* The Code of Civil Procedure, in defining 'personal injury,' includes under that head libel, slander, 'or other actionable injury to the person.' Section 3343, subd. 9." The court did not err in charging the jury that if they should find from the evidence that the conduct of defendant was attended by circumstances of malice or insult, or showed a wanton and reckless disregard of plaintiff's rights and feelings, then they might, in addition to the actual damages sustained by her, also award her reasonable exemplary damages. The charge, as a whole, fairly presented the issue and the law applicable to the matters in controversy, as disclosed by the evidence. Considering the nature of the evidence, the jury could not have been misled by the instructions as given.

10. The damages were not excessive. Indeed, in one view, they were scarcely more than compensatory. Plaintiff testified that her husband transferred stocks and bonds to his mother, before leaving for the west, of the value of about $25,000. Defendant would not testify positively that these bonds were not of the value of $19,000 or $20,000, but said she did not think they were of that value; that her son owed her $8,000 or $10,000; and that the residue of the property was transferred to her for "safe-keeping." These figures were not controlling as a basis for the verdict, though they were proper to be taken into consideration. In cases of this kind no absolute rule as to the measure of damages can be laid down, and where the right of recovery is clear the court will not disturb a verdict on the ground that it is too much or too little, unless it is grossly disproportionate to the rights of the parties, as shown by the evidence. Wood's Mayne, Dam. §§ 795-798. The remaining assignments of error require no discussion. The verdict cannot properly be disturbed by an appellate court, and the judgment of the district court is accordingly affirmed. Affirmed.

On Rehearing.

1. It is urged for the first time upon this application for a rehearing that exemplary damages are not recoverable in this action, because not specially declared for. The argument is that in this state, since the decision of Murphy v. Hobbs, 7 Colo. 541, 5 Pac. 119, exemplary damages are not allowable except upon statutory authority, and

equal to twice or three times the actual damages, as in case of waste, or wrongful levy upon exempt property, the better practice is to declare specially upon the statute for the statutory damages. In such case the value of the property furnishes a definite standard by which the damages may be measured. But where the damages claimed are essentially unliquidated, as in case of injury to the character, rights, or feelings of another, and the statute does not specify any definite limit to the exemplary damages allowable, except that they be reasonable, the common-law practice may be followed in declaring for and awarding such damages. Thus tested the complaint states facts sufficient in substance to support a verdict for exemplary damages. Moreover, while the complaint does not contain the precise statutory words upon which exemplary damages are allowable, it does contain words of like import. Race v. Oldridge, 90 Ill. 250; Reed v. Northfield, 13 Pick. 94; Day v. Woodworth, 13 How. 369; Wymond v. Amsbury, 2 Colo. 213; Hallack v. Stockdale, 14 Colo. 198, 23 Pac. 340.

2. It is further urged that the trial court refused to give to the jury the following instruction: "The court instructs the jury that the plaintiff must prove her entire case by legal evidence, and that the admissions of her husband, made to her and testified to by her, they will entirely disregard in considering their verdict." This request to charge was contrary to the law applicable to the issues and the evidence, as ruled at the trial. See former opinion. If defendant desired a written instruction in accordance with the oral ruling of the trial court, specifying the purpose for which the husband's declarations to his wife were competent as evidence, such instruction should have been requested at the proper time. We cannot accede to the view that it is necessarily erroneous for a trial court to omit to charge upon every point of a case, or to omit to give a correct instruction of its own motion upon every point upon which an incorrect instruction is prayed. Few trial records could stand such a test. It is true the Code provides that "the court shall give such instructions upon the law to the jury as may be necessary;" but it is evident that this was not intended to supersede the diligence of parties or their counsel, since the same section also provides the manner in which parties shall prepare such special instructions as they may desire to have given. Code, 187. In the present case it is evident the jury understood the purpose for which the declarations of the husband were admitted, and that no special instruction upon that point was really necessary.

3. It is earnestly insisted that this is not a case where a verdict should be upheld upon the evidence notwithstanding an erroneous

instruction; and in this case it is again urged that it was inconsistent for the wife to commence suit against the mother-in-law, charging her with causing the husband's abandonment and desertion, and at the same time to commence a suit against the husband, charging him with cruelty. This argument has but little force. The evidence shows the mother to have been grossly in fault for causing her son to abandon and forsake his wife, but this misconduct did not necessarily excuse the son for yielding to his mother's dic tation. The divorce case was reviewed by the court of appeals. See Williams v. Williams, 1 Colo. App. 284, 28 Pac. 726, where Mr. Justice Bissell, speaking of the identical transactions involved in this case, uses the following language: "It would be an idle thing to detail what took place after his mother, Mrs. Williams, arrived in Denver. It was a cruel, bitter, unholy persecution. A weak, vacillating, purposeless son was controlled by a dominating woman, to the end that the tie which bound him might be severed." These remarks of the learned judge were not called to our attention until our former opinion was announced, but they fully confirm the view we then expressed. Upon further consideration of the evidence and circumstances of the case, we feel constrained to say that the jury were bound, under the evidence, to find a verdict in favor of plaintiff. Moreover, the evidence, without substantial conflict, shows defendant's conduct to have been, not only grossly unjustifiable, but willfully and intentionally so. It certainly shows on the part of defendant a wanton and reckless disregard of plaintiff's rights and feelings, and thus fully establishes the foundation for exemplary damages under the statute. See French v. Deane, 19 Colo., 36 Pac. 611. The verdict is obviously correct, and though the instruction complained of is erroneous, as an abstract proposition of law, it should not, as was said in our former opinion, work a reversal of the judgment.

The remaining matters urged in favor of a rehearing require no discussion. The petition must be denied. Rehearing denied.

lots as a suitable site for a courthouse, which have been declared by them as necessary for that purpose, requests the owner to submit to them a proposition in writing stating his price therefor, and such owner informs the commissioners in writing that he "will accept for the property $16,500," which is an excessive and extortionate price, and the commissioners determine the price demanded is unsatisfactory and unreasonable, they may proceed, under the provisions of chapter 110, Sess. Laws 1889, to obtain the condemnation of such lots.

3. Chapter 110, Sess. Laws 1889, authorizes the condemnation of a suitable site for a courthouse, and also authorizes the condemnation of additional ground necessary for the This protection of such a public building. statute is ample authority to authorize the condemnation of ground for a part of such a site. The power to condemn ground for a suitable site includes the power to condemn ground for a part of a site where the county is the owner of lots or ground which, added to the lots or ground to be condemned, will make a suitable site for a courthouse.

4. Under the superior or sovereign power of eminent domain, a homestead occupied by a family as a residence may be taken and appropriated for public use without the consent of the owner, if full compensation is paid.

5. Private property taken and appropriated as a suitable site, or a part of a site, for a courthouse, under the provisions of chapter 110, Sess. Laws 1889, is taken for public use.

6. Where a county owns six lots, which the county commissioners propose to use as a site, or a part of a site, for a courthouse, and they determine that additional ground, adjoining thereto, consisting of three lots, is necessary to make such site a suitable one for a courthouse, and the judge of the district court, to whom an application is presented for the appointment of appraisers to condemn such lots or additional ground, also determines that the lots are necessary for a suitable site for a courthouse, and subsequently, in an action, the district court, upon a re-examination of all of the proceedings for condemnation, decides that the necessity existed for the condemnation of the lots for a suitable site for a courthouse, held, that this court, in reviewing the latter action, will not interfere by declaring that no such necessity existed.

(Syllabus by the Court.)

Error from district court, Shawnee county. Action by Carl Jockheck and Helena Schafer against the board of county commissioners of Shawnee county, Kan., and F. L. Stevenson, for an injunction. There was an order denying a temporary injunction, and a judgment for defendants, and plaintiffs bring error. Affirmed.

"In 1868, one J. A. Schafer became the owner of lots 127, 129, and 131 Van Buren street, in the city of Topeka, Shawnee county, and occupied and used the same with his family as a homestead from the time he purchased said lots until the time of his death, which took place in 1872. That the said J. A. Schafer died intestate, leaving Rosa Schafer, his widow, and Helena Schafer, his daughter, who was then less than one year old, as his only heirs at law. That Rosa Schafer and her said daughter continued to occupy said lots as their homestead until 1874, at which time Rosa Schafer married Carl Jockheck, one of the plaintiffs in this case, and that Carl Jockheck and Rosa Jockheck, his

wife, and said Helena Schafer, his stepdaughter, continued to occupy said premises as their homestead from that time continuously until the death of the said Rosa Jockheck, in 1887. Said Rosa Jockheck died intestate, leaving as her only heirs at law said Carl Jockheck, her husband, and said Helena Schafer, her daughter, who continued to occupy said premises as their only residence from that time to the present, and are still so occupying said premises, together with a servant girl who has been living with them for the ten years last past. That on the 11th day of May, 1894, the board of county commissioners of Shawnee county, in writing, requested the said Carl Jockheck and Helena Schafer to state to the board what they would take for said lots, a copy of which is hereto attached, marked 'A.' That on the 21st day of May, 1894, said Carl Jockheck and Helena Schafer, in response to said request, said that they would take the sum of $16,500 for said lots, and submitted said proposition in writing, a copy of which is hereto attached, marked 'B.' That said board did not inform said Carl Jockheck and Helena Schafer whether they would accept said proposition or not; nor did said board, or any one for them, have any further communication with said Carl Jockheck and Helena Schafer with regard to the purchase of said lots; nor was there any other offer of any kind whatever made by said board to said Carl Jockheck and Helena Schafer for said lots; nor did said board inform said Carl Jockheck and Helena Schafer that it deemed the price put on said lots as unreasonable or unsatisfactory; nor was there any other or further effort of any kind or charac ter made to purchase said lots; but said board placed an order on its record of proceedings on the 22d day of May, the day after said price was submitted to them, in the absence of these plaintiffs, and of which they had no knowledge whatever, except as they learned of such proceedings in the daily papers, a copy of which order is hereto attached, marked 'C.' That, on the 23d day of May, the said board made an application to the judge of the district court for the appointment of appraisers to condemn said lots. The petition and the order appointing said appraisers, the order of the court, and the report of appraisers are copied in full and set forth in the petition. That these plaintiffs had no knowledge of said application or order until after the same had been obtained. That said appraisers so appointed made their report on the 26th day of May, which was filed on said day, a copy of which report is fully set forth in the petition in this action. That on the 6th day of June, 1894, the amount of money assessed by said appraisers was deposited by said board with the county treasurer of Shawnee county, for the use and benefit of Carl Jockheck and Helena Schafer. That on the day of June, 1894, said Carl Jockheck and Helena

Schafer filed their appeal bond, and took an appeal from the award of said appraisers; and that afterwards, and before the commencement of this suit, to wit, on the 11th day of June, 1894, said appeal was by them dismissed, and at the time of the commencement of this suit no appeal was pending. That the county of Shawnee owned ground for a courthouse site which had been purchased in September, 1884. That said site consisted of six lots, being a piece of ground 150 feet square. That there were other sites

in the city of Topeka suitable for courthouse purposes which could have been obtained by purchase or otherwise, but which the board made no effort whatever to obtain. That said board never sought or inquired with reference to any other site than the one they proceeded to condemn, and which joined the site they already owned. That said board, on the 20th day of September, 1893, provided for submitting a proposition for plans, etc., for a courthouse, a copy of its record of which matter, marked 'Exhibit A,' is hereto attached. That on the 3d day of October, 1893, said board made an order, a copy of which, marked 'Exhibit B,' is hereto attached. That on the 4th day of January, 1894, the said board entered into a contract to build said courthouse with the defendant F. L. Stevenson. That the dimension of said proposed courthouse is 173 by 93 feet, which includes porticos, steps, and approaches. copy of said contract is hereto attached, marked Exhibit C,' and is made a part hereof. That said contractor, by virtue of his contract with said board, was about to take possession of the plaintiffs' said property against their consent, at the time this action was commenced. The proposed courthouse is intended to be built partly on the six lots already owned by the county, and partly on the lots in controversy, which were in fact condemned as a part of a courthouse site."

A

The foregoing and the six exhibits hereto attached are the agreed facts herein. The Exhibits A, B, and C are as follows: "A.

"Topeka, Kansas, May 11th, 1894. Carl Jockheck, Esq., and Others, Owners of Lots Numbered 127, 129, 131, Van Buren Street, Topeka, Kansas: By action of the board had October 3, 1893, and recorded at page 335 of Journal D, the board found that, in the erection of a new courthouse, it would become necessary for the county to obtain title to lots numbered 127, 129, and 131, Van Buren street, city of Topeka, as additional ground on which to erect said courthouse. The board of county commissioners, there fore, acting for the county, respectfully ask that you submit to the board a proposition. in writing, stating the price at which you will convey same to the county by full, unincumbered, in fee absolute; the payment to be made in cash, on presentation of deed accompanied by usual abstract, with certificate of county attorney as to sufficiency of con

veyance and character of title. By order of the board. J. Lee Knight, Chairman. At.test: C. T. McCabe [Seal], County Clerk." "B.

"Topeka, Kansas, May 21, '94. To the Honorable Board of County Commissioners of Shawnee County, Kansas-Gentlemen: Your communication of the 11th inst., in which you inform us that, in the erection of a new courthouse, it will become necessary for the county to obtain title to lots numbered 127, 129, and 131 on Van Buren street, city of Topeka, etc., has been received; and, in answer to your request that we submit to your honorable board a proposition, in writing, stating the price at which we will convey the same to the county by full, unincumbered title, in fee absolute, payments to be made in cash, and deed accompanied by usual abstract, with certificate of county attorney as to the sufficiency of conveyance and character of title, we respectfully reply, stating that, in view of the improvements upon said property, the value of other property adjacent, and all the circumstances attending the location, we will take as compensation for said property the sum of sixteen thousand five hundred ($16,500.00) dollars, upon the terms indicated in your letter of inquiry. Very respectfully, yours, Helena Schafer. Carl Jockheck." "C.

"Proceedings of May 22d. Courthouse Site. Now comes on for hearing the proposition of Helena Schafer and Carl Jockheck to sell to the county lots numbered one hundred and twenty-seven (127), one hundred and twentynine (129), and one hundred and thirty-one (131) on Van Buren street, city of Topeka, as additional ground for the courthouse site, for sixteen thousand five hundred ($16,500.00) dollars; and, it appearing to the board that Euch sum of sixteen thousand five hundred ($16,500.00) dollars is an unreasonable and unsatisfactory price for said lots, it is by the board ordered that such proposition of said Helena Schafer and Carl Jockheck be, and the same is hereby, rejected. It is further ordered that the county attorney be ordered to commence a suit to condemn said lots under section sixteen hundred and thirty-nine (1639), Gen. Stat. of 1889, in district court, Shawnee county."

The other exhibits are omitted.

This action was commenced in the court below on the 11th day of June, 1894, to restrain and forever enjoin the board of commissioners of the county of Shawnee and F. L. Stevenson, their agents, servants, and employés, from taking possession of the land heretofore described, or in any way interfering with the plaintiffs' use or occupancy of the same; and, also, that the said defendants, upon the final hearing of said action, be forever barred from setting up any right, title, or claim to the property, and that they pay all costs. Upon the 22d day of June, 1894, the motion of plaintiffs for a prelim

inary injunction against the defendants, as prayed for, was heard and determined upon the petition and the agreed statement of facts signed by the parties. After argument and full consideration thereof, the court found in favor of the defendants, and against the plaintiffs, and refused the temporary injunction. Thereupon the plaintiffs announced in open court that they elected to stand upon their petition and the facts as agreed to as upon final trial, and gave notice of appeal. The court then rendered judgment in favor of the defendants, and against the plaintiffs, for costs. The plaintiffs excepted to the rulings and decision of the court in denying their motion for temporary injunction, and also in giving judgment in favor of the defendants against themselves. The plaintiffs bring the case here.

Vance & Campbell and W. C. Webb, for plaintiffs in error. H. C. Safford, for defendants in error.

HORTON, C. J. (after stating the facts). Section 1, c. 110, Sess. Laws 1889, provides "that when the board of county commissioners of any county in this state cannot, by purchase or otherwise, obtain a suitable site for a court house, jail, or other county building, or obtain additional ground necessary for the protection of any court house, or other county building at a reasonable or satisfactory price, said board of county commissioners may apply to the judge of the district court of the district in which the county is situated, asking for the condemnation of such site or additional ground to such site, describing the same." Gen. St. 1889, pars. 1639-1642. On May 11, 1894, the county commissioners of Shawnee county notified, in writing, Carl Jockheck and Helena Schafer, the plaintiffs, "that, in the erection of a new courthouse, it would be necessary for the county to obtain title to lots one hundred and twenty-seven, one hundred and twenty-nine, and one hundred and thirty-one on Van Buren street, in the city of Topeka, as additional ground upon which to erect the same," and requested "that they submit to the board a proposition, in writing, stating what price they would convey the same to the county in fee absolute." On May 11, 1894, the plaintiffs informed the county commissioners, in writing, that they would accept for the property $16,500. At a meeting of the county commissioners, on May 22, 1894, it was determined that the price demanded for the lots "was unsatisfactory and unreasonable." After the county commissioners could not obtain, by purchase or otherwise, the lots belonging to the plaintiffs as a part of the site for the courthouse, proceedings were had under the provisions of the statute for their condemnation. Laws 1889, c. 110; Gen. St. 1889, pars. 16391642. On the 6th of June, 1894, the amount of the award made by the appraisers was

Sess.

deposited with the county treasurer for the owners of the lots. The county commissioners then attempted to take possession of the lots, and this action was instituted on the 11th day of June, 1894, to prevent them from taking possession or in any way interfering with the plaintiff's' use and occupancy of the

same.

1. It appears from the record that the plaintiffs, within 10 days from the filing of the report of the appraisers, appealed from the award, as permitted by the provisions of the statute. This appeal was taken after the plaintiffs had knowledge of all of the proceedings of the county commissioners in condemning the lots. The appeal enabled the plaintiffs merely to litigate the question as to the amount of damages which they should recover, and nothing else. It did not and could not disturb the condemnation of the lots. Railroad Co. v. Martin, 29 Kan. 750. After the appeal was perfected, the plain- | tiffs, before commencing this action, dismissed the same. It is doubtful whether the plaintiffs, having fully recognized all of the proceedings of condemnation by their appeal to determine the amount of damages for the taking of the lots, can now be heard to question such proceedings. This, however, we need not decide. If, after having chosen to appeal, they had continued to pursue that remedy, it is clear they could not have instituted this action. Reisner v. Strong, 24 Kan. 410. Clearly, all irregularities, if any, In the proceedings of the condemnation, have been waived. The only important question for our consideration is whether the county commissioners had authority under the statute to condemn the lots as a site for the courthouse, or as additional ground to such site.

2. It is clearly apparent from the record that the county commissioners could not obtain the lots, by purchase, or otherwise, at a reasonable or satisfactory price. The plaintiffs demanded for the same $16,500. The appraisers allowed $9,000. The appeal from the award of the appraisers having been dismissed, it must be assumed that the award allowed full compensation for the lots. The price, therefore, demanded by the plaintifs, was not only excessive, but extortionate. If the statute authorizes, as we think it does, the condemnation of any lots for a site, or a part of a site, for a courthouse, then, upon the record before us, proper proceedings were taken by the county commissioners for the condemnation of the lots in dispute.

It appears that prior to September, 1893, the county of Shawnee was the owner of lots 133, 135, 137, 139, 141, and 143, on the northwest corner of Fifth and Van Buren streets, opposite the county jail, and that the lots, with additional ground, were a suitable site for the courthouse. On the 20th of September, 1893, the county commissioners, having under consideration the advisability of submitting a proposition to the voters of Shawnee county to build a new courthouse, ordered, for the information of the public, plans to be made and printed for distribution throughout the county, with estimates for the cost of a courthouse to be constructed upon the northwest corner of Fifth street and Van Buren strect, on the lots owned by the county, together with additional ground adjoining thereto, to be obtained, if necessary, through condemnation proceedings. On the 3d of October, 1893, the board determined that three lots, or 75 feet, fronting on Van Buren street, adjoining the lots owned by the county, were necessary in connection with the other lots for a suitable site for the courthouse. These lots, so fronting on Van Buren street, were the lots 127, 129, and 131 referred to in the petition. Subsequently, upon application made to the judge of the district court of Shawnee county, three disinterested freeholders were appointed to appraise and condemn these lots as the site, or as a part of the site, for the courthouse. The statute authorizing the condemnation of ground for a suitable site for a courthouse is ample authority to condemn ground for a part of a site. The greater includes the less. The statute not only gives authority to condemn a suitable site for a courthouse, but also adds that additional ground necessary for the protection of a courthouse may be condemned. Evidently, the statute intended that after a site had been selected, if a courthouse was erected, or was being erected, and additional ground was necessary for the protection thereof, which could not be obtained, by purchase or otherwise, at a reasonable and satisfactory price, then the additional ground could be condemned. In this case the county owned several lots. It was not of sufficient extent for a suitable site for a courthouse. Other lots or ground were needed to make the site suitable. Because the county owns a part of a site which, with additional ground, may become a suitable site, it is not thereby pre vented from obtaining, under proceedings of condemnation, other lots or ground to complete the site. Such a construction of the statute would necessarily defeat its purpose in some cases.

4. It is next insisted that the lots in dispute constitute the homestead of the plaintiffs, being occupied by them as a residence; and; therefore, that they are exempt from being taken or condemned, under the provi sions of said chapter 110. Judge Cooley defines the power of eminent domain as