Hursh & Sloan, of Holton, for appellant. [this question the court instructed the jury Crane, Hayden & Hayden, of Topeka, and as follows: ED Woodburn, of Holton, for appellee. MARSHALL, J. The defendant appeals from a judgment against him for $1,000 in an action for slander. The petition set out two causes of action, in each of which the plaintiff alleged that the defendant had used language toward her in the presence of others charging her with larceny. Judgment for $3,000 was asked on each cause of action. There was evidence to prove that the defendant had said to the plaintiff in the presence of others, "You stole $200 of my money," and, "You stole my hay and you stole my corn, and I defy you to touch a straw of my hay." [1] 1. Complaint is made that the court refused to submit two special questions in which the defendant requested that the jury be required to state what the items of actual damages were in each cause of action. Only general damages were alleged, and there was no evidence to prove any item of damage. The questions requested could not be answered from the evidence. It was for the jury to determine the amount of damages sustained by the plaintiff. Miles v. Harrington, 8 Kan. 425; Roniger v. McIntosh, 91 Kan. 368, 370, 137 Pac. 792; Good v. Higgins, 99 Kan. 315, 320, 161 Pac. 673; Kunz v. Allen, 102 Kan. 883, 172 Pac. 532. There was no prejudicial error in refusing to submit the questions. [2] 2. Another matter urged by the defendant is that the court erred in giving the following instructions: "Such evidence could only bear upon the question of actual malice, and, since no punitive damages are claimed, such evidence should be from your consideration. disregarded by you, and is hereby withdrawn For the purposes of this case, it makes no difference why the plaintiff and her companions were at the place where and the fact, if it be a fact, that plaintiff and it is claimed the slanderous words were spoken, her associates were there without right, would be no defense or excuse to the defendant for speaking the alleged slanderous words, if in fact he did utter them." The defendant argues that under the instruction the jury was unable to determine what evidence was and what was not affected thereby, and argues that the jury should consider the manner in which the slanderous statement was made, together with all the attending circumstances. The reasons for withdrawing the evidence, as given by the court, are a sufficient answer to the defendant's argument, and nothing more need be said. [4, 5] 4. The last proposition argued by the defendant is that the verdict of the jury was so excessive as to show that it was prompted by passion and prejudice. The verdict was for $1,700. On the motion for a new trial, the court found "that the jury was not influenced by passion or prejudice, or other improper influence, in reaching their verdict"; but the amount of the verdict did not meet with the approval of the court, and the plaintiff was therefore required to remit $700 of the verdict, or the verdict would be set aside. It was not error for the court to reduce the amount of the verdict without "If you find for the plaintiff as provided in granting a new trial. U. P. Ry. Co. v. Mitchthe next preceding instruction, then the next ell, 56 Kan. 324, 43 Pac. 244; Railway Co. v. question for your determination is the amount Frazier, 66 Kan. 422, 71 Pac. 831; Van Vranof damages to be allowed. When words imput-kin v. Railway Co., 84 Kan. 287, 292, 114 Pac. ing a crime are intentionally and falsely spoken of another, the law not only presumes that the words were spoken maliciously, but that the person of whom the words were spoken was thereby damaged, and in such case the jury should allow actual damages,' which are such as are recoverable at law from a wrongdoer as a matter of right as compensation for the actual damage sustained by him by reason of the wrong. The term 'actual damage' is synonymous with the term 'compensatory damages.' "In order for the jury to allow actual damages, it is not necessary that any witness testify to the amount of damage done or the sum necessary to compensate the injured person; but, in this class of cases, it is for the jury to determine what amount of damages, if any, will compensate the injured person, limited, of course, by the amount claimed in the petition." These instructions did not incorrectly state the law applicable to the evidence. Roniger v. McIntosh, 91 Kan. 368, 370, 137 Pac. 792. [3] 3. Another matter is urged concerning the instructions. Evidence had been introduced concerning the claimed rights of the parties on the premises where the slanderous words were spoken, and concerning why the plaintiff was then at that place. On 202; Malet v. Haney, 98 Kan. 20, 157 Pac. 386. The practice followed by the trial court has been followed in this court. Truman v. Railroad Co., 98 Kan. 761, 161 Pac. 587. Unless it appears that the trial court was in error concerning the manner in which the jury arrived at its verdict, this court cannot interfere with the conclusion reached by that court. Such error does not appear. The judgment is affirmed. All the Justices concurring. (103 Kan. 522) CAUSE OF SOPER v. DEAL. (No. 21715.) (Supreme Court of Kansas. Oct. 12, 1918.) (Syllabus by the Court.) BROKERS 88(3) - COMMISSION SALE QUESTION FOR JURY. In an action for a real estate agent's commission, where a sale was made through another agent to a purchaser with whom negotiations had been first started by the plaintiff, it is held that the evidence warranted submitting to the jury the question whether the sale was made as the result of a new and independent cause, disconnected with anything the plaintiff had done, operating after the efforts of the plaintiff to make a sale had failed and spent their force, and the purchaser had finally and in good faith decided not to buy on the terms offered him by the plaintiff. Appeal from District Court, Reno County. Suit by S. J. Soper against J. M. Deal. Judgment for defendant, and plaintiff appeals. Affirmed. C. M. Williams and D. C. Martindell, both of Hutchinson, for appellant. George A. Neeley, of Hutchinson, for appellee. MASON, J. S. J. Soper sued J. M. Deal for a real estate agent's commission of $592.50. A jury trial resulted in a judgment for the defendant, and the plaintiff appeals. The defendant owned a farm of 237 acres. The plaintiff brought John M. Doner to him, and introduced him as a prospective purchaser. According to the plaintiff's evidence the defendant availed himself of his services, naming a price of $100 an acre net to him; the plaintiff stating that his commission would be 21⁄2 per cent. The defendant testified that he had told the plaintiff and the customer that his price was $100 an acre, and had added: "I have had trouble with real estate men, and I will not obligate myself to pay any commis have got the land from Deal, he would have gone to Soper, and bought the land, and paid him a commission. The conduct of Doner and Deal, in which it was arranged that another man should sell Doner the land, and the manner in which it was carried out, all show plainly, not only that there was a conspiracy between Doner and Deal to beat Soper out of his commission, but that the manner in which they did it was actually fraudulent upon Soper." The circumstances lend much plausibility to this argument as one addressed to the jury, but its persuasive force was a matter for their determination. The sale through McCullough took place on the morning after a consultation between Doner and the defendant, in which, according to Doner's testimony, the defendant told him that another man would sell him the land. The defendant, however, testified that in the conversation referred to Doner told him that the deal was off. While the defendant did not in so many words deny that he had said that another man would sell the property to Doner, he did so inferentially by stating that he had said to Doner: "You can't buy the place of me, unless you get rid of Soper. I don't want no lawsuit, or any trouble of any kind with this commission" -and by adding that he had had the place listed with McCullough for about eight months, and that in the meantime he never sion. You two fellows will have to fix this commission among yourselves." saw McCullough, and did not say a word The parties separated without a sale hav- to him about it. We think the evidence preing been agreed upon. Negotiations, how-sented a case for submission to the jury, and ever, were continued from time to time for warranted giving the instructions referred to. about two weeks, without an agreement being The judgment is affirmed. All the Justices reached. Finally the defendant sold the concurring. property to Doner, through an agent named McCullough, for $100 an acre, paying McCullough a commission of $25. The plaintiff contends that a peremptory instruction should have been given for a ver (103 Kan. 579) MILLER et al. v. NATIONAL COUNCIL OF (Syllabus by the Court.) 1. PLEADING 180(2) REPLY DEPAR TURE. -- The reply examined, and held not to amount to such a departure as to warrant a reversal. 2. EVIDENCE ~471(1) — QUESTION CON CLUSION. An objection to a question calling for the conclusion of a witness was rightfully sustained. dict in his favor, on the ground that his right (Supreme Court of Kansas. Oct. 12, 1918.) to a recovery was established by the defendant's own testimony. A phase of the same question is raised by objections to instructions that were given, to the effect that if the sale through McCullough was made as the result of a new and independent cause, not connected with anything the plaintiff had done, after the plaintiff's efforts had failed and spent their force, and after Doner had finally and conclusively and in good faith decided not to buy on any terms proposed to him by the plaintiff, the verdict should be for the defendant. This is in accordance with the ordinary rule. Corse v. Kelly, 80 Kan. 115, 101 Pac. 1016; 9 C. J. 621. The plaintiff does not question the correctness of the general doctrine, but insists that it has no application here, because there was no evidence that his efforts to sell the land to Doner had spent their force, but that, on the contrary, the undisputed evidence showed that they were still negotiating, adding: "We claim that any person could tell from the evidence in this case that, if Doner could not 3. EVIDENCE 477(2)—OPINION-HEALTH. "Corporal appearances and conduct, as indications of the inward health or lack of it, are relevant." 6. INSURANCE 826(1)—FRATERNAL BENE- [ allege in the petition that the conditions of FICIARY ASSOCIATION - INSTRUCTION - DE- the certificate had been complied with; plainLINQUENCY-SUSPENSION AND BAD HEALTH. tiff not being required to know in advance An instruction as to the necessity of concurrent delinquency, suspension, and bad health that the defendant would claim otherwise. Having raised them, the reply, which asserts an inability by reason of waiver and estoppel, does not amount to such a departure as Benefit Association to warrant a reversal. was not erroneous. 7. INSURANCE 826(1)-FRATERNAL BENEFICIARY ASSOCIATION-DEFENSES-FORFEI TURE-INSTRUCTION. In view of the issues raised by the pleadings, no error was committed by charging that the defense must be proved by the greater weight of the evidence, and that the defense of forfeiture must be established by clear and satisfactory proof. - 8. INSURANCE 761 FRATERNAL BENEFICIARY ASSOCIATION REINSTATEMENT "GOOD HEALTH." To entitle the member to reinstatement, she must, aside from slight troubles or infirmities not usually ending in serious consequences, have been in fact free from any disease or ailment which tended seriously or permanently to weaken or impair her constitution. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Good Health.] 9. INSURANCE 826(1)—FRATERNAL BENE FICIARY ASSOCIATION - REINSTATEMENT It was error to instruct that if the insured enjoyed such good health and strength as to justify the reasonable belief that she was free from derangement of organic functions or symtoms, and to ordinary observation or outward appearance her health was reasonably what might have been expected, the requirements as to good health were satisfied. 10. INSURANCE 799-ACTION ON BENEFIT CERTIFICATE-INTEREST. It was not error, as against the defendant, to allow interest from the date of filing proofs of death. Appeal from District Court, Leavenworth County. Action by Elizabeth Miller and others against the National Council of the Knights and Ladies of Security. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. George R. Allen, of Kansas City, Benjamin F. Endres, of Leavenworth, and A. W. Fulton, of Chicago, Ill., for appellant. A. E. Dempsey, of Leavenworth, for appellees. WEST, J. The defendant appeals from a judgment recovered on a membership certificate issued to the plaintiffs' mother, and complains principally of a departure in the pleadings, of error in the admission of testimony, and giving and refusing to give instructions. [1] The petition pleaded full performance of all the conditions precedent, the answer alleged a breach of warranty by delay in making payments and an attempt to reinstate the insured to membership when she was not in good health, and the reply pleaded waiver and estoppel. There was a motion to strike and a motion to elect, and both were overruled. Upon the theory that any delays in payment or questions as to reinstatement had been waived, it was proper to v. Wood, 78 Kan. 812, 98 Pac. 219; Savage v. Modern Woodmen, 84 Kan. 63, 113 Pac. 802, 33 L. R. A. (N. S.) 773; Fritts v. Reidel, 101 Kan. 68, 165 Pac. 671; Bank v. School District, 102 Kan. 98, 169 Pac. 202. [2] The financier of the local council was asked whether the deceased had been in suspension more or less than 60 days when she made payment of her assessment for August and September on October 3, 1916. This was objected to as calling for a conclusion, as incompetent, irrelevant, and immaterial, and assuming what the record might show, which objection was sustained. The witness had already produced account books showing when the various assessments had been paid. The question called for the conclusion of the witness upon a matter for the jury to determine, and moreover the desired evidence was not produced on the motion for new trial; hence no error can be predicated on the ruling. Kuhn v. Johnson, 91 Kan. 188, 137 Pac. 990; Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6; Imel v. Railway Co., 100 Kan. 130, 163 Pac. 807. [3] Neighbors, who were well acquainted with the deceased, were permitted to testify that she appeared to be in vigorous health, and that on one occasion she did not appear to be tired. This testimony was competent, not on the theory that healthful appearance was sufficient, but for the reason that one who acts and appears to be free from disease might properly, in the absence of other testimony, be presumed to possess good health, and for the further well-known reason that serious impairment of health is ordinarily manifested by the appearance and observable condition of the patient. "Corporal appearances and conduct, as indications of the inward health or lack of it, are relevant." Wigmore on Ev. § 223. [4] Complaint is made that certain hypothetical questions did not include all the facts set forth in the evidence. The omitted fact referred to had reference to a statement in the proofs of death, "History of hemorrhage six weeks previous to operation." These proofs were signed by Drs. Lloyd and Smith; Dr. Lloyd being assistant in the operation, from the shock of which the deceased died. Dr. Smith, when on the stand, was not asked expressly about this matter, except by assuming that there was a history of hemorrhage, and by asking if any sort of growth would be likely to produce one. The omission occurred in the examination of one physician, Dr. Darrah, and, while it might with which it is related. Ordinarily slight troubles or infirmities, not usually ending in cluded in the term 'good health." serious consequences, may be regarded as inBad health well have been included, the failure so to do was not sufficient to constitute material error, in view of all the other testimony in relation to the health of the deceased. or illness means something more than a tem[5] It was not error to overrule the demur-porary indisposition, which does not really afrer to the plaintiffs' evidence; neither did the fect the soundness of the system, substantially trial court err in refusing instructions offer- impair the health, materially weaken the vigor of the constitution, or seriously derange the ed by the defendant which concededly raise vital functions. If the insured enjoyed such the same point as that raised by the demur- good health and strength as to justify the reasonable belief that she was free from derangement of organic functions or symptoms, and to ordinary observation or outward appearance her health was reasonably what might have been expected, the requirements as to good health were satisfied; and the burden of proof is upon the defendant to establish by the preponderance or greater weight of the evidence that the deceased was not in good halth, at the time or times her dues became delinquent, if you should find that she did become delinquent." rer. [6] Instruction No. 2 is criticized because of the expression that the delinquency, suspension, bad health, and attempt at reinstatement alleged in the answer must have been concurrent. Of course, unless the reinstate ment was at a time when the claimant was not in good health, it could not avail the defendant; and, if not made at a time of delinquency or suspension, it would have no effect. At any rate, we find no material error in the use of the language complained of, and do not perceive that the jury were misled thereby. [7] In the instruction just referred to the jury were told that the defense must be proved by the greater weight of the evidence. In No. 3 they were charged that, before the defense of forfeiture could be maintained, it must be established by clear and satisfactory proof. The answer, among other things, denied that the proofs of death showed the plaintiffs to be entitled to participate in the benefit fund, and expressly pleaded a forfeiture for nonpayment of dues and assessments, and alleged that the payment of ar rearages was accepted upon the warranty that the insured was then in good health, whereas in fact she was not then in good health. As the instruction had reference only to the question of forfeiture, and is concededly correct as an abstract proposition of law, it does not appear that any error was committed in giving it. Insurance Co. v. Rammelsberg, 58 Kan. 531, 50 Pac. 446; Bank v. Reid, 86 Kan. 245, 120 Pac. 339; Herrald v. Paris, 89 Kan. 131, 130 Pac. 684; Hockett v. Earl, 89 Kan. 733, 133 Pac. 852; Hewey v. Fouts, 91 Kan. 680, 139 Pac. 407. [8, 9] Instruction No. 14 was: "By the words 'good health' is meant that the person is free from any disease or ailment that affects the general soundness and healthfulness of the human body, or of any of its organs or parts." Counsel regards this as a good definition of good health, but complains because, in instruction No. 4, referred to as correct in instruction No. 9, a different definition was given. No. 4 was as follows: "Upon the question of good health you are instructed that good health does not mean a perfect physical condition. The word 'good' is comparative, and does not mean that the deceased was free from all infirmities, as such an interpretation would exclude from the list of insurable lives a large proportion of mankind. The term must be interpreted with ref The italicised part of this instruction is the subject of counsel's criticism. Good health, and not the appearance thereof, or the reasonable belief therein, was the essential condition in this case. There was evidence tending to show that the diseased condition which, in the opinion of the doctor, which the death occurred, existed when the required an operation, from the shock of also testimony to the effect that there was reinstatement occurred, although there was no outward appearance of such condition, and possibly nothing to warrant a belief therein. It was not a question of good faith, but one of actual good health, and the two instructions were not harmonious, but con flicting and confusing. The instruction as given might apply to the question of good self to be in good health; but it sometimes faith in case of a person representing himoccurs that one may unconsciously bear the seeds of a ravaging disease, or be the subject of a fatal, but insidious, malady, by reason of which his right to insurance or reinstatement would be lost. In this instance, to entitle her to reinstatement, the member must, aside from slight troubles or infirmities not usually ending in serious consequences, have been in fact free from any disease or ailment which tended seriously or permanently to weaken or impair her constitution. It was error, therefore, to give instruction No. 4 as it was worded, and to use it by reference in a subsequent instruction. Other complaints touching the instructions given are substantially answered by the decision in Allen v. Knights & Ladies, 102 Kan. 128, 169 Pac. 569. [10] It was not error, as against the defendant, to allow interest from the date the proofs of death were filed. Certain findings of the jury were doubtless materially influenced by the instructions as to good health, and for error in the charge in this respect the cause is reversed, and remanded for further proceedings. All the DENCE. Evidence held to show that defendant, as Nevada town-site trustee, under mistake as to authority, fixed and collected of grantees of lots greater fees for attorney obtaining patent than statute authorized; and so, as to excess, is, under Civ. Code, § 2224, trustee, not for plaintiff, the attorney, but for the grantees, who but for the mistake would have it. Department 2. Appeal from Superior Court, San Diego County; W. A. Sloane, Judge. Action by James Donovan against Theron Stevens. Judgment for plaintiff, and defendant appeals. Reversed. named to enter into an agreement with the plaintiff, whereby he would undertake as attorney for applicants to procure a townsite patent for the lands embraced within Goldfield and South Goldfield. The inhabitants, on their part, agreed to pay plaintiff $10 per lot for the issuance of such patent. There were, approximately, 4,300 lots in the tract involved. Plaintiff prosecuted the applications and contested the mineral claims, fully performing his contract, and in November, 1909, the United States issued a patent to the land embraced within the town site. In January, 1909, defendant was appointed judge of the district court of Esmeralda county and thereafter continued the administration of the trust for the inhabitants of Goldfield and South Goldfield. On the issuance of the patents, plaintiff presented his contract for $10 a lot to the trustee, who, believing the amount was excessive, suggest Geo. B. Watson, Riley & Heskett, and James G. Pfanstiel, all of San Diego, for ap-ed a modification of the agreement with the pellant. William Ogden, of Los Angeles, for respondent. MELVIN, J. Defendant appeals from a judgment in favor of plaintiff by which it was determined that $3,500 on deposit with the American National Bank of San Diego, Cal., in the name of Theron Stevens, trustee, and $4,480.35 on deposit with the John S. Cook & Co. Bank of Goldfield, Nev., in the name of Theron Stevens, trustee, are held in trust for said plaintiff, James Donovan, and also directing said Theron Stevens individually or as trustee to assign, transfer, and set over to said plaintiff all right, claim, and interest therein. result that four arbitrators were appointed, two by plaintiff and two by the trustee, who, after considering the matter thoroughly, determined that the value of plaintiff's services was $15,000, or $3.45 per lot assessed against 4,342 lots. The complaint contains the allegation that: "Under and by virtue of said compromise and agreement of arbitration and in acceptance of said award said defendant collected from each and every person the sum of three dollars and forty-five cents ($3.45) for each lot, which said defendant issued deeds for up to or about the first of February, 1911, and that there was issued up to the said date and deeds delivered for twenty-six hundred and three (2,603) lots, and that the amount received by said defendant from the recipients of said deeds to and for the use of this plaintiff was the sum of eight thousand nine hundred and eighty dollars and thirty-five cents ($8,980.35), all of which money was paid by the inhabitants and occupants of lands and lots as aforesaid, and by each and every thereof freely and voluntarily for the purposes aforesaid, upon the delivery of the deeds to the respective lot claimants." It is further alleged that in February, 1910, defendant paid plaintiff $1,000, but has refused to surrender to him the remaining $7,980.35. According to the allegations of the complaint, plaintiff is an attorney at law, admitted to practice in all the courts of Nevada. In April, 1905, the people constituting the inhabitants of Goldfield, Nev., and occupants of public lands embraced within the said town of Goldfield and South Goldfield, assembled in public meeting and organized the "Squatters' Association of Goldfield, Nevada," for the purpose of procuring and defending an application for the public lands so occupied by them as a town site under sections 2387, 2388, After unsuccessfully demurring to the comand 2389 of the United States Revised Stat-plaint, defendant answered, admitting many utes (Comp. St. 1916, §§ 4791-4793), and for of the allegations of the complaint, and althe purpose of contesting certain alleged min- leging that, after apportionment to each lot eral claims purporting to cover some of said of $3.45, defendant, as trustee, assessed that lands. By law the judge of the district court sum against each of the lots, together with of Esmeralda county was constituted trustee all other costs and charges in connection with for the inhabitants of the town and occupants the execution of his trust, believing he had of the public lands for the purpose of mak-power so to do under section 7 of an act of ing such application. He made and filed a the Legislature of Nevada (Comp. Laws, § certain amended application (which had been 345) prescribing rules and regulations for the prepared by plaintiff) for the entry of the execution of a trust arising under an act of lands embraced within Goldfield and South Congress (Act March 2, 1867, c. 177, 14 Stat. Goldfield, naming respondent in such appli- 541) entitled "An act for the relief of the cation as his attorney. About the month of inhabitants of cities and towns upon the May, 1907, the said "Squatters' Association," public lands, approved March second, eightin mass meeting assembled, by unanimous een hundred and sixty-seven." In delivering vote, authorized a committee then and there deeds to the claimants, defendant, as he al |