FLAG-INSTRUCTION.

It was not error for the court to instruct the jury that the use of the language charged in the information constitutes a violation of section 3706 of the General Statutes of 1915.

(Additional Syllabus by Editorial Staff.) 6. WORDS AND PHRASES "BLACKSMITH SHOP."

A "blacksmith shop" is a place to which the people of a community resort for the purpose of having machinery and tools repaired and iron work done.

Appeal from District Court, Nemaha County.

Frederick Shumaker, Jr., was convicted of an offense against the United States flag, and he appeals. Affirmed.

Emery & Emery, of Seneca, for appellant. S. M. Brewster, Atty. Gen., and Horace M. Baldwin, of Seneca, for the State.

MARSHALL, J. The defendant appeals from a judgment of conviction on an information in part reading:

"That on the 12th day of February, 1918, in the county of Nemaha and state of Kansas, one Frederick Shumaker, Jr., did then and there, unlawfully, publically [publicly] defile, defy or cast contempt on the flag of the United States of America by then and there saying in words as follows: 'It is nobody's business.'

999

The rest of the language charged to have been used expressed a very vulgar and indecent use of the flag, and the court is of the opinion that the exact language should not find a permanent place in the reports of its decisions.

[1] 1. The defendant's first contention is that the verdict is contrary to law and is not sustained by the evidence. This contention is based on the proposition that the language used was not used in a public place.

*

The statute under which the defendant was convicted is section 3706 of the General Statutes of 1915, and in part reads: "Any person who shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt, either by words or act, upon any such flag, standard, color, or ensign [of the United States], shall be deemed guilty of a misdemeanor."

[6] The defendant was in a blacksmith shop in the town of Wetmore when he used the language for which he was convicted. A "blacksmith shop" is a place to which the people of a community resort for the purpose of having machinery and tools repaired and iron work done. It is a "public place." Cemetery Ass'n v. Joseph Meninger, 14 Kan. 312; City of Howard v. R. J. Stroud, 63 Kan. 883, 65 Pac. 249; 1 6 Words and Phrases,

1 Reported in full in the Pacific Reporter; геported as a memorandum decision without opinion in the Kansas Reports.

[2] 2. The next proposition urged is that the language used did not cast contempt on the flag. In response, it must be said that it is hard to conceive of language that would express greater contempt for the flag of the United States than that used by the defendant. Such language will not, cannot, be used by any man in any place concerning our flag, if he has proper respect for it. The man who uses such language concerning it, either in jest or in argument, does not have that respect for it that should be found in the breast of every citizen of the United States. Such language concerning our country's flag will not be used except for the purpose of casting contempt on it.

[3] 3. The state was permitted to prove that about a year previous, in February, 1917, on the day of the funeral of Gen. Funston, the defendant went into the city of Wetmore and observed the United States flags at half mast and said: "What in hell is going on? I see you got the rags on the poles." The defendant complains of the introduction of that evidence. It was competent for the purpose of proving the intent or motive with which the defendant used the language charged in the information. State v. Burns, 35 Kan. 387, 11 Pac. 161; State v. Stevens, 56 Kan. 720, 722, 44 Pac. 992; State v. Cooper, 83 Kan. 385, 111 Pac. 428; State v. Hetrick, 84 Kan. 163, 113 Pac. 383, 34 L. R. A. (N. S.) 642.

[4] 4. The defendant complains of the rejection of evidence by which he sought to establish his intent, motive, and purpose in using the language charged. An examination of the abstracts, both for the plaintiff and for the defendant, fails to disclose the evidence that was excluded. The error, if there was error, in rejecting that evidence, is not available to the defendant for the reason that the court is unable to determine whether it was admissible or inadmissible.

[5] 5. The defendant complains of the following instruction:

"If you believe from the evidence in the case beyond a reasonable doubt that the defendant, Frederick Shumaker, Jr., uttered the words, or in substance uttered the words, either by way of argument or otherwise, as charged in said information, then the court instructs you that such words so spoken constitute a violation of the section of the Crimes Act hereinbefore quoted."

What has been said concerning the effect of the language used applies here. The language itself expressed contempt for, and cast contempt on, the United States flag; and the court was justified in instructing the jury that the language used constituted a viola

tion of the statute.

The judgment is affirmed.
All the Justices concurring.

(103 Kan. 668)

The damage occurred on November 3, 1914,

(No. 21548.)

(Supreme Court of Kansas. Nov. 9, 1918.)

(Syllabus by the Court.) 1. CARRIERS 218(1) LIVE STOCK SHIPMENTS-INJURY TO SHIPPER-RIGHT OF Ac

TION.

Under the terms of a live stock contract with the railway company, the plaintiff shipped a load of cattle, traveling with his shipment as caretaker, without charge other than that paid for the transportation of the cattle, and while on the journey he sustained injuries through the negligent operation of the defendant's train. A provision of the contract was that no action should be maintained by him against the defendant for the recovery of any damage accruing or arising out of the contract of shipment, unless it was brought within six months after the occurrence of the loss or damage. In an action brought under the contract, more than six months after the injury, to recover the damages sustained by him, it is held that the stipulation is valid and enforceable, and that it applies to actions to recover for injuries to the shipper, as well as actions to recover for injury to the stock shipped.

2. CONTRACTS 137(2) LIVE STOCK SHIPMENT-INVALIDATING PROVISION.

The fact that there was included in the contract a nonenforceable provision releasing the defendant from its own negligence did not destroy the entire contract, nor invalidate a provision relating to the time within which actions must be brought upon the contract,

Appeal from District Court, Reno County. Action by P. B. Achen against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff ap

peals. Affirmed.

F. L. Martin, Van. M. Martin, and John M. Martin, all of Hutchinson, and G. W. Sawyer, of Liberal, for appellant.

24, 1916. Among the defenses pleaded by the defendant was a stipulated release from liability for injury or damage while riding upon what is termed free transportation. Another defense was the failure of the plaintiff to bring his action within six months after the injury and loss. In his reply plaintiff alleged, as an excuse for the delay in bringing the action, that negotiations had been

conducted between him and the defendant, which had not been terminated at the end of the six months period, and further that the defendant had obtained possession of the shipping contract and had refused to surhad waived the provision as to the time withrender it, and that thereby the defendant in which a suit must be brought. The court sustained a notion of defendant asking for judgment on the pleadings.

Complaint is made by the plaintiff of a preliminary ruling refusing to strike out the defense based on the stipulation releasing the defendant from liability for any personal injury that he might sustain. He contends, and cites authorities to show, that on the journey he should be regarded as a passenger for hire, and that a provision releasing the carrier from liability for its negligence is invalid. The contentions of the plaintiff in this respect may all be granted, and still it would not overthrow the judgment that was rendered. The other defense, that the action was not brought within the stipulated time, appears to be conclusive, and the ruling refusing to strike the first defense mentioned, however erroneous, is no longer material. [1, 2] Stipulations limiting the time within which actions may be brought to recover dam

JOHNSTON, C. J. This was an action by P. B. Achen to recover for injuries sustained by him while riding in the caboose of a stock train of the defendant upon a journey from

Elkhart, Kan., to Kansas City, Mo.

It is alleged by plaintiff that through the negligent handling of the train he was thrown from a seat in such a way as to severely injure him. It appears that he was a dealer in cattle and was traveling upon the

train on which the cattle were shipped as a

caretaker. The shipment was made under an ordinary live stock contract, which permitted him to accompany and care for the stock without other charge than the cost of transportation under the contract. Among other things the contract provided that:

"No suit or action against the company for the recovery of any damages accruing or arising out of said shipment or of any contract pertaining to the same * * shall be sustained in any court of law or equity unless such suit shall be commenced within six months next after the loss or damage shall have occurred," etc.

Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600. It has been repeatedly held not only that such a stipulation is reasonable and valid, but it has also been held to apply to actions for injuries of a shipper traveling upon the shipping contract in charge of cattle, as well

as to actions for injuries to the cattle shipped. Koster v. Railway Co., 95 Kan. 109, 147 Pac. 798; Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629. The fact that the provision of the contract regarding the stipulation that the defendant should be released from liability for its own negligence is void does not destroy the entire contract, nor intion for damages must be commenced. The contract is a divisible one, and its valid provisions are enforceable. Miller v. Railway Co., 97 Kan. 782, 156 Pac. 780. Plaintiff set up a claim of waiver of limitation by the defendant, but it has been decided that stipulations of this kind may not be waived by a carrier. Easdale v. Railway Co., 100 Kan. 305, 164 Pac. 164. The same rule has been applied as to a stipulation requiring written

validate the limitation within which the ac

women. She appeals from the portion of the sentence assessing the fine.

The plaintiff has not overlooked the authorities cited, but he contends that a distinction should be made between a case brought for an injury to live stock and one for injury to the shipper. It may be conceded that plaintiff was not a free, but a paying passenger, and that the rate charged for the shipment was intended to include the fare of the plaintiff. He was carried under the shipping contract, and his presence on the train as a caretaker, as well as his fare, were important parts of the contract. Having availed himself of the benefits of the contract to ride on the train, he cannot well avoid compliance with valid conditions in it requiring the bringing of actions for injuries within a prescribed and reasonable time. No room is found for the distinction which plaintiff would make, but, on the contrary, it has been determined, as we have seen, that the limitation applies alike to all actions brought in pursuance of the contract. Barber v. Railway Co., 86 Kan. 277, 120 Pac. 359; Koster v. Railway Co., supra; Enright v. Railway Co., supra.

The judgment is affirmed.
All the Justices concurring.

(Syllabus by the Court.) CRIMINAL LAW 1206(4) — FINES-ESTABLISHMENT OF STATE INDUSTRIAL FARM. The act establishing a state industrial farm, and providing for detention there of females above the age of 18 years, convicted of criminal offenses (Laws 1917, c. 298), does not forbid the assessment of a fine, when the statutory penalty for the offense embraces fine as well as detention.

Appeal from District Court, Montgomery County.

Josie Dunkerton was convicted of a violation of the prohibitory liquor law, and from the portion of the sentence assessing a fine she appeals. Affirmed.

Charles Bucher and Dallas W. Knapp, both of Coffeyville, for appellant.

S. M. Brewster, Atty. Gen., and Thurman Hill, of Independence, for the State.

BURCH, J. The defendant was convicted of violating the prohibitory liquor law. She was sentenced to pay a fine and to be com

The fine was assessed pursuant to section 1, chapter 215, Laws of 1917, commonly known as the Bone Dry Law. The ground of the appeal is that, as to the defendant, the provision for fine was repealed by an act, passed later in the same legislative session (chapter 298), establishing a state industrial farm, and providing for detention there of females above the age of 18 years convicted of criminal offenses.

Section 23 of chapter 298, the repealing section, reads, as follows:

"All laws and parts of laws relating to the of females over the age of eighteen in conflict management, control, sentence and imprisonment with this act are hereby repealed."

This section of itself repealed nothing, and the substantive provisions of the act must be examined to determine how far they are inconsistent with other statutes. The title of the act reads as follows:

"An act establishing an institution for the detention and care of women convicted of criminal offenses, providing for the government of the same, and making appropriation therefor."

All the provisions of the act are strictly relevant to the subject thus expressed. Section 5 relates to sentence on conviction of an offense punishable by imprisonment, and is confined strictly to detention. Nothing else in the act affords the slighest intimalimited to detention, and the court concludes tion that punishment for crime shall be the Legislature intended to do no more than discontinue imprisonment in the county jail and in the penitentiary, and substitute restraint at the state industrial farm.

The provisions for the release of women committed to the state industrial farm appear to be such as to forbid detention for the payment of fines and costs; but they do not forbid the assessment of fines and costs according to the penal laws denouncing them.

The judgment of the district court is affirmed. All the Justices concurring.

tion of confidence within the meaning of the statute. But one witness testified that Mr. Sutcliffe stated that he had been looking after Mrs. Tyler's business affairs since her husband's death, and that the witness himself was in business with Mr. Sutcliffe two or three years, and knew that Sutcliffe was taking care of her business for her. Another heard her say that Mr. Sutcliffe had everything, had all her papers, and was doing her business, and that he told her, if she did not have mortgages recorded, it would save paying taxes on them. Mr. Sutcliffe himself testified that he had been transacting business for Mr. Tyler before his death, and thereafter for Mrs. Tyler, who had five mortgages and two certificates of deposit and a house and some lots. This was enough to sustain the finding as to the confidential relation. Neither was there material error in the instruction on this point.

There was testimony fairly indicating that the will was read aloud in her presence before signing, but as to this no finding was requested. As to whether she knew its contents the answer was, "Insufficient evidence," which means that the jury were not able to find that she knew its contents.

The entire estate, save six $10 bequests, was given to her business adviser by the will which he drew, appointing himself sole executor without bond or inventory. There was testimony that she had stated that she and her husband wanted him to have the property, but the relationship he bore to her in a business way and her mental incapacity were so disclosed as to result in the findings returned, which were properly supported and must stand.

WEST, J. The plaintiff sued the defendant, Nate Smith, to recover a part of the reward offered for the arrest and conviction of the murderers of one M. C. Murphy. The plaintiff prevailed, but the court set aside the verdict, on the ground that the findings showed the contract sued on to be against public policy. The plaintiff appeals, and assigns The dethis ruling as the principal error. fendant also appeals, and complains of the court's refusal to sustain his demurrer to the plaintiff's evidence.

During the time covered by the transactions involved herein Bert Ziegenfuss was deputy sheriff of Montgomery county. It was alleged in substance:

(Syllabus by the Court.)

1. CONTRACTS 137(1) REWARDS

-RECOVERY-VALIDITY.

secured, and the five met together at different times and places, talking over various plans and schemes for locating the murderers and securing their arrest and conviction.

"That during one of the meetings held by the above-named parties, Nate Smith, H. H. Shaw, H. Wiley, and Bert Ziegenfuss, and the plaintiff, * * the matter of reward was discussed, and Nate Smith made the following proposal: 'No matter which one of us catches the murderers, the reward ought to be divided equally. To this proposal the plaintiff, H. H. Shaw, H. Wiley, and Bert Ziegenfuss each orally assented."

Also that a few days later Ziegenfuss again orally assented to the same proposition. That several weeks were spent in the effort, with the result that the murderers were arrested and convicted. That Thacker, Shaw, and Wiley permitted Smith to collect $750 as rewards. That Smith paid the plaintiff $100 as his share, and Shaw and Wiley $50 each upon their shares. That Smith still owed $50 to Thacker, who had the assignments of Shaw and Wiley of their claims of $100 each against Smith, making $250, for which he asked judgment. The jury found:

That Ziegenfuss agreed to the terms of the alleged arrangement and was at all times thereafter, up to and including the conviction, deputy sheriff of Montgomery county. That Smith