v. State, 22 Kan. 1, 15, 16. Moreover, the object of the injunction action is not to exact the payment of the attorney's fee. That is merely incidental. The purpose is not punishment for a past offense, but security against its repetition. All the Justices concurring, except WEST, J., who did not sit. (84 Kan. 150) STATE v. HARGIS. (Supreme Court of Kansas. Feb. 11, 1911.) (Syllabus by the Court.) examination is not of the same character as the entry in a record. It might be more convincing or less according to circumstances, but it is not evidence of the same kind in the sense in which the term is used in defining the test of cumulative evidence. The proffered evidence was of precisely the same character, and bore upon precisely the same point, as some that was introduced at the trial by the successful parties, but it was not cumulative thereto, because it was to the contrary effect. It was not corroborative of the evidence of the prevailing parties, but contradictory. Of course, a losing party may not demand a new trial because he has dis- 1. COURTS (8 65*)-TERMS OF COURt-Duracovered a way in which to contradict his own witnesses. 29 Cyc. 899, note 52. But if he has been defeated by reason of evidence offered by the adverse party, which he has been unable to meet, and afterward discovers witnesses who are able to contradict those of his adversary, his new evidence may not be rejected as cumulative, notwithstanding evidence of the same sort, directed to the same question, was given at the trial. State v. Tyson, 56 Kan. 686, 44 Pac. 609, 29 Cyc. 909, note 82; 29 Cyc. 920, note 8; 3 Encycl. of Ev. 924. The judgment is reversed, and the cause remanded for further proceedings in accordance herewith. All the Justices concurring. (84 Kan. 177) STATE v. ROACH et al. PER CURIAM. In a petition for a rehearing attention is called to the recent case of Chantangco v. Abaroa, 218 U. S. 476, 484, 486, 31 Sup. Ct. 34, 36, 37, 54 L. Ed. 1116. There the court held an acquittal upon a criminal charge to be a bar to the recovery of damages occasioned by the same unlawful act. The decision, however, turned upon a peculiarity of the law of the Phillipine Islands, in virtue of which "a judgment of conviction was essential to an action for indemnification." After stating the substance of the local statutes, the opinion continues: "The foregoing considerations eliminate any question of the effect of such a judgment of acquittal under the principles of the common law." The petition for a rehearing also urges that the injunction action here involved is in its essential nature penal, because the statute requires an unsuccessful defendant to pay the plaintiff's attorney's fee. Granting that this requirement is justified only on the theory that a wrong to the public has been committed, the attorney's fee is not strictly and solely a penalty. It is also compensatory. See Atchison, T. & S. F. R. Co. TION. A term of the district court having been regularly convened continues until there is a final adjournment of the court sine die or the term ends by the expiration of the period fixed by the statute. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 230; Dec. Dig. § 65.*1 2. COURTS (§ 66*) - TERMS OF COURT - AD JOURNMENT-DEATH OF JUDGE-POWERS OF SUCCESSOR. of court to begin the regular district judge is Where at the time appointed for the term absent, and a pro tem. judge is duly elected and qualifies, and adjourns court to a future day of the term, and before that day arrives appointed until after the day to which the the regular judge dies, and his successor is not court was adjourned by such pro tem. judge, the term will not lapse by the death of the regular judge, and his successor may convene court at any time before the term expires by law. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 66.*] Appeal from District Court, Cloud County. William S. Hargis was convicted of an illegal sale of liquor, and appeals. Affirmed. Sturges & Sturges, for appellant. F. S. Jackson, Atty. Gen., Charles D. Shukers, and A. L. Wilmoth, for the State. PORTER, J. The defendant appeals from a judgment of conviction under the prohibitory liquor law. The principal claim of error, and indeed the only one which requires discussion, is that the court had no jurisdiction to try him for the offense charged at the time it did because the regular term of the court had lapsed or been adjourned, and the trial was not held at a regular or special term. The regular term commenced on the first Monday in April, according to section 2420 of the General Statutes of 1909. This was April 4, 1910. On that day the judge of the district court, Hon. W. T. Dillon, was absent by reason of sickness. Court convened by order of the sheriff, and C. W. Van de Mark was elected judge pro tem., and took the usual oath of office. Acting as judge pro tem., he adjourned court to April 12th. On April 7th Judge Dillon died. On April 12th the sheriff adjourned court until April 13th. On April 13th, Hon. John C. Hogin was appointed judge of the district. He qualified For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 113 P.-26 on April 14th, and on that day opened court and adjourned the same until the 16th, at which time court was again convened and this cause tried. his power to adjourn court from day to day is expressly limited to cases where the judge fails to attend at the commencement of the term, and that, in order to act at all, the The statutory provision for the election of sheriff must act within two days from the judges pro tem. is as follows: "Sec. 2394. A judge pro tem. of the district court may be selected in the following cases: First, when the judge shall be sick or absent at the commencement of the term; second, when the judge shall be sick or absent himself during or at the close of any term before all the cases pending in the court at the commencement of the term shall have been reached for trial; third, when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit: Provided, this act shall not apply to any case now pending. time the term was appointed to begin. This contention is sound. Section 6340 of the General Statutes of 1909 provides that: "If the judge of a court fail to attend at the time and place appointed for holding his court, the sheriff shall have power to adjourn the court from day to day, until the judge attend or a judge pro tem. be selected; but if the judge be not present in his court, nor a judge pro tem. be selected, within two days after the first day of the term, then the court shall stand adjourned for the term." It is the manifest purpose to limit the sheriff's authority to adjourn court to the first two days of the regular term, and he "Sec. 2395. Such selection shall be made can only act where the judge has failed to by the members of the bar present, and shall attend at the time appointed for the term be by ballot, under the direction of the judge, to begin and where a judge pro tem. has not or, in his absence, of the clerk. The parties, been selected. Union Pac. Ry. Co. v. Hand, or their attorneys, in any case, may select 7 Kan. 386. But we may entirely ignore a judge to sit in such case." Gen. St. 1909. the action of the sheriff in adjourning the The claim is made that Judge Van de court from day to day and concede that he Mark was not elected as the regular judge had no authority to act in the matter. A pro tem. because he was elected upon a mo- judge pro tem. regularly chosen under the tion that "the bar proceed to elect a judge provisions of the statute with all the power pro tem. for the purpose of considering all and authority of the regular district judge matters wherein all parties consent to the adjourned court from the first day of the trial thereof"; that, his election being for term until the 12th day of April. If, when certain special purposes only, he possessed the regular term commenced on April 4th, none of the powers of a regular judge pro the judge of the court for any reason was tem. This contention cannot be sustained. not present, the term could only lapse by He was clearly elected judge pro tem. under both the failure to elect a judge pro tem. the first clause of section 2394, supra: "First, and the omission of the sheriff to adjourn when the judge shall be sick or absent at the court from day to day. After the term the commencement of the term." Section of court regularly commenced, and was kept 2397 of the same statute provides that the alive by the election of a judge pro tem., it judge pro tem. shall take and subscribe the continued until there was an adjournment same oath as required to be taken by the sine die, or until the expiration of the term regular judge, and that the oath and a min- established by law. Union Pac. Ry. Co. v. ute of the proceedings shall be entered upon Hand, supra, was a case where a verdict the journal of the court. The judge pro was returned and entered on Saturday, the tem. in this case took and subscribed that 5th of December, and at the close of the kind of an oath. Section 2398 declares that day the court adjourned to Monday, the "the judge pro tem. shall have the same 7th, but neither on Monday, the 7th, nor power and authority as the regular judge, Tuesday, the 8th, was there any court held while holding court, and in respect to cases because the district judge was absent. On tried before him, or in which he may have both the latter days the court was adjournbeen selected to act." The expression, "while ed by the sheriff because of the absence of holding court," limits his authority to act the judge who was detained by a severe as judge to such time as the court shall be storm. It was held that the section authorin session. After the court adjourns, he no izing the sheriff to adjourn court from day longer possesses the authority of a judge to day refers only to the beginning of a term, pro tem. On the day that Judge Van de and that his action in adjourning the court Mark was elected, and, after he had taken afterwards was simply a nullity. In the and subscribed the oath as judge pro tem., opinion Chief Justice Kingman, speaking for he adjourned court until the 12th day of the court, said: "Yet we do not think that April. He had the same authority to ad- the term was lost by the adjournment of journ court that the regular district judge the court on Saturday till Monday, and its would have had, so that up to this time there not convening till Wednesday. The term of was no lapse of the term. It is contended, the court is fixed by law. Having once however, that the sheriff had no authority opened, it so continues till the term expires. tem. never having acted after the death of the regular judge. The statute fixed the time when the term should begin and end. After a term of court has legally opened, the term will continue until the final adjournment of court sine die or until the ex adjournment from day to day does not suspend its functions. After the court has adjourned for the day, it is a common practice for grand juries to continue their sessions, swear witnesses, pursue their investigations, and find bills; and petit juries frequently remain out all night in delibera-piration of the term established by law. The tion, and make up their verdicts, while the journal shows that the court has adjourned. Each of these juries is part of the court, performing important functions; and the court is always in session in fact, so that it can protect the juries and enforce proper conduct on their part. 'For all general purposes the court is considered as in session from the commencement till the close of its term.' Barrett v. State, 1 Wis. 175. * * * There is an evident purpose on the part of the courts to so construe the law, if possible, as will uphold the sessions of courts actually doing business. See Womack v. Womack, 17 Tex. 1; Cook v. Skelton, 20 Ill. 107 [71 Am. Dec. 250]; Jones v. State, 11 Ind. 357." absence of the regular judge did not prevent the term from beginning because within the first two days a pro tem. judge was duly elected. There was no adjournment sine die, and nothing to cause the term to lapse until the expiration of the time fixed by the statute. The obvious purpose of the various provisions of the statute which we have quoted was, in the language of the court in Palmer v. State, supra, "to prevent the inconvenience and mischiefs which flowed from the ancient and unreasonable notion that the absence of the judge for a single day, at any term of court, operated to discontinue all causes undisposed of and not formally continued to the next term, to discontinue the term, also, and to dissolve the court itself." At page 783 of 73 Miss., at page 157 of 20 South. Complaint is made of certain instructions given and others refused, and it is said that all through the instructions the court assumed that the transactions on the part of the defendant were sales, while defendant contended that he merely acted as the friend uor for them. The instructions given by the In State v. Bohan, 19 Kan. 28, it was held: "Where the February term of the district court was continued to the 24th of May next thereafter, and the court did not convene on the said 24th pursuant to adjournment, the court is legally open until it adjourns sine die, or expires by law." Syl. 3. Again, in State v. Palmer, 40 Kan. 474, 478, 20 Pac. 270, a pro tem. judge was selected only agent of the purchaser in procuring liqJune 4, 1888, to take charge of a certain, particular case, and the regular judge of the court left the courtroom, and was not present again until June 6th. On June 4th the pro tem. judge adjourned the court until June 6th. It was held that, even after the case placed in his charge was finally disposed of, he would still have power to adjourn the court to some other day for the hearing of other cases not disposed of, provided that at the time he acted the regular judge was not present or had not ordered otherwise. It has been frequently held that a court is open from the commencement of the term until its final adjournment sine die, or until the expiration of the term established by law. Palmer v. State, 73 Miss. 780, 20 South. 156; People v. Central City Bank, 53 Barb. (N. Y.) 412; People v. Sullivan, 115 N. Y. 185, 21 N. E. 1039; Jasper et al. v. Schlesinger, 22 Ill. App. 637; Townshend, Use of Wyman, et al. v. Chew & Summers, 31 Md. 247;. Barrett v. State, 1 Wis. 175; Labadie v. Dean, 47 Tex. 90; In re Dossett, Petitioner, 2 Okl. 369, 37 Pac. 1066; Schofield v. Horse Springs Cattle Co. (C. C.) 65 Fed. 433; 11 Cyc. 732. The recent case of Keys v. Keys, 83 Kan. 92, 109 A. contracted with B., a salt company, to Pac. 985, is not in point. The question there erect an evaporator system, 25 per cent. to be related to the power of pro tem. judge to paid down, the remainder after its installation act after the death of the regular judge. and meeting a required test, if not successful, Here the only question is whether or not cent. refunded, the apparatus to be placed on to be removed at A.'s expense and the 25 per the term of court lapsed; the judge pro foundations furnished by B., all other labor to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes The judgment is affirmed. tices concurring. (84 Kan. 86) WISE v. SUGAR APPARATUS MFG. CO. (Supreme Court of Kansas. Feb. 11, 1911.) (Syllabus by the Court.) 1. MASTER AND SERVANT (§ 88*)-INJURIES TO SERVANT-EXISTENCE OF RELATION. be furnished by B. A. was to put an expert in charge of the operation of the evaporator system until the test was successfully made. B. employed appellee to take instructions from the expert, so that he could learn how to operate the plant if accepted, and was introduced for that purpose to the expert, who for six days directed appellee what to do respecting the operation of the system, when by the bursting of a boiler therein appellee was injured. Held, that appellee was a servant of A., to whom A. owed ordinary care. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 144-152; Dec. Dig. § 88.*] 2. MASTER AND SERVANT (§ 293*)-INJURIES TO SERVANT-APPLIANCES-INSTRUCTIONS. An instruction that it was the continuing duty of A. to use ordinary care to provide appellee with a safe place in which to work and with safe machinery and appliances, and to make such inspection as a person of ordinary care would under like circumstances, upheld, although it was testified on behalf of A. that it was not customary to inspect boilers after they had been shipped by reputable manufacturers, except by pressure, as done in this case. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1148-1161; Dec. Dig. 8 293.*] 3. EVIDENCE (§ 507*)-OPINION EVIDENCECOMPETENCY OF EXPERT. A witness experienced in handling boilers was asked whether, "after having examined the door of this boiler A and the door after this accident, you can say from your knowledge and experience in the handling and using of boilers, if a man in the exercise of ordinary and reason able precaution could have told this boiler was defective in any way," to which an objection was sustained. Held, that the question did not call for expert evidence save in the slight degree furnished by the experience of witness in handling boilers, and the ruling was proper. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2310; Dec. Dig. § 507.*] 4. DAMAGES (§ 221*)-INJURIES TO SERVANT ACTION FOR INJURIES-VERDICT. Appellee, previously a workman in a mill, was by the injury in question thrown violently to the ground by the explosion and force of escaping steam, pieces of the exploded boiler head breaking the water pipes above him, thereby releasing the water upon him with great force so that he was unable to rise, was bruised upon the head, severely scalded, and was in the hospital four weeks and one day, was rendered more nervous than formerly, has burning and itching from the scald. Held that, although he testified that he was earning the same wages as before in his former employment, a finding by the jury that his injury was such as to prevent him from performing regular labor such as he performed before the injury, taken together with the general verdict in his favor, may and should be harmonized therewith. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 564; Dec. Dig. § 221.*] 5. MASTER AND SERVANT (§ 297*)-INJURIES TO SERVANT-ACTION FOR INJURIES -VERDICT. equivalent to a finding that appellant should have had such knowledge; the legal and logical difference between such actual and constructive findings being more technical than substantial. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §8 1195-1198; Dec. Dig. § 297.*] Appeal from District Court, Reno County. Action by Sherman Wise against the Sugar Apparatus Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed. Prigg & Williams, for appellant. F. L. Martin, for appellee. WEST, J. Appellant contracted with the Carey Salt Company to furnish an evaporator system for manufacturing salt, guaranteeing, among other things, that it should have a certain salt-making capacity when working with 10 pounds' pressure. The price was $23,200 f. o. b. Hutchinson, including the services of a skilled mechanic to superintend the erection of the apparatus, the foundations to be supplied by the salt company, "all other labor to be furnished by the owners" (the salt company). Twenty-five per cent. was to be paid down and 75 per cent. 30 days after the completion of a 6 days test in case such test should show a fulfillment of the guaranty, and, in case it should not so show, the salt company should be at liberty to refuse to accept the apparatus, and should have refunded the 25 per cent. paid, and the appellant should remove the apparatus at its own exnished by the salt company was the one pense. The only mention of help to be furquoted: "All other labor to be furnished by the owners." The apparatus consists in part of a system of four steam cylinders or boilers, called "effects," A, B, C, and D, into which exhaust steam from the salt company's plant was to be introduced; provision also being made for the introduction of live steam now and then when needed. These "effects" or boilers could be worked in conjunction, in part or separate, by a valve system, so that the pressure on each would be equal. The amended petition charged, in substance, that on May 29, 1908, said boilers and apparatus had been placed and installed in the salt plant for experiment and trial and demonstration; that the connection between boilers A and B was broken and out of repair, so that A could not be used, and the apparatus would have to be changed in order to operate it upon "the triple effect," and The court charged that, if the unsafe and appellee was instructed by the expert in defective condition of the casting could have charge to close a valve which permitted the been discovered by reasonably careful inspection steam to pass from A into the other boilers, and vigilance, the law charges appellant with and informed appellee that he, the expert, knowledge of such condition. The testimony showed that actual knowledge did not exist, but would open the pipe, and allow the exhaust it was sufficient to support a finding that it steam to first pass into boiler D, which could have existed by the exercise of reasonable would thus permit such steam to operate uncare. The jury found actual knowledge. The general verdict was for appellee. Held, that der B, C, and D only; that, after he had such finding may and should be construed as obeyed this instruction, the three boilers gence to which the jury's findings confine the case, it is incumbent upon us to consider only two. After telling the jury that appellant's duty was to exercise reasonable care and diligence to provide appellee with a reasonably safe place to work, and with reasonably safe tools, machinery, and appliances to work with and to exercise reasonable care and diligence to keep such tools, machinery, and appliances in a reasonably safe condition for the protection of appellee, the court added: "This duty is continuing in its nature and in its performances. It was the duty of the defendants to make such inspection of the machinery and apparatus as a reasonably prudent person ordinarily would under the cir cumstances, taking into consideration the nature of the machinery and apparatus, its conditions, and the manner of its use." (Instruction No. 6.) Instruction No. 7 was to the effect that if the boiler head was defective and unsafe by reason thereby, and the defect was known to appellant, or would have been discovered by it by reasonably careful inspection and vigilance, the law would charge appellant with knowledge of such defect. It is insisted that these instructions, taken together, go too far as to the duty of inspection in view of the fact that the evidence shows that boiler A had been tested by hydraulic and steam pressure, and shows, also, that no other kind of inspection is ever made of boilers after they are shipped by the manufacturers. But it can hardly be said that the evidence shows that no other kind of inspection ought to be made, and doubtless the court and jury had this in mind, and we regard the language used in these instructions as correct and fair. were thus operated through the night; that|ing to the circumscribed elements of negliimmediately before the injury, and eight or ten hours after the triple effect had thus been put in operation, said expert wantonly and unnecessarily opened the live steam valve, thereby permitting an "unusually dangerous and excessive" head of steam to be turned into boiler A, which was cold and disconnected; that said boiler, being constructed of cast iron, was wholly incapable of standing the pressure, and immediately "exploded and bursted," the entire south end thereof, being the end nearest appellee, blew out with great force, breaking the cast iron end into many pieces, and causing a great quantity of live steam to escape upon appellee, throwing him violently to the floor and against the wall of the building, and that the force thereof was so strong that he was unable to rise; that the explosion blew the pieces of the boiler end against the water pipes above appellee's head, bursting the same, and permitting the water to escape with great force upon him, so that he was unable to rise until the expert succeeded in turning off the steam and stopping the flow of live steam; that broken pieces of said casting struck appellee on each side of his forehead, and on top of his head, and bruised and cut his head, the steam severely scalding him and burning him on his hands, arms, head; back, and legs, permanently injuring him, damaging and shocking his entire nervous system, he suffering thereby great physical and mental pain and anguish, and becoming thereby permanently nervous, and would be unable in the future to permanently regain his health and physical strength; that appellant knew that said boilers were made of cast iron, and that such castings were likely to be defective and improperly cast, and their strength not uniform throughout, and knew that they were not intended for or capable of holding a head of live steam; that they were defective and improperly made, and insufficient for a head of live steam, all of which could have been discovered by the appellant by reasonable care. The answer was a generation from the expert who undertook to eral denial and a plea of contributory negligence. The alleged negligence in turning in the live steam was eliminated by the findings returned by the jury, the result being a finding in substance that the appellant was negligent in respect to the casting which burst; that it was imperfectly constructed, and that appellant so knew; that the casting had become weakened by repeated expansion and contraction due to heating and cooling, and that the cause of the casting exploding was turning live steam into effect A, but that it would not have exploded had it not been imperfectly constructed. A general verdict was returned in favor of appellee and against the appellant only; other parties being joined as defendants. Appellant requested certain instructions to the effect that, if appellee knew as much about the danger of the situation as the expert, he could not recover. These were properly refused, for the reason that appellee was sent to the place for the express purpose of learning all about the apparatus and its op teach him what he came there to learn, and as the expert was a man of long experience in such work, and appellee had been there only six days, we see no error or impropriety in refusing thus to instruct. An officer of the salt company testified as to his experience in handling boilers, and was asked whether, "after having examined the door of this boiler A and the door after this accident, you can say from your knowledge and experience in the handling and using of boilers, if a man in the exercise of ordinary and reasonable precaution could have told this boiler was defective in any way," to which an objection was sustained. He had testified that it was not customary to inspect boilers which came from reputable manuComplaint is made with reference to giving facturers, but the question involves two eleand refusing certain instructions, but, ow-ments of weakness. It was for the jury to |