V.

Stat. 1913, § 8612, subdiv. 3, defining man- act from which death resulted, in itself, slaughter in the second degree as homicide be sufficient to make him guilty of mancommitted without design to effect death, slaughter. "by any act, procurement, or culpable negligence" not constituting a higher crime, where he has exhibited gross incompetency or inattention, or wanton indifference to his patient's safety. Indictment

homicide

negligence

Whart. Homicide, 681; Fitzgerald State, 112 Ala. 34, 20 So. 966; Thomas v. People, 2 Colo. App. 513, 31 Pac. 349; Caywood v. Com. 7 Ky. L. Rep. 224; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391; State v. McDonald, 105 Minn. 251, 117 N. W. 482; State v. McIntyre, 19 Minn. 93, Gil. 65.

Evidence that the patient was burned will not justify the finding that the defendant is guilty of this offense, or at fault in permitting the burn to occur.

Frisk v. Cannon, 110 Minn. 438, 28 L.R.A. (N.S.) 262, 126 N. W. 67; Coombs v. King, 107 Me. 376, 78 Atl. 468, Ann. Cas. 1912C, 1121, 3 N. C. C. A. 167; Sweeney v. Erving, 35 App. D. C. 57, 43 L.R.A. (N.S.) 734, 228 U. S. 233, 57 L. ed. 815, 33 Sup. Ct. Rep. 416, Ann. Cas. 1914D,

905.

Messrs. Lyndon A. Smith, Attorney General, and John C. Nethaway, Assistant Attorney General, for the State:

The operation was not carried on for medical purposes, but for defendant's personal purposes.

Henslin v. Wheaton, 91 Minn. 219, 64 L.R.A. 126, 103 Am. St. Rep. 504, 97 N. W. 882, 1 Ann. Cas. 19, 15 Am. Neg. Rep. 352.

An indictment should be held sufficient if it fairly advises the defendant of the charges made against him.

State v. Staples, 126 Minn. 396, 148 N. W. 283.

Defendant was guilty of gross and culpable negligence.

Frisk v. Cannon, 110 Minn. 438, 28 L.R.A. (N.S.) 262, 126 N. W. 67.

Mr. Hugh E. Leach also for the State.

Philip E. Brown, J., delivered the opin

The facts are stated in the opinion. Messrs. George L. Treat and Durment, Moore, & Oppenheimer, for defendant: The mere fact that the act complained of resulted in death is not sufficient to make the defendant guilty of man-ion of the court: slaughter; nor would the fact (if true) that he was negligent in committing the trical or X-ray treatment will be found in notes in 28 L.R.A. (N.S.) 262, and 43 L.R.A. (N.S.) 734.

The effect of failure to provide medical attendance to render one guilty of manslaughter is treated in notes in 6 L.R.A. (N.S.) 685, and 45 L.R.A. (N.S.) 559.

And for homicide in the commission of or attempt to commit abortion, see State v. Harris, 49 L.R.A. (N.S.) 580 and note.

The only case found since the publication of the earlier note is Hampton v. State, 50 Fla. 55, 39 So. 421, in which it is held that manslaughter may be established by proof that the death of a person was caused by the culpable negligence of a physician, ander a general statute providing that "the

Defendant demurred to an indictment accusing him of the offense of manslaughter killing of a human being by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide or murder, according to the provisions of this article, shall be deemed manslaughter," though there is another statutory provision that "if any physician, while in a state of intoxication, shall without a design to effect death administer any poison, drug or medicine, or do any other act to another person which shall produce death of such other, he shall be deemed guilty of manslaughter," the latter provision being designed as an addition to the former, rather than to supersede it in cases of malpractice by physicians. R. L. S.

in the second degree, on the ground that without which a criminal offense would not the acts or omissions charged were not stated with sufficient certainty to, and did not, constitute a public offense. The court below overruled the demurrer and certified the case here.

The only question necessary to be considered in applying the foregoing tests is whether the criminality of defendant's acts as constituting the crime of homicide by "culpable negligence" is sufficiently alleged.

Numerous definitions of this term may be found. 2 Words & Phrases, 1780; 1 Words & Phrases, 2d series, 1174. But these would be of little, if any, value in the premises, for the term does not appear in the indictment. Moreover, culpable

be described being fatal. State v. MacDonald, 105 Minn. 251, 117 N. W. 482. And the essential, ultimate facts alleged must not be consistent with innocency. State v. Erickson, 81 Minn. 134, 83 N. W. The indictment was found under Gen. 512. Furthermore, the indictment must Stat. 1913, § 8612, subdiv. 3, declaring man- protect accused from a second prosecution slaughter to be of this degree when com- for the same offense. State v. Tracy, 82 mitted without any design to effect death, Minn. 317, 84 N. W. 1015. It cannot, how"by any act, procurement, or culpable neg-ever, be overturned by technicalities which ligence" not constituting a higher crime. do not prejudice the substantial rights of Omitting formal parts, it alleged that de- defendant. State v. Staples, 126 Minn. 396, fendant, "without authority of law, but 148 N. W. 283. without a design to effect her death, did feloniously use and employ upon the body of one Ruth Nass an electrical machine or instrument commonly known as an X-ray machine (a more particular description of said instrument or machine being to said grand jury unknown) for the purpose of taking an X-ray picture of the hip of the said Ruth Nass for the sole use and purpose of said Charles A. Lester, with her consent, extracted from her upon his assurance that the exposure of such X-ray| negligence—that is, criminal negligence-is would do her no harm; and she relying upon his assurance as a medical man, and not otherwise, said Charles A. Lester did then and there attempt to take such picture by subjecting the body of said Ruth Nass to the rays of the said machine, and did then and there tura and apply said X-ray upon the body of the said Ruth Nass in and over the region of her right hip, the said machine being a dangerous instrument, except when operated by a skilful manager it was not necessarily dangerous, which danger the said C. A. Lester knew, or, in the exercise of the care required under the circumstances, he should have known, and said Charles A. Lester did then and there place the tube of the said X-ray unreason ably close to the body of her, the said Ruth Nass, and disregarding the duty he owed her, he did negligently and carelessly fail to give her, during the time of such exposure to such X-ray as aforesaid, such proper and requisite attention as was requisite and proper to prevent burning her, and did operate such X-ray in an unskilful manner, and did keep her body so exposed for an unreasonable length of time, thereby inflicting upon the body of her, the said Ruth Nass, in the region of the right hip, as aforesaid, a mortal burn and injury known as an X-ray burn, from which mortal burn so caused as aforesaid she, the said Ruth Nass, died."

This court has frequently declared that an indictment must set out the complete criminal offense charged, and every essential element must be alleged directly and certainly the omission of an allegation

largely a matter of degree, and, as has well been said, incapable of precise definition. Whether it exists to such a degree as to involve criminal liability is a question that must be left, to a great ex'ent, to the common sense of the jury. Hampton v. State, 50 Fla. 55, 64, 39 So. 421; Stehr v. State, 92 Neb. 755, 45 L.R.A. (N.S.) 559, 139 N. W. 676, Ann. Cas. 1914A, 573; 22 Am. & Eng. Enc. Law 2d ed. 810. But not every careless or negligent act whereby death ensues comes within the statute, and something more must appear than the essentials necessary to impose civil liability for damages. 21 Cyc. 766. When considered as the basis of a charge of manslaughter against a medical man, or person assuming to act as such, culpable negligence exists where he exhibits gross lack of competency or inattention, or wanton indifference to the patient's safety, which may arise from his gross ignorance of the science, or through gross negligence in either its application or lack of proper skill in the use of instruments. Where, however, he does nothing that an ordinarily skilled and careful practitioner might not do, and death results merely from an error of judgment or accident, no criminal liability attaches. Hampton v. State, supra, decided under a statute like ours; Ferguson's Case, 1 Lewin, C. C. 181; Reg. v. Ellis, 2 Car. & K. 470; note in 124 Am. St. Rep. 330; 22 Am. & Eng. Enc. Law, 2d ed. 810; 21 Cyc. 769. "Gross," as here used, is intended to convey the idea of recklessness with regard to the safe. of others, or, as expressed by Mr. Justice Holmes in

Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. I though he does not supervise the construc264, 5 Am. Crim. Rep. 391, "foolhardy pretion. sumption."

The failure to allege knowledge on defendant's part that his acts involved probability of serious consequences to the deceased is not fatal to the indictment; the defect, if any, in this regard, being cured by the presumption of contemplation of probable consequences. Ibid. Neither was it necessary to allege defendant's duty to deceased under the circumstances, nor to set up a specific standard by which his acts might be measured; these being matters of law. If, then, the facts alleged sufficiently show such incompetency or inattention or indifference to the safety of deceased as has been indicated as necessary to give rise to criminal liability, the indictment must be upheld, though it charges neither "culpable" nor any other degree of negligence eo nomine, nor defendant's acts in other than general terms and as ultimate facts. To state more as to the

latter would be to plead the evidence, which is not required, and "negligence" prefixed by adjectives could not aid the former, unless the facts stated justified such expressions (State v. MacDonald, supra), in which event they would be surplusage.

strument used

If the owner, after the plans are furnished, of his own volition and without fault of the architect, abandons the construction of a building on the land, the architect has a lien on the land. An actual improvement is not necessary to a lien. time for filing.

Same

The facts are stated in the opinion. Messrs. Lancaster, Simpson, & Purdy and James E. Dorsey, for appellants:

An actual improvement to the premises is necessary for a lien, and here there was no improvement.

27 Cyc. 17; Smith v. Barnes, 38 Minn.

We must take judicial notice that X-ray machines sometimes inflict serious burns, and the indictment characterizes the inas dangerous, unless skilfully handled, and presumptively known 240, 36 N. W. 346; Burns v. Sewell, 48 by defendant to be such, notwithstanding Minn. 425, 51 N. W. 224; Howes v. Reliwhich, he placed it too close to his sub-ance Wire Works Co. 46 Minn. 44, 48 N. ject, and also failed during an excessive W. 448; Hickey v. Collom, 47 Minn. 565, exposure to give her the attention requisite 50 N. W. 918; Combination Steel & I. Co. to prevent injury. These allegations im. St. Paul City R. Co. 52 Minn. 203, 53 port criminal negligence, and the questions N. W. 1144; John Paul Lumber Co. v. raised thereby are for the jury. State v. Hormel, 61 Minn. 303, 63 N. W. 718; BerHardister, 38 Ark. 605, 42 Am. Rep. 5. ger v. Turnblad, 98 Minn. 163, 116 Am. We sustain the indictment, though it is St. Rep. 353, 107 N. W. 543; Knight v. Right of architect to mechanics' lien.

not a model one.

Order affirmed.

MINNESOTA SUPREME COURT.

Note.

This note supplements the earlier notes to Stephens v. Hicks, 36 L.R.A. (N.S.) 354, and Hughes v. Torgerson, 16 L.R.A. 600.

It is held in a recent Washington case

LOWELL A. LAMOREAUX et al., Respts., that an architect has a lien on a building

for furnishing plans for it and superintend ing its construction, under a statute providing that every person performing labor upon or furnishing material for a building has a lien upon the building therefor. Gould v. McCormick, 75 Wash. 61, 47 L.R.A. (N.S.) 765, 134 Pac. 676, Ann. Cas. 1915A, 710. Alluding to the conflict of authority or this point, the court said that, while the decisions are by no means harmonious, the great weight of authority as well as the better reason appears to support the view that the lien exists where the language of the statute is general.

No lien existed here because the lien statement was not filed within ninety days from the date of furnishing the last item of service.

Hurlbert v. New Ulm Basket Works, 47 Minn. 81, 49 N. W. 521; Voigtmann v. Wilmington Trust Bldg. Corp. 7 Penn. (Del.) 265, 78 Atl. 920.

Norris, 13 Minn. 473, Gil. 438; Gardner v. Leck, 52 Minn. 522, 54 N. W. 746; Wentworth v. Tubbs, 53 Minn. 388, 55 N. W. 543; Waganstein v. Jones, 61 Minn. 262, 63 N. W. 717; Rinn v. Electric Power Co. 3 App. Div. 305, 38 N. Y. Supp. 345; Thompson-Starrett Co. v. Brooklyn Heights Realty Co. 111 App. Div. 358, 98 N. Y. Supp. 128; Spannhake v. Mountain Constr. Co. 137 N. Y. Supp. 900; Swasey v. Granite Spring Water Co. 158 App. Div. 549, 143 N. Y. Supp. 838; Foster v. Tierney, 91 Iowa, 253, 51 Am. St. Rep. 343, 59 N. W. | court: 59; Parsons v. Brown, 97 Iowa, 699, 66 N. This is an action to foreclose a mechanics' W. 880; Fitzgerald v. Walsh, 107 Wis. 92, | lien. 81 Am. St. Rep. 824, 82 N. W. 717; Howes v. Reliance Wire Works Co. 46 Minn. 44, 48 N. W. 448.

But the Washington court lays down the general proposition that where no building is erected the architect has no lien for drawing plans, saying that the law contemplates that the lien is to attach to the building and upon only so much of the land as may be necessary for its use and occupation. Lipscomb v. Exchange Nat. Bank, 80 Wash. 296, 141 Pac. 686. In this case there was some excavation, but the workmen employed | thereat ceased work for nonpayment of wages, and the undertaking was abandoned. It is to be noted that this decision is not in harmony with LAMOREAUX V. ANDERSCH, unless the fact, given so much weight in the latter case, that the abandonment of the work was due to the owner himself, is to be regarded as sufficient completely to distinguish them. In connection with the point as to abandonment of the work it is pertinent to refer to the note as to the right to a mechanics' lien for labor or material furnished on the order of an architect be fore abandonment of the contract by the contractor, appended to Sternberg v. Ft. Smith Refrigerator Works, 20 L.R.A. (N.S.)

89.

In Sanguinett v. Colorado Salt Co. Tex. Civ. App. -, 150 S. W. 490, the court held architects entitled to a lien for both plans and superintendence, under a statute giving a lien to any person, firm, corporation, artisan, laborer, or mechanic who may labor or furnish material to erect any improvement on land. The court said that even if the plaintiff, a firm of architects, was not an artisan, laborer, or mechanic within the meaning of the statute, the act included the plaintiff by the significant phrase, "any person or firm

who

may labor," which showed a legislative in tent to provide a lien for any and all per sons whether artisans, laborers, mechanics, or not, who may labor "to erect any house or improvement."

Upon the authority of earlier New York cases cited in the earlier notes, it has been held in later New York decisions that while an architect is not entitled to a mechanics' lien for drawing plans alone, yet when he both draws plans and superintends construc

Messrs. Lind, Ueland, & Jerome for respondents.

Bunn, J., delivered the opinion of the

There was a trial before the court without a jury and a decision for plaintiffs. Defendants appeal from the judgment entered on the decision.

tion he is entitled to a lien for the value of both plans and superintendence. Spannhake v. Mountain Constr. Co. 159 App. Div. 727, 144 N. Y. Supp. 968, reversing 137 N. Y. Supp. 900. Swasey v. Granite Spring Water Co. 158 App. Div. 549, 143 N. Y. Supp. 838, indorsed this doctrine, but denied judgment in favor of the lienor upon the ground that evidence was insufficient to show the relation between plans and specifications, on the one hand, and superintendence, on the other, or to establish that the plans were used.

In Thompson-Starrett Co. v. Brooklyn Heights Realty Co. 111 App. Div. 358, 98 N. Y. Supp. 128, indorsing the doctrine referred to in the preceding paragraph, the court further held that visiting the premises and inspecting the ground and the party wall to make possible the preparation of the plans was not such an active par. ticipation in the manual function of con structing the building as would entitle the plaintiff to a lien therefor, and carry with it the claim for preparing plans and speci fications.

Attention is also directed to Federal Trust Co. v. Guigues, 76 N. J. Eq. 495, 74 Atl. 652, in which the question was whether during a delay in the work the architect did anything within the scope of his duties which was sufficient to keep his lien alive; and in which it was held that his visit to the premises when no work was being done, and none had been done for three months, was insufficient; but that another visit when things were practically at a standstill, to see that things were safe, to take care of the place, to see if anyone was working, and to serve notice on the contractors to finish their work, was sufficient to give vitality to the lien, as they were a part of the architect's duties.

Some benefit in this connection may be derived from a reference to the note appended to Munroe v. Clark, 30 L.R.A. (N.S.) 82, on the right to a lien for labor in preparing materials in manufactured form, under a statute giving a lien for work or labor performed on the building or structure. L. A. W.

which their work contributes. Knight v. Norris, 13 Minn. 473, Gil. 438; Gardner v. Leck, 52 Minn. 522, 54 N. W. 746; Wentworth v. Tubbs, 53 Minn. 388, 55 N. W. 543; Waganstein v. Jones, 61 Minn. 262, 63 N. W. 717. In each of the cases cited, there was an actual improvement, and in each the architect not only made the plans, but supervised the construction. It has been held that an architect's services in preparing plans only are not lienable, but we confess our inability to see why plans and specifications do not as much contrib

The facts are as follows: Plaintiffs are architects. In September, 1912, defendants Louis and Julius Andersch and Charles Andersch, since deceased, entered into a contract with plaintiff's by the terms of which plaintiff's agreed to make plans, with details and specifications, for a building to be erected on two lots in Minneapolis owned by defendants, and to superintend the construction of the building. Plaintiffs were to receive as compensation for their services a sum equal to 4 per cent of the cost of the building. The plans and specifications were prepared, submitted to con-ute to the construction of a building as tractors for bids, and delivered, with the bids received, to defendants in November, 1912. Prior to this time defendants had a survey of the land made and furnished to plaintiff's for their use in preparing the plans, and tore down an old barn that was standing on the lots. The plans and specifications were retained by defendants without objection, but they did not accept or reject the bids, or take any action in the matter until May 27, 1913, when they repudiated the contract with plaintiffs, and abandoned the project of constructing a building on the lots. Prior to this time nothing was done either towards the construction of the building, or to discharge plaintiffs as architects, or release them from their obligation to perform their improvement? Liberal construction of the

contract.

After the bids were received plaintiffs prepared details. The last work on these was done March 27, 1913. On May 23, 1913, one of the plaintiffs devoted some time to an examination of the details, which had been drawn by an employee, to ascertain whether they had been properly prepared. The lien statement was filed August 18, 1913.

The questions argued by counsel are these: (1) Are plaintiffs entitled to a lien notwithstanding there was no improvement on the land? (2) Was the lien statement filed in time? (3) In case it be held there is no lien, was it error to refuse defendants' demand for a jury trial on the issue of their liability for breach of contract?

1. The first question is one of doubt and difficulty, and the conclusion reached is not the unanimous opinion of the court. It appears conclusively, we think, that there

was

no improvement on the land. The removal of the old barn by defendants and the making of the survey cannot be considered as an improvement. This was done entirely independently of the contract with plaintiffs, and clearly plaintiffs contributed nothing to this work. Architects are entitled to liens for services in preparing plans and superintending construction where there is an actual improvement to

does the supervision by the architect, and well-considered cases so hold. Henry & C. Co. v. Halter, 58 Neb. 685,,79 N. W. 616; Parsons v. Brown, 97 Iowa, 699, 66 N. W. 880; Fitzgerald v. Walsh, 107 Wis. 92, 81 Am. St. Rep. 824, 82 N. W. 717; Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055; Ehlers v. Wannack Bros. 118 Cal. 310, 50 Pac. 433; Field v. Consolidated Mineral Water Co. 25 R. I. 319, 105 Am. St. Rep. 895, 55 Atl. 757. We think plaintiffs would have been entitled to a lien if their plans had been used in the construction of a building on the premises.

Is this right to a lien lost when the owner, through no fault of the architect, does not use the plans or make the contemplated

lien statute is the settled policy in this state. But the right to a lien in any case is still wholly dependent upon the language of the statute. There is no lien except where the statute gives one. The answer to the question, therefore, depends upon the words of the statute, liberally construed to further the object of its enactment.

Gen. Stat. 1913, § 7020, the first section in the chapter relating to liens for labor and material, and the one giving the licn, provides in substance that "whoever contributes to the improvement of real estate by performing labor, or furnishing skill for the erection of a building thereon, shall have a lien upon such improvement, and upon the land on which it is situated, for the price or value of such contribution."

By § 7021, a lien extends to the interest of the owner in "the premises improved.” By § 7022, a person contributing labor, skill, materials, or machinery for the construction or alteration or repair of railway lines, etc., is given a lien upon "the line so improved." Section 7023, providing when a lien shall attach, says that as against the owner, it shall take effect "from the time the first item of material or labor is furnished upon the premises for the beginning of the improvement," that as against a bona fide purchaser, mortgagee, or encumbrancer, no lien shall attach "prior