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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.

[1] The plaintiff contends that a cause of

The judgment is affirmed. All the Jus- action for slander cannot be used as a tices concurring.

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, § 56931), 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, see Limitation of Actions, Cent. Dig. § 552; Dec. Dig. 129.]

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, assessed 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

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.

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 governmental duty under the police power of

years ago. Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, 25 L. R. A. (N. S.) 517, 135 Am. St. Rep. 359.

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.)

(Syllabus by the Court.)

1. MUNICIPAL CORPORATIONS 734 PERFORMANCE OF "GOVERNMENTAL DUTY" 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,
First and Second Series, Governmental Duty.]
2. MUNICIPAL CORPORATIONS 734 PER-
FORMANCE OF GOVERNMENTAL DUTY-MAIN-
TENANCE OF PESTHOUSE-ACTIONABLE NEG-
LIGENCE.

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.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 1550; Dec. Dig. 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.

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 was placed upon the ground that, in respect to persons committed to its custody, the county 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 immune from liability on account of damages occasioned by the manner in which they exercise or fail to exercise their governmental powers." Syl.

See State v. Lawrence, 79 Kan. 234, 250, 100 Pac. 485.

of malicious prosecution. City of Caldwell The same doctrine was applied in a case 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 exercising a public and governmental function. 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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

misfeasance. Fowle v. Common Council of | 2. PLEADING
ES-ELECTION.
Alexandria, 3 Pet. 398, 7 L. Ed. 719; Max-
milian 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 some-
And therefore
times called, private, capacity.
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.

369-INCONSISTENT DEFENS

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
PROOF.

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 -PAYMENTS BY AGENT-APPLICATION-EMBEZZLEMENT.

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 TLE GUARANTY & SURETY CO.

et al. (No. 19924.) (Supreme Court of Kansas.

Feb. 12, 1916.)

(Syllabus by the Court.)

1. INSURANCE 668-INDEMNITY INSURANCE -ACTION ON BOND-QUESTIONS FOR JURY.

appellees.

MASON, J. A mutual hail insurance company employed a soliciting agent, who gave a bond signed by a surety company, to protect his employer against all pecuniary loss diIn an application to a surety company for rectly sustained by larceny or embezzlement a bond insuring the good conduct of an employé, a negative answer was returned to the question on his part. The insurance company sued 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.

A trial resulted in a verdict that amount. 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:

"Is he [the agent] now in debt to you? No. 1 only against losses occasioned by larceny or If so, state amount and nature of such indebted- embezzlement. The issue referred to was ness. No." therefore in the case, and it does not appear to have been so presented as to be the occasion of any prejudice.

At the time the company had advanced to the agent $50 to enable him to pay his way until returns from the business should begin to come in, he to repay it out of his share of the proceeds; and this amount was charged against him on the books of the company. The defendant maintained that the answer to the first question quoted was untrue, and that it was thereby relieved from liability. The court instructed the jury in effect that if the answer was false and had been made in bad faith, the bond could not be enforced, owing to certain of its provisions not necessary now to be stated. The plaintiff complains of the instruction on the ground that under the circumstances shown the $50 advanced to the agent did not constitute a debt, and that there was no evidence of any bad faith in the answer that was made. We think the evidence justified allowing the jury to determine whether or not the $50 transaction was of such a character that it should have been mentioned in answer to the question, and whether or not under all the circumstances the failure to mention it proceeded from a want of good faith. Upon the whole record, as will appear from what is herein after said, it seems very unlikely that the verdict was affected by this matter.

[2] 2. Among other defenses, the defendant presented the claim that in making a statement to it of the amount of the agent's alleged shortage it had willfully suppressed the fact that the amount charged against him included the sum of $440, advanced to him by the plaintiff. In a separate defense the same allegation is repeated, except that the money is said to have been advanced by the plaintiff's secretary. The plaintiff contends that the defenses were inconsistent, and complains of the refusal of the court to require the defendant to elect between them, and of the admission of evidence with regard to the advancing of money by the secretary. There is a conflict of authority as to how far inconsistent defenses may be united in an answer. Fetzer v. Williams, 80 Kan. 554, 103 Pac. 77. Whatever inconsistency there may be in the two defenses referred to is not objectionable. The defendant, instead of pleading in one count that the money was advanced by either the company or its secretary, presented one theory in one count and the other in another. The effect was much the same. The facts lay peculiarly within the knowledge of the plaintiff, and it was in no way prejudiced by the denial of its motion to require the defendant to elect.

[3] 3. The court in its charge referred to the question whether the agent was guilty of embezzlement as one of the issues. Complaint is made of this on the ground that it tended to confuse the jury and create the impression that the agent was on trial. The bond undertook to indemnify the plaintiff

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[4] 4. The jury were told that the burden of proof was on the plaintiff to prove its right to recover by a preponderance of the evidence. This is objected to apparently on the ground that as to some of the specific issues the burden was on the defendant. The instruction given was true as a general statement. If a more specific direction had been asked, a different question would be presented. Criticism is made of the verification of the answer. It seems sufficient, but no reason is suggested why any verification was necessary.

[5] 5. The evidence showed that the insurance company from time to time advanced to its agent different sums, amounting in all to $440, which were charged against him on the books. His arrangement with the company was that he should cover a definite territory, soliciting business, writing insurance and collecting premiums. He was authorized to retain 20 per cent, from each premium collected, from which he was to pay all his expenses, including the charges of subagents, the residue to be his compensation for his services. As the agent made reports of business done he was charged with the premiums collected (less his 20 per cent. deduction) and as he made remittances they were credited to him on the general balance, being applied to his indebtedness arising from the advancements made to him, as well as to the charges for premiums collected. The plaintiff claimed this practice to have been authorized by the agent, under his agreement with the company, but the jury specifically found to the contrary. The plaintiff also contended that the agent had assigned his share of the premiums collected, to secure the payment of the money advanced him, and this issue was submitted to the jury in such a way that their general verdict must be deemed to include a finding against the contention. The remittances of the agent amounted to more than 80 per cent. of the premiums collected, and he was made to appear in default in that respect only by applying to his indebtedness, growing out of the sums advanced to him, a part of the amounts he remitted. The plaintiff invokes the rules that the creditor may determine what application shall be made of payments by a debtor who omits to give any directions in that regard. That principle does not apply here because the surety company had not guaranteed the payment of the agent's debts. It merely had undertaken to indemnify his employer against loss by his larceny or embezzlement. The bond specifically provided that the surety should not be liable "for any loans or advances made by the employer to the employé for any purpose." We approve the view of the trial court that so long as the agent remitted to

the company 80 per cent. of each premium | ticulars demanded judgment for more than collected, no liability arose under the bond. His failure to repay the advances made, out of his share of the premiums, was a mere breach of contract. The bonding company guaranteed only his observance of the criminal law, not the civil.

The effect given to a mistake made by a witness, while testifying to the contents of a record he was then examining, has led to an apparent controversy concerning the fact in that regard. The matter had no important bearing on the decision of the case. Whatever misunderstanding existed was obviously due to inadvertence, and has been cleared up. The judgment is affirmed. All the Justices concurring.

WEBSTER v. BROEKER.

(No. 19884.) (Supreme Court of Kansas. Feb. 12, 1916.)

(Syllabus by the Court.)

44-JURISDICTION

JUSTICES OF THE PEACE
-AMOUNT INVOLVED-PLEADING.

In an action before a justice the bill of particulars stated a cause of action for the recovery of $300; the prayer asked judgment for that sum, with interest from the day the action was begun; judgment was rendered for $300. Held, that the prayer was no part of the statement of the cause of action, that the amount sued for was $300, and that the justice court and the district court on appeal had jurisdiction. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. 44.]

Appeal from District Court, County.

Douglas Action by J. C. Webster against Herman Broeker. From judgment for plaintiff, defendant appeals. Affirmed.

Thomas Harley and R. E. Melvin, both of Lawrence, for appellant. Fred A. Clarke, of Lawrence, for appellee.

PORTER, J. In this case the only question is whether the justice court and the district court, where the case was appealed, had jurisdiction, and this depends upon what sum the plaintiff sued for in the justice court. The bill of particulars alleged that defendant owed plaintiff $300 for failure to perform a written agreement; that demand had been made for that sum and defendant had refused to pay the same. In the prayer for relief the plaintiff prayed judgment for $300 "together with interest thereon at the rate of 6 per cent. per annum from the 8th day of October, 1913, and for costs of suit." The action was begun in a justice court on the 8th day of October, 1913, and the summons was personally served on the defendant the same day. On December 28, 1913, the court rendered judgment in plaintiff's favor for $300, with interest from the date of the judgment and for costs. The defendant appealed to the district court and filed a motion to dismiss on the ground that the bill of par

$300, and that neither the justice court nor the district court had jurisdiction of the cause. There is a statement in the abstract that the same application was made and denied in the justice court. This is challenged in the counter abstract. The district court overruled the motion to dismiss, and on the trial of the case judgment was rendered against the defendant for $300 and costs.

It is stated in the bill of particulars that the defendant is owing the plaintiff the sum of $300, and unless the prayer for relief is considered a controlling part of the statement of the cause of action, it is clear that the plaintiff claimed no more. The mandate in the Code of Civil Procedure which requires that "its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice" (section 2 [Gen. St. 1909, § 5595]), applies to actions before justices where formal pleadings are not necessary. Wooster v. McKinley, 1 Kan. 317. It would be quite technical to hold that when the action was commenced the plaintiff claimed there was more than $300 due. In Smith v. Kimball, 36 Kan. 474, 493, 13 Pac. 801, 812, it was said:

"However strongly a pleader may be bound, and however much he may be estopped by the averments of facts in the body of his pleadings, it is doubtful whether he is bound or estopped by his prayer for relief. He is supposed to know the facts upon which he predicated his action, and to state them as he understands them, but the relief to which he is entitled on the facts related is a question for the court, and over which he has no control."

A per curiam opinion in John Smith v. Dora Smith, 67 Kan. 841, 73 Pac. 56, contains the following inaccurate statement:

of the petition forms no part of it, and that re"It is well settled in this state that the prayer lief may be granted in accordance with the facts stated in the petition, rather than pursuant to its prayer."

The prayer for relief is a part of the petition or bill of particulars and a necessary part. In enumerating what the petition must contain, the language of section 92 of the Code (Gen. St. 1909, § 5685) is: "Third, a demand of the relief to which the party supposes himself entitled.

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While the prayer is a necessary part of the petition, it is not a part of the statement of the cause of action. A pleader may suppose himself entitled to other and different relief than the facts stating his cause of action warrant, and may ask for such relief, but in determining the question of the jurisdiction of the court it is the cause of action stated, and not the relief prayed for, which controls.

The statement in the opinion in John Smith v. Dora Smith, supra, that "it is well settled in this state that the prayer of the petition forms no part of it" was not necessary to the decision in that case, was obiter, and

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