dence of the sheriff was not newly discovered evidence. At most it was merely evidence somewhat at variance with previous evidence of the same witness, and new trials are not granted on that ground. Besides this, the evidence was ample to sustain a conviction without the affidavit. Misconduct of the county attorney which was not committed needs no discussion. The instruction on the subject of reasonable doubt was correct. A. E. Crane, of Atchison, Woodburn Bros., of Holton, Codding & Codding, of Leavenworth, and Charles Hayden, of Holton, for appellant. John D. Myers, of Kansas City, Mo., and M. N. McNaughton, of Leavenworth, for appellee. The judgment of the district court is afPER CURIAM. For sufficient reasons, a firmed. All the Justices concurring. rehearing in this case (Gillies v. Linscott, 98 Kan. 78, 157 Pac. 423) was granted and a reargument ordered. Since then every phase of this controversy has been reconsidered, but the court can discern no way to disturb the judgment of the trial court, nor does it seem advisable either to amplify or modify our former opinion and judgment. (98 Kan. 800) STATE v. POWELL. (No. 20698.) (Supreme Court of Kansas. Oct. 7, 1916.) (Syllabus by the Court.) CRIMINAL LAW 942(2) - NEW TRIAL — Assignments of error, relating to the introduction of evidence, misconduct of a juror, misconduct of counsel, an instruction to the jury, and the overruling of the motion for a new trial, examined, and held to be without merit. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2332; Dec. Dig. 942(2).] Appeal from District Court, Decatur County. (98 Kan. 756) STOTHARD v. JUNIOR COAL & MINING (Supreme Court of Kansas. Oct. 7, 1916.) TRIAL 139(1)-SUFFICIENCY OF EVIDENCE. The plaintiff's testimony as to how the injury occurred was susceptible of two different constructions. The trial court, after directing a verdict for the defendant, granted a new trial. Held not error. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. 139(1).] Appeal from District Court, Crawford County. Action by Lew Stothard against the Junior Coal & Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed. R. M. Sheppard, of Joplin, Mo., for appellant. T. J. Karr and E. E. Haney, both of Neil Powell was convicted of gambling, and Girard, for appellee. appeals. Affirmed. J. P. Noble, of Oberlin, for appellant. S. M. Brewster, Atty. Gen., L. M. Parker and A. C. T. Geiger, both of Oberlin, and John L. Hunt, of Topeka, for the State. BURCH, J. The defendant was convicted of gambling and appeals. All the circumstances indicated gambling, and the checks which were captured and introduced in evidence were quite corroborative. The evidence relating to misconduct on the part of a juror was conflicting, and the trial court decided in favor of the juror. Accepting his statements as true, his impropriety in suffering himself to be interrogated at all about the case did not amount to misconduct from which prejudice is presumed, and no prejudice whatever was made to appear. WEST, J. The plaintiff sued to recover damages alleged to have been received while Working in the defendant's strip pit by firing a blast without giving the plaintiff proper warning. In his account of the matter his story of what occurred made out a case. In his attempt, however, to fix the chronological limits of the affair his mathematical estimates took him out of court. After having directed a verdict for the defendant the trial court acting upon the theory of Acker v. Norman, 72 Kan. 586, 84 Pac. 531, as applied in Cornwell v. Moss, 95 Kan. 229, 147 Pac. 824, concluded that it would be proper for a jury to choose between the descriptive and the chronological testimony of the plaintiff and granted a new trial. This ruling was right for two reasons: First, because the court was not satisfied with the former decision (Civil Code, § 307 The evidence given by the sheriff at the [Gen. St. 1909, § 5901]); and, second, betrial of one of the defendant's associates was cause when the evidence even of one witness not radically different from the affidavit of or one party is fairly susceptible of two difthe county attorney. The facts stated were ferent constructions leading to diverse results essentially the same. Conclusions contained it becomes the province of the jury to weigh in the affidavit depended on the facts, and such evidence and reach the proper conclu doubtless the jury drew its own conclusion. sions. The defendant consented that the The judgment is affirmed. All the Justices affidavit might be read. The subsequent evi- | concurring. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (98 Kan. 718) (Supreme Court of Kansas. Oct. 7, 1916.) (Syllabus by the Court.) CONTRO COURTS 222(1)—JUSTICES OF THE PEACE [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 595, 598; Dec. Dig. 222(1); Justices of the Peace, Cent. Dig. § 297; Dec. Dig. 87(3).] Appeal from District Court, Wyandotte County. tional question, and hence on account of the smallness of the amount in controversy an appeal will not lie. Civ. Code, § 566 (Gen. St. 1909, § 6161); Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001; Caldwell v. Bigger, 76 Kan. 49, 55, 90 Pac. 1095; Ayres v. Deering, 76 Kan. 149, 90 Pac. 794; Brenholts v. Miller, 80 Kan. 185, 101 Pac. 998; In re Luttgerding, 83 Kan. 205, 210, 110 Pac. 95; Griggs v. Hanson, 86 Kan. 632, 121 Pac. 1094, 52 L. R. A. (N. S.) 1161, Ann. Cas. 1913C, 242; Wheeler v. Ballard, 91 Kan. 354, 360, 137 Pac. 789. The appeal is dismissed. All the Justices concurring. (98 Kan. 710) ̧ McCULLOUGH v. MISSOURI PAC. RY. CO. (No. 20143.) (Supreme Court of Kansas. Oct. 7, 1916.) (Syllabus by the Court.) Action by James Loope against the Chicago, Burlington & Quincy Railway Company. 1. COURTS 489(9)-CONFLICTING JURISDIC From a judgment for plaintiff, defendant appeals. Dismissed. Warner, Dean, McLeod & Langworthy, and James P. Kem, all of Kansas City, Mo., for appellant. E. E. Martin, of Kansas City, Kan., for appellee. TION-STATE COURTS AND UNITED STATES The state courts have jurisdiction of an ac tion against a carrier for damages occasioned by the misrouting of an interstate shipment, by which a privilege of milling in transit was lost, which would have been available if the shipping directions had been followed. [Ed. Note. For other cases, see Courts, Cent. Dig. 1326; Dec. Dig. 489(9).] 2. TRIAL 35-CARRIAGE OF GOODS-LIABILITY FOR MISROUTING-ADMISSIONS AT TRIAL. WEST, J. The defendant railroad company was called upon to answer in a justice court a proceeding in garnishment involving In an action against an initial carrier for wages earned out of this state, payable out misrouting, a statement made at the trial by the of this state, the cause of action arising out defendant's attorney that it admitted that it did of this state, the defendant in the garnish-misroute the goods, but denied the loss claimed by the plaintiff, dispenses with the necessity of ment action not being personally served proof that the defendant was in fault, even if the with process. The justice ordered the rail-situation is such that it was not liable for the road company to pay, and an action was misconduct of a connecting carrier. brought in the district court to compel obedi[Ed. Note.-For other cases, see Trial, Cent. Dig. § 88; Dec. Dig. 35.] ence to this order. The defendant, having been defeated, appeals, asserting that al-3. though the amount involved is less than $100 it has been deprived of its property without due process of law, and that the refusal of the trial court to make findings of fact and conclusions of law in writing was a deprivation of a remedy guaranteed by the Kansas Bill of Rights. In view of section 3654 of the General Statutes of 1909 we unhesitatingly hold that the justice of the peace was utterly without right to entertain jurisdiction of the proceeding except to dismiss it. The difficulty, however, is that when the matter was taken to district court that tribunal had jurisdiction to determine, erroneously, as it did, against the rights of the railroad company and the plain provisions of the statute in question. The refusal to make findings of fact and conclusions of law was erroneous merely, but not jurisdictional. It was sought by answer and by requests for declarations of law to induce the trial court to treat the enforce CARRIERS 94(4)-CARRIAGE OF GOODS LIABILITY FOR MISROUTING. Where a shipper of grain is required to submit to a reduction in the selling price because a milling in transit privilege was lost through misrouting, he is entitled to recover the amount of his loss from the carrier in fault. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 388-395, 456; Dec. Dig. 94(4).j 4. APPEAL AND ERROR 1010(1)-REVIEWQUESTIONS OF FACT. The evidence held sufficient to support a finding that a privilege of milling in transit would have been exercised if it had been available. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. 1010(1).] -CONSTRUCTION. Cent. Dig. §§ 210, 211; Dec. Dig. 63.] ment of the order of the justice as a depri- 6. CARRIERS 94(4)-CARRIAGE OF GOODSMISROUTING-PROVISIONS OF CONTRACT. vation of certain constitutional rights. The Damages for the loss of the privilege of case, however, really involves no constitu- milling in transit through misrouting cannot be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes recovered where the privilege was available only on the authorities there cited, we hold that where a reference to it was noted on the ship- the action was properly brought. ping order and bill of lading, and no such notation was made. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 388-395, 456; Dec. Dig. 94(4).] [2] 2. The defendant, which was the initial carrier, contends that the misrouting was the act of a connecting road to which it had properly made delivery; that by the terms of the bill of lading it was exempted from liability Appeal from District Court, Sedgwick for the fault of a subsequent carrier; and County. Action by W. F. McCullough, doing business as the McCullough Grain Company, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions. W. P. Waggener and J. M. Challiss, both of Atchison, for appellant. Blake, Ayres & McCorkle, of Wichita (A. E. Helm, of Topeka, of counsel), for appellee. that this provision was valid because the prohibition of the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]) against contracts of that character relates only to claims for physical loss and damage to the property shipped. The record shows that in response to a question by the trial judge as to the issues involved, a stipula tion having been entered into as to a part of the facts, the attorney for the defendant said: else that he can prove, for the reason that the of the milling in transit privilege, but anything milling in transit privilege does not apply to plaintiff, and these shipments are not covered by it." This statement relieved the plaintiff of the necessity of proving the defendant's responsibility for the misrouting. "Our position is that we did misroute this MASON, J. W. P. McCullough sued the stuff; that is agreed. But the amount of damMissouri Pacific Railway Company for damage which the plaintiff suffered is not the amount ages resulting from the misrouting of wheat shipped by him from points in Kansas to Monticello, Ind. He recovered a judgment for $652.86, and the defendant appeals. He had directed the grain to be sent by way of Chicago, and from there to its destination by the Panhandle Route, but it was not moved through Chicago, and was delivered to the Panhandle Company at Logansport, Ind. The tariff of the Panhandle Route gave a privilege of milling in transit with respect to all grain destined to milling stations such as Monticello, which originated west of Chicago and was there delivered to that company. This privilege, if the shipping directions had been followed, would have inured to the benefit of the buyer at Monticello, by virtue of his contract with the shipper, and would have been worth to him 52 cents to the hundred pounds. In settling with the plaintiff the buyer made a deduction at that rate from what he would have been required to pay if the wheat had been routed as agreed upon, so that he could have had the benefit of the privilege referred to. The plaintiff submitted to the deduction, and his action against the defendant is to recover on account of the loss he thereby suffered. [3] 3. The defendant also maintains that whatever injury resulted from the loss of the milling in transit privilege fell upon the consignee, and created no cause of action in behalf of the shipper. The plaintiff was entitled to receive the agreed purchase price upon the delivery of the wheat in such manner as to give the purchaser the advantage of that privilege. Not having made delivery in this manner he was compelled to submit to a corresponding reduction—he suffered a loss of the amount involved, through the failure of the defendant to perform its duty, and therefore had a right to look to it for compensation. The carrier's mistake reduced the selling value of the property shipped. The case is not analogous to one (for instance) where a demand for increased damages for the loss of goods is based upon a contract for their sale at a price above the market. In that situation the carrier's lia[1] 1. The defendant maintains that the bility could not be affected by a special constate courts have no jurisdiction of the sub-tract of which it had no notice. 6 Cyc. 450, ject-matter, that the plaintiff can obtain relief for any injury he has suffered, only through the interstate commerce commission or the federal courts, because his claim is based upon the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379), and upon the provisions of a tariff filed thereunder. No attack, however, is made by the plaintiff upon the validity of any regulation adopted, and no administrative problem is involved. The jurisdictional question presented is substantially the same as that considered in a [4] 4. The milling in transit privilege is recent case (Rock Milling & Elevator Co. v. exercised in this manner: Upon the delivery Railway Co., 158 Pac. 859, decided July 8, of the grain at the mill the full rate to that 1916), and upon the same reasoning, and up-point is paid; if the product is shipped in a 529. Here the loss of an advantage that would have accrued under the published tariff if the grain had been routed as directed was one reasonably to have been anticipated from a misrouting; it followed as naturally as damage results from sending goods by a route involving unnecessarily high charges for carriage. The amount of the damage claimed was not fixed by the contract of the shipper and consignee, but by the Panhandle Route tariff. further shipment. The defendant asserts that here it was shown that the purchaser of the wheat from the plaintiff had a greater amount of credits of this character than he had opportunity to use within the time limited, and therefore would have derived no advantage from the privilege if it had been preserved. This was a question of fact. A part of the evidence tended to show that the privilege would have been used if it had been available, and the decision of the trial court on the point is therefore final. specified time, a stated portion of this pay- | P., C., C. & St. L. Ry. or C. & M. V. R. R., to ment is credited upon the charges for such be milled or malted, will be subject to the conditions herein named; and the net rate will be the joint through rate on grain products from point of shipment on rate basing point to destination, plus one-half cent per 100 pounds (minimum charge $3.00 per car), provided the milled product is forwarded via the P., C., C. & St. L. Ry., or the C. & M. V. R. R., to western termini points located on the P., C., C. & St. L. Ry., Pennsylvania Company or Pennsylvania Railroad, or to points taking same rates (see list of mini via Union Line, as shown in Union Line points below), or to points east of western terBases for Freight Rates, I. C. C. 11, supplements thereto and reissues thereof, and in the absence of joint through rates the net rate will from Chicago or Chicago Junction, plus one-half be published reshipping rate on grain products cent per 100 pounds (minimum charge $3.00 per car). The western termini referred to above are: Allegheny, Pa.; Bellaire, Ohio; Buffalo, N. Y.; Erie, Oil City, Pittsburg, Titusville, Pa.; and Wheeling, W. Va." [5] 5. A more serious objection to the judgment is raised by the contention that by the terms of the tariff the milling in transit privilege is only available where a reference thereto is noted on the shipping orders and bill of lading, and where shipment is made to a mill, and that here no such notation was made, and the wheat was consigned to the shipper's order. The shipment may perhaps in view of all the circumstances be regarded as having been made to the mill within the meaning of the requirement in that regard. The question whether the absence of the notation was fatal to the privilege depends upon the construction of the language of the tariff. Four of its paragraphs, numbered as indicated, read thus: "(1) Grain to be milled or malted, may be shipped from a station on the P., C., C. & St. L. Ry., or the C. & M. V. R. R., or from stations on a direct connection of the P., C., C. & St. L. Ry. or the C. & M. V. R. R., as specified herein, to another station on the P., C., C. & St. L. Ry. or the C. & M. V. R. R. and eastward thereof, taking the same or less rate basis to eastern cities on the following conditions: "(2) Shippers must note on their shipping orders For Milling or Malting Purposes and the billing agent must make a like notation on his waybills and bills of lading. The plaintiff contends that the twelfth paragraph is complete in itself; that the requirement concerning the notation on the shipping directions and bill of lading applies only to shipments originating on the Panhandle Route, or at stations on a direct connection therewith. This interpretation involves regarding the words "subject to the conditions herein named" in the italicized clause as relating to the conditions named in that particular paragraph. We feel constrained to hold that the expression quoted refers to the conditions named in the entire tariff of which this paragraph is a part. The punctuation and the connective "and" seem to suggest additional conditions rather than an enumeration of those referred to in the preceding clause. The requirements set out in the earlier paragraphs, especially those concerning the notation, and the character of products to which the privilege applies, are as well adapted to shipments originating on one side of Chicago as on the other, and without them the provisions, of paragraph 12 ap (3) The grain must be shipped in carloads, to a mill doing business at a station on the P., C., C. & St. L. Ry. or the C. & M. V. R. R. and must be waybilled at tariff rate to milling sta-pear rather incomplete. tion, and the tariff rate must also be shown on the bill of lading issued for the grain. "(4) The agent at milling station must take up the bill of lading on delivery of the grain, and on receiving from the mill within six months after the delivery of the grain thereto, carload shipments of the products of such grain, limited to: [An enumeration of various products of grain is given, followed by directions as to manner of settlement.]" [6] 6. If (as we have concluded) the privi lege of milling in transit was available only where the words "For Milling or Malting Purposes" had been noted upon the shipping orders and bills of lading, the absence of such notation was of course destructive of the right in the present case, for the carrier could allow no advantage to the shipper ex The paragraph numbered (12) reads as fol- cept in accordance with the published tariff, and the plaintiff therefore suffered no lows, the clause the effect of which is in dis-injury from the misrouting of his shipments. pute being italicized: It results that a reversal must be ordered, and the cause remanded, with directions to render judgment for the defendant. All the "(12) Grain in carloads, originating at points beyond Chicago, Ill., and delivered to this company at Chicago or Chicago junctions, named above, when destined to milling stations on the Justices concurring. (98 Kan. 808) exceed 15% of its total assessed valuation now STATE ex rel. AMICK, Co. Atty., v. FRAN-owning and operating a system of waterworks to issue bonds for the purpose of enlarging, repairing, extending, and improving such system." CISCO, Mayor, et al. (No. 21037.) (Supreme Court of Kansas. Oct. 7, 1916.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 907- BONDS -STATUTORY PROVISIONS. Section 7 of chapter 124 of the Laws of 1913 does not repeal chapter 101 of the Laws of 1905 as amended, except in so far as the provisions of the law of 1905 as amended are in conflict with the provisions of chapter 124 of the Laws of 1913. This law is composed of eight sections, the first six of which are restricted in their application to the classes of cities named in the title of the act. There is nothing in these six sections that applies to any city other than those of the classes named in the title. Section 7 of the act reads: "Chapter 101, Laws of 1905, being sections 53, 54, 55, Compiled Laws of 1909, section 165, chapter 18, Compiled Laws of 1909, section 1, [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1895; Dec. Dig. chapter 75, Laws of 1911, and all other acts or 907.] 2. MUNICIPAL CORPORATIONS 918(4) BONDS - SUBMISSION OF QUESTION TO VorERS-VALIDITY. An election, held under chapter 101 of the Laws of 1905 as amended, is not vitiated because the polling places were held open from 7 o'clock in the morning until 7 o'clock in the evening. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1922; Dec. Dig. 918(4).] 3. MANDAMUS 103-SUBJECTS OF RELIEF ISSUANCE OF Bonds. The state may maintain mandamus to compel city officers to issue bonds which have been voted for the purchase of a waterworks plant. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 220-222; Dec. Dig. 103.] Original proceeding by the State, on the relation of J. S. Amick, as County Attorney, etc., for mandamus to W. J. Francisco, as Mayor of the City of Lawrence, and others. Peremptory writ allowed. J. S. Amick and S. D. Bishop, both of Lawrence, and J. H. Harkless and Clifford Histed, both of Kansas City, Mo., for plaintiff. Thos. Harley, J. Q. A. Norton, Walter Thiele, and Ord Clingman, all of Lawrence, for defendants. MARSHALL, J. In this action the state seeks to compel the mayor and commissioners of the city of Lawrence to issue certain bonds. parts of acts in so far as they conflict with the provisions of this act, be, and the same are hereby repealed." Section 8 is immaterial in this discussion. The defendants argue that the grammatical construction and punctuation of section 7 of the act show that it was the intention of the Legislature to repeal all of chapter 101 of the Laws of 1905, and to repeal all other acts or parts of acts in so far as they conflict with the provisions of chapter 124 of the Laws of 1913. The language used in section 7 of this act is capable of two constructions. One is the construction contended for by the defendants. The other is that all of the laws specifically named, and all other acts or parts of acts are repealed, in so far as the laws specifically named and the other acts, or parts of acts, conflict with the provisions of chapter 124 of the Laws of 1913. “They," in the clause "all other acts or parts of acrs in so far as they conflict with the provisions of this act," may refer to all the laws specincally named and to all other acts or parts of acts conflicting with the provisions of refer only to the other acts or parts of acts. chapter 124 of the Laws of 1913, or it may That this section was carelessly drawn is conclusively shown by its reference to "sections 53, 54, 55, Compiled Laws of 1909." Those sections refer to matters altogether foreign to the subject now under consideration. Under these circumstances, it is proper to examine the title of the act and the body of the act itself to ascertain the intention of the Legislature as declared in section Under chapter 101 of the Laws of 1905 as amended, that city voted to issue bonds in the sum of $175,000, for the purchase of a waterworks plant. The defendants refused to issue the bonds, and contend: First, that. there is no law providing for their issuance; second, that the election at which they were voted was improperly conducted. [1] 1. The defendants' argument on their first proposition is that section 7 of chapter 124 of the Laws of 1913 repealed chapter 101 of the Laws of 1905, and for that reason there is no authority in that law for issuing bonds. The law of 1905 has been amended, but we will now discuss this question the The same as if these amendments had been in "An act authorizing cities of the second and third class whose total indebtedness shall not Note, 2 L. R. A. 610; 36 Cyc. 1128. There is nothing in either the title or the body of the act that shows any intention whatever on the part of the Legislature to interfere with any law on the subject of issuing bonds for the purpose of purchasing or building public utility plants by cities in this state. Chapter 123 of the Laws of 1913 may be taken into consideration to determine wheth er or not the law of 1905 has been repealed. Chapters 123 and 124 were passed by the same session of the Legislature, and were approved two days apart. Chapter 123 takes the place of chapter 75 of the Laws of 1911, which last-named chapter amended section 1 of chapter 101 of the Laws of 1905. Under the statutory rule of construction (Gen. Stat. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |