion he thought he was there to carry Virgil didn't speak another word after Wimer out his threat; but when he got home that said, "You -"; he cried out, but didn't evening Harold was sitting on the front porch. speak a word; he cried out after the first two "I went around the house to avoid him and to shots were fired; he turned to the left and get away and stay away from him; I went upkinda ducked under his horse's nose, away from stairs and got my pistol and went out to order Wimer; when the first two shots were fired him away; I thought he was there to hang there was just a short pause; Virge was turn-around until he got an opportunity to carry out ing, and just as he ducked under his horse's his threats against me; that's why I went out nose the third shot got him in the back; after to order him away and I took my pistol with Wimer fired he started walking up in the direction Virge turned, not but a step or two, prob-me; when I went out there I said, 'Now, Virge, you know the conditions between you and me. ably three or four steps, and met right up with What are you doing here? You ought not to be my brother; and I was right close, probably here. I don't want you here.' He swore, two or three steps away; I mean my brother I will come when I please and go when I please.' James; he was coming from towards the barn." He had his horse by the halter rope, and he He further testified that when he asked dropped that and throwed his hand down to his hip, and said, '-, I will just leave here when I had the revolver in Wimer to give him the gun the latter step- I get good and ready.' ped back in so as to face both of the brothers the bib of my overalls and as he throwed his and ordered them to keep back and stay off, hand down to his hip pocket I covered him and »said, 'Don't do that, Virge; don't do that. You and said that "That can't come here." go away from here now; this thing has gone You go away far enough between you and me. from here right now.' He said, 'I am going as soon as I hitch up.' I said, "That's all right; that's all that's necessary,' and I started on back to the house. I went probably eight or ten steps. He said, 'I am going to get you for this. I am going to get you for this.' He You said several other things while I was walking; he asked Jim, in the first place, if he saw the gun, and Jim told him he did, and he said, ‘I am going to have him in Mound City before tomorrow night. He thinks I am afraid of his James Chamberlain testified: old gun. I am going to get you for this, | ing their right to disagree, for this is universally you - I turned around and faced back; understood." 56 Kan. 371, 43 Pac. 259. his horse was facing almost directly to the barn; he was on the opposite side of it, the opposite side from me, and as I turned around I stepped back a step or two towards him, watching him, and he come right around in front of the horse; just as he come around in front of the horse he said, 'I will get you for this, you He came around with his left arm up and the other one back behind him [here the witness indicated]; then I fired; I shot three times as fast as I could pull the trigger; I shot to keep him off of me; I believed he was going to carry out his threat to kill me; when he whirled to run I quit shooting; I watched to see that he didn't turn and commence shooting at me; quit shooting as soon as he turned away from me; I did not know at that time that I had hit him at all." 1 On cross-examination he testified: "Yes, sir; I shot him; I didn't expect anything else but to hit him; when I started into the yard I saw Virge Harold was there; I went upstairs on purpose to get my gun; when I went out into the barn lot the first thing I saw Harold doing was getting ready to hitch up." He also testified: The expression is at least an unnecessary one and its use is not to be commended because, as everybody knows, the jury may either convict or acquit or disagree, and it can by no possibility enlighten them to charge that they cannot acquit, unless they all entertain a reasonable doubt. However, it does not follow that the expression gave any license to believe that a conviction must be had, unless all the jurors entertained a reasonable doubt, and it does not appear that any material prejudice arose from the use of this language. [4] A witness was permitted, over objection, to state that the deceased and one of the Chamberlain boys were good friends. This was for the purpose of showing that Harold was at the Chamberlain's place on account of this friendship, rather than for the purpose of annoying the defendant and in view of the claim of the latter was competent. While the answer to the question "I did not have any idea he was there for any really amounted to a conclusion, and the other purpose but watching his chances; I talk-objection, strictly speaking, should have been ed calmly to him; I was calm enough to talk to him reasonable; I wasn't in a passion; I wasn't talking when I fired the first shot; I had no other thought in my mind only to keep Virge off of me and to keep him from hurting me; no, sir; I did not at the time fire those shots at Virgil Harold's body intending to kill him; 1 intended to stop him; I did shoot right at him." While for a year and a half the conduct of the deceased toward the defendant and his threats made to and about him up to the latter part of June, 1914, were inexcusable and atrocious, still the word pictures of the tragedy itself as already indicated are such that the jury were fully warranted in finding the homicide characterized by sufficient deliberation and premeditation to make it murder in the first degree. [3] The court instructed the jury that if any of them, after having considered all the evidence in the case and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant's guilt, then they could not find the defendant guilty; that in such case the defendant could not be acquitted, unless each one of the jurors should entertain a reasonable doubt of his guilt. The latter expression is assigned as error. It is said to be open to the construction that unless every one of the jurors entertain a reasonable doubt the verdict must be "guilty." The instruction is substantially the same as that considered in State v. Rogers, 56 Kan. 362, 43 Pac. 256, which was to the effect that if any one juror entertain a reasonable doubt of the defendant's guilt, a conviction cannot be had. "But you cannot acquit the defendant, unless all the jurors entertain a reasonable doubt." 56 Kan. 362, 43 Pac. 256, par. 3. In the opinion it was said: "If the minds of the jurors do not so concur, there must be a disagreement. But it is hardly necessary to instruct an American jury touch sustained, still the fact which was shown that the two young men visited at the homes of each often would indicate quite strongly that they were good friends, and the conclusion of the witness was not materially prejudicial. [5] A similar objection was made to a question propounded to Robert Chamberlain as to what amounted to an obstruction of the defendant's view of the deceased from Instead of answering that he would or would not have been in full view, the house. his answer was: "Well, a person naturally could see as big an object as that, though there's two or three small trees there. No leafy trees or bushes or anything of that kind. Several little maples with leaves all off." This was a sufficient statement of the facts to render the objection on the ground of stating conclusions without merit. [6] Complaint is made that evidence of another witness of defendant's attempt to sell his farm prior to the shooting was erroneously rejected. The defendant himself was permitted to state fully what attempts he had made in this direction. The rejected evidence was not sufficiently important to require reversal on account of this rul ing. [7] An offer to prove by a witness that in September, 1909, Virgil Harold assaulted and beat a boy named Richard Glaze and was discharged on account of his quarrelsome nature and disposition, was rejected. The evidence introduced touching the character of the deceased was quite sufficient to show his quarrelsome nature and disposition without going back before the marriage of his mother with the defendant, and no error was committed in rejecting the testimony in question. [8] Finally it is complained that a contin uance was not granted on account of the ab- | plaintiff appeals, and the defendant asks that sence of a witness who had been subpoenaed, certain rulings of the court be reviewed. but was at home sick and unable to attend The motion for a new trial contained the the trial. The testimony desired from him usual grounds. The court did not state on would have gone mainly to the character | the record its action respecting each ground and reputation of the deceased and defend- separately, but entered a general order susant for quarrelsomeness and peaceableness. taining the motion. Matters outside the recIn view of the large number of witnesses ord cannot be considered (Mason v. Harlow, who actually testified touching these mat- 92 Kan. 1042, 142 Pac. 243, and authorities ters, it cannot be said that the trial court cited in the opinion), and the case falls withabused its discretion in refusing the continu- in the general rule relating to the discretion ance, or that the defendant was substantially of trial courts in granting new trials. harmed or prejudiced by such ruling. The judgment is affirmed. tices concurring. [1] The plaintiff contends that a cause of All the Jus- action for slander cannot be used as a counterclaim in an action for slander. It may be used as a set-off. Civ. Code, § 100 (Gen. St. 1909, § 5693). The only present limitation upon pleading a set-off is that the set-off must be a cause of action for the recovery of money, and must be pleaded in an action for the recovery of money only. COOPER v. SEAVERNS. (No. 18894.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) 1. LIMITATION OF ACTIONS 129-SET-OFF. A cause of action for slander may be pleaded as a set-off in an action for slander (Civ. Code, § 100 [Gen. St. 1909, § 5693]), and may be so pleaded under the circumstances referred to in section 102 of the Civil Code, althougn not presented until after the expiration of the one-year period of limitation. [Ed. Note. For other cases, of Actions, Cent. Dig. § 552; 129.] see Limitation - 2. APPEAL AND ERROR 1064 LIBEL AND SLANDER 100-PLEADING AND PROOF INSTRUCTION. In an action for slander it is sufficient if the very slander charged be established by proof of substantially the language alleged in the petition, and an instruction to the jury is not prejudicially erroneous which states that recovery may be had if it be proved that the language charged in the petition or language of identical import or substantially the same were uttered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. 1064: Libel and Slander, Cent. Dig. §§ 246-256, 258-272, 291, 322, 323; Dec. Dig. —100.] Appeal from District Court, Wallace County. Action by Fanny M. Cooper against Susan H. Seaverns. From a judgment for defendant, plaintiff appeals. Affirmed. W. S. Roark, of Junction City, for appellant. Lee Monroe, James A. McClure, and C. M. Monroe, all of Topeka, and W. E. Ward, of Sharon Springs, for appellee. BURCH, J. Mrs. Cooper sued Mrs. Seaverns for damages resulting from slander. After a trial occurring several years later, at which the jury disagreed, the defendant amended her answer by pleading as a set-off a cause of action for slander, resulting from words spoken by the plaintiff. At the next trial the jury found both women guilty, as sessed the damage of each at $1,000, and returned a general verdict in favor of the plaintiff for "no dollars." Special findings of fact were also returned. The court granted the defendant's motion for a new trial. The The plaintiff further contends that the defendant's cause of action was barred by the statute of limitations when first pleaded. The answer to this contention is found in section 102 of the Civil Code, which reads as follows: "When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by demands must be deemed compensated so far as reason of the statute of limitations; but the two they equal each other." Gen. Stat. 1909, § 5695. A cross-demand is nothing more than a cause of action which one party might have used as a set-off or counterclaim if sued by the other. The defendant assigns as error the overruling of her demurrer to the plaintiff's evidence. The court is of the opinion that the questions of what words were spoken, and when they were spoken were properly left to the jury to determine. [2] The jury were instructed that recovery might be had if the language charged in the petition, or language of identical import or substantially the same, were uttered. Many decided cases hold that the identical words must be proved. To do this is to sacrifice substance to form. Words are important only as vehicles of meaning. If the very slander be established by proof of substantially the language charged, that is sufficient, and that is the thought conveyed to the jury by the words of the instruction. There appears to have been no legal necessity for reading to the jury the former testimony of a material witness, the witness having been within reach of process. The findings of fact returned by the jury have not been considered because the court set all of them aside. The foregoing covers all questions which may be material at another trial should the parties persist in litigation, which was com- [ maintaining a pesthouse it was performing a menced in 1907 and was before this court six years ago. Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, 25 L. R. A. (N. S.) 517, 135 Am. St. Rep. 359. governmental duty under the police power of the state, and therefore cannot be held liable for negligence causing injuries to persons who were in the pesthouse for treatment and The judgment of the district court is af- isolation while affected with smallpox. firmed. All the Justices concurring. BUTLER v. KANSAS CITY. (No. 19901.) (Supreme Court of Kansas. Feb. 12, 1916.) On the same principle, a similar immunity from liability has been held to exist in a case where a county is sued by an inmate of a jail for injuries resulting from negligence in the manner in which the jail was maintained. Pfefferle v. Com'rs of Lyon County, 39 Kan. 432, 18 Pac. 506. The decision in that case 1. MUNICIPAL CORPORATIONS 734 PER- was placed upon the ground that, in respect FORMANCE OF "GOVERNMENTAL DUTY" to persons committed to its custody, the coun (Syllabus by the Court.) MAINTENANCE OF PESTHOUSE. Where a municipal corporation maintains a pesthouse for the treatment and isolation of persons who have been exposed to or affected with smallpox, it performs a governmental duty. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1550; Dec. Dig. 734. For other definitions, see Words and Phrases, The rule that the governmental agencies of the state are not liable in an action of tort for either misfeasance or nonfeasance is applied to an action against a city to recover damages for personal injuries resulting from the defective condition of the floor of a pesthouse, where plaintiff, who was affected with smallpox, was confined by the city authorities. ty was engaged in the performance of a governmental duty for the benefit of the state and possessed the same immunity as the state. In Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, it was said: "Counties are mere auxiliary agencies of the state government, and, like the state, are imcasioned by the manner in which they exercise mune from liability on account of damages ocor fail to exercise their governmental powers.' Syl. See State v. Lawrence, 79 Kan. 234, 250, 100 Pac. 485. The same doctrine was applied in a case of malicious prosecution. City of Caldwell v. Prunelle, 57 Kan. 511, 513, 46 Pac. 949, 950, It was there held that in enforcing a police regulation the officers of the city were exer [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1550; Dec. Dig.cising a public and governmental function. 734.] Appeal from District Court, Wyandotte County. Action by John Butler against the City of Kansas City, Kan. From a judgment for plaintiff, defendant appeals. Reversed, with directions. R. J. Higgins, W. H. McCamish, and Lee Judy, all of Kansas City, for appellant. A. J. Herrod, of Kansas City, for appellee. PORTER, J. John Butler sued the city of Kansas City to recover damages for personal injuries alleged to have been caused by the city's negligence. The city maintains a pesthouse where persons affected with smallpox are taken for isolation and treatment. The petition alleged that Butler became sick with smallpox and was taken by employés of the city and confined in one of the rooms or wards of the pesthouse, where each morning he was obliged to start a fire, and that blood poisoning resulted from a splinter of the flooring which entered his bare foot as he walked from the bed to the stove. The petition alleged that the city was negligent in maintaining the floor of the room in a defective and dangerous condition. A demurrer to the petition was overruled. The city elected to stand upon the demurrer and has appealed. In the opinion it was said: "For the manner in which they exercise their powers and duties in this respect the city is not liable." The case of Edson v. Olathe, 81 Kan. 328, 105 Pac. 521, 36 L. R. A. (N. S.) 861, rehearing denied 82 Kan. 4, 107 Pac. 539, 36 L. R. A: (N. S.) 865, recognized the distinction between the governmental and proprietary functions of municipal corporations generally, and as affecting property and contract rights. See authorities cited in opinion. Another case more nearly in point as to the facts, and in which the controlling question was. the distinction between the liability of a city for an act done by it in its public capacity as a part of the political subdivisions of the state, and its liability for an act done to its private advantage in relation to which the state at large has no interest, is La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272, 13 Am. St. Rep. 285. There the plaintiff brought an action to recover damages to his health by the negligent condition of a jail in which he was confined for the violation of a city ordinance. It was held that the city in maintaining the jail stands in the same attitude as counties and is not liable for injuries resulting from the enforcement of public laws affecting the state at large. [2] It is a general rule that the governmental agencies of the state are not liable in [1] The contention of the city is that in an action of tort for either nonfeasance or misfeasance. Fowle v. Common Council of | 2. PLEADING 369-INCONSISTENT DEFENSES-ELECTION. Alexandria, 3 Pet. 398, 7 L. Ed. 719; Maxmilian v. Mayor, 62 N. Y. 160, 164, 165, 20 Am. Rep. 468. Judge Dillon states the law as follows: "The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute appertains to it in its governmental or public, and not in its corporate, or, as it is sometimes called, private, capacity. And therefore where a city, under its charter, and the general law of the state enacted to prevent the spread of contagious diseases, establishes a hospital, it is not responsible to persons injured by reason of the misconduct of its agents and employés therein." 4 Dillon's Municipal Corporations (5th Ed.) § 1661. Among the cases cited in the notes which are directly in point, see Evans v. Kankakee, 231 Ill. 223, 83 N. E. 223, 13 L. R. A. (N. S.) 1190; Sherbourne v. Yuba County, 21 Cal. 113, 81 Am. Dec. 151; Summers v. Daviess County, 103 Ind. 262, 2 N. E. 725, 53 Am. Rep. 512; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461; Murtaugh v. St. Louis, 44 Mo. 479. In Barbour v. Ellsworth, 67 Me. 294, a well person was taken to a hospital for smallpox Alleging where he contracted the disease. that he had not been suitably or sufficiently cared for, he sued the city for damages, and it was held there was no liability. In Lynch v. North Yakima, 37 Wash. 657, 80 Pac. 79, 12 L. R. A. (N. S.) 261, it was held that the city was not liable for the act of a policeman who took a person exposed to smallpox into a building occupied by the fire department, thereby exposing the employés to contagion. The duty of a municipal corporation to conserve the public health is governmental, and it is not liable for injuries inflicted while performing such duty. 6 McQuillin's Municipal Corporations, § 2669. The petition failed to state a cause of action against the city, and the judgment is reversed, with directions to sustain the demurrer. All the Justices concurring. Where a defendant, instead of pleading, as he might have done, that one or the other of two conditions existed, either of which served his purpose, pleads one of them in one count of his answer and the other in another, the plaintiff is not ordinarily prejudiced by the denial of a motion to require him to elect between them, although both allegations could not be true. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. 369.] 3. INSURANCE 669—INDEMNITY INSURANCE -ACTION ON BOND-INSTRUCTION-ISSUES. In an action upon a bond undertaking to indemnify an employer against losses through the embezzlement of an employé, it is not error to instruct that one of the issues is whether he was guilty of that offense. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. 669.] 4. TRIAL 234-INSTRUCTIONS-BURDEN OF A general instruction that the plaintiff has the burden of proving a right to recover is not objectionable, although some issues are involved as to which the burden is on the defend ant. [Ed. Note.--For other cases, see Trial, Cent. Dig. 88 534-538, 566; Dec. Dig. 234.] 5. INSURANCE 434-INDEMNITY INSURANCE Where an insurance agent, who is authorized to retain 20 per cent. of all premiums collected, remits 80 per cent. of each collection made, without specific direction as to the application thereof, the fact that the company applies a part of the amount remitted to an indebtedness of the agent for money advanced cannot result in fixing liability upon a bonding company which has undertaken to indemnify the insurance company against loss occasioned by the embezzlement of its agent. [Ed. Note. For other cases, see Insurance, Dec. Dig. 434.] Appeal from District Court, McPherson County. Action by the Kansas State Mutual Hail Association against the Title Guaranty & Surety Company and another. From a judgment for defendants, plaintiff appeals. Affirmed. Alex S. Hendry, of McPherson, for appelKANSAS STATE MUT. HAIL ASS'N v. TI- lant. Grattan & Grattan, of McPherson, for appellees. TLE GUARANTY & SURETY CO. et al. (No. 19924.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) MASON, J. A mutual hail insurance company employed a soliciting agent, who gave a 1. INSURANCE 668-INDEMNITY INSURANCE bond signed by a surety company, to protect his employer against all pecuniary loss di-ACTION ON BOND-QUESTIONS FOR JURY. In an application to a surety company for rectly sustained by larceny or embezzlement a bond insuring the good conduct of an employé, on his part. The insurance company sued a negative answer was returned to the question whether he was indebted to his employer. The the bonding company, alleging that the agent sum of $50 had been advanced to him to enable had collected in its behalf $288.18 more than him to meet the expenses of his employment, he had remitted, and asking judgment for to be returned out of his earnings. Held, that it was not error to submit to the jury whether this transaction should have been mentioned in answer to the question, and whether the failure to mention it proceeded from bad faith. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. that amount. A trial resulted in a verdict against the plaintiff, and a judgment was rendered accordingly, from which it appeals. [1] 1. The written application of the insurance company for the bond included these questions and answers among others: |