text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
Error from Sumner district court. | [
-110,
126,
-24,
15,
-114,
-127,
0,
-116,
9,
-109,
106,
83,
-17,
-58,
20,
123,
65,
47,
52,
106,
-33,
-74,
54,
99,
-10,
-13,
-63,
86,
-75,
109,
-4,
-98,
76,
33,
-54,
29,
6,
-128,
-25,
88,
-50,
3,
-119,
-3,
91,
43,
44,
101,
-38,
39,
49,
-18,
-13,
61,
-101,
98,
-88,
44,
93,
49,
74,
-47,
-65,
5,
61,
71,
-95,
116,
-45,
10,
76,
-86,
-108,
49,
0,
-8,
118,
-74,
-126,
117,
103,
-69,
-115,
102,
98,
33,
13,
-17,
-72,
-120,
7,
58,
-103,
-26,
-109,
41,
107,
-118,
-74,
-99,
116,
86,
102,
-2,
103,
-116,
89,
68,
-126,
-18,
-112,
-101,
-51,
-80,
-120,
-35,
-9,
22,
16,
113,
-63,
-28,
92,
-58,
56,
-86,
-97,
-78
] |
Error from Cowley district court. | [
-110,
-20,
-24,
-34,
10,
1,
1,
-114,
3,
17,
51,
83,
-81,
-58,
20,
123,
35,
31,
53,
120,
69,
-73,
55,
98,
-30,
-13,
-49,
87,
-79,
110,
-33,
-92,
78,
48,
-54,
31,
70,
-60,
-81,
88,
-58,
7,
13,
-35,
121,
9,
36,
121,
88,
5,
113,
38,
-112,
62,
58,
99,
-88,
44,
125,
-93,
74,
-45,
-75,
-115,
95,
6,
-95,
52,
-122,
15,
88,
58,
-48,
-75,
-128,
-71,
50,
55,
-113,
116,
77,
-70,
41,
100,
106,
1,
12,
-17,
-72,
-88,
46,
122,
-103,
-92,
-106,
40,
107,
-82,
-106,
-99,
117,
82,
102,
-6,
103,
-124,
25,
72,
-127,
-49,
-80,
-97,
-52,
-80,
-128,
11,
-9,
2,
48,
113,
-59,
-46,
92,
-25,
25,
-69,
-34,
-2
] |
The opinion of the court was delivered by
Cunningham, J. :
Tootle, Hanna & Co. sued Ellis & Co. in the district court of Osage county, Kansas, their cause of action being on four promissory notes executed by the defendants. A summons was issued, regular in all respects, except that “the amount for which, with interest, judgment would be taken if the defendant failed to answer1" was not indorsed thereon. The precipe for summons filed by the plaintiffs did not request that it should be indorsed. Judgment was rendered for $1200, by default, on November 18, 1885. This judgmónt was kept alive, and on October 13, 1897, execution was issued thereon and duly levied upon the non-exempt lands of the defendants. They then brought this action against the sheriff and the judgment creditors to declare said judgment to be null and void and to enjoin the selling of the land levied on and the collection of the judgment. In this injunction action, the pleadings, summons and judgment in the first action were fully set out. The petition also contained an allegation that the plaintiffs had a valid defense to the original action brought by Tootle, Hanna & Co. A demurrer to this petition was overruled, and the, defendants answered by a general denial. Upon the trial no evidence was offered by the plaintiffs in support of their allegation that they did not owe the notes sued on in the original action, in whole or in part, or that they had any defense.whatever to them. The court awarded the plaintiffs judgment, and declared the former judgment void, and enjoined the collection of it in any manner.
These facts present two questions : (1) Admitting the judgment to be void by reason of the omission to indorse on the summons the amount for which, with interest, judgment would be taken if the defendants failed to answer, may defendants in error have the collection of such judgment enjoined without showing that they have a defense, in whole or in part, to the original action ? (2) Did the failure to make such indorsement render the judgment void? We answer both in the negative.
The execution of a judgment may not be enjoined simply because no sufficient summons was served, unless it is shown that the defendant had a defense, in whole or in part, to the judgment rendered. Some cases hold that, in cases where no process at all has been served on the defendant the collection of the judgment maybe enjoined without showing a defense to the original action, but a large preponderance of the authorities hold thq,t, notwithstanding an alleged want of service of process, a court of equity will not interfere to set aside a judgment until it appears that the result, upon a subsequent trial, will be other than, or different from, that already reached; or, in other words, that there was a defense to the action, either entire or partial. (Freem. Judg. §489, and cases cited.) The general principle, as laid down in High on Injunctions, section 114, is that it must be shown to be against good conscience to execute the judgment sought to be enjoined.
In this case a summons was served, issued under the hand of the clerk and the seal of the court. It informed the defendants that they had been sued, and that they must answer the petition by a given time. This gave the court jurisdiction of them. The judgment rendered therefor was not void. They might have taken advantage of the omission of the indorsement had they chosen so to do by some movement in tlie case. This they did not do. They paid no attention to the information contained in the summons that they had been sued. They gave no heed to the warning of the court that they must answer.
True, the statute adds that if the defendants fail to answer, judgment shall not be rendered against them for a larger amount than that indorsed on the summons and costs, but this is not a part of the summons ; it is but an indorsement on the summons. The summons gets the party into court. Its service gives jurisdiction of the party to the court. The party being thus in court, he must defend his rights and protect his interests, as is permitted by the rules of procedure. Most of the rights given to litigants by statute, and most of the safeguards thrown around them, may be thrown away if they choose so to do, or neglect to avail themselves of those provisions.
This court, in Simpson v. Rice, 43 Kan. 22, 22 Pac. 1019, strongly intimated that the view here taken was the correct one. We now follow that intimation, and hold that the judgment in the case of Tootle, Hanna & Co. against Ellis & Co. was not void, and hence, if for no other reason, the levy and sale of real estate under an execution to enforce it could not be enjoined. (Dusenberry v. Bennett, 7 Kan. App. 123, 53 Pac. 82.)
The judgment of the district court will be reversed, with instructions to proceed further in harmony with this opinion.
Smith, Ellis, JJ., concurring. | [
-14,
116,
-15,
-68,
74,
96,
40,
26,
65,
3,
116,
87,
-23,
70,
0,
49,
118,
41,
-11,
104,
78,
-77,
7,
65,
-46,
115,
-47,
-43,
-75,
-19,
-28,
-44,
76,
-96,
106,
-43,
71,
-126,
-59,
20,
-116,
-91,
-103,
69,
-7,
0,
48,
51,
84,
11,
-79,
-81,
-13,
42,
29,
107,
105,
44,
91,
-67,
-64,
-8,
-98,
-123,
111,
20,
51,
36,
-104,
-61,
120,
-66,
-112,
53,
3,
-24,
114,
-76,
-126,
116,
9,
-71,
45,
-26,
98,
33,
69,
-21,
-72,
-116,
62,
-10,
-115,
-89,
16,
88,
2,
41,
-106,
-99,
117,
98,
7,
-2,
-3,
5,
88,
52,
11,
-53,
-42,
49,
-97,
119,
-104,
7,
-49,
-89,
48,
81,
-51,
-80,
92,
67,
120,
-101,
-114,
-36
] |
Error from Oowley district court. | [
-110,
100,
-24,
-50,
42,
1,
0,
-82,
-63,
-111,
43,
87,
-81,
-57,
20,
123,
-95,
127,
116,
90,
65,
-73,
51,
98,
-14,
-13,
-49,
87,
-75,
110,
-8,
-28,
76,
-80,
-118,
93,
70,
-64,
-17,
88,
-34,
7,
15,
77,
113,
43,
44,
61,
88,
15,
113,
-90,
-78,
62,
62,
67,
-88,
44,
-51,
97,
74,
-45,
-75,
13,
95,
6,
-96,
20,
-41,
6,
-40,
34,
-128,
61,
2,
-71,
-78,
-73,
-121,
117,
9,
-5,
0,
-20,
72,
1,
13,
-81,
-24,
-88,
38,
122,
-103,
-90,
-105,
41,
107,
-113,
-106,
-99,
116,
-46,
102,
92,
103,
-124,
29,
0,
-125,
-17,
-72,
-103,
-52,
-80,
-128,
11,
-17,
6,
52,
113,
-51,
-36,
92,
-58,
25,
-117,
-34,
-70
] |
Appeal from Sedgwick district court. | [
-48,
-54,
-36,
-114,
-117,
32,
-78,
-34,
67,
117,
-57,
119,
-65,
-46,
53,
107,
-61,
109,
-12,
107,
-45,
51,
51,
67,
-14,
-6,
51,
-33,
-103,
92,
-11,
-90,
76,
48,
-126,
69,
66,
-128,
13,
24,
-114,
7,
-87,
-17,
113,
10,
44,
40,
114,
29,
49,
94,
-65,
42,
-38,
-57,
8,
125,
75,
-84,
24,
115,
-92,
29,
61,
18,
-93,
6,
-100,
-126,
122,
38,
-128,
-72,
6,
-20,
-2,
-90,
-124,
117,
11,
-39,
-119,
78,
66,
35,
1,
-1,
-72,
105,
26,
94,
-99,
-90,
-76,
49,
104,
3,
-100,
-99,
101,
-110,
6,
124,
79,
-121,
18,
101,
-123,
-50,
-108,
-77,
-114,
-107,
-111,
18,
-50,
32,
18,
85,
-45,
70,
124,
-59,
19,
63,
-34,
-70
] |
The opinion of the court was delivered by
Pollock, J. :
The defendants were arrested upon an information charging a violation of the prohibitory liquor law, tried, convicted, sentenced, and appeal. The information upon which the prosecution was had was not signed or presented by the county attorney of the county. The same was presented by one C. B. Skidmore, appointed for that purpose, by order of the district court, and was verified on the oath of one P. Martin, and signed by said Skidmore and Martin. Timely objections were made at all stages of the prosecution, upon the ground that the information was not signed, verified or presented by, and in the name of, an officer of the state authorized to present the pleas of the state. These objections were overruled. The jurisdiction of this court to determine this appeal is challenged by the state.
We have examined the record and find the same not well taken. • The questions for determination here are: (1) Under the facts disclosed by this record, did the district court have the power to authorize this prosecution in the name of a private citizen? (2) May a prosecution be conducted, under the circumstances of this case, tipon information not signed and presented by a properly constituted law officer of the state ?
At common law, it was not necessary for the prosecuting officer to sign, or countersign, the indictment upon which a prosecution was conducted. (10 Encyc. Pl. & Pr. 446.) This rule, however, is changed in this state by statute. It has always been the law of this state that no one shall be prosecuted upon information for a criminal offense unless such information is signed by an officer of the law, thereunto duly authorized by law to prosecute such offense. Such is the positive, mandatory provision of the statute. (Gen. Stat. 1901, § 5507; Jackson v. The State, 4 Kan. 150.)
The district court is without power to appoint a prosecuting officer, except in case of the death of the county attorney or in case of the absence, sickness or disability of both the county attorney and his deputy. (Gen. Stat. 1901, §§ 1782, 1786.) The record in this case shows the presence of the county attorney in court at the date of the order appointing Skidmore to prosecute in.this action, and does not show either the sickness or disability to prosecute of the county attorney or his deputy at any stage of the prosecution, but on the contrary shows the opposite. It follows that the district court was without power to authorize a private citizen to sign and file the information against the defendants and to conduct this prosecution ; that defendants were prosecuted and convicted without warrant of law, and that such conviction must be set aside.
It is so ordered.
Dosteb, C. J., Smith, J., concurring. | [
-80,
-18,
-19,
-97,
42,
-32,
58,
-108,
-63,
-77,
-10,
115,
-19,
90,
9,
59,
-5,
121,
85,
121,
-51,
-74,
51,
65,
114,
-13,
-103,
-41,
-79,
75,
-28,
-12,
77,
-80,
-126,
-11,
102,
74,
-105,
20,
-118,
1,
57,
-56,
80,
-54,
48,
43,
114,
10,
-15,
-33,
-13,
42,
28,
-62,
-55,
44,
-55,
-67,
90,
-16,
-100,
-99,
79,
18,
-77,
96,
-104,
-125,
-8,
62,
-104,
49,
1,
-24,
115,
-74,
-122,
-12,
15,
-103,
-119,
102,
98,
33,
61,
-17,
-84,
-68,
47,
62,
-99,
-90,
-112,
25,
73,
12,
-106,
-99,
101,
52,
7,
-8,
-17,
-107,
25,
44,
14,
-53,
-10,
-75,
15,
53,
2,
82,
-49,
5,
80,
113,
-59,
118,
92,
-12,
115,
27,
-114,
-108
] |
The opinion of the court was delivered by
Smith, J.:(
On the 30th day of January, 1895, the defendant in error, a locomotive fireman, took out a policy of insurance against accidents in the plaintiff in error company. It recites that it is issued in consideration of the warranties in the application and of an order for certain moneys drawn on the Atchison, Topeka & Santa Fe Railway Company by the insured. The policy is divided into four periods: (1) Two months; (2) two months; (3) three months; (4) five months. The amount of the premium for each period was eight dollars, payable in February, March, April, and May, respectively. The application contained the following clause ; “All claims for injuries effected during any period for which its respective premium has not been actually paid shall be forfeited to the company.”
It is conceded that three instalments of premium were collected from the railroad company by the accident company, which carried the policy to August 30, 1895. The controversy is whether the eight-dollar payment due in May, 1895, was paid to the insurance company, either by the insured or the railway company, or the payment waived. If so, the policy was kept in force until January 30, 3896 ; if not, then the policy had lapsed when Bragg was injured, on January 10, 1896, indemnity for which he seeks to recover in this action.
On April 13, 1895, during the second payment period of the policy, the defendant in error was accidentally injured, and later presented a claim, which was acknowledged by the company, for twenty-six weeks’ indemnity, amounting to $260. This amount was paid to the insured on . December 2, 1895. One Libby, who was in the employ of the company as a bookkeeper, whose duty it was to check up claims ready for payment, through an oversight neglected to deduct the eight-dollar premium, pay* able in May, from the $260 indemnity paid for the injury caused by the accident in April. This, Libby testifies, it was his duty to do. On January 2, 1896, Libby wrote to Bragg the following letter:
“Dear. Sir — On December 2 last you were paid a claim from this office for $260. Same was for twenty-six weeks’ indemnity, at ten dollars per week. You are probably aware that the premium on your policy No. 344,035 was thirty-two dollars. Twenty-four dollars only of this has been paid, leaving a balance due of eight dollars.
“ The undersigned is the unfortunate clerk in Mr. Brooks’s office who checked up this claim, inasmuch that when doing so neglected to collect from the draft sent you the amount due as above stated. Now this eight dollars has been charged against his monthly salary, and he respectfully refers the matter to you, that you may help him out by appreciating the situation and remit the amount. I have reason to think that your claim was satisfactorily settled, and have no reason to doubt but that you intend to pay for this policy, on which such good value has been returned.”
At the time of the accident on January 10,1896, indemnity for which is here involved, the plaintiff below rested under the belief that Libby had made the payment to the company of eight dollars due from him, which, if paid, kept the policy alive to January 80, thus extending it in force past the date when the insured was injured.
The general agent of the company testified that, in fact, the eight-dollar premium due from Bragg was never charged to Libby by the company. ■ Libby testified that this letter was written without authority from the general agent of the company, by whom he was employed. It' having been the duty of Libby to deduct from the $260 due Bragg the eight-dollar premium, his letter to the latter confessed his neglect, and gave Bragg to understand that his (Libby’s) liability to the company by reason thereof had been satisfied by payment of the amount. A payment, if made by Libby, under such circumstances inured to the benefit of Bragg. The company could have recovered from its negligent servant the amount of the premium he paid over to Bragg through oversight. That the payment was not made, as stated in the above letter, was not known to the plaintiff below until after the accident of January 10, 1896. By the conduct of Libby, the insured, at the time of the accident, thought that the defaulted premium had been received by the company.
The authority of the bookkeeper, Libby, to bind the company by giving information to the insured of a thing which, if done, would bind the company, cannot be denied. (Insurance Co. v. Stone, 61 Kan. 48, 54, 55; 58 Pac. 986.) It was the notice conveyed to Bragg that the premium had been paid which relieved him from further concern regarding its payment, as between him and the insurance company. Prom the receipt of the letter he thought he owed Libby. Prom that time until the accident, he had a right to suppose that all demands on him for premium had been satisfied, so far as the insurance company was concerned. The company cannot be heard to assert a forfeiture after a liability has arisen on a policy of insurance, when, by its course of dealing, it has induced the insured to believe that payment of a premium has been made.
In the case of Lyon v. Travelers’ Ins. Co., 55 Mich. 141, 20 N. W. 829, the insured gave an order on a railway company for the premium to become due. The insurer failed to collect the last premium from the railway company, but did not notify the insured until a liability had been incurred under the policy. It was held that the company was liable. The court said:
“A forfeiture is not favored either at law or in equity, and a provision for it in a contract will be strictly construed, and courts will find a waiver upon slight evidence, when the equity of the claim made, as in this case, is, under the contract, in favor of the insured.” (See, also, Painter v. The Industrial Life Association, 131 Ind. 68, 30 N. E. 876.)
From the facts developed at the trial, we are of the opinion that the insurance company is liable.
Counsel for plaintiff in error present a serious question arising on the pleadings in the case, which, we think, must be decided favorably to their contention. The petition sets out a copy of the application and policy, and avers that “plaintiff has done and performed each and all of the requirements of said polic7> s0 far as he is concerned.” This allegation is intended to mean that plaintiff below paid the premiums in conformity with the conditions of the policy. The answer of the insurance company denied specifically that the premium due in May, 1895, had ever been paid, and averred that, for this reason, the policy had lapsed at the time of the accident. In his reply, the plaintiff below alleged that the insurance company had waived this payment of the premium by failure to collect the amoilnt from the railway company, although it had an order for the same, and that the conduct of Libby, in writing the letter aforesaid, estopped the company from claiming that the premium was not paid.
In Johnson v. Bank, 59 Kan. 250, 252, 52 Pac. 860, 861, a departure in a reply was stated to be matter which is not pürsuant to a previous pleading of the same party, and which does not support it, “and a test of departure in a reply is the question whether evidence of the facts alleged in it would be, if received, contradictory of the allegations of the petition.” An attack was made on the reply both by demurrer and by motion to strike out. The former the court refused to consider, because not filed in time. The latter was heard and overruled. In this we think the court erred. There is a direct conflict between the allegations of the petition and the reply in the respect mentioned.
The judgment of the court below is reversed and a new trial ordered.
Doster, C. J., Pollock, J., concurring. | [
-80,
122,
-104,
-65,
24,
96,
42,
-118,
119,
-48,
-89,
83,
-35,
-125,
5,
47,
-38,
45,
-63,
34,
-10,
-93,
23,
-94,
-38,
-13,
123,
-59,
53,
94,
-2,
-34,
76,
56,
10,
-43,
102,
74,
65,
20,
-50,
-115,
-87,
-19,
89,
104,
48,
121,
0,
69,
17,
-102,
-5,
46,
25,
-45,
45,
41,
-5,
-87,
-47,
-15,
-118,
-124,
119,
20,
49,
4,
-66,
7,
72,
14,
-40,
49,
72,
-4,
114,
-90,
-110,
116,
109,
-87,
4,
-30,
98,
33,
21,
111,
124,
-72,
63,
-110,
-113,
-26,
54,
89,
43,
12,
-74,
-103,
-90,
20,
-121,
124,
-16,
29,
93,
32,
1,
-101,
-76,
-94,
-49,
102,
-100,
15,
-17,
-93,
32,
100,
-52,
-86,
93,
69,
126,
-111,
-97,
-4
] |
Error from Bourbon district court. | [
-78,
-2,
-19,
-2,
-86,
64,
1,
-114,
65,
-127,
114,
83,
-19,
-58,
20,
107,
-29,
111,
117,
122,
77,
-74,
51,
96,
-14,
-37,
-61,
87,
-75,
109,
-12,
-32,
76,
-16,
-102,
95,
70,
-64,
-83,
92,
-50,
7,
61,
-19,
115,
43,
60,
105,
26,
15,
101,
-82,
-29,
46,
26,
98,
-55,
44,
-47,
57,
74,
-15,
-46,
29,
63,
6,
-95,
116,
-48,
2,
72,
10,
-104,
49,
0,
-7,
118,
-74,
-58,
84,
7,
57,
9,
102,
98,
1,
77,
-113,
-88,
-88,
39,
110,
-112,
38,
-109,
41,
107,
-118,
-74,
-107,
117,
86,
-25,
120,
102,
-60,
25,
24,
-125,
-18,
-80,
-77,
-36,
-112,
-112,
3,
-17,
2,
52,
81,
-59,
-68,
92,
-58,
17,
-101,
-42,
-74
] |
Appeal from Finney district court. | [
-45,
-2,
-68,
-52,
-118,
66,
99,
62,
66,
-109,
103,
119,
-81,
-14,
1,
123,
-53,
63,
68,
-21,
-45,
115,
119,
-64,
-70,
-5,
79,
-42,
-99,
92,
-11,
-9,
76,
48,
-86,
29,
70,
-128,
-17,
-48,
-122,
11,
-119,
-17,
25,
-117,
44,
98,
54,
15,
53,
70,
-30,
106,
56,
-62,
-56,
-84,
-5,
-96,
81,
81,
-90,
13,
125,
6,
-112,
20,
-97,
-61,
-80,
46,
-112,
17,
0,
-24,
114,
-90,
-124,
117,
11,
-71,
0,
36,
66,
-126,
9,
-21,
-95,
-31,
44,
88,
-99,
-89,
-122,
8,
25,
-64,
-108,
-97,
116,
16,
7,
124,
-27,
-123,
95,
109,
-123,
-49,
48,
-109,
-113,
53,
-112,
10,
-49,
19,
-74,
-47,
-51,
-102,
92,
-59,
59,
-33,
-34,
-72
] |
The opinion of the court was delivered by
Greene, J. :
O. T. Hammell and D. F. McCarty, partners as Hammell & McCarty, commenced this action in the district court of Bourbon county, against E. P. McCarty and S. W. Rider, as partners, to recover the sum of $145.48, alleged to be due said plaintiffs on account of certain coal furnished to the defendant E. P. McCarty, at Bronson, Kan., and by him used in operating a machine in boring for oil, coal, gas, etc.
It was alleged in the petition that S. W. Rider was a partner of McCarty in the work that was being carried on at Bronson, and therefore liable to plaintiffs for this debt. Upon the trial the following agreement was entered into:
“It is hereby conceded that Hammell & McCarty furnished the coal claimed to E. P. McCarty without the knowledge of defendant S. W. Rider, and also upon the individual credit of E. P. McCarty, with the understanding and belief that this machinery all belonged to E. P. McCarty, and that said understanding was not from any conduct or statement of Mr. Rider, but before the beginning of this suit plaintiffs discovered this contract between McCarty and Rider and bring this suit claiming that Mr. Rider was a partner of Mr. McCarty in this well-drill.”
It is further conceded by defendants that the amount of judgment in the court below against E. P. McCarty is correct so far as McCarty is concerned. Upon the trial below judgment was rendered for plaintiffs against Rider and McCarty, as partners, from which judgment Rider prosecuted error.
The following is the agreement between McCarty and Rider, by which it is claimed that they were partners :
* ‘ This contract is made and entered into this 16th ¡day of November, 1896, by and between S. W. Rider, |of Kansas City, Mo., party of the first part and E. P. McCarty, of La Cygne, Kan., party of the second part.
“Said first party agrees to furnish to said second party the No. 5 Star drilling-machine, of Akron, Ohio, manufacture, now being operated near Paola, Kan., together with the tools, ropes and other appliances now in use with said machine for drilling oil, gas or water wells, and said first party is to receive for the use of said machine twenty-five cents per foot for each foot drilled with it during the life of this contract.
“Said second party hereby agrees to keep said machine in good repair and to turn over same to first party at the termination of this contract in as good condition as it now is, ordinary wear and tear excepted.
‘ ‘ Second party will furnish all the labor and supplies, including oils, coal and water necessary for moving and operating said machine and will hold said first party harmless from all liability for any accident that may occur by reason of the use of said machine. In case of loss of tools, second party is to use all possible means to recover them, and if unsuccessful, second party agrees to pay one-half the cost new tools, the other half to be borne by first party. If full payment is not received for any well because of lost tools, first party is to share in the reduction and be paid one-fourth of the amount received for drilling the well; and if no 'pay is received for any well because of lost tools, first party is to receive nothing for the use of the machine on that well. First party agrees to furnish new cables when needed.
“The twenty-five cents per foot is to be paid out of the proceeds of each well and is payable upon completion of each well.
“It is hereby mutually agreed that first and second party shall share equally in any right of development of the wells drilled, in case they shall produce sufficient oil to warrant their operation as oil-wells.
“Said second party shall not have outstanding at any one time contracts to drill more than two wells without the written consent of said first party.
“This contract may be terminated by either party by giving thirty days’ notice in writing of a wish to terminate it, and at the end of said thirty days it shall terminate, unless said second party has outstanding uncompleted contracts for drilling which cannot be completed within said thirty days, in which event such uncompleted contracts are to be completed by second party without delay, and upon their completion this contract shall terminate. Signed in duplicate.
“Dated this 16th day of November, 1896.
S. W. Rider.
E. P. McCarty.”
The contract for boring the well at Bronson was ■made between McCarty and the Bronson Gas and Improvement Company, the material part of which is that McCarty agreed to bore an eight-inch hole 1000 feet for $1 per foot; for the next 250 feet he was to receive $1.25 per foot, and thereafter $1.50 per foot. There was some understanding about casings, etc., but nothing material to a full understanding of this case.
The agreement between Rider and E. P. McCarty, which was introduced in evidence, is plain and unambiguous, and whether it creates a partnership between these parties as to themselves is a question of law. (Boston etc. Smelting Co. v. Smith, 13 R. I. 27, 43 Am. Rep. 1; Nathaniel Webster v. John Clark, Son & Co., 34 Fla. 637, 16 South. 601, 27 L. R. A. 126, 43 Am. St. Rep. 217; Morgan v. Farrell, 58 Conn. 417, 20 Atl. 614, 18 Am. St. Rep. 282.) “A partnership is the contract relation subsisting between persons who have combined their property, labor and skill in ah enterprise or business, as principals, for the purpose of joint profit.” (Spaulding v. Stubbings, 86 Wis. 255, 56 N. W. 469, 39 Am. St. Rep. 888.)
If this agreement created a partnership between Rider and McCarty, Rider is liable to Hammell & McCarty for the coal furnished to McCarty, although they may not have known at the time that Rider was a partner. Rider was the owner of a machine and,, •appliances used for boring for oil, coal, gas, etc. He agreed with McCarty to rent it to him, together with the tools, ropes and other appliances then used in operating said machine; to furnish new cables when needed, and pay one-half of the cost of certain tools which in the operation of boring wells were liable to be lost in a well. McCarty was to operate the machine at his own 'expense and pay Rider twenty-five cents per foot for all wells completed. It was also provided that if, in drilling a well, tools should get lost in the well, and by reason thereof the well could not be completed, Rider v^as to receive only his proportion of what should be collected, at the rate of twenty-five cents per foot; also, that Rider should share •equally in any right of development of wells drilled by McCarty in case any should be worth operating. This contract was to terminate on thirty days’ notice.
Does this agreement cpnstitute a partnership between these parties as to themselves? We do not think it does. In the first place, it does not provide that they shall have a joint interest in the business or the profits. Rider was not to receive any of the profits ; he was to get twenty-five cents per foot for all wells completed, regardless of profit. It did not make any difference to Rider what McCarty’s profits were, or if he actually sustained a loss; in either event he was to receive the same pay for the use of the machine. It was of no consequence to Rider whether McCarty’s expenses were much or little ; they neither increased1 nor diminished the rental value of the machine. This agreement was not a combination of property, labor or skill in an enterprise or business as principals. The existence of a partnership implies the relation of principal and agent. This is the real test. (Seaberry v. Bolles, 51 N. J. Law, 103, 16 Atl. 54, 11 L. R. A. 136.) Rider was not a principal; he had no control or supervision over the . contracts made or of the work to be performed thereunder. McCarty might regulate his own charges and negotiate for his pay at any time and in any manner he desired, without consulting Rider ; nor was Rider to receive his pay out of the money collected for boring wells; for anything due him he became a general creditor of McCarty.
The law is now well settled that, where a person loans or advances money or goods to another to be invested in some business or enterprise, the lender to-share in the profits as or in lieu of interest on, or in repayment of, such loans or advances, the arrangement does not constitute a partnership; nor will it constitute a partnership as to third persons, unless the acts of the parties in furtherance of the agreement between, themselves amount to such a holding of themselves out as partners that third persons are misled into a reasonable belief that a partnership exists in fact. (Clifton v. Howard, 89 Mo. 192, 1 S. W. 26; 58 Am. Rep. 97, and note; Richardson v. Hughitt, 76 N. Y. 55, 32 Am. Rep. 267.)
In determining whether a certain instrument operates to create a parthership inter se, the intention of the parties is the important question. If it was not so intended this court will not so declare. In this case we find no such intention, but, on the contrary, we are of the opinion that it was distinctly intended and understood by the parties that no such relation should exist. The agreement between Rider and McCarty was nothing more than the renting of the machine by Rider to McCarty and an agreement by Rider that he would accept for its use a certain amount per foot for the wells completed.
There is another provision in this agreement which should be noticed: “It is hereby mutually agreed that first and second party shall share equally in any right of development of the wells drilled, in case they shall produce sufficient oil to warrant their operation as oil-wells.”
The contract between McCarty and the Bronson Gas and Improvement Company gave McCarty no interest in the wells at Bronson ; consequently as to those wells there is nothing as to which this particular clause of their agreement could apply. Whatever this clause contemplated, it can have no operation in establishing the existence of a partnership between Rider and McCarty in the work done at Bronson.
Notwithstanding there may have been no intention between persons joining in an enterprise to become partners, still they may become liable to third persons as such by their conduct, not because they are partners, but by way of estoppel. If Rider had held himself out or induced Hammell & McCarty to believe that he was a partner, or had negligently permitted McCarty to do so, and the latter had furnished the coal to E. P. McCarty with that understanding, Rider would be estopped to say he was not liable as a partner. But no such facts are claimed in this case. It is stipulated that the coal was sold to McCarty on his individual credit, without any knowledge whatever that Rider was interested in the machine. Rider had, therefore, done nothing himself, nor had he by his negligence permitted McCarty to do anything, that would induce Hammell & McCarty to believe that he was a partner, or which would estop him to say that he was not a partner. There was some oral tes timony introduced on the trial tending to show the relation existing between Rider and McCarty, but nothing did or could, under the circumstances of this case, vary or contradict the written agreement entered into between Rider and McCarty.
When it was admitted that the credit was extended to McCarty personally by plaintiffs below, and that at the time HaiSmell & McCarty had n,o knowledge that Rider had any interest in the machinery, then they could only hold Rider responsible because his agreement with McCarty made him a partner, and oral evidence could not be introduced to contradict or vary this writtent agreement.
The judgment of the court below, holding that there was a partnership existing between Rider and McCarty inter se, or that Rider was a partner as to Hammell & McCarty, and liable to them, was without any evidence to support it. The judgment is therefore reversed and the cause remanded.
Cunningham', Pollock, JJ.-, concurring. | [
80,
106,
-79,
-99,
-104,
-32,
42,
-102,
73,
33,
38,
119,
-23,
-65,
1,
97,
-30,
121,
68,
106,
100,
-78,
7,
66,
-46,
-13,
-7,
-52,
-79,
75,
-84,
-41,
77,
36,
74,
85,
-58,
72,
-43,
92,
-118,
12,
-87,
-20,
88,
8,
52,
121,
116,
75,
33,
6,
-45,
42,
29,
-49,
45,
46,
-17,
41,
81,
-15,
-117,
-123,
93,
16,
1,
70,
-112,
7,
72,
46,
-112,
61,
1,
-20,
114,
-90,
-124,
-43,
9,
-87,
13,
102,
102,
97,
4,
-81,
-20,
-72,
46,
-97,
-99,
39,
-80,
8,
-77,
75,
-66,
29,
114,
20,
-121,
126,
-27,
-99,
25,
-20,
1,
-117,
-108,
-93,
47,
118,
-100,
18,
-21,
-125,
37,
69,
-115,
48,
92,
70,
122,
27,
31,
-108
] |
Per Curiam:
This was an action in ejectment brought to recover possession of lots 1 and 2, block 40, city of Garnett. On August 25, 1884, George W. Iler, the owner of lot 1, and L. K. Kirk, the owner of lot 2, executed and delivered to defendant Edward Davis their title bond, by the terms of which the obligors therein agreed, upon the payment of twenty dollars cash, and the further sum of thirty dollars on or before the 1st day of January, 1895, to convey the premises to Davis. By the express terms of this title bond the time of payment was made of the essence of the contract. Davis also agreed to pay the taxes on the property. t
Davis with his family, consisting of his wife and two children, entered into possession and erected a dwelling-house on one of the lots, and continued to reside therein until the bringing of this action. The cash payment of twenty dollars was made, and the further sum of five dollars was paid on the purchase-price on October 29,1884. Payment of the remainder ■of the purchase-price has not been made or tendered, nor has Davis paid the taxes on the property. There is no claim that the time of payment of the balance of the purchase-money was in any way extended.
On April 13, 1897, plaintiff purchased the property from Iler and Kirk and received a deed therefor. On the 15th day of April, the defendant, Edward Davis, assigned his interest in and delivered to plaintiff the title bond which he had received from Iler and Kirk. Plaintiff redeemed from tax sale and paid the taxes due on the property. Upon demand made, defendants refused ’to yield possession of the property, when this action was brought. Defendants had judgment and plaintiff brings error.
That the time of payment of the purchase-price of real estate may, by express stipulation in the contract of sale, be made of the very essence of the contract, and when so made is to be respected and enforced by the courts like any other stipulation between the parties, is settled. (Mo. River, Ft. S. & G. Rld. Co. v. Brickley, 21 Kan. 275; Grey v. Tubbs, 43 Cal. 359; 1 Beech, Mod. Cont. § 620.) That time was so made of the essence of the contract in this case, and that defendants for a period of more than twelve years after default in the payment of the remainder of the purchase-price held possession of the property without payment or tender of payment, and without any justification or excuse for not making payment, is admitted. It fol lows that the title bond held, by Davis afforded him no defense in this action of ejectment brought by the grantee of the owners of the property. (Boeken v. Alderman, 26 Kan. 738.)
The fact that plaintiff, before bringing the action, received an assignment and delivery of the title bond from Davis, if material, certainly placed Mm in no worse condition than if the bond had remained in the hands of Davis. It conferred no new right of defense upon Davis, imparted no new vitality to the bond.
It follows that the judgment is wrong and must be reversed.
Doster, C.J., Cunningham, Pollock, JJ. | [
-46,
122,
-16,
127,
-72,
-64,
40,
-70,
91,
105,
-92,
83,
-23,
66,
17,
41,
-93,
61,
113,
120,
100,
-93,
103,
99,
-48,
-77,
81,
-59,
-67,
-51,
-28,
-42,
76,
36,
-62,
-107,
66,
-30,
-55,
30,
78,
-96,
43,
68,
-37,
96,
52,
59,
16,
11,
81,
-81,
-13,
41,
53,
67,
73,
46,
-49,
43,
-48,
-8,
-69,
-123,
127,
22,
-79,
-59,
-40,
67,
-24,
42,
-112,
53,
0,
-56,
119,
38,
-122,
118,
13,
9,
8,
98,
102,
32,
45,
-1,
-96,
-104,
38,
-74,
-115,
-89,
-106,
120,
3,
107,
-66,
-99,
125,
0,
38,
-2,
-28,
-123,
29,
108,
7,
-50,
-44,
-109,
15,
56,
-126,
3,
-9,
7,
48,
96,
-113,
-90,
92,
86,
122,
-109,
-113,
-12
] |
The opinion of the court was delivered by
Smith, J.:
This was an action brought on November 12, 1898, by Ella Culp and L. W. Culp, the indorsees of a non-negotiable promissory note l'or $450, payable to Eliza Reed, trustee for Ella Crozier, against Washington Reed, the maker. The note is dated December 17, 1886, and contains the provision that, in case the maker shall fail to pay the semiannual interest for two successive interest payments, when they mature, then the note shall at once become due and payable to the holder. The petition sets out a copy of the instrument sued on, and alleges that certain interest payments have been made as shown by written indorsements thereon. These indorsements show semiannual payments of interest, with the amounts, from June 3 7, 1887, to December 17, 1895, inclusive. The following is written on the back of the note: “I hereby agree to accept five (5) per cent, annual interest on the within bond from June 1, 1890. — Eliza Reed.”
The answer of plaintiff in error, defendant below, averred: (1) That the note was executed to the payee without consideration ; (2) that defendant had made no payments since the date of the note; (8) that plaintiff’s cause of action was barred by the statute of limitations ; (4) that the note was transferred to plaintiffs without any consideration therefor. The plaintiffs offered no evidence, and defendant Reed assumed the burden of proof. There were but two witnesses, Eliza Reed and the defendant below, Washington Reed. Eliza Reed testified :
“ I kept said note in my possession until July, 1897, when I turned it over to Mr. L. W. Culp. I can’t just tell how much was ever paid on that note. I was always very easy and careless about it; just so I had enough to live on I didn’t feel like hurrying the children up. I thought it was all right to let them keep the interest I didn’t want to use. I kept no account of the payments. I marked the payments as though they were made and they were not made. Every time a payment was due I gave credit for it by indorsing it on the back of the note. I can’t tell how much was paid on the note. The last payment was made in 1892, as near as I can recollect. Nothing has been paid on that note by Washington Reed nor by any one for him since 1892. I have no way of fixing the exact time in my mind, but I am satisfied it was not later than 1892.”
Defendant below testified that the last payment he made to apply on the note was on April 6, 1891, but did not state how much he paid at that time. The plaintiff below recovered judgment against Reed for the face of the note, with five per cent, interest from December 17, 1892. Of this Reed complains to this court..
Upon Eliza Reed’s statement that the interest was paid last in 1892 the court was warranted in finding that the interest for 1892 was fully paid. If the interest was paid up to December 17, 1892, then the statute of limitations did not begin to run until December 17, 1893, for by the terms of the note it did not mature until two interest payments were in default. If the statute of limitations began to run on December 17, 1893, then this action, which was commenced November 12,1898, was not barred, for it was commenced four years, ten months and twenty-five days after the last payment of interest.
Plaintiff in error contends that the terms of the note as to interest payments were altered without his consent, and therefore that no recovery can be had. This contention is based on the indorsement as follows : “I hereby agree to accept five (5) per cent, annual interest on the within bond from June 1, 1890. — Eliza Reed.” We do not think there is any substance in the claim made. The language used was simply an offer on the part of Mrs. Reed to accept five per cent. It was a gratuitous proffer by the payee of the note that five per cent, would be accepted in lieu of the seven,per cent, stipulated on the face of the instrument. In the case of Cambridge Savings Bank v. Hyde, 131 Mass. 77, 41 Am. Rep. 141, it was held that a memorandum made by the holder on the back of a promissory note, to the effect that the rate of interest after a certain day will be less than that stated in the body of the note, is not an alteration of the note and does not discharge a surety of the maker, although written in pursuance of an agreement between the holder and the maker of the note, without knowledge of the surety.
The judgment of the court below will be affirmed.
Johnston, Greene, Ellis, JJ., concurring. | [
-14,
120,
80,
-4,
-54,
96,
42,
-102,
73,
-64,
-78,
115,
105,
71,
20,
97,
119,
41,
113,
106,
-58,
51,
55,
73,
-46,
-13,
-15,
-43,
-79,
92,
-20,
86,
76,
52,
-54,
-35,
102,
-54,
-63,
18,
-50,
-107,
9,
-51,
-39,
-22,
48,
59,
80,
77,
53,
-18,
-93,
46,
29,
78,
43,
47,
105,
-71,
-32,
-80,
-118,
-124,
95,
23,
-109,
87,
-108,
76,
-54,
12,
-104,
-107,
8,
-24,
58,
-90,
-122,
-12,
103,
-87,
8,
114,
102,
-111,
-11,
125,
-104,
-104,
54,
-10,
-83,
-90,
-45,
120,
11,
100,
-74,
-99,
116,
80,
-89,
126,
-18,
-115,
24,
96,
13,
-117,
-42,
-109,
14,
126,
-104,
3,
-25,
-89,
32,
101,
-49,
32,
92,
67,
59,
-109,
-114,
-70
] |
The opinion of the court was delivered by
Ellis, J. :
The claim made by plaintiff in error that the second cause of action contained in the amended petition states “an entirely and substantially different cause of action ” than that set forth in the original petition presents a refinement in technicality. The first cause of action was for a conversion of the cattle by the bank, and the claim was made that it had sold, disposed of and otherwise converted them to its own use. In the amended petition it is averred that at the bank’s instigation, and under its direction, the cattle were sold by another; that the bank, with full knowledge of plaintiff’s interest therein, received the proceeds of the sale and converted the same. The transaction complained of in each count was essentially the same. The subject-matter was substantially identical. In each case the grievance of plaintiff below was that by the unlawful acts of the bank he had been deprived of his interest in the cattle.
In the first cause of action he alleged that the acts of the bank officials had directly caused the injury; in the second, that such acts had indirectly caused it. We think the • amendment was properly allowed by the court, and as the same “was permissible and was in fact made,' and as the plaintiff’s action was commenced less than two years after the original cause of action accrued, there is no room for claiming that the cause upon which the plaintiff recovered was barred at the time by the operation of any statute of limitations.” (Culp v. Steere, 47 Kan. 747, 28 Pac. 987.)
Two cases are cited by counsel for the bank in support of their contention that the allowance of the amendment was material error. One is Nugent v. Adsit, 93 Mich. 462, 53 N. W. 620, in which it was alleged in a declaration that the defendant converted “953 bushels of wheat, $1040,” and it was held that the declaration could not be amended after the statute of limitations had run by striking out that item and inserting in lieu thereof “thirty-one acres of growing wheat, $800.” Under the statutes of Michigan relating to amendments that decision was certainly right. Our statute is more liberal, and counsel would hardly contend that such an amendment could not be granted upon terms in a nisi prius court in this state if it should be made to appear that the amendment related to the same transaction as the original averment. The other case, Van de Haar v. Van Domseler, 56 Iowa, 671, 10 N. W. 227, is shown not to be applicable by the argument of the court made in that case. It there clearly appears that the amendment, while it related to the same transaction, not only stated a new cause of action, but also one that was dependent upon facts which were antagonistic to those originally pleaded.
Upon the trial of the case in the court below, the controlling question of fact was whether the bank had knowingly converted the proceeds of the cattle in controversy; that is to say, whether the bank, after having notice of the claim of Layfeth on the cattle in question, had intentionally applied the proceeds thereof to its own use, or in payment of debts due it from Bachelor, or to the payment of other debts in its hands which were owing by said Bachelor. Upon the question of conversion of the funds, the court, at the request of the bank, instructed the jury as follows :
“If G. B. Bachelor paid the proceeds of the cattle •in controversy as his own money with instructions to said bank to pay but the same upon indebtedness of said Bachelor, and you further believe that the bank paid out said money according to the instructions of said Bachelor, without actual notice or knowledge that the notes or money were the proceeds of the sale of the Layfeth cattle, then you must find for the defendant, and the plaintiff must show such actual knowledge or notice by a preponderance of the testimony before you can so find.
“Before the bank would be liable to the plaintiff for any of the proceeds of the cattle upon which he held a mortgage, it must appear either that the bank had such proceeds in its possession when this suit was commenced, or that it was appropriated without authority of Bachelor, or that it had notice that Layfeth had some claim thereto when appropriated."
In its general instructions the court gave the following :
“If the money, the proceeds of the sale of the mortgaged cattle or the 'proceeds of notes given for such cattle, were deposited with the defendant (bank) to the account of said Bachelor, and afterward or at the time of depositing such money, or if before such deposit, Mr. Bachelor gave the defendant authority to apply such proceeds on the indebtedness due the defendant from said Bachelor, and the bank did apply said money on said indebtedness, and at the time had no knowledge that said moneys or notes so applied were proceeds of the sales of the cattle upon which the plaintiff held a mortgage, then the defendant would not be liable to the plaintiff for the money so applied."
These instructions certainly covered the contention of the bank at the trial. The other instructions given the jury in no manner contravened the terms of those just quoted. By their general verdict, therefore, the jury found that the bank's general officers knew at the time that they applied the funds that the plaintiff had a claim on them, or that such officials had notice of such facts as would be equivalent to actual knowledge.
It follows that by such finding of the jury the bank is concluded, for it is decisive that the bank did consciously convert the money derived from the sale of the cattle. As there was evidence to sustain the ver diet, it may not be set aside in this court.
The judgment of the court below is affirmed.
Doster, O.J., Smith, Pollock, JJ., concurring. | [
-14,
-4,
88,
-84,
10,
32,
40,
-102,
67,
-87,
-89,
83,
-19,
-45,
-108,
121,
-9,
45,
81,
106,
-42,
-93,
23,
-54,
-14,
-78,
-47,
-33,
48,
127,
-28,
118,
12,
16,
-54,
-43,
102,
-126,
-63,
92,
-50,
-92,
11,
-51,
-7,
0,
52,
110,
84,
79,
49,
-113,
114,
38,
24,
71,
105,
40,
75,
-67,
-47,
-15,
-70,
13,
95,
6,
-79,
39,
-100,
68,
-56,
42,
-104,
49,
17,
-8,
122,
-74,
-122,
52,
37,
-119,
41,
98,
102,
-111,
109,
-49,
-120,
-104,
38,
95,
-97,
-90,
-108,
88,
3,
32,
-66,
-99,
100,
16,
6,
126,
-14,
5,
31,
108,
21,
-22,
-42,
-77,
-49,
116,
24,
67,
-13,
-121,
-112,
113,
-56,
98,
92,
71,
88,
-109,
-114,
-44
] |
The opinio.n of the court was delivered by
Doster, O. J. :
This was an action of accounting brought by John W. Jones against G. W. Hardy and George Turbush. It was tried to a jury and a verdict and judgment rendered in plaintiff’s favor. Error has been prosecuted to this court.
A recital of the facts out of which the controversy grew is unnecessary. The plaintiffs in error admit that they purchased real estate for the defendant in error with money furnished by him, and that a surplus of the money remains in their hands. They give reasons, from their standpoint, for their failure to account to him for all the money, but the jury found against them and the finding is conclusive. A special defense of Turbush concerning one matter will be presently noticed. The money was placed with the plaintiffs in error in pursuance of a contract to buy property at a judicial sale, which contract, they say, had for its object the suppression of competition — the prevention of bidding at the sale. Such contract, they say, was void as against public policy, and dis-entitles Jones to compel an accounting of the money received from him. The latter part of the proposi tion, the conclusion from the premise of invalidity, is not the law, and if any court has ever held it to be such we have no hesitation in refusing to follow the precedent. As long as an illegal contract remains unexecuted neither party can be held to its terms. At any time before Hardy and Turbush had acted in behalf of Jones the latter might have revoked their authority, or they upon their part might have refused to execute their agency, but even in such case the agents could have been compelled to account to their principal for his money. So, likewise, will they be compelled to account for any unexpended balance remaining over from the execution of the illegal agreement. The surplus money now held by them is not held in pursuance of an illegal agreement, because that agreement has been consummated. Its repayment to Jones will not be in furtherance of an agreement to suppress competition at a judicial sale. The sale has been had, and the unexpended purchase-money is now held by plaintiffs in error the same as they would hold any other money of the defendant in error. The case is quite like that of Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732, in which it was ruled :
“After a partnership contract confessedly against public policy has been carried out, and money contributed by one of the partners has passed into other forms — the results of the contemplated operation completed — a partner, in whose hands the profits are, cannot refuse to account for and divide them on the ground of the illegal character of the original contract.”
The reasoning in that case and authorities cited entirely dispose of the contention of the plaintiffs in error in this case. (See, also, Fox v. Cash, 11 Pa. St. 207.)
Turbush claims that he is not liable because he did not make an agreement with Jones in his own behalf in relation to the purchase of the property, but made it in behalf of an incorporated company of which he was president, and therefore that it, if anybody, was liable ; and he further says that his only object wás to secure from Jones the payment of an indebtedness due to his company, and also that the verdict of the jury was inclusive of an amount which Jones agreed that he should have as payment of his company’s claim. We are of the opinion, from an examination of the evidence, that Jones did promise to pay the claim of Turbush’s company out of the fund primarily designed for the purchase of the land, but we are also of the opinion' that the jury did not include that amount in their verdict. The verdict of the jury in behalf of Jones is not large enough to include the sum which he promised to devote to the payment of the company’s claim. Under the court’s instructions, the jury could exclude it from their verdict and we believe they did so. Aside from the one matter specially mentioned, there was abundant evidence to show Turbush to be equally liable with Hardy to account to Jones.
The judgment of the court below will be affirmed.
Smith, Ellis, Pollock, JJ., concurring. | [
-80,
126,
-40,
-66,
90,
96,
40,
-54,
77,
-128,
-89,
87,
-55,
87,
16,
117,
-16,
105,
112,
106,
69,
-93,
55,
35,
-42,
-13,
-21,
-59,
53,
77,
-12,
-35,
76,
32,
-62,
-111,
-26,
-62,
-63,
-44,
-114,
-93,
8,
68,
-3,
64,
112,
19,
84,
11,
33,
-86,
-29,
46,
21,
-53,
105,
40,
105,
-87,
-47,
-80,
-97,
-115,
111,
22,
16,
119,
-102,
3,
-38,
78,
-112,
119,
1,
-24,
123,
-74,
22,
116,
77,
9,
8,
98,
98,
32,
97,
111,
-16,
-104,
38,
-33,
-115,
-89,
-44,
88,
11,
45,
-74,
-99,
124,
0,
38,
-10,
-4,
93,
25,
96,
3,
-113,
-42,
-78,
-113,
118,
-102,
3,
-26,
3,
-79,
64,
-49,
-30,
93,
23,
82,
-101,
-115,
-44
] |
Tbe opinion of the court was delivered by
Johnston, J.:
This was an action to recover on a promissory note for $850 purporting to have been executed on December 9, 1889, by Ozro H. Lewis and Sarah A. Lewis, his wife, and to foreclose a mortgage of the same date given as security for the payment of the note. In separate answers the defendants alleged that the mortgage, which covered their homestead, was not in fact executed by Mrs. Lewis, nor by any one authorized to sign for her.
The plaintiff replied with a general denial, and also with averments that the note and mortgage in. suit were given for the purpose of procuring money to pay off encumbrances then existing on the mortgaged land.' One was a mortgage lien of $500, and another of $50, which had been executed by the defendants, and which, were paid off and discharged at the request of defendants with the money obtained on the loan. The plaintiff therefore asked that she- be subrogated to all rights and interests in the mortgages so paid off, and for other equitable relief.
At the trial, Ozro H. Lewis testified in a self-accusing way that he signed his wife’s name to plaintiff’s note and mortgage, and that it was done without her authority. This was corroborated by the testimony of his wife, and together they were able to satisfy a jury that Mrs. Lewis did not join in the execution. The plaintiff was equally unsuccessful in securing subrogation to the rights of the mortgage liens paid off with the money which the Lewises obtained on the defective note and mortgage. The court sustained a demurrer to the reply setting up the right of subrogation and rejected testimony offered in support of the right. In that there was error.
It appears that, almost immediately after the execution of the mortgage in suit, Mrs. Lewis was informed by her husband that he had signed her name to the instrument. She knew, too, that the greater part of the money obtained by the loan was intended to be used, and was in fact used, in paying" off liens on the property sought to be mortgaged. Interest on the debt was paid from time to time with her knowledge until August, 1892. The note and mortgage purporting to have been executed by her matured in five years after date, were regular in form and appeared to be duly acknowledged, and plaintiff had no notice of the fraudulent action of Lewis in signing his wife’s name, as he says, without authority, until the answers were filed. With full knowledge of the facts connected with the transaction, the defendants concealed the defects and wrongs in the execution of the mortgage and obtained money to pay off liens on their property, paying, interest on the mortgage as though it were valid until 1892, and then, after default, and when an action of foreclosure was begun, they came into a court of equity and asked that the mortgage be adjudged void, without either paying the amount of the loan or the liens paid off with the money so fraudulently obtained.
The facts bring the case within the authority of Everston v. Central Bank, 33 Kan. 352, 6 Pac. 605, where it was held that, if money is loaned on a forged mortgage, supposed to be valid, to be used, and which was used, to pay off a valid mortgage, the mortgagee or his assignee may be subrogated to the rights of the prior mortgagee, if there are no intervening liens or encumbrances. The general rule is that, where it is equitable and just that a person furnishing money to pay off a debt should be substituted for the creditor, he will be substituted and subrogated to all the rights held by the creditor. (Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453, 57 Am. Rep. 187; Yaple v. Stephens, 36 id. 680, 14 Pac. 222; Hofman v. Demple, 52 id. 756, 35 Pac. 803; Farm Land Co. v. Elsbree, 55 id. 562, 40 Pac. 906; Armstead v. Neptune, 56 id. 750, 44 Pac. 998.) There are no intervening liens or encumbrances, and •therefore this is a clear case for the application of the •doctrine of subrogation. It is highly equitable that the plaintiff, who was without knowledge of the fraud in the execution of the mortgage, should be subrogated to the rights of the prior mortgagees, and it would be very unjust to hold that Mrs. Lewis, knowing that her name had been signed to the mortgage, and that it was to be used to obtain money for the payment of existing encumbrances on her land, and remaining quiet and allowing the mortgagee to pay off valid mortgages existing against the property, might come into court and ask not only that the mortgage should 'be declared invalid but also that prior valid liens which the mortgagee was induced to discharge should also.be declared unavailing.
The pleadings warranted the plaintiff in asking for subrogation. She pleaded and sought to establish the validity of the instrument, and then when answers alleging invalidity were filed she set up facts entitling her to subrogation if the mortgage was found to be void, praying for subrogation and other equitable relief. This is a common and proper course of practice where invalidity of a mortgage sought to be foreclosed is brought out in answer and grounds for ■subrogation exist in favor of the plaintiff.
It is argued, however, that because more than five years have elapsed since the maturity and payment of the prior mortgage liens the defense is barred. If it should be considered that equity has kept the prior debts and liens alive for the benefit of the party who furnished the money to pay them, the payments of interest would be sufficient to toll the statute. The right of subrogation, however, is not founded alone on the notes and mortgages, but is founded on all the facts and circumstances which give rise to the claim of subrogation. (Crippen v. Chappel, supra.) Among the facts and circumstances of the case are the fraud of the husband and the concealment of the fraud by both husband and wife; the inducing of the mortgagee to pay off and discharge existing liens on the faith of the fraudulent instrument; the payments of interest and other conduct which would naturally prevent apprehension or inquiry by the plaintiff as to the validity of the new mortgage. Plaintiff supposed, and had a right to believe, that she had a valid security, and the fraudulent concealment of the facts which made the mortgage invalid prevented her from asserting her right of súbrogation until more than five years after a right of action had accrued on the original debts and liens. The fraudulent concealment and wrong of the plaintiffs can give them no advantage in an equitable action, and until the invalidity of the mortgage was brought to light in the answers the statute of limitations did not begin to run. (Gano v. Martin, 10 Kan. App. 384, 61 Pac. 460; Trust Co. v. Peters, 72 Miss. 1058, 18 South. 497, 30 L. R. A. 829.)
For the errors mentioned the judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with this decision.
Smith, Greene, Ellis, JJ., concurring. | [
-16,
125,
-15,
-84,
-118,
96,
-86,
-102,
81,
-96,
-93,
-45,
-5,
-58,
28,
45,
101,
41,
-15,
104,
70,
-77,
23,
3,
82,
-5,
-47,
-35,
-79,
125,
-12,
-41,
76,
32,
-54,
93,
-26,
-56,
-61,
-106,
-50,
-121,
9,
69,
-39,
66,
52,
59,
118,
12,
117,
-82,
-29,
45,
21,
94,
108,
42,
107,
61,
-16,
-72,
-98,
13,
79,
7,
-112,
39,
-100,
1,
-38,
14,
-112,
53,
1,
-24,
114,
-90,
-122,
-44,
66,
27,
8,
98,
102,
48,
-27,
-17,
-116,
-104,
38,
126,
-107,
-90,
-112,
120,
10,
96,
-66,
-99,
124,
81,
39,
-2,
-18,
29,
28,
100,
14,
-37,
-42,
-111,
-97,
126,
-104,
11,
-25,
35,
48,
113,
-49,
32,
77,
102,
126,
-101,
-114,
-71
] |
The opinion of the court was delivered by
Doster, C. J.:
George Shultz orally agreed with Benjamin P. Pinson to buy town lots of the latter, and as part payment therefor to deliver a promissory note executed by other persons, of which note he was the owner. In pursuance of the agreement Pinson signed and acknowledged a deed to the lots, but left it with the notary public before whom the acknowl edgment was taken to await the completion of an abstract of title which he had agreed to furnish. A building situated upon the lots having been blown down by a cyclone, Shultz refused to consummate the purchase and notified Pinson of his rescission of the contract. The latter brought suit to recover the amount of the promissory note as part of the purchase-price of the property. Judgment went for him in the court below, to reverse which error has been prosecuted to this court.
The action cannot be maintained. There was no note or memorandum of the agreement of purchase signed by Shultz, the party to be charged.
“It is not only contracts for the sale of land which are intended to be embraced (within the statute of frauds), for all the cases show that' a purchase of land is as much within the statute as a sale of it; the policy of the law being not only to protect owners of land from being deprived of it without written evidence, but also to prevent a purchase of land from being forced by perjury and fraud upon one who never contracted for it.” (Browne, Stat. Frauds, 4th ed., § 263.)
The defendant in error claims that the evidence showed an acceptance of the deed by the plaintiff in error, occupancy of the lots by him and an assertion of ownership of them which took the case out of the statute. This is a mistake. Nothing the plaintiff in error did had that effect.
The judgment of the court below is reversed and a new trial ordered.
Smith, Ellis, Pollock, JJ., concurring. | [
-16,
126,
-48,
-82,
42,
-32,
42,
-72,
-55,
32,
39,
91,
109,
-46,
24,
63,
-25,
-83,
113,
106,
95,
-77,
7,
98,
-10,
-13,
-45,
-59,
-79,
76,
-10,
-41,
76,
36,
-62,
29,
102,
-126,
-59,
-48,
-114,
-89,
-119,
68,
-35,
64,
52,
27,
80,
72,
117,
-118,
-13,
44,
29,
75,
-23,
44,
-21,
49,
-31,
-72,
-97,
-115,
127,
7,
-128,
53,
-100,
7,
-56,
14,
-112,
113,
0,
-24,
115,
-74,
-122,
116,
73,
25,
8,
98,
106,
49,
77,
-3,
-8,
-104,
34,
127,
-115,
-90,
87,
88,
-128,
33,
-73,
-99,
125,
16,
39,
118,
-28,
-99,
25,
108,
3,
-114,
-42,
-79,
-97,
126,
26,
1,
-34,
3,
49,
112,
-49,
-32,
93,
103,
57,
-101,
30,
-1
] |
The opinion of the court was delivered by
Doster, C.J. :
A principal ground of error relied on in this case is the refusal of the court to suppress a deposition. Previous to the taking of the deposition the parties entered into a written stipulation as follows :
“That the deposition of such witnesses shall be taken in shorthand by Miss Anna Campbell, of Joplin, and be by her transcribed, and that the deposition, after being transcribed, shall be returned to Wm. F. DeGarmo, notary public, of Jasper county, and the witnesses shall sign and swear to the same as transcribed, and that the signature and oath of the witnesses shall be dated the day that they are subscribed and sworn to, and all objections to said depositions being sworn to at such time instead of the day and time the same is taken are hereby waived.”
Attached to the depositions is a certificate of the notary public before whom they were taken stating that the witnesses
“were by me first, duly sworn to testify the truth, the whole truth, and nothing but the truth, and that the depositions by them respectively subscribed as above set forth were taken in shorthand by Miss Anna Campbell, as per agreement hereto attached, in the presence of the witnesses, and were respectively subscribed by said witnesses in my presence, and ■taken at the time and place specified in the annexed deposition (notice) and contract.”
It will be observed that the above certificate conforms to the requirements of the statute (Civil Code, § 359 ; Gen. Stat. 1901, § 4807), but it also will be observed that it does not state that the depositions were sworn to after being transcribed, as required by the terms of the stipulation under which they were taken, nor was it elsewhere shown that they were sworn to by the witnesses after being given. The ground of the motion tp suppress the depositions was the failure to conform to the stipulation in that respect.
The motion to suppress was rightly overruled. The law declares the competency of witnesses and the forms to be used in admitting their testimony in court. It prescribes the taking of oaths before the giving of the ■testimony, and it is satisfied with the solemnity and sufficiency of the form thus enjoined. Nor could the policy of the law admit a right in the parties to an action to add to the requirements which it deems sufficient. To do so would be to place in the power of the litigants themselves, to be used without settled rule or guidance, the only instrumentality for the ascertainment of truth. This could not be allowed.
Many other errors are alleged, the principal of which were the making of an amendment to the peti tion; that the petition lacked an essential averment necessary to state a cause of action; that a chattel mortgage under which the adverse party claimed was-not delivered and accepted until after the plaintiff in error had attached the mortgaged goods, etc. Minor claims of error as to the admission of evidence and the giving and refusing instructions are also made, but neither they nor any of the principal claims are well founded, and the judgment of the court below is therefore affirmed.
Johnston, Smith, Ellis, JJ., concurring. | [
-80,
-2,
-31,
-99,
-85,
97,
32,
-70,
-13,
-127,
-74,
83,
109,
-46,
12,
97,
-21,
61,
81,
72,
70,
-78,
22,
73,
-10,
-45,
-64,
87,
51,
75,
-26,
52,
76,
42,
-54,
-43,
102,
-54,
-121,
88,
-50,
24,
-87,
-28,
-47,
82,
48,
105,
114,
11,
113,
-9,
-13,
42,
29,
-54,
-55,
44,
106,
121,
105,
-80,
-101,
21,
79,
16,
-79,
102,
-110,
78,
72,
40,
-70,
49,
17,
-8,
51,
-76,
2,
-44,
107,
25,
8,
102,
98,
97,
-3,
-18,
-84,
-72,
47,
126,
-99,
-89,
-110,
73,
43,
45,
-106,
-107,
108,
17,
-122,
-10,
-18,
5,
25,
44,
10,
-49,
-14,
-109,
15,
120,
-100,
3,
-21,
-95,
16,
17,
-59,
-16,
92,
3,
123,
-101,
-50,
-71
] |
The opinion of the court was delivered by
Johnston, J. :
By these proceedings two candidates for office seek to compel the acceptance and filing of their nomination papers. Albert H. Wilson was nominated by the political party to which he belongs as judge of the district court of the thirty-third judicial district; but when he presented his certificate of nomination to the secretary of state for acceptance and filing it was refused, not because of defects in form or matter, but on the theory that no election for that office is to be held this year.
E. H. He wins, who was nominated by petition for sheriff of Shawnee county, presented his nomination papers to John M. Wright, the county clerk, who' de dined to receive and file them, because an election to that office does not occur this year.
In these cases the secretary and county clerk acted in obedience to chapter 176, Laws of 1901 (Gen. Stat. 1901, §§ 2751-2755), which, among other things, provides that no election shall be held for judicial and county offices until the general election of 1902. If this act, the validity of which is challenged, is constitutional, .the refusal to accept and file the nomination papers of the candidates named was justified; but if it is void, judicial and county officers are to be elected at the ensuing November election, and the relators are, therefore, entitled to recognition as candidates and to the relief which they ask.
The measure, which seems to have met with general favor and to have been enacted with unanimity, is designed to dispense with the frequency and irregularity of elections, and also to avoid the agitation and expense which attend them. Under former statutes, some of the district judges and several of the county officers were chosen at the general election of every year. The act in question undertakes to revise the electoral system and readjust the beginning of terms, by providing that all county officers, except county commissioners, shall be chosen at the same general election, and that judicial officers shall only be elected every two years, when state and county officers are elected. To accomplish this purpose and introduce uniformity, the election of county officers who would, under the old order of things, have been chosen at the election in 1901, was postponed until the election in 1902, and judicial elections which would have occurred in certain districts in the odd years were postponed for one year, and required to be held in the even years. This action necessarily left an interreg num of one year between the end of one regular term and the commencement of another, and as to the judicial officers, the act provided that the interval should be filled by appointment of the governor, leaving the interregnum, so far as the county offices are concerned, to be supplied under the general provisions of the law.
It is contended by the relators, who desire to have an election held this year, that the act conflicts with several provisions of the constitution. Indirectly, it is said to conflict with the provision that “general elections shall be held annually on the Tuesday succeeding the first Monday in November N ^rt. 4^ §2.) It is also said to contravene the general policy of this state that officers shall be elected by the people, except to fill vacancies, and that vacancies can only occur where the incumbent resigns, dies, or forfeits his office, and that the governor cannot appoint officers except to fill such vacancies. There is a further contention that the act,, in effect, extends the terms of certain officers beyond the periods limited by the constitution. As to the first proposition, we are clear that the act in no way violates the provision for annual elections. Manifestly there was no purpose to destroy or interfere with that regulation. The constitution does not provide how many nor what particular officers shall be chosen at any election. It certainly was never the intention that each officer should be elected at each annual election, because the official tenure of some of the offices named in the constitution is two years, that of some of the others is three years, and for still others it is four years. The provision simply declares that annual elections shall be held on the Tuesday succeeding the first Monday in November, and was obviously intended to fix the time for general elections, and also to provide an annual opportunity for the election of officers who, under the law, are to be chosen annually, or are to be elected in any year.
When the constitution was framed, and for many years afterward, members of the house'of representatives were elected annually, and hence annual elections were necessary. An annual election is still necessary for the election of county commissioners, and under the statute township officers are now chosen at the annual November elections. It is clear that there was no attempt by this act to abrogate the annual election provided for in the constitution. It still remains for the election of such officers as are to be chosen at that time under either the constitution or the statutes. It has been held that the November election provided for in the constitution ‘ ‘ is the general election, and that, whether few or many offices are to be filled.” It has also been said “that the phrase ‘general election’ has a constitutional, defined, fixed and uniform meaning, and is independent of the terms of the offices or the number of officers to be elected.” (Morgan v. Comm’rs of Pratt Co., 24 Kan. 71; The State, ex rel., v. Foster, 36 id. 504, 13 Pac. 841.)
It is next contended that the postponement of the election of certain officers for a year is against the constitutional policy that officers shall be chosen by election, and also contravenes the provision fixing the terms of such officers. No constitutional provision has been found which expressly or by implication limits the legislature in fixing the terms of district judges and county officers. A limit to the duration of terms is prescribed, but when the terms shall begin and end is fairly within the authority and discretion of the legislature. That body possesses full legislative power, except such as is expressly or impliedly withheld by the state constitution or by the constitution and laws of the United States. Aside from the general grant lodging all legislative power in the house and senate (art. 2, § 1), it is expressly provided that the legislature “shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution.” (Art. 2, § 19.)
It is true, as was held in The State, ex rel. Goodin, v. Thoman, 10 Kan. 191, and Peters v. Board of State Canvassers, 17 Kan. 365, that when the constitution fixes the duration of a term it is not in the power of the legislature either to extend or abridge it. An examination of the act challenged, however, shows that no attempt has been made either to lengthen or shorten official terms, or to alter or affect the tenure of the incumbents of any of the offices named in the act. The policy of the statute, as we have seen, is to secure uniformity in the beginning of official terms, and also to avoid the expense, agitation and other disadvantages of frequent elections. The postponement of elections for one year is a reasonable and, in fact, the only practicable method of accomplishing the beneficial purpose of the legislature. If the legislature had postponed elections an unreasonable length of time, longer than was necessary to effect the avowed purpose, and so long as to betray an intention to make the offices appointive by preventing the people from choosing their officers at stated intervals and for regular terms, or, if it appeared that it was done merely to extend official terms and as a favor to incumbents of offices, there might be occasion for judicial interference and condemnation.
In Minnesota an election was postponed when the judicial term was extended from four to six years, and it was claimed that it was beyond the legislative power. The supreme court of that state held that the legislature might make reasonable changes in respect to the time for holding the election for such offices, even to the extent of making the incumbents previously elected hold over during an interval of two years. The constitutional requirement for election of such officers was held to be satisfied, “if provision was made by law for the election of such officers at stated periods, unless these periods are fixed at times so far remote from each other as to raise the presumption of a design substantially to deprive these offices of their elective character, and this decision is in conformity with the prevailing legislative usages and construction ever since the adoption of the constitution. The legislature is not at liberty to abuse its authority in such cases, and we cannot presume it has done so in this case.” (Jordan v. Bailey, 37 Minn. 174, 31 N. W. 778.) In that case a postponement for two years was deemed not to be an unreasonable change nor to warrant the court in imputing to the legislature an unworthy purpose in making it; and further, that the holding over of the incumbents during the interval of two years was not sufficient of itself to show an intention to deprive the office of its elective character.
The postponement of elections to secure public convenience or uniformity in the beginning of official terms has never been deemed violative of the state fundamental law. The annual election of justices of the peace, whose terms are fixed by the constitution, was postponed in 1875 from April till November, and it was provided that the incumbents should hold their offices during this interregnum of months between the end of the regular term under the old system and the commencement of the regular term under the new system. (Laws 1875, ch. 92.) The change, which was made for the same purpose and was almost as radical as the one under consideration, has met with judicial approval. (Odell v. Dodge, 16 Kan. 446; Jones v. Gridley, 20 id. 584.)
In 1875 the legislature changed the time when the terms of county treasurers should begin from July till October. It designated the interval between the two regular terms as a vacancy, and authorized the county commissioners to fill it by appointment. This act was brought under the consideration pf the ceurt as te the succession of terms, and the question was decided on the theory that the legislature had full power to readjust the commencement of terms and had properly exercised that power. (Horton v. Watson, 23 Kan. 229. See, also, Davis v. Patten, 41 id. 484, 21 Pac. 677.)
In 1899 the terms of office of county superintendents were made to begin on the second Monday of May instead of the second Monday of January, and power was given to the county commissioners to fill the offices during the interval of four months by appointment. No test of the validity of the act has been had in this court, but the legislature acted on the assumption, and had a right to assume, that the approval of the acts changing the commencement of terms of justices of the peace and county treasurers warranted it in changing the commencement of the terms of county superintendents.
The period intervening between the regular terms, as readjusted under the law of 1901, is somewhat longer than the interregnum in the instances mentioned, but the length of time is not so great as to indicate a purpose other than to subserve public convenience and public welfare, and, as has already been said, i%.j.s no longer than necessary to project a new system of official terms by which the beneficial purpose of the legislature is to be accomplished.
Much reliance is placed by relators on The State, ex rel. Goodin, v. Thoman, supra, where some of the questions involved here are discussed. We find nothing in it, however, which denies the power of the legislature to fix the commencement of terms or to provide for the interregnum arising from such readjustment. It simply decided that the constitutional term of four years for district judges could not be extended or changed by the legislature, and that the general machinery for conducting elections was applicable to the election of judges, where no specific provision was made for their election. The enactment of a law in the middle of a term intended either to extend or abridge the term is necessarily without force, and invalid. But the election and the inauguration of a new system for the commencement of terms were not presented to the court in that case nor in the case of Peters v. The Board of State Canvassers, supra, which followed the Thoman case.
It is true, as argued, that the legislature cannot make the judicial and county offices appointive rather than elective; and it is also true, as was remarked by Justice Valentine in Rice v. Stevens, 25 Kan. 302, that “the theory of our law is that officers shall be elected whenever it can be conveniently done; and that appointments to office will be tolerated only in exceptional cases.” Here we have an exceptional case. The constitution requires that these officers shall be elected for regular terms, and if provision is made for such elections for regular terms the requirement of the constitution is satisfied. From, the beginning it has been held that the legislature had the power to provide for interregnums, or exceptional terms, intervening between regular terms, or before the commencement of terms as established by law. In Hagerty v. Arnold, 13 Kan. 383, it was held that, the constitution having fixed the terms of offices, the legislature cannot make them more nor less, but for vacancies or exceptional terms the legislature has the power to say how the offices shall be filled up to the time when the regular terms commence, even if it requires two elections in one year. (See, also, Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 243; The State, ex rel., v. Comm’rs of Hodgeman Co.; 23 id. 264; Morgan v. Comm’rs of Pratt Co., 24 id. 71; The State, ex rel., v. Mechem, 31 id. 435, 2 Pac. 816; Ward v. Clark, 35 id. 315, 10 Pac. 827; The State, ex rel., v. Foster, 36 id. 504, 13 Pac. 841; The State, ex rel., v. Breidenthal, 55 id. 308, 40 Pac. 651.)
In making provisions for exceptional terms, or interregnums, arising from a change in the time of elections, tha constitutional right of no officer is infringed. He is entitled to hold his office for the fixed term for which he was elected and until his successor has qualified. He does not hold, as in some of the states, until his successor is elected and qualified, but he holds over only till such time as his successor, who has been chosen according to law, has qualified and presents himself for the office. It will be observed that in some of the cases cited the vacancies or exceptional terms have been filled by provisional appointments, and in others that the incumbents have been permitted to hold over until the beginning of the regular term. It is immaterial whether the interval between the regular terms is called a vacancy, an interregnum, or an exceptional term. Whatever it is, there is no doubt power in the legislature, under the authorities cited, to make provision for the occupancy of the office until the beginning of the next regular term, and the fact that an appointment is provided for will not render the act invalid.
The question of legislative power to postpone elections and readjust the commencement of official terms has been affirmatively decided by courts of other states, and most of them have constitutional limitations upon the terms and tenure of officers similar to those found in our own constitution. The exercise of the power has been generally sustained. (In re County Treasurer, 9 Colo. 631, 21 Pac. 474; Sipe v. The People, 26 id. 127, 56 Pac. 571; State, ex rel., v. Compson, 34 Ore. 25, 54 Pac. 348; Loring v. Benedict, Auditor, et al., 15 Minn. 198; Jordan v. Bailey, 37 id. 175, 33 N. W. 778; Sprague and others v. Brown, 40 Wis. 612; The People, ex rel., v. Supervisors, etc., 100 Ill. 495; The State, ex rel. the Attorney-general, v. Ranson, 73 Mo. 89; The State, ex rel. the Attorney-general, v. McGovney, 92 id. 428, 3 S. W. 867; The State, ex rel. Harrison, v. Menaugh et al., 151 Ind. 260, 51 N. E. 117; Scott v. State, ex rel. Gibbs, 151 id. 556, 52 N. E. 163; Larned v. Elliott, 155 id. 702, 57 N. E. 901; State v. McCracken, 51 Ohio St. 123, 36 N. E. 941.)
The matter of dispensing with unnecessary elections and of securing uniformity in the commencement of official terms is one that is purely political in its character, and. within the discretion of the legislature as well as within its power. Whether the interval between the regular terms of judges is to be filled as specially provided for in the act — and that is the opinion of the writer — or whether it is to be filled under other provisions of the law, there is no doubt of the validity of the act, and that the secretary of state rightly determined that there was no election to be held this year. Whether the incumbents of county offices affected by the act shall continue in office, or whether appointments shall be made under the general law, is not a question for decision at this time. It is enough to say that the act of the legislature in postponing the election and providing that the terms of all county officers shall begin at the same time does not conflict with any constitutional limitation.
The frequently used and well-worn objection, that the act contains more than one subject, and, therefore, is in violation of section 16, article'2, of the constitution, is made. The objection is without force. Only one general subject is embraced in the act and that relates to elections. (Woodruff v. Baldwin, 23 Kan. 491; The State v. Barrett, 27 id. 213; Blaker v. Hood, 53 id. 499, 36 Pac. 1115, 24 L. R. A. 854, and authorities cited.)
In each, of the cases the motion to quash the alternative writ will be allowed and final judgment entered in favor of the defendants. | [
-76,
108,
52,
-35,
-22,
-64,
-106,
30,
90,
-79,
-27,
83,
-23,
-38,
20,
113,
-5,
47,
85,
105,
-60,
-105,
115,
64,
98,
-45,
-37,
-35,
-73,
-31,
-12,
117,
72,
-80,
-102,
-107,
-58,
96,
-49,
92,
-122,
34,
41,
-51,
-38,
-64,
60,
109,
114,
75,
85,
63,
-29,
40,
28,
-29,
-23,
44,
-39,
-86,
-47,
-79,
-98,
-107,
124,
22,
-109,
68,
-102,
-121,
72,
46,
-104,
53,
-46,
-20,
19,
-90,
22,
-10,
77,
9,
40,
102,
42,
17,
-91,
-83,
-72,
-86,
28,
54,
15,
38,
-109,
73,
-22,
8,
-74,
-103,
87,
16,
79,
-2,
-30,
5,
23,
40,
12,
-118,
-74,
-73,
79,
122,
-118,
3,
-17,
-96,
112,
113,
-60,
-10,
94,
-57,
49,
19,
-50,
16
] |
The opinion of the court was delivered by
Ellis, J.:
This is a controversy between the Abilene National Bank, of Abilene, Kan., the treasurer of Dickinson county, and the treasurer of Shawnee county, growing out of a deposit of money with the clerk of this court as additional security and to supplement a bond to stay execution, pending an appeal from a conviction of felony in the district court of Dickinson county.
Having been convicted of the crime of embezzlement in the district court of Dickinson county, Robert June appealed to this court and tendered a bond for stay of execution. The justices of the' court present, at the time being in doubt as to whether such bond was sufficient, W. C. June, a son of the defendant, and one of the sureties on the bond, offered to deposit with the clerk of the court, as additional security and to supplement the bond, the sum of $1000 in money, upon condition that it should be returned to him in case Robert June should surrender himself to the sheriff of Dickinson county when required by the order of this court, and forfeited in case the appellant should fail to comply with such order. The deposit was accepted, and appellant was released from custody. Afterward the case was heard in this court, the judgment of the court below affirmed, and appellant ordered to surrender to the sheriff of Dickinson county. The appellant failed to comply with such order but fled to a foreign country; and, upon notice to his attorneys and to W. C. June, personally, the bond and deposit were forfeited by order of this court.
The Abilene National Bank, a judgment creditor of Robert June, instituted proceedings in garnishment and sought to reach the fund in the hands of the clerk, as the property of its judgment debtor, and it is agreed that the- parties to such proceedings shall abide by the decision herein. The treasurer of Shawnee county appeared by leave of this court, and applied for an order requiring the clerk to pay the money to him for the benefit of the common schools of his county, and a similar motion was filed by the treasurer of Dickinson county, asking that the fund be paid to him. The Abilene National Bank, upon permission duly granted also filed a motion claiming the money on the ground that it was furnished to the depositor by Robert June, at or about the time the former made the deposit with the clerk of this court, and that because said Robert June had obtained the money by false and fraudulent representations from the bank it ought to be regarded as a trust fund and restored to its rightful owner.
Testimony has been taken by depositions, and, by stipulation, the evidence introduced in the district court of Dickinson county in the case of The State v. Robert June is, so far as applicable, to be considered by this court. We have patiently perused that record and the depositions, and are of the opinion that the money deposited belonged to W. C. June, and that no part of it came from Robert June or from the bank at any time. This conclusion is sustained by a clear preponderance of the evidence, and it is decisive of the claims of the bank. Neither under its proceeding in garnishment nor upon its application made direct to this court can the bank be awarded the money, and it is unnecessary for us to decide whether, if the fund had been derived from the bank, or from the proceeds of property purchased with money supplied by the bank, it could be impressed with a trust in its favor.
W. O. June is not entitled to recover the money. By failing to appear and make claim to it, or to except to the judgment of this court declaring it forfeited, he must be held to have waived his right, if any he had, to reclaim the deposit, and as to the power of this court to control and award said fund to the lawful claimant he cannot now be heard. By that judgment he is forever concluded. It is unnecessary for us to determine whether a stay of execution against a person convicted of felony may be granted by this court or one of its justices upon a deposit of money with the clerk in lieu of giving the bond prescribed by chapter 127 of the Laws of 1889. (Gen. Stat. 1901, § 5725.) The parties now before us are not in a position to raise that question.
The application of the treasurer of Shawnee county must be denied. The forfeiture, treating the double security as though an ordinary bond to stay execution had alone been given, was incurred in Dickinson county, and the mere fact that it was declared by this court sitting at the capital of the state within Shawnee county does not give to that county a greater right to the fund than is possessed by any other county in Kansas. (Const., art. 6, § 6; Gen. Stat. 1901, § 5770; County of Galveston v. Noble, 56 Tex. 575; State v. Speice, 24 Neb. 386, 38 N. W. 837; Decatur County v. Maxwell, 26 Iowa, 398.)
It follows that the cash deposit belongs to the fund for the support of common schools of Dickinson county, and an order will be made by this court requiring it to be paid to the treasurer of that county.
Doster, C.J., Smith, Pollock, JJ., concurring. | [
-14,
108,
-80,
92,
74,
64,
43,
26,
3,
-95,
-95,
83,
-23,
-54,
4,
123,
-66,
127,
-43,
121,
-61,
-73,
103,
105,
-46,
-13,
-47,
-59,
-78,
93,
-90,
-43,
73,
112,
-118,
-43,
38,
74,
-61,
92,
-114,
1,
40,
117,
-33,
10,
32,
-81,
50,
10,
117,
62,
-29,
43,
60,
-62,
105,
44,
-37,
-67,
80,
-15,
-86,
-123,
127,
21,
-111,
7,
-100,
71,
72,
46,
-104,
51,
0,
-24,
123,
-90,
-122,
-12,
109,
-23,
41,
-10,
98,
2,
-76,
-49,
-92,
-120,
62,
-34,
-115,
-89,
-109,
88,
99,
8,
-106,
-99,
117,
54,
6,
-4,
-85,
5,
17,
108,
3,
-38,
-78,
-109,
-115,
60,
10,
95,
-5,
33,
-80,
113,
-51,
-30,
92,
-41,
56,
19,
-114,
-15
] |
The opinion of the court was delivered by
Greene, J.:
This action was brought before a justice of the peace by Julius Meyer against plaintiff in error, A. J. Lesh, to recover on an account for merchandise sold by Meyer to one W. L. Peck, and also on several other causes of action for merchandise sold by others to said Peck, the accounts for which were assigned by such creditors of Peck to Meyer. The bill of particulars contained an itemized statement of each account, with a written assignment thereof to Meyer. It was alleged that while Peck was indebted on the accounts in suit he sold to said Lesh a certain stock of drugs, and that, as part of the consideration of the purchase-price, Lesh had agreed with Peck to pay these outstanding debts. •
The defendant below, plaintiff in error, answered, specially denying that he was indebted to .plaintiff below and denying that as part consideration for the purchase-price of such stock he had agreed to pay any portion of such indebtedness. The answer also contained a general denial. The answer was verified as follows: “A. J. Lesh, the defendant herein named, being duly sworn, on oath says, that each and all of the allegations on the first and second pages herein of his answer are true. So help him God.” This affidavit was regularly sworn to before a notary public. Following it in the record, however, is this recital: 4 ‘ The general denial contained in the foregoing answer was on page 3 of said answer as originally written and filed, and was not verified.”
Upon the trial, Meyer recovered judgment for the full amount of his original demand, and also for the claims assigned to him. Lesh appealed to the district court, and upon a final trial there Meyer again recovered. Lesh brings the case to this court.
His first contention is that the court below erred in refusing to grant him a continuance. In this we think there was no error. Under the rules of that court, a motion for a continuance must be filed at tLe opening of the court, or, if afterward, a showing made why the application had not been filed as the rules of the court required. Court convened June 14, and the application was not filed until June 20, and no showing was made why it was not filed when court convened. Courts have the power, and it is their duty, to adopt and enforce reasonable rules for the transaction of business. This was a reasonable rule, and should have been complied with by defendant below, and his non-compliance is a sufficient reason for refusing the continuance.
The application was made on the ground that the plaintiff in error desired to take the deposition of Peck, by whom he expected to prove that he had not agreed to pay any of these outstanding liabilities as a part consideration for the purchase of said stock of goods. The record shows that this cause was first tried before a justice of the peace and judgment rendered for Meyer, from which plaintiff in error appealed to the district court, where it was again tried, in 1897. This trial also resulted in a verdict for Meyer. A new trial was granted, and the cause continued until the. March, 1898, term. At that term, upon application of plaintiff in error, the cause was continued until the June, 1898, term of said court. The application for the continuance, of the refusal of which plaintiff complains, stated that Peck, whose deposition he desired to take, and by whom he expected to prove that he had not agreed to pay any of the accounts in suit, was a traveling man, and that his home was in Hiawatha, Kan.; that plaintiff in error had given notice to take his deposition on June 17, 1898, but failed at that time to get service on Peck, and that he had again served notice and expected to take his deposition on June 20. This action had been pending more than a year and had been twice tried, and one continuance had at the request of plaintiff in error. He was therefore familiar with the issues in question, and knew by whom he could prove this defense. There was no reason given why he had not procured this evidence long before the convening of that term of court. In failing to do so, we think he was guilty of negligence, and that the order of the court in refusing to grant him a continuance was not error.
The second contention is that this cause ought to be reversed for the reason that the plaintiff below was not the real party in interest. This contention cannot be sustained. The plaintiff’s bill of particulars contained several causes of action, one of which was on an account for merchandise sold by himself to Peck. As to this cause of action he was the real party in interest and could maintain an action. It is claimed, however, that, as to the other causes of action on the accounts assigned to the plaintiff below, he had no beneficial interest. It will be observed that the verification of defendant’s answer only covered the allegations on the first and second pages thereof. The execution of the assignment was not included in these special denials. The recital in the record states that the general denial was on the third page of the answer. It appears, therefore, that the general denial was not verified ; consequently the execution of the written assignment of the several accounts to Meyer was admitted. Under this state of the pleading, the defense that Meyer was not the real party in interest — that the assignment was only colorable, and that he had no such beneficial interest as would entitle him to maintain the action — was new matter, and should have been pleaded before evidence is admissible tending to prove such defense. There was no error in excluding the evidence upon this point, and, for the same reasons, the instructions complained of were not prejudicial to plaintiff in error. Whether the plaintiff holding the legal title to an unsettled account, but having no beneficial interest therein, is the real party in interest, we do not decide.
There are other complaints, such as misconduct of the jury and the refusal of the court to admit in evidence a written ex parte statement of Peck, but we find no merit in them.
The judgment of the court below is affirmed.
Doster, O. J., Johnston, Pollock, JJ., concurring. | [
-80,
124,
-7,
-35,
-54,
96,
42,
10,
113,
0,
-89,
115,
-23,
66,
20,
125,
-13,
61,
81,
106,
79,
-73,
7,
97,
87,
-77,
-5,
-43,
49,
77,
-27,
-99,
12,
-96,
-62,
21,
-26,
-62,
-63,
22,
-122,
11,
24,
104,
-7,
64,
48,
59,
80,
75,
33,
30,
-29,
46,
29,
79,
45,
44,
105,
57,
-48,
-72,
-101,
13,
95,
6,
19,
6,
-100,
7,
-54,
58,
-104,
16,
-127,
-23,
122,
-74,
-122,
116,
45,
-71,
40,
98,
102,
-96,
5,
-27,
-72,
-120,
46,
-97,
-115,
-122,
113,
116,
74,
44,
-74,
-99,
52,
24,
39,
118,
-24,
-100,
25,
-84,
11,
-118,
-74,
-109,
-97,
116,
-100,
11,
-2,
-109,
48,
65,
-50,
48,
92,
87,
88,
-101,
-114,
-46
] |
The opinion of the court was delivered by
Johnston, J.:
The result of this proceeding depends on the authority of the court to make an order reviving a judgment without the consent of the judgment debtor more than a year after it had become dormant. The judgment in question was obtained before a justice of the peace November 26, 1892, and on it an execution was issued and returned on November 28, 1892. No other steps toward its enforcement, or to keep it alive, were taken, and it became dormant on November 28, 1897. A proceeding to revive the judgment was begun before a justice of the peace on November 10,1898, and, there being some delay about providing security for costs, a bond for costs was not given until November 30, 1898, and the order and decision reviving the judgment were not made until December 16, 1898. Upon an appeal to the district court, it was ruled that the order of revivor had not been made within the statutory time and the proceeding was, therefore, dismissed.
A dormant judgment may be revived in the same manner as is prescribed for reviving actions before judgment, and neither can be revived without consent unless the order of revivor is made within one year after it could have been first made. (Civil Code, §§ 433-440 ; Gen. Stat. 1901, §§ 4883-4890.) Proceedings to revive an action and a judgment are substantially the same, and it is competent• for a justice of the peace to revive the judgment rendered before him which had become dormant. (Israel v. Nichols, Shepard & Co., 37 Kan. 68, 14 Pac. 438.)
As revivor is purely statutory in its origin, it can be accomplished only in the mode and on the conditions prescribed by the statute. As will be seen, the statute' explicitly provides that an order of revivor shall not be made without consent, unless within one year from the time it could have been first made. This is not a, limitation upon the commencement of proceedings, nor upon the time within which to make application for an order, but it is a limitation upon the granting of the order itself. In some of the- cases this distinction has not always been noted, but where the matter of time was involved it has been held that the courts were without authority to revive actions or judgments more than one year after they have become dormant.
In Scroggs v. Tutt, 23 Kan. 181, it was held that a judgment could not be revived more than a year after dormancy except with consent, and that an order permitting revivor after the lapse of a year was error. In Tefft v. The Citizens’ Bank, 36 Kan. 457, 14 Pac. 783, an attempt was made to revive the judgment, which had been dormant for more than a year. In that case the application to revive was filed before the expiration of the year, and it was held :
“The filing of the motion and the giving of the notice are not sufficient to bring the case within the limitation. The point of limitation prescribed by the statute is the making of the order, and not the commencement of the proceedings to obtain the order. One year is given within which the judgment may be revived. The procedure is simple and the facilities are ample to obtain the order, as it may be obtained upon motion, a notice of which is to be served upon the adverse party in the same manner as a summons is served, and returned within the same time, and the power to revive the judgment is conferred upon the judge at chambers, as well as upon the court in term time.”
The interpretation of the code provisions as to revivor and the distinction between the limitation of the right to revive and the ordinary limitations on the commencement of actions was pointed out in Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620. It was there held:
“In the matter of a revivor there is no right to an order, nor is there power within the court or judge to make one, unless it is made within one year after it could have been first made. The limitation in section 23 refers to the commencement of actions, and fixes the time within which a party must judicially assert his claim, while the limitation on revivor relates. to the power of the court and fixes a limit for the final determination of the matter and the granting of an order. The first is a limitation on the remedy, while the second operates as a condition on the right itself, and, if a party fails to bring himself within the condition, the right to a revivor does not exist and there is no power in the court to revive the dormant judgment.”
It is suggested that a limit on the time of making the order rather than on the time of making the application for it gives an opportunity to the opposing party, by dilatory tactics, to delay the hearing of an application begun in good time beyond the year, and thus defeat a revivor. All limitations are necessarily arbitrary, but parties reasonably diligent may safely trust the courts to protect their rights as against such tactics. If formal proceedings to revive, brought in the form of an ordinary action, are likely to be protracted beyond the year, or if the regular term of court is fixed beyond that period, a party may resort to the more summary and speedy method authorized by the code. It may be obtained upon motion before a judge at chambers, and, hence, there is little danger that a diligent party will be unable to protect his rights or to obtain an order within the year within which seasonable application has been made.
The judgment in controversy having been dormant more than a year before the order of revivor" was made, the district court ruled correctly that the order was a nullity, and, therefore, its judgment will be affirmed.
Doster, C.J., Smith, Ellis, JJ., concurring. | [
-112,
102,
-43,
-98,
74,
96,
34,
22,
64,
-30,
50,
83,
-87,
-54,
4,
111,
86,
105,
117,
106,
78,
-73,
55,
73,
90,
-13,
-64,
-51,
-79,
111,
-10,
-42,
12,
48,
-118,
-43,
102,
-63,
-63,
-42,
-114,
-121,
24,
109,
-47,
8,
48,
25,
82,
15,
53,
122,
-13,
43,
25,
-49,
105,
40,
-53,
-83,
-47,
-40,
-101,
-123,
111,
22,
1,
7,
-100,
-63,
120,
-82,
-100,
29,
0,
-24,
115,
52,
-121,
118,
111,
-117,
40,
114,
98,
-128,
69,
-17,
-72,
-88,
22,
-106,
15,
-90,
-112,
16,
10,
101,
-66,
-97,
92,
20,
39,
-18,
-89,
-123,
-99,
-84,
13,
-54,
-42,
-75,
95,
124,
-118,
65,
-33,
-93,
-80,
117,
-20,
-28,
92,
82,
83,
27,
-98,
-80
] |
Appeal from Doniphan district court. | [
-128,
-2,
-100,
8,
-118,
-96,
1,
62,
66,
-79,
103,
119,
-81,
-30,
21,
123,
-125,
109,
-123,
105,
-45,
55,
118,
-32,
-70,
-5,
-101,
-57,
-71,
77,
-27,
-5,
76,
49,
-54,
93,
70,
-128,
-1,
-36,
6,
3,
-119,
-51,
113,
66,
40,
56,
26,
11,
101,
-108,
-30,
44,
26,
-61,
-39,
-20,
91,
33,
81,
-45,
-92,
29,
125,
22,
-95,
20,
-98,
-126,
90,
46,
-104,
57,
2,
-20,
115,
-90,
-124,
84,
11,
-37,
-123,
48,
66,
3,
-71,
-49,
-68,
-88,
22,
92,
-105,
-90,
-112,
57,
73,
-61,
-106,
-97,
103,
68,
-121,
126,
104,
-107,
87,
111,
3,
-49,
48,
-77,
-118,
-71,
-108,
26,
-50,
-98,
48,
113,
-63,
18,
92,
-59,
51,
-37,
-34,
26
] |
The opinion of the court was delivered by
Smith, J. :
The court did not err in overruling the application for a change of venue. The remarks of the judge were made to Carrie Nation and others m a proceeding to which the appellant was not a party. No personal prejudice towards Stark was shown. From all that appears, the judge might have been kindly disposed toward the defendant. The attack on Sunday, referred to by the judge, related to the conduct of other parties with whom the appellant was not connected. Had the language coming from the bench been directed to> Stark, he might have had reason to complain. His case was not, however, before the court at that time. It has been held that a change of venue is a wrong to the public, unless the interests of justice to the defendant require it, and that prejudice on the part of a judge toward a defendant must clearly appear. It is not sufficient that a primo, facie case only be shown. (City of Emporia v. Volmer, 12 Kan. 622, 627.) The record shows that the district judge tried the case with fairness, and, the punishment imposed was exceedingly moderate, considering that the maximum for such offenses is imprisonment in the county jail not exceeding one year, and fine not exceeding $500, or both such fine and imprisonment.
The granting of a continuance was largely a matter within the discretion of the court. The offense charged was a misdemeanor. We do not think any of the rights of the defendant were prejudicially affected by the absence of attorneys who had prepared for the trial. He was represented by counsel of high standing and ability, and we find nothing in the record to indicate that any point favorable to him was overlooked.
There was some confusion in the answers made by the juror Hale Ritchie touching his opinion of the guilt or innocence of the defendant, but his whole examination, taken together, does not show him to have been disqualified.
Complaint is made that several of defendant’s witnesses, upon cross-examination, were subjected to rigid inquiries as to the existence of a certain organization formed for the purpose of destroying property. Nothing more was extracted by the state from such witnesses than the defendant himself confessed concerning such organization. He admitted that he was a memher of a company which assembled on state-house steps and from there moved to the place where the property in question was injured, and that he took an ax along because he thought he might be called on to use it. There was no error in the instruction that if the defendant was present, advising, counseling or encouraging the breaking of the doors and windows, he was equally as guilty with those actually committing the offense, although he may not in person have injured said property. In misdemeanors, all concerned, if guilty at all, are principals. (The State v. Gurnee, 14 Kan. 111; Sharpe v. Williams, 41 id. 56, 20 Pac. 497.)
The appellant offered to prove that the prosecuting witness, at the time the trespass was committed and his property injured and destroyed, was the keeper of a place where intoxicating liquors were sold as a beverage in violation of law, and that the property in question was unlawfully used as an accessory thereto. This offer was rejected by the court and the testimony excluded. Upon this ruling the question arises whether, the owner of the property having employed it as an aid to the maintenance of a common nuisance, the appellant was justified in being a party to its destruction without process of law. Under our statutes all places where intoxicating liquors, are sold, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where such liquors are kept for sale, barter or delivery in violation of the prohibitory liquor law, are declared to be common nuisances ; and, upon the judgment of a court having jurisdiction that such places are nuisances, the sheriff or constable or marshal of any city where the same are located shall be directed to shut up and abate such places, by taking possession thereof, and of all intoxicating liquors found therein, together with all signs, screens, bars, bottles, glasses and other property used in keeping and maintaining said nuisances, and the same shall be forthwith publicly destroyed by such officer. It is further provided that the attorney-general, county attorney, or any citizen of the county where such a nuisance exists, may maintain an action in the name of the state to abate and perpetually enjoin it. Here is a complete legal remedy, easy to obtain, which was open to the appellant or any of his associates. Indeed, 'we believe it to be more drastic and summary in its application to the subject than the law of any other state in the union.
The existence of such common or public nuisance as appellant offered to show was kept by the prosecuting witness, in violation of law, injuriously affected all other persons in the city of Topeka equally with himself. It is not claimed that he was specially injured, or peculiarly or individually hurt, in any other manner or degree than in common with all others in the community. He could not have maintained an action in his o wn name to abate the nuisance. (Jones v. Chanute, ante, p. 243, 65 Pac. 243.)
In the case of Brown v. Perkins and wife, 12 Gray, 89, the supreme court of Massachusetts had before it a similar question. In an action of tort for breaking and entering the plaintiff’s shop and carrying away and destroying a barrel of vinegar and other goods, the answer of the defendant alleged that the building was kept for the sale of intoxicating liquors and was a public nuisance ; that a large number of persons assembled to abate the same, and destroyed or injured no article of merchandise, but only spirituous liquor, unlawfully kept for sale, and did no other act, and used no more force, than was necessary to abate such nuisance. By statute in force in Massachusetts at that time, all intoxicating liquors kept for sale, and the vessels and implements actually used in selling and keeping the same, were declared to be common nuisances and were to be regarded and treated as such. By another statute, all buildings or tenements used for the illegal keeping or sale of intoxicating liquors were declared to be common nuisances. The trial court instructed the jury that intoxicating liquors kept for sale, with the vessels containing them and articles used in their sale, being declared by law to be a common nuisance, it was lawful for any person to destroy them by way of abatement, and that such action would be the exercise of a common and lawful right. This instruction was held to be erroneous. The opinion was delivered by Chief Justice Shaw, one of the ablest of American jurists, and we extract from it such portions as are most pertinent to the question before us :
“It is not lawful by the common law for any and all persons to abate a common nuisance, merely because it is a common nuisance, though the doctrine may have been sometimes stated-in terms so general as to give countenance to this supposition. This right and power is never entrusted to individuals in general, without process of law, by way of vindicating the public right, but solely for the relief of a party whose right is obstructed by such nuisance.” ( Page 101.)
“The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action; and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway,- and an unauthorized bridge across a navigable watercourse, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of other parts of the commonwealth, having no such occasion to use it, to do the same. Some of the earlier cases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark this distinction; but we think, upon the authority of modern cases, where the distinctions are more accurately, made, and upon principle, this is the true rule of law.” (Pages 101, 102.)
“The keeping of a building for the sale of intoxicating liquors, if a nuisance at all, is exclusively a common nuisance ; and the fact that the husbands, wives, children or servants of any person do frequent such a place and get intoxicating liquor there does not make it a special nuisance or injury to their private rights, so as to authorize and justify such persons in breaking into the shop or building where it is thus sold, and destroying the liquor there found, and the vessels in which it may be kept; but it can only be prosecuted as a public or common nuisance in the mode prescribed by law.” (Page 102.)
This enunciation of the law finds approval in all the text-books upon the subject, so far as we have examined them. (Wood, Nuis. [3d ed.] 966-968; Webb, Poll. Torts, 515, and note; see, also, Corthell v. Holmes, 87 Me. 24, 32 Atl. 715.) In Webb’s Pollock on Torts, page 517, it is stated that in England the application of the remedy of abatement, by the forcible act of an individual, is now in use only as to rights of common, rights of way, and, sometimes, rights of water, “and even in those cases it ought never to be used without good advisement.”
A fence across a public road is a common nuisance which a person journeying along the highway may legally abate by removing the obstruction. This is so because his progress is impeded and particular injury is sustained by him not shared in by the community generally. This right of abatement, however, cannot be lawfully exercised by one living at a distance from the obstructed way, with no immediate occasion to use it, who goes out for the express purpose of removing the impediment in the interest of the traveling public, for fear that he or his neighbors might receive injury from it.
The appellant and his associates proceeded on the erroneous belief that because the prosecuting witness was a violator of the law they might right the wrongs the public was suffering by his. acts, and this in a summary manner, by resort to physical force, guided only by the counsels of a mob. It was a congregation of lawbreakers on one side retaliating upon an individual lawbreaker on the other, for lawless acts of the latter which affected not them alone but hundreds of others (the public), whom they assumed to represent. Courts of justice cannot approve or countenance such disregard of the law. To do so would create and encourage disrespect for all governmental restraint, which is the beginning of anarchy.
The judgment of the district court will be affirmed.
Johnston, Greene, Ellis, JJ., concurring. | [
-16,
-22,
-15,
-98,
24,
96,
42,
-104,
97,
-79,
-90,
115,
105,
-53,
4,
43,
42,
127,
84,
105,
-42,
-73,
23,
107,
-14,
-13,
-5,
-43,
-78,
-52,
-10,
-33,
77,
48,
74,
-43,
102,
-54,
-57,
20,
-114,
-124,
41,
65,
-48,
0,
36,
58,
4,
10,
113,
-113,
-13,
46,
24,
-61,
41,
40,
75,
-67,
80,
-71,
-104,
15,
-49,
6,
-77,
20,
-66,
-125,
120,
40,
-104,
61,
1,
-24,
83,
-74,
-124,
117,
109,
-103,
44,
-94,
99,
1,
93,
-50,
-24,
-103,
63,
127,
-115,
-89,
-111,
88,
99,
0,
-106,
-103,
101,
48,
-118,
-34,
-18,
20,
25,
108,
11,
-50,
-78,
-79,
-49,
48,
-102,
-1,
-21,
-93,
17,
113,
-60,
106,
94,
96,
82,
-39,
-113,
-76
] |
Error from Butler district court. | [
-14,
-16,
-23,
110,
10,
1,
0,
-114,
65,
17,
115,
87,
-19,
-57,
20,
107,
33,
73,
53,
122,
69,
-90,
119,
97,
-14,
-37,
-53,
84,
-75,
79,
-10,
-64,
76,
56,
-54,
-33,
70,
-126,
-17,
92,
-114,
38,
-115,
-4,
121,
11,
36,
56,
94,
13,
49,
44,
-16,
46,
27,
99,
-20,
40,
-39,
121,
-53,
-7,
-5,
5,
59,
3,
-96,
84,
-44,
-121,
-40,
58,
-110,
53,
3,
-8,
-14,
-74,
-125,
117,
15,
57,
-83,
102,
98,
33,
-115,
-49,
-68,
-88,
4,
106,
-111,
-90,
-109,
45,
107,
-87,
22,
-67,
116,
86,
102,
-2,
103,
4,
29,
116,
-117,
-18,
-16,
-101,
-115,
-32,
-120,
-127,
-25,
7,
48,
113,
-55,
-108,
92,
-57,
24,
59,
-2,
-6
] |
Error from Montgomery district court. | [
-78,
126,
108,
126,
10,
-63,
0,
-114,
67,
-127,
99,
83,
-17,
-58,
20,
121,
97,
123,
116,
123,
-43,
-74,
115,
67,
-14,
-13,
-21,
87,
-73,
125,
-4,
-126,
76,
32,
-38,
23,
70,
-118,
-83,
92,
-18,
6,
-117,
84,
121,
41,
52,
36,
94,
5,
113,
-82,
-16,
44,
58,
67,
-24,
44,
-39,
112,
-38,
-45,
-109,
13,
111,
5,
-95,
84,
-34,
7,
88,
42,
-124,
113,
32,
-8,
-78,
-73,
-121,
53,
3,
27,
13,
100,
98,
1,
-115,
-49,
-8,
-84,
6,
62,
-99,
-90,
-109,
-87,
107,
-117,
-74,
-67,
116,
82,
38,
126,
108,
-124,
95,
92,
-125,
-18,
-80,
-75,
-51,
32,
-116,
-117,
-17,
2,
48,
113,
-51,
-32,
92,
-58,
56,
-85,
-34,
-70
] |
The opinion of the court was, delivered by
Doster, O. J.:
This was an action to abate a nuisance brought in the court below by the defendants in error against the plaintiffs in error. A demurrer to the petition as to the city of Chanute was sustained, but overruled as to the other plaintiffs, and, therefore, the city is not a party to this proceeding in error. The plaintiffs in error, defendants below, are the proprietors of a hotel situated in the city. The alleged nuisance consists of kitchen washings, excreta from the hotel closets, and other refuse and filthy matter, drained from the hotel building into an open ditch or sewer, near which the defendants in error, plaintiffs below, reside. Upon the hearing affidavits alone were used, and a permanent injunction, abating the drain from the hotel into the open sewer, was awarded. The defendants below complain of the order of the court overruling their demurrer to the petition, and complain of the final order of injunction, and, hence, prosecute error to this court.
The ground of error principally argued before us is the overruling of the demurrer. It is questionable whether the petition states a cause of action in behalf of the plaintiffs as individual citizens, because it appears, by some of its allegations, to ... . , it,, tt declare against a “public as distmguished from a “private nuisance. It is not necessary, however, to determine whether the demurrer was rightly overruled. An examination of the evidence quite clearly shows that the nuisance complained of is of the character designated “public,” and, being such, can be abated at the suit of “the public” only. The plaintiffs do not undertake to show that the injuries they received from the nuisance are anywise different in character from those sustained by others of the general public of the city. The affidavits of a large number of persons other than the plaintiffs, living in proximity to the open ditch or sewer, show that they, as well as the plaintiffs, were affected by the odors from the ditch and are equally liable to be affected by the poisonous exhalations from it. Others living more remote from the ditch, whose business requires them to cross over or pass near it, or remain for a time in proximity to it, made affidavit to its disgusting, disagreeable and dangerous character. These two classes of persons last mentioned may not be affected by the nuisance to the same degree as the plaintiffs, but it is clear from the testimony that they are or may be affected by it in the same way as the plaintiffs. The law is quite well settled:
“An injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance. The petition therefor shall be verified by the county attorney of the proper county, or by the attorney-general, upon information and belief, and no bond shall be required.” (Gen. Stat. 1901, §4700.)
In an action by a private individual to abate a public nuisance, it must be shown that the plaintiff has sustained damages peculiar to hiniself. It is not enough that such damages are greater than those sustained by the public at large, differing from them only in degree ; they must be different in kind. (School District v. Neil, 36 Kan. 617, 14 Pac. 253, 59 Am. Rep. 575.) The general rulings of the court are that, before a private citizen can be allowed to maintain an action for the redress of a public wrong, he must allege and show some interest personal and peculiar to himself that is not shared by or does not affect the general public; and it is not enough that his damages are greater thah those sustained by the general public, differing from them only in degree. (Comm’rs of Barber County v. Smith, 48 Kan. 331, 29 Pac. 565; 2 Wood, Nuis., 3d ed., § 732.)
It is often difficult to tell whether a nuisance is so general in its character, that is, affects a sufficient number of persons, as to justify its characterization as a “public nuisance.” In such cases how many persons shall be called “the public”? Of course, in one sense, the public is everybody; but, manifestly, that is not the sense in which the word is used in the law relating to nuisances. In that law, by the words ‘ ‘ the public ’ ’ are meant those who reside in definite municipal boundaries, entitled to the protection of the local laws and to be represented by the local officers ; and yet cases of nuisances affecting all the people of the local municipality will rarely occur. The words “the public” must therefore have even a narrower signification, and be inclusive of even a less number. We think that the definition of the words, with relation to the subject in hand, is quite clearly indicated, if not stated, in anote to Wood on Nuisances, supra, wherein it is said :
“It has now come to be understood that a public nuisance does not necessarily consist in any act or thing which does in fact annoy all the public, but to that which may annoy all who come in contact with it.”
In the sense thus indicated, it is quite clear that the nuisance in question, under the evidence before us, is public in its nature. It must therefore be abated by a public prosecution.
The judgment of the court below is reversed, for proceedings in accordance with this opinion.
Smith, Pollock, JJ., concurring. | [
-16,
-4,
-59,
-82,
75,
-32,
40,
-72,
69,
-111,
-73,
83,
-23,
-62,
12,
33,
-13,
125,
80,
123,
-57,
-90,
11,
34,
-42,
-45,
-5,
69,
-16,
77,
-10,
-11,
72,
33,
10,
-99,
71,
-62,
-41,
-36,
-122,
5,
8,
-23,
-15,
0,
52,
59,
68,
71,
49,
79,
-13,
46,
25,
67,
-87,
40,
-53,
-83,
99,
-16,
-52,
29,
94,
6,
32,
38,
-100,
-121,
-22,
10,
-112,
49,
-112,
-88,
51,
-74,
6,
117,
39,
-69,
4,
98,
99,
33,
1,
-89,
-24,
-67,
46,
-1,
-115,
-91,
-76,
72,
75,
0,
-66,
-99,
116,
18,
-89,
-14,
-2,
-43,
27,
108,
-125,
-50,
-106,
-9,
-81,
-80,
-106,
97,
-49,
35,
32,
113,
-49,
-12,
92,
71,
81,
91,
-114,
-104
] |
The opinion of the court was delivered by
Johnston, J.:
This was an application for an order directing the receiver of the Bank of Garnett to pay a judgment in favor of James H. Cramer against the bank or for leave to issue an execution thereon. The application was made in an action brought by the attorney-general on October 24,1895, for the purpose of having a receiver appointed to close up the affairs of the insolvent bank. Prior to that time, and on March 15, 1894, Cramer recovered a judgment against the bank for 1685.30, and a proceeding in error was instituted by the bank, which was pending for several years and resulted in an affirmance of the judgment on June 15, 1898. (Bank of Garnett v. Cramer, 7 Kan. App. 461, 53 Pac. 534.) A petition was then filed by the bank, asking the supreme court for an order certifying the case to that court for review, but it was. denied. Immediately afterward the present application for a preferential payment of the judgment or for leave to issue execution against the property on which the judgment was a lien was made, but the district court denied the application. It held that while the judgment was a lien on the real estate of the bank when its property passed into the hands of the receiver, yet, as no supersedeas bond was given in the proceeding in error, Cramer might have caused the issuance and levy of an execution on the lands of the bank at any time before its insolvency and the appointment of a receiver, and that, as no execution was issued on the judgment for more than a year after its rendition, nor at any time until the receiver took possession, the judgment lost its preference as a lien on the property of the bank, and that Cramer must therefore share pro rata with the general creditors of the bank. Of this ruling Cramer complains.
In support of the decision, it is urged that Cramer forfeited his preferential right by negligence and delay in failing to have an execution issued for a period of more than four years after his judgment was ren dered. The statute is cited which provides that “no judgment heretofore rendered or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of any debtor to the prejudice of any other judgment creditor.” (Civil Code, §468; Gen. Stat. 1901, § 4914.) Attention is also called to the fact that the execution of the judgment was not stayed, and that there was no obstacle to the issuance of an execution ; at least, there was none prior to the receivership. It is true that no supersedeas bond was given, and there was nothing to prevent the issuance and levy of an execution until the custody of the property was taken by the receiver, which was more than one year after the rendition of the judgment. It will be noted, however, from the statute quoted, that the failure of the judgment creditor to have an execution issued and levied within a year does not destroy the lien, but only subordinates it to other judgment liens of the same judgment debtor. There were no other judgment creditors when the assets of the bank passed into the custody of the receiver, and at that time Cramer had a valid and subsisting judgment lien on the real estate of the bank which the receiver has since sold for $4615.
The judgment of a court of record becomes a lien on the real estate of the debtor from the first day of the term at which it is rendered, and it does not become dormant or cease to operate as a lien until the expiration of five years after its rendition. (Civil Code, §§419, 445; Gen. Stat. 1901, §§4868, 4895.) Cramer’s judgment was not dormant; it had not been extinguished, and was not barred by any statute of limitations when the receiver was appointed, nor when this proceeding was begun. It was then enforceable and had priority as against the real estate over any other liability of the bank. Have the lien and priority been lost since the property passed into the custody of the court, and while Cramer’s hands were tied so that he could not have an execution issued and enforced against the bank’s property? The appointment of the receiver did not determine any rights nor destroy any liens. His possession was the possession of the law, and he was only the ministerial agent of the court to receive, preserve and manage the property until the rights, liens and interests of all claimants could be adjudicated. His possession was exclusive, but he took it subject to all valid liens existing upon the property at the time' of his appointment. Preferences are not lost nor priorities disturbed by such change of custody, and while the ordinary proceedings at law are not available to those holding liens against the property in the hands of the receiver, a court of equity which appoints the receiver will protect the priorities and order distribution in accordance with the relative rights of lien-holders and other claimants.
After the property had passed into the exclusive jurisdiction and control of the court, Cramer could not have his lien enforced by an execution, nor could he obtain any preferential right in the funds in the hands of the receiver, except as it was allowed by the court appointing the receiver. After the appointment no liens against the property could be obtained nor preferences acquired by any action that claimants might take. It appears that other judgments were obtained against the property of the bank after the receiver was in possession, but these did not become liens against the property, nor did they affect existing liens.
It is argued that the seizure or taking of the property by the receiver is equivalent to a levy of an execution, and that it deprived Cramer of his priority and preference to the same extent as if another judgment had been rendered against the bank more than a year after the rendition of Cramer’s judgment and prior to the appointment of the receiver. The statute gives the custody of the receiver no such effect, and the general rule of law is to the contrary, that is, that liens are not lost or affected by the appointment of a receiver; that he merely holds the property intact until the relative rights of parties can be determined, and that when the property rightfully passes into the custody of the law it is not subject to execution or interference without permission of the court, and any attempt to seize or sell it by a third party without permission would be a contempt of the court having it in custody. (Bates v. Wiggin, 37 Kan. 44, 14 Pac. 442, 1 Am. St. Rep. 234; Savings Bank v. Simpson, 22 id. 414; Railway Co. v. Love, 61 id. 433, 59 Pac. 1072; Walling v. Miller, 108 N. Y. 173, 15 N. E. 65, 2 Am. St. Rep. 400; American Trust etc. Bank v. McGettigan, Rec., 152 Ind. 582, 52 N. E. 793, 71 Am. St. Rep. 345, and note, 352; Pelletier v. Lumber Co., 123 N. C. 596, 31 S. E. 855, 68 Am. St. Rep. 837; Chicago Union Bank v. Kansas City Bank, 136 U. S. 223, 10 Sup. Ct. 1013, 34 L. Ed. 341; Roseboom et al. v. Whittaker, Warner et al., 132 Ill. 80, 23 N. E. 339.)
The Bowles proceeding against the bank, its stockholders, and some of its creditors, as well as the receiver, did not affect Cramer’s rights, for the reason that he was not a party to the proceeding.
The judgment of the district court will be reversed, and the cause remanded with directions to enter judgment sustaining the priority of plaintiff’s judgment, and directing the receiver to pay the same out of the funds derived from the sale of the real estate on which the judgment was a lien.
Smith, Greene, Ellis, JJ., concurring. | [
-74,
102,
-48,
-98,
-22,
-32,
42,
-70,
81,
-7,
-91,
83,
-23,
-102,
20,
105,
119,
41,
-11,
120,
-28,
-73,
55,
104,
90,
-13,
-45,
-59,
48,
126,
-12,
-34,
76,
48,
74,
-43,
102,
-118,
65,
-106,
-114,
-123,
57,
109,
-39,
72,
48,
127,
16,
79,
85,
-2,
-13,
51,
25,
-62,
104,
40,
-37,
-83,
-64,
-80,
-101,
-123,
109,
22,
-111,
99,
-40,
39,
120,
46,
-112,
53,
0,
-24,
118,
-90,
2,
84,
109,
24,
8,
118,
102,
64,
37,
-53,
-88,
-72,
-122,
-2,
15,
-89,
-106,
80,
43,
40,
62,
-99,
126,
20,
6,
-4,
-17,
-116,
29,
108,
9,
-98,
-42,
-79,
-121,
117,
-102,
91,
-33,
-89,
50,
112,
-116,
-56,
92,
-42,
115,
27,
-114,
-16
] |
Error from Sedgwick district court. | [
-78,
108,
-20,
-50,
-54,
33,
48,
-114,
69,
85,
99,
87,
-81,
-58,
52,
107,
99,
-19,
116,
122,
-61,
-78,
51,
98,
-10,
-45,
-29,
-41,
-79,
109,
-4,
-128,
76,
32,
-118,
5,
74,
-128,
-115,
24,
-52,
7,
-87,
-17,
-45,
11,
44,
41,
-38,
37,
113,
110,
-74,
46,
-70,
71,
-88,
41,
77,
96,
-56,
-45,
-79,
13,
127,
2,
-93,
54,
-46,
14,
88,
-90,
-128,
-75,
6,
-4,
-2,
-106,
-58,
117,
13,
-39,
-87,
78,
66,
41,
13,
-1,
-72,
-120,
14,
126,
-99,
-90,
-73,
33,
105,
15,
-106,
-67,
100,
-46,
38,
124,
39,
-122,
25,
20,
-125,
-50,
-48,
-13,
-36,
-76,
-120,
-109,
-18,
38,
16,
81,
-45,
-108,
92,
-58,
16,
59,
-34,
-66
] |
The opinion of the court was delivered by
Cunningham, J. :
The defendant in error had judgment in the court below and the plaintiffs in error bring the same here for review. The defendants were, •on the 30th of January, 1897, and had been for sev.eral years prior thereto, engaged in the banking business in the city of Hutchinson, running a private hank known as the Bank of James St. John & Oo. Plaintiff was a depositor, holding at that time its certificate of deposit in the sum of $1000, and also having on general deposit $224. On that date James St. John & Oo. sold out their bank, with the good-will and fixtures belonging thereto, to the Bank of Hutchinson, which, for a full consideration, undertook to pay all the depositors of the former bank, which issued a circular to all its depositors informing them that its business had been merged in the Bank of Hutchison, and requesting them to call at their earliest convenience and transfer their accounts. The Bank of Hutchinson issued a circular on the same date and enclosed it under the same cover, announcing that the banking business of James St. John & Co. had been merged in the Bank of Hutchinson, and that thereafter the business of both banks would be transacted at the offices of the Bank of Hutchinson. Before plaintiff received these circulars he called at the-Bank of Hutchinson and was informed by its cashier,. in the presence of Mr. McCandless, of the merger of the two banks, and at that time transferred his general account to the Bank of Hutchinson. A few days thereafter, and after having received the circulars, he again called at the Bank of Hutchinson and surrendered his certificate of deposit issued by James St. John & Co., and took a certificate of deposit for the same amount from the Bank of Hutchinson. At this time, it is claimed, the Bank of Hutchinson was in a failing condition, and about three months thereafter it failed, and plaintiff received upon his deposit therein fifty per cent, thereof. This action was brought by him against the plaintiffs in error to recover the balance of the moneys which, he had deposit with the-Bank of James St. John-& Co.
Much contention exists between the attorneys of the respective parties as to the character, of the action set out in 'the petition — whether it is on contract or in tórt. The petition is much involved and inartificial, and from its reading much reason is found for either contention. We think that the better construction of it is that the action is upon contract for the recovery of the moneys which plaintiff had had on deposit with the bank of St. John & Co., and that, for the purpose of avoiding the effect of the novation which lie had made by becoming a depositor in the Bank of Hutchinson, the plaintiff pleaded in his petition that the same was accomplished by and through the fraud of James St. John and A. W. McOandless, and this he did by asserting that they “well knew the financial standing of the Bank of Hutchinson, and knew that it was in a failing condition, and that its available funds were largely insufficient to discharge its liabilities,” and that, knowing all these things, they issued the circular heretofore mentioned for the purpose of inducing their depositors ■ to transfer their accounts to the Bank of Hutchinson. Upon the trial of the action, no evidence was introduced by the plaintiff tending to prove that defendants had any knowledge whatever of the failing condition of the Bank of Hutchinson. On the contrary, it appeared from the testimony of, the defendants that they had no such knowledge.
For the purpose of this discussion, we think it makes no difference whether the action is one on contract or one in tort, for the fraud charged must be proved in either case. This fraud as charged was actual, and consisted in having actual knowledge of the insolvent condition of the Bank of Hutchinson, and, having this knowledge, in issuing the circulars referred to, for the purpose of inducing depositors to transfer their accounts to this insolvent concern. The court instructed the jury as follows :
“The jury are instructed that it is sufficient to con-, stitute actionable fraud, so far as the question of knowledge is concerned, if the person making the misrepresentations had no knowledge or belief upon the subject, and recklessly made them with intent to deceive, or, even if he made them, supposing them to be true, but had no reason therefor, and nevertheless made them as positively known facts, and thereby induced the person to whom they were made to act upon them to his damage.” 1
It refused to give this instruction :
“It is necessary for the plaintiff to prove by the greater weight of evidence that the defendants knew, at the time of making any representations to plaintiff concerning the Bank of Hutchinson, that said Bank of Hutchinson was at the time insolvent.”
The court’s law, abstractly considered, was sound, but under the issues made by the pleadings was bad. Having pleaded actual and positive knowledge as the basis of fraud, the plaintiff'could not prevail by showing that defendants ought to have known but did not. This would constitute a'variance between the allegations and proof; or, perhaps, better stated, would be a failure to support by proof the fraud as charged. The defendants, at the close of plaintiff’s case, filed a demurrer to the evidence, which was overruled; the same question was thus presented as was presented by the instruction given and the one refused.
“An allegation that one made representations knowing them to be false is not supported by proof simply that he had no reasonable grounds for believing them true.” (McKown v. Furgason, 47 Iowa, 636; Avery, Spangler & Co. v. Chapman, 62 id. 184, 17 N. W. 454.)
“In an action for deceit, a declaration which alleges that the misrepresentations made were well known by the defendant to be untrue is not supported by proof simply that the defendant had reasonable cause to believe that they were untrue.” (Pearson v. Howe, 1 Allen [Mass.] 207; see, also, Marshall v. Fowler, 7 Hun, 237; Pom. Rem. & Reme. Rights, § 554.)
Indeed, this rule is generally recognized ; otherwise, as is said in Southwick v. First National Bank, 61 How. Pr. 164, pleadings would serve no useful purpose except to entrap and mislead the adversary. (Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698.) This principle has been generally recognized in this state. (Brown v. Railway Co., 59 Kan. 70, 52 Pac. 65; S. K. Rly Co. v. Griffith, 54 id. 428, 38 Pac. 478; Railroad Co. v. Owens, 6 Kan. App. 515, 50 Pac. 962.)
Por the error indicated the case will be reversed and remanded for a new trial.
Greene, Pollock, JJ., concurring. | [
-16,
108,
-16,
-84,
26,
96,
34,
-102,
3,
-127,
-91,
-13,
-23,
-51,
4,
125,
86,
125,
-48,
99,
-9,
-77,
15,
40,
-46,
-14,
-47,
-123,
-79,
79,
-28,
-41,
76,
48,
-118,
-43,
102,
66,
-61,
-108,
-114,
-95,
40,
-28,
-3,
8,
52,
121,
80,
73,
113,
12,
-13,
42,
25,
74,
105,
44,
107,
61,
81,
-15,
-119,
-123,
93,
81,
-111,
32,
-100,
7,
-40,
46,
-112,
55,
1,
-72,
-14,
-74,
-122,
116,
109,
57,
13,
118,
98,
33,
-48,
-21,
-4,
-72,
46,
-34,
-115,
-90,
-110,
8,
-85,
9,
-65,
-99,
102,
20,
6,
-4,
-1,
21,
26,
-20,
5,
-117,
-76,
-109,
-33,
62,
25,
11,
-9,
-125,
48,
117,
-54,
-94,
93,
71,
58,
19,
-98,
-100
] |
The opinion of the court was delivered by
Greene, J.:
The appellant was indicted and convicted in the district court of Kingman county on two counts for selling intoxicating liquors. He appeals to this court, alleging numerous errors. His first contention is that the court erred in overruling his motion to quash the first count in the indictment. It is claimed that the indictment is indefinite and uncertain, first, as to the element of the crime ; second, as to the place of the crime. The charging part of the first-count reads :
“That on the 1st day of December, 1900, one W. R. Allen, in the county of Kingman, in the state of Kansas, did then and there unlawfully and feloniously sell and barter spirituous, malt, vinous, fermented and other intoxicating liquors, without having procured from the probate judge a permit to sell intoxicating liquors,” etc.
As we understand the first contention of counsel, it is that the allegations in this count do 'not negative the provisions of the statute which grant to certain persons holding, permits the privilege of selling intoxicating liquors-for certain purposes. The allegations in the count complained of are “without having procured of the probate judge of said county any permit to sell intoxicating liquors,” etc. The offense intended to be charged was the selling of intoxicating liquors in Kingman county, without having a permit to do so. In this respect we think this count is amply sufficient. The probate judge is the only person who could issue a license, and it is sufficiently alleged that the appellant had not procured one from that officer.
It is also maintained that the indictment is uncertain as to the place of the commission of the offense. The charge was not for maintaining a nuisance, but for separate sales of intoxicating liquors in violation of law; therefore, the exact location in Kingman county where the sales took place is not material. (Gen. Stat. 1901, §2470.)
The second contention is that the court erred in overruling appellant’s plea in abatement. The principal ground of this plea is that the grand jury which found the indictment was not legally selected, because the judge did not administer to the foreman the oath required by law, and, in fact, did not administer any oath; and that he did not administer an oath to the other members of the grand jury as required by law. The oath administered to the foreman of the grand jury is as follows:
“You, as foreman of the grand jury, shall diligently inquire and true presentment make of all public offenses against the laws of this state cognizable by this court, committed or triable in this county, of which you have or can obtain legal evidence. You shall present no person through malice, hatred, or ill will, nor leave no person through fear., favor, or affection, or for any reward, or the promise or hope thereof, but in all your presentments you shall present the truth, the whole truth, and .nothing but the truth, according to your skill and understanding.”
This oath was administered in open court, in the presence of the other members of the grand jury. The court then required the other jurors to rise, and in open court and in the presence of the foreman, administered to them, the following oath :
“The same oath which your foreman has taken now before you on his part, you and each of you shall well and truly observe on your part.”
It is claimed that this oath is not sufficient, because it did not commence with the words, “ You do solemnly swear,” and did not end with the words, “So help you God.” The statute specially prescribes the oath that shall be administered to the foreman of the grand jury, as well as that which shall be administered to his fellow jurors, and whatever the oath may be, or whatever it contains, it is sufficient. In administering the oath to the foreman, as well as to the other members of the jury the court followed the statute' literally. (Gen. Stat. 1901, §§ 5517, 1518.) It must, therefore, be held that the oath so administered was sufficient.
It is also contended that the court erred in permitting the prosecution to introduce any evidence under the indictment and opening statement of the county attorney, because the two together did not affirmatively show that the court had jurisdiction of the offense of which the appellant was charged. The indictment states that the offense was committed in Kingman county, and there is nothing in the statement of counsel that denies it. There is no merit' whatever in this contention.
Another contention is that the court erred in refusing to require the prosecution to elect upon what sales it would rely for conviction on each count. Upon such demand the prosecution made the following election, and the county attorney stated :
“I designate the sale under the first count to Vm. Hamilton of a bottle of beer, for which he paid twenty-five cents, in the wash-room of the hotel known as ‘The Randolph’; and on the second count on the one glass of whisky that was purchased of defendant by R. H. Wallace, and sold to R. H. Wallace by defendant ; and on the third count on the several glasses of whisky that were sold by the defendant to R. H. Wallace, and for which he paid the defendant.”
The objection to this is that the county attorney did not state the dates of these sales. The indictment shows that they were all made within two years prior to the filing of the indictment, which is sufficient'.
There are numerous other alleged errors, which we have examined, and find nothing material or prejudicial to the appellant.
The judgment of the court below is affirmed.
Johnston, Smith, Ellis, JJ., concurring. | [
-15,
-18,
-20,
-97,
-70,
-32,
42,
56,
64,
-125,
-27,
115,
-23,
90,
5,
59,
-5,
127,
84,
105,
-58,
-73,
3,
65,
-46,
-13,
-40,
-43,
53,
109,
-27,
-12,
12,
-76,
75,
85,
102,
-54,
-63,
94,
-114,
1,
-119,
-32,
-38,
-96,
48,
107,
87,
10,
97,
31,
-5,
40,
29,
-61,
73,
44,
75,
29,
80,
-72,
-104,
-99,
109,
6,
33,
38,
-100,
-127,
72,
46,
-104,
49,
1,
-24,
123,
-106,
-122,
116,
15,
-103,
-115,
102,
98,
33,
29,
-17,
-88,
-119,
47,
62,
-99,
39,
-16,
25,
107,
32,
-74,
-99,
61,
48,
7,
-14,
-16,
92,
25,
124,
1,
-113,
-80,
-79,
11,
48,
-128,
87,
-53,
7,
16,
117,
-51,
-26,
124,
85,
80,
27,
-113,
-108
] |
The opinion of the court was delivered by
Ellis, J.:
We are met at the threshold of this case with a motion to dismiss the petition in error for the reason that the adjudication of the court below was not a final order or judgment, but it must oyerra[ec[, While some parts of the judgment were interlocutory in their nature, others were definitive, and by their terms excluded the possibility of further action by the trial court. Among these latter were orders and decrees applying to each of the plaintiffs in error and determinative of their rights herein. The mere fact that the allowance of claims of creditors, and the distribution of the assets of the mortgage company — matters not in issue by the pleadings, and in which the plaintiffs in error were nowise interested — were left by the decree subject to further consideration and adjustment by the court, cannot deprive the parties here complaining of their right to appeal. The judgment was final as to the issues, and as to all the parties before the court, and being denied a new trial, plaintiffs in error were required to move for a review ; and had they not done so at the time and in the manner that they did, they could not thereafter have been heard to complain in a reviewing tribunal.
For the purposes of this case, we shall assume that the order made in the original case on August 17, 1896, requiring each of the plaintiffs below to pay to William Mansfield, as receiver, the sum of $5590.75, constituted a joint judgment against said Scott and Rush,; and we shall also assume that, for want of jurisdiction, the court had no authority to render such judgment, and that it was fraudulent and void. The defendants in error contend that it could have been set aside upon motion, under section 603 of chapter 95, General Statutes of 1897 (Gen. Stat. 1901, §5061). It is undoubtedly true that such pretended judgment could have been thus revoked, and we think it is also true that the plaintiffs, Scott and Rush, could jointly maintain an action for the purpose of annulling that judgment.
The defendants in error insist, however, that, because they had a common interest in one matter which they might properly make a subject of action and thus obtain a standing in court, after being admitted into the forum as litigants they were there for all purposes anywise connected with the original case brought by. Rush against the defendant mortgage company in which action Scott was receiver. This conclusion is without foundation in law, and presents an anomaly in fact.
In the original action Rush alleged that he was a stockholder in the defendant mortgage company, which allegation was doubtless true when made. In this action no such averment was contained in the petition, but an attempt was made to adopt the allegations of the former petition, for the probable purpose of having it inferentially appear that he was still a shareholder in that corporation, that its directorate was still not full, and that the members thereof still refused to act in harmony or to do the things necessary to protect the corporation.and preserve its property. The allegation made in the petition in this case was not sufficient for that purpose, and the most that can be claimed for the pleading is that, by adopting the petition in the former case, it was alleged in the latter that at the time the first petition was filed the facts therein stated existed ; but in the absence of an alie gation that such facts continued to exist at the time of the filing of the petition in this case, no such deduction can fairly be made. It follows, then, that in this action it was not even alleged that at the time of bringing the action Rush was a stockholder, and it is true that such question was made an issue in the case; that evidence was offered tending to prove that Rush had parted with his stock while the former action was pending; that, although expressly requested so to do, the court failed to make any finding on the proposition.
It is also significant that, although the defendant mortgage company asked no affirmative relief in this case, it voluntarily appeared and filed pleadings therein, which would seem to indicate that, whatever may have been the fact, in 1895, it had, when this action was commenced, in March, 1897, officers with authority to employ an attorney to represent it; and, as the corporation had not been dissolved, it must be presumed that such was the fact at the time this suit was brought. The mere fact that in a pleading filed two years before it was alleged that it had not a quorum of directors and the usual officers, or that those who were then directors did not act in harmony, would not avoid the necessity of proper allegations and proof as to the facts which actually existed at the time this cause was instituted. ' The laws of this state provide for annual elections of directors of corporations, and for the filling of vacancies in the directorate and the officers provided for under the charter (Gen. Stat. 1901, §§1276, 1277), and an allegation in a petition that certain vacancies existed at one time, or that the directors in office at a particular time were inefficient or derelict in duty, does not raise a presumption that such state of facts will continue from year to year.
' Neither in the first petition nor in the second one was anyvsufficient allegation made to justify the bringing of this suit for the benefit of the defendant mortgage company by one who wag ^ac^ a stockholder when the petition herein was filed. So that, if we waive the question as to whether there was an averment that Rush was a stockholder, and assume that such fact was properly asserted, he could not bring the action without alleging that he had in good faith, and without success, attempted to secure action by the directors or managing officers of the corporation, or making it appear that such demand for their action would be unavailing. (A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 Kan. 617, 33 Pac. 312.)
In the case of Taylor v. Holmes, 127 U. S. 489, 491, 8 Sup. Ct. 1193, 32 L. Ed. 180, the court said:
“The court below sustained the demurrer to the bill upon two principal grounds: . . . second, that no sufficient reason is shown why the suit should be brought by two stockholders instead of by the corporation itself, in its own name. We think both of these grounds or either of them sufficient to sustain the position taken by the court below.
“It is, however, alleged that the corporation itself is extinct by reason of the limitation placed upon its existence under the articles of incorporation, by which it expired on the 30th day of August, 1878. But, under the laws of New York, the existence of such a corporation was continued after the period for which it was limited for the purpose of winding up its business and for the purpose of collecting and distributing its assets and paying its debts. Although the allegation of the bill is that many of the directors of the company are dead, still it is shown that one of them survives, and no assertion is made that there was any application to this surviving director on the part of the defendants for the purpose of instituting any proceedings looking to the rectification of this deed, or for the recovery of the real estate in North Carolina; nor does it appear that there was any request made to him to bring any suit either at law or in chancery for that purpose. No effort was made to call together the stockholders to take any action on the part of the company, or to elect other directors, or to obtain any united action in. the assertion of the claims now set up.
‘ ‘ Although there is in the bill a declaration that the two complainants are owners of a majority of the stock of the Gold Hill Mining Company, there is no statement as to when or how they became such, or whether they were such stockholders during the times that injuries were inflicted, of which they now complain, in regard to the taking possession of the property by the defendants, or whether they became stockholders afterwards. In short, there is no such averment of their relation to the corporation or of their interest in the matter, about which they now seek relief, as brings this action within the principle of the decisions of this court upon the subject. Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827.”
(See, also, A. T. & S. F. Rld. Co. v, Comm’rs of Sumner Co., supra; Mining Co. v. McKibben, 60 Kan. 387, 56 Pac. 756; Doud and others v. Wisconsin, Pittsville & Superior R. Co. and others, 65 Wis. 108, 25 N.W. 533, 56 Am. Rep. 620; Alexander, Trustee, et al., v. Searcy et al., 81 Ga. 536, 8 S. E. 630, 12 Am. St. Rep. 337.)
In the case of Talbot v. Scripps, 31 Mich. 268, it was held:
“The legal redress for a corporate wrong which constitutes a joint injury to all the stockholders should be at the instance of the corporation, which represents all for the purposes of legal remedy; and a stockholder is not entitled to bring suit in his own name for the damage done to him individually, at least not without a showing that the corporate .authorities have refused, after proper application, to act.”
Cook, in his work on Stock and Stockholders and Corporation Law, section 740, says:
“Inasmuch as a fraud, ultra vires or negligent act of the directors of a corporation is an injury done to the corporation itself, it is the duty and proper function of the corporation to institute any action that may be brought to remedy the injury to the corporation. As already explained, however, a stockholder may bring the action if the' corporation improperly refuses or neglects to institute such suit. ’Before the stockholder brings suit he must make a formal request to the corporate officers that suit be instituted by the corporation. Upon its refusal or neglect to comply with that request he may then bring suit himself. It is well settled, however, that he must allege in his bill in equity that such a request has been made and has not been complied with.” ■
It will be seen by the foregoing authorities that the excuse sought to be given by Rush for bringing the first action in his own name would not be.sufficient if the averment had related to the time of bringing the last action, and had been in fact made in the petition in this case. He alleged that at the time of bringing the first action the corporation had five directors, and he did not claim that the attention of any one of them had ever been called to any of the matters which were made the basis of that action ; and it need scarcely be said that, even if a direct request had been made to bring the earlier action and had been refused, such request and refusal would have no relevancy to this case, in which the subject-matter was wholly distinct and dissimilar.
As before intimated, the petition in this, case is also objectionable because it presents two distinct forms of thevÍC6 OÍ multif al'ioUSUeSS thatof uniting in the same count distinct and disconnected subjects, matters, and causes, and that of joining in the same suit, both as plaintiffs'and defendants, parties who are without a common interest in the subject of the litigation and have no connection with one another. (14 Encyc. Pl. & Pr. 200.) These objections to. the. right of plaintiffs to maintain this action, and to the misjoinder of plaintiffs and defendants, were properly raised in the court below by motions to make definite and certain, separately to state and number the causes of action, to require the plaintiff Rush to state in his petition whether he was a stockholder in the defendant mortgage company, and, if so, to what extent, at the time the action was brought, and to require the plaintiff Scott to state whether he had any interest in the defendant corporation or in the redress asked. The same matters were also raised by separate demurrers, and again by separate answers, and still again by requests for special findings on these facts. The motions and demurrers were overruled, the allegations of the answers ignored, and the requests for special findings denied.
If we were to admit that the allegations made in the former petition should be applied as of the-date of the latter, still there would be no community of interest in the principal things sought to be done, and which were actually done in this case, between Rush and Scott. Neither of them would have a legal' capacity to bring this action for the benefit of the mortgage company, which they allege was at all times the owner of all the assets mentioned and described in the petition, and the sole beneficiary in the relief sought and attempted to be granted in respect to such assets. As before stated, they could not maintain such action jointly except for the one purpose of securing an annulment of the order requiring them to pay a sum of money to the receiver in the former ac tion. Scott could not maintain this action to be reinstated as receiver, and he did not even pray for such relief, and, even if he could have a standing in court for such purpose, Rush could not be joined as plaintiff for the purpose of making an application to have something done which did not concern or involve his interests.
"We are aware that in cases like the present the temptation to ignore ordinary forms of procedure is very great. The plaintiffs below alleged, and the court in effect found, that the entire proceedings in the original case, from the time of the entry of the first order for an additional report from Receiver Scott to the final order dismissing the case with prejudice, were tainted with fraud, were signalized by an utter disregard for the natural and.inalienable rights of men to liberty and property, and were carried out and rendered effective by acts of judicial wrong and oppression which would have disgraced that which was called a tribunal of justice in a barbaric age. On these facts we express no opinion, and merely refer to them as an inducement to the conclusion that they probably afforded what appeared to the trial court as a justification for giving little heed to the usual and more orderly methods of conducting judicial investigations, because he regarded the end to be attained —that of undoing the wrong which he found had been accomplished—as of far greater moment than the maintenance of legal formulse. However defensible such course may be in morals it may not be followed in law. The courts have no authority to make rules for particular cases, and no excuse exists for so doing when the application of those which are already prescribed and have been approved by time and experience will afford ample relief. The mortgage company is not without remedy, and may, by proper proceedings, have returned to it any property or money of which it has. been defrauded or otherwise unlawfully deprived.
It follows that the demurrers of the defendants William Mansfield, W. H. Vernon, Ella P. Vernon, E. A. Austin, Ada F. Charles and F. D. Smith should have been sustained, and that the orders and decrees, so far as they relate to said defendants below and each of them, were unauthorized. The judgment of the court below setting aside, annulling and canceling the order and pretended judgment for $5590.75 against plaintiffs below, Rush and Scott, made on August 17, 1896, is affirmed, and in all other respects reversed, and the cause is remanded to the court below with direction- to sustain the demurrers of the defendants William Mansfield, W. H. Vernon, Ella P. Vernon, E. A. Austin, Ada F. Charles, and F. D. Smith.
Smith, Cunningham, JJ., concurring. | [
-14,
120,
-72,
-66,
74,
-32,
42,
-118,
81,
-96,
-89,
-45,
-87,
-49,
-124,
53,
-10,
57,
113,
98,
86,
-77,
7,
97,
-46,
-77,
-47,
-43,
-79,
-20,
-28,
-33,
76,
48,
-30,
-43,
102,
-94,
-63,
86,
-50,
-83,
56,
-19,
-7,
-116,
48,
51,
112,
79,
85,
-98,
99,
46,
25,
-53,
105,
41,
-5,
-71,
-16,
-16,
-118,
-123,
127,
19,
49,
39,
-98,
-121,
72,
62,
-120,
49,
3,
-24,
118,
-74,
-105,
116,
73,
57,
8,
98,
98,
0,
81,
-17,
-40,
-72,
46,
95,
15,
-90,
-109,
72,
-120,
9,
-74,
-103,
-12,
0,
38,
-2,
-21,
-99,
29,
-20,
11,
-117,
-106,
-79,
-97,
116,
-104,
-61,
-10,
-93,
48,
112,
-116,
32,
92,
71,
123,
59,
-114,
-3
] |
Per Curiam :
C. W. Engborg was convicted of maintaining a nuisance, contrary to the provisions of the prohibitory liquor law, and was sentenced to pay a fine of $200 and to be imprisoned for thirty days ; he was also required to give bond of $500 for good behavior, and his druggist’s permit was adjudged to be forfeited.
The contention that a druggist having a permit cannot be convicted of keeping a nuisance is not sound. A druggist or pharmacist, with or without a permit, who keeps a nuisance in violation’of law, is subject to its penalties. (The State v. Teissedre, 30 Kan. 476, 2 Pac. 650; The State v. Davis, 44 id. 60, 24 Pac. 73.)
No error was committed in refusing to quash the amended information because it was not positively verified. The original information was so verified, and the defendant’s arrest was therefore legal. Afterward he gave bond, and he appeared thereafter in pursuance of its provisions and not because of the warrant. The word “unlawfully” was added to the information, but sueh amendment did not render a new warrant necessary nor afford ground to quash.
The point that the judgment rendered was not sufficiently severe to meet the requirements of the law cannot be maintained. The objection is that the court did not direct the officers to shut up and abate the place.which had been kept by the defendant. This is no part of the penalty for maintaining a common nuisance. (Gen. Stat. 1901, §2468.)
There was sufficient testimony to sustain the conviction, and enough to show the venue or place where the nuisance was kept. We find nothing substantial in the objection to the instructions or to any of the rulings. The judgment is affirmed.
Doster, O.J., Johnston, Smith, Ellis, JJ. | [
-16,
-18,
-8,
-97,
106,
-31,
50,
-110,
65,
-67,
-12,
115,
-19,
-46,
1,
49,
-109,
107,
113,
121,
-37,
-73,
66,
65,
-10,
-45,
-61,
-47,
-79,
79,
-12,
-43,
12,
-76,
-62,
-11,
102,
64,
-107,
-36,
-114,
5,
8,
-31,
112,
-64,
52,
43,
86,
15,
57,
31,
-93,
62,
16,
-49,
105,
44,
75,
-83,
-16,
-16,
-103,
29,
79,
6,
-77,
117,
24,
-123,
94,
44,
-98,
17,
0,
120,
115,
52,
6,
116,
47,
-69,
-92,
102,
98,
33,
41,
-17,
-32,
-120,
14,
-82,
13,
-89,
-102,
88,
75,
-128,
-74,
-75,
116,
-110,
7,
-18,
118,
21,
31,
124,
5,
-121,
-28,
-73,
47,
56,
-124,
85,
-17,
35,
48,
17,
-49,
-18,
-34,
85,
80,
27,
-114,
-43
] |
The opinion of the court was delivered by
West, J.:
The trial court refused to enjoin the city of Rosedale from extending a certain storm sewer and from collecting special assessments levied for that purpose, and the plaintiffs, who are property owners in the district, appeal.
It appears that in 1903 the city, by ordinance, divided its territory into six sewer districts; that the Westport Avenue storm sewer is in District No. 4; that in 1911 the city undertook to extend its construction and let the contract therefor; that in March, 1912, the work was enjoined for the reason that the appraisers had not made the assessment from actual view or inspection; that afterwards a reassessment and relevy were had, and the work proceeded; and that after temporary restraining orders were granted in these cases affidavits were filed by the parties, which affidavits we have considered.
The plaintiffs contend that the construction of this storm sewer was beyond the power of the city for various reasons; that the construction itself is unsanitary, a waste and a fraud upon the rights of the plaintiffs; that the contract for the work was rescinded by the council; that the city had already exceeded its limit of taxation; and that the plaintiffs were not given a hearing to ascertain the value of their lots.
We are not pointed to any statute fixing any limit for the levy of such assessments which has been exceeded in this case, and the affidavits of the defendants show that notice was duly published giving the lot owners an opportunity to appear and contest the amount of the assessments. While the council did by motion attempt to rescind the contract for the construction of the sewer, the contractor was afterwards directed to proceed, and no ordinance or resolution was passed to interfere with his rights under the contract. No fact is shown indicating that the city has exceeded its power or that it has committed any fraud upon the plaintiffs.
The sewer in question is not and was not intended to be a sanitary sewer or any part thereof, but simply a means for taking care of storm water. Considerable complaint is made about the location and expense, but the presumption that the city officers acted in good faith and in compliance with law does not appear to be overcome by anything contained in the affidavits submitted. The trial court, after considering the entire matter, refused the injunctions, and we find no error in such refusal.
The judgment is affirmed. | [
-16,
122,
-4,
-18,
-38,
-32,
26,
-104,
89,
-94,
-92,
127,
-83,
-37,
28,
33,
-25,
125,
80,
123,
-57,
-78,
38,
42,
-102,
-13,
-69,
-51,
-7,
-3,
-12,
77,
76,
32,
-61,
-107,
70,
0,
93,
82,
-58,
23,
-88,
-59,
-39,
80,
54,
59,
100,
77,
85,
29,
-13,
44,
24,
-29,
-19,
40,
-39,
57,
80,
-15,
-116,
-107,
95,
4,
-96,
100,
-80,
-125,
-22,
8,
-104,
53,
4,
104,
115,
-90,
-121,
119,
103,
-101,
44,
114,
98,
0,
101,
-17,
-8,
-100,
14,
-33,
-115,
-90,
-110,
89,
11,
-64,
-76,
-97,
96,
18,
-89,
-2,
-18,
-43,
91,
108,
5,
-121,
-44,
-93,
-53,
-84,
-124,
-63,
-49,
3,
48,
113,
-53,
-32,
78,
99,
115,
-37,
-98,
-8
] |
Per Curiam:
On March 25, 1907, Mercy Cremer was the owner of a house and lot in the city of Topeka, and on that date executed a written contract with theappellees by the terms of which she undertook to sell the property to them for $1402.50, $12.75 of which was paid in cash, and the same amount was to be paid, on the 25th day of each month thereafter until the purchase price was paid in full. It was- further stipulated that the purchasers were to keep the building in good repair, pay all taxes and assessments, and keep-the building insured in the sum of $1000 in the name-of Mercy Cremer; that upon full payment of the purchase price, Mercy Cremer, her heirs or assigns, should execute to the appellees a warranty deed to the property ; that if the appellees failed to perform any of the-conditions of the written contract, the agreement should be forfeited at the option of the party of the first part, and all payments made upon the property- should be forfeited. Appellees entered into possession under the contract.
Mercy Cremer died February 15, 1909, and left the property to her daughters, Alice Cremer and Lizzie Cremer. The will was duly probated and no appeal was taken therefrom. Afterwards suit was brought to set aside the will and judgment was rendered in favor of the devisees. No appeal was taken therefrom.
Thereafter the appellees, through an agent, delivered the key to the house to the appellant and directed him to pay the rent to Alice Mattern, mée Cremer, which he did up to the time of the trial.
Thereafter, and before suit was brought or notice to quit was given, the appellant refused on the demand of. the appellees to surrender the possession of the property to them, or to vacate it, or to pay them rent.
These facts were set forth in an agreed statement and in the contract. Some letters between William Cremer and his sister Alice, and also between William’s wife, Anna, and Alice, were produced in evidence. We do not see that this correspondence has any bearing upon the issue involved.
The legal proposition is as follows: The appellees, being in lawful possession of the property in question, leased it to the appellant for an indefinite term, with direction to pay the rent to a third party, Can the appellant, on the demand of appellees that he pay rent to them or surrender possession, lawfully refuse to do either and retain possession? The answer is in the negative. The appellant appears to have- had no interest in the property, except as tenant thereof under the appellees, and whatever rights the devisees may have had to the property the appellant is not shown to have had any legal right to assert or defend them.
Without paying rent the appellant had no right to the possession of the property as against the appellees, and so far as appears from the agreed statement of facts the appellees had a right to terminate his tenancy at the end of any month.
The judgment is affirmed. | [
-15,
42,
-40,
109,
10,
-32,
42,
-40,
115,
-91,
39,
83,
-21,
-56,
17,
105,
102,
109,
81,
105,
103,
-93,
7,
10,
-46,
-109,
-79,
-43,
-71,
108,
-12,
-43,
76,
32,
74,
-107,
-62,
-62,
-39,
92,
30,
1,
8,
-28,
-37,
66,
52,
115,
80,
70,
1,
-114,
-13,
47,
53,
75,
110,
46,
127,
45,
-32,
-72,
-117,
-124,
127,
31,
-128,
53,
-108,
-61,
104,
8,
-104,
49,
8,
-24,
19,
54,
6,
116,
-123,
43,
8,
102,
98,
50,
-123,
-17,
-8,
-100,
46,
-9,
-115,
-89,
-77,
88,
-110,
104,
-76,
-99,
125,
68,
21,
126,
-10,
-107,
29,
108,
9,
-53,
-42,
-77,
15,
126,
-110,
7,
-17,
7,
32,
113,
-55,
52,
92,
-61,
54,
-109,
-114,
-37
] |
The opinion of the court was delivered by
Mason, J.:
The city of Topeka appeals from a judgment enjoining it from enforcing an assessment levied to pay for improving a street. The question presented is whether the petition asking for the improvment bore the signatures of enough resident owners to confer jurisdiction upon the commissioners to order it. The statute involved reads:
“No resolution to pave, macadamize, or grade, or repave, remacadamize,'or regrade, any street, lane or alley shall be valid unless a petition asking such improvement has been ordered spread upon the journal, which petition must be signed by the resident owners of not less than one-half of the feet fronting or abutting upon such street, lane or alley to be improved: . . . the feet fronting or abutting upon such street, lane or alley owned or held by. persons not resident of said city shall not be taken into account in determining the sufficiency of any . . . such petition.” (Gen. Stat. 1909, § 1009.)
The parties agree that if the Chicago, Rock Island & Pacific Railway Company is regarded as a resident of the city the petition was void; that otherwise it was valid. These facts, by which the question is to be determined, are also agreed to: The railway company is organized under the laws of Illinois and Iowa. Its chief offices are at Chicago, where its directors meet for the transaction of its business. It operates a line of railroad into and through Topeka, where it main tains extensive yards, a round house, depot and ticket office, and “its general offices for the state of Kansas.” Its general manager for the division including all of this state resides and has his office there. It has complied with the terms of a statute (Gen. Stat. 1909, § 7013) which provides that any foreign railroad company complying therewith shall possess “all the rights, powers, privileges and franchises conferred by the laws of this state upon a railroad corporation of this state.”
In virtue of its compliance with the statute referred to the Rock Island railway company is a quasi-domestic corporation, and is entitled to the same treatment as though it had been chartered by this state. (The State v. Railroad Co., 81 Kan. 404, 105 Pac. 685.) If & Kansas railroad corporation which conducted its business in the manner stated would be regarded as a resident of Topeka for the purposes of the statute under consideration, this company should be so considered. The statement has often been made that a railroad company should be deemed to reside wherever it operates its road or exercises corporate franchises. (The State v. Bogardus, 63 Kan. 259, 65 Pac. 321, and cases there cited; Bogue v. Chicago, B. & Q. R. Co., 193 Fed. 728; Note, 33 Am. Dec. 400; Tobin v. Railroad Co., 47 S. C. 387, 25 S. E. 283, 58 Am. St. Rep. 890, and note.) That rule serves a practical purpose in a certain class of cases, but it is not of universal application. In a sense a corporation has no residence. (2 Morawetz on Private Corporations, 2d ed., § 958, note 2.) “Strictly speaking, a corporation can have no local residence or habitation.” (Glaize v. So. Ca. R. R. Company, [S. C.] 1 Strob. 70, 72.) “A corporation is a mere ideal existence, subsisting only in contemplation of law; an invisible being which can have, in fact, no locality and can occupy no space; and therefore can not have a dwelling-place.” (Wood v. The Hartford Fire Insurance Company, 13 Conn. 202, 209.) Residénce is an attribute of a natural person, and can be predicated of an artificial being only by a more or less imperfect analogy. Whether a corporation is to be considered a resident of a particular place, by virtue of its doing business there, depends entirely upon the connection in which the question arises. Where the problem is one of statutory construction it must be solved in the light of the purposes of the act. (1 Elliott on. Railroads, 2d ed., § 24.) Before a highway is established through a tract of land the statute requires notice to be given to the owner, if he is a resident of the county, or has a resident agent. (Gen. Stat. 1909, §7277, replaced by Laws 1911, ch. 248, § 5.) The basis of distinction between resident and nonresident owners in that case is obviously convenience and practicablity. If an owner is within convenient reach, or has an agent at hand, he is given actual notice; otherwise a publication is sufficient. The same person may be entitled to direct notice in any number of different counties—in any county where he has an agent. A railroad corporation which operates within a county and maintains a local agent there is within the spirit and reason of this rule, and so is treated as within its letter, and regarded as a resident for the purposes of that statute. (The State v. Bogardus, 63 Kan. 259, 65 Pac. 251.) On the other hand, the statute which provides that in certain circumstances justices of the peace shall have no jurisdiction of cases against residents of a particular city is based upon a different principle. The exemption from being called upon to answer in a justice court can be claimed by a natural person in but one place—the city of his residence. When a corporation invokes the benefit of that statute it is subject to the same rule. And of that situation it was said: “It is as impossible for a corporation to have two or. more residences at the same time in the same state as it is for an individual.” (Robinson v. Railway Co., 67 Kan. 278, 281, 72 Pac. 854.)
The statute now under consideration is especially one in which residence must be regarded as attaching to a single locality and to no other. The question of policy as to whether a particular street shall be paved is left to the determination of those of the abutting owners who are connected with the city by a peculiar tie. It matters not how closely his material interests may be identified with those of the city, how much he may own, how much business he may do, or how much time he may spend therein. Pie has no voice in the matter unless his home is there—the place of his permanent domicile, to which while absent he has at all times a purpose to return. If residence in this sense may be attributed to a corporation at all it can not result from the doing of business in the city, and it can not be applied to more than one locality.
Wherever a corporation may be regarded as having a residence at a particular place, and the situation is such that it can be regarded as having but one, that place must be “that in which it has its headquarters, or such offices as answer in the case of a corporation to the dwelling of an individual.” (Galveston &c. Railway v. Gonzales, 151 U. S. 496, 504.)
“In the case of a corporation the question of inhabitancy must be determined, not by the residence of any particular officer, but by the principal offices of the corporation, where its books are kept and its corporate business is- transacted, even though it may transact its most important business in another place. . . . There are doubtless reasons of convenience for saying that a corporation should be considered an inhabitant of every district in which it does business, and so the statutes of the several states generally provide; but the law contemplates that every person or corporation shall have but one domicile, and in the case of the latter, it shall be .in that State by whose laws it was created, and in that district where its general offices are located.” (Galveston &c. Railway v. Gonzales, 151 U. S. 496, 504, 506.)
(See, also, 1 Thompson on Corporations, 2d ed., §§ 490, 493.)
Where the samé association of individuals has procured in the same name and for the same purpose a corporate charter from each of’ two states, some refinement of reasoning has been exhibited in determining whether theoretically the result was one corporation or two. (1 Thompson on Corporations, 2d ed., § 505.; 10 Cyc. 170.) But there is no room for the contention that the Rock Island Railway Company has a separate existence in Kansas. As a foreign corporation it has been granted certain privileges here, and for certain purposes has been placed on the same basis as a domestic company. The organization in Kansas, however, is but a part of that under which the road is operated as a whole. The corporation is a unit, and under the authorities cited has no residence outside of Chicago for the purposes of such statutes as that under consideration.
The judgment is reversed and the cause remanded with directions to deny the injunction. | [
-12,
120,
-11,
-34,
-53,
64,
58,
-102,
96,
-79,
-89,
115,
-81,
-53,
0,
57,
-22,
63,
-46,
59,
-11,
-77,
71,
-22,
-110,
-13,
-9,
77,
-5,
88,
100,
-26,
76,
32,
-54,
-11,
70,
-62,
75,
-100,
-114,
37,
10,
-59,
-39,
96,
48,
106,
22,
15,
17,
-113,
-13,
40,
24,
-63,
104,
44,
95,
-87,
-111,
-16,
-88,
-107,
126,
6,
0,
36,
-100,
-91,
-20,
-81,
-104,
29,
11,
-24,
119,
-90,
-106,
118,
13,
-39,
9,
110,
99,
32,
1,
-17,
-104,
-104,
14,
-40,
-115,
-25,
-74,
25,
-29,
41,
-76,
-105,
108,
6,
7,
-2,
-18,
5,
-37,
60,
-119,
-118,
-76,
-111,
-97,
116,
-126,
69,
-17,
5,
16,
97,
-64,
54,
95,
-57,
50,
27,
-113,
-68
] |
The opinion of the court was delivered by
Benson, J.:
It was held in the former opinion that the provisions of the old ordinance prescribing rates for telephone service accepted and long acquiesced in by the company should be upheld against the company which continued in the full enjoyment of the privileges granted by its terms. This conclusion was challenged in a petition for rehearing, which was allowed.
When the opinion was written it was believed that the appellee relied principally upon the claim that the new ordinance was in effect, and the proposition submitted for rehearing was treated only briefly. While still adhering to the conclusion referred to further reasons will now be stated. '
The facts taken as true in deciding the motion for judgment on the pleadings appear in the statement and opinion included in the former report of this case. (City of Emporia v. Telephone Co., 87 Kan. 465, 124 Pac. 895.) It is there stated that “Among the new conditions prescribed when the new company succeeded to the franchise it was provided that no attempt should be made to change the rates.” (p. 467.) In this connection it is deemed proper to state now that the additional fact appears from the abstract that the resolution consenting to the transfer to the new company provided that in consideration of the payment of the arrearages of the two per cent of gross receipts due the city from the old company on September 1, 1904, and certain additional services, the city would receipt to Mr. Finney, the manager of the company, for the two per cent referred to “from year to year so long as. he shall remain manager . . . and said company makes no attempt to change the present rates for service.” These conditions were accepted by the new company—the appellee. The fact should also be stated that the old ordinance contained a provision “that before any transfer or assignment under the rights of this franchise shall become binding on said city, a copy of such transfer or assignment shall be filed with the city clerk and said assignment consented to by the mayor and city council.”
By chapter 121 of the Laws of 1905 (Gen. Stat. 1909, §§ 752, 753) cities of the second and third classes were given the control of streets and alleys, and it was provided that before any person or corporation should enter upon the streets or alleys for the construction of any railways, sewerage system or telephones the right to do so must be obtained by ordinance. Thus it appears that a right of way for the construction and operation of telephones in city streets after February 11, 1905, when that act became effective, must be obtained by municipal action. If the old company was unaffected by this change in legislation and it might have continued to the end of the fifteen years term without any grant of a right of way from the city, its successor had acquired no such right, and enjoys the use of the streets only through the consent of the city to the transfer, which was upon the condition, among others, that it should not change the rates prescribed for its predecessor. The city might have withheld its consent to the transfer and passed a new ordinance with this condition. The parties undertook to accomplish the same end by resolution, which for the purposes of this case may be given the same effect, the appellee having enjoyed the same privileges.
It is not necessary to define the precise powers of regulation vested in the city over telephone companies using city streets under the legislative grant of right of way previous to the act of 1905; nor is it necessary to delimit the additional powers given by that act. There was in the first place at least the power of regulation concerning the location of poles, height of wires, and to provide rules for safety and convenience in the use of streets, and after the act of 1905 there was the additional authority to grant the right of way •also, which implies a right to impose reasonable conditions upon which .it may be exercised. These privileges were deemed of consequence to the original company and to its successor, the appellee. Each company sought and obtained action by the mayor and council purporting to grant privileges upon conditions to which they assented. Contracts were accordingly made by an ordinance and resolution duly accepted; and the lines were operated for many years in accordance with the terms agreed to.
Presumably such action deterred other companies from occupying the field. The city has kept faith, and the appellee has been undisturbed in the use of the streets, the patronage of the public secured through such action, and the pursuit of business incident to such use. But it is said that because of a want of power to make a binding contract to fix rates the appellee is not bound by the agreement, and may summarily increase the rates subject only to correction in case they should be found unreasonable.
The power to prescribe rates to be charged by public service corporations for such service for a fixed period by contract, although referred- to in the former opinion, was not decided. Since then the subject of municipal power in such matters has been considered in The State, ex rel., v. Gas Co., ante, p. 165, 127 Pac. 639, where it was held that the power to contract for rates for furnishing water, light, heat or power to a city or its inhabitants is a governmental power which may be delegated to the mayor and council of a city, but must be specifically granted or be absolutely essential to the exercise of powers expressly conferred.
In that case it appeared that the state had legislated upon the subject by an act declaring that rates should not be greater than the charges fixed by the lowest schedule of rates on the first day of January, 1911, without the consent of the Public Utilities Commission (Laws 1911, ch. 238, §30), and the attempt to increase the rates above that standard had been made without the consent of the commission. Following that case it is held that the mayor and council of cities of the second class could have no authority to contract for rates for telephone service to be furnished to the inhabitants of the city for a fixed term of years, after the state by direct legislation or through a commission or other lawfully delegated authority had acted upon the subject.
The contention of the appellee is that the contract for rates was absolutely void, and that acquiescence, however long continued, can not operate to prevent the proposed action to increase charges above the stipulated rates. It is said that the Wyandotte gas case necessarily leads to this conclusion. This claim will now be considered. There was nothing morally wrong or opposed to public policy in imposing the condition prescribing rates in the ordinance, or in the resolution consenting to the transfer. Such conditions were common in many like grants in many cities. Franchises, so-called, embracing schedules of rates for services in furnishing water, light and the like were sought and accepted and acted upon. The power attempted to be exercised was not prohibited by the act regulating cities of this class or by other statutes. It therefore remained vested in the legislature subject to delegation as might be deemed proper, but the legislature had not acted. In such a situation it has recently been held in another jurisdiction that a contract between a city and public service corporation will be in force between the contracting parties until the state exercises its paramount power to fix rates. A city in Wisconsin granted by ordinance the right to operate an interurban railroad upon certain streets. One of the conditions imposed was that the passenger fare between that city and another city should not exceed ten cents. The' grantee accepted the conditions and constructed the road. The defendant traction company afterward succeeded to his rights, and by another ordinance, passed at the instance of the traction company, it was granted the same rights that had been previously given to the first grantee and subject to the same conditions which were accepted. The traction company continued' the stipulated fares for a time and then gave notice of an increase to fifteen cents. The action was brought to enjoin the proposed increase and to compel the traction company to abide by its contract. The defense was that the city had no authority to exact the condition and that the part of the ordinance fixing fares was ultra vires. In the course of the opinion it was said:
“That the traction company had the- right on its part to make a contract fixing the rate of charge for a given service, provided such contract violated no law and was not inimical to public policy, is clear enough. By so doing it could not forestall the state and prevent it from exercising its governmental function regulating rates. But until the state sees fit to interpose, the carrier ordinarily - may exercise a free hand in fixing rates, subject to the qualification that they must not be unreasonably high and must not be unjustly discriminatory. In order to have a binding contract there must be mutuality of obligation, and whatever doubt arises on the branch of the case we are considering arises in reference to the right of the city to make the particular contract before us.” (Manitowoc v. Manitowoc & Northern T. Co., 145 Wis. 13, 19, 129 N. W. 925.)
It was held that there was no law inhibiting the making of the contract fixing rates. Neither was there any law authorizing it, and the court said:
“Statutes granting to cities the right to make longtime contracts binding, on the public and fixing a rate to be charged by a public service corporation are not looked- upon with favor and will be strictly construed. It is only where the right is very clearly conferred that the state Will be held to have relinquished its power to enact laws regulating tolls.” (p. 27.)
This is in entire accord with the Gas Company case, but the court proceeds to say:
“No specific authority having been conferred on the city to enter into the contract in question, the right of the state to interfere whenever the public weal demanded was not abrogated. The contract remained valid between the parties to it until such time as the state saw fit to exercise its paramount authority, and no longer. To this extent, and to this extent only, is the contract before us a valid subsisting obligation.” (p. 28.)
The court, after examining the statutes, held that the state had not exercised the power to modify or abrogate the contract; that the railroad commission, although vested with such power, had made no determination, and that until such determination the contract remained in force.
In that case the company also contended that the fare stipulated in the ordinance was unreasonable, and the trial court found that it was unreasonably low. Concerning this feature of the case it was said:
“The court can not relieve the defendant from an improvident contract, but the contract is of such a character in the present instance that the legislative branch of the government may, in the interest of the public, abrogate it.” (p. 30.)
The defense that the rates are unreasonable was álso interposed in this case, but there was no finding, the judgment having been rendered upon the pleadings wherein the allegation of unreasonableness is denied.
It is true that the Wisconsin statutes, as appears from the opinion, gave the city control of the streets and the right of way over them. In this respect the situation is like that existing in this state since the passage of the act of 1905 vesting such control in the city, but unlike that existing when the old ordinance was adopted. However, as the appellee sought for and obtained the consent of the council to the transfer after the act of 1905 took effect, and accepted the conditions imposed at that time in giving such consent (a consent to such transfer being necessary under the terms of the ordinance), its rights should be considered with reference to the power of the city under that statute. The company received and still retains a right of way—certainly a substantial benefit even if there were no other—and should be held to the condition to which it agreed until the state acts in the matter or some right to relief is shown.
In harmony with the decisión in the Manitowoc case, but proceeding upon a somewhat different course of reasoning, other courts have reached the same result by applying the principle of estoppel. In New Jersey, in an opinion by Judge Pitney, in a case relating to the validity of license fees imposed upon a street railway company by an ordinance accepted by the company, permitting the use of streets for its tracks, it was held that although the city had no power to impose the condition stipulated in the ordinance, the company having accepted the' condition and constructed its line and operated its trains under the ordinance, the want of power in the city was unavailing. The court said:
“In fact the ordinances were accepted by the company subject to those conditions, and the lines were constructed by it and have since been maintained and operated by it and its successors, including this defendant. It is now too late for the defendant to set up that the de facto contract thus entered into and acted upon, and from which benefits have thus accrued to the defendant and its predecessors, was ultra vires the municipal corporation.” (Jersey City v. North Jersey St. Ry. Co., 72 N. J. Law, 383, 391, 61 Atl. 95.)
The same court in a case involving the same principle said :
“But in our view it is not open to the traction company to raise the question that the grant of its local privileges and franchises was ultra vires the municipal corporation, while at the same time the company retains and uses and enjoys those privileges and franchises. The plea of ultra vires is not admitted in such circumstances except where it is practicable to restore the status quo ante, and we therefore think the present respondent is estopped from setting up that plea.” (Rutherford v. Hudson River Traction Co., 73 N. J. Law, 227, 235, 63 Atl. 84.)
In a similar situation the supreme court of Illinois declared:
“We are also of the opinion that even though it might be held that the condition upon which the permit or license was granted to the defendant railway company was ultra vires, the city not having the power to impose it, nevertheless, the- ordinance having been accepted by the company with the condition attached, agreeing thereby to perform it, it became a valid contract between it and the city, the validity of which the defendant is now estopped to deny. The act of the city in imposing the condition can not be treated as against public policy or prohibited by statute, and void, and therefore, having accepted the contract in its entirety and enjoyed the benefits for which it agreed to pay the amount prescribed, it can not now repudiate that contract.” (Chicago Gen. Ry. Co. v. City of Chicago, 176 Ill. 253, 259, 52 N. E. 880, 68 Am. St. Rep. 188.)
In another case, also relating to the franchises of a street railway company, the Illinois court said:
“In the absence of the ordinance the respondent company had no power or right to enter upon the streets of the village and erect poles, string wires thereon and construct and operate its road by electricity upon and along such streets. These privileges constitute ample consideration, if any could be deemed necessary.. The privileges granted the respondent company by the terms of the ordinance have been and are being fully enjoyed by it. It can not be permitted to take and retain all advantages and benefits of the ordinance, and escape performance of duties to the public upon which its rights to such advantages and benefits are predicated upon the ground the ordinance and the duties imposed by it are ultra vires both the village and the respondent company. The plea of ultra vires will not, as a general rule, prevail when it will not advance justice, but will, on the contrary, accomplish a legal wrong; and it is a general rule that undertakings, though they be ultra vires, will be enforced against quasi public corporations if said corporations retain and enjoy the benefits of concessions granted on condition such undertakings should be performed.” (The People v. Suburban R. R. Co., 178 Ill. 594, 607, 53 N. E. 349, 49 L. R. A. 650.)
In The City of St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764, it was held that a contract made by a city although ultra vires is not illegal if not prohibited by its charter, and that one who had received benefits under a contract with the city was estopped from setting up the plea of ultra vires to escape liability upon the contract while retaining its benefits.
The general principle of estoppel applied to a business corporation acting ultra vires where the contract has been executed was stated in Town Co. v. Morris, 43 Kan. 282, 23 Pac. 569, thus:
“A corporation which has enjoyed the benefits of a contract can not plead that it was ultra vires, where no fraud is intended or has been committed.” (Syl. ¶1.) (
The application of' the principle of estoppel to a public service corporation, acting without legislative authority, where the condition was agreed to by the company is denied in Farmer v. Telephone Co., 72 Ohio St. 526, 74 N. E. 1078, and also in Wright v. Glen Telephone Co., 112 N. Y. Supr. Ct., App. Div., 745. The latter case was an action by an individual claiming the benefit of a rate fixed by an agreement contained in an ordinance. The court cited the Farmer case in Ohio and other decisions, and said :
“If this be sound law the franchise can in no way be a contract binding upon the defendant as to compensation for service for lack of consideration. The defendant can not be estopped because it has complied so far with terms with which it was not required legally to comply. No harm has been done this plaintiff or the municipality and I can see no element of estoppel in any act done by the defendant under the terms of the so-called franchise.” (p. 747.)
Referring to conflicting decisions on this subject it is stated in section 218 of volume 1 of Beach on Public Corporations that the great weight of authority supports the proposition that when the contract is wholly beyond the express or implied powers of the corporation it is absolutely void and can not be ratified by performance or acceptance of benefits.
At section 1229 of volume 3 of the fifth edition of Dillon on Municipal Corporations this subject is discussed, and reference is made to the fact that in some jurisdictions such a condition not authorized by law is regarded as a mere nullity, not however impairing the validity of the grant or franchise, but the author also says:
“But' in other jurisdictions the principle of estoppel appears to be applied, and it is held that a railroad company or other public service corporation, which has accepted the benefit of a grant or consent with a condition attached thereto, is estopped to contest the validity of the condition either as ultra vires the municipality, or as beyond its own powers, and is bound thereby.” (§ 1229.)
The learned author does not appear to give his own views upon this particular subject.
Decisions of this court are cited to uphold the contention that municipal action which is ultra vires in the strict sense of that term can not be made valid by ratification, but the precise question now under consideration has not been determined here. It was held in The City of Leavenworth v. Rankin, 2 Kan. 357, that a municipal corporation can exercise only powers conferred by law. In making contracts they must act within the limits of such powers and no subsequent act of the corporation can cure the defect. These are statements of general principles frequently cited and followed.
In In re Pryor, Petitioner, 55 Kan. 724, 41 Pac. 958, it was held that an ordinance passed after the grant of a right to lay and maintain gas pipes in a city of the second class fixing maximum rates is inoperative as to the assignees of the right theretofore granted by an ordinance in which rates were not fixed. It will be seen that there was no contract or consent to the rates involved in that case, but only a question of power to fix maximum rates. The court said in the opinion:
“Whether they might, as a condition of their consent, provide that gas or water should be furnished to the city or to its inhabitants at not exceeding certain prescribed rates, we need not now inquire.” (p. 728.)
Passing by the absence of any consent of the company in that case, it will be seen that an estoppel could not possibly be involved.
In the course of the opinion in O’Leary v. Street Railway Co., 87 Kan. 22, 123 Pac. 746, it was said:
“Inaction, acquiescence, tacit consent, and the like, on the part of city officials can not be invoked to justify private invasions of public property or rights, and lapse of time can not bar remedies appropriate for the protection of public interests. Nor can estoppel be invoked in cases where the city was powerless, under the law, to do the disputed thing in the first instance. But no such questions are presented here.” (p. 31.)
That case is cited as opposed to the application of estoppel here, but it does hot sustain the contention. It was only held that the city was not estopped by failing to act or by giving consent when it had no authority to do either.
It is not necessary to decide that the principle of estoppel applies here as fully as it was held to apply in some of the authorities cited. It is sufficient to say that the rates prescribed in the ordinance should govern until some action is taken by the state or' by its authority. Nothing said in the opinion in the Wyandotte Gas Company case is at Variance with this conclusion, which is reached by a consideration of matters not involved in that case.
The appellee suggests that the appellant now claims that the former opinion precludes the appellee from “presenting its evidence in support of the defenses raised by it in its answer,” and asks for further directions. The directions given seem reasonably plain, and no difficulty in construing the opinion is anticipated. The question presented in this court was whether the district court erred in giving judgment for the defendant upon the pleadings. We held that it did so err, reversed the judgment so rendered and directed the district court to overrule the motion of the defendant, and this is still the conclusion of the court. Further proceedings should be in accordance with the views expressed in this and the former opinion. | [
-80,
124,
-12,
-1,
90,
100,
18,
-112,
121,
-79,
-89,
83,
107,
80,
21,
121,
-46,
127,
80,
99,
-12,
-110,
70,
43,
-38,
-45,
-13,
-43,
-77,
-36,
-26,
-44,
76,
32,
-54,
-107,
-26,
-62,
69,
-98,
-50,
33,
-87,
73,
-40,
-61,
52,
105,
112,
-54,
81,
-53,
-77,
44,
24,
-45,
40,
44,
123,
-87,
-48,
-7,
-86,
-57,
109,
5,
49,
36,
-104,
-91,
-24,
-114,
-104,
49,
24,
-24,
123,
38,
-122,
118,
101,
-39,
9,
98,
99,
1,
-91,
-17,
-8,
-98,
46,
-102,
-115,
-90,
-106,
88,
-94,
4,
-66,
-99,
68,
22,
7,
-2,
-33,
-108,
31,
108,
1,
-113,
-90,
-77,
-113,
-4,
-110,
3,
-17,
-29,
49,
116,
-62,
-24,
92,
99,
26,
-109,
-105,
-36
] |
The opinion of the court was delivered by
West, J.:
Carrie Nelson brought this suit to set aside a certain deed and to partition the eighty acres of land in question between her brother,' the defendant, and herself. She alleged that in 1879 her father died intestate leaving his widow and the parties as heirs; that he owned the land, and that the mother was permitted by the plaintiff to occupy it during her life, but that at all times the plaintiff claimed and owned an interest therein; that in 1891 the mother made a deed to the defendant, reserving a life estate, but that the deed was void for undue influence and fraud; that the mother never intended to part with her interest in the land until after her death; that the defendant never had possession, and had lived in Missouri much of the time and paid no attention to the land after securing the deed and having it recorded.
After the overruling of a demurrer the defendant answered alleging that the father settled on the land in 1876, making the necessary entries and the first payment; that he relinquished the west half to the sister and her husband, who acquired title thereto; that at that time the sister was of age and it was understood and agreed between her and her father that the east half should afterwards become the property of the defendant ; that the father died intestate before having completed the entry and after having made only one payment; that after his death the widow and the defendant took possession, completed the entry, the money being furnished by the defendant, and procured a certificate, which was afterwards destroyed, it having been issued about 1882; that the mother and the son made lasting improvements and held open and exclusive possession, claiming it as their own until -1891, when the deed was made for the consideration of $100 paid by the defendant to his mother. The statute of limitations was also pleaded: The court found for the defendant and the plaintiff appeals.
The testimony failed to establish fraud in respect to the deed, and no agreement on the part of the plaintiff to relinquish her interest was shown. The father entered the eighty acres in question about 1876. There is some contention that he had previously filed on a quarter- section and relinquished the other half to the plaintiff and expressed a desire that the defendant should finally have the eighty in controversy, but this contention is not well supported. The proof shows that the entryman died in 1879 leaving a widow and the defendant, then about sixteen years old, and the plaintiff, then of age and married. After his «death the widow completed the payments, and the patent was issued about 1882 in the name of the entryman. The widow and the son remained upon and improved the land, and in 1891 she deeded it to him, reserving to herself a life estate, the defendant paying her $100. The deed was promptly recorded, of which the plaintiff soon acquired actual knowledge. The son continued to live on the land, but in later years moved away, always claiming, however, to be the owner when the life estate should terminate. The widow died in 1909.
The plaintiff argues that upon the death of the father and the completion of the title by the widow the land belonged to the family, one-half to the mother and one-fourth to each of the children, and that the mother had no title to more than one-half and hence her deed conveyed nothing more, and that forty acres of the land belonged and .belongs to the plaintiff and the defendant in common and is subject to partition. It is suggested that the land became community property but such property is a stranger to our laws.
The defendant insists that upon the death of the husband and the completion of the title by the widow the land became hers absolutely by virtue of section 2291 of the Revised Statutes of the United States; that if this be incorrect then the plaintiff’s cause of action is barred by the statute of limitations. The section referred to provides that if the entryman be dead “his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death” may prove certain things, and “he, she, or they, 'if at that time citizens of the United States, shall be' entitled to a patent, as in other cases provided by law.”
The plaintiff argues that it was a case of preemption as shown by the testimony concerning payments and installments at the rate of $1.25 an acre. The defendant proceeds upon the theory that it was a homestead entry, and both parties base their rights upon the section of the homestead law already referred to. As a matter of fact the land was undoubtedly Osage ceded land entered under the act of congress of August 11, 1876 (19 U. S. Stat. at Large, p. 127). Very likely after the entryman made one or more payments upon the land he acquired an interest therein which would descend to his heirs. While the act in question makes no provision for the completion of the title in such case as this and none as to who may receive the patent, it does provide in section 7 (19 U. S. Stat. at Large, p. 129) that nothing in the act shall prevent the land from being taxed under the laws of the state from and after the time the first payment is made, and being taxable it may have been descendible. ’ So far as the homestead provision relied on is concerned, if the rights of the parties are to be determined by section 2291 of the Revised Statutes of the United States there is no question that the widow had a right to a patent which would give, her an exclusive title. In Chapman, Ex’r, v. Price, 32 Kan. 446, 4 Pac. 907, it was said that it was the intention of the homestead law that an entry under it should be for the sole benefit of the person making it, “but if he died before the expiration of five years, then that all the rights he had acquired in the land entered, by virtue of his entry and possession, should pass to and belong to his widow, if living." (p. 449.) Similar language was used in Newkirk v. Marshall, 35 Kan. 77, 83, 10 Pac. 571.
In McCune v. Essig, 118 Fed. 273, it was held, that “A patent issued to the' widow of a homestead settler upon her making final proof, in accordance with the provision of the homestead law, conveys the land to her absolutely, and no interest therein passes by inheritance to the children of her husband." (Headnote, ¶ 2.) This was affirmed by the circuit court of appeals (McCune v. Essig, 122 Fed. 588), and reaffirmed by the supreme court (McCune v. Essig, 199 U. S. 382).
(To the same effect are Crist v. Crosby et al., 11 Okla. 635, 69 Pac. 885; Perry v. Ashby, 5 Neb. 291; Jarvis v. Hoffman, 43 Cal. 314; and Hayes v. Carroll, 74 Minn. 134, 76 N. W. 1017.)
As both parties appear to base their rights on this section, this rule might well dispose of the case. The fact that the patent was improperly issued in the name, .of the husband could not render the widow a trustee for either of her children, and the fact that all parties, have acquiesced in the situation as it is and no attempt, has been made to correct the patent makes it proper to' hold that as between the plaintiff and the defendant the real ownership must be deemed to have passed to. the mother.
Assuming, however, that the tract was Osage ceded land and that upon the death of the entryman and the completion of the . title by the widow the patent should have gone to the widow and children jointly, has the-plaintiff, under all the circumstances, a right to maintain. this action for partition? The testimony shows that the widow repeatedly spoke of the land as Andrew’s after her husband’s death, tha.t it was so regarded in the neighborhood, and although the plaintiff lived on the adjoining eighty and knew about the deed and its having been recorded, she did not, until aftér the death of .the mother, take any steps to assert her right to any portion of the land. Her theory is that she did not desire to disturb her mother’s possession while she lived, but for more than fifteen years she knew that the mother, by her deed, had asserted adverse ownership of the entire eighty and had attempted to convey the entire title to the son, leaving only a life estate for herself. The land was taxed to the son, and the taxes for all these years have been paid, and the improvements, whatever they are, have been made, all without any expense to the plaintiff. The deed was a solemn declaration on the part of the mother that she claimed to own the land and intended to vest the full title, save the life estate, in the son. Its record was notice to the world, and if the title to one-half only was in the mother and the other half in the daughter and the son jointly, then upon the execution and recording of the deed and actual knowledge thereof a cause of action accrued to the plaintiff, and the continued occupation by the mother and the son was accompanied by a continued denial of the plaintiff’s interest and was therefore adverse to her. The deed was a declaration and notice that both mother and son were holding adversely to the daughter and that each was claiming that the latter had no interest in the land, and yet more than fifteen years elapsed before any legal steps were taken to assert any claim of the plaintiff. Surely this is not the case of one tenant in common holding possession without denial of his cotenant’s title, but the very (opposite. It was testified that before her death the mother had expressed a desire to sell the land for three thousand dollars so that she and each of the children could have a thousand dollars, and that she executed a gas lease, but these matters are insufficient to overturn the deed even if repeated statements by-her that the land belonged to Andrew had not been shown.
It was held in Squires v. Clark, 17 Kan. 84, that mere possession of a tenant in common does not prove an ouster, but “there must be something to show a denial or repudiation of his cotenant’s rights, or the possession will be deemed to be held in subordination thereto.” (Syl. ¶ 2.) In Seantlin v. Allison, 32 Kan. 376, 4 Pac. 618, a purchaser of the entire estate from the owners of four-fifths thereof took entire possession, appropriated all the rents and profits for several years, twice mortgaged the land and made alterations and improvements without consulting the owner of the remaining one-fifth, and he was held to have thereby ousted his cotenant.
“A multitude of cases hold that ‘where one of several tenants -in common executes a deed purporting to convey the entire premises to one who enters into possession thereunder claiming title, or recording his conveyance, this will constitute a disseizin of the cotenants.’ (1 Cyc. 1078.)” (Sparks v. Bodensick, 72 Kan. 5, 9, 82 Pac. 463.)
In Schoonover v. Tyner, 72 Kan. 475, 84 Pac. 124, it was held that before a tenant in common can rely on an ouster of his cotenants he must claim the entire title and hold exclusively and adversely against every other person. Warfield et als. v. Lindell et als., 38 Mo. 561, was cited, to the effect that there must be “outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them.” (p. 581.) If the mother and the son had verbally notified or joined in a letter to the plaintiff that they claimed to own the entire eightly and that they denied that she had any interest therein, it would seem that this would amount to an unequivocal ouster, and yet it would not be as solemn and formal a declaration as a deed executed and recorded and brought to her actual notice, asserting full title and right to possession of the entire tract.
“In order to constitute a disseizin of a cotenant the fact of adverse holding must be brought home to him either by information to that effect, given by the tenant in common asserting the adverse right, or there must be outward acts of exclusive ownership of such a nature as to give notice to the cotenant that an adverse possession and disseizin are intended to be asserted. Actual verbal or written notice is not, however, necessary ; adverse possession may be inferred from outward acts, open and notorious claim of ownership, and exercise of exclusive right. It has also been held that it is not absolutely essential that the cp-owner should have actual knowledge; a tenant in common will be deemed to have notice of the adverse holding by his cotenant where the hostile character of the possession is so open and manifest that a man of reasonable diligence would discover it. . . . An assertion of an exclusive title to the whole of the land by a joint owner, and a contracting to sell the whole, are evidence of an adverse possession and such an ouster as to enable the cotenant to maintain ejectment.” (1 Cyc. 1073, 1077.)
Complaint is made that the defendant’s wife was permitted to testify to certain communications had by her with the mother in violation of section 320 of the civil code. Whether or not the wife was a competent witness for her husband she was not a party to the suit and therefore was not disqualified by reason of the section referred to.
The judgment is affirmed. | [
-16,
-22,
-36,
63,
-120,
96,
40,
-72,
114,
-125,
-92,
83,
75,
-46,
20,
45,
107,
11,
81,
104,
-62,
-93,
23,
-95,
82,
-13,
-77,
-51,
-79,
93,
118,
-57,
76,
34,
-54,
-43,
-26,
-62,
-63,
82,
-122,
12,
-117,
-19,
-39,
80,
52,
-93,
84,
78,
117,
-66,
-13,
43,
61,
-25,
108,
47,
-21,
-79,
16,
-72,
-117,
23,
95,
18,
-111,
22,
-72,
-125,
-56,
10,
-104,
53,
-128,
-64,
115,
54,
-122,
116,
71,
-103,
40,
38,
99,
49,
101,
-17,
-8,
-104,
38,
118,
-99,
-90,
-60,
72,
3,
108,
-66,
-99,
117,
16,
-21,
-4,
-18,
13,
76,
-8,
1,
-117,
-42,
-127,
11,
-8,
-116,
3,
-61,
-85,
48,
113,
-55,
-30,
76,
66,
61,
-69,
-113,
-72
] |
The opinion of the court was delivered by
Burch, J.:
The plaintiff'sued the defendant for damages resulting from the cutting off of the city water from his greenhouse, and recovered. The city appeals.
The city owns its waterworks. In October, 1902, on motion made in the city council, it was ordered that the plaintiff be furnished water at the rate of $15 per year for the remainder of the year 1902, and for the year 1903. This rate was fixed with reference to the plaintiff’s business as the proprietor of a greenhouse. On December 30, 1903, an ordinance took effect fixing water rates which provided that rates for greenhouses, gardens and gardening should be governed by special contract. On May 23, 1907, an ordinance took effect providing that greenhouses, gardens and gardeners should be supplied at specified meter rates, the consumer, to install a meter at his own expense. Under the ordinances of 1903 and 1907 the rate for a single faucet in a house was $6 per annum. Throughout the entire period involved in the controversy rentals for water furnished at flat rates were payable in advance on the first days of January and July in each year, and if not paid within ten' days service was to be discontinued. On June 6, 1907, the water inspector asked the council for instructions relating to the plaintiff’s water rates under the new ordinance. An investigation was made, it was found that the city records disclosed payments by the plaintiff for water since 1902 to be but $21.75, and the council ordered the city clerk to collect from him at the rate of $15 per year from 1902 until July 1, 1907, and then apply the meter rates. The plaintiff made no further payments, did not install a meter, and on July 23 the water was turned off.
The plaintiff based his action on a special contract for water at the rate of $6 per year. ' On October 8, 1903, the plaintiff granted the city the right to construct, maintain and operate a gas main through his. premises- The grant was in writing, was signed by the plaintiff and his wife, and recited that it was made “for a valuable consideration to us in hand paid, the receipt of.which is hereby acknowledged and confessed.” The gas main was laid and was placed far enough below the surface that it did not interfere with the plaintiff’s use of the ground. The plaintiff testified that the consideration was an agreement on the part of the city’s water inspector, who negotiated the contract, that his water rate should be six dollars a year as long as the gas pipe was maintained on his premises. The city denied authority on the part of the inspector to make such a contract. No attempt was made to .prove authority, the plaintiff relying wholly on ratification. The city contends that the evidence was insufficient to show that it became obligated in that manner. It further contends that the plaintiff was in arrears, conceding that a rate of six dollars per year took effect on October 8, 1903, and consequently that it. had the right to discontinue service to the plaintiff.
The evidence from which ratification might be' in-' ferred was indeed quite meager, and giving the plaintiff credit for all his payments he was probably indebted to the city for water even at the six-dollar rate, but in view of the disposition to be made of the case it is not necessary to discuss the sufficiency of the evidence as against the demurrer to it interposed by the city.
By resolution of the council the city’s water inspector was directed to assist the city clerk as collector. The plaintiff testified that on the 17th day of May, 1907, he met the inspector on the street by the Methodist church, and told the inspector he wanted to pay his water rent for the year. The inspector said, all right, but that he did not have his receipt book with him. The plaintiff replied that the inspector could •mail him a receipt, or that he would call for it, and that thereupon he paid the inspector $6, but never was given a receipt. The inspector testified that on going to his office he wrote a receipt for the money, specifying that it was for “hydrant” and that he then erased the word hydrant and wrote in its place the word “faucet.” The inspector further testified that he understood he was collecting for a faucet in the plaintiff’s house, that the plaintiff had a special contract for the greenhouse, and that this understanding arose in this way: In July, 1906, he collected $9 from the plaintiff in payment for water for the last half of the year 1905 and the year 1906. He then said to the plaintiff that the sum collected paid for the faucet in the plaintiff’s house and asked, “What about the greenhouse?” The plaintiff replied that he had a contract for free water in his greenhouse which he could not produce just then because he was in a hurry. The inspector said he would carry it as an open account on the greenhouse until the plaintiff found his contract and brought it in. The matter ran along until the transaction occurred at the Methodist church in May, 1907, when the inspector again asked the plaintiff for his greenhouse contract. The plaintiff said he had been unable to find a copy of it, that it should be in the city clerk’s office; and that if there were no formal contract the arrangement would be found on the minutes of a council meeting held when Bogue was mayor. Following this clue the inspector made an investigation, discovered the minutes of the proceedings in 1902 relating to the rate of fifteen dollars per year, withheld the receipt for $6, and asked for instructions as to how to proceed under the new ordinance already passed. The payment of $6 made May 17 was included in a report made by the inspector to the council on June 17, 1907. This report was the basis of the instruction to the city clerk already mentioned to col lect at the rate of $15 per year up to July 1, 1907, and then apply meter rates. The contract relating to the gas main right of way was not found until after this suit had been commenced. The city clerk testified that he notified the plaintiff of the instruction he had received, that before the water was turned off the plaintiff came to his office, discussed the subject of the communication, claimed that he had a contract and receipts, and was asked to produce them so that proper credit could be given but never did so. The plaintiff denied the conversation and denied receiving written notice from the clerk that he was in arrears.
In view of the state of the case as it has been described the court instructed the jury that in. order to recover it was' necessary for the plaintiff to establish the fact that he had a contract for water at the rate ■of $6 per year, and gave the following instruction with reference to the right of the city to cut off the supply ■of water:
“Should you find from the evidence that the plaintiff in this action was not owing anything to the city •at the time the water was turned off, or that the last payment made by the plaintiff was for the year 1907, •and was full payment for that year, then and in that event, the city had no right to turn off the water from plaintiff’s greenhouse and if they did so, would be liable in this action.”
The city complains of this instruction on the following grounds: The inspector had no authority except to collect money due; the charges for water for the July-December, 1907, period were not due until •July 1; the inspector could not by accepting payment for this period on May 17 waive the city’s right to discontinue service on account of delinquencies existing on July 1; and in any event the plaintiff could hot by paying in full for the year 1907 secure himself against past delinquencies which were not discharged.
There is no dispute that the plaintiff made the payment of May 17 for water service throughout the en tire year. The inspector so understood it. True, he testified that he supposed the payment was for a faucet only, but according to his understanding it was for a faucet for the entire year. The evidence of the city 'was that an investigation of the plaintiff’s standing as a water consumer followed. The payment itself was brought to the attention of the council by the inspector’s written report filed with the clerk, and corporate action was taken which was noted on • the minutes of the council meeting. The governing, body of the city took up the controversy with the plaintiff,, and the original power of the inspector is no longer a matter of consequence. The city does not, and of course could not, under the circumstances, disclaim knowledge that the plaintiff was paying for the last half of the year 1907 before the charge for that period was due. It held the money, without protest that it was not receivable in May, and kept it until July 1, when it was in fact payable. Consequently the time when it was received is no longer a matter of consequence. Under these conditions the question arising upon the instruction is this: Assuming that in May the plaintiff paid in full for water for the year-1907, and that his appropriation of the proper sum for that purpose was accepted and retained by the city with knowledge of the facts, was the city obliged to furnish him water for that year regardless of previous defaults ?,
The general principles of law governing the subject are stated in 1 Farnham on Waters and Water Rights, § 161, p. 854, as follows:
“The company may make reasonable rules for enforcing payment for the water and may be allowed to shut off the supply in case payment is not regularly made. But it will not be allowed to use its power to shut off' the water for an ulterior purpose, or to compel payment of disputed bills. The right is given it solely with reference to current matters and to compel payment of bills from period to period as they accrue; and if the transaction is closed, or there is doubt as to the validity of the bill, or the power to shut off the water involves an exercise of a right on the pabt of the company, which is not clear, equity will interfere to protect the consumer.”
Cities which undertake to furnish water to their inhabitants are subject to the same limitations in this respect as private companies operating under city franchises. On the one hand the city can not be driven to innumerable expensive actions at law, involving very small sums of money, and more often than otherwise utterly fruitless to protect its interests. On the other hand, an uninterrupted supply of water is so absolutely indispensable to human existence that an indiscriminate employment of the drastic remedy of cutting it off can not be permitted. The authorities probably go too far in saying broadly that service can not be discontinued because of the nonpayment of disputed bills. The writer inclines to the belief that everyone who receives water through a meter disputes his water bills, particularly those which somehow accrue, while his house is closed and he is away on a visit or vacation. Besides this, the city ought not to be compelled to be harsh. Some latitude of time ought to be allowed for the amicable adjustment of claims even against water pirates without imperiling the right of discontinuance. But the right fails unless promptly exercised in an effort to protect against imposition or loss in essentially current affairs.
In this case the city accepted sums of money practically equivalent to a rate of $6 per year at odd intervals for year after year without knowing what the status of the plaintiff as a water consumer was. In 1906, the plaintiff made his position known to the inspector and paid for eighteen months’ service at the six-dollar rate. Another year went by, and before the city made any thorough attempt to sound the relations of the parties •and reach a definite conclusion as to the plaintiff’s true standing, he paid for water for a year in accordance with his claiipr Under these circumstances he was entitled to water for that year, no matter what delinquencies a full accounting for the previous years .might disclose.
The plaintiff pleaded the contract upon which he relied, as follows:
“After considerable negotiations between plaintiff and said Charles Van Horn, who was acting on behalf of the City of Neodesha, a special oral agreement was entered into, by the terms of which the. city was to run its said gas pipe and line across plaintiff’s said premises and was thereafter to furnish plaintiff water for his greenhouse at the rate of six dollars per annum and as long as said • gas pipe and line was maintained thereon.”
In his testimony the plaintiff stated the conversation with Van Horn as follows:
“In substance he said if I would give him that contract they would furnish water for six dollars a year for my greenhouse and house, is what he said.”
Later in his testimony the plaintiff said:
“When I executed the contract, I understood that I was going to have a continuing right to have water for my greenhouse. That is what Van Horn told me.”
At that time (1903) the greenhouse was forty feet wide and one hundred feet long. In 1904 it was enlarged by an addition sixteen feet wide and forty feet long. It contained a fifteen-horsepower boiler and from 1500 to 2000 feet of pipe.
In 1906 the plaintiff commenced raising celery. When the water was turned off the celery ground was one hundred and seventy feet long, one hundred and twenty-six feet wide, and contained 13,000 plants. Damages were asked in the sum of $520 for the destruction of these plants. This vegetable garden bore no relation to the plaintiff’s greenhouse except proximity, and was clearly not included in his contract for water. Under the ordinance of December 30, 1903, water rates for gardens and gardening' were to be fixed by special contract. Without a special contract the use of water for such purposes was unauthorized. Under the ordinance of May 23, 1907, gardens and gardeners were to be supplied at meter rates, the consumer to install the meter. The plaintiff had no right under his greenhouse contract to use water for his vegetable garden. It was his duty to install a garden meter. He had ample time in which to do so, both before and after July 1, the date upon which meter rates were to be applied, and his failure to obey the ordinance authorized the city to shut off his supply of water. The instruction given the jury on this subject merely stated that the plaintiff was not entitled to water for garden purposes under the contract made with Van Horn, and that the city could recover for water so used. Hence the instruction was incomplete.
The plaintiff asked for damages in the sum of $7490. The items were: invoice of shrubs, bulbs and plants, $2990, greenhouse rendered valueless, $1500, loss of business, $3000. He gave the following account of his effort to prevent loss after the water was turned off:
“They turned the water off about the 19th of July, 1907. When I first discovered it was turned off, I did n’t think anything of it the first day. I supposed they were working on the lines, and the next day I went up to the City Clerk’s office to ascertain what the trouble was. I asked him what was the matter with the water out there. He said-he guessed they had turned it off and I asked what for. He said he did not know. I went out to look for the Mayor, could not find him nor none of the council. I went home and went to drawing the water I had, what little I had in the well, and putting it on the plants; then I saw the assistant superintendent of the refinery. I knew they had a pipe line, and asked him what he thought could be done for me to get water up there. He said we might get water of the Standard, but it would take a month. I drew out what water there was in the well and went down into the well and took a bucket and dipped up what there was there. I did everything to save my plants but they were all destroyed.”
On cross-examination he testified as follows:
“Except the conversation I had with Mr. Carroll [the city clerk] the day after the water was turned off, I made no effort to get water from the City of Neodesha. I never asked them to make a rate with me or to furnish water under the ordinance. I did not attempt to ascertain what the ordinances were nor to ascertain what the regulations were for taking water.”
The court instructed the jury that it was the plaintiff’s duty to improve all reasonable opportunities to avoid and lessen injuries resulting from the city’s conduct, and that a failure to use reasonable diligence to that end would bar recovery for loss or damage which might have been so saved. The jury found specially that the plaintiff used his best efforts to obtain water for his greenhouse but failed to do so, and returned a general verdict in his favor for $4550.
The special finding of fact referred to was very material and the defendant’s motion to set it aside should have been sustained. The finding was probably induced by lack of knowledge on the part of the jury that the plaintiff could sumbit to the city’s exactions without waiving his rights and afterwards recover his outlay, and by lack of knowledge that reasonable diligence required the adoption of such a course rather than suffer his business to be ruined.
The power of the city to withhold the water placed the parties on unequal terms, and the law would have regarded as involuntary any payment made to secure a restoration of service. (Brown v. Cairns, 63 Kan. 584, 588, 66 Pac. 639; Westlake & Button v. The City of St. Louis, 77 Mo. 47; Brewing Ass’n v. St. Louis, 140 Mo. 419, 37 S. W. 525; Brewing Co. v. St. Louis, 209 Mo. 600, 108 S. W. 1; Indiana, etc., Gas Co. v. Anthony, 26 Ind. App. 307, 58 N. E. 868; Rowland v. Watson, 4 Cal. App. 476; City of Chicago v. Waukesha Brewing Co., 97 Ill. App. 583.)
The only differences between the parties were arrearages to the amount of perhaps $50 and the installation of a meter. The plaintiff testified that he had a fine trade amounting to $200 per month and increasing every day and made no complaint of financial inability to meet the emergency. In the face óf a gigantic loss immediately impending he might have looked for the water inspector, with whom he had recently transacted water business and from whom a receipt for payment for water service was still due. Under the circumstances it was the legal duty of the plaintiff to secure water from the city at once, and the measure of his damages would have been the amount he would have been obliged to pay in so doing and the amount of damages, if any, provable to the time water could have been again .turned on. (K. P. Rly. Co. v. Mihlman, 17 Kan. 224, 234; Town Co. v. Leonard, 46 Kan. 354, 358, 26 Pac. 717; Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360.)
The judgment of the district court is reversed and the cause is remanded for a new trial. | [
-16,
110,
-100,
-50,
26,
96,
10,
-102,
73,
-77,
-25,
127,
-3,
65,
28,
97,
-61,
125,
116,
123,
-28,
-94,
6,
2,
-102,
-13,
-29,
-43,
-7,
125,
-10,
-49,
75,
56,
66,
-99,
-26,
-62,
85,
-44,
-122,
-122,
-87,
104,
-39,
64,
52,
91,
114,
72,
113,
-113,
-13,
46,
25,
-49,
44,
44,
-7,
37,
-47,
-15,
-118,
-115,
79,
5,
0,
118,
-108,
-125,
-24,
12,
-104,
49,
-128,
-24,
115,
-92,
-122,
-4,
7,
-101,
12,
98,
98,
16,
37,
-21,
-22,
-24,
12,
-34,
-115,
-90,
-107,
123,
43,
100,
-68,
-99,
96,
22,
39,
118,
-16,
-107,
-33,
108,
3,
-114,
-106,
-13,
-117,
-20,
-104,
-125,
-17,
-93,
49,
101,
-113,
42,
92,
103,
114,
-37,
-98,
-52
] |
The opinion of the court was delivered by
Benson, J.:
This is an action to recover damages for an alleged libel. E. H. Neal, of Indianapolis, Ind., addressed a letter to the Altoona State Bank asking for information concerning the Altoona Portland Cement Company and its officers. The letter stated that the company was bidding for investors. Responding to this inquiry the appellee, who was president of the bank, wrote a letter to Mr. Neal, in which it was stated that the cement company had been characterized as.a paper concern by the state bank examiner; that none of its stock had been placed locally, because “no one locally has any faith in the integrity or .ability of its officers. Its secretary is regarded as one of the most tricky men in this community and a good man to leave strictly alone and all of his projects.” The letter otherwise reflected upon the credit and standing of the company and closed with the statement, “The above information is submitted in confidence and in reply to your inquiry for same and if of any value to you we will expect such information so treated,” and was signed, “J. F. Gunby, President.” The appellant was the secretary of the company. The language of the letter contained within the quotation was held to be actionable per se in Schreiber v. Gunby, 81 Kan. 459, 106 Pac. 276.
The answer admits that the defendant wrote the letter complained of, but alleges that he believed that his Indianapolis correspondent, whose letterhead bore the imprint, “Internal Revenue Service, 6th District of Indiana, Collector’s Office,” was an honorable man holding an office of trust under the government, and an investor honestly inquiring for information, and that he answered the letter in good faith and in confidence. For a separate defense it was alleged that the letter of inquiry was written at the instance of the plaintiff as a decoy to induce the defendant to make some statement upon which to predicate an action. A demurrer filed to this defense was overruled. The verdict and judgment were for the defendant.
Thé first assignment of error argued by the appellant arises upon an instruction placing the burden of proof upon the plaintiff. The effect of this general instruction can best be understood by considering other cognate instructions with it. The jury were informed that the part of the letter quoted above referring to the secretary and officers of the company was actionable per se; but that malice must be proven before the plaintiff could recover, that is, that it must appear that the defendant was prompted to write the letter by a -desire to injure the plaintiff. The requirement of proof of malice was placed upon the ground of privilege. The court said:
“The business man who receives a confidential inquiry relative to the business standing of some individual, firm or corporation may answer the same and his answer is qualified as privileged, that is, if his answer be fairly and honestly made in response to the inquiry and the things that he states he has reasonable and probable cause to believe true, the law will protect him and hold him harmless of damage. But, if, in response to an inquiry of this nature such individual makes false answers or answers with a reckless disregard as to whether or not the statements he makes are true, then and in that event, the law will not protect him.”
It therefore appears that the burden placed upon the appellant by the general -instruction complained of was to prove a wrongful motive on the part of the appellee.
The appellant contends that privilege was not pleaded. The petition alleged that the letter was not written or intended as a privileged communication. The answer contained a general denial and an averment that the letter was written in good faith believing that it was true,, and for honest purposes, without malice or intent to injure. Thus it appears that the question of privilege was tendered by a negative averment in the petition, and met by the. affirmative allegations of good faith in the answer. The pleadings are deemed sufficient to present the question of privilege.
The privilege above referred to is not absolute, but of the class called qualified or conditional, comprised of cases where “The circumstances are held to preclude any presumption of malice, but still leave the party responsible if both falsehood and malice are affirmatively shown.” (Cooley on Torts, p. 211; Kirkpatrick v. Eagle Lodge, 26 Kan. 384.)
“A conditionally privileged publication is a publication made on an occasion which furnishes a prima facie legal excuse for the making of it; and which is privileged, unless some additional fact is shown which so alters the character of the occasion as to prevent it furnishing a legal excuse. . . . The proper meaning of a privileged communication is, ‘that the occasion on which it was made rebuts the inference arising prima facie from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact.’ ” (Townshend on Slander and Libel, 4th ed., § 209.)
Where a communication is made by one having a duty to perform, and it is made in good faith in the belief that it comes within the discharge of that duty, it is privileged. (Bradley v. Heath, 29 Mass. 163; Rude v. Nass, 79 Wis. 321, 48 N. W. 555, 24 Am. St. Rep. 717, note p. 722.) The duty here referred to is not limited to legal obligations, but extends to moral or social duties of imperfect obligation. (Pollasky v. Minchener, 81 Mich. 280, 46 N. W. 5, 9 L. R. A. 102; Odgers on Libel arid Slander, 5th ed., p. 252.) With respect to communications made upon business inquiries, the author last cited at page 253 quotes- Brett, L. J., in Waller v. Loch, 7 Q. B. D. 622:
“If a person who is thinking of dealing with another in any matter of business asks a question about his character from some one who has means of knowledge,- it is for the interests of' society that the question should be answered; and if answered bona fide and without -malice, the answer is a privileged communication.”
Of this nature is a letter from the cashier of a bank to a stockholder regarding the financial standing of a surety on an official bond to the bank. (Rothholz v. Dunkle, 53 N. J. Law, 438, 22 Atl. 193, 26 Am. St. Rep. 432.) Another illustration is a case where one seeks information concerning the trustworthiness of another who has applied to him for credit. An answer, to the request for such information is privileged if made in good faith in the belief that the applicant desires the information for a proper purpose. (Fahr v. Hayes, 50 N. J. Law, 275, 13 Atl. 261.)
Other illustrative instances will be found in King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705, Billings v. Fairbanks, 139 Mass. 66, 29 N. E. 544, Briggs v. Garrett, 111 Pa. St. 404, 2 Atl. 513, and in a note in 104 Am. St. Rep., 145 B.
Whether, upon a particular state of facts, a communication is privileged is a question of law to be determined by the court. But the question of good faith, belief in the truth of the statements and existence of malice are questions for the jury. (Gassett v. Gilbert & others, [6 Gray] 72 Mass. 94; Hamilton v. Eno, 81 N. Y. 116; Rude v. Nass, 79 Wis. 321, 48 N. W. 555.)
The communication containing the alleged libel was; set out in the pleadings with the inquiry to which it; related. There was nothing in the correspondence indicating other than an honest purpose. The reference-to the officers, although actionable per se, was within-. the purview of the inquiry. In this situation good'. faith might be presumed. The communication appeared therefore to be conditionally privileged. (Lewis and Herrick v. Chapman, 16 N. Y. 369, 375.) Within the rule just stated it was the duty of the court to consider it as privileged and to place the burden to prove malice, or a wrongful purpose in writing it, upon the plaintiff. (Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Klinck v. Colby et al., 46 N. Y. 427; Denver P. W. Co. v. Holloway, 34 Colo. 432, 83 Pac. 131, 114 Am. St. Rep. 171; Townshend on Slander and Libel, 4th ed., § 209.)
These views are in harmony with the principles decided in Kirkpatrick v. Eagle Lodge, supra, although that was a case arising out of lodge duties and membership. Analogous principles were also discussed in Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281.
The appellant contends that the separate defense relating to the alleged decoy letter was insufficient and that his demurrer thereto should have been sustained.' This defense was thus stated:
“That the letter written by the said Neal to defendant heretofore set out in defendant’s second defense, was written at the instance and request of the plaintiff, and that said letter was not written by the said E. H. Neal in good faith and as an honest inquirer after the truth, but was written for the purpose of inducing defendant to make some statement upon which plaintiff could predicate a suit in damages against this defendant, with the intent and purpose of injuring and embarrassing this defendant in his position of president of the Altoona State Bank.”
The argument of the appellant is that such devices for the detection of crime are approved by judicial precedents, and the same rule should apply to one who assails reputation as to one who commits a crime. On the other hand it is argued by the appellee that the law will not tolerate a recovery of damages for a libel which a person has been instrumental in publishing against himself.
In Vallery v. State, 42 Neb. 123, 60 N. W. 347, in a prosecution for criminal libel it was held to be no defense to the writing where it was a repetition of previous oral statements although the defendant was induced to make the written publication by the acts of the person Concerning whom the libel was published. The court said:
“We are not aware that there exists, in the law of criminal libel at any rate, any doctrine akin to that of contributory negligence, whereby a prosecution is barred if the person defamed has, in some manner, induced the publication.” (p. 126.)
In Howland v. Blake Manufacturing Co., 156 Mass. 543, 31 N. E. 656, a civil action, it was held that where no previous publication had been made, if the fact appear that the publication of the alleged libel was procured through the agency of a person acting for the plaintiffs and at their request, the publication was privileged. The court said that this was in accordance with the views expressed by English judges in cases cited and was sound in principle,-and added:
“If the defendant is guilty, of no wrong against the plaintiff except a wrong invited and procured by the plaintiff for the purpose of making it the foundation of an action, it would be most unjust that the procurer of the wrongful act should be permitted to profit by it.” (p. 570.)
In Melcher v. Beeler, 48 Colo. 233, 110 Pac. 181, 139 Am. St. Rep. 273, a request for an instruction to the effect that the plaintiff could not recover if he had procured the writing of the letter complained of with a view of bringing an action upon it was approved. The court said:
“If the defendants were guilty of no wrong against the plaintiff with respect to the Finn letter except a wrong invited and procured by them to be committed for the purpose of making it the foundation of an action, it would be unjust to permit them to profit by it.” (p. 248.)
(See, also, Odgers on Libel and Slander, 5th ed., pp. 294, 295.)
Whatever may be the rule in criminal cases where the object is punishment for a public offense, in a civil action a party can not be allowed to recover damages for a libel which he procured or instigated to be published against himself for the purpose of laying the foundation of a lawsuit for his own pecuniary gain. It would be contrary to the principles declared in analogous cases to sustain such an action. It follows that the demurrer to the defense referred to was properly overruled.
Another feature of the case closely related to this remains to- be considered. In the tenth instruction the court, referring to the defense last considered, said:
“If this letter written by Mr. Neal was the result of a decoy letter sent to Mr. Gunby at the instance and request of Mr. Richardson, plaintiff can not recover for the reason that it would place the plaintiff in the situation of publishing a libel against himself, a thing which the law will not tolerate.”
This statement lacks an important qualification. The reason why a person can' not recover in such a case where he instigates or invites the libel is that he does it for the purpose of predicating an action for damages upon it. He may not thus assist in building up a cause of action for the purpose of gathering the fruitage to himself. If, however, the plaintiff instigated or set on foot the inquiry for the purpose of ascertaining whether the defendant, or the bank of which he was president, was disseminating evil reports concerning the cement company or its officers, in order that such influences might be counteracted, or for any other proper purpose, and not for the purpose of predicating an action for damages in his own behalf, he was not estopped from maintaining an action. In King v. Waring et Ux., (Eng. 1803) 5 Esp. 13, Lord Alvanley said:
“The question is, If, in consequence of the letter so written by the Defendant, and which letter was false and unfounded, the Plaintiff was prevented from getting a place? It has been decided, that giving a character to a servant, however injurious to them, yet if fairly given, would not sustain an action, but if the letter was procured by another letter, not written with a fair view of enquiring a character, but to procure an answer, upon which to ground an action for a libel, such evidence, I think, ought not to be admitted.” (p. 15.)
This decision is quoted in Odgers on Libel and Slander, 5th ed., p. 296, as an illustration of the author’s text on the subject of statements invited by the plaintiff, at page 294, already cited in this opinion. It is also quoted as an illustrative case in Newell on Slander and Libel, 2d ed., p. 518.
Following the instruction last quoted, if the jury found from the evidence that the so-called decoy letter was written at the instance and request of appellant, they were precluded from giving him a verdict regardless of his purpose or motive in causing the inquiry. This was an error affecting his substantial rights, and for this the judgment is reversed with directions to grant a new trial. | [
-76,
120,
-24,
-99,
8,
-32,
58,
-102,
101,
-127,
-89,
115,
-23,
-33,
13,
123,
-10,
57,
-44,
106,
117,
-77,
55,
107,
-46,
-77,
-13,
-43,
-79,
-50,
-28,
-49,
13,
48,
-54,
-36,
-26,
-118,
-61,
-98,
-50,
-115,
43,
-51,
-11,
96,
52,
107,
-16,
75,
113,
-116,
-13,
58,
25,
-57,
107,
40,
-21,
-83,
-62,
-71,
-86,
-59,
-19,
23,
-79,
52,
-100,
99,
-24,
42,
-128,
49,
1,
-24,
114,
-90,
68,
-12,
47,
105,
9,
102,
99,
48,
-75,
-17,
-82,
-104,
39,
-49,
-99,
-90,
-80,
73,
43,
45,
-99,
-99,
-12,
16,
-121,
-36,
-1,
4,
25,
108,
1,
-37,
-26,
-79,
-81,
44,
26,
-125,
-29,
-109,
18,
84,
-58,
20,
93,
103,
58,
-101,
-50,
-92
] |
The opinion of the court was delivered by
West, J.:
The defendant, Wykes, lived in Grant county, Oklahoma, and bought meat of his butchers in Caldwell, Kan., from .September, 1902, to December 20, 1906, when there was a balance of $93.23. The last item became due January 1, 1907, and no payment has been made since December 20, 1906. The creditors sold and assigned the account to the.plaintiff bank January 3, 1908. This action by the holder was begun in June, 1911. On October 13 a judgment was rendered in favor of plaintiff for the face of the account and six per cent interest. It was agreed that the defendant had been absent from the state of-Kansas most of the time since September 1, 1902, and had not been present in the state as much as one year since that date, and for more than three years since December 20, 1906, had been personally present in Grant county, Oklahoma.
The defendant appeals, and insists that the action whs barred by the statute of limitations, and relies on sections 20 and 21 of the civil code. Section 20 of the code of 1909 (former Civ. Code, § 21) has been construed to apply only to “cases where the defendant resides in the state when the cause of action accrues but is either out of the state or has absconded or concealed himself.” (Bruner v. Martin, 76 Kan. 862, 869, 93 Pac. 165.) The defendant did not reside in this state when the cause of action accrued, and hence this section does not apply. (Conlon v. Lanphear, 37 Kan. 431, 15 Pac. 600; Williams v. Railway Co., 68 Kan. 17, 74 Pac. 600.)
Section 21 provides that:
“Where the cause of action has arisen in another state or country, between nonresidents of this state, and by the laws of the state or country where the cause of action arose an action can not be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state.”
It was agreed that the action was barred by the statutes of Oklahoma. Certainly the cause of action did not arise anywhere between nonresidents of this state, and therefore it was not barred by section 21. (Land Co. v. Bassett, 85 Kan. 48, 116 Pac. 475.)
The judgment is affirmed. | [
-42,
-24,
-4,
60,
74,
96,
40,
-102,
82,
-96,
53,
-45,
77,
66,
20,
125,
71,
9,
113,
120,
-91,
-77,
7,
-118,
82,
115,
-39,
-35,
-72,
93,
-28,
-44,
76,
48,
74,
-107,
6,
-62,
-63,
-100,
-118,
4,
40,
-56,
121,
0,
56,
-21,
18,
14,
113,
47,
-13,
42,
60,
-61,
109,
40,
107,
-113,
-64,
-16,
-94,
7,
127,
16,
3,
7,
-76,
7,
72,
62,
-112,
59,
51,
-24,
115,
-90,
-58,
116,
-1,
-99,
41,
102,
98,
34,
21,
-17,
-84,
-120,
14,
-43,
-113,
-90,
-112,
16,
3,
41,
-98,
-103,
127,
20,
6,
-4,
-28,
68,
29,
-24,
7,
-54,
-44,
-13,
-113,
116,
-97,
23,
-9,
-93,
-80,
113,
-50,
-30,
93,
67,
56,
-101,
-98,
-43
] |
The opinion of the court was delivered by
Mason, J.:
Black, Sivalls & Bryson sued D. I. Giarth upon an account and served garnishment summons upon the Prairie Oil & Gas Company. The garnishee answered that it had money belonging to the defendant on account of oil delivered by him, but that The FrickReid Supply Company asserted a claim to it. That company was made a party and filed an interplea in which it claimed the proceeds of the oil on the ground that it had a lien thereon acquired under the statute of Oklahoma. The plaintiifs filed a demurrer to the inter-plea. This was overruled and they appeal.
The sole question presented is whether the statute, which is the same as that of Kansas (Gen..Stat. 1909, § 3924), gives a lien upon oil produced by operators under a lease. It reads as follows:
“Any person, corporation or copartnership who shall under contract, express or implied, with the owner of any leasehold for oil and gas purposes, or the owner of any gas pipe line or oil pipe line, or with the trustee or agent of such owner, who shall perform labor or furnish material, machinery and oil well supplies used in the digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well, or who' shall furnish any oil well supplies or perform any labor in constructing or putting together any of the machinery used in drilling, torpedoing, operating, completing or repairing of any gas well, shall have a lien upon the whole of such leasehold or oil pipe line, or gas pipe line, or lease for oil and gas purposes, the buildings and appurtenances, and upon the material and supplies so furnished and upon said oil and gas well for which they were furnished, and upon all the other oil wells, fixtures and appliances used in the operating for oil and gas purposes upon the leasehold for which said material and supplies were furnished or labor performed.” (Comp. Laws of Okla. 1909, § 6170.)
Under this statute a lien may be acquired upon (1) the leasehold or lease, (2) the buildings and appurtenances, (3) the materials and supplies furnished, (4) the oil and gas well for which they were furnished, and (5) other wells, fixtures and appliances used in operating upon the same leasehold. There is no mention of a lien upon the oil produced, and it is obvious that this could not be included under any of the terms used, unless possibly a lien upon a well should be deemed a lien upon the oil flowing through it. A lien upon a mine or quarry might well be deemed to include a lien upon the mineral or rock in place, for the mineral may be regarded as a part of the mine, and the rock of the quarry. But the oil is not a part of the well through which it flows. Under a statute giving a lien thereon, a well has been held to consist merely of a hole in the ground and the tubing with which it is lined. (Devine & Thomas v. Taylor et al., 4 Ohio C. D. 248.) Under a different statute it has been said to include the appliances by which it is operated. (Haskell et al., v. Gallagher et al., 20 Ind. App. 224, 50 N. E. 485, 67 Am. St. Rep. 250.) But by no reasonable construction can it include anything more. It is but a means for reaching the oil and conducting it to the surface. The statute makes no attempt to fasten the lien upon the lessor’s real estate, or to extend it beyond the interest of ,the lessee. As he has no title to the oil so long as it remains in the earth (Phillips v. Oil Co., 76 Kan. 783, 92 Pac. 1119, and cases there cited), no lien can attach to it as his property until it is brought to the surface, and when that has been done it is clearly no part of the well. The statute enumerates in great detail the property affected by the lien, and the oil would almost necessarily have been named in the list if there had been a purpose that it should be included.
The only method of realizing upon the lien given by the statute i’s that provided by the general mechanics’ lien act—the sale of the property affected “as in other cases of sales of real estate.” (Civ. Code, § 656.) If the legislature had intended to give a lien upon the oil produced a procedure would naturally have been adopted better suited to the enforcement of such a right.
The judgment is reversed with directions to sustain the demurrer to the interplea. | [
-12,
122,
-7,
29,
8,
96,
56,
-102,
81,
-93,
117,
83,
-19,
-38,
4,
121,
-61,
93,
112,
106,
118,
-77,
7,
64,
-62,
-5,
-79,
-51,
-71,
79,
-60,
-44,
72,
32,
-118,
-107,
-122,
-126,
-63,
92,
-114,
37,
9,
104,
121,
8,
52,
42,
36,
11,
97,
-123,
-13,
40,
24,
-57,
45,
44,
-1,
44,
-64,
-80,
-86,
7,
127,
17,
1,
4,
-104,
71,
-40,
14,
-110,
-8,
9,
-24,
115,
38,
-122,
-11,
47,
-103,
45,
102,
99,
34,
21,
-23,
108,
-8,
23,
-34,
-115,
-89,
-112,
120,
-125,
107,
-65,
-99,
122,
79,
-122,
118,
-22,
-107,
95,
120,
-121,
-101,
-42,
-95,
5,
-27,
-100,
23,
-53,
-105,
48,
101,
-115,
-78,
92,
71,
118,
31,
15,
-16
] |
Per Curiam:
Following the decision in The State, ex rel., v. Insurance Co., ante, p. 9, the proceedings upon appeal are dismissed. | [
-76,
112,
-108,
-116,
74,
-30,
114,
-66,
79,
-95,
-73,
83,
57,
-62,
21,
109,
-13,
75,
-48,
122,
-98,
-77,
114,
-111,
-2,
-93,
-45,
-44,
49,
-2,
-17,
126,
76,
113,
42,
-43,
102,
-56,
65,
16,
-126,
13,
-119,
-19,
-55,
122,
-80,
-21,
-14,
15,
49,
-33,
-29,
-18,
25,
-61,
-120,
44,
-6,
-23,
65,
-72,
-118,
5,
127,
-99,
1,
55,
92,
-125,
-40,
46,
-104,
49,
9,
-4,
114,
-26,
7,
-68,
107,
-101,
-124,
-30,
111,
19,
113,
-17,
-120,
-104,
55,
92,
-83,
-25,
-69,
25,
-119,
9,
-73,
-39,
100,
17,
-121,
-2,
-24,
-35,
95,
-20,
5,
-113,
-58,
-93,
-65,
93,
-100,
-113,
-26,
-105,
50,
84,
-121,
-80,
84,
-45,
55,
127,
94,
-14
] |
Per Curiam:
This case turns upon the validity of a tax deed which had been recorded more than five years. The deed recites that the order authorizing the compromise was made by the board of county commissioners on the 8th day of October, 1900, and that on October 26, 1900, the sum of thirty-four dollars and ten cents was paid to the treasurer by the assignee. The consideration is stated to be the payment of “the sum of Forty-five Dollars and Seventeen cents, taxes, costs, and interest due on said land for the years A. D. 1895 to 1900 inclusive, as per compromise.” The trial court held the deed void on its face, upon the theory that its recitals show that the consideration included taxes which were not due and had not become a lien upon the land at the time the compromise was made. This was error. The deed contains a recital that more than six months had expired from the date of the assignment to the time the deed was executed. The taxes for the year 1900 had in the meantime become delinquent; they were a lien upon the land, and with the sum paid for the certificate constituted the actual consideration for the deed. The precise question was ruled upon in King v. Nilson, 82 Kan. 354, 108 Pac. 95.
The judgment is reversed and the cause remanded with directions to render judgment for the appellant. | [
114,
109,
-44,
127,
-22,
-32,
10,
-119,
105,
-75,
33,
123,
-21,
-126,
4,
57,
-89,
45,
113,
106,
-59,
-77,
35,
81,
-14,
-77,
-63,
-35,
-75,
76,
-4,
86,
76,
48,
-118,
-107,
102,
-62,
-41,
86,
-114,
-122,
-88,
69,
-47,
64,
52,
97,
82,
9,
113,
-22,
-93,
42,
60,
73,
105,
44,
88,
59,
-63,
-96,
-74,
-123,
111,
7,
-79,
39,
-108,
73,
-56,
-82,
-100,
61,
8,
-24,
31,
54,
6,
116,
9,
-71,
44,
-18,
-94,
0,
69,
-1,
-8,
-104,
6,
-2,
13,
-90,
-106,
88,
43,
111,
-74,
31,
85,
80,
79,
126,
-26,
-123,
29,
104,
6,
-118,
-44,
-45,
-115,
124,
-120,
3,
-1,
-125,
48,
113,
-49,
-30,
92,
102,
56,
-109,
-113,
-8
] |
The opinion of the court was delivered by
West, J.:
The plaintiffs sued to enjoin the collection of a sewer tax. The defendants prevailed. The only question involved is whether the suit was begun before the expiration of thirty days from the time the amount due on each lot liable for assessment was ascertained, as provided by section 1 of chapter 124 of the Laws of 1911. The plaintiffs contend that the ascertainment dates from the actual publication of the ordinance levying .the tax. The defendants insist that it dates from the actual ascertainment or decision by the city as to the amount each tract is to bear. The action was begun on the 4th of May, 1912. The report of the appraisers was filed July 29, 1911, and showed the valuation placed on.each lot and apportionment of the costs of the construction of the sewer to each lot. A notice was published by the city that on Monday, April 1, the mayor and council would meet at 7:30 P. M. at the-council chamber to hear all persons and determine and consider all complaints from property owners touching appraisements, at which time any corrections or modifications in the appraisement or apportionment of costs as should appear just, fair and equitable would be made. The record of the council proceedings shows that on this date the meeting was held and certain changes were made in the appraisers’ report, after which it was “accepted, approved and adopted.” On the next day, April 2, an ordinance was passed levying the assessment in accordance with the report as adopted. It was published in the Holton Recorder, but whether on the 4th or 5th of April the parties do not agree.
In Marshall v. City of Leavenworth, 44 Kan. 459, 24 Pac. 975, the question arose whether the time began to run from the publication of the ordinance or from receipt of the notice by the lot owner, and it was held that the ascertainment dated from the publication of the ordinance, and it was written into the syllabus that the time when the assessment is ascertained “and when the limitation commences to run, is when the ordinance levying the assessments and designating the amount of the assessment levied upon each particular lot or piece of ground is published and takes effect.” (Syl. ¶ 1.) In the opinion it was said:
“All the other irregularities are waived and cured by the plaintiffs’ failure to commence any action within thirty days after the publication and the taking effect of the ordinance making the specific assessments upon each portion of the abutting property.” (p. 461.)
City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82, was cited, and it was there said:
“The ordinance fixed the rate of the levy, and all that remained to be done was to compute the amount of the assessment upon each lot or piece of ground at the rate designated in the ordinance; and the ordinance dirécted the clerk to make the computation. We think the clerk had authority to make the computation, and the assessment so made was properly ascertained.” (p. 90.)
Hammerslough v. Kansas City, 46 Kan. 37, 26 Pac. 496, quotes (p. 41) the Marshall case as establishing the rule that the limitation begins to run when the ordinance is published, and so holds. Kansas City v. Gibson, 66 Kan. 501, 72 Pac. 222, and City of Leavenworth v. Jones, 69 Kan. 857, 77 Pac. 273, treat the matter as thus settled. With the law thus repeatedly declared it must be presumed that the legislature of 1911 in reenacting this portion of the statutes considered in these opinions intended it to bear this construction. The language of the statute is:
“No suit to set aside the said special assessments or to enjoin the making of the same shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time when the amount due on each lot or piece of ground liable for such assessment is ascertained.” (Laws 1911, ch. 124, §1.)
How could a suit be brought to enjoin or question the validity of an assessment before it had been made ? An assessment can be made by ordinance only. (Gen. Stat. 1909, § 1374; Laws 1911, ch. 124, §1.) And how can an amount be “due” until an assessment has been made? We hold, therefore, that the time began to run from the publication of the ordinance.
The statute requires the ordinance to be “published in some newspaper printed within the city, or if no paper be published in said city, then in some paper having' a general circulation therein.” (Gen Stat. 1909, § 1347.) The ordinance was printed in the Holton Recorder of April 4, but it appears that on that date the issue was late, that the press was started about 4 p. M. and the issue of the paper for certain towns outside of the city was run off and deposited in the Holton post office about 6 P. M.; that substantially the remaining three-fourths of the regular issue of that date was not delivered for mailing until April 5, up and until about the noon hour; that, those mailed to the towns mentioned were deposited in time to reach their destination upon the evening of the 4th. The. pub-lisher was not clear whether there were any papers delivered at the post office for any of the Holton subscribers on that date or not, but stated that if a subscriber had called that evening and asked for his paper it would have been given him; that he had seven or eight employees residing in Holton and that it was customary for them to take their papers home with them the day they were printed and published. It is argued by the plaintiffs that this did not amount to a publication within the letter and spirit of the statute until the 5th when the papers were mailed to the Holton subscribers; that the object of publication was to inform those interested in the subject matter, and if the paper were printed within the city but circulated entirely outside it would not be a publication, and that the publication of a newspaper means an entire edition or at least that part which circulates among the subscribers affected by the matter in question. It is suggested that the copies for the Holton subscribers were not even printed until April 5, but the abstract does not so show. In the affidavit of the publisher he stated that he did not recall whether any of such issue for circulation in the city were taken to the post office that evening or not but if so they were not delivered earlier than 6 P. M., and if any papers for circulation in Holton were delivered that evening it was a small part of the issue which generally circulated there.
The statute (Gen. Stat. 1909, § 1347) requires the publisher to prefix to every ordinance a line in brackets stating correctly the date of such publication, which in this case was given‘as April 4. It was held in Davis v. Huston, 15 Neb. 28, 16 N. W. 820, that the paper will be presumed to have been published on the day of which it bears date. This presumption may of course be overcome by proof, and the question here is whether it was so overcome in this case. There is no doubt that the paper was printed in Holton, that the copies for outside subscribers were mailed on the 4th, and while it appears that the greater portion of- the copies for the Holton subscribers were not mailed on that date it does not affirmatively appear that they were not printed on that date or that a few did not then reach local patrons. The plaintiffs cite Pratt v. Tinkcom, 21 Minn. 142, holding that a notice appearing in only one-sixth of the whole number of copies of an edition is not published within the meaning of the statute, and Davis v. Huston, supra, to the effect that the publication was deemed complete upon the distribution of the paper, and other cases bearing less directly upon the question.
In State of Iowa v. O. & C. B. Ry. Co., 113 Iowa, 30, 84 N. W. 983, 52 L. R. A. 315, the supreme court of Iowa decided that a publication in an extra edition and of fifty or a hundred copies at eleven o’clock at night and not mailed to subscribers or otherwise distributed except as sold to parties directly interested, was not an official publication. Jackson v. Beatty, 68 Ark. 269, 57 S. W. 799, held that a statute requiring the notice to be published in a newspaper printed in the county, if there be one having a bona fide circulation therein which shall have been regularly published in the county for one month next before the date of the first publication, was not complied with by an insertion in a paper not shown to have been printed or published in the county for the proper length of time; that printed and published as there used were synonymous, and a showing of a bona fide circulation in the county did not amount to proof of publication therein. In Nebraska Land, Stock-growing & Investment Co. v. McKinley-Lanning Loan & Trust Co., 52 Neb. 410, 72 N. W. 357, the statute required the notice to be published in some newspaper printed in the county, and it was decided that the word published was synonymous with the word printed, and an affidavit that the newspaper was published in the county was therefore deemed sufficient. In other words, if the paper was published within the county, this satisfied the requirement of having been printed therein. In Rose v. Fall River Five Cents Savings Bank, 165 Mass. 273, 43 N. E. 93, the publication was required to be in a newspaper published in the city or town where the mortgaged premises were situated. A paper having the same contents as another of a different name but a different heading and date line was printed in Fall River and a few copies of it were sent to Dighton, where the premises were located, to regular subscribers or for sale and distribution. It was held that the newspaper was published in Fall River and that the word published referred to the home office of the paper where there was but one place of management and whence the paper was given to the world so far as it had regular subscribers. “Publish” has been thus defined: “To make known what before was private; to put into circulation.” (7 Words and Phrases, p. 5847.)
Applying the latter meaning it was held in North Baptist Church v. Orange, 54 N. J. Law, 111, 22 Atl. 1004, that a notice required to be published in a newspaper printed in German must be in German and when printed in English it would be merely printed but not published.
A notice in English in a German newspaper was held good in Richardson v. Tobin, 45 Cal. 30. A newspaper was in City of Cincinnati, etc., v. Bickett and Purcell, 26 Ohio St. 49, decided to mean a publication in the English language. A similar ruling was made in the case of Road in Upper Hanover, 44 Pa. St. 277.
But nothing in these authorities or any -that we have been able to find impels us to go further than required by the language of the statute, which prescribes that the ordinance shall be published m a newspaper printed in the city, if one be printed there. The paper was printed within the city. The publication of the issue of. April 4 was in good faith begun on that day and although a majority of the copies were not actually delivered or put in circulation until the next forenoon it was designated and known as the paper of April 4, the publication of which actually began, and under ordinary circumstances would have been completed on that day. While the mere printing of the ordinance in an issue of the paper never circulated would not be a publication, still' when the act of publication is begun on the proper day and owing to unusual conditions not completed until the forenoon of the following day, it is more technical than reasonable to consider the publication as made on the second day rather than on the one preceding. The court is of the opinion that this was a sufficient compliance with the statute.
The judgment is affirmed. | [
-26,
106,
-76,
-18,
74,
64,
42,
-104,
73,
-95,
-92,
91,
77,
-54,
29,
117,
-41,
45,
-43,
90,
-59,
-89,
35,
-117,
-66,
-13,
-37,
-33,
-1,
125,
-12,
70,
76,
49,
-61,
-107,
2,
-62,
65,
94,
-122,
-122,
-120,
77,
-39,
64,
52,
107,
50,
79,
113,
77,
-13,
44,
24,
-61,
105,
44,
-37,
57,
-64,
-16,
-86,
5,
95,
6,
49,
6,
-72,
-53,
96,
-118,
-112,
53,
-20,
-32,
123,
-90,
-122,
126,
101,
-101,
44,
-90,
99,
51,
5,
-29,
-8,
-116,
46,
-46,
-83,
-92,
54,
88,
99,
-95,
-76,
-99,
116,
16,
-57,
-2,
-26,
-123,
31,
108,
5,
-122,
-60,
-93,
-113,
52,
-112,
3,
-1,
-125,
48,
96,
-49,
38,
94,
103,
18,
-101,
-106,
-40
] |
Per Curiam:
In a petition for rehearing it is contended that the court has ignored a substantial difference between the ordinance and chapter 248 of the Laws of 1911, which makes the ordinance void. It is insisted that under the statute the citizen is given the- right to pay the tax in work while the ordinance requires payment in money. By an examination of the statute it will be seen that the option to accept work instead of money is given to an officer of the city and not to the citizen. Section 36 of the act provides that “Nothing herein contained shall be construed to prevent the township trustee from giving the person who pays such tax the preference by employing him to labor upon the highway, to the extent of at least three dollars annually, if such person is willing to so labor.’’ (Laws 1911, ch. 248, § 36.) Section 15, relating especially to cities, provides that the street commissioner shall perform the duties “provided for the government of township trustees in this act.” The street commissioner may therefore give the taxpayer the preference by employing him to labor to the amount of his tax. Before the enactment of this statute such taxes were payable in money “unless the, commissioners of roads and highways shall when they meet recommend that all such male persons shall perform two days’ work, or one day’s work with a team, upon the highways, in lieu of said three dollars.” (Gen. Stat. 1909, § 7291.) Under that statute the taxpayer did not have the option, but the public road commissioners of townships might, if they deemed it proper, allow payment in labor. By the statute now in force this option is transferred to township trustees and street commissioners.
The ordinance requiring payment of the tax and fixing a penalty for failure to do so is in force, although the provision of the ordinance providing for action by the city council, before payment could be made in labor, became inoperative by the last statute which devolved that power upon the street commissioner. There is no claim that the commissioner exercised the power in this instance, or that the appellant ever requested him to dp so.
The petition for rehearing is denied. | [
80,
-22,
-48,
-20,
106,
-64,
30,
-112,
89,
-15,
55,
119,
-81,
-118,
20,
41,
-13,
125,
16,
91,
-59,
-78,
87,
75,
-72,
-13,
-61,
-33,
-11,
79,
-12,
116,
76,
48,
74,
-107,
103,
67,
-51,
90,
14,
15,
-117,
77,
-7,
64,
52,
107,
82,
11,
49,
-38,
-77,
42,
24,
-31,
-20,
44,
91,
-69,
-47,
-16,
-99,
-123,
127,
13,
-96,
116,
28,
-125,
-8,
46,
-104,
21,
16,
112,
115,
-74,
-122,
86,
73,
-101,
41,
98,
102,
17,
37,
-35,
-8,
-72,
28,
-38,
-115,
-91,
-107,
121,
-118,
-86,
-106,
-97,
125,
86,
110,
126,
-58,
5,
95,
108,
15,
-114,
-28,
-77,
-17,
-12,
-122,
66,
-17,
1,
16,
113,
-52,
118,
94,
99,
19,
-101,
-98,
-104
] |
Opinion by
Strang, C.:
At the April term, 1891, of the district court of Shawnee county, the grand jury thereof returned an indictment containing three counts against C. L. Swartz, charging him with having in said county published, circulated and had in his possession the Kansas City Sunday Sun, a newspaper devoted largely to the publication of scandals, lechery, assignation, intrigues between men and women, and immoral conduct of persons. May 8, 1891, warrants were issued on said indictment, upon which the said C. L. Swartz was arrested, taken and held in custody of the sheriff of said county. Afterward, May 16,1891, the defendant applied to this court for his discharge from said arrest upon habeas corpus, alleging, among other reasons for his discharge, the following, to wit: That the act of the legislature under which said indictment was found was not in force at the time said indictment was found, nor when the offenses therein charged are alleged to have been committed, for the reason that said act had not at such times been published. The indictment was found at the April term, 1891, and it charges that the offenses complained of were committed during said month of April. An examination of the subject shows either that a resolution of the legislature prescribing against the acts alleged in the indictment in the case against the petitioner was published March 21, 1891, or that an attempt was made to publish an act of the legislature on that day, which publication omitted an essential part of said act, to wit, the enacting clause. If there was an attempt on the part of the legislature to create a crime and provide for the punishment thereof by resolution, such attempt is in violation of § 20 of article 2 of the constitution, which provides that “No law shall be enacted except by bill.” If, as we believe, there was simply a mistake in the publication of the act on the 21st day of March by omitting the proper enacting clause, and the act was not properly and legally published until May 16,1891, then such act was not in force at the time the said indictment was found against the petitioner, nor when the offenses therein charged are alleged to have been committed. “No law of a general nature shall be in force until the same be published.” (Const, art. 2, § 3.) The publication of an act of the legislature, omitting the enacting clause or any other essential part thereof, is no publication in law. The enacting clause of all laws shall be, “ Be it enacted by the legislature of the state of Kansas.” (Const., art. 2, § 20.) The law not being in force when the indictment was found against the petitioner, nor when the acts complained of therein were done, the petitioner could not have been guilty of any crime under its provisions, and is, therefore, so far as this indictment is concerned, entitled to his discharge.
There is another indictment mentioned in the return of the sheriff, a copy of which is also attached to the petition in the case. But, so far as we know, no warrant has been issued thereon. Both the warrants attached to the sheriff’s return and also to the petition in the case show that they were issued upon the indictment already considered. The second indictment charges a misdemeanor. The charge in each of the warrants attached to the sheriff’s return, and under which he says he held the petitioner, is a felony. It not appearing that the petitioner has been arrested, or is held upon any warrant under the second indictment, we think he is entitled to his discharge. As the act under which the petitioner was proceeded against in the district court was properly published on May 16, 1891, and other prosecutions may follow under its provisions, we suggest that the paper, the publication of which is complained of, or so much of it as contains the matter complained of, shall be attached to any new complaint which may be made.
We recommend that the application of the petitioner be allowed, and an order for his discharge entered.
By the Court: It is so ordered.
All the Justices concurring. | [
-80,
-22,
-7,
94,
106,
96,
38,
-70,
82,
-125,
-95,
83,
109,
-118,
68,
113,
67,
103,
85,
121,
-60,
-73,
37,
75,
-78,
-77,
-39,
-41,
-77,
79,
-82,
-1,
76,
48,
-54,
-35,
6,
106,
-127,
94,
-118,
-96,
-120,
-16,
82,
64,
60,
111,
127,
11,
49,
-65,
-13,
42,
30,
-41,
105,
44,
-53,
-98,
-61,
-80,
-102,
95,
111,
22,
-127,
38,
-100,
3,
68,
-82,
-72,
17,
33,
-4,
123,
-74,
-126,
117,
85,
-103,
13,
34,
98,
33,
45,
-17,
-96,
-119,
31,
59,
-99,
-121,
-112,
65,
99,
12,
-106,
-115,
116,
20,
46,
122,
-31,
-59,
25,
62,
6,
-118,
-76,
-109,
15,
48,
-114,
35,
-61,
1,
48,
49,
-57,
-74,
95,
87,
81,
-101,
-114,
-67
] |
Opinion by
Green, C.:
The petitioner, Bruce Harmer, alleges that he is restrained of his liberty and unlawfully imprisoned by the sheriff of Harper county, under.an order of commitment for contempt of court for violating an injunction order issued by the judge of the district court of said county. It appears from the petition for the writ that the county attorney filed an information in the district court of Harper county against J. H. Seifert and others, charging them with keeping and maintaining a common nuisance in Harper City; that no warrant was issued for the arrest of the petitioner. On the 10th day of June, 1891, the information so filed was presented to the district judge of the county, who, without further evidence, made the following order:
“In the district court of Harper county, Kansas.— The State of Kansas, plaintiff, v. J. H. Seifert, Bruce Harmer, et al., defendants.— Order.— And now, on this 10th day of June, 1891, this cause coming on for hearing upon the application of T. J. Beebe, county attorney of said county, and it appear ing from the evidence that a common nuisance is being and has been maintained on the following-described premises, to wit, the rooms of the old Rothwell real-estate building, situated upon the south half of lot 12, block 21, Harper City, Harper county, Kansas, by the unlawful keeping and selling and keeping for sale intoxicating liquors in and upon said described premises contrary to law, it is therefore ordered and adjudged by the court, that the sheriff of Harper county abate said nuisance kept and maintained upon said premises, and that the owner, lessee and keeper of said above-described building and place be forever enjoined from keeping and maintaining said nuisance in and upon said above-described premises.”
On the 29th day of-August, 1891, the petitioner was brought before the district judge and informed that he was charged with violating the above order, when the further hearing of the proceeding was postponed until the 31st of August, at which time he appeared, when certain affidavits were read showing that beer had been sold by the petitioner, on the premises described in this order. Evidence was given by the sheriff that he had never served any order on the petitioner, or otherwise notified .him of the order made by the judge. Upon this showing, the judge found the petitioner guilty of contempt of court for violating the above order, and ordered him committed to the jail of Harper county for 30 days and to pay a fine of $100.
The order of the district judge declaring certain premises to be a common nuisance, and that the same should be abated by the sheriff, was void. The statute nowhere gives the district judge authority to make such an order. Section 2533 of the General Statutes of 1889 declares all places where intoxicating liquors are sold in violation of law to be common nuisances; and upon the judgment of a court having jurisdiction finding such places to be a nuisance, the sheriff or other officers named shall be directed to shut up and abate such places. The petitioner had no notice served upon him of any order made by the district judge, and could not therefore have been guilty of any contempt.
Another reason might be assigned why the proceedings against the petitioner for contempt were void. The alleged violation of the order was not in the presence of the judge or the court, and therefore, if such order had been authorized, it could only be characterized as constructive contempt, and the judge or court would have no authority to proceed against him without an affidavit or information, containing a statement of the facts constituting the alleged contempt, being first submitted to him or filed in court. (The State v. Henthorn, 46 Kas. 613; same case, 26 Pac. Rep. 937.)
The petitioner should be discharged.
By the Court: It is so ordered.
All the-Justices concurring. | [
-75,
-22,
-7,
30,
42,
-32,
42,
-98,
99,
-79,
37,
115,
-23,
-46,
5,
59,
105,
91,
85,
121,
-61,
-74,
119,
-63,
114,
-13,
-103,
-57,
-77,
75,
-28,
-59,
72,
52,
90,
117,
-122,
-56,
-43,
-100,
-114,
0,
9,
-16,
-45,
10,
52,
107,
2,
3,
49,
31,
-13,
42,
94,
-29,
73,
44,
-49,
13,
81,
-7,
-103,
13,
73,
7,
-125,
-126,
-104,
7,
64,
63,
-112,
49,
11,
-24,
115,
-74,
4,
116,
7,
-119,
-88,
102,
-61,
33,
-115,
-49,
-88,
-87,
14,
-70,
-115,
39,
-80,
72,
107,
40,
-74,
-99,
112,
20,
2,
-4,
-31,
4,
80,
110,
-124,
-54,
-76,
-79,
-115,
56,
-122,
23,
-21,
37,
49,
97,
-51,
-9,
124,
-57,
112,
-101,
-114,
124
] |
Opinion by
Strang, C.:
December 12, 1885, Alfred C. Paggett began a suit in the district court of Mitchell county, Kansas, against Seymour F. Curtis. The petition stated a cause of action in damages for injury to real estate, and also asked for an injunction. The plaintiff alleged that he had a well of water upon his land in Mitchell county, Kansas, and that the source whence the supply of water in said well came was also upon his land, a short distance north and west of the well. The defendant owned a farm which cornered with the plaintiff’s on the southwest, and it is alleged that the defendant sunk a well on his own land on the northeast corner thereof to the depth of 45 feet; that he then tunneled from the cavity of said well 18 feet in a northwesterly direction, and bored with a well auger in the same direction 54 feet; that the course of the channel made by such tunneling and boring was in the direction of the plaintiff’s land and of the source of the supply of water in the plaintiff’s well; that said channel was made with the intention of tapping said supply of water on the plaintiff’s land, and that it had crossed the line onto the land of the plaintiff, a distance of 25 feet.
The defendant answered, admitting that he owned the farm cornering with the plaintiff’s as set out in the petition, and that he had sunk a well, tunneled and bored, upon his said farm for the purpose of obtaining water thereon, but declared that the attempt to thus obtain water had proven a failure, and that he had wholly abandoned it long before the commencement of the suit by the plaintiff. The case was tried by the court, which also submitted certain questions to a jury. The jury found, among other things, that the defendant, in his attempt to secure water, had carried his channel across the line onto the land of the plaintiff some 16 feet, and that in so doing he had intended to reach the water on the plaintiff’s land which supplied the plaintiff’s well, and divert the same from the plaintiff’s land and well to his own. But the jury also found that the defendant had abandoned his attempt to thus secure water before suit was begun.
The court entered judgment for the plaintiff for one cent damages, and costs taxed at $202.45. A motion for new trial was overruled, and the defendant below appeals to this court, and asks that the judgment below be reversed. He contends that the action was solely a proceeding for an injunction, and that, as the jury found the work on his well had been abandoned before the commencement of the action, the plaintiff was not entitled to an injunction, and not being entitled to an injunction he was not entitled to any judgment at all, and the defendant should have had judgment for costs. We do not think this view of the case is tenable. We think the judgment rendered by the court entirely proper under the circumstances of the case. The petition states a cause of action for damages, and also for an injunction. The injunction part of the case failed only because the defendant had abandoned his unlawful attempt to reach and divert the water from the plaintiff’s well before the suit was begun. ■ The jury having found that the defendant had abandoned his well and all effort on his part in the direction complained of before the plaintiff asked for an injunction, the court, for that reason, did not perpetuate it. But the injunction allowed was not all there was to the case. The plaintiff claimed that he was damaged in the sum of $100, and alleged in his petition facts in support of his claim. The jury found that the defendant had bored his channel 16 feet into the land of the plaintiff. This was a trespass upon the plaintiff’s land by the defendant, for which he was entitled to nominal damages at least, and that is exactly whát the court below gave him. A judgment for nominal damages carries costs. The fact that an injunction was allowed at the commencement of the action added no more costs, practically, than would have accrued without such order. We find no error in the proceedings, and recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-15,
110,
-80,
93,
-120,
-24,
8,
-110,
73,
-77,
-31,
119,
-3,
65,
-123,
117,
103,
53,
68,
107,
-58,
-73,
95,
-64,
-110,
-5,
-103,
-49,
-71,
93,
-10,
-57,
72,
48,
66,
85,
71,
0,
101,
-36,
-114,
76,
-119,
-32,
-39,
0,
54,
111,
18,
15,
53,
-116,
115,
43,
20,
-21,
-115,
44,
-53,
-82,
65,
112,
-66,
-106,
92,
22,
-96,
38,
-108,
67,
-56,
126,
-112,
60,
9,
-68,
-6,
-90,
-58,
117,
3,
-87,
-116,
114,
98,
97,
33,
-17,
-96,
25,
47,
-1,
-119,
-90,
36,
72,
99,
41,
-66,
-99,
116,
22,
70,
122,
-27,
-59,
25,
-20,
-121,
-109,
-108,
-95,
-113,
-18,
-103,
-109,
-21,
31,
52,
97,
-63,
-78,
76,
71,
112,
31,
-114,
-71
] |
Opinion by
Simpson, C.:
The plaintiff in error, Griswold, being a judgment creditor of the defendant in error, had an execution issued and levied upon 4J acres of land belonging to the defendant in error. The sheriff of the county being about to sell the land, the defendant in error commenced this action in the district court of the county to enjoin the sale, and at the trial recovered a judgment perpetually enjoining the sale of said land. The object of this proceeding is to reverse said judgment. The sole question for solution is, whether or not the land levied upon was at the time of the levy a part of the homestead of the defendant in error, and hence not subject to levy and sale by reason of the constitutional exemption. The land of the defendant in error consists of about 26 acres, and is divided by a street,, or a public highway, running through it, so as to cut off the 4 J acres from the larger tract, that contains the dwelling-house and out-buildings on the east side of the street or highway. The case was tried below on an agreed statement of facts, in the words and figures following, to wit:
“The injunction asked for by plaintiff should be denied, unless the premises about to be sold were a part of the homestead of the plaintiff’ at the time of the levy. Whether said premises were a part of plaintiff’s homestead at the time of the levy depends upon the following: (1) In 1860 the owners of a large tract of land, of which the land of plaintiff hereinafter mentioned is a part, laid the same out and subdivided it into lots, blocks, streets, and alleys, and platted, acknowledged and recorded the same as the town-site of Quindaro, among which streets was Kansas avenue, of the width of 90 feet; (2) thereafter the plaintiff became the owner of a tract of a little over 20 acres, lying on the east side of and abutting upon one of the streets in said town-site named ‘Kansas avenue,’ and at the same time he became the owner of about 4J acres of land lying and abutting upon the west side of said Kansas 'avenue, directly opposite the tract of about 20 acres before mentioned. The 4¿-acre tract above mentioned is the same tract of land that the sheriff is alleged to be about to sell. On the 30th of August, 1873, a petitiou signed by Eben Blackly, also plaintiff and eight others, was filed in the office of the county clerk of Wyandotte county, in the following language:
“ ‘ To the Honorable Board of Commissioners of the County of Wyandotte, State of Kansas:
‘“The Dndebsig-ned represent respectfully that they are the owners of a large majority of all the lots’ and blocks within the following-described boundaries in the town of Quindaro, in said Wyandotte county, to wit: [Here follows a lengthy description of land, which includes the lands of plaintiff above mentioned.] Also, that said lots and blocks within said boundaries are not occupied for the purpose of a town or village, and they therefore pray that said lots and blocks and the streets and alleys along said boundaries be vacated, with the following exceptions, which we petition to be declared public highways, to wit: [Here follows a lengthy description of streets and alleys, among which was the following portion of Kansas avenue, to wit: Sixty feet on the west side of Kansas avenue from Walnut avenue to Seventh street, which includes that portion of Kansas avenue which lies between and contiguous to the two tracts of plaintiff’s land above mentioned.]
(Signed) Eben Blackly, for himself, and as
President of the Board of Trustees of the Preedman’s University.
W. J. Hueeakeb.
Wm. T. Bowen.
S. D. Stokes.
E. J. Eby.
D. W. Mount.
Bied Baenett.
Joseph Endioott.
J. W. Lewis.’
“Which petition was duly verified by affidavit, showing that said petitioners were the owners of a majority of the lots and subdivisions in said town-site concerning which said action was sought to be taken.
“Afterward, on September 2, 1873, a notice, of which the following is a copy, excepting the boundaries and streets and alleys therein named, which are the same as in said petition, was filed in the office of the clerk of said county, to wit:
“ ‘ NOTICE.
‘“Notice is hereby given, that a petition will be presented to the board of commissioners of the county of Wyandotte and state of Kansas, at their regular meeting in September, 1873, to vacate the blocks, lots, streets and alleys in the town of Quindaro, included within the following boundaries, to wit: [ Here follows description, the same as in the petition above mentioned,] with the following exceptions of streets and alleys, which will be declared public highways, to wit: [ Here follows description of streets and alleys, the same as in the petition above mentioned.] (Signed) W. J. Hueeakeb,
One of the Principal Petitioners.’’
“Attached to which notice was an affidavit of R. B. Taylor, in due form, showing that said notice had been duly published four consecutive weeks in the Wyandotte Gazette, a newspaper published and of general circulation in said county. Also on the same day, to wit, September 2, 1873, there was filed in the office of the clerk of said county aforesaid a similar notice, except that the copy so filed was not signed with due proof that the same was duly posted on said premises for more than three weeks. There is no evidence in the records of the board of county commissioners of said county that either of said notices was ordered by said board, or that said petition was ever brought to the notice of said board prior to' September 2,1873. On August 7, 1873, the following, among other proceedings, were had before the board of county commissioners of Wyandotte county, as shown by the record of the proceedings of said board: ‘ On motion the board adjourns to meet on Monday, the 1st day of September, 1873/ On Monday, September 1, 1873, said board met and transacted business, but did not take any action in regard to the said petition, .or in regard to the vacation of any portion of the town-site of Quindaro, and adjourned until the next day. On Tuesday, September 2, 1873, said board met, and among other transactions were the following, as shown by the record of said board: 'On motion, the board, after hearing the petition of E. Blackly and the evidence of several witnesses in the matter of vacating certain lots, streets and alleys in Quindaro, continued the same until to-morrow at 1 p.m.’ September 3, 1873, the following among other proceedings were had, as shown by the record of said board: 'At this day, the petition of Eben Blackly, for himself and as president of the board of trustees of the Freed-' man’s University, W. J. HufPaker, and others, representing that they are the owners of a large majority of all the lots and blocks within the following-described boundaries in the town of Quindaro, in said couuty of Wyandotte, to wit: [Here follows description as in the petition.] Also said lots and blocks within said boundaries are not occupied for the purpose of a town or village. And they therefore pray that said lots and blocks and streets and alleys within and along said boundaries be vacated, with the following exceptions of streets and alleys, which we petition to be declared public highways, to wit: [Here follows a list of streets and alleys as in petition, among which is that portion of Kansas avénue before mentioned, which separates said tracts of plaintiff.] The board, after hearing the evidence in favor and against the proposed vacation, the parties interested compromise the matter by signing the following agreement:
“‘It is hereby agreed by and between the parties hereto, and the undersigned, being all the parties interested in the vacation, that 10th street, 30 feet wide through the center, shall be left open from F street to the east side of X street, and vacated from T street west to Kansas avenue; that Greek shall have an alley 16 feet wide between V and W streets, through the center of the block, instead of an alley from 10th to 9th, and from 9th to alley between W and X, thence along the same to 8th street, which shall be vacated, and all opposition to vacation is withdrawn. Phillip Cbeex.
Eben Blackly.
W. J. Hueeakeb.
Adam Baenett.
Thomas Bubnes.
Chas. Moeasoh.
Chas. MoGeaby.’
“On motion, the attorney was given until the November meeting to prepare the order of vacation, and to obtain the necessary description of the land vacated. On the 9th of October, 1873, the following proceedings were had before said board, as shown by the record thereof:
“‘In the matter of the vacation of the town-site of Quindaro, continued from last term: And now on this day come the parties and present their several petitions to the board, together with their agreement, signed by all the parties ; and it being shown to the board that all the parties in interest have had due notice and consented to the same, and that the law relating thereto has in all respects been complied with, and that said proceedings are regular and correct, it is therefore ordered, adjudged and decreed by the board that the prayer of said petitioners be granted, and that the several portions of said town-site of Quindaro and the additions thereto be and the same is now by said board in open and regular session declared vacated ; and that the same shall hereafter be known, designated and described by metes and bounds in the manner following: [ Here follows description by metes and bounds of a large number of tracts, including the land of the plaintiff described in his petition herein.] And it is farther ordered, that the clerk enter upon the proper books of the county this order, and upon the tax rolls the description herein set forth, and furnish a copy of the same to the register of deeds for record.’
“The above are all the orders made and proceedings had by said board in said- matter. Save as above set forth, the .board of commissioners never made the certificates provided for in §24, chapter 109, General Statutes 1868; nor is there any evidence that the certificates or descriptive map provided for in the same section were ever filed in the office of the register of deeds of Wyandotte county. Ever since the proceedings and orders above set out by and before the board of county commissioners of said county, 60 feet off the west side of what was designated as Kansas avenue on the plat of the town-site of Quindaro aforesaid have been used as a public highway, and have been worked and kept in repair by and under the supervision of the road overseer of road district number-of the township of Quindaro (within the limits of which the same is situated) and the township officers of said township, the same in all respects as other roads and highways in said road district. The lands within the limits of said town-site of Quindaro have ever since said proceedings and orders above set out been occupied and used as farming lands, and in no respect have been occupied, used or treated as town lots, or for any purposes of a town or village. The plaintiff is a citizen of the state of Kansas, and the head of a family; and ever since said proceedings for the vacation of said town-site has used and occupied all the land described in his petition herein for farming and gardening purposes, the house where he has remained with his family being upon that portion lying east of what was formerly Kansas avenue above mentioned, and all of said land is and was at the time of the levy of said execution used and occupied by said plaintiff and his family as a homestead, unless the character of the highway above mentioned, formerly known as Kansas avenue, is and was at the time of such levy such as to deprive said plaintiff of his homestead rights in that portion lying west of said highway.”
It appears from the agreed statement of facts that in 1860 the plat of Quindaro town-site was filed in the office of the register of deeds of Wyandotte county, and that the strip of ground that now separates the land of the defendant in error into two parts was one of the streets dedicated by that plat, and was known as Kansas avenue, and was described as being 90 feet in width. If it is still a street, with the fee vested in the county, it is such a segregation of the four and one-half acres from the larger tract that the two cannot be included in and constitute one homestead. (Randal v. Elder, 12 Kas. 257.) If it is not a street, but has been vacated by the express terms of a legislative act or by proper proceedings before a tribunal having power to declare a vacation, and is a highway laid out by proper authority, or created by user, and is an easement resting on the land by either of the creative modes, then the defendant in error is entitled to hold and enjoy the land on both sides of the highway as a homestead. (Pilcher v. A. T. & S. H. Rld. Co., 38 Kas. 516.) In 1860 the strip of ground in question was a public street, but the defendant in error claims, first, that it was vacated as a public street by the express terms of an act of the legislature entitled “An act to repeal an act entitled ‘An act incorporating the city of Quindaro/ approved January, 1859, and all acts or parts of acts amendatory or supplemental thereto,” approved March 6, 1862, and found on page 407, General Statutes of 1862. Such act reads as follows:
“ Section 1. That an act incorporating the city of Quindaro, approved January 25,1859, and all acts or parts of acts amendatory or supplemental thereto, are hereby repealed.
“Sec. 2. That nothing in this act shall affect or interfere with the rights acquired by individuals or companies under the said act of incorporation, and no road, street or alley laid out or established under the act aforesaid shall be vacated except by the provisions of an act entitled ‘An act vácating streets and alleys/ approved February 25, A. D. 1862.
“Sec. 3. That it shall be the duty of the trustee of Quindaro township, to take immediate possession of all books, papers, assets and property of every kind belonging to the city of Quindaro, dispose of the same and discharge the indebtedness of said city. In the performance of these duties he shall have and may exercise all the powers of the officers provided for in the act of incorporation aforesaid.”
Waiving the discussion of all doubtful questions about the constitutionality of this act, or the power of the state legislature to .pass it, we need only state that it is, or' might be, claimed that the first section of the act, by its terms, vacates all streets and alleys, as well as lots and blocks, in the town-site of Quindaro, except those especially saved in the second section, and that the excepted ones consist of those in which vested rights might have been acquired by the purchase of lots and blocks for residence and business purposes, bounded by such streets and alleys. Again, it is contended that the excepted ones in the second section are only such streets and alleys as may have been laid out under and by virtue of the powers granted the common council of the city of Quindaro under the act of 1859 incorporating the city. On the other side, it is contended that the disincorporating act of 1862 did not by its own terms vacate any of the streets and alleys, but left them to be vacated under the provisions of a general law in force at that time, mentioned in the second section, and as that law is still in force, or was in 1873, that no vacation could be had except under its provisions. Another contention is, that the street was vacated by the express terms of section 23 of article 3 of chapter 109, General Statutes of 1868, which is as follows:
“Sec. 23. All lands which have been, either by individual owners, town companies or other incorporated bodies, set apart, surveyed, laid out or platted into towns, cities, or villages, or additions thereto, and descriptions or plats of which may have been made or recorded according to law, but upon which in fact no town, city or village shall have been erected or exists, but which lands so subdivided and platted are unoccupied for the purposes of a town, city, or village, are hereby declared to be vacated as such, and the streets, alleys and lanes shall revert to the owners of the lots platted upon them, in due proportion, and the public grounds to the owners; and all surveys and plats for the subdivision of such lands are declared null and void, and the lands hereby restored to their original condition under the surveys of the United States government, as if no platting for a town had taken place.”
Now, it is said that the condition of things required by the foregoing section existed with reference to the Quindaro town-site, and that therefore this section- ipso facto reinvested the fee to Kansas avenue in the abutting owners from the 31st day of October, 1868, this being the date at which the act and section above quoted became a law. But whether such a condition of things existed with reference to the Quindaro town-site must bs determined in accordance with § 24, which reads as follows:
“ Sec. 24. Eor the purpose of deciding the question whether lands, to which the provisions of the preceding section are sought to be applied, come under its intent, the following procedure shall be complied with, viz.: Upon the written petition of any one or more persons, who, by by their affidavit, repre sent that they are the owners of a majority of the lots or subdivisions of the town-site, concerning which action is to be taken, the county board of the county in which the lands may be shall advertise, in some newspaper published in the county, and by public notice posted on the land itself, for at least three weeks, that such application has been made, and that, on a stated day, the board will take testimony regarding the occupancy of the lands described; and upon the day fixed in such advertisement, shall so proceed to take testimony. If it appear to the county board, upon the day of hearing, that no inhabitants owning any of the soil, and dwelling upon any definite pieces or parcels of the land, of the quantity of five o.r more acres in a body, protest against it, then the board shall make its certificate, declaring the provisions of the preceding section duly applied to the land so surveyed, platted, or subdivided, and upon a plainly drawn lithographic map of the whole land, as presented to it for investigation, denote and mark the portions of the survey or subdivision of which, by the application of the preceding section, it has vacated. The county board shall then file such certificate and descriptive map in the office of the register of deeds of the county, and thereafter such land shall be taxed by appropriate description in acres.”
It will be noticed from the agreed statement of facts that certain persons attempted to have the action of the board of county commissioners on this question. They filed a petition on the 30th day of August, 1873, with the county clerk, in substantial'conformity to the requirements of this section. They caused a notice to be filed with the county clerk, accompanied by proof of its publication in a weekly newspaper, of general circulation in the county, that their petition would be presented at the regular meeting of the board to be held in the month of September, 1873. On the same day, to wit, the 2d day of September, 1873, there was filed in the office of the county clerk a similar notice, but it was not accompanied by any proof that the same had been duly posted on the premises, as the law required. There is no evidence in the record that either of said notices was ordered by the board, or that said petition was ever brought to the notice of the board prior to September 2, 1873. On the 3d day of September; 1873, the order of vacation was made, as recited in the agreed statement of facts, but the board never made the certificate required by the section, and neither the certificate nor the descriptive map was ever filed in the office of the register of deeds, but 60 feet off the west side of said street have been used by the public and kept in repair by the road overseer of the district ever since such proceedings were had by the board of county commissioners, and the lands within the limits of the town-site of Quindaro have, ever since said proceedings, been occupied and used as farming lands, and in no respect have been used as town lots, or for any of the purposes of a town or village. Another vigorous contention of the- plaintiff in error is, that no legal notice was given of the presentation of the petition to vacate. The law requires the board of county commissioners to advertise in some newspaper published in the county, and by public notice posted upon the land itself, for at least three weeks, that such an application has been made, and that on a stated day the board would take testimony regarding the occupancy of the lands described. The notice in this case was published in a newspaper, but was not ordered by the board, and was signed by the principal petitioner. Another contention is, that no certificate and descriptive map have been filed in the office of the register 6f deeds by the board of county commissioners; but it is said against such a claim, that it will not be seriously contended that the failure of the board to perform a plain duty required by law will be chargeable to the petitioners for vacation, they having performed every act required of them, especially when that failure did not or has not .in any manner prejudiced the existing rights of the party complaining, who at no time, so far as the record discloses, had any interest in the vacation proceedings.
All these questions have received careful consideration, and yet we think the true solution of the question involved can be determined more satisfactorily, and on a more intelligible basis, by noticing other questions that arise upon the agreed statement. The plaintiff in error in this case has an execution levy on these 4} a'cres of ground. If his lien ripens into a sheriff’s deed, he takes by that only such title and interest as Huffaker had at the time the judgment became a lien on the land. Now, at the time of this levy, what was the legal attitude of Huffaker with reference to this strip of ground ? Had not Huffaker’s acts estopped him from denying that it was a public highway? He was one of the principal petitioners, and gave the notices in the proceedings before the board of county commissioners, and in accordance with the rule established by this court in the case of Stewart v. Comm’rs of Wyandatte Co., 45 Kas. 708, he has voluntarily invoked for his benefit the order of the board, and is now bound by it, although it is made without authority. His attitude with respect to this strip of ground has been such that he would not be permitted to enjoin the collection of a tax for its improvement, but would be compelled to pay. He could' not successfully refuse to perform work on this strip of ground as a public highway, if properly ordered to do so by the road overseer of the district in which it is located and he resides. Can the judgment creditor succeed to his title and repudiate his obligations ? The agreed statement of facts recites that ever since the order of the board of county commissioners, 60 feet off of the west side of what was designated as Kansas avenue on the plat of the town-site of Quindaro have been used as a public highway, and have been worked and kept in repair by and under the supervision of the road overseer of the road district in the township of Quindaro within the limits of which this ground is situated, and the township officers of said township have treated the same in all respects as other roads and highways in said township. These results are directly attributable to the action of the county board, put in motion by the direct efforts of Huffaker. He has by such conduct induced action upon the part of others; he has created a condition of affairs with respect to this highway that has induced official and individual action concerning it, and he is in no situation to aver against others that what he helped to make appear had an actual existence, has no legal existence. He is estopped from asserting that this strip of ground is a legal highway, and anyone who takes from him, or succeeds to his ownership of the land, is estopped to the same extent. (See cases of Neff v. Bates, 25 Ohio St. 169; Turner v. Williams, 76 Mo. 617, as tending to support this doctrine.) Again, assuming that the action of the board of county commissioners, declaring the west 60 feet of Kansas avenue a public highway is defective, yet, if the public have acted on the claim supplied by such proceedings, and have used the strip of ground as a public highway for the requisite period of time, it is established as such by presumption. (Elliott, Roads and St. 136, and authorities cited.)
It may be said — and this is one of' the embarrassments of the case — that the continued user of this strip of ground is as consistent with its character as a street as that of a public highway. While this is measurably true, and would be ablutely so in the absence of the proceedings before the county board, it must be recollected that this user was coupled with certain official acts entirely inconsistent with its character as a street. It was worked and improved by the overseer of the road district, and it was treated by the township officers as a highway. Its character as a street was formed by the act of dedication, and beyond the filing of the plat there is not. an affirmative word in the whole record that it was ever used as a street, but on the contrary there are many things recited that rebut the ordinary presumption that it continued to be a public street. These are, that there never was a population on the land platted sufficient to make a city, town, or village, but that such land constituted a town-site, as defined in the case of City of Ottawa v. Rohrbough, 42 Kas. 253, “ it being a tract of land subdivided into lots and blocks by streets and alleys, that has never been improved by occupancy or buildings, or has been so partially improved, but not to the extent as would authorize the organization of a city, town, or village.” It is set forth in the agreed statement of facts “that the lands within the limits of said town-site of Quindaro have ever since said proceedings and orders above set forth been occupied and used as farming lands, and in no respect have been occupied, used or treated as town lots for any of the purposes of a town or village.” So that the strip of ground was not in use as a street at the time the county board declared it to be a public highway.
We are not unmindful of the fact that this court has several times declared that a public highway cannot be created by a resolution of the board of county commissioners-, (see cases of Noffzigger v. McAllister, 12 Kas. 315; Comm’rs of Wabaunsee Co. v. Muhlenbacher, 18 id. 129; Shafer v. Weech, 34 id. 595; Barker v. Comm’rs of Wyandotte Co., 45 id. 681,) but the order of the board can be clearly referred to by the public as a claim or color of right for the use, reinforced by the fact that there has been a constant use of the same, as a public highway, for more than 14 years. In this state it was held, in the case of Oliphant v. Comm’rs of Atchison Co., 18 Kas. 386, that “the use of a, highway for five years vests no title in the public as against the owner.” We have been unable to find a case in which the time necessary to create a highway by prescription has been expressly stated by this court. Of course 15 years’constant use would be sufficient. But this is not a very material question in this case, the precise contention now being that Hufifaker’s relation to this strip of ground has been such that the use by the public of it, for any length of time, is sufficient to estop him, by reason of his conduct and influence in procuring the order of the board, and, he being estopped, that estoppel operates against all those in privity with him. The old maxim of the common law, “once a highway always a highway,” still holds good, so far as the rights of an abutter are concerned, and it is probable that the legislature cannot take away the rights of an abutter without at least providing for compensation; but where no' such rights exist or are asserted, the public may abandon or some tribunal vacate. It is shown that this strip of land was created a street by dedication, and then it is shown that the town in which this street was located was disincorporated, or, if not legally disincorporated, that for a long series of years the land on either side of the street has been used exclusively for farming purposes, and not used for any of the purposes of a city, town, or village; it is shown that it has been used as a public highway for many years, and that this user is traceable to a color of right found in the public records of the county, and acquiesced in for many years, both by the officials of the township, the adjoining owners, and the traveling public-
It seems clear to us that if the public authorities treat this strip of ground as a public road, and citizens have acquired rights on the faith that it was a road, and public money is expended on its improvement, and resident tax payers of the road district in which it is situated are compelled to perform labor upon it, and all these things have been induced by the acts and declarations of the owner, that such owner creates an equitable estoppel, which precludes him from defeating the public right of passage, not because it has become a public road by prescription, but because the declarations and actions of the owner of the land have been such that he, in good conscience, cannot deny that it is a public road. An owner in many cases may estop himself from recovering the land itself, and yet have his action for damages. (Elliott, Roads and St., p. 3, and authorites cited in foot-notes.) And if Huffaker is estopped, those who succeed him in ownership of the land must keep silent. The plaintiff in error is either bound by the acts and declarations of Huffaker, or his levy on the land is not such an interest as permits him to disturb a condition created and acquiesced in by the public and the owner.
These considerations lead us to the conclusion that the judgment of the court below ought to be affirmed, and we so recommend.
By the Court: It is so ordered.
All the Justices concurring. | [
-14,
111,
-80,
62,
-70,
64,
40,
-120,
67,
-93,
-73,
119,
77,
-54,
20,
113,
-93,
57,
-12,
121,
-61,
-78,
23,
-125,
50,
-13,
-47,
-35,
-76,
77,
-26,
-41,
77,
48,
-54,
29,
102,
96,
-31,
86,
-114,
-122,
-119,
69,
-39,
8,
48,
59,
66,
74,
49,
14,
-13,
44,
60,
67,
105,
44,
77,
53,
-119,
-72,
-66,
-51,
123,
7,
-127,
86,
-104,
3,
-56,
-50,
-112,
53,
-128,
-24,
127,
-74,
-122,
116,
1,
-101,
44,
102,
102,
1,
77,
-17,
-8,
-103,
14,
-2,
13,
-89,
20,
88,
91,
8,
-74,
-35,
125,
80,
7,
-10,
-26,
-123,
88,
104,
7,
-25,
-42,
-11,
-50,
52,
-128,
67,
-5,
-121,
48,
112,
-49,
-94,
93,
39,
81,
-101,
14,
-3
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is a criminal action in which Tom A. Dunn and Gary V. French (defendants-appellants) appeal convictions for possession with intent to deliver drug paraphernalia, in violation of the Drug Paraphernalia Act, K.S.A. 1982 Supp. 65-4150 et seq. On appeal the defendants contend (1) the trial court erred in refusing to suppress evidence seized pursuant tb a search warrant, (2) the Act is unconstitutionally vague, and (3) there was insufficient evidence to support the trial court’s conclusion that the items seized were-drug paraphernalia or that the defendants had the intent to sell the items as drug paraphernalia and reasonably should have known they would be used for such purposes.
The defendants own and operate a retail establishment named “The Choosey Beggar” in Overland Park, Johnson County, Kansas. In addition to clothing and clothing accessories, the store offered for sale various glass and plastic water pipes, some of which were referred to as “bongs”; small pipes made of metal, wood, glass, plastic and ceramic of different colors, some containing small mesh-like screens; “cocaine kits” consisting of a mirror, razor blade, small spoon and vial; various small spoons and vial's; small clips of various designs, commonly referred to as “roach” clips; rolling papers, snuff wrappers and envelopes; cigarette cases and “concert kits” containing a small pipe, small screens, pipe cleaners, plastic bag, matches, rolling papers and a roach clip. Some of these items were decorated with marijuana leaf designs. Many items bore small stickers stating “Not for sale to minors” and “Not intended for illegal use.”
On November 13, 1981, a search warrant for The Choosey Beggar was issued and many of the above-described items were seized. Subsequently the defendants were charged with possession of drug paraphernalia with intent to deliver for illegal use with controlled substances in violation of K.S.A. 1982 Supp. 65-4153. The defendants unsuccessfully moved to quash the search warrant and suppress the evidence seized thereunder. After hearing evidence presented by both sides, including expert testimony concerning the use of the seized items in evidence, the court found the defendants guilty and imposed a $2,500 fine and 90-day jail sentence on each.
The defendants first contend the affidavit in support of the search warrant was insufficient to establish probable cause that a crime had been committed. The affidavit for the search warrant stated the following facts:
“On November 12, 1981 at approximately 3:00 p.m., Overland Park Police Officers Faddis and Mann entered the Choosey Beggar retail store located at 7619 Metcalf in Overland Park, Johnson County, Kansas. The Choosey Beggar is a retail store open to the public. At the east end of the store along the north and south walls the officers observed the following merchandise for sale: several glass and plastic water bong pipes, several small pipes made of metal, Wood, glass, stone, plastic and ceramic of different colors, some emblazoned With a marijuana leaf design, cocaine cutting or 'snuff kits, roach clips of various designs, cocaine spoons and vials, ‘sno-seef envelopes for storing & concealing controlled substances, various carburetor and/or chamber pipes and tubes resembling rolled-up U.S. currency used for ingesting or inhaling controlled substances. The officers believe the above mentioned items are drug paraphernalia as defined in Chapter 140 of the 1981 Kansas Session Laws.”
Chapter 140 of the 1981 Session Laws was codified in K.S.A. 1982 Supp. 65-4150 et seq. K.S.A. 1982 Supp. 65-4153 provides in pertinent part:
“(a) No person shall deliver, possess with intent to deliver, manufacture with intent to deliver or cause to be delivered within this state:
“(2) any drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to . . . store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the uniform controlled substances act.”
The definition of drug paraphernalia and groups of specific objects which may constitute drug paraphernalia if used for a prohibited purpose are set forth in detail in 65-4150(c). These include:
“(9) Capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled substances.
“(10) Containers and other objects used or intended for use in storing or concealing controlled substances.
“(12) Objects used or intended for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, such as:
“(A) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
“(B) water pipes;
“(C) carburetion tubes and devices;
“(D) smoking and carburetion masks;
“(E) roach clips (objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand);
“(F) miniature cocaine spoons and cocaine vials;
“(G) chamber pipes;
“(H) carburetor pipes;
“(I) electric pipes;
“(J) air-driven pipes;
“(K) chillums;
“(L) bongs; and
“(M) ice pipes or chillers.”
In Kansas Retail Trade Co-op. v. Stephan, 522 F. Supp. 632, 639 (D. Kan. 1981), aff'd in part, rev’d in part 695 F.2d 1343, 1346 (10th Cir. 1982), it was held that in order to obtain a conviction under the statute a prosecutor must prove:
“(1) [T]hat the defendant seller or manufacturer intended the item to be drug paraphernalia; and (2) that the defendant knew, or he acted under circumstances where one reasonably should know, that the ultimate buyer would use the item as drug paraphernalia.” 695 F.2d at 1346.
See also Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1366 (10th Cir. 1981).
The appellants contend the necessary elements of the crime, that the items were intended to be drug paraphernalia and the defendants knew the items would be used as such, were not set forth in the affidavit and therefore the factual allegations were insufficient for a judge to determine whether a crime had been committed.
It is axiomatic that a search warrant may not issue except upon a showing of. probable cause. Sufficient facts must be placed before an issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant’s personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause. State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977); State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982). A mere statement of an officer that he believes or had good grounds to believe contraband or other items subject to seizure are located in a specific vehicle or place is not sufficient to support the issuance of a search warrant. State v. McMillin, 206 Kan. 3, 5, 476 P.2d 612 (1970).
What constitutes probable cause was discussed in State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972) rev’d in part on other grounds, 225 Kan. 38 (1978):
“Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed. (Henry v. United States, 361 U.S. 98, 102, 4 L.Ed.2d 134, 80 S.Ct. 168 [1959].) It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. . . .
“Evidence sufficient to support probable cause for an arrest on the part of an arresting officer is also sufficient to support a finding of probable cause by a magistrate in the issuance of a search warrant.”
Probable cause, however, does not require the same type of specific evidence of the offense as would be needed to support a conviction. State v. Marks, 231 Kan. at 647-48. The burden is on the prosecution to show a search and seizure was lawful and supported by probable cause. K.S.A. 22-3216(2); State v. Morgan, 222 Kan. at 152.
The central inquiry here is not whether all of the elements of a crime were alleged, but whether sufficient facts were stated-to support a finding of probable cause that a crime had been committed. The statute is designed to prohibit the sale of drug paraphernalia used to inhale or ingest illegal drugs. K.S.A. 1982 Supp. 65-4150(c) extensively lists items which may constitute drug paraphernalia. The affidavit stated the police officers observed several, of these items for sale in The Choosey Beggar and they believed these items were drug paraphernalia, as defined in the statute. While the affidavit contained no allegations the items were intended to be sold as drug paraphernalia or that they were sold under such circumstances that the store owners should have known the items would be used for illegal purposes, such inferences could have been drawn from the facts stated. Intent and knowledge are, after all, elements which may be and are frequently proven by circumstantial evidence. State v. Blue, 221 Kan. 185, 190, 558 P.2d 136 (1976).
Both parties compare the crime involved here to K.S.A. 21-3717 which makes the possession of burglary tools unlawful. In State v. Hart, 200 Kan. 153, 157, 434 P.2d 999 (1967), it was held the statute requires that an intent be shown on the part of the person possessing burglary tools to employ .those tools in burglarious activities. Otherwise, the innocent possession of ordinary tools which could be used in unlawful breaking and entering might subject an innocent person to conviction under the statute. In response to the defendant’s challenge in Hart that a search warrant was issued without probable cause, the court held the sheriff s affidavit, reciting that the defendant and others were found to be in possession of certain tools useful in burglary and it was believed they were involved in a burglary, was sufficient to support a finding of probable cause for the issuance of a search warrant for the defendant’s automobile. 200 Kan. at 162-63. It was not alleged the defendant intended to use the tools in burglarious activities, but only that he and his companions were in possession of such tools.
In two respects, the possession of burglary tools is different from the possession of drug paraphernalia. First, as the trial court noted, K.S.A, 1982 Supp. 65-4150(c)(12) extensively lists devices for smoking and ingesting drugs such as marijuana, hashish and cocaine, which may fall within the definition of drug paraphernalia if used or intended for use with a controlled substance. No similar statute concerning burglary tools exists. Second, also noted by the trial court, many of the items listed as drug paraphernalia in the statute do not have any reasonable legitimate purpose and are obviously manufactured and offered for sale for illicit purposes, whereas other items, such as tools which may be useful in committing burglary and weapons which may be used in the commission of a crime have both legitimate and illegitimate uses, rendering it necessary to allege more specific facts from which it can be inferred that such items are possessed for an illegal purpose. The trial court ruled the fact of possession and offering for sale items of drug paraphernalia enumerated in the statute, for which there was no reasonable legitimate use, was sufficient evidence that these items were intended to be used for the purposes prohibited by statute and support a finding of probable cause for the issuance of a search warrant.
The Kansas Drug Paraphernalia Act was enacted in 1981 and became effective July 1, 1981. The first case to consider the Act was Kansas Retail Trade Co-op. v. Stephan, 522 F. Supp. 632, finding the Act to be constitutional. It set forth the elements of proof necessary for a conviction. When the . search warrant was issued in the instant case, this decision was less than two months old and in all likelihood was not available to the magistrate issuing the warrant or to the police officers. There is no dispute these defendants were the first to be arrested and convicted under the new statute. This court has held that a trial court should review applications for search warrants with common sense and in a realistic manner, realizing they are often drawn in haste and by nonlawyers. State v. Morgan, 222 Kan. at 154. Here the affidavit specified (1) The Choosey Beggar was a retail establishment open to the public, (2) numerous items offered for sale, all of which were listed in the statute as drug paraphernalia, and (3) the officers believed these items to be drug paraphernalia as defined by the statute. This information was sufficient to lead a reasonable officer to believe guilt was more than a possibility. These were not mere bald conclusions or affirmations of belief based on hearsay, but were assertions of positive fact. The facts gave rise to a reasonable inference the items were intended to be used as drug paraphernalia and the store owners were aware the items would be used as such. It does not appear the trial court erred in refusing to suppress the evidence seized pursuant to the search warrant.
The appellants next challenge the constitutionality of the Drug Paraphernalia Act, contending it is vague in that it does not provide fair notice of the criminal activity proscribed nor provide sufficient guidelines for law enforcement personnel to determine whether the Act has been violated. Also they contend the Act encourages arbitrary and discriminatory enforcement.
In Kansas Retail Trade Co-op. v. Stephan, 695 F.2d 1343 (10th Cir. 1982), the Tenth Circuit Court of Appeals upheld the constitutionality of the Kansas Act against an attack on these same grounds in an action seeking declaratory and injunctive relief brought by owners of drug paraphernalia shops. The district court found all provisions of the Act to be constitutional except for the section banning advertisement of drug paraphernalia in newspapers and magazines (K.S.A. 1982 Supp. 65-4154), holding it to be overbroad and violative of the First Amendment right of free speech. 522 F. Supp. at 642-43. On appeal the Tenth Circuit Court found the Act constitutional in its entirety, reversing the district court’s ruling on the advertising issue. 695 F.2d at 1348. This issue is not raised before this court.
In Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980), this court upheld the constitutionality of a municipal ordinance prohibiting the sale or display of drug paraphernalia items against claims the-ordinance was vague and over-broad.
This court has adqpted certain principles to consider when a statute is challenged as unconstitutional. In State v. Lackey, 232 Kan. 478, 479, 657 P.2d 40 (1982), we recognized that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See also State v. Carpenter, 231 Kan. 235, 237, 642 P.2d 998 (1982); Cardarella v. City of Overland Park, 228 Kan. at 700. A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a common sense determination of fundamental fairness. State v. Lackey, 232 Kan. at 479-80; State v. Carpenter, 231 Kan. at 237; Cardarella v. City of Overland Park, 228 Kan. at 703. See also Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L.Ed.2d 222, 92 S.Ct. 2294 (1972). In determining whether an ordinance is void for vagueness two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. Cardarella v. City of Overland Park, 228 Kan. at 702; State v. Lackey, 232 Kan. at 480. See also Hejira Corp. v. MacFarlane, 660 F.2d at 1365; Casbah, Inc. v. Thone, 651 F.2d 551, 558 (8th Cir. 1981). In Cardarella v. City of Overland Park, 228 Kan. at 706, we also noted: (1) upon challenges for vagueness greater leeway is afforded statutes regulating business than those proscribing criminal conduct; and (2) a statute is not to be struck down only because marginal cases could be put where doubts might arise.
The appellants contend the Act is vague as applied to the facts of this case because it did not provide them with a sufficient definition of drug paraphernalia. The appellants point to evi dence in the record that they quit selling many of the articles in response to a warning letter sent to them by the district attorney’s office after the Act became effective. Subsequently, based upon the advice of a representative of the Kansas Retail Trade Cooperative, the appellants restocked the items for sale. Shortly thereafter the appellants were arrested. The appellants believed “the absence of any express intent on their part or on the purchaser’s part” would save them from prosecution under the statute, and therefore the statute is vague because they were unable to discern what conduct was proscribed.
Similarly, the appellants contend the statute provided inadequate guidelines for the officers executing the search warrant, the prosecution and trial court to determine what constituted drug paraphernalia in this case. A detective experienced in the narcotics area, John Jennings, accompanied the officers executing the warrant to assist in determining those items for sale which constituted drug paraphernalia. Several boxes of objects were seized. The prosecution offered 22 of these objects believed to be paraphernalia as exhibits. The trial court found sixteen of these items to be drug paraphernalia. Those items which the trial judge held did not constitute drug paraphernalia “beyond a reasonable doubt” included a glass water pipe, which Detective Jennings testified was not functional in the condition in which it was presented at trial; a rolled up fake $100 bill, used to inhale cocaine; a box of cigarette rolling papers; two packages of snuff wrappers and a cigarette case.
K.S.A. 1982 Supp. 65-4150(c) défines drug paraphernalia as materials or objects “used or intended for use” in connection with illegal narcotics, including twelve specific groups of objects. Subsection (c) (12) further details numerous items which may be drug paraphernalia if used or intended for use in ingesting or inhaling marijuana, cocaine or hashish. K.S.A. 1982 Supp. 65-4152 states that “[no] person shall use or possess with intent to use” drug paraphernalia. Likewise, 65-4153 provides “[no] person shall deliver, possess with intent to deliver, manufacture with intent to deliver or cause to be delivered” drug paraphernalia. K.S.A. 1982 Supp. 65-4151 sets forth fourteen factors for courts or law enforcement officers to consider in determining whether an item is intended as drug paraphernalia:
“(a) Statements by an owner or person in control of the object concerning its use.
“(b) Prior convictions, if any, of an owner or person in control of the object, under any state or federal law relating to any controlled substance.
“(c) The proximity of the object, in time and space, to a direct violation of the uniform controlled substances act.
“(d) The proximity of the object to controlled substances.
"(e) The existence of any residue of controlled substances on the object.
“(f) Direct or circumstantial evidence of the intent of an owner or person in control of the object, to deliver it to a person the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of the uniform controlled substances act. The innocence of an owner or person in control of the object as to a direct violation of the uniform controlled substances act shall not prevent a finding that the object is intended for use as drug paraphernalia.
“(g) Oral or written instructions provided with the object concerning its use.
“(h) Descriptive materials accompanying the object which explain or depict its use.
“(i) National and local advertising concerning the object’s use.
“(j) The manner in which the object is displayed for sale.
“(k) Whether the owner or person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor or dealer of tobacco products.
“(1) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.
“(m) The existence and scope of legitimate uses for the object in the community.
“(n) Expert testimony concerning the object’s use.”
The Kansas Drug Paraphernalia Act is nearly identical to the Drug Enforcement Administration’s Model State Drug Paraphernalia Act. Variations of the Model Act have been adopted in numerous states and have generated a rash of litigation. Several circuit courts have upheld state drug paraphernalia laws which have been challenged for vagueness. See New England Accessories Trade Ass’n v. Tierney, 691 F.2d 35 (1st Cir. 1982); New England Accessories Trade v. City of Nashua, 679 F.2d 1 (1st Cir. 1982); Tobacco Accessories, Etc. v. Treen, 681 F.2d 378 (5th Cir. 1982); Levas and Levas v. Village of Antioch, Ill., 684 F.2d 446 (7th Cir. 1982); Casbah, Inc. v. Thone, 651 F.2d at 559; Kansas Retail Trade Co-op. v. Stephan, 695 F.2d 1343; Hejira Corp. v. MacFarlane, 660 F.2d at 1367; Florida Businessmen, Etc. v. City of Hollywood, 673 F.2d 1213 (11th Cir. 1982); High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982). One circuit found a drug paraphernalia law to be unconstitutionally vague where it defined drug paraphernalia as items “designed for use” with controlled substances. Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 934-36 (6th Cir. 1980), vacated and remanded 451 U.S. 1013 (1981). However, in Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 502, 71 L.Ed.2d 362, 102 S.Ct. 1186 (1982), the Supreme Court held the “designed for use” language was not per se unconstitutionally vague. This language was not adopted in the. definition of drug paraphernalia in K.S.A. 1982 Supp. 65-4150.
The Kansas Act makes it clear that to violate the statute a person must have the intent that the items be drug paraphernalia. In Kansas Retail Trade Co-op. v. Stephan, 695 F.2d at 1343, the Tenth Circuit held that because the violator must actually intend that an item be drug paraphernalia he has notice of his criminal act and due process is satisfied. The statute therefore is not unconstitutionally vague on the issue of subjective intent. See also Hejira Corp. v. MacFarlane, 660 F.2d.at 1366-67; Levas and Levas v. Village of Antioch, ILL., 684 F.2d at 453-54; Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. at 490.
In response to an argument in Cardarella similar to that raised by the appellants here, we stated:
“In the present case it is sufficient to say that the ordinance meets constitutional muster if a person of common intelligence engaged in the business of selling the type of merchandise regulated by the ordinance could examine the ordinance and not be confused by its requirements. The plaintiff, of course, argues that the two types of goods subject to the sale or display prohibitions, ‘instruments’ and ‘simulated drugs’, are so vaguely defined as to provide no warning of what specific items are restricted. A reading of the ordinance indicates that this is not the case. It is this court’s conclusion that the ordinance’s prohibitions are sufficiently clear to provide any person of common intelligence the fair warning of what is forbidden demanded by the constitution.
“The plaintiff first attacks the definition of ‘instruments’ provided in the ordinance. The definition reads ‘a device designed for use or intended for use in ingesting, smoking, administering or preparing . . . any . . . controlled substance.’ -[Ord. RD-1048, § 11.56.130 (P)]. The ordinance does not define ‘device’ or ‘designed for use’ and, according to the plaintiff, that omission would make it impossible for any person to know with certainty or consistency what could be sold or displayed. The simple answer is that under the ordinance any device intended by the seller for use in ‘ingesting, smoking, administering or preparing . . . controlled substances [s]’ is prohibited. By focusing on the intent of the seller, the ordinance avoids many of the vagueness problems faced by the ordinance in Riddle v. Clack, supra, [Case No. CA-3-77-0525-D (N.D. Tex. 1977)] and many of the hypotheticals raised by the plaintiff in his arguments to this court. The indefiniteness of just referring to the intent of the seller is avoided by the enumeration of five criteria that lend themselves to a determination of what a particular item is to be used for and what the seller ‘intends’ their use to be. [Ord. RD-1048, § 11.56.130(P)(a)(e).]” 228 Kan. at 703-04.
In Cardarella the five factors contained in the ordinance to consider whether a particular item was drug paraphernalia and intended for such were: (1) whether the person charged with violation of the ordinance was a licensed dealer of tobacco products, (2) expert testimony concerning the use of the items, (3) evidence concerning the type of business and items sold by the alleged violator; (4) advertising concerning the use of the items, and (5) advertising concerning the nature of the business. 228 Kan. at 699-700.
In the instant case the statute more than adequately provides a person of common intelligence with fair warning of what is prohibited. The statute extensively lists those items and materials which constitute drug paraphernalia if intended by the seller to be used or sold as such. As made clear by the foregoing authorities, the subjective intent of the seller is the essential factor in determining that a violation of the statute has occurred. Whether an item actually constitutes drug paraphernalia only comes into play where the seller intends in the first instance that it is to be used as such. Kansas Retail Trade Co-op. v. Stephan, 695 F.2d at 1346; Tobacco Accessories, Etc. v. Treen, 681 F.2d at 383. A person of average intelligence possessing and offering for sale any of the specific items or groups of objects enumerated in the statute is sufficiently put on notice that he will be in violation of the Act if he intends for those items to be drug- paraphernalia and has reason to know they will be used as such. All that the “reasonably should know” language demands is that the seller or manufacturer be required to open his eyes to the objective realities of his activity. Mid-Atlantic Accessories Trade v. State of Md., 500 F. Supp. 834, 845 (D. Md. 1980). The statute does not require any “express intent” on the part of the seller or buyer as the appellants suggest, nor is conviction precluded in the absence of evidence of such express intent. As noted in Cardarella, “[t]he indefiniteness of just referring to the intent of the seller is avoided by the enumeration of five criteria that lend themselves to a determination of what a particular item is to be used for and what the seller ‘intends’ their use to be.” Where items have both legitimate and illegitimate purposes the intent of the seller becomes the key to violation and must be proved by either direct testimony or inferred using the type of evidence enumerated in the ordinance. 228 Kan. at 704. In prosecutions under the statute the evidence concerning the fourteen factors listed in 65-4151 is to be considered in determining the seller’s intent.
The appellants’ argument that the Act does not provide sufficient guidelines for law enforcement officers to determine whether an item is drug paraphernalia has been rejected by several courts. In Hejira Corp. v. MacFarlane, 660 F.2d at 1368, the court held the eleven factors listed in the Colorado Act were sufficiently “positive and concrete” to guard against unconstitutional arbitrary enforcement. The Kansas Act includes three additional factors, ([¿>], [c] and [!]) not contained in the Colorado Act. The court in Kansas Retail Trade Co-op. v. Stephan, 695 F.2d at 1347, found Hejira to be controlling regarding the eleven factors in the Kansas Act identical to those contained in the Colorado Act, and went on to state:
“It was pointed out by the district court that none of the fourteen factors create a presumption that a certain item is drug paraphernalia. Rather the factors are only to be considered in making a determination regarding drug paraphernalia. The trial court has found the three questioned factors [(b), (c) and (Z)] highly relevant and not unconstitutionally vague. We find no authority or reasoning which would justify overturning that decision.”
In Casbah, Inc. v. Thone, 651 F.2d at 560, the court stated:
“The fact that the statute attempts to guide such personnel in their enforcement duties lessens, rather than increases, the danger of arbitrary enforcement.
“The enumerated factors themselves pose no constitutional problem, and are valuable guides in determining what items are prohibited.”
Other courts have also approved these factors as sufficient guidelines determining when an object is drug paraphernalia in enforcement of the Act. See New England Accessories Trade Ass’n v. Tierney, 691 F.2d at 37; Levas and Levas v. Village of Antioch, Ill., 684 F.2d at 454; New England Accessories Trade v. City of Nashua, 679 F.2d at 6-7; Tobacco Accessories, Etc. v. Treen, 681 F.2d at 384.
In Cardarella we held the challenged ordinance was narrowly drawn and provided adequate standards by which the proscribed conduct could be measured. The statute involved here is more extensively drafted and more precisely defines the unlawful activity than the ordinance involved in Cardarella. Nine addi tional factors are provided for the court to use in determining whether a violation has occurred.
The appellants’ claim is unpersuasive that the guidelines are inadequate because of the inconsistency between the judgment of the detective, prosecutor and trial court in determining which items were drug paraphernalia. As noted in Hejira Corp. v. MacFarlane, 660 F.2d at 1367, the fact that different minds may reach different results when seeking to determine whether a given object falls within the statutory definition of drug paraphernalia does not render the statute void for vagueness. In New England Accessories Trade Ass’n v. Tierney, 691 F.2d at 37, the court stated:
“While plaintiffs argue that the facts listed in subsection 3 fail to provide black and white standards from which law enforcement officers can determine a merchant’s intent, law enforcement always requires the exercise of some judgment, Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), and the assessment called for under the Maine Act is no different in kind than that ordinarily encountered. . . .”
In the instant case the trial court was aware this was the first prosecution in the state under the new statute and, in an effort to minimize the possibility of error, undoubtedly exercised an abundance of caution in applying the factors in 65-4151 in determining which of the items introduced as evidence were drug paraphernalia. Those items excluded as not constituting drug paraphernalia, with the exception of the nonfunctional water pipe, were capable of both legitimate and illegitimate uses. Rather than supporting the claim of “insufficient guidelines for enforcement” advanced by the appellants, this indicates an effort on the part of the trial court to conscientiously apply the factors in the statute in determining whether the items were drug paraphernalia. The appellants’ hypothetical argument asserted in their brief and in oral argument before this court that a grocery store owner may be convicted under the Act for selling plastic sandwich bags, allegedly the most common form of narcotics paraphernalia, is also without merit. This argument overlooks the necessary intent requirement on the part of the seller that the item be used as drug paraphernalia, As noted by the Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S, at 503-04 n. 21, such theoretical possibilities are of no due process significance unless the possibility ripens into a conviction.
The appellants additionally contend they have been unfairly singled out for enforcement of the statute. This is based upon evidence in the record that The Choosey Reggar and one other establishment received warning letters from the district attorney’s office in September 1981, and only the appellants were subsequently prosecuted. This claim is based in part on the appellants’ example that hundreds of merchants sell sandwich bags, but only they were arrested for selling drug paraphernalia. As noted above, this argument conveniently overlooks the intent requirement. The record is barren of any evidence that there were other businesses in Johnson County still selling merchandise of the character described and enumerated in the statute when the appellants were arrested. No evidence of discriminatory or selective enforcement of the law was produced at trial. The mere fact the appellants were the first to be prosecuted under the law does not alone establish the district attorney’s office engaged in arbitrary enforcement of the law.
The appellants next contend the evidence was insufficient to support the trial court’s ruling that the articles were narcotics paraphernalia or that the appellants intended the items to be drug paraphernalia and knew or reasonably should have known they would be used as such. Detective Jennings testified extensively concerning the ordinary use of the seized items in evidence. During his work in the narcotics unit of the police department he made hundreds of undercover drug purchases and became familiar with the terminology and items of paraphernalia commonly utilized by drug users. Detective Jennings testified he has seen hashish pipes and water pipes similar to those introduced as evidence used with marijuana or hashish on hundreds of occasions. These pipes had small size bowls to hold the smoking material. Detective Jennings testified that hashish, which burns slower than marijuana, is usually smoked in a bowl that size. He testified he has never seen tobacco used in a bowl that small and has never seen anyone smoke tobacco in a water pipe. Some of these pipes had an extra small hole in them, commonly referred to as a “supercharger.” Detective Jennings testified a supercharger works by the pipe smoker placing his finger over the hole to cut off the supply of fresh air, so that a higher concentration of smoke can be inhaled from the pipe. Some of these pipes also had small mesh-like screens in the bowls. Detective Jennings testified these screens were common to marijuana pipes and prevented ashes from being inhaled through the pipe.
Several items were introduced as exhibits which were connected with the use of cocaine. One item consisted of a “cocaine kit,” which was a small leather pouch containing a small mirror, razor blade, small glass vial, small spoon and tube. Detective Jennings testified he has seen those types of kits used with cocaine. He explained the vial is used to store the supply of cocaine. The cocaine is placed on the mirror where it is “cut” with the razor blade and then inhaled off the mirror through the tube. The cocaine could also be inhaled from the spoon. Several other small vials and spoons used with cocaine were also introduced into evidence. Paper wrappers used for packaging cocaine were placed into evidence. Two items described as “cocaine snorters” were also introduced. These had a small container for storing cocaine with an apparatus attached for inhaling the cocaine into the user’s nose. The directions for use written on the package of one of these items stated it would cause a “Shot-Gun” effect. Detective Jennings testified this term is commonly used with respect to controlled substances and refers to the situation where cocaine is drawn out of the bottle and into the nose very quickly. He has never seen any of these items used with snuff.
Several “roach clips” of various designs used to hold the butt of a marijuana cigarette were introduced. Detective Jennings testified he has seen these used hundreds of times with marijuana cigarettes and has never seen them used to. hold tobacco cigarettes. Rolling papers with the word “cannabis” were introduced. A “concert kit” designed for smoking marijuana at concerts was also received into evidence. It contained a small hashish pipe, screens, pipe cleaner, rolling papers, a plastic bag, roach clip and matches. Many of the items seized were decorated with marijuana leaf designs. Some items bore small stickers stating “Not for sale to minors” and “Not intended for illegal use.”
Detective Jennings testified the articles were located along the back of the store in glass display cases. Two weeks prior to the execution of the search warrant he had entered the store and had not seen any items of paraphernalia for sale. He asked defendant Dunn why they were not selling any drug parapher nalia and Dunn replied that a new-law had made it illegal and he had stopped selling it until a court decision was rendered which would allow him to put it back out for sale.
Detective Jennings and Officer Keith Faddus, who executed the search warrant, both testified they did not observe any snuff for sale at The Choosey Beggar on the day of the search. Defendant French testified there was snuff for sale that day. However, he was unable to locate any packages of snuff when shown photographs of the display cases taken on the day the search warrant was executed. Detective Jennings testified no controlled substances were found on the premises. Officer Faddus testified that prior to the time the Act became effective there was a sign in the window of the store advertising paraphernalia, but there was no advertising of such items the day of the search.
Jeffrey Ladd, the manager of a pipe and tobacco store with several years’ experience in tobacco and-pipe sales, was called as a witness for the State. He testified he has never seen pipes sold in tobacco shops or advertised for sale in trade publications similar to those seized from The Choosey Beggar. He testified he had never seen a tobacco water pipe, pipes like those in evidence used with tobacco, a pipe with an extra hole or “supercharger,” or' screens used in tobacco pipes. He also testified it would not be feasible to burn pipe tobacco in the pipes in evidence because the bowls were so small it would be almost impossible to get tobacco in one. If one was successful in getting tobacco in the bowl and lighting it, there would only be enough tobacco to burn for 45 seconds to one minute.
The defendants introduced several common smoking pipes made out of a variety of materials with screens in them which were sold at The Choosey Beggar. Mr. Ladd testified there was no reason for tobacco purposes to have the screens in the pipes. Also, those pipes were made out of such materials that if used to smoke regular pipe tobacco the pipe would burn up in a matter of days.
As noted earlier, a court is to consider evidence concerning the fourteen factors in 65-4151 in determining whether an item constitutes drug paraphernalia and the seller’s intent as to their use. The appellants contend the State, at best, offered meager circumstantial evidence only concerning the character of the items based upon their appearance and the various uses of the objects. The appellants contend the trial court based its decision solely upon the appearance of the articles with absolutely no evidence concerning intent.
In a criminal action where the defendant challenges the sufficiency of the evidence for a conviction, the standard on review is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). See also State v. Williams, 229 Kan. 290, 623 P.2d 1334, reh. denied 229 Kan. 646 (1981).
Contrary to the argument advanced by the appellants it is not necessary for evidence to be presented on each of the fourteen factors listed in 65-4151 to support a conviction. As noted by the court in Hejira Corp. v. MacFarlane, 660 F.2d at 1368, “some of the standards may not apply in each and every case.” In Kansas Retail Trade Co-op. v. Stephan, 522 F. Supp. at 640, the district court recognized that “[n]one of the fourteen factors listed in [K.S.A. 1982 Supp. 65-4151] create a presumption that a certain item is drug paraphernalia; they are only to be ‘considered’ in making a determination regarding drug paraphernalia.”
Viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to support the trial court’s finding that certain of the seized items were intended by the appellants to be used as drug paraphernalia in violation of the Act. All of the items found to be paraphernalia fell within the group of items specifically listed in 65-4150(c)(12) which may constitute drug paraphernalia if intended for use as such. The testimony of Detective Jennings and Jeffrey Ladd left little doubt these items were commonly, if not exclusively, used in connection with the use of marijuana, hashish or cocaine, and that none of these items had any practical or reasonable legitimate use. This testimony relates to 65-4151(m), the existence of legitimate uses for the object, and (n), expert testimony concerning the object’s use. The claim made by the appellants that all of the smoking devices could be used for the ingestion of regular pipe tobacco is not supported by the record. The testimony by Gary French that snuff was sold in the store was questionable in that it could be considered self-serving, he was unable to indicate where it was displayed for sale in the photo graphs of the display cases, and his testimony was directly refuted by the testimony of Detective Jennings and Officer Faddus. This information was relevant to 65-4151(/c), whether the owner is a legitimate supplier of related items, such as a tobacco products dealer. There also was evidence the appellants had advertised drug paraphernalia for sale prior to the enactment of the law and they ceased selling the items until the district court’s decision in Kansas Retail Trade Co-op. v. Stephan. Many of the items contained stickers reading “Not intended for illegal use.” This evidence related to 65-4151(/), as direct or circumstantial evidence of the seller’s intent to deliver the item to a person the seller knows, or should reasonably know, intends it to be used with controlled substances.
In determining these items were intended by the defendants to be drug paraphernalia within the meaning of the statute the trial court stated:
Specifically at issue then is whether defendants possessed with intent to deliver drug paraphernalia knowing or under circumstances where one reasonably should know that it will be used with a controlled substance — with or in conjunction with a controlled substance.
“Many considerations are raised by the exhibits. Among those considerations are the following:
“1. Should individual innocuous items especially susceptible to conversion, conversion to illicit use with controlled substances be considered drug paraphernalia? The Court feels this question must be answered in the negative on that particular issue.
“2. Does a marijuana leaf design on a manufactured item susceptible to use with controlled substances create a presumption of illicit intended use? Again, the Court must respond in the negative. At best it creates an inference.
“3. Does the alteration of otherwise innocuous manufactured items such as an electronic alligator clip convert that item to drug paraphernalia? The Court feels this question must be answered in the affirmative, absent any other reasonable and obviously intended use thereof.
“4. Does the apparent unadaptibility of a manufactured item to a use other than drug related create a presumption of illicit intended use? Again, the Court responds in the affirmative.
“5. Are individual items so distinctive or unique in design and character as to preclude a legitimate intended use? The Court again answers in the affirmative'.
“6. Does the minimal size of a pipe bowl, the presence of a wire mesh filter and/or a supercharger second channel opening, convert an otherwise legitimate smoking pipe to drug paraphernalia intended for use with controlled substances? The Court again answers in the affirmative.
“7. Does the combining into kit form of mirrors, razor blades, snorting spoons, etc., individually innocuous items, collectively preclude a presumption of legitimate intended use? The Court again answers that question in the affirmative.
“8. Does the combining of all the necessary usual materials for the utilization and smoking of hashish as in the concert kit, State’s Exhibit No. 22, preclude any reasonable presumption of intended legitimate use? The Court’s answer is again in the affirmative.
“9. May an item especially designed and manufactured having obvious specific use in the ingesting of controlled substances and having no reasonable, apparent or obvious legitimate use be considered other than drug paraphernalia? The question again by the Court must be answered in the negative.”
The trial court then ruled that the appellants’ claim that they did not know-the buyer’s intention to use the items in ingesting controlled substances was unpersuasive, stating:
“Neither is the language ‘Not intended for illegal use’ contained on many of the items in question of any legal consequence. It is like marking a firecracker, ‘Not intended to explode.’ Each such disclaimer would be equally ludicrous.”
We have previously noted the term “reasonably should know” merely requires the seller whose intent is to deliver drug paraphernalia to open his eyes to the objective realities of the activity and the character and nature of the items he sells. In Florida Businessmen, Etc. v. City of Hollywood, 673 F.2d at 1219, the court stated:
“The ‘reasonably should know’ standard does not punish innocent or inadvertent conduct but establishes a scienter requirement that the defendant acted in bad faith, with intent or knowledge that the recipient will use the paraphernalia with controlled substances.”
On the same note the court in Delaware Accessories Trade Ass’n v. Gebelein, 497 F. Supp. 289, 294 (D. Del. 1980), reasoned:
“The legitimate merchant who sells innocuous items need make no judgment about the purpose of the buyer based upon the surrounding circumstances. The dealer, on the other hand, who sells innocuous items with the intent that they be used with drugs is, in effect, put on notice by the illicit nature of his activity that he must be careful to conform his conduct to the law. Even the illicit dealer, however, is not held legally responsible, as plaintiffs would suggest, for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer’s purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue.” (Emphasis added.)
We conclude the trial court’s judgment is supported by the evidence. The appellants failed to present evidence of any substance concerning reasonable legitimate uses for the items of paraphernalia, leading to an inference that the appellants were aware the items would be used for illegal purposes and intended to sell them for such purposes. '
The judgment of the lower court is affirmed. | [
-80,
-19,
-3,
12,
10,
96,
42,
58,
83,
-89,
118,
83,
-87,
114,
4,
123,
-5,
93,
116,
121,
-55,
-73,
99,
-126,
-122,
-5,
-38,
-43,
-7,
79,
-82,
116,
13,
-76,
38,
5,
70,
-32,
-76,
94,
-114,
1,
-103,
115,
81,
10,
-92,
42,
50,
11,
113,
23,
-93,
42,
20,
-49,
105,
44,
43,
61,
121,
-40,
-71,
85,
93,
22,
-125,
32,
-99,
-91,
-40,
111,
-98,
49,
1,
104,
-13,
-90,
-122,
116,
15,
-99,
-124,
102,
98,
32,
21,
-19,
-84,
-120,
62,
107,
-115,
-25,
-112,
89,
64,
-87,
-74,
-97,
108,
19,
41,
-8,
-53,
20,
7,
-4,
-121,
-58,
-72,
-109,
11,
112,
-50,
59,
-53,
-89,
49,
113,
-59,
96,
94,
119,
112,
-97,
-114,
-43
] |
The opinion of the court was delivered by
Lockett, J.:
This is'an action brought by the Iola State Bank (Bank) to enforce certain guaranty agreements executed by Dolores M. Bybee and others who are not parties to this appeal. The first two contracts, executed in 1974, guaranteed the obligations of Joe Biggs and Jan Biggs d/b/a Biggs Feed & Grain. A third contract, executed in 1975, guaranteed the obligations of Biggs Feed & Grain, Inc. (Corporation), corporate successor to the individual business.
The facts are undisputed. Parties filed cross-motions for summary judgment; after oral argument the district court found only the third guaranty contract was enforceable against Dolores M. Bybee. The Bánk appeals.
On May 21, 1974, the Iola State Bank loaned Joe Biggs and Jan Biggs ’d/b/a Biggs Feed & Grain, $37,500.00. • The loan was secured by á note signed by Joe Biggs and Jan Biggs and a guaranty agreement executed on the same day by Jack L. Bybee and Dolores M. Bybee in the'same amount. The bank retained a security interest in all the inventory and accounts receivable of the Biggs Feed & Grain business. A second guaranty agreement in the amount of $50,000.00 was executed by Dolores M. Bybee and Jack L. Bybee June 17, 1974, enabling Joe Biggs and Jan Biggs d/b/a Biggs Feed &' Grain to obtain additional credit. There was a figure of $41,196.55 in outstanding obligations to'the Bank by' the Biggs when the second guaranty agreement was executed. '
On April 29, 1975, Articles of Incorporation of Biggs Feed & Grain, Inc. were filed with the Secretary of State of the State of Kansas. The incorporators and initial directors were Joe Biggs,' Jan Biggs, and Jack L. Bybee. The Corporation’s annual reports filed with the Secretary of State for the years 1975 through 1979, inclusive, showed that the directors continued to be Joe Biggs, Jan Biggs, and Jack L. Bybee. Joe Biggs was the sole stockholder of the Corporation. Jack L. Bybeé was the treasurer of the Corporation. The Bybees’ sole interest in the Corporation was to assist their daughter, Jan Biggs. At the time of incorporation Joe Biggs and Jan Biggs were obligated to the Iola State Bank in the amount of $99,802.58.
A third contract of guaranty dated April 29, 1975, was executed by Dolores M. Bybee, Jack L. Bybee, Joe Biggs and Jan Biggs to enable the corporation to obtain ciedit from the Bank and guarantee payment of such credit to the extent of $150,000.00.
On the 20th day of May, 1975, the Bank consolidated the balances of three different loans to Joe Biggs and Jan Biggs into one corporate obligation. The outstanding balance of $67,000.00 of the Biggs became a corporate obligation under one note. From May 20, 1975, until December 8, 1981, the sole obligor under all notes was the Corporation. Every note after incorporation was executed by Joe Biggs, president of Biggs Feed & Grain, Inc. The Corporation made payments on the balance of the notes and its subsequent ten renewals as corporate notes. August 15, 1980, the Bank consolidated all debts due and owing from the Corporation into one corporate obligation note in the amount of $294,000.00. On December 8,1981, the Bank sued to recover the outstanding balance due it from the Corporation under the note and to enforce the three guaranty agreements executed by the parties. After the action was commenced, Joe Biggs and Jan Biggs filed bankruptcy and Jack L. Bybee died. The Bank amended its petition and proceeded against Dolores M. Bybee.
Dolores M. Bybee denied any liability under the 1974 guaranties for the notes signed by Joe Biggs and Jan Biggs, claiming the obligations were extinguished when the business incorporated and a new guaranty was executed for the Corporation in the sum of $150,000.00. Mrs. Bybee admitted owing the sum of $150,000.00 under the last guaranty agreement for credit extended by the Bank to the Corporation.
The appellant Bank contends the district court erred in holding that the 1974 guaranty contracts did not guarantee the obligations of the individuals of the corporate successor.
For reasons hereinafter stated, the position taken by the appellant lacks merit.
The law of guaranty is a part of the law of contracts; a guaranty is a type or kind of contract. For a guaranty there must be at least three parties: a guarantor, a creditor (the individual to whom the promise is made), and a debtor. The guaranty is an obligation collateral to another contractual duty to perform. The contract of the guarantor is a separate contract. It is in the nature of a warranty by the guarantor that the thing guaranteed to be accomplished by the principal shall be done, and is not an engagement jointly with the principal to do the act. See Trego WaKeeney State Bank v. Maier, 214 Kan. 169, 519 P.2d 743 (1974).
The first two guaranty agreements were executed during 1974 by Dolores M. Bybee and Jack L. Bybee in favor of the Bank, obligating them to pay the outstanding indebtedness on notes of Joe Biggs and Jan Biggs d/b/a Biggs Feed & Grain. The third and final guaranty agreement was executed in 1975 by Dolores M. Bybee, Jack L. Bybee, Joe Biggs and Jan Biggs for credit extended to the corporation, Biggs Feed & Grain, Inc.
The general rule is, absent a novation or release, the original obligors remain liable when a corporation assumes an existing debt. The rule stated by Fletcher is as follows:
“The liability of partners or members of an association on contracts, debts and obligations of the firm or association may relate to such as arise prior to and exist at the time of the incorporation, or to those which come into being afterwards. In regard to the former, the rule is that partners or members remain liable as such on all contracts and for all debts made or incurred by them while they were doing business as partners or associates, unless they are released from liability, and this is true notwithstanding there has been assumption of the debts and obligations by the corporation, . . . unless upon such assumption there has been a novation or the partners or associates have been released from liability. ... It does not alter the rule of liability that the other party to the contract may have known that the partnership articles provided for incorporation, or the members contemplated future incorporation.” 8 Fletcher, Cyclopedia of the Law of Private Corporations § 4019, p. 373 (rev. perm. ed. 1982). Emphasis supplied.
Neither of the Bybees were partners or associates in the feed and grain business with the Biggs.
The authority relied upon by the Bank is distinguishable and not applicable in this case. Each of the Kansas cases cited regarded note renewal; the note was renewed by the original debtor or was merely an extension of time in which to pay the obligation. See Farmers State Bank v. Cooper, 227 Kan. 547, 608 P.2d 929 (1980); Potwin State Bank v. Ward, 183 Kan. 475, 327 P.2d 1091 (1958); and Fourth National Bank v. Hill, 181 Kan. 683, 314 P.2d 312 (1957).
In Farmers State Bank v. Cooper, 227 Kan. 547, the court reviewed the general rule relative to note renewals:
“The renewal of a note signifies the substitution in place of one engagement of a new obligation on the same terms and conditions; that is, the reestablishment of a particular contract for another period of time.” Syl. ¶ 1.
“Where a note is given merely in renewal of another and not in payment thereof, the renewal does not extinguish the original debt nor in any way change the debt except by postponing time of payment, and, as á general rule, the holder is entitled to the same rights and remedies as if he was a proceeding on the original note.” Syl. ¶ 5.
A guaranty may be either continuing or restricted. The contract is restricted if it is limited to guarantee a single transaction or a numer of specific transactions and is not effective for transactions other than those guaranteed. The contract is continuing if it contemplates a future course of dealing during an indefinite period or it is intended to cover a series of transactions or a succession of credits, or if its purpose is to give to the principal debtor a standing credit to be used by him from time to time. An offer for a continuing guaranty contract is ordinarily effective until revoked by the guarantor or extinguished by some rule of law. 38 Am. Jur. 2d, Guaranty § 23.
Each of the three guaranty agreements were executed using the same standard guaranty agreement form. The form states;
“LOAN GUARANTY AGREEMENT
“For Value Received and to enable_of_, hereinafter designated as ‘Debtor,’ we hereby request said Bank to extend to said Debtor such credit as said Bank may deem proper, and we hereby jointly and severally guarantee the full and prompt payment to said Bank at maturity, and at all times thereafter, and also at the time hereinafter provided, of any and all indebtedness, liabilities and obligations of every nature and kind of said Debtor to said Bank, and every balance and part thereof, whether now owing or due, or which may hereafter, from time to time, be owing or due, and howsoever heretofore or hereafter created or arising or evidenced, to the extent of_Dollars, and we jointly and severally also agree to pay in addition thereto, all costs, expenses and reasonable attorney’s fees at any time paid or incurred in endeavoring to collect said indebtedness, liabilities and obligations, and in and about enforcing this instrument.
“All diligence in collection, and all presentment for payment, demand, protest, notice of protest, and notice of non-payment, dishonor and default, and of the acceptance of this guaranty, and of any and all extensions of credit hereunder, are hereby expressly waived.
“The granting of credit from time to time by said Bank to said Debtor in excess of the amount of this guaranty and without notice to the undersigned, is hereby authorized and shall in no way affect or impair this guaranty.
“Authority and consent are hereby expressly given said Bank from time to time, and without any notice to the undersigned, to give and make such extensions, renewals, indulgences, settlements and compromises as it may deem proper with respect to any of the indebtedness, liabilities and obligations covered by this guaranty, including the taking or releasing of security and surrendering of documents.
“In case of the death, dissolution, liquidation, failure, insolvency or bankruptcy of said Debtor, all of said indebtedness, liabilities and obligations, to the extent of the amount of this guaranty, shall, at the option of said Bank, become immediately due from, and be forthwith paid by the undersigned to said Bank, the same as though said debts, liabilities and obligations had matured by lapse of time.
“This guaranty shall be construed according to the laws of the State of _, in which state it shall be performed by the undersigned.
“This guaranty shall be binding upon the undersigned jointly and severally, and upon the heirs, legal representatives and assigns of the undersigned, and each of them, respectively, and shall' inure to the benefit of said Bank, its successors, legal representatives and assigns.
“Signed and Sealed by the undersigned at_, this_day of__, 19__ “_(SEAL)”
The two guaranty agreements executed in 1974 were by Dolores M. Bybee and Jack L. Bybee to enable Joe Biggs and Jan Biggs to obtain credit from the Bank. The agreements were of a continuing character allowing the Biggs to obtain extensions, renewals, and granting of additional credit without notice to the Bybees. The parties agree that the total of the amounts in the two 1974 agreements of $87,500.00 was guaranteed by the Bybees.
On April 29, 1975, the Articles of Incorporation of Biggs Feed & Grain were filed with the Secretary of the State of Kansas. Joe Biggs, Jan Biggs and Jack L. Bybee were the initial incorporators. Neither Jack L. Bybee or Dolores M. Bybee ever held stock in the corporation. The same day as the Articles of Incorporation were filed, the third guaranty agreement was executed by Joe Biggs, Jan Biggs, Jack L. Bybee and Dolores M. Bybee to enable Biggs Feed & Grain, Inc. to obtain credit for the amount of $150,000.00 from the Bank.
The trial court found from the uncontroverted facts: (1) under separate notes Joe Biggs and Jan Biggs had various outstanding balances due the Bank; (2) Joe Biggs’ and Jan Biggs’ obligations under the notes were consolidated into one corporate note one month after incorporation; (3) a third guaranty was executed by the Bybees and the Biggs on behalf of the debtor corporation; (4) a new named debtor came into existence, i.e., Biggs Feed & Grain, Inc.; (5) a new obligation existed, i.e., $67,000.00 principal with interest on the entire principal; and (6) there was an execution of a new security agreement and financing statement by the corporation for the Bank’s perfection of its security inter est. The proprietorship’s obligations were extinguished or paid by their becoming the new corporate debtor’s obligations. Dolores M. Bybee’s liability under the proprietorship guarantees ended.
A contract of guaranty is to be construed, as other contracts, according to the intention of the parties as determined by reasonable interpretation of the language used, in light of the attendant circumstances. After the intention of the parties or the scope of the guarantor’s undertaking has been determined by general rules of construction, the obligation is strictly construed and may not be extended by construction or implication. Trego WaKeeney State Bank v. Maier, 214 Kan. 169, Syl. ¶ 3. See also 38 C.J.S., Guaranty § 38, pp. 1177-1181.
A guarantor may be relieved of an obligation to pay if the debt is extinguished, if there is a valid release or discharge, if a claim against the guarantor is barred by the statute of limitations, or if there is a change in the original contract between the obligor and obligee. Bomud. Co. v. Yockey Oil Co., 180 Kan. 109, 113, 299 P.2d 72 (1956); Failing Co. v. Cardwell Investment Co., 190 Kan. 509, 516, 376 P.2d 892 (1962); First National Bank of Anthony v. King, 2 Kan. App. 2d 519, 520, 583 P.2d 389 (1978). The first two guaranty contracts listed Joe Biggs and Jan Biggs d/b/a Biggs Feed & Grain as the debtor; the business ceased to exist in that form when the Articles of Incorporation were filed. The same day the Articles of Incorporation were filed, a new guaranty contract was executed by the Biggs and the Bybees. The Biggs’ indebtedness to the Bank on the day of incorporation was less than $150,000.00 guaranteed by the third guaranty contract. A note consolidating all prior loans was executed by the corporation approximately one month after incorporation. The primary obligor on all loans from the Bank in June, 1975, was the Corporation. The third guaranty contract stated the guarantors were liable for the indebtedness of the corporation “whether now owing or due, or which may hereafter, from time to time, be owing or due, and howsoever heretofore or hereafter created or arising or evidenced, to the extent of One Hundred Fifty Thousand and no/100 —— Dollars, . . . .”
Under the law a corporation is a separate and distinct legal entity, Speer v. Dighton Grain, Inc., 229 Kan. 272, 624 P.2d 952 (1981), A corporation and its stockholders are presumed separate and distinct whether the corporation has many stockholders or just one. The debts of a corporation are not the individual indebtedness of its stockholders. Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 567 P.2d 1337 (1977). Joe Biggs was the sole stockholder of the Corporation. Dolores M. Bybee was not a stockholder, director or officer of the corporation, but a party to a guaranty agreement for debts of the Corporation not to exceed $150,000.00.
The trial court was correct in determining from the uncontroverted facts (1) that Mrs. Bybee was neither a partner nor an associate in the feed and grain business when she executed the two 1974 guaranty agreements; (2) a new debtor came into existence when the Corporation Succeeded the Biggs’ feed and grain business; (3) the third guaranty agreement was executed by the Biggs and the Bybees for obligations assumed by the Corporation and future credit to be advanced by the Bank for the Corporation; (4) the creation of the Corporation and the Bank’s consolidation of the Biggs’ notes into a new note by the Corporation extinguished the 1974 guaranty agreement for credit extended for the Corporation and could not exceed the sum of $150,000.00.
Appellant next contends that Ms. Bybee’s acts and statements caused either equitable estoppel or waiver of her rights.
After incorporation April 29, 1975, the Bank requested that Jack L. Bybee and Dolores M. Bybee file financial statements. Pursuant to the Bank’s request, the Bybees filed three financial statements dated December 31, 1975, December 31, 1977, and December 31, 1978.
Each financial statement was an unaudited statement prepared at the request of Jack L. Bybee. Ms. Bybee never saw the submitted statements, nor were the financial statements signed by either of the Bybees. Each statement listed two pre-incorporation guaranties totaling $85,000.00 (actual total $87,500.00) for credit given Joe and Jan Biggs, now operating as Biggs Feed é>- Grain, Inc. The December 31, 1975, financial statement reflected:
“Jack L. and Dolores M. Bybee have signed Loan Guaranty Agreements in support of a line of credit for Joe and Jan Biggs d/b/a Biggs Feed and Grain, now operating as Biggs Feed and Grain, Inc., Waverly, Kansas, in the amount of $85,000.00. At December 31, 1975, $105,619.29 was borrowed on this line of credit.”
The financial statements for the years ending December, 1977, and 1978, included the identical paragraph, with the exception of an indebtedness for the year endings of 1977 and 1978 in the amount of $142,810.00. The existence of the 1975 guaranty agreement for corporate debts not to exceed $150,000.00 was not included in any of the three financial statements submitted to the Bank.
In the three separate financial statements submitted, the Bybees, at the Bank’s request, stated the pre-incorporation guaranties were outstanding at the time of incorporation. The Bank contends by the declarations contained in the three financial statements Ms. Bybee has waived her right to contest the validity of the three loan guaranty agreements as applied to the defaulting corporation, and is estopped from so contending.
Estoppel bars a litigant from taking a position in court different from that previously asserted. Application of the doctrine of estoppel is appropriate where a guarantor attempts to avoid terms of a guaranty agreement, after the creditor has relied upon the enforceability of the guaranty in continuous dealings. Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightly relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Cosgrove v. Young, 230 Kan. 705, Syl. ¶ 6, 642 P.2d 75 (1981).
The trial court determined Ms. Bybee performed no act upon which the Bank could rely and thus assert equitable estoppel. Ms. Bybee had not read or signed the unaudited financial statements submitted at the Bank’s request; thus, there was no voluntary act' upon which the Bank could claim equitable estoppel.
The Bank claimed Ms. Bybee has voluntarily and intentionally renounced or given up a known right, or has caused or committed a positive act or inaction which is inconsistent with a contract right, and that her actions have precluded the assertion of a contractual right in a court of law. Waiver in contract law implies that a party has voluntarily and intentionally renounced or given up a known right, or has caused or done some positive act or positive inaction which is inconsistent with the contractual right. Proctor Trust Co. v. Neihart, 130 Kan. 698, 705, 288 Pac. 574 (1930), and cases cited therein. Once it has been established that a contractual right has been waived, a party possessing the contractual right is precluded from asserting it in a court of law. United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 526-27, 561 P.2d 792 (1977). The Bank claimed additional credit was extended to the corporation based on the financial statements it received from the Bybees, and Ms. Bybee’s failure to request release of the 1974 guaranty agreements when the corporation was formed constituted a waiver of her right to contest the enforceability of all the guaranty agreements. Ms. Bybee’s failure to act did not constitute estoppel or a waiver of her rights under the facts of this case.
The trial court was correct in finding there was no estoppel or that Dolores M. Bybee had not waived any contract right by her actions or inactions.
Appellant’s final claim is for attorney fees to compensate the creditor as provided by the guaranty contract.
Each guaranty agreement contained the following:
“[W]e jointly and severally also agree to pay in addition thereto, all costs, expenses and reasonable attorney’s fees at any time paid or incurred in endeavoring to collect said indebtedness, liabilities and obligations, and in and about enforcing this instrument.”
The trial court held that attorney’s fees provisions contained in the guaranty agreements were unenforceable under the Kansas law. Generally, attorney’s fees are not allowable as damages in the absence of a statute. Lines v. City of Topeka, 223 Kan. 772, Syl. ¶ 7, 577 P.2d 42 (1978).
K.S.A. 58-2312 provides:
“Hereafter it shall be unlawful for any person or persons, company, corporation or bank, to contract for the payment of attorney’s fees in any note, bill of exchange, bond or mortgage; and any such contract or stipulation for the payment of attorney’s fees shall be null and void; and that hereafter no court in this state shall render any judgment, order or decree by which any attorney’s fees shall be allowed or charged to the maker of any promissory note, bill or exchange, bond, mortgage, or other evidence of indebtedness by way of fees, expenses, costs or otherwise; Provided, That in all existing mortgages wherein no amount is stipulated as attorney’s fees, not more than eight percent on sums of two hundred and fifty dollars or under, and not more than five percent on all sums over two hundred and fifty dollars, shall be allowed by any court as attorney’s fees: And provided further, That this act shall not apply to existing mortgages wherein any sum has been stipulated as attorney’s fees.”
Our court has relied upon the statute when striking attorney’s fees in notes: Young v. Nave, 135 Kan. 23, 10 P.2d 23 (1932); Marksheffel-Sill Motors v. Popejoy, 135 Kan. 624, 11 P.2d 693 (1932); Leach v. Urschel, 112 Kan. 629, 212 Pac. 111 (1923), and mortgages: Hall v. Goldsworthy, 136 Kan. 247, 14 P.2d 659 (1932); Wingrove v. Peoples Nat’l Bank, 127 Kan. 722, 275 Pac. 150 (1929).
The Bank admits the evidence of indebtedness between the corporation and the Bank, the final note, falls within the prohibitions of attorney’s fees of K.S.A. 58-2312.
There are no Kansas decisions determining if K.S.A. 58-2312 bars enforcement of an attorney’s fee provision in contracts of guaranty of a note.
In Singer Co. v. Armstrong, 7 Kan. App. 314, 54 Pac. 571 (1898), the court addressed attorney’s fees payment under a contract the parties delineated as an employee’s bond. Armstrong had guarantied that if DeBray, a Singer employee, should fail to account for all proceeds, merchandise and stock sold on behalf of Singer, then Armstrong would make good such default to the extent of $500.00. The contract in the suit was:
‘“KNOW ALL MEN BY THESE PRESENTS, That we, E. R. DeBray, of Concordia, Cloud county, Kansas, and C. F. Armstrong, of Clyde, Kansas, obligors, are held and firmly bound unto the Singer Manufacturing Company, a corporation duly incorporated and organized under the laws of the state of New Jersey, doing business in the state of Kansas, and whose corporate existence and capacity to sue are hereby distinctly admitted, in the sum of $500.00, and ten per cent attorney’s fees, for the payment of which well and truly to be made to the said Singer Manufacturing Company, their successors, representatives, or assigns, without relief from appraisement, valuation, or stay laws, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly, by these presents. Sealed with our seals. Dated the 17th of October, 1892.
“‘The condition of the above obligation — which is expressly intended as a continuing guaranty — is such, that whereas, the above bounden E. R. DeBray has entered the employ of the said “The Singer Manufacturing Company,” for the transaction of such business as they may entrust to him: now, therefore, if the said E. R. DeBray shall well and faithfully perform his duties as such employee, and account for, pay over and deliver to the said company all moneys, credits, notes, leases, accounts, books, property and effects of any and every kind and nature whatsoever belonging to them, that may be entrusted to him, or may come into his possession or under his control by virtue of said employment or otherwise, and whether under or in the absence of any present or future contract, agreement, or understanding, verbal or written, or any change whatever therein, either with or without notice to either of said obligors other than the said employee, and repay to the said company all outlay and expense which it may incur in ascertaining the nature and extent of a violation of any of the conditions of this bond, then this obligation to be void; but otherwise to remain in full force and effect; and the said obligors hereby waive all right of homestead and other exemptions under the laws of said state, as against any judgment which may be obtained upon this obligation,”’ 7 Kan. App. at 319-20. Emphasis supplied.
The court held Armstrong had no liability under the parties’ contract. DeBray’s employment contract with Singer had changed several times since Armstrong’s execution of the above agreement. The court held these subsequent contracts of employment and the transfer of DeBray from the initial Concordia area to Missouri and then back into Kansas relieved Armstrong of his liability under the contract.
In Singer Co. v. Armstrong, 7 Kan. App. 314, the parties expressed their relationship as one of a continuing guaranty. Thus, Singer Co, was denied its right to recover attorney’s fees incurred in collection of the debt. The Court of Appeals held G.S. 1889, ch. 68, ¶ 3896 expressly prohibits a contract for payment of attorney’s fees in any note, bill, bond or mortgage and that such contract shall be null and void, and that no court after the passage of the act should render any judgment or decree by which any attorney’s fees should be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage or other evidence of indebtedness by way of fees, expenses, costs or otherwise, because the law forbids their allowance in any manner. 7 Kan. App. at 330-31.
Leach v. Urschel, 112 Kan. 629, arose out of the plaintiff, a holder in due course, suing on a note with an attorney's fees provision. The defendant asserted fraud, non-negotiability because of the open-ended interest provision and that the attorney’s fees provision rendered the note void. The court held the note negotiable even though the interest provision stated that the note would bear eight percent interest until paid with no definite maturity date on the note. The court, however, held the attorney’s fees provision void, but that particular provision’s voidness did not affect the negotiability of the note.
Wingrove v. Peoples Nat’l Bank, 127 Kan. 722, arose from the plaintiff suing the bank for the bank’s collection of attorney’s fees in its foreclosure suit against plaintiff. The jury verdict for the defendant was based upon the fact the fees were agreed upon by plaintiff in consideration for settlement of defendant’s foreclosure suit and forbearance by the defendant from imposing a ten percent interest penalty on the outstanding balance due the defendant by the plaintiff. Thus, the fees did not arise out of the collection of the note but in consideration and settlement of the parties’ dispute and were allowed.
In Marksheffel-Sill Motors v. Popejoy, 135 Kan. 624, the plaintiff sued on a note due plaintiff for a car sold to the defendant.. The defendant countered for breach of warranty, claiming that the interest on the note was usurious and the attorney’s fees provision void. The supreme court reversed the judgment for the plaintiff and remanded for a new trial because from the jury verdict form it was impossible for the court to determine if the jury awarded damages to the defendant and just simply set off that damage award against the balance due the plaintiff by defendant. The court did specifically hold that R. S. 1923 67-312 voids the provisions for attorney’s fees.
Young v. Nave, 135 Kan. 23, concerned several notes and foreclosure of an Indiana mortgage. Indiana law allowed the payment of .attorney’s fees in the notes. The Kansas Supreme Court held that such contractual provisions were in violation of the public policy of the State of Kansas, and when the parties sought to enforce their rights under the Indiana notes in the State of Kansas the statute prohibiting attorney’s fees controlled. Thus, it denied the plaintiff attorney’s fees as contracted for in Indiana. The court’s rationale is stated in 135 Kan. at 25:
“The attorney-fee provision affects certainty of the amount which a debtor who gives a note shall be required to pay, mulcts debtors for default on a sum not necessarily compensatory, and is capable of use by Shylock creditors to fleece necessitous debtors of small means.”
Hall v. Goldsworthy, 136 Kan. 247, arose out of plaintiff suing on a trust deed. The deed provided for payment of attorney’s fees incurred by the trustee in its collection if default occurred. The supreme court held the trust deed was a form of a mortgage. Therefore, it was held the attorney’s fees provision violated the law and the court denied the prayer for fees incurred.
From the above cases, it is clear that a guaranty agreement is distinct evidence of indebtedness between the guarantor, Dolores M. Bybee, and the Bank.
A suretyship relation is closely akin if not identical at times to that of a guaranty agreement:
“Suretyship is a contractual relation resulting from an agreement whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal. ... In the Restatement of Security suretyship is defined as the relation which exists where one person has undertaken an obligation and another person is also under an obligation or other duty to the obligee, who is entitled to but one performance, and as between the two who are bound, one rather than the other should perform.
“The surety’s obligation is said to be not an original and direct one for the performance of his own act, but rather accessory or- collateral to the obligation contracted by the principal, and except perhaps where the original contract is invalid from a disability to contract, it is of the essence of the surety’s contract that there be a valid obligation of the principal. But while the contract of a surety is, in a sense, accessory or collateral to a valid principal obligation contracted by another person either contemporaneously or previously, his obligation to the creditor or promisee of the principal is said to be direct, primary, and absolute; in other words, he is directly and equally bound with his principal.” 74 Am. Jur. 2d, Suretyship § 1, p. 12.
The above suretyship definition is in substance the same as the guarantor’s obligation set out in Bomud Co. v. Yockey Oil Co., 180 Kan. 109. It is distinct from an indemnity agreement. An indemnitor agrees to make whole the indemnitee who in turn had to pay the obligee. See Kennedy v. City of Sawyer, 228 Kan. 439, 454-55, 618 P.2d 788 (1980). The Chetopa State Bancshares, Inc. v. Fox, 6 Kan. App. 2d 326, 628 P.2d 249, rev. denied 229 Kan. 669 (1981), case relied upon by the Bank, is clearly inapplicable herein. It involved a hold/harmless indemnification clause and not a guaranty agreement. In the instant case, the guarantor or surety agrees to perform upon the breach of the principal. Signer Co. v. Armstrong, 7 Kan. App. 314; Bomud Co. v. Yockey Oil Co., 180 Kan. 109. K.S.A. 58-2312 prohibits attorney’s fees in any suit upon a bond and other evidence of indebtedness.
The Bank attempts to establish the guaranty agreement involved herein is neither a note, a bill of exchange, nor in any manner within the prohibitions of K.S.A. 58-2312. The guarantor, Ms. Bybee, unconditionally promised to pay the Bank $150,000.00 upon default of the principal, Biggs Feed & Grain, Inc. It is signed by Ms. Bybee, the guarantor, and it unconditionally promises to fully and promptly pay to the Bank at maturity and all times thereafter any and all indebtedness, lia bilities, and obligations of every nature and kind of the debtor, i.e., the Corporation, to the extent of $150,000.00.
The guaranty agreement in the instant case is analogous if not identical to the suretyship relation of Singer Co. v. Armstrong, 7 Kan. App. 314. The clear language of the evidence of indebtedness specifically states that guarantor is as liable as the principal to the Bank for all monies due the Bank not to exceed $150,000.00. Thus, the instant guaranty agreement between the parties falls within K.S.A. 58-2312, and the policy and rationale of Singer Co. v. Armstrong, 7 Kan. App. 314, and cases decided thereafter. The attorney’s fees provisions contracted for are in violation of K.S.A. 58-2312 and are therefore void.
The judgment of the trial court is affirmed. | [
-80,
-8,
-4,
-36,
26,
98,
57,
-102,
123,
-56,
37,
83,
-29,
114,
4,
121,
-57,
105,
-60,
98,
87,
-9,
55,
-24,
-46,
51,
-103,
-51,
-79,
91,
-28,
-44,
12,
16,
10,
85,
-26,
-62,
-63,
-100,
-84,
5,
107,
-8,
-44,
1,
48,
58,
20,
12,
53,
-122,
-9,
40,
61,
66,
96,
43,
107,
45,
88,
-15,
-82,
-123,
124,
83,
49,
38,
-126,
39,
-40,
14,
-112,
-79,
24,
-24,
123,
38,
-38,
-12,
107,
-103,
12,
54,
99,
67,
53,
-53,
-52,
24,
-50,
-33,
-67,
-57,
-110,
88,
99,
10,
-68,
-100,
112,
18,
-121,
116,
-1,
7,
27,
108,
17,
-118,
-108,
-125,
-83,
116,
30,
5,
-25,
-10,
-80,
97,
-51,
-88,
77,
71,
56,
19,
-57,
-15
] |
The opinion of the court was delivered by
Herd, J.:
This is a lawsuit alleging malicious prosecution of a civil action. Plaintiff appeals from the trial court’s order granting defendant’s motion for summary judgment.
On April 1, 1976, a medical malpractice lawsuit entitled Van Nover, et al. v. Wesley Medical Center, et al., was filed in Sedgwick County District Court. Attorneys for the plaintiffs in that action were Vern Miller; Fred Phelps, Chartered; and Adler, Barish, Daniels, Levin & Creskoff, a law firm of Philadelphia, Pennsylvania. The petition in that case alleged the Van Novers had been damaged by negligent treatment afforded Ms. Van Nover and her child by the defendants, which included R. A. Nelson, M.D.
Dr. Nelson’s attorney in the case was William Tinker, Sr., of Wichita. Mr. Tinker had been employed by the Medical Protective Company, Nelson’s insurance carrier, with Nelson’s knowledge and consent. Tinker felt strongly Dr. Nelson was not guilty of malpractice and thus attempted to get the case dismissed. At a hearing held September 29, 1977, Tinker requested the Van Novers’ attorneys agree to a dismissal as to Dr. Nelson. Phelps and Adler, although wary of the prospect of a future lawsuit alleging malicious prosecution of a civil action brought by Nelson, consented. They also requested Tinker to waive the six-month limitation period for commencing a new action against Dr. Nelson contained in K.S.A. 60-518. The resulting order of dismissal read as follows:
“On September 29, 1977, counsel for all parties being present before the Honorable Howard C. Kline, Administrative Judge, the plaintiffs moved to dismiss without prejudice this action as to the defendant R. A. Nelson, M.D.
“Counsel for said defendant, R. A. Nelson, M.D., stipulated that if, after further discovery and for good cause, the plaintiffs would seek to re-join said R. A. Nelson, M.D. as a defendant herein, the bar of K.S.A. 60-518 would not be raised against such rejoinder if the same was sought to be made more than six months from the entry of this order of dismissal.
“Said motion to dismiss is sustained and said stipulation is accepted and,
“This cause shall be and the same is hereby dismissed without prejudice as to the defendant R. A. Nelson, M.D.”
This order was filed October 10, 1977.
In the meantime, Dr. Nelson began looking into a possible lawsuit against the Van Novers’ attorneys. Toward that end Nelson hired Jerry Levy on approximately July 6, 1977, “To look at the case and see if there was merit . . . .”
After extensive discovery, counsel for the remaining defendants in Van Nover filed motions for summary judgment. These motions were granted April 18, 1978, with respect to all remaining defendants. That summary judgment was later affirmed by the Court of Appeals in an unpublished opinion and a petition for review was denied. Opinion No. 50,109 filed June 29, 1979; rev. denied 226 Kan. 793.
Following the entry of summary judgment in the medical malpractice action Dr. Nelson filed an action in Shawnee County District Court against the present defendants who were the attorneys of record for the plaintiffs in Van Nover, et al. v. Wesley Medical Center, et al. Nelson alleged malicious prosecution of a civil action and negligence. The defendants filed motions to dismiss which were sustained. Dr. Nelson appealed to this court, which overturned the dismissal of his claim for malicious prosecution of a civil action. In Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980), (Nelson I), this court pointed to the “scanty record” before the trial court at the time the motions to dismiss had been granted and remanded the case “to permit the parties to proceed with discovery so that the facts may be developed and the rights of the parties determined as to the plaintiff s claim for malicious prosecution of a civil action.” 227 Kan. at 289.
After the opinion in Nelson I, Fred Phelps filed a counterclaim against Dr. Nelson and a third party petition joining Jerry Levy as an additional party defendant to the counterclaim against Dr. Nelson.
On remand the trial court held a hearing to determine the precise nature of the circumstances surrounding the dismissal of the Van Novers’ original malpractice action. Afterward, the appellees herein again moved for summary judgment. The trial court sustained the motion, stating:
“Based upon the above findings of fact this Court can only conclude that the termination of the prior proceeding was not a favorable termination as is an essential element to an action for malicious prosecution under the circumstances of this case. Under the facts, the Court finds that the termination was indecisive as it was obtained pursuant to an agreement of compromise, Dr. Nelson having received and retained the full benefits of the agreement as set forth in the findings of fact. Under the findings of fact Dr. Nelson also obtained a dismissal by improper conduct on his part in not notifying counsel for the plaintiffs in the Van Nover case at the time of obtaining the dismissal that he intended to bring this action as soon as feasible and in fact, had retained counsel to do so.
“Therefore, there being no genuine issue as to any material fact as to the termination question, defendants are entitled to summary judgment thereon. Said termination was indecisive for the reasons stated in this decision, and not favorable to Dr. Nelson. Further, because favorable termination is an essential element to plaintiff s claim, defendants are entitled to summary judgment as a matter of law as to the entirety of plaintiff s suit herein.”
Dr. Nelson has appealed.
This appeal is solely concerned with the propriety of the trial court’s holding the dismissal of Nelson in Van Nover v. Wesley Medical Center was not a termination of the case favorable to Dr. Nelson. The larger issue divides into two parts: (1) Did the trial court err in reexamining the favorable termination issue; and (2) are there genuine issues of material fact remaining unresolved?
Nelson first contends the trial court erred in reexamining the favorable termination question. Discussion of this issue requires a brief review of this court’s opinion in Nelson I. As mentioned that case was an appeal from the trial court’s order dismissing Dr. Nelson’s petition against appellee. The record before the trial court consisted of four documents: (1) Dr. Nelson’s amended petition; (2) the plaintiff s petition in Van Nover v. Wesley Medical Center; (3) the order dismissing the Van Novers’ petition; and (4) the decision granting summary judgment to the remaining Van Nover defendants.
In its opinion in Nelson I this court first noted the elements a plaintiff must prove to be successful when alleging malicious prosecution of a civil action:
“(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.
“(b) That the defendant in so doing acted without probable cause.
“(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
“(d) That the proceeding terminated in favor of the plaintiff.
“(e) That the plaintiff sustained damages.” 227 Kan. at 276.
In discussing item (d), the court noted:
“Civil proceedings may be terminated in favor of the person against whom they are brought by (1) the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of his failure to prosecute them. A favorable adjudication may be by a judgment rendered by a court after trial, or upon demurrer or its equivalent. Whether a withdrawal or an abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are brought and whether the withdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn. Restatement [(Second) of Torts] § 674, comment j [1976].” 227 Kan. at 280.
After citing Marbourg v. Smith, 11 Kan. *554, *562-63 (1873), we held: “It is thus the law that a voluntary dismissal of the prior action without prejudice may be a termination in favor of the person against whom the action was brought.” 227 Kan. at 281.
Later we reached the following conclusion:
“[T]he dismissal of the plaintiffs first claim based on the theory of malicious prosecution of a civil action was improperly granted. The allegations of the plaintiff s petition are set forth above. That petition clearly alleges the essential elements of an action for malicious prosecution. It is clearly alleged that the defendant attorneys initiated and continued the prior medical malpractice proceeding against the plaintiff in Sedgwick County without probable cause and with malice and that the action terminated in plaintiffs favor on October 10, 1977, which was the day the action was dismissed without prejudice as against Dr. Nelson. . . .”
“[W]e reject the contention of the defendants that by procuring a stipulation and order of dismissal, Dr. Nelson is barred from bringing an action for malicious prosecution because there has been no termination in his favor. As noted above, a voluntary dismissal of the prior action without prejudice under Kansas law may be a termination in favor of the defendant in that action, if the action is not commenced again.” 227 Kan. at 285-86.
Thus, the case was remanded to the trial court “to permit the parties to proceed with discovery so that the facts may be developed and the rights of the parties determined as to plaintiff s claim for malicious prosecution of a civil action.” 227 Kan. at 289.
When seen against the background of Nelson I it becomes clear appellant’s first issue is without merit. In Nelson I the court stated a dismissal without prejudice may be a termination in favor of the defendant in that action. Whether that dismissal is in fact a termination favorable to the defendant depends upon “the circumstances under which the proceedings are withdrawn.” 227 Kan. at 280. Thus, the trial court on remand held a hearing to determine the facts surrounding Dr. Nelson’s dismissal as ordered in Nelson I.
The favorable termination issue was not finally decided in Nelson I. The trial court acted properly in hearing evidence concerning the question.
Appellant next contends the trial court erred in granting summary judgment because several facts material to the favorable termination issue were controverted.
It is axiomatic summary judgment is not warranted where the record reflects genuine issues of fact remain. “Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Panhandle Agri-Service, Inc. v. Becker, 231 Kan. 291, 295, 644 P.2d 413 (1982). Further, in considering a motion for summary judgment, the party against whom the motion is directed is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 341-42, 624 P.2d 971 (1981).
The decision to dismiss the action against Dr. Nelson was made by the Van Novers’ attorneys on September 29, 1977. A discovery conference was held in the office of Judge Howard C. Kline at which time the issue was discussed. The discussion was not recorded. Those present were William Tinker, Sr., attorney for Dr. Nelson and his insurance carrier; Fred Phelps, Sr., Avram Adler and David Rapp, attorneys for the plaintiffs; and Darrell D. Kellogg and Gerald L. Michaud, attorneys for the other defendants. What occurred at that meeting provides the evidence with regard to the circumstances under which the proceedings against Dr. Nelson were withdrawn. Out of this evidence must come the answer to the ultimate question of whether the proceedings were terminated in favor of Dr. Nelson. For the moment, however, an examination of the evidence also settles the issue as to whether summary judgment was proper.
Since Dr. Nelson is the party against whom the motion for summary judgment was made he is entitled to the benefit of all reasonable inferences from the evidence. It is thus unnecessary to discuss in detail the evidence supporting the. trial court’s holding the dismissal was a result of compromise. Nevertheless, we will present a brief summary of that evidence.
Mr. Adler of the Philadelphia law firm testified by affidavit Tinker told him the dismissal of Dr. Nelson would not be the basis for a subsequent lawsuit brought by Dr. Nelson. Adler said he agreed to the dismissal conditioned upon the right to reinstate the lawsuit within six months.
Mr. Rapp, in spite of having only a sketchy recollection of the meeting, testified he wrote a memo after the meeting which indicated Tinker had expressed his opinion the Van Novers had probable cause to file the original suit against Dr. Nelson.
Finally, Mr. Phelps testified he never felt the need to specifically ask Tinker if he was going to file suit on'behalf of Dr. Nelson because of Tinker’s “assurances.” Phelps said that in response to a question regarding the possibility of Nelson filing suit he remembered Tinker answered,- “He better not because he wouldn’t have any case if he did.” Phelps also testified he would not have agreed to dismiss the suit had Tinker refused to waive the six month statute of limitation.
The evidence supporting Dr. Nelson’s argument the dismissal was solely a result of the lack of evidence against him must be examined in more detail.
Mr. Tinker testified by affidavit:
“It was well known to all of the attorneys representing the Van Nover plaintiffs that in behalf of Dr. Nelson, I was insisting and maintaining that no facts had been developed or would be developed to establish any cause of action against Dr. Nelson. The Honorable Howard C. Kline, District Judge, had taken responsibility for the management of the case. At a hearing before him on September 29, 1977, counsel for all parties being present, I verbally restated a demand that Dr. Nelson be dropped from the case. Fred W. Phelps and A. G. Adler were personally present as attorneys for the plaintiffs. Darrell D. Kellogg and Gerald L. Michaud were personally present, representing defendants other than Nelson. David Rapp also was present for the plaintiff. The affiant had become acquainted with Mr. Adler at the taking in Philadelphia of the deposition of a Dr. Kalodner, listed as a plaintiff s expert witness. At the hearing before Judge Kline, Mr. Adler asked the affiant if I thought that Dr. Nelson would bring suit against him and the other attorneys for the plaintiffs when Dr. Nelson was dismissed from the case. It was evidence to all parties, and their counsel that no case had been made against Dr. Nelson and that the Court was likely to enter an order of dismissal as to Dr. Nelson. The affiant answered Mr. Adler’s request by stating that he did not know whether Dr. Nelson would bring suit against the attorneys or not, adding that if Dr. Nelson did so, he would have other attorneys than the affiant.
“At no time did the affiant state, represent, or imply that Dr. Nelson would not bring suit when he was dismissed from the Van Nover case. The affiant did not know and had not been consulted by Dr. Nelson in any way.
“After the affiant made the statement above referred to, to Mr. Adler, the plaintiffs’ attorneys agreed to a dismissal by them, and entered in favor of Dr. Nelson. The plaintiffs’ attorneys did then ask the affiant if a provision could be inserted in the Journal Entry to the effect that Dr. Nelson could be reinstated in the case if bonafide facts were developed later, and during the pendency of the Van Nover case against the other defendants. The affiant was sure that no such facts would ever be developed and agreed to the request.”
Darrell Kellogg also recalled the meeting by affidavit:
“The affiant recalls that at the beginning of the discovery conference, Judge Kline pressed plaintiffs’ counsel as to whether or not they had any further evidence in their claim against Dr. Nelson and it was the affiant’s impression that Judge Kline would probably have sustained a motion for summary judgment at that time. In any event, affiant remembers that plaintiffs agreed to dismiss the case and in a discussion before Judge Kline as to whether or not the case could be refiled, there was a statement by Mr. Tinker, Sr., that he would waive the six (6) months refiling in the event that plaintiffs ever were able to produce any evidence in support of plaintiffs’ claim against Dr. Nelson. After that statement, Mr. Tinker, Sr. left the conference.”
Finally, there is the following testimony by Mr. Phelps:
“Q. (By Mr. Levy) I said, as of September 29th, 1977, did you have one shred of evidence in any way, shape or form that Dr. Nelson did anything that caused any injury to the Van Nover child?
After a statement about Dr. Nelson prescribing Tussionex, Phelps stated:
“A. The evidence I had was that Dr. Romebach, as I recall it, not only identified Tussionex as far as the record went, but also said that the baby has probable or possible, or some language, brain damage.
“Now, that’s the evidence we had going in, as I knew it, as of September the 29th. We had just taken Kalodner’s deposition, and I understood, although I wasn’t there, Adler and those guys took it, that he extricated Dr. Nelson; that is, he exonerated him. He didn’t identify him as being the culprit, and that the deposition of Dr. Weber on September the 28th, as I understood it, although I wasn’t there, tended to exonerate Nelson, and that the deposition of Dr. Romebach that morning were apparently, according to my information, I wasn’t there, she kind of waffled.
“Now, that was what was confronting me, and I had no desire to continue to prosecute Nelson if all of our suspicions apparently had not panned out, and that’s the reason that I agreed with him, with that caveat, that if further discovery reimplicated him that he would not raise the bar of the six months statute of limitations to being brought back into the cáse.”
“Q. Well, isn’t it true, sir, that before Dr. Kalodner was deposed, despite your remarks to the Court here this morning, that you had a report from him which in no way implicated Dr. Nelson?
“A. Well, Dr. Kalodner was not my expert. I have never seen him. The Adler firm was handling this litigation. I hired them to handle this because they’re experts, and they hold themselves out to be in the field. They hired Dr. Kalodner. They had all the dealings with him. I never talked to him once.
“Now, I don’t remember exactly what his written report said, whether it implicated Dr. Nelson or not. I know that the lawyers that I was relying on gave me full assurance that we had sued the right people and that at least up to that point Nelson still ought to be in that case.
“Now, what happened between that time and the time that Kalodner testified, I don’t know, but my understanding after Kalodner testified was that we should no longer keep Nelson in the case, at least as far as his testimony was concerned.”
Later Levy tried to pin Phelps down regarding the reason for Dr. Nelson’s dismissal:
“Q. Well, you let him out because you had no evidence against him, didn’t you Mr. Phelps?
“A. We let him out for the exact reasons I have told you: That he had been in 18 months, and the experts we were relying on had apparently exonerated him, and we had no desire to continue to prosecute the case against him in the face of his importunity, requesting that we let him out.”
Phelps further attempted to explain how the appellant’s attor neys were disappointed in the testimony of Dr. Romebach, an expert witness:
“Q. (By Mr. Davis) Mr. Phelps, you mentioned, you used the term in your testimony of waffle or waffled. I don’t have a definition of that word. Would you tell us what you mean by that?
“A. I think I said that my understanding of Dr. Romebach’s deposition, they brought her down there, and that is the doctor who apparently was working at Wesley at the time of the treatment of this child, and she now later was working at Menninger’s, and so the defendants brought her to Wichita so they could get her deposition out of the way at their convenience while Mr. Adler was in town to take it on the morning of September the 29th, 1977.
“I wasn’t there, and my understanding of it was that we were depending on her to show two things; first, that Tussionex was the suspicious causative agent for the convulsions or at least part of the baby’s distress; and second, that her notation about him having brain damage would be enlarged upon, and my understanding is that she went back on that.
“By waffle, I mean she didn’t come forth either strongly for, or she qualified and explained away the entries that were in the medical records about the Tussionex being the causative agent and/or cause of the brain damage.
“Q. Now, tell the Court please who that woman was by description.
“A. Well, maybe it’s Jean. I forget her first name. Romebach is her last name. As I say, I wasn’t there. I didn’t hear her, but Adler had been talking to Tinker apparently about the results of it, and that was the basis for their conversation regarding letting Dr. Nelson out of the case at that stage. She was treating that baby.
“Q. And did you not hear Mr. Adler say something to the effect that in view of her changing her testimony of his feeling that she had changed her testimony that he thought Dr. Nelson should then be dismissed from the case?
“A. Well, I can’t say that I have an independent recollection of that. I’m trying to recall from my memory exactly the words.
“They were generally talking about those depositions that had been taken of Kalodner just a month before. Weber’s was the day before and Romebach’s that morning. I couldn’t tell you that he didn’t say exactly those words, Charles. I just don’t have an independent recollection of that.
“Q. Do you remember Mr. Adler making some comment to the effect, since she gave different testimony than what he had expected that he was willing to recommend dismissing against Dr. Nelson?
“A. I remember talking along that line. My only hesitancy is whether he specifically used the name Romebach at the time. At the time, he was talking about our expert, and it could have been Kalodner or Romebach as far as my independent present recollection goes.”
From the foregoing it is clear there are two different versions of what happened at the September 29,1977, meeting. Appellees argue the dismissal of the case against Dr. Nelson was the result of a compromise reached that day. Indeed, there is evidence from which a jury could have found such was the case. If the dismissal was the result of compromise it was not a sufficient termination to meet the requirements of a cause of action for malicious prosecution of a civil proceeding. Restatement (Second) of Torts § 660(a); § 674, comment j (1976).
On the other hand, Dr. Nelson and his attorney argue the dismissal resulted from the appellee’s realization they had no case against him. Again, there is evidence from which a jury could have found this to be the case. If so the dismissal would certainly have been a termination in favor of Dr. Nelson.
Clearly, the material facts regarding the question of whether the dismissal of the Van Novers’ lawsuit against Dr. Nelson was terminated in his favor were in substantial dispute, particularly when viewed in the light most favorable to Dr. Nelson as required in considering a motion for summary judgment. As such, a question for the jury is presented. We hold the trial court erred in granting the appellee’s motion for summary judgment.
The judgment of the trial court is reversed and the case is remanded for trial.
Holmes and Lockett, JJ., not participating. | [
-80,
-24,
-44,
14,
8,
107,
48,
2,
83,
-77,
-9,
115,
-89,
-23,
13,
125,
71,
125,
-47,
115,
-9,
-77,
87,
0,
-14,
-109,
-48,
-57,
-15,
-49,
-12,
-33,
76,
56,
-126,
-43,
-122,
66,
-55,
80,
-58,
4,
-87,
-28,
81,
10,
48,
59,
82,
3,
49,
62,
-79,
43,
63,
-29,
40,
40,
123,
-87,
89,
-79,
-119,
13,
125,
50,
-95,
38,
26,
39,
90,
62,
-104,
-80,
0,
-24,
114,
-74,
-62,
117,
103,
-55,
0,
118,
98,
35,
85,
-19,
104,
-100,
15,
31,
15,
-89,
-77,
72,
-117,
15,
-73,
-66,
118,
16,
11,
-24,
111,
-35,
27,
44,
0,
-118,
-108,
-69,
-65,
-16,
12,
43,
-29,
-121,
52,
117,
-123,
-16,
94,
84,
51,
59,
-98,
-108
] |
The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the prosecution from the district court’s dismissal of the driving under the influence of intoxicating liquor (K.S.A. 8-1567) charge against defendant Wayne Ward.
The facts may be summarized as follows: On January 27, 1982, a state trooper was advised by a motorist of an automobile stuck in a ditch beside old Highway 40 in Dickinson County. The trooper proceeded to the described location and observed the referred-to vehicle. The automobile’s engine was running and the lights were on. Defendant was behind the steering wheel in what appeared to the trooper to be a highly intoxicated condition. A single empty beer can was in the vehicle and no other containers for alcoholic beverages were in or near the vehicle. There were no passengers in the vehicle or other vehicles in the vicinity. Further, there were no businesses purveying alcoholic beverages in the area. The rural location was 15 miles from defendant’s home.
The trooper was soon joined by two fellow troopers who formed like impressions of defendant’s intoxicated condition. In investigating the scene the officers noted fresh spin marks in the mud by the vehicle’s rear tires. These tire tracks were visible in the mud and could be followed from the ditch up to and across a private residential yard and then to a gravel road. This road connected to old Highway 40, but the vehicle’s path could not be followed on the hard surface. The road was described as being “L” shaped. Apparently the short side of the “L” intersects old Highway 40 with the long side running parallel to said highway. The road ends at the residential yard. The vehicle was mired in the ditch between the yard and the highway.
Defendant was charged with driving under the influence of intoxicating liquor (K.S.A. 8-1567) and was convicted thereof in a trial before a district magistrate judge. Defendant appealed his conviction to the district court. Prior to trial the court granted defendant’s motion in limine and directed the State could not introduce any evidence of “the level of intoxication, the physical condition, or the appearance of the defendant Wayne Ward at the time of his arrest.” The motion in limine was granted on July 30,1982. Jury trial was already scheduled for August 4, 1982. Qn August 3, 1982, the trial court sustained defendant’s Motion for Directed Verdict and dismissed the case. Obviously this was a misnomer as a verdict may not be directed in contemplation of a future jury trial. In actuality, the trial court was simply dismissing the complaint based on its conclusion the State could not prevail with virtually all of its evidence excluded. The dismissal is appealable pursuant to K.S.A. 22-3602(h)(l).
The State has duly perfected this appeal which encompasses the propriety of the in limine ruling ultimately resulting in the dismissal of the case. The parties agree that jeopardy had not attached at the time of the dismissal and that double jeopardy is not an issue herein.
The State contends the trial court abused its discretion in holding all evidence pertaining to defendant’s intoxication at the time of arrest was inadmissible. We agree.
This court has consistently held a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Morton, 230 Kan. 525, 530, 638 P.2d 928 (1982); State v. Henderson, 226 Kan. 726, 731, 603 P.2d 613 (1979); State v. White & Stewart, 225 Kan. 87, 99, 587 P.2d 1259 (1978); State v. Johnson, 223 Kan. 185, 187, 573 P.2d 595 (1977).
Specifically, this court has held a driving under the influence of intoxicating liquor conviction may be sustained although based solely on circumstantial evidence. State v. Fish, 228 Kan. 204, 612 P.2d 180 (1980); State v. Dill, 182 Kan. 174, 319 P.2d 172 (1957); and State v. Hazen, 176 Kan. 594, 272 P.2d 1117 (1954).
In State v. Dill, 182 Kan. 174, an issue was raised as to whether the trial court erred in refusing to discharge the defendant. The applicable general rule was stated as follows:
“[T]he established rule in a circumstantial case is that it is the function of this court, as well as of the trial court, to find whether there is a basis in the evidence for a reasonable inference of guilt. (State v. Mitchell, 181 Kan. 193, 196, 310 P.2d 1063 [(1957), 68 A.L.R.2d 895], and cases therein cited.)” p. 175.
The State had no evidence as to the time defendant’s vehicle drove into the ditch. For reasons not readily apparent in the record, the trial court concluded this was a fatal defect in the State’s case which rendered all evidence of defendant’s intoxication observed by the troopers inadmissible. The defendant admits that a claim of remoteness between the condition of the defendant at the time of the interview with the state troopers and the time of the accident goes to the weight of the evidence presented and not to its admissibility. This is in accord with State v. Parson, 226 Kan. 491, 601 P.2d 680 (1979). It should be noted that the defendant was still behind the steering wheel of the running vehicle when observed by the troopers. This is not a situation where all operation of the vehicle had ceased and defendant had left the scene as in State v. Betts, 214 Kan. 271, 519 P.2d 655 (1974).
The defendant’s automobile, in which he was the sole occupant, had obviously travelled down a gravel road, across a private residential yard, and then became mired in a muddy ditch while apparently seeking entry onto the highway. One inference might be that, piqued by this distressing turn of events, the previously sober defendant then proceeded to become highly intoxicated by quaffing the single available can of beer. A perhaps more likely inference might be that defendant was already under the influence of intoxicating liquor when he drove his vehicle on the erratic sojourn which terminated in the muddy ditch. When found by the trooper, defendant was behind the steering wheel with the engine running and lights on. Only the mud in the ditch was apparently preventing further movement of the vehicle.
We conclude the trial court abused its discretion in excluding the testimony of the troopers as to defendant’s intoxication at the time of arrest. Under the circumstances herein, such evidence is clearly admissible and any argument must be confined to the weight to be ascribed thereto by the trier of fact.
Having concluded the trial court erroneously excluded the troopers’ evidence of intoxication, we must, of necessity, further conclude that it was error to dismiss the case herein prior to trial.
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion. | [
-16,
-22,
-39,
-116,
10,
96,
35,
24,
84,
-9,
-12,
87,
-81,
-62,
5,
49,
-22,
-65,
116,
105,
-29,
-74,
87,
1,
-42,
-13,
90,
-49,
-105,
-53,
100,
-32,
13,
-16,
-117,
21,
38,
72,
-123,
-36,
-114,
4,
-71,
-16,
82,
-102,
-72,
107,
-122,
15,
49,
15,
-42,
42,
24,
-29,
41,
104,
-53,
45,
-8,
-16,
-55,
-107,
-1,
6,
-95,
0,
-100,
1,
88,
63,
-107,
49,
72,
-8,
123,
-74,
-124,
-12,
47,
-103,
-116,
38,
98,
33,
21,
-49,
-83,
-88,
12,
-66,
-99,
-89,
-104,
25,
105,
32,
-106,
-99,
119,
54,
15,
-4,
-21,
5,
89,
108,
-121,
-53,
48,
-111,
73,
48,
18,
87,
-53,
-91,
50,
113,
-121,
-42,
94,
85,
80,
27,
-121,
-110
] |
The opinion of the court was delivered by
Miller, J.:
The Board of Regents and Pittsburg State University appeal from a decision of the Shawnee District Court affirming orders of the Public Employee Relations Board in three cases arising under the Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq. All three cases relate to prohibited practices charges which arose during attempted employer-employee negotiations pursuant to the Act.
The appellants are the Board of Regents (the Regents) and Pittsburg State University (the University). Appellees are the Pittsburg State University Chapter of the Kansas-National Education Association (KNEA) and the Public Employee Relations Board (PERB). The Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq., will be referred to as “the Act” or as “the PEER Act.”
The principal issues presented are the proper scope of judicial review of PERB orders; whether the Board of Regents is the “public employer” of the Pittsburg State University faculty under the Act; whether PERB properly interpreted the duration clause in a contract; and the correctness of PERB’s findings as to the proper subjects of mandatory negotiations between the employer and a recognized employee organization pursuant to the Act. Before taking up the specific issues involved in this appeal, we shall first discuss the Act and then the facts surrounding each of the cases giving rise to this appeal.
The Public Employer-Employee Relations Act was enacted by the 1971 Legislature and became effective on March 1, 1972. The first section of the Act, K.S.A. 75-4321, sets forth the legislative policy and the purposes of the Act. It reads:
“(a) The legislature hereby finds and declares that:
“(1) The people of this state have a fundamental interest in the development .of harmonious and cooperative relationships between government and its employees;
“(2) the denial by some public employers of the right of public employees to organize and the refusal by some to accept the principle and procedure of full communication between public employers and public employee organizations can lead to various forms of strife and unrest;
“(3) the state has a basic obligation to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government;
“(4) there neither is, nor can be, an analogy of statuses between public employees and private employees, in fact or law, because of inherent differences in the employment relationship arising out of the unique fact that the public employer was established by and is run for the benefit of all the people and its authority derives not from contract nor the profit motive inherent in the principle of free private enterprise, but from the constitution, statutes, civil service rules, regulations and resolutions; and
“(5) the difference between public and private employment is further reflected in the constraints that bar any abdication or bargaining away by public employers of their continuing legislative discretion and in the fact that constitutional provisions as to contract, property, and due process do not apply to the public employer and employee relationship.
“(b) Subject to the provisions of subsection (c) [relating to public employers other than the state and its agencies], it is the purpose of this act to obligate public agencies, public employees and their representatives to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law. It is also the purpose of this act to promote the improvement of employer-employee relations within the various public agencies of the state and its political subdivisions by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice, or to refrain from joining, and be represented by such organizations in their employment relations and dealings with public agencies.”
The Act extends to all persons employed by the State of Kansas and its agencies, except supervisory employees, professional employees of school districts, elected and management officials, and confidential employees. The Act is administered by the five-member Public Employee Relations Board which is empowered to make rules' and regulations, establish procedures for the prevention of improper public employer and employee practices, hold hearings and enforce the attendance of witnesses and the production of documents, conduct employee elections, and determine recognized employee organizations and hear and determine controversies concerning prohibited practices.
The Act, as provided in K.S.A. 75-4321(&), imposes upon public employers and recognized public employee organizations the obligation “to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment.” The Regents and the University contend that the Act is solely a “meet and confer act,” which is the most limited kind of interchange in labor relations. KNEA and PERB, on the other hand, argue that the legislature has expressly rejected limiting the Act and that it is a “collective negotiations act.” Professor Raymond Goetz, in his most informative analysis of the Act, The Kansas Public Employer-Employee Relations Law, 28 Kan. L. Rev. 243, 282-87 (1980), describes both types of proceedings and concludes that “the Act in substance provides a 'hybrid’ combining some characteristics of pure meet and confer with other characteristics of collective bargaining.” We agree. “Meet and confer” acts basically give the public employee organizations the right to make unilateral recommendations to the employer, but give the employer a free hand in making the ultimate decision recommending such proposals. The Kansas Public Employer-Employee Relations Act, on the other hand, imposes mandatory obligations upon the public employer and the representatives of public employee organizations not only to meet and confer, but to enter into discussions in good faith with an affirmative willingness to resolve grievances and disputes and to promote the improvement of employer-employee relations. K.S.A. 75-4321(b); K.S.A. 1982 Supp. 75-4327(b); K.S.A. 75-4333(b)(5) and (c)(3). “Meet and confer in good faith” is defined in K.S.A. 75-4322(m) as follows:
“ ‘Meet and confer in good faith’ is the process whereby the representative of a public agency and representatives of recognized employee organizations have the mutual obligation personally to meet and confer in order to exchange freely information, opinions and proposals to endeavor to reach agreement on conditions of employment.” (Emphasis added.)
We conclude that the Act is not a strict “meet and confer” act nor is it a “collective negotiations” act, but as Professor Goetz has stated, it is a hybrid containing some characteristics of each. However it be designated, the important thing is that the Act imposes upon both employer and employee representatives the obligation to meet, and to confer and negotiate in good faith, with affirmative willingness to resolve grievances and disputes, and to promote the improvement of public employer-employee relations.
The three cases presented to PERB, out of which these appeals arose, are designated as “case 20,” “case 21,” and “the 1982 case.” The first two arose in 1980. The University, the Regents and KNEA entered into written agreements for the academic years 1978-1979 and 1979-1980. Both of these agreements contained a “duration clause” which, for the 1979-1980 academic year, reads as follows:
“This Agreement shall become effective August 1, 1979, and shall terminate on July 31, 1980.
“On or before January 1, 1980, either party may notify the other that it desires to modify the agreement. In such event, the parties shall begin on or after January 7, 1980, to meet and confer with respect to a successor agreement.
“The Association and the University agree that should either legislation or policy changes occur during the term of this Agreement that would permit modification of this Agreement, meeting and conferring on the topic involved may occur following such a request by either party to resume discussions.”
The earlier agreement contained an identical clause except for the relevant dates.
January 1, 1980, passed without notification by either party that it desired to modify the agreement. Within a week, the president of the University disbanded the employer’s negotiating team with instructions that they should expect to meet with KNEA on salary matters when legislative appropriations were decided, perhaps in mid-April. The University and the Regents contend that under the contract, notification prior to January 1, 1980, was mandatory in order to provide for negotiations for a successor agreement. KNEA, on the other hand, argues that the January 1 date was not intended as a mandatory deadline but that the date was a cut-off date for any modification of the then-operating 1979-1980 agreement. On January 25, 1980, KNEA, unaware of appellants’ interpretation of the duration clause and of the disbanding of the employer’s negotiating team, formally requested an opening of negotiations for a successor agreement for the 1980-1981 academic year. Various exchanges of corre spondence followed and on March 28, 1980, the parties held a meeting at which time KNEA submitted a number of non-salary proposals. It asked for a response from the employer’s negotiating team. None was forthcoming and the KNEA team indicated that it would not return to the bargaining table until it received the employer’s proposals. The University then filed a prohibited practice charge with PERB, contending that KNEA had violated K.S.A. 75-4333(c)(3) by imposing preconditions to future sessions. This charge was dropped when representatives of the parties agreed that they would not attempt to impose preconditions to future sessions.
The parties returned to the table on May 29,1980. At this time the employer’s team presented written proposals covering salary and other matters. On the cover page of the proposal appeared the following:
“NOTE: Because neither party notified the other of the desire to modify their existing agreement before January 1, 1980, meeting and conferring is limited to topics related to legislative or policy changes. This proposal is submitted only on the specific understanding that it be acknowledged by KNEA that Pittsburg State University reserves the right to limit topics for meeting and conferring to those relating to legislative and policy changes.”
KNEA saw this Note as a precondition to future negotiations, fearing that if KNEA proceeded with negotiations in the face of this notice, it would be giving up the right to factfinding and mediation. At one of the subsequent meetings, one of the employer representatives indicated that the purpose of the Note was to acknowledge the employer’s contractual right under the duration clause to avoid impasse and factfinding proceedings on non-salary items. This was unacceptable to KNEA. It then proposed that the parties sign a written memorandum of understanding, continuing the 1979-1980 contract for another year unless the parties could reach a different agreement. This was unacceptable to the University and the Regents. The negotiations were thus stalled. KNEA then filed a prohibited practice charge with PERB, “Case 20,” alleging that the Regents, acting through the University, had violated K.S.A. 1982 Supp. 75-4327(b) by failing to meet and confer in good faith; K.S.A. 75-4333(b)(l) by interfering, restraining or coercing public employees in the exercise of their rights; K.S.A. 75-4333(h)(5) by refusing to meet and confer in good faith; and K.S.A. 75- 4333(b)(7) by intentionally avoiding mediation or factfinding. The matter was presented to a hearing examiner and eventually was decided by PERB, which, in a four-to-one decision, found for the complainant, KNEA, and held that the refusal of the Board of Regents acting through the University to negotiate based on the “duration clause” contained in the 1979-1980 agreement amounted to a refusal to meet and confer in good faith. It found the Regents’ and the University’s interpretation of the “duration clause” to be “devoid of substance.”
Case 21 arose when the parties could not agree whether or not the subject of “retrenchment”' is mandatorily negotiable. The parties stipulated before the hearing examiner to the following definition of “retrenchment”:
“[R]etrenchment means reduction in force and includes the method and procedures used for reduction of personnel, how personnel are to be laid off and establishment of procedures for recall of personnel.”
Retrenchment was one of the items proposed by KNEA for negotiation when the parties were meeting in the spring of 1980. While this matter was “on the table,” the University president on June 17, 1980, implemented a faculty election procedure to produce a faculty committee to establish retrenchment procedures. The president had previously approached the faculty senate, an elected representative body of the teaching faculty, on several occasions, suggesting that that body assist with the development of retrenchment procedures. The senate and the faculty as a whole passed resolutions indicating that they wanted KNEA to represent their interests on retrenchment. These resolutions were ignored.
Late in June, 1980, KNEA filed a prohibited practice charge against the Regents and the University, alleging that the unilateral implementation of retrenchment procedures violated K.S.A. 75-4333(h)(5), failing to meet and confer on the subject in good faith, and other sections of the statute. After a hearing, PERB determined that retrenchment as defined by the parties was a mandatory subject for meeting, conferring and negotiating, but that, because there was a good faith dispute as to negotiability, the Regents and the University were not guilty of a prohibited practice.
The 1982 case involves a charge filed by the University against KNEA, alleging that by insisting that certain subjects were mandatorily negotiable, KNEA violated K.S.A. 75-4333(c)(2) and (3) by refusing to meet and confer in good faith and by interfering with, restraining, or coercing a public employer with respect to management rights granted under the Act. PERB eventually held that all of the items but one were mandatorily negotiable and that KNEA was not guilty of a prohibited practice in insisting upon the various subjects for negotiation. The one topic held not mandatorily negotiable was “academic freedom.” There was no appeal from that finding and the topic of academic freedom is therefore not before us. The items which PERB held to be mandatorily negotiable are: salary generation and salary allocation; out-of-state travel; promotions; summer employment; tenure; retrenchment; and access to personnel files. The district court affirmed PERB in all respects; the Regents and the University appeal.
SCOPE OF REVIEW
The scope of judicial review of an administrative board’s findings of fact and conclusions of law is well established in Kansas law. In addition, K.S.A. 75-4334(h) provides that PERB findings as to the facts “shall be conclusive [on review] unless it is made to appear to the court’s satisfaction that the findings of fact were not supported by substantial evidence and the record considered as a whole.”
In Kansas Ass’n of Public Employees v. Public Service Employees Union, 218 Kan. 509, 511, 544 P.2d 1389 (1976), this court noted the statute quoted above and elaborated:
“We thus have an unequivocal statement that in reviewing the action of the Public Employee Relations Board the courts shall apply the customary standards for the review of the acts of an administrative agency. The leading case on that issue is Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 [1968], where we said:
“ ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.’ (Syl. V 1.)
“In Foote we also summed up this court’s role on appellate review:
“ ‘In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.’ (Syl. ¶ 2.)
Neither the district court nor this court can weigh conflicts in the evidence and substitute its judgment for that of the Board. In re Appeal of City of Lenexa, 232 Kan. 568, Syl. ¶¶ 4, 5, 657 P.2d 47 (1983); Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981); and Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 419, 581 P.2d 817, rev. denied 225 Kan. 843 (1978). There is no indication that the trial judge misunderstood his role here.
The PERB orders in this case are partly factual determinations, which are subject to the review stated above, and partly determinations of law, which involve a different standard of review. Usually, however, the legal interpretation of a statute by an administrative board or agency, charged by the legislature with the authority to enforce the statute, is entitled to a great deal of judicial deference. In Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 242, 627 P.2d 1143, rev. denied 229 Kan. 671 (1981), the court noted that:
“In reviewing questions of law, the trial court may substitute its judgment for that of the agency, although ordinarily the court will give deference to the agency’s interpretation of the law.”
This deference has long been reflected in Kansas law. In Harrison v. Benefit Society, 61 Kan. 134, 140, 59 Pac. 266 (1899), it is said:
“The rule is well settled that ‘in all cases of ambiguity the contemporaneous construction not only of the courts but of the departments, and even of the officials whose duty it is to carry the law into effect, is controlling.’ ”
See also Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 607, 371 P.2d 134 (1962) (“[T]he operative interpretation given thereto by the officers and official boards whose duties are to carry the legislative policy into effect is helpful, and may be entitled to controlling significance ... in judicial proceedings.”); State v. Helgerson, 212 Kan. 412, 413, 511 P.2d 221 (1973) (“This court has long given great weight under the doctrine of operative construction to the interpretation of a statute by the administrative body charged with enforcing the statute.”). Deference is likewise accorded by the courts to an administrative agency’s construction and interpretation of its own rules and regulations. The agency’s interpretation of its regulations will not be disturbed on appeal unless the interpretation is clearly erroneous or inconsistent with the regulation. Columbian Fuel Corp. v. Panhandle East ern Pipe Line Co., 176 Kan. 433, 440, 271 P.2d 773 (1954); McClanahan v. Mulcrome, 636 F.2d 1190 (10th Cir. 1980).
A similar standard of review is applicable when the administrative agency has construed or interpreted a written contract or other document, and such construction or interpretation, reflected in the agency’s order, is challenged upon appeal. The construction or interpretation of contracts is, of course, a question of law. However, and particularly if the writing is an instrument of a type which comes regularly before the agency and with which it must of necessity acquire some familiarity and expertise, its interpretation, if reasonable, is persuasive and is entitled to careful consideration by the reviewing courts. If there is a rational basis for the agency’s decision, it should be upheld and a reviewing court should not substitute its judgment for that of the agency. The rule stated in 2 Am. Jur. 2d, Administrative Law § 676, p. 556, is particularly applicable here:
“The ruling of an administrative agency on questions of law, while not as conclusive as its findings of facts, is nevertheless persuasive and given weight, and may carry with it a strong presumption of correctness, especially if the agency is one of special competence and experience.”
If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps; the determination of an administrative body on questions of law is not conclusive, and, while persuasive, is not binding on the courts. See Beacon Publishing Co. v. Burke, 143 Kan. 248, 253, 53 P.2d 888 (1936); Allen v. Burke, 143 Kan. 257, 262, 53 P.2d 894 (1936); 73 C.J.S., Public Administrative Bodies and Procedure § 228.
THE PUBLIC EMPLOYER
The Regents raised an affirmative defense in case 20 and in case 21, claiming that the Board of Regents is not the proper respondent in these matters and that it is not the “public employer” under the Act. This issue was hotly disputed. Depositions of a number of the members of the Board of Regents were taken as well as those of members of its staff. Some two days were spent in hearings on this issue alone. PERB determined that the Board of Regents is the public employer and that its negotiating team consisted of its designated representatives; that the Regents are the “ultimate authority,” and are properly designated as the public employer in these proceedings.
Article 6, section 2, of the Constitution of the State of Kansas provides:
“(b) The legislature shall provide for a state board of regents and for its control and supervision of public institutions of higher education. Public institutions of higher education shall include universities and colleges granting baccalaureate or postbaccalaureate degrees and such other institutions and educational interests as may be provided by law. The state board of regents shall perform such other duties as may be prescribed by law.”
By K.S.A. 1982 Supp. 74-3201 et seq., the legislature created a nine-member state board, to be known as the Board of Regents. Specific powers and duties of the Board are set forth in the following sections of the statutes. The Regents appoint the chief executive officers of all state educational institutions under their jurisdiction, including Pittsburg State University. These state educational institutions are controlled by, operated, and managed under the supervision of the Board of Regents. The Regents are authorized by statute to make contracts and adopt orders, policies, or rules and regulations and to do or perform such other acts as are authorized by law or are appropriate for such purposes. K.S.A. 76-711, -712, -714. The Board of Regents may be sued and may defend any action brought against it or against any state educational institution; state educational institutions also may be sued and may defend actions brought against them. K.S.A. 76-713. The chief executive officer of each state educational institution is authorized to appoint such employees as are authorized by the Board of Regents; employees in unclassified service serve at the pleasure of the chief executive officer, subject to policies approved by the Board of Regents. The Regents determine the programs which shall be offered and the degrees which may be granted at each state educational institution. K.S.A. 76-715, -716.
Several sections of the Public Employer-Employee Relations Act are also pertinent to this discussion. K.S.A. 75-4322(jf) defines “public employer” as “the state of Kansas and its state agencies.” K.S.A. 75-4322(x) defines “state agency” by reference to K.S.A. 1982 Supp. 75-3701(3), “any state . . . board . . . .” K.S.A. 75-4322(g) defines “governing body” as the “policy board ... of the public employer possessing . . . policymaking responsibilities pursuant to the constitution or laws of this state.” For the purposes of attendance at the meet and confer or bargaining sessions, K.S.A. 75-4322(h), with reference to state agencies, defines “representative of the public agency” as “a team of persons, the head of which shall be a person designated by the secretary of administration and the heads of the state agency or state agencies involved or one person [designated] by each such state agency head.”
Without detailing the evidence, we think it is clear beyond question that the Board of Regents is the ultimate authority. It must direct and be responsible for negotiations with the employee teams at the several state educational institutions under its jurisdiction, and it, as the employer and “the appropriate governing body,” must approve any proposed agreement in order to make it binding and effective. K.S.A. 75-4331. The Board of Regents did in fact approve the 1978-1979 and 1979-1980 agreements, as well as agreements with other recognized employee organizations for other state educational institutions. We conclude that PERB and the district court were correct in holding that the Board of Regents is the appropriate employer under the Act.
THE DURATION CLAUSE
The next issue is whether PERB erred in its interpretation of the “duration clause” in the 1979-1980 contract and in concluding that the Regents refused to meet and confer in good faith.
The duration clause provides in substance that the agreement is effective for one year only, and that it terminates on July 31, 1980. It provides that on or before January 1, 1980, either party may notify the other that it desires to modify the agreement; in such event, the parties shall begin on or after January 7, 1980, to meet and confer with respect to a successor agreement.
The Regents and the University read this clause to mean that if no notice was served on or before January 1, 1980, there would be no negotiations with respect to a 1980-1981 agreement until after the 1979-1980 agreement expired. Under that interpretation, there would be no attempt to negotiate an agreement for the ensuing academic year- — -and no hope of reaching an agreement for the next year — until that year was well under way. Such a construction would frustrate the law and its purposes as enumerated by the legislature.
The Act, as we pointed out earlier, has as its purpose the development of harmonious and cooperative relationships between government and its employees, and it obligates public agencies and public employee representatives to enter into discussions in good faith for the purpose of resolving grievances and disputes relating to conditions of employment. Interpreting the contract so as to completely frustrate all attempts of one party to negotiate terms and conditions of employment for the succeeding academic year until after that year is underway would not serve to further the purposes of the Act. There is no continuing contract clause in the Act, and there is no continuing contract clause in the 1979-1980 agreement. The Regents’ negotiating team declined or at least did not accept an offer to continue the existence of that agreement for the following year.
The Regents argue that the failure to provide a January 1 notice entitled the employer to a period of repose free from “labor strife.” KNEA, on the other hand, argues that the purpose of the disputed paragraph was to provide a period of repose from the first of the academic year until January 1, and that there would be no negotiations during the fall semester. The paragraph indeed served that purpose; there were no negotiations during the fall of 1979. When January 1, 1980, passed without notice being served, there could thereafter be no modifications in the 1979-1980 agreement. The new 1980-1981 agreement, however, was still open for negotiations.
It is apparent that the language of the duration clause can be read in two very different ways; it is therefore ambiguous. It must be read, however, in light of the Act, and when it is so read there can be no doubt that KNEA’s interpretation, that adopted by PERB and the district court, more closely comports with the Act’s stated purposes. We conclude that PERB and the trial court did not err in their interpretation of the duration clause.
The Regents’ interpretation of the duration clause, and the inclusion of the Note which was intended to avoid impasse and factfinding proceedings as a precondition to negotiations, support PERB’s finding that the Regents refused to meet and confer in good faith pursuant to the Act. The cases cited by appellants on this issue are distinguishable because they involve clearly established contractual procedures for triggering one party’s obligation to bargain or negotiate with the other. We find no error.
THE “SIGNIFICANTLY RELATED” TEST ADOPTED BY PERB
Before we turn to the specific subjects upon which the parties disagree as to mandatory negotiability, we should first consider some additional sections of the Act and the test adopted by PERB for resolving disputes over negotiability. We have stated in full in the early portion of this opinion the legislative policy and the general purposes of the Act, as codified in K.S.A- 75-4321, and we will not repeat that statement here. It is relied upon, however, by PERB, and it is important in the context of this discussion.
K.S.A. 75-4324 guarantees the following rights to public employees:
“Public employees shall have the right to form, join and participate in the activities of employee organizations of their own choosing, for the purpose of meeting and conferring with public employers or their designated representatives with respect to grievances and conditions of employment. Public employees also shall have the right to refuse to join or participate in the activities of employee organizations.” (Emphasis added.)
K.S.A. 75-4322(f) defines conditions of employment as follows:
“(t) ‘Conditions of employment’ means salaries, wages, hours of work, vacation allowances, sick and injury leave, number of holidays, retirement benefits, insurance benefits, prepaid legal service benefits, wearing apparel, premium pay for overtime, shift differential pay, jury duty and grievance procedures, but nothing in this act shall authorize the adjustment or change of such matters which have been fixed by statute or by the constitution of this state.”
The public employer, however, is assured by K.S.A. 75-4326 that:
“Nothing in this act is intended to circumscribe or modify the existing right of a public employer to:
“(a) Direct the work of its employees;
“(b) Hire, promote, demote, transfer, assign and retain employees in positions within the public agency;
“(c) Suspend or discharge employees for proper cause;
“(d) Maintain the efficiency of governmental operation;
“(e) Relieve employees from duties because of lack of work or for other legitimate reasons;
“(f) Take actions as may be necessary to carry out the mission of the agency in emergencies; and
“(g) Determine the methods, means and personnel by which operations are to be carried on.”
The scope of the memorandum of agreement reached by the parties under the Act is described in K.S.A. 75-4330(a), which provides in relevant part:
“The scope of a memorandum of agreement may extend to all matters relating to conditions of employment, except proposals relating to (1) any subject preempted by federal or state law or by a municipal ordinance passed under the provisions of section 5 of article 12 of the Kansas constitution, (2) public employee rights defined in K.S.A. 75-4324, (3) public employer rights defined in K.S.A. 75-4326 . . . (Emphasis added.)
The Act also establishes the Public Employee Relations Board and provides for its powers and duties in K.S.A. 1982 Supp. 75-4323. Subsection (d)(3) of that statute provides that PERB may:
“Make, amend and rescind such rules and regulations, and exercise such other powers, as appropriate to effectuate the purposes and provisions of this act.” (Emphasis added.)
Obviously, the language of the Act provides' opportunities for disagreement over its “true” meaning. The dispute here involves “conditions of employment.” KNEA proposed to meet and confer on various subjects. Because these items are not listed by name in the statutory laundry list of conditions of employment (K.S.A. 75-4322[i]), the Regents and the University refused to discuss them. In addition, they contend that to agree to procedures regarding these subjects would infringe on their rights as employer guaranteed in K.S.A. 75-4326, and thus violate K.S.A. 75-4330(a)(3). KNEA argues that too literal a reading of 75-4326 or of any other section of the Act would render the Act meaningless. They point out that almost any of the “conditions of employment” listed in 75-4322(i), which are the subjects of the meet and confer process under 75-4324, could be argued to interfere with employer rights under 75-4326. For example, “hours of work” is inconsistent with the employer’s right to “direct the work of its employees,” or “salary” negotiations may infringe upon the employer’s right to “maintain the efficiency of [its] governmental operation.” Conversely, KNEA argues that the 75-4322(fj list cannot be read as exclusive since some of the subjects listed state broad general categories rather than specific subjects. For example, salaries, wages, hours of work, retirement benefits, insurance benefits and grievance procedures are not single-faceted categories, with only one commonly accepted and easily understood component. The subjects are, in fact, multifa ceted and depend for their specifics upon the particular type of employment involved.
PERB, in order to determine whether a particular item is or is not mandatorily negotiable, has developed and employs a balancing test: If an item is significantly related to an express condition of employment, and if negotiating the item will not unduly interfere with management rights reserved to the employer by law, then the item is mandatorily negotiable.
PERB relies on the purpose language of K.S.A. 75-4321(7»), which states:
“[I]t is the purpose of this act to obligate public agencies, public employees and their representatives to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law.” (Emphasis added.)
Thus, PERB concludes that the 75-4322(i) list is not literal or exclusive and that items which relate to the enumerated subjects must be negotiated upon request.
PERB’s order enunciates its rationale. It says in part:
“In the opinion of this Board, the message of the legislature is clear and may be restated in the following manner relative to the question of negotiability; public employers and public employees are required to enter into full communication on all subject matters which relate to conditions of employment to the extent that those proceedings do not infringe upon the existing rights of public employers. There are at least two (2) possible highly polarized interpretations at which one could arrive in administering the Act. The first interpretation could find that every subject proposed for negotiations carries with it an economic cost and therefore has a direct effect on [an] individual’s salary or wages and as such is a mandatorily negotiable subject within the purview of the statute. The second interpretation could find that all subjects proposed for negotiations infringe upon one or more of management’s rights as outlined at K.S.A. 75-4326 and as such do not constitute subjects over which the public employer is obligated to bargain. In this Board’s opinion both of the aforementioned interpretations are incorrect. The third interpretation, the one embraced by this Board recognizes both employers’ and employees’ rights under the law.
“. . . Referring again to K.S.A. 75-4321(o)(2) wherein the legislature recognizes the harmful effect of a lack of full communication, the Board finds it impossible to believe that the purpose of K.S.A. 75-4326 is to so totally emasculate the meet and confer process. The Board is of the opinion, rather, that the legislature was attempting to recognize the fact that the extent to which an employer should be required to participate in the process should by all means stop short of an abdication of the authority necessary to accomplish their obligation ‘to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.’
“While it is extremely important to recognize that a management’s rights clause does not preclude all negotiations in regard to those subjects it is equally important to note that a subject does not become mandatorily negotiable by flimsily tying it to an enumerated subject term and condition.” (Emphasis in original.)
PERB went on to review each of the items KNEA sought to negotiate and, applying the balancing test, determined that all of the items now before this court were negotiable conditions of employment. Appellants contend that the balancing test is improper and unlawful. They argue that the legislature clearly rejected such a test by specifically enumerating conditions of employment in 75-4322(f). The support appellants offer for this contention is the history of the Kansas Professional Negotiations Act (K.S.A. 72-5413 et seq.), which applies only to elementary, secondary and community college teachers. They point out that in 1970, when the Professional Negotiations Act (P N) was enacted, it did not contain a laundry list of negotiable items. The P N Act simply permitted the board of education and teachers’ representatives to enter into an agreement concerning “terms and conditions of professional service.” (L. 1970, ch. 284.) In contrast, this Act, enacted in 1971, contained the laundry list definition of “conditions of employment” now found at 75-4322(t) (except for “prepaid legal service” added in 1977).
Appellants also point out that under the original P N Act, this court established a test for defining the meaning of “terms and conditions of professional employment.” In National Education Association v. Board of Education, 212 Kan. 741, Syl. ¶ 5, 512 P.2d 426 (1973) (Shawnee Mission), the court developed the “impact” test which provided that “[t]he key to determining whether an issue is negotiable or not is an assessment of how direct an impact it has on the well-being of the individual teacher, as opposed to its effect on the operation of the school system as a whole.”
In 1977, the legislature amended the P N Act and added a scope of bargaining definition which enumerated several mandatory subjects and incorporated the Shawnee Mission “impact” test. (L. 1977, ch. 248, § 1.) The PEER Act was also amended in 1977 and section 75-4322(i) was amended to include “prepaid legal service benefits.” (L. 1977, ch. 302, § 1.) Appellants find this significant. Finally, appellants point out that in 1980 the P N Act was again amended, and the scope of negotiations section was amended to lengthen the list of mandatorily negotiable subjects. The “impact” test, however, was dropped from the definition. (L. 1980, ch. 220, § 1.) K.S.A. 75-4322(t) has not been further amended. Based on this detailed history of the P N Act, the appellants conclude: “There is simply no statutory basis for engrafting an open-ended ‘significantly related’ scope test on the Public Employer-Employee Relations Act.”
There are, however, significant differences in the two acts. The P N Act applies only to public school teachers and community college instructors. The PEER Act applies, with the few exceptions noted earlier, to all public employees of the State of Kansas and its agencies, and to all employees of certain other public employers opting to come under the Act. The Act is not limited in its coverage to persons in a given field or profession, but covers the entire spectrum of state employees- — professional and nonprofessional, white collar and blue collar, artisan, tradesman, specialist and laborer. The two acts were enacted at different times to serve different purposes. The PEER Act contains an expansive statement of policy not found in the P N Act. There is nothing to indicate that the legislature intended its actions with regard to the P N Act to have controlling significance in interpreting the PEER Act or vice versa. PERB has been an active state agency since its creation by the legislature in 1971. Doubtless it has faced prior challenges as to what is or is not negotiable between public employers and public employee representatives, and has resolved such challenges by using the “significantly related” test. If the legislature in 1977 had desired to curtail the use of such a test, or to have made clearer the restrictions on negotiability urged by appellants, it could have done so.
One purpose of the Act is to obligate public agencies and employee representatives to enter into discussions to resolve grievances and disputes relating to conditions of employment. K.S.A. 75-4321(h). The primary purpose of the Public Employee Relations Board is obviously to effectuate the purposes and provisions of the Act. K.S.A. 1982 Supp. 75-4323. The scope of any memorandum of agreement reached by any public employer and any public employee organization may extend to all matters relating to conditions of employment except proposals relating to employer and employee rights as defined by the Act. K.S.A. 75-4330(a). Viewing the entire Act, with its broad statement of purposes, we conclude that the legislature did not intend that the laundry list of conditions of employment as set forth in K.S.A. 75-4322(i) be viewed narrowly with the object of limiting and restricting the subjects for discussion between employer and employee. To the contrary, the legislature targets all subjects relating to conditions of employment.
PERB, as the arbiter between employer and employee, has fashioned the “significantly related” test in an effort to steer a middle course between minimal negotiability, with nearly absolute management prerogative, and complete negotiability, with few management prerogatives. In so doing it has devised a commonsense approach to the problem of sorting out matters which cannot be easily defined or neatly categorized, in order to determine their negotiability.
In fashioning such a test PERB is not without persuasive precedent. In Clark Co. Sch. Dist. v. Local Gov’t, 90 Nev. 442, 530 P.2d 114 (1974), the Nevada Supreme Court approved a very similar ruling by the Local Government Employee-Management Relations Board. The Nevada court was faced with a statute which provided, at that time:
“ ‘288.150 Negotiations by employer with recognized employee organization concerning wages, hours and conditions of employment; rights of employer without negotiation.
“ ‘1. It is the duty of every local government employer, except as limited in subsection 2, to negotiate in good faith through a representative or representatives of its own choosing concerning wages, hours, and conditions of employment with the recognized employee organization, if any, for each appropriate unit among its employees. If either party requests it, agreements so reached shall be reduced to writing. Where any officer of a local government employer, other than a member of the governing body, is elected by the people and directs the work of any local government employee, such officer is the proper person to negotiate, directly or through a representative or representatives of his own choosing, in the first instance concerning any employee whose work is directed by him, but may refer to the governing body or its chosen representative or representatives any matter beyond the scope of his authority.
“ ‘2. Each local government employer is entitled, without negotiation or reference to any agreement resulting from negotiation:
“ ‘(a) To direct its employees;
“ ‘(b) To hire, promote, classify, transfer, assign, retain, suspend, demote, discharge or take disciplinary action against any employee;
“ ‘(c) To relieve any employee from duty because of lack of work or for any other legitimate reason;
“ ‘(d) To maintain the efficiency of its governmental operations;
“ ‘(e) To determine the methods, means and personnel by which its operations are to be conducted; and
“ ‘(f) To take whatever actions may be necessary to carry out its responsibilities in situations of emergency.
“ ‘Any action taken under the provisions of this subsection shall not be construed as a failure to negotiate in good faith.’ ” (Emphasis added.) 90 Nev. at 444-45.
A dispute had arisen between a school board and a local teachers’ organization over what were the proper subjects of negotiation. The Employee-Management Relations Board ruled that the disputed matters were “significantly related” to conditions of employment and thus negotiable. The school board appealed and argued that the EMRB’s ruling infringed upon its management rights as reserved in the statute and that the “significantly related” test fashioned by EMRB was unlawful. The court concluded:
“The appellant’s interpretation of the act would render NRS 288.150 a nullity. The fact of the enactment of the legislation in itself evidences legislative intent that the statute serve a purpose and the stated purpose is to grant public employees a right that they did not have before which was to bargain collectively.
“It is not conceivable that the legislature would give its extensive time and attention to study, draft, meet, hear, discuss and pass this important piece of legislation were it not to serve a useful purpose. For this court to hold that any item even though remotely relevant to management policy is beyond the pale of negotiation defeats the purpose of the legislation. Many matters involved in a teacher’s work day bear somewhat on management policy and at the same time are inextricably linked to wages, hours and conditions of employment. What the legislature gave was not intended to immediately be taken away.
“A precise determination of the distinctions between Section 1 as subtracted by Section 2 cannot be divined. That is the function of the EMRB. Unless the board should act arbitrarily, unreasonably or capriciously beyond administrative boundaries the courts must give credence to the findings of the board. An agency charged with the duty of administering an act is impliedly clothed with power to construe it as a necessary precedent to administrative action. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960); Oklahoma Real Estate Commission v. National Business & Property Exchange, 238 F.2d 606 (10th Cir. 1956); Utah Hotel Co. v. Industrial Commission, 151 P.2d 467 (Utah 1944). Indeed, NRS 288.110 charges the board with that responsibility and great deference should be given to the agency’s interpretation when it is within the language of the statute. Oliver v. Spitz, supra, at 10; Udall v. Tallman, 380 U.S. 1, at 16 (1965).
“In this case the EMRB concluded that the applicable standard to reconcile Sections 1 and 2 is that the government employer be required to negotiate if a particular item is found to significantly relate to wages, hours and working conditions even though that item is also related to management prerogative. The standard and the findings thereon are reasonable. Since NRS 288.110 gives the board power to hear and determine any complaint arising out of the interpretation of the statute the board’s conclusion was properly upheld by the trial court.” 90 Nev. at 445-47. (Emphasis in original.)
The statutes of the two states are of course different; the Kansas act provides a more specific definition of conditions of employment, and K.S.A. 75-4330(a) clearly directs that the parties may reach a memorandum of agreement on all matters relating to conditions of employment, as long as those matters do not infringe upon employer or employee rights. The latter section clearly indicates that the list of conditions of employment is not to be read literally or exclusively; this, in turn, requires the reconciliation of the competing interests and the determination of which items are negotiable. This is precisely what PERB has done. It has statutory support for its actions. It has not exceeded its lawful power and authority, and it is not charged with being nor has it been fraudulent, arbitrary or capricious.
Other boards and other courts in other states have fashioned or approved similar tests when faced with the task of reconciling similarly inconsistent statutory provisions. See Beloit Education Asso. v. WERC, 73 Wis. 2d 43, 242 N.W.2d 231 (1976); Unified S.D. No. 1 of Racine County v. WERC, 81 Wis. 2d 89, 259 N.W.2d 724 (1977); State v. State Supervisory Employees Association, 78 N.J. 54, 393 A.2d 233 (1978); and Annot., Negotiable Issues in Public Employment, 84 A.L.R.3d 242, § 3[b]. We conclude that PERB’s interpretation of the statute which it enforces is reasonable. The test which it has adopted and utilized in these proceedings is necessary to carry out the purposes of the Act; it is grounded in statute; and it is within the scope of the agency’s authority.
NEGOTIABILITY
The parties disagree as to the mandatory negotiability of certain specific items. A four-member majority of PERB found each of the items with which we are here concerned mandatorily negotiable; one member dissented. The majority ruling is contained within an eighteen-page order, in which PERB sets forth a full discussion of each of the specific items and the rationale for its ruling thereon. The district judge, after stating the appropriate rules of appellate review of administrative orders, determined that PERB’s findings of fact were supported by substantial, competent evidence, and that its orders were lawful. The judge then adopted the rulings, findings and conclusions of the board, and affirmed. We should note that PERB found one item and portions of others were not mandatorily negotiable. No appeal was taken from that portion of PERB’s order.
A careful distinction should be made between this case and the teachers’ contract negotiation cases such as Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979). The teachers’ contract negotiation cases were all actions filed directly in district court; the courts were thus called upon, in the first instance, to determine the mandatory negotiability of various topics under the applicable statute, the Kansas Professional Negotiations Act, K.S.A. 72-5413 et seq., and to construe that act. The case now before us comes as an administrative appeal. A special board, created in 1971 by the Kansas Legislature for the purpose of administering the PEER Act, has heard evidence, reviewed the contentions of all parties, and has made its administrative determination of each issue which we are now called upon to review.
As noted earlier in this opinion, we must first determine whether the district court observed the requirements and restrictions placed upon it. We have determined that it did so in this case. We then-make the same review of the administrative agency’s action as does the district court. We may not substitute our judgment for that of the agency. Further, the legal interpretation of an administrative board, charged by the legislature with the authority to enforce or administer a statute, is entitled to a great deal of judicial deference. With these rules in mind, we now turn to PERB’s specific findings with regard to mandatory negotiability. PERB’s findings read in substance as follows:
“SALARY GENERATION
“The first subject before the Board is ‘Salary Generation.’ The language contained in this proposal clearly seeks to allow the employees input into the salary portions of the budget preparation process. The Board is guided in [its] determination of the negotiability of this subject by language contained at K.S.A. 75-4327(g) which states:
‘(g) It is the intent of this act that employer-employee relations affecting the finances of a public employer shall be conducted at such times as will permit any resultant memorandum of agreement to be duly implemented in the budget preparation and adoption process.’
This provision, coupled with the specific inclusion of ‘salaries’ as a mandatory term and condition of employment, leaves the Board with no alternative but to find the subject of ‘Salary Generation’ to be mandatorily negotiable. There is nothing sacred in the term ‘Salary Generation.’ This Board is of the opinion that the proposal placed on the table, and more especially section (A) (1) embodies exactly the process contemplated by the legislature when they listed ‘salaries’ as a mandatory subject of negotiations. . . .
“SALARY ALLOCATION
“The second subject to be considered by the board is that of ‘Salary Allocation.’ As was the case in the previous subject, ‘salaries’ is listed as a mandatorily negotiable term and condition of employment. The language contained within the proposal on salary allocation again seeks to allow the organization input into the distribution of university salary monies to be received by bargaining unit members and others. . . . The Board does find discussions or proposals which seek to establish salaries of non-unit members to be other than mandatorily negotiable. The salaries of non-unit members are management’s prerogative and when the budget is submitted, those amounts would simply be added to the amount negotiated for unit members. Salary allocation for members of bargaining unit is mandatory.
“OUT OF STATE TRAVEL
“Out of state travel and the cost thereof have a definite significant relation to employee’s ultimate compensation. Further, frequently out of state travel is necessary in the field of education in order for a teacher-employee to enhance his standing in the academic world which significantly relates to his salary. Out of state travel is mandatory.
“PROMOTIONS
“The fourth subject deals with ‘Promotions.’ As stated at K.S.A. 75-4326, the right to determine that a promotion is in order is undeniably a management right. If and when management decides to promote, the action will have a significant relation to the terms and conditions of employment of the affected unit member(s), generally in regard to their salary and/or hours of work. . . . The portions of a promotion policy which would be subject to mandatory negotiations would include the criteria, procedures, or methods by which candidates for promotion are identified and the action is completed. [All other facets of the subject ‘Promotions’ were held not mandatorily negotiable, and no appeal is taken from that portion of the order.]
“SUMMER EMPLOYMENT
“The employer must first decide if summer school classes are to be offered. Whether directed by the legislature, the statutes, or by his own whim, the employee organization certainly has no guaranteed right to participate in that decision. If and when the decision is made to conduct summer school classes, the employer must decide which classes will be offered. Curriculum is a matter reserved to management’s decision. Complainant would have the Board find that a proposal defining the criteria, procedures, or methods for the screening of candidates for summer employment would in some way diminish management’s right to establish curriculum. The Board submits that the cart is before the horse in that line of reasoning. As previously stated, the Board believes the employer has the undeniable right to establish curriculum to be offered. However, intrinsic to summer employment are all of the facets of conditions of employment. Therefore, it is a mandatory item.
“TENURE
“The Sixth subject, ‘Tenure,’ like many of the other issues at hand, is not defined as a term and condition of employment within the statute. While tenure carries with it some sort of mystique on a university campus, the proposal before this Board seems to do nothing more than to establish a procedure whereby one can earn his way out of probation and into permanent status. . . . The Board directs the parties’ attention to K.S.A. 75-4326(c) and (e) and specifically to the words ‘for proper cause’ and ‘legitimate reasons.’ The Board is convinced that those words were included by the legislature with the intent that a public employer be prevented from terminating employees at his whim. Logically, if the legislature recognizes the employer’s right to terminate for proper cause, they would further expect someone other than the employer to review his own actions for validity. To find otherwise would render the terms ‘proper cause’ and ‘legitimate reasons’ of no value and useless for inclusion. The Board is of the further opinion that the legislature in no way intended that a discharged employee be required to file actions in the courts for determinations regarding proper cause. The reasonable assumption would be that the legislature intended for the employer and the employee organization to attempt to collectively formulate and agree on a method for the review of complaints arising from terminations. That avenue is, in the opinion of this Board, the grievance procedure, listed as a mandatorily negotiable subject at K.S.A. 75-4322(i). Inasmuch as a termination alters every condition of employment previously enjoyed by the employee, a person’s ability or standing to request a review of the action becomes of paramount importance. If the individual attains that right at the moment in time when they acquire tenure, then negotiations over the earning of tenure are mandatory. The duration of a probationary period understandably could vary depending on the nature of the employment but most contracts of employment and/or civil service systems provide for a probationary period ranging from six (6) months to one year. Traditionally, the period allows the employer a fixed amount of time in which to ‘evaluate’ the employee and, if necessary, to discharge the employee without outside scrutiny. Successful completion of the period carries with it the expectation of continued employment if accomplished in accordance with the rules of the employer. The period of time one must serve in this state of ‘limbo’ until he is afforded the protections of the contract is undeniably mandatorily negotiable.
“RETRENCHMENT
“Under K.S.A. 75-4326 the employer has the undeniable right to relieve employees from duties because of lack of work or for other legitimate reasons.
“An examination of the definition of‘conditions of employment,’ as provided at K.S.A. 75-4322(t) reveals that ‘salaries, wages and hours of work’ are included. The issue of retrenchment currently before the Board is mandatorily negotiable in that any procedure for obtaining a reduction in the work force would significantly relate to salaries, wages or hours of work and other ‘conditions of employment’ as described by the definition.
“Perhaps the questions of the negotiability of retrenchment can most easily be understood and resolved by looking at the various procedures by which a reduction in work force may be achieved. One procedure that may be utilized by employers is to lay off employees one day per week. Certainly, this technique would fall under the definition for conditions of employment as it directly affects the number of hours worked. Another procedure for achieving a reduction in work force is to simply terminate a certain number of employees. This technique would also fall under the definition of ‘conditions of employment’ as it directly affects the salaries of those employees. Still another procedure for effectuating retrenchment may involve a combination of lay off and demotions. This technique would also remain within the definition as it would, once again, involve the salaries of employees regardless of whether they are terminated or demoted.
“It should be noted that the Board is referring only to the procedures by which a reduction in work force is achieved as being mandatorily negotiable. The decision as to whether retrenchment is necessary is reserved for managerial discretion. The Board has reached this conclusion through an analysis of the management’s rights provisions of K.S.A. 75-4326. These provisions allow for the maintenance of the work force through hiring, promoting, demoting, transfer, and so forth. In addition, an employer retains the right to assign work to employees. These rights only extend, in the opinion of the Board, to the actual decision as to whether retrenchment, promotion, transfer, etc., are necessary. The Board bases this conclusion on the portion of the declaration of policy at K.S.A. 75-4321(a)(3) which states:
“ ‘the state has a basic obligation to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.’
“The Board is of the opinion that the designation of management rights, as set forth at K.S.A. 75-4326, is the avenue through which the state may fulfill its obligation to provide certain services. However, the Board believes that the legislature intended to limit the procedures by which these duties are fulfilled by the requirement of both public employers and public employees to meet and confer over conditions of employment.
“An examination of the language of the management’s rights provisions at K.S.A. 75-4326 reveals that although the employer retains the right to decide whether lay off, promotion, etc., are necessary to fulfill governmental duties, the statute is silent concerning who may make the decisions on the procedures for promotion or reducing the work force. To determine who under the Act can set procedure, the Board has considered the mandatory nature of issues involving conditions of employment. The Board has shown that the procedures by which a reduction in work force is achieved has a direct impact on salaries and hours of work. In light of the fact that the legislature did not specifically grant the employer the right to set procedures for reducing the work force and in consideration of the direct impact of this procedure bn the conditions of employment,' the Board can only conclude that the procedure for achieving a reduction in work force is mandatorily negotiable.
“PERSONNEL FILES
“The eighth subject is that of ‘Personnel Files.’ It is not difficult to understand the reasons why an employer might choose to keep files bn his employees. Personnel files might contain letters of commendation, evaluations, records of disciplinary actions, payroll data, original applications, individual achievements, etc. Maintenance of a personnel file would be of no value or use unless it were maintained for some purpose. Personnel files are normally maintained by the employer and utilized in making various employment decisions relative to salary increases, promotions, terminations, awards, lay offs, vacation entitlement, re tirement eligibility, and many more. Since the material within the files serves to provide guidance in the determination of various conditions of employment, an employee’s right to knowledge of the information in the file, and an avenue to refute erroneous entries is of monumental importance. The Board is therefore of the opinion that the subject of ‘Personnel Files’ is mandatorily negotiable.” (Emphasis added.)
We now turn to the specific items. Salary Generation and Salary Allocation — salary generation relates to providing members of the bargaining unit with input into the salary portions of the institution’s budget during the budget preparation process; salary allocation refers to the distribution of salary money to unit members. These items are thus closely connected with salaries. The Act itself, as PERB noted, recognizes the subject of salaries and K.S.A. 1982 Supp. 75-4327(g) states the legislative intention that employee organizations have input before budget preparation. We agree with PERB that Salary Generation and Salary Allocation are mandatorily negotiable items.
Out of State Travel Funds — such funds are important to the teaching staff as the availability of travel money directly affects the opportunities for continuing professional training and education, which in turn directly relates to conditions of employment. Negotiation on this item should also precede the budgeting process. We agree that it is mandatorily negotiable.
Promotions — we agree with PERB that the right to determine that a promotion is in order is a management prerogative, reserved to management by K.S.A. 75-4326(b). The criteria, procedures, or methods by which candidates for promotion are identified, however, are items of immense interest to faculty, and not only have an effect upon salary but upon the motivation of the individual teaching employee. We agree with PERB that this limited portion of the Promotions item is mandatorily negotiable.
Summer Employment — PERB’s order approving the negotiability of this subject is limited to the criteria, procedures, or methods for screening candidates for summer employment. This is directly related to salary, is a matter which is generally unique to the teaching faculty, and is a matter of considerable concern to those persons directly affected. It is mandatorily negotiable. The matters of determining whether summer sessions will be held, and of determining the courses to be offered, of course, remain nonnegotiable.
Tenure — the granting of tenure to the teaching staff members in state institutions of higher learning is not directed by statute, as is the tenure of teachers in the public schools and community colleges. All that PERB’s order holds to be negotiable under this item is the period of time that a faculty member must serve before he or she is considered for tenure. We agree that this is a proper subject for mandatory negotiations at the university level.
Retrenchment — The parties stipulated that “retrenchment” means “reduction in force and includes the method and procedures used for reduction of personnel, how personnel are to be laid off and establishment of procedures for recall of personnel.” PERB held that the procedures by which a reduction in the work force is achieved is mandatorily negotiable. The decision as to whether a reduction is necessary is, of course, a management prerogative. We considered the issue of retrenchment with reference to public school teachers under the P N Act in NEA-Parsons v. U.S.D. No. 503, 225 Kan. 581, 593 P.2d 414 (1979), and we held that it was not mandatorily negotiable. We based that decision, however, upon management prerogative and upon factors which are not here present. Quoting the trial judge, we said:
“ ‘[T]he individual teacher’s job security, whether the teacher is a member of the teachers’ association or not, is already protected by statute under the Continuing Contract Law and the Due Process Procedure on Contract Termination. Strict limitations are placed on the school board by these statutes, and such matters as have been fixed by statute may not be adjusted or changed by the parties.’ ” 225 Kan. at 586. (Emphasis in original.)
The cited statutes are, of course, inapplicable here and afford no protection to the university teaching staff. Further, the teaching and research personnel in the institutions of higher learning governed by the Regents are in the unclassified civil service, and do not have the protections given by statute to those persons in the classified civil service relating to tenure, layoffs due to shortage of work, dismissals, demotions and suspensions. See K.S.A. 1982 Supp. 75-2935(/), -2946, -2948 and -2949. Members of the teaching faculty at Pittsburg State University are appointed by the president of that institution and serve at his. pleasure, subject to policies approved by the Regents. K.S.A. 76-715.
We note also that retrenchment has been a subject of some difficulty at the University. The president, on several occasions, approached the PSU Faculty Senate, an elected representative body of the teaching faculty, and sought that body’s help in formulating retrenchment policies. The senate and the faculty as a whole passed resolutions indicating that they wished KNEA to represent their interests in formulating such a policy. Nevertheless, the president implemented a faculty election procedure to produce a committee, ultimately appointed by him from an elected pool, to establish retrenchment procedures. A KNEA proposal on retrenchment was “on the table” at that time. Retrenchment was expressly mentioned in the two negotiated agreements at Pittsburg State University, and retrenchment has been included in numerous other negotiated agreements approved by the Regents. The Supreme Court of Wisconsin, employing a test similar to that employed by PERB, has found that the procedures by which a reduction in staff is effected, rather than the decision to effect a reduction, is mandatorily negotiable. Beloit Education Asso. v. WERC, 73 Wis. 2d 43, 242 N.W.2d 231 (1976). Other courts have arrived at the same conclusion. See Annot., 84 A.L.R.3d 242, § 20, pp. 292-93.
We conclude that PERB’s decision that retrenchment procedures are significantly related to conditions of employment and are mandatorily negotiable is reasonable under the Act. We agree with that determination.
Personnel Files — the right of a public employee to review his or her personnel file, upon which many management decisions of great import to the employee may be based, is an appropriate subject for mandatory negotiations. We agree with PERB’s discussion and conclusion on this issue.
We have carefully considered all the issues raised in this appeal and find no error.
The judgment is affirmed. | [
-80,
-20,
-35,
-36,
42,
96,
50,
18,
113,
-9,
37,
83,
-115,
-40,
9,
123,
-109,
37,
80,
75,
-41,
-74,
91,
-63,
-122,
-37,
-6,
-51,
-77,
126,
-74,
94,
73,
49,
10,
-35,
-122,
66,
-55,
-44,
-118,
6,
105,
-8,
-47,
-63,
60,
123,
50,
-53,
49,
31,
123,
44,
24,
-58,
-115,
44,
89,
45,
33,
-80,
94,
-123,
127,
2,
-93,
1,
-100,
39,
-36,
111,
-102,
49,
9,
-20,
98,
-90,
-122,
-12,
47,
-103,
0,
99,
98,
35,
-76,
-27,
-100,
-72,
46,
126,
-115,
-58,
-111,
88,
38,
9,
-106,
-100,
48,
16,
75,
122,
-26,
13,
-105,
-19,
-126,
-113,
-22,
-77,
15,
101,
-98,
23,
-21,
33,
49,
96,
-31,
-18,
95,
71,
114,
83,
-10,
-80
] |
The opinion of the court was delivered by
Prager, J.:
This is an action in mandamus brought by the Tri-County Public Airport Authority against the Board of County Commissioners of Morris County to determine the tax-exempt status of certain real property owned by the plaintiff and for recovery of real estate taxes paid on the land for the years 1977 through 1980.
The facts are not in dispute and essentially are as follows; The city of Herington acquired 1,720.5 acres of real estate on September 24, 1948, by a deed from the United States government. The United States previously had used the land during World War II as the “Delevan Army Air Base.” On December 4, 1979, the city of Herington conveyed the land to the Tri-County Public Airport Authority (Tri-County). The taxes for 1977-78 were paid by the city but not under protest. The 1980 property taxes were not due and had not been paid at the time of the filing of the action on July 18, 1980. Tri-County was created by the city of Herington to operate an airport and came into existence on July 6, 1978. Only a portion of the 1,720.5 acres of land was actually used for a runway for the airport. Portions of the land were rented to private citizens under contract, providing for rental payments for use of portions of the land for a feed lot, private aviation activities, and other business purposes. The State Board of Tax Appeals, by an order dated February 16, 1971, had previously ordered and determined that the property was subject to taxation and was not exempt.
In its answer to Tri-County’s petition, the defendant County filed an answer challenging the jurisdiction of the district court to consider the action. The trial court ruled that it had jurisdiction and proceeded to determine the question whether the airport property rented to others was exempt from ad valorem taxation. The district court held that the land was exempt from taxation under the provisions of K.S.A. 1980 Supp. 79-201a. The defendant County appealed to this court.
At the outset, we are faced with the question of jurisdiction originally raised in the trial court. The district court made no specific finding as to the basis for its jurisdiction, simply holding that it had authority to decide the case. The jurisdictional issue presented must be considered and determined in the light of the Kansas statutes as they existed on July 18, 1980, when the action was filed in the district court. It is important to note that, after the ruling of the Board of Tax Appeals on February 16,1971, holding that the property was not exempt, the city of Herington, which owned the property at that time, did not attempt to appeal the ruling and paid ad valorem taxes through 1979. Tri-County made no effort to obtain an up-to-date ruling from the Board of Tax Appeals (BOTA) on the tax-exempt status of the land in 1980. It simply filed a mandamus action against the County without attempting to exhaust its administrative remedies. The basic issue presented is whether the district court lacked jurisdiction of the mandamus action because of the failure of Tri-County to avail itself of the administrative remedies provided by the Kansas statutes.
Throughout our judicial history, mandamus has been utilized by taxpayers as a remedy in tax cases where other legal remedies provided at the time were deemed not to be an adequate remedy. In Robinson v. Jones, 119 Kan. 609, 240 Pac. 957 (1925), mandamus was held to be a remedy available to an aggrieved tax payer where a board of county commissioners had refused to comply with an order of the tax commission to refund taxes. In Kittredge v. Boyd, 136 Kan. 691, 18 P.2d 563 (1933), mandamus was held to be a proper remedy to require the state treasurer to repay money paid under protest. It was pointed out in the opinion that the plaintiff had no other plain and adequate remedy at law. State, ex rel., v. Williams, 139 Kan. 599, 32 P.2d 481 (1934), involved a dispute between a railroad company and two school districts as to who was entitled to certain tax money. It was not a simple exemption case where other remedies were available. Under the circumstances, mandamus was held to be a proper remedy in the case.
In State, ex rel., v. Davis, 144 Kan. 708, 62 P.2d 893 (1936), it was held that an order of the state tax commission that certain property be taken from the assessment roll as exempt could be reviewed in an action brought by the state on the relation of the county attorney. In that action, the State sought an injunction to enjoin the county treasurer and county clerk from complying with an order of the state tax commission granting an exemption. At that time, no direct appeal was provided to the district court from an order of the state tax commission. Since no other remedy was available, it was held that the State, as an aggrieved party, could maintain an action, using injunction, mandamus, or quo warranto as was best suited to the circumstances. The extraordinary remedy of injunction was available to the aggrieved party on the theory that no other adequate remedy was available.
The 1941 legislature enacted G.S. 1935, 79-2005 (1941 Supp.) which is the forerunner of what is now K.S.A. 1982 Supp. 79-2005. The new statute for the first time gave a taxpayer protesting the payment of taxes the right to bring an action, within thirty days after the filing of his tax protest, in a court of competent jurisdiction or, in the alternative, the right to file an application with the state commission of revenue and taxation (now the state board of tax appeals). 79-2005 thus provided an alternative judicial remedy to an aggrieved taxpayer after paying his taxes under protest. The thirty-day limitation for filing the action in the district court was strictly enforced by the courts. Failure of the taxpayer to commence an action in district court to recover taxes paid under protest within thirty days after filing his protest deprived the district court of jurisdiction. Williams v. Board of County Commissioners, 192 Kan. 548, 389 P.2d 795 (1964).
The cases following the adoption of 79-2005 have consistently held that the remedies provided in that statute were cumulative, so that a taxpayer could pay his taxes under protest and either present his tax grievance to the administrative board provided for in the statute or file an action in district court within the time period allowed after protest. Addington v. Board of County Commissioners, 191 Kan. 528, 533, 382 P.2d 315 (1963); Board of Park Commissioners v. Board of County Commissioners, 206 Kan. 438, 480 P.2d 81 (1971).
Unfortunately, the various Kansas statutes pertaining to procedure in the area of taxation, including appeals, were not organized into a complete, rational scheme. K.S.A. 74-2426 permitted an appeal from the state board of tax appeals in most cases, but there were limitations on the right of a taxpayer to appeal to district court under that statute. In the case of In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980), it was held that the tax grievance statutes, Article 17 of Chapter 79 of the Kansas Statutes Annotated, contained no provision for a right of appeal to the courts from orders of BOTA correcting or refusing to correct irregularities. The court held specifically that K.S.A. 1979 Supp. 74-2426, governing appeals from orders of BOTA was inapplicable to original applications for relief from tax grievances before BOTA under K.S.A. 79-1702. That case followed a prior decision, City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 704, 360 P.2d 29 (1961), which limited appeals to the courts under 74-2426 to such cases as are appealed from the directors of revenue - and property valuation as distinguished from original applications. It held that, there being no statutory provision for appellate review, relief could be found in such equitable remedies as quo warranto, mandamus, or injunction.
In the 1980 legislative session, the House Committee on Assessment and Taxation considered the confusion in the procedural aspects of the Kansas taxing laws. It introduced comprehensive legislation which sought to achieve a number of specific objectives: (1) The elimination of direct actions filed in the district court in tax grievance cases and the requirement in all tax protest cases of a hearing before the board of tax appeals, with right of appeal to the district court; (2) a codification of the tax exemption procedure in Chapter 79, Article 2, with provision for judicial review of tax exemption matters under an omnibus appeals procedure statute, covering every type of order of the board of tax appeals. Such omnibus procedure statute was to include protests, exemptions, and equalization appeals along with appeals involving all taxing departments.
These basic objectives for tax procedural reform are clearly set forth in the minutes of the House Committee on Assessment and Taxation meeting held on March 3, 1980. Following hearings before the committee, the legislature enacted several bills which incorporated the proposed statutory changes and developed a legislative scheme involving procedure in all types of tax cases, including a method of appeal to the district courts in all cases where a taxpayer deems himself aggrieved by orders of BOTA. All of these bills were enacted and approved by the Governor in April 1980, and became effective either during that month or on July 1, 1980, after the effective date of all the new statutory provisions. The new statutory provisions made significant changes in the remedies provided to aggrieved taxpayers in all areas of ad valorem taxation, including cases where a taxpayer claimed an exemption from taxation.
The 1980 reforms in tax- procedure are contained primarily in three statutes. The first is K.S.A. 1980 Supp. 79-2005 which was effective July 1,1980. The former language in that section, which permitted an aggrieved taxpayer to pay his taxes under protest and then file an action within thirty days in a court of competent jurisdiction, was eliminated. His sole remedy is now to file an application for refund within the thirty-day period with BOTA. This statutory change achieved the legislative objective of eliminating direct action in the district court, thus channeling all tax matters through BOTA, the paramount taxing authority in the state. Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972).
The second important 1980 statutory change was in K.S.A. 74-2426, which provides in part:
“(a) Whenever the board of tax appeals shall enter its final order on any appeal or in any proceeding under the tax protest, tax grievance, tax exemption statutes or any original proceeding before the board other than the above cases said board shall make written findings of fact forming the basis of such determination and final order and such findings shall be made a part of such final order. The board shall mail a copy of its final order to all parties to the proceeding within ten days following the certification of the order. The appellant or applicant and the county appraiser shall be served by restricted mail.
“(h)(1) No appeal shall be taken from a final order of the board unless the aggrieved party shall have first filed a motion for rehearing of that order with the board and the board shall have granted or denied the motion for rehearing, or thirty days shall have lapsed from the filing of that motion with the board, from which it shall be presumed that the board has denied the motion. Any order issued by the board following a rehearing shall become the final order of the board.
“(2) Within thirty days following the certification of any final order of the board, on such motion for rehearing, any aggrieved party in such appeal or proceeding may appeal to the district court of the proper county.
“(3) No appeal shall be taken from any order of the board in a no-fund warrant proceeding issued pursuant to K.S.A. 12-110a, 12-1662 et seq., 19-2752, 75-4361, 79-2938, 79-2939, 79-2951 and statutes of a similar character.
“(4) This statute shall be exclusive in determining appeals taken from all decisions of the board of tax appeals after the effective date of this act and shall exclusively govern the procedure to be followed in taking any appeal from the board of tax appeals from and after such date.”
This statutory change was effective April 16, 1980, and permits an appeal from any order of BOTA including original proceedings before BOTA. It achieved the legislative objective by providing for judicial review of all tax exemptions and the other mentioned tax matters under an omnibus tax appeals procedure.
The third statutory change was the enactment of a new statute, K.S.A. 1982 Supp. 79-213, effective July 1, 1980, which provides:
“(a) Any property owner requesting an exemption from the payment of ad valorem property taxes assessed, or to be assessed, against their property shall be required to file an initial request for exemption, on forms approved by the board of tax appeals and provided by the county appraiser.
“(b) The initial exemption request shall identify the subject property and state, in detail, the legal and factual basis for the exemption claimed.
“(c) The request for exemption shall be filed with the county appraiser of the county where the subject property is principally located.
“(d) After a review of the exemption request, and after a preliminary examination of the facts as alleged, the county appraiser shall recommend that the exemption request either be granted or denied, and, if necessary, that a hearing be held. If a denial is recommended, a statement of the controlling facts and law relied upon shall be included on the form.
“(e) The county appraiser, after making such written recommendation, shall then file the request for exemption and the recommendations of the county appraiser with the board of tax appeals.
“(f) Upon receipt of the .request for exemption, the board shall docket the same and notify the applicant and the county appraiser of such fact.
“(g) After examination of the request for exemption, and the county appraiser’s recommendation related thereto, the board may fix a time and place for hearing, and shall notify the applicant and the county appraiser of the time and place so fixed. In any case where a party to such request for exemption requests a hearing thereon, the same shall be granted. In all instances where the board sets a request for exemption for hearing, the county shall be represented by its county attorney or county counselor.
“(h) In the event of a hearing, the same shall be originally set not later than ninety (90) days after the filing of the request for exemption with the board.
“(i) When a determination is made as to the merits of the request for exemption, the board shall enter its order thereon and give notice of the same to the applicant, the county attorney and the county appraiser by sending to each a certified copy of its order.
“(j) The date of the order, for purposes of filing an appeal to the district court, shall be the date that a certified copy of the order is mailed to the party seeking to appeal.
“(k) During the pendency of a request for exemption, and in the event that taxes have been assessed against the subject property, no interest shall accrue on any unpaid tax for the year or years in question from the date the request is filed with the county appraiser until the expiration of thirty (30) days after the board issued its order thereon.
“(l) In the event the board grants the initial request for exemption, the same shall be effective for the period beginning with the date of first exempt use and ending on December 31 of the tax year in question. Thereafter, the tax exemption shall be renewed by the filing of an annual claim for exemption pursuant to K.S.A. 1982 Supp. 79-210 with the county appraiser of the county in which the subject property is principally located.
“(rri) In conjunction with its authority to grant exemptions, the board shall have the authority to abate all unpaid taxes that have accrued from and since the date of first exempt use. In the event that taxes have been paid during the period where the subject property has been determined to be exempt, the board shall have the authority to order a refund of said taxes for a period not to exceed three (3) years.” (Emphasis supplied.)
The language in K.S.A. 1978 Supp. 79-210 was also changed to require the owners of all exempt property to claim the exemption “in each year after approval thereof by the board of tax appeals.” The obvious legislative intent in enacting these statutes was to provide an exclusive statutory remedy before BOTA in all cases involving a claim of tax exemption by any. property owner, including political subdivisions of the state. These statutory changes achieve the legislative objective of codifying tax exemption procedures.
The well-recognized rule in this state is that where a full and adequate administrative remedy is provided in tax matters by statute, such remedy must ordinarily be exhausted before a litigant may resort to the courts. In re K-Mart Corp., 232 Kan. 387, 654 P.2d 470 (1982); Wray v. State Dept. of Revenue, 224 Kan. 234, 579 P.2d 717 (1978).
In this case, Tri-County, as the owner of real property claimed to be tax exempt under the Kansas law, has a full and adequate administrative remedy provided by statute for determination of its tax-exempt status. It made no attempt to avail itself of the administrative remedy; it had no right to resort to the courts in an independent action. It follows that the district court had no jurisdiction to determine this case and this court does not acquire jurisdiction over the subject matter upon appeal.
The judgment of the district court is reversed and the case is remanded to the district court with directions to dismiss the action. | [
-12,
-54,
-15,
30,
26,
-32,
106,
-104,
88,
-73,
39,
83,
-23,
-54,
5,
121,
-70,
61,
84,
105,
-57,
-74,
83,
-13,
-76,
-13,
-119,
-35,
-13,
77,
-10,
-26,
76,
-79,
-118,
21,
6,
2,
7,
28,
-50,
4,
-117,
81,
-39,
2,
52,
105,
54,
75,
81,
-113,
-5,
40,
16,
-61,
-24,
44,
91,
105,
-117,
-80,
-21,
-123,
125,
70,
48,
0,
-64,
69,
88,
46,
-112,
57,
72,
-24,
81,
-90,
-122,
-76,
11,
-7,
-120,
42,
35,
33,
12,
-33,
-32,
-119,
14,
114,
-67,
-27,
-44,
88,
114,
-64,
-106,
-99,
117,
114,
75,
-2,
-26,
4,
95,
108,
15,
-50,
-28,
49,
79,
100,
-118,
81,
-49,
39,
49,
64,
-123,
-50,
94,
71,
58,
27,
-105,
-72
] |
The opinion of the court was delivered by
Prager, J.:
This is a proceeding to enforce a Minnesota judgment under the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq. The plaintiff-appellee is Johnson Brothers Wholesale Liquor Co. The defendant-appellant is Bruce Clemmons.
The facts in the case are not in dispute and are as follows: On May 14, 1971, the plaintiff obtained a judgment in Minnesota against the defendant and others in the amount of $39,402.78. This judgment was rendered by the district court of Ramsey County, Minnesota. On December 7, 1971, the plaintiff filed an action in the district court of Shawnee County based upon the Minnesota judgment. The Kansas court entered summary judgment in favor of the plaintiff on February 15,1972, in the amount of $39,402.78 plus interest. On May 9, 1972, plaintiff attempted to levy execution on the property of the defendant but the execution was returned unsatisfied. Thereafter, no additional action was taken by plaintiff on that Kansas judgment, and it became dormant under the provisions of K.S.A. 60-2403. Plaintiff failed to revive that judgment within two years after the date the judgment became dormant as required by K.S.A. 60-2404.
On September 24, 1973, plaintiff received payment of the sum of $12,902.22 in partial satisfaction of the plaintiff s judgment from a trustee in bankruptcy appointed by a federal court in Minnesota. Thereafter, no further action was taken by the plaintiff upon its 1971 Minnesota judgment until May of 1981 when plaintiff initiated an action in the district court of Ramsey County, Minnesota, based upon the 1971 Minnesota judgment. The record shows that personal service in that action was made on the defendant in Shawnee County on May 12, 1981. On July 16, 1981, the district court of Ramsey County, Minnesota, entered a new judgment in favor of the plaintiff in the amount of $46,418.25 and costs. Thereafter, the plaintiff filed its 1981 Minnesota judgment in the district court of Shawnee County and proceeded to enforce the same in compliance with the Uniform Enforcement of Foreign Judgments Act (K.S.A. 60-3001 et seq.).
On April 27, 1982, the district court of Shawnee County entered judgment in favor of the plaintiff holding the 1981 Minnesota judgment to be properly filed and enforceable under the uniform act. The defendant has brought a timely appeal to this court.
The primary issue presented in the case is whether the 1981 Minnesota judgment is enforceable under the factual circumstances set forth above. In determining this issue we must consider the Kansas statute of limitations, the Kansas statutes pertaining to dormant judgments and revivor of the same, and the Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1.
K.S.A. 60-3001 defines a foreign judgment to include any judgment, decree, or order of any other court which is entitled to full faith and credit in this state. K.S.A. 60-3002 provides that a judgment filed pursuant to the act has the same effect and is subject to the same procedures, defenses, and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner. K.S.A. 60-3006 declares that the right of a judgment creditor to bring an action to enforce his or her judgment instead of proceeding under the uniform act remains unimpaired.
The Kansas statute of limitations governing actions brought on foreign judgments is K.S.A. 60-511(5) which sets a period of limitation of five years for an action for relief not provided for otherwise in the article governing the statute of limitations. See Leonard v. Kleitz, 155 Kan. 626, 127 P.2d 421 (1942); Rice v. Moore, 48 Kan. 590, 30 Pac. 10 (1892); Alexander Construction Co. v. Weaver, 3 Kan. App. 2d 298, 594 P.2d 248 (1979). In passing, it should be noted that K.S.A. 60-516 provides that where the cause of action has arisen in another state and where the cause of action cannot be maintained thereon by reason of lapse of time, no action can be maintained in this state except in favor of one who is a resident of this state and who has held the cause of action from the time it accrued.
K.S.A. 60-2403 provides, in substance, that if execution shall not be sued out within five years from the date of any judgment rendered in any court of record of this state or within five years from the date of any order reviving such judgment or, if five years have intervened between the date of the last execution issued on any judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant and shall cease to operate as a lien on the estate of the judgment debtor. When a judgment shall become dormant and shall so remain for a period of two years, it is the duty of the clerk of the court to release the judgment of record.
K.S.A. 60-2404 provides, in substance, that a dormant judgment may be revived within two years of the date on which such judgment became dormant. The holder is required to file a motion for a revivor and a request for the immediate issuance of an execution thereon if such motion is granted. As noted above, the judgment obtained by plaintiff in Shawnee County District Court on February 15, 1972, became dormant and was not revived under the statutory provisions. In Kansas, under these statutes, a party may, by the issuance of an execution every five years, keep a judgment alive indefinitely. The judgment remains in force without execution for five years, and the plaintiff may revive it at any time within two years‘if it has become dormant thereafter, so that a plaintiff may neglect his judgment for seven years, lacking a day, and then revive it and put it in force for five years more. Riney v. Riney, 205 Kan. 671, 680, 473 P.2d 77 (1970).
The Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1, declares that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. The United States Supreme Court and other federal courts have consistently held that the Full Faith and Credit Clause does not prevent the forum state from applying its own statute of limitations to a sister state’s judgments, provided the statute of limitations of the forum does not discriminate against out-of-state judgments and does not deny, unreasonably restrict, or oppressively burden the right to bring such an action to enforce such judgment. The leading case that recognizes this principle is M’Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 10 L.Ed. 177 (1839). Many cases following the rule are cited in the annotation in 36 A.L.R.2d 567 and also in the annotation found at 17 L.Ed.2d 952.
Thus, it has been recognized that a state may refuse to enforce the judgment of a sister state, where an action on that judgment is brought later than the applicable statute of limitations of the forum permits, even though the judgment would not have been barred in the state which rendered it.
The principle is also well established that, where an action is brought in another state upon a judgment of a sister state which is a revival of an earlier judgment, and under the law of the state rendering the revival judgment it is a new judgment and not merely an extension of the statutory period in which to enforce the original judgment, a judgment of revival, as a new judgment, is entitled to full faith and credit and may not be refused enforcement on the ground that under the law of the forum the original judgment could not have been revived at the time it was revived by the judgment of the sister state. The rule has been applied both where the judgment of revival was rendered in the state where the original judgment had been rendered (Union National Bank v. Lamb, 337 U.S. 38, 93 L.Ed. 1190, 69 S.Ct. 911, rehearing denied 337 U.S. 928 [1949]), and also where the judgment of revival was rendered in a sister state. Roche v. McDonald, 275 U.S. 449, 72 L.Ed. 365, 48 S.Ct. 142 (1928). This principal was recognized in Tanner v. Hancock, 5 Kan. App. 2d 558, 619 P.2d 1177 (1980).
The controlling question in this case is whether the 1981 Minnesota judgment was a new judgment and not merely an extension of the statutory period in which to impose the original judgment. This court has held that in an action on a foreign judgment its nature, validity, and finality are to be tested by the law of the jurisdiction where the judgment was rendered. Baker v. Erbert, 199 Kan. 59, 62, 427 P.2d 461 (1967). Here, the issue of whether the 1981 Minnesota judgment was a valid new judgment must be determined under the Minnesota statutes and case law. Under Minn. Stat. Ann. § 550.01 (West 1947), a party in whose favor a judgment is given may proceed to enforce the same at any time within ten years after the entry thereof. Minn. Stat. Ann. § 548.09 provides, in substance, that a judgment shall survive, and the lien thereof continue, for the period of ten years next after its entry. Minn. Stat. Ann. § 541.04 provides that no action shall be maintained upon a judgment unless begun within ten years after the entry of such judgment. Under Minnesota case law, where a new action is filed on an old judgment during the ten-year period, the judgment creditor obtains a new judgment which thereafter has a ten-year life of its own. Sandwich Manuf'g Co. v. Earl, 56 Minn. 390, 397, 57 N.W. 938 (1894). That case is cited in Good v. Kleinhammer, 122 Kan. 105, 108, 251 Pac. 405 (1926).
In this case, the district court held that it was bound to follow the substantive law of Minnesota, the state in which the 1981 judgment was entered. It cited Sandwich Manuf'g Co. v. Earl and pointed out that, according to Minnesota substantive law, the judgment entered on July 16, 1981, was a new judgment and not merely a revival or extension of the judgment entered in 1971. The trial court then concluded that, because the Minnesota judgment of July 16, 1981, was only four months old at the time the suit was commenced in Shawnee County District Court, the Kansas statute of limitations is not a bar to this action. We approve the rationale of the trial court under the statutes and case law cited above. It follows that the judgment of the district court must be affirmed.
Judgment affirmed. | [
-16,
-18,
-7,
29,
10,
96,
43,
-102,
123,
-16,
39,
83,
-23,
66,
1,
107,
122,
125,
117,
120,
-55,
-89,
23,
-63,
-42,
-69,
-39,
-35,
-79,
127,
-28,
-44,
76,
-80,
10,
-75,
70,
-62,
-107,
30,
-18,
4,
41,
-8,
89,
3,
52,
107,
4,
2,
117,
47,
115,
41,
29,
-61,
109,
60,
-5,
44,
-61,
-16,
-101,
-107,
109,
23,
-111,
32,
-104,
5,
88,
62,
-112,
49,
34,
-24,
123,
-74,
-58,
52,
47,
-7,
12,
46,
99,
33,
16,
-17,
-4,
-104,
15,
-34,
-99,
-121,
-112,
88,
67,
15,
-74,
-99,
124,
20,
7,
-4,
-26,
20,
-113,
104,
-121,
-54,
-42,
-79,
13,
117,
10,
7,
-17,
-93,
48,
81,
-35,
2,
92,
-42,
48,
27,
-113,
-71
] |
The opinion of the court was delivered by
Prager, J.:
This is an action for a declaratory judgment which attacks the validity of a Junction City ordinance annexing the Fort Riley military reservation and other lands in Riley County. The plaintiffs are the Board of County Commissioners of Riley County, the city of Manhattan, and 22 individual landowners. The defendant is the city of Junction City. The district court entered summary judgment in favor of the plaintiffs, holding the annexation to be null and void. The city of Junction City has appealed.
The undisputed facts, issues of law, contentions of the parties, and a decision on the issues are contained in a well written, comprehensive memorandum opinion by Judge Terry L. Bullock. Certain portions of the district court’s opinion which contain the rationale of the district court in determining the issues will be referred to from time to time in this opinion.
The facts in the case are undisputed and essentially are as follows: On February 2, 1982, the city of Junction City, acting through its city commission, adopted resolution 975, which announced the commission’s intent to annex, inter alia, Fort Riley, Kansas, a military reservation consisting of some 98,000 acres, situated in Geary and Riley Counties and adjacent to the city of Junction City. In the early morning hours of April 7, 1982, city ordinance S-2290 was adopted on second and final reading. No written notice of the proposed annexation, as required by K.S.A. 12-520a(c), was ever given other than to the government of the United States of America.
In adopting ordinance S-2290, the city commission apparently intended to annex only the Fort Riley military reservation. In fact, however, the legal description contained in the ordinance, a single continuous perimeter description circumscribing one single tract of land, encompassed not only the Fort Riley military reservation but, in addition, a 10.66 acre tract owned by Riley County, which was its Wilderness Park; a 10.58 acre tract owned by the city of Manhattan, which was its airport; and several tracts of land owned by the individual plaintiffs, which land was located in Riley County and totaled about 1,000 acres more or less. The tracts owned by Riley County, the city of Manhattan, and the individual plaintiffs did not adjoin the city boundary of Junction City as it existed prior to April 7, 1982.
It appears that, following passage of the resolution announcing the city’s intent to annex Fort Riley, a great deal of activity in opposition to the annexation was generated in the Kansas legislature which was then in session in Topeka. On April 5, 1982, House Bill 3166 was introduced by the Ways and Means Committee. The following day, April 6,1982, House Bill 3166 passed both the Kansas House and Senate. Five days later on April 13, 1982, Governor Carlin signed the bill into law. On April 15, 1982, House Bill 3166 was published in the Kansas Register. House Bill 3166 was enacted as Chapter 59 of the 1982 Session Laws and may now be found at K.S.A. 12-529. It provides as follows:
“12-529. Annexation of military reservation prohibited, (a) The governing body of any city shall not annex any territory of a United States military reservation.
“(b) The provisions of this section shall be applicable to any annexation proceedings commencing after December 31, 1981.
“(c) For purposes of this section, ‘military reservation’ means an installation of the United States under the supervision and control of the secretary of the department of the army.”
The plaintiffs commenced this action contesting the validity of the annexation on May 6, 1982, in the district court of Riley County. While the action was pending on August 17, 1982, ordinance G-546 was adopted by the city commission of Junction City, the same being its annual K.S.A. 12-517 ordinance declaring the boundary of the city. This ordinance purported to delete from the boundary of the city of Junction City all properties owned by the plaintiffs in this action. Defendant conceded, however, that no de-annexation proceeding had ever been had pursuant to K.S.A. 12-504.
In the district court, the plaintiffs contended that ordinance S-2290 was wholly invalid for three reasons:
(1) The ordinance was not enacted in compliance with K.S.A. 12-519 et seq.;
(2) The hearing at which the ordinance passed violated K.S.A. 12-3001 et seq. and K.S.A. 75-4317 et seq.; and
(3) The provisions of House Bill 3166 prohibited the annexation provided for in ordinance S-2290.
The defendant maintained that ordinance S-2290 was not invalid for the following reasons:
(1) The adoption of its August 15, 1982, boundary ordinance makes moot any issue pertaining to the annexation of plaintiffs’ lands and deprives plaintiffs of standing to challenge the subject annexation;
(2) The inclusion of plaintiffs’ land within the legal description contained in ordinance S-2290 was simple error of a trivial nature, constituting mere surplusage which should be ignored by the court;
(3) Even if the ordinance is invalid as to plaintiffs’ lands, it should nonetheless be declared valid as to the remaining lands constituting the Fort Riley military reservation;
(4) The court had no jurisdiction to consider alleged violations of the open meeting law (K.S.A. 75-4317 et seq.); and
(5) House Bill 3166 is unconstitutional and void. In sum, defendant contended that its annexation, insofar as it pertains to the Fort Riley military reservation alone, was valid and should be upheld.
In his memorandum opinion, Judge Bullock considered each of the contentions of the parties and entered judgment declaring ordinance S-2290 in its entirety to be null and void and of no force or effect.
We do not deem it necessary to consider all of the issues raised in the district court. We will determine this case on two issues presented by the city of Junction City on the appeal:
(1) Whether the trial court erred in holding the city ordinance was in violation of K.S.A. 12-519 et seq.; and
(2) Whether House Bill 3166 prohibiting the annexation is constitutional.
As noted above, the defendant contended in the trial court that the adoption of its August 15, 1982, boundary ordinance rendered moot any issue pertaining to the annexation of plaintiffs’ lands and thus deprived plaintiffs of standing to challenge the annexation. In disposing of this issue, the trial court held that the issue was not moot and that the plaintiffs had standing, reasoning as follows:
“Pursuant to K.S.A. 12-520, any owner of annexed land may maintain an action challenging the validity of the annexation ordinance in the district court of the county in which the land is situated. In the case at bar, Ordinance No. S-2290 by its terms clearly purported to annex real estate owned by some, and perhaps all, of the plaintiffs. Although defendant may well have intended to annex only the Fort Riley military reservation, the fact remains that the legal description contained in the annexation ordinance clearly included lands owned by Riley County and the City of Manhattan and arguably included lands owned by the individual plaintiffs. The Court thus concludes that plaintiffs have standing to maintain this action inasmuch as all are property owners within the meaning of K.S.A. 12-520. With respect to defendant’s claim that this action is moot, the Court is likewise persuaded that this contention lacks merit. The reason defendant enacted its August 15, 1982 boundary ordinance, in addition to perhaps enhancing its posture in this litigation, is that K.S.A. 12-517 requires it. That statute provides:
“ ‘Before the last day of December in any year in which any territory has been added to or excluded from any city, the governing body of such city shall declare by ordinance the entire boundary of the city.’
The purpose of this statute is to provide a complete description of the total boundary of the city in one place. It is not a means for annexation or for de-annexation. Those procedures are set forth in great detail in K.S.A. 12-519, et seq. and in K.S.A. 12-504, et seq. A boundary ordinance cannot be used as a substitute for the procedures contained in the annexation and de-annexation statutes. Accordingly, the Court concludes that the boundary ordinance did not, and indeed legally could not, alter Ordinance No. S-2290 and, accordingly, plaintiffs’ claims in this action are not moot.”
In our judgment, the district court properly disposed of the mootness issue, and we adopt the trial court’s rationale in that regard.
We turn now to the issue as to whether the trial court erred in holding that ordinance S-2290 was invalid for the reason that it was not enacted in compliance with K.S.A. 12-519 et seq. It is clear from the record, and the defendant concedes, that thé plaintiffs did not receive any notice of the proposed annexation as required by K.S.A. 12-520a(c). Furthermore, none of the conditions permitting annexation by the city of Junction City applied to plaintiffs property. See K.S.A. 12-520 and 12-520c. There is no doubt that the annexation provided for in ordinance S-2290 was invalid insofar as it pertains to the plaintiffs’ property. This leads us to the key issue in the case: Whether the ordinance is invalid only insofar as it pertains to plaintiffs’ property or must it be found invalid in its entirety?
In its brief, the city states the issues to be determined in the following language:
(1) Whether Junction City ordinance S-2290 can be construed as annexing only a tract of land owned by the United States (Fort Riley military reservation), or whether it also annexed the separate tracts of land owned by plaintiffs;
(2) Assuming arguendo that plaintiffs are correct in alleging that Junction City ordinance S-2290 invalidly annexed their tracts, whether such invalidity affected the validity of annexation of the remaining tract owned by the federal government. The city argues that ordinance S-2290 should be construed as only annexing Fort Riley. It is undoubtedly true that the city never intended to annex the tracts of land owned by the plaintiffs. The problem arose because the property of the various plaintiffs was clearly included within the metes and bounds description of the area annexed. The city argues that the description of the property was obtained by the city from the federal government, that it was obviously erroneous, and that the mistake in the metes and bounds description was no fault of the city, which made every effort to comply with the annexation statutes.
K.S.A. 12-520a(o) requires the city, in its resolution stating that the city is considering the annexation of land, to describe the boundaries of the land proposed to be annexed. The legal description contained in both the resolution and ordinance clearly but erroneously included the tracts of land owned by the various plaintiffs. The resolution and the ordinance were not ambiguous, for they clearly described the tracts of land owned by the plaintiffs as being included within the annexation. Although the legal description did not coincide with what the city suggested was the legislative intent, it nevertheless did include the plaintiffs’ land. We cannot accept the contention of the city that the error in the boundary description was trivial and that it should be treated as mere surplusage, and the balance of the ordinance held valid. The annexed tracts of land owned by the various plaintiffs exceeded 1,000 acres. The trial court correctly held that the annexation provided for in ordinance S-2290 was invalid insofar as it pertained to plaintiffs’ property.
We turn now to the issue whether the invalidity of the annexation as to plaintiffs’ lands affected the validity of the annexation of the remaining tract of land owned by the federal government. In holding that ordinance S-2290 was invalid in toto, the court applied a doctrine of law followed in this state commonly described as the “all or nothing” rule. In its memorandum opinion, the district court reasoned as follows:
“The only remaining issue in this connection is whether the ordinance is invalid only as it pertains to plaintiffs’ property or is invalid in toto. In resolving this issue, it is necessary to examine not only our present relevant statute, K.S.A. 1981 Supp. 12-520, but the legal history from which that statute emerged. Prior to 1967, the year in which K.S.A. 12-520 was enacted, it had long been the law in Kansas that an annexation ordinance must stand or fall as a whole and that where an ordinance attempted to annex land in one parcel, only part of which was lawfully subject to annexation, the entire ordinance was held invalid. As early as 1893, the Court in Stewart v. Adams, 50 Kan. 568, 32 Pac. 912, held:
“ ‘We are urged to declare, in the first instance, that the mayor and city council of Argentine did not intend to take into the city the tracts of unplatted land exceeding five acres in extent, although the ordinances, in establishing the boundary line of the city, embraced these tracts of unplatted land; and then we are further urged to declare, after the mayor and city council of Argentine have fixed the boundary line of the city by ordinances, they intended thereby to establish another and wholly different boundary line than as stated in the ordinances. To give the construction desired, we must give an interpretation to the ordinances different from what they read, and we must change the boundary line of the city of Argentine, as established by the ordinances, and make a new boundary line for the city. We do not think, in the form that the ordinances were drawn and passed, that we can make the changes suggested, by establishing a new and different boundary line.’ 50 Kan. at 571-72.
The Stewart court held that the boundary line could not be placed by the Court in a position other than that described by the city in its ordinance inasmuch as such ‘would be legislation; not the exercise of judicial power.’
“In 1926, in Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456, our court commented:
“ ‘The power to create municipal corporations, including the power to designate their boundaries and to increase or to decrease their corporate limits, is purely legislative — it is not a part either of the executive or judicial branch of the government. In the absence of constitutional restrictions the legislature may exercise this power at will, as was frequently done in our territory prior to the adoption of our constitution.’ p. 50.
Accordingly, by this early date the law was clear that the Court could not draw any boundaries to correct alleged errors in a single-tract annexation ordinance. The designation of boundaries was clearly held to be a purely legislative function which could neither be performed by nor delegated to the judicial branch. The Kansas ‘all or nothing’ rule found favor in other states as well. See, for example, Donovan v. City of Louisville, 299 S.W.2d 636, 638 (Ky. 1956), where the Kentucky court, in holding that it could not validate the annexation of only a part of the single tract annexed, commented:
“ ‘The rule laid down is supported by the great weight of authority, and it is also amply grounded on logic. The basic rationale for this rule is found by examining the nature of the annexation process. Since annexation is essentially a legislative matter, Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089; 62 C.J.S., Municipal Corporations, § 50, p. 146, the legislative act of the city, that is, the ordinance in this case, must stand or fall as a whole. If piecemeal annexation were permitted, the trier of facts (usually the jury) would possibly be empowered to decide exactly what territory would be annexed and what would not, and such a procedure would destroy the orderly conduct of annexation. The city decides how much territory it wishes to annex. It gets it all or none.’
See also City of Clinton v. Owners of Property Situated Within Certain Described Boundaries, 191 N.W.2d 671 (Iowa 1971) (it is not the privilege of the court to decree annexation of only part of the territory sought); Sullivan v. City of Omaha, 183 Neb. 511, 162 N.W.2d 227 (1968) (it is not for the courts to determine what portions may be properly annexed, for the fixing of boundary lines is a legislative act); City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571 (Tex. 1964) (the court has no power to reframe the ordinance to eliminate territory which is not adjacent to the annexing city); Batie et al. v. City of Webster, 80 S.D. 295, 122 N.W.2d 764 (1963) (if a petition to exclude land from a city embraces territory which a court has no authority to exclude, the whole petition must be denied); and, City of Aurora v. Empire District Electric Company, 354 S.W.2d 45 (Mo. App. 1962) (the court’s contraction or expansion of boundaries as laid out by the city council would be an attempted invasion of the legislative function).
“It was thus clear from early times that annexation ordinances, at least insofar as they purported to describe a single tract of land, were either valid or invalid as a whole. But what about zoning ordinances which described several separate tracts of land? Could these tracts be considered individually with respect to the validity of the annexation or did they, as in the single tract annexation cases, likewise stand or fall as a whole? Kansas law was somewhat inconsistent on this point prior to 1967. In the mentioned case of Stewart v. Adams, on rehearing, the Court hinted that the ‘all or nothing’ rule might not apply: ‘[i]f either ordinance has merely added to the city of Argentine, as originally bounded, certain described lots or parcels of land, as is usual in such cases . . . .’50 Kan. at 571.
“In State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P.2d 901 (1953), however, the court appeared to use the ‘all or nothing’ rule even in a separate tract annexation case. In James v. City of Pittsburg, 195 Kan. 462, 407 P.2d 503 (1965), the city attempted to annex a 75 acre subdivision, which subdivision included 15 lots of 5 acres. By statute, the city could annex a single tract of land not exceeding 20 acres. Reversing the judgment for the city, the court rejected the city’s argument that the annexation was proper because no individual lot or tract exceeded 20 acres. The court’s language again hinted that the ‘all or nothing’ rule might not have been applied if the tracts had been separately described in the ordinance:
“ ‘We are not impressed with the logic of this argument. The simple answer to such a contention is that the city did not attempt, in Ordinance G-47, to annex separate individual lots or tracts of 5, or even 15 acres, but sought, instead, to annex a single unplatted tract consisting of 75 acres. In its enactment of Ordinance G-47, attempting to annex Acme Subdivision as one tract, the city went beyond and exceeded the clear and explicit grant of authority contained in G.S. 1949, 13-1602.’ 195 Kan. at 464-65.
“Thus, by 1965 Kansas Courts consistently applied the ‘all or nothing’ rule in single tract annexation cases and seemed to vacillate concerning the applicability of that rule in annexation ordinances containing separately described tracts. In an obvious attempt to clarify the rule relative to annexation ordinances containing separately described tracts, the legislature in 1967 adopted K.S.A. 12-520, which provides in material part:
“ ‘The governing body of any city may by one ordinance annex one or more separate tracts or lands each of which conforms to any one or more of the foregoing conditions. The invalidity of the annexation of any tract or land in one ordinance shall not affect the validity of the remaining tracts or lands which are annexed by such ordinance and which conform to any one or more of the foregoing conditions.’
Unquestionably, K.S.A. 12-520 was intended to express the legislative intent that the ‘all or nothing’ rule not apply in factual situations where a city attempts by one ordinance to annex several separate tracts which are separately described in the annexation ordinance.
“This conclusion is also consistent with the legislative intent as gleaned from the face of K.S.A. 12-520, which states the ‘governing body of any city may by one ordinance annex one or more separate tracts or lands,’ (emphasis added) and the invalidity of any such tract or land will not invalidate the remaining tracts or lands.
“In State, ex rel. v. City of Coffeyville, 211 Kan. 746, 749, 508 P.2d 1007 (1973), the court in discussing the history of the pertinent provision of K.S.A. 12-520 stated ‘the proviso that a city by one ordinance may annex one or more separate tracts or lands each of which conforms to any one of the prescribed conditions for annexation, permits consolidation of separate annexations in one procedure, thereby saving time and-expense.’ (Emphasis added.)
“For those reasons, this Court concludes that K.S.A. 12-520 was intended to apply only in those situations where a city attempts to ahnex several distinct and separately described tracts. In the instant case, Junction City attempted to annex Fort Riley: one ‘tract’ as that term is used in K.S.A. 12-520. Because of an apparently erroneous legal description, the ordinance also annexed property owned by Riley County, the City of Manhattan, and perhaps the other plaintiffs as well. Throughout the proceedings Junction City intended to annex only one ‘tract.’ While K.S.A. 12-520 allows a city to annex one or more separate tracts and the invalidity of any such tract will not invalidate the remaining tracts, that is simply not what the city sought to do in the instant case. Inasmuch-as Junction City intended, described and attempted to annex only one tract, the Court concludes that K.S.A. 12-520 is inapplicable to the case at bar and thus, the ‘all or nothing’ rule applies.
“As previously noted, the annexation of land by municipal corporations is a legislative function. Sabatini v. Jayhawk Construction Co., 214 Kan. 408, 413, 520 P.2d 1230 (1974). The wisdom, propriety, necessity or advisability of annexing territory is not a matter for judicial consideration. State, ex rel., v. City of Overland Park, 192 Kan. 654, 656, 391 P.2d 128 (1964). In the present case, Ordinance No. S-2290 attempted to annex only Fort Riley, but the erroneous description caused inclusion of realty owned by Riley County and the City of Manhattan. If this Court were to construe or rewrite the description so as to annex only Fort Riley, such would constitute a prohibited exercise of a legislative function. Because Junction City intended to describe only Fort Riley, the erroneous description affected the validity of the entire ordinance. This Court cannot correct an erroneous description in an ordinance that attempts to annex only one tract. As such, Ordinance No. S-2290 cannot be construed so as to uphold the annexation of Fort Riley while at the same time invalidate the annexation of plaintiffs’ property. It necessarily follows that Ordinance No. S-2290 must be invalidated, in toto, including the annexation of Fort Riley.
“This ruling is also consonant with considerations of public policy pertaining to rules of general applicability. If cities are required to separately describe and label separate tracts in annexation ordinances, as a condition precedent to the applicability of K.S.A. 12-520, several desirable results will follow. First, persons whose lands are the subject of the proposed annexation will be placed on notice that the city intends to avail itself of the separate tract statute and that they should deal with| the propriety of annexation as it relates to their tract alone — in addition to the propriety of the entire annexation scheme. Second, the Court will be on notice that the city has a legislative intent to annex all or any one of the tracts so described — thus eliminating confusion whether the city would have desired to annex only a part of the tracts should it be held that for some legal reason they cannot annex them all. Third, with legislative intent thus clarified, the Court will be removed from the legislative function of drawing city boundaries, an impermissible judicial function under our concept of the separation of powers.”
We agree with the decision of the district court that city ordinance S-2290 was invalid in toto, including the annexation of Fort Riley. The rationale of the district court set forth above is approved and adopted by this court.
The defendant city also contends on the appeal that House Bill 3166 is unconstitutional and has no force or effect because it violates the provisions of Article 12, § 5 and Article 2, § 17 of the Kansas Constitution. Article 12, § 5 provides:
“§ 5. Cities’ powers of home rule, (a) The legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, That existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect until superseded by general law and such existing laws shall not be subject to charter ordinance.
“(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. All enactments relating to cities now in effect or hereafter enacted and as later amended and until repealed shall govern cities except as cities shall exempt themselves by charter ordinances as herein provided for in subsection (c).”
Article 2, § 17 provides as follows:
“All laws of a general nature shall have a uniform operation throughout the state: Provided, The legislature may designate areas in counties that have become urban in character as ‘urban areas’ and enact special laws giving to any one or more of such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.”
In holding that House Bill 3166 was constitutional and retroactively effective, the district court reasoned as follows in its memorandum decision:
“The only constitutional limitation in the retrospective application of statutes is that they may not operate to deprive anyone of vested rights. In Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 618 P.2d 778 (1980), our court held that there can be no vested right in an existing law. Further, Kansas cities cannot gain vested rights superior to the legislative prerogative with respect to annexation matters. Our constitution in Article 12, Section 5(a) grants the legislature exclusive jurisdiction over the manner in which cities may alter their boundaries. See also State, ex rel., v. School District, 163 Kan. 650, 185 P.2d 644 (1947); State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974); Williams v. Board of Education, 198 Kan. 115, 422 P.2d 874 (1967); and State, ex rel., v. Board of Education, 173 Kan. 780, 252 P.2d 859 (1953).
“Foreign authorities are in accord. In Deacon v. City of Euless, 405 S.W.2d 59 (Tex. 1966), state legislation was expressly made retroactive so as to nullify a local annexation ordinance. In holding that retroactive application of the statute, as intended by the legislature, was proper, the court ruled as follows:
‘No principle of law is more clearly or firmly settled than that public or municipal corporations, established for public purposes, such as the administration of local or civil government, are not in the nature of contracts between the State and the corporation, and that their charters may be annulled and revoked at the will and pleasure of the Legislature, as it deems the public good may require . ■ . . . Such corporations are the creatures of the State, made for a specific purpose, to exercise, within a prescribed limit, powers conferred upon them.
‘The State may withdraw these local powers of government at pleasure, and may, through its Legislature, or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence . . . .’ 405 S.W.2d at 62.
“After noting that the Home Rule Amendment preserved the priority of general laws over local ordinances, the court stated further:
‘We find nothing in the amendment which curbs the power of the Legislature to limit the annexation powers of home rule cities; and nothing, where private rights are not involved, which curbs the power of the Legislature to impose retroactive limitations. Under the general rule quoted above from Blessing, the Legislature would have the power by general law, private rights not being involved, to detach from home rule cities all territory annexed since any given time or event; and if it may do that, it certainly had the powers to provide that annexation proceedings pending on March 15, 1963, should conform to the limitations imposed by Section 7, par. B of Art. 970a.’
For the same reasons, House Bill No. 3166 cannot be held inappliable in this action.
“Finally, the city has contended that House Bill No. 3166 violates Article 2, Section 17 of our constitution and Article 12, Section 5(a), which requires the legislature to provide by general law applicable to all cities future methods by which city boundaries may be altered.
“While Article 12, Section 5(a) speaks in terms of ‘general laws’ Article 2, Section 17 begins with ‘all laws of a general nature.’ The difference historically attributed to the two phrases was recently noted in Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981), involving a challenge to the constitutionality of a state statute of limitations:
‘The difference between a law of a general nature and a general law is that the subject matter of the former must be one common to the people of the entire state, while all that is required of the latter is uniformity of operation.’ 230 Kan. at 124-125.
Article 12, Section 5(a) therefore requires that all laws dealing with annexation or the incorporation of cities operate uniformly with respect to cities. With regard to the scope of Article 2, Section 17, the court in Stephens, supra, held that:
‘The only prohibition contained in Article 2, Section 17, relates to laws of a general nature which affect the people of the state generally. Such laws must apply uniformly throughout the state and thus be geographically uniform. We, therefore, hold that Article 2, Section 17, of the Kansas Constitution as it exists today is not applicable to constitutional challenges based upon a denial of equal protection of the laws not involving a claim of lack of geographic uniformity.’ Id. at 232. (Court’s emphasis.)
The geographical uniformity required by Article 2, Section 17 is already mandated in this action by the requirement that the legislation be applicable to all cities. The significance of the decision in Stephens was not that it redefined ‘uniform operation’ or ‘laws of a general nature,’ but merely that it restricted challenges pursuant to Section 17 to cases involving geographic classifications. Compare Boyer v. Ferguson, 192 Kan. 607, 389 P.2d 775 (1964) (Sunday closing law invalidated); State, ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 343 P.2d 234 (1959) (unfair competition statute invalidated). Here, the defendant’s challenge is admittedly based on a geographic distinction, to-wit: the applicability of the statute to all cities.
“The requirement of uniform geographic application does not mean, of course , that the statute must affect all people or all cities in the state in the same manner. A long and time-tested line of Kansas authority conclusively establishes that legislation may apply to only one governmental entity, and still be ‘of uniform operation,’ if the class created by the statute is not arbitrary. In State v. Butler County, 77 Kan. 527, 94 Pac. 1004 (1908), the court rejected a challenge under Section 17, reasoning significantly as follows:
‘It is urged that the act in question is a general law which can apply to not more than two counties in the state. If, however, it operates uniformly on all the members of the class to which it applies it is not open to the objection, provided the classification adopted by the legislature is not an arbitrary or capricious one. The legislature has the power to enact laws of a general nature which will be applicable only to a certain portion of the state or to a certain class of citizens. The following language is from the syllabus in the case of Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915: “An act, to have a uniform operation throughout the state, need not affect every . . . community alike.” The fact that there are at present but few counties to which the exception can apply does not of itself render the act repugnant to this provision of the constitution.’ pp. 533-34.
A challenge under the uniformity provision also failed in City of Kansas City v. Robb, 183 Kan. 834, 332 P.2d 520 (1958), where the challenge was to a statute which exempted cities with certain populations from holding bond elections. Although in effect the statute only affected two cities, the court found a rational justification for the classification created. See also Sossoman v. Board of County Comm’rs, 230 Kan. 210, 630 P.2d 1154 (1981) (statute which applied to any county in which any part of a federal reservoir was located did not violate Section 17, as more than twenty counties in Kansas qualified); Common School District No. 6 v. Robb, 179 Kan. 162, 293 P.2d 230 (1956) (the mere fact that a statute only applies to one city, one county, or one school district, does not mean that the law is a special law and violative of Section 17, if it is possible that other governmental units may come within the operation of the act). When the statute affects a limited class, the law does not run afoul of the uniformity provision if the class is a natural one and has a reasonable relation to the subject matter involved. ...
“The classification in the instant case is rational. It applies to at least four cities which touch or soon may touch the Fort Riley military reservation, even if it be assumed that the only military reservation to which the statute has applicability is Fort Riley. In addition, it is entirely possible that new military reservations under the jurisdiction of the Secretary of the Army may well be established in this state in the future as they have been in the past. The City contends that the statute does not relate to Fort Leavenworth and that it could not apply to McConnell Air Base since that base is under the jurisdiction of the Secretary of the Air Force rather than the Secretary of the Army. Assuming these contentions to be true the Constitution does not require that state statutes apply uniformly to all military reservations — the requirement is that they apply uniformly to all affected cities.
“Further,
‘When a classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption such state of facts exists, and one who assails the classification must carry the burden of showing by a resort to common knowledge or to matters which may be judicially noticed, or other proper proof, that the action is arbitrary.’ Common School District No. 6 v. Robb, 179 Kan. at 166.
“In the case at bar, defendant has failed to meet the burden of proof to overcome the presumption that the classification contained in House Bill No. 3166 is rational and valid. Accordingly, this Court must also hold that the statute in question is valid, that it retroactively prohibits the proposed annexation, and that for this additional reason, Ordinance No. S-2290 must be declared void.”
We have concluded that the district court did not err in holding that House Bill 3166 (K.S.A. 12-529) is valid and constitutional.
In view of our disposition of the case on these issues, we do not deem it necessary to consider the other issues raised on the appeal.
The judgment of the district court is affirmed. | [
-15,
-20,
-15,
92,
10,
-28,
28,
-76,
122,
-79,
103,
91,
-23,
-118,
5,
105,
18,
29,
80,
120,
-26,
-74,
67,
-57,
-106,
-13,
-23,
-35,
-77,
93,
118,
84,
72,
64,
-118,
-35,
70,
-54,
-121,
94,
-50,
5,
-119,
81,
-46,
0,
62,
123,
58,
-117,
21,
-84,
-13,
40,
24,
-61,
-84,
46,
-37,
111,
-127,
-7,
-4,
-44,
93,
21,
33,
32,
-108,
7,
-48,
58,
-112,
49,
0,
120,
87,
-90,
-122,
118,
7,
-7,
12,
98,
99,
3,
124,
-19,
-24,
-119,
14,
-41,
-113,
-26,
-73,
24,
114,
69,
-74,
-99,
85,
70,
7,
122,
-1,
37,
31,
108,
-121,
-54,
-12,
53,
-49,
124,
-128,
-63,
-21,
-63,
17,
112,
-57,
-10,
92,
-58,
58,
-102,
-49,
-104
] |
The opinion of the court was delivered by
Holmes, J.:
This is an appeal from an order of the district court denying enforcement of an award by the Kansas Commission on Civil Rights (KCCR) entered in favor of claimant Evelyn Lee (now Howell) under the Kansas act against discrimination, K.S.A. 44-1001 et seq.
On October 27,1976, Evelyn Lee Howell filed an employment discrimination complaint with the KCCR against “Service Envelope Company and their representatives.” Mrs. Howell was a former employee of Service Envelope Company, Inc. (Service), and asserted certain acts of discrimination based upon her sex against her former employer. At the time the alleged acts of employment discrimination took place and at the time the complaint was filed, the outstanding corporate stock of Service was owned fifty percent by George R. Clipner and fifty percent by Per Windju. In December of 1976, Windju sold his interest in Service to Clipner, who was then the sole remaining stockholder. On May 22, 1978, a prehearing conference was held with the KCCR. Mr. Clipner, although not an attorney, appeared on behalf of Service as its president. At the request of the claimant her claim was amended to name Service Envelope Company, Inc., as the sole respondent and the words “and their representatives” were specifically deleted from the complaint. On June 6, 1978, the public hearing was held and over a year later, on July 20, 1979, the KCCR examiner filed his decision which was approved by the KCCR on October 25, 1979, just two days short of three full years since the filing of the original complaint. The claimant was awarded $9,810.00 in back wages and $500.00 for pain, suffering and humiliation. No appeal was taken from the KCCR order and award. K.S.A. 44-1011.
During the three years that the matter was pending before the KCCR, numerous changes took place at Service. In January of 1979, Clipner sold his stock in Service to one Michael Herman. Herman organized Metro Envelope Midwest, Inc. (Metro), and the real property where the business of Service was conducted was sold to Clipner. The other assets of Service were sold or transferred to Metro. Sometime in the latter part of 1979, the assets of Metro were sold to three individuals of Bedford, New York, and on February 1, 1980, they sold all or a part of such assets to National Envelope Corp.-Midwest, (National), for $1,500,000.00. There is no contention that any of the transfers were other than arms-length bona fide transactions.
In May of 1980, the KCCR filed suit in district court on behalf of the claimant to collect the employment discrimination award. K.S.A. 44-1011. Named as defendants were Service, Metro, National and George R. Clipner. The case was heard in district court on November 10,1981. By that time Service and Metro had both gone out of business and their corporate charters had been forfeited by the Kansas Secretary of State pursuant to K.S.A. 17-7510. It was the position of the KCCR in the trial court, and is its position in this court, that Clipner should be held liable for the award against Service as he had been the president, sole stockholder and chief operating officer of Service and had committed the tortious acts of employment discrimination against Mrs. Howell. The KCCR also took the position that National should be held responsible for the payment of the award under the federal doctrine of remedial successorship liability even though National did not come into existence until nearly four years after the discriminatory acts of Service occurred. The trial court held for both Clipner and National, finding no liability on the part of either. The KCCR has appealed.
At the outset we reiterate that Service, the only party to the proceedings before the KCCR, did not appeal the award to Mrs. Howell and therefore the merits of her claim before the KCCR is notan issue. The sole issues before this court pertain to whether parties who were not named in the original action before the KCCR can subsequently be held liable for an award granted by the KCCR pursuant to K.S.A. 44-1001 et seq.
K.S.A. 44-1011 provides for the filing of a separate action in district court to collect an award that has become final. It provides in pertinent part:
“The commission, attorney general or county attorney, at the request of the commission, may secure enforcement of any final order of the commission by the district court of the county where the unlawful employment practice or unlawful discriminatory practice shall have occurred or where any person required in the order to cease and desist from an unlawful employment practice or unlawful discriminatory practice or to take any affirmative action resides or tfansacts business, through mandamus or injunction in appropriate cases, or by action to compel the specific performance of the order. Such proceedings shall be initiated by the filing of a petition in such court, together with a transcript of the record upon the hearing before the commission, and issuance and service of a copy of said petition as in civil actions. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony and proceedings an order or decree, enforcing, modifying, and enforcing, as so modified, or setting aside in whole or in part, the order of the commission.”
Thus it appears clear the power of the district court in a collection proceeding is limited to enforcing or modifying and enforcing or setting aside in whole or in part the prior order of the KCCR. No provision is made for the joining of parties who were not parties to the original order or for the enforcement of the order against such parties.
Nevertheless, appellant urges this court to adopt what is known in the federal system as “remedial successorship liability.” The theory is that the strong public policy against any type of discrimination based on race, religion, color, sex, physical handicap, national origin or ancestry mandates relief for the discriminatee even though such relief may be at the expense of a totally innocent party who had no part in the original acts of discrimination. The doctrine has been applied in federal labor relations and Title VII discrimination violations when the original employer is no longer available to respond in damages and the original business has been replaced by another entity conducting the same or a similar enterprise.
The doctrine of remedial successorship liability espoused by the KCCR was first applied in the context of labor law and has been recognized by the United States Supreme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 38 L.Ed.2d 388, 94 S.Ct. 414 (1973). In that case, the successor corporation, All American Beverages, Inc., had purchased Golden State’s business after the National Labor Relations Board (NLRB) had found an unfair labor practice and had ordered Golden State to reinstate an employee with back pay. All American was not a party to the adjudication as to the unfair labor practice, but did participate in a subsequent back pay specification proceeding before the NLRB. The NLRB found that although All American was a bona fide purchaser, it had acquired the bottling and distribution business with knowledge of the outstanding board order and that it continued to carry on the business without interruption or substantial change in methods or personnel. The NLRB therefore held All American liable jointly and severally with Golden State as its successor.
In affirming the enforcement order of the Court of Appeals for the Ninth Circuit, the Supreme Court noted the important policies behind the federal labor law and approved the Board’s discretion in balancing the conflicting interests of the bona fide purchaser and the offended employee. The court indicated three important considerations to be made in protecting the rights of the successor. First, it recognized that no liability will be imposed against the bona fide purchaser without affording it a full and fair opportunity to be heard on the issue of its successorship; second, the successor must have acquired substantial assets of its predecessor and continued, without interruption or substantial change, the same business operation as the predecessor; and third, the successor corporation must have had some warning sufficient to protect itself from exposure to such potential liability.
“Since the successor must have notice before liability can be imposed, ‘his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller’s unfair labor practices.’ [Citation omitted.]” 414 U.S. at 185.
That same doctrine of remedial successorship liability was then adopted in a federal Title VII discrimination case. In Equal Emp. Op. Com’n v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974), the Court of Appeals held that Title VII mandates the application of the successor doctrine. The court did, however, emphasize that application of the doctrine is not automatic. It must be determined on a case-by-case basis. It reversed the district court’s sua sponte grant of summary judgment to the successor but also held that the successor was entitled to a more definite statement of the cause against it.
In expressing its reason for holding the doctrine applicable in discrimination cases, the court said:
“Failure to hold a successor employer liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy. In the case where the predecessor company no longer had any assets, monetary relief would be precluded. Such a result could encourage evasion in the guise of corporate transfers of ownership. Similarly, where relief involved seniority, reinstatement or hiring, only a successor could provide it.” 503 F.2d at 1091-92.
In the instant case, there was no showing that National had any knowledge of the existing award in favor of Mrs. Howell. The KCCR candidly admits that National was not a party' to the discriminatory actions of Service and that it was a bona fide purchaser for value of the assets it received. National, on the other hand, concedes that it is operating essentially the same business that was formerly operated by Service, with some of the same equipment at the same location, and employs several of the former employees of Service.
The general rule as to the liability of a successor corporation for the debts of its predecessor was stated in Comstock v. Great Lakes Distributing Co., 209 Kan. 306, 496 P.2d 1308 (1972). In a personal injury action, Great Lakes was sued on the theory that it was merely a continuation of the alleged tortfeasor, Vulcan Manufacturing Company, Inc. Vulcan was never disorganized, but apparently had little or no assets. In affirming a directed verdict and denial of new trial in defendant’s favor, the court said:
“Generally where one corporation sells or otherwise transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor, except: (1) where the purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction amounts to a consolidation or merger of the corporation; (3) where the purchasing corporation is merely a continuation of the selling corporation; or (4) where the transaction is entered into fraudulently in order to escape liability for such debts.” Syl. ¶ 1.
In the instant case, the trial court did not review the possibility of liability under any of the exceptions and a careful review of the record would indicate that none of them apply to the facts of this case. The court simply held that the doctrine of remedial successor liability as adopted by some federal courts does not apply. We also note that the general corporation code specifically covers successor liability in the case of a merger or consolidation. K.S.A. 17-6709. We fully recognize and adhere to the broad public policy of this state as set forth by the legislature in K.S.A. 44-1001. However, we do not believe that public policy against discrimination goes so far as to mandate that a totally innocent successor to a prior corporate employer should be held responsible for its predecessor’s discriminatory practices unless one of the exceptions in Comstock applies. If there was any showing that the business of Service had been transferred to National in an attempt to evade the award due Mrs. Howell or to perpetrate a fraud upon her then the case would fall squarely under the fourth exception in Comstock. However, it is conceded that no such motives were involved in the sale to National.
Appellant contends that Flanigan v. Leavenworth Recreation Commission, 219 Kan. 710, 549 P.2d 1007 (1976), at least inferentially supports the application of the doctrine of remedial successorship liability. Flanigan is not in point and involved a totally different factual setting and the liability of a municipal corporation for alleged discriminatory employment practices. In Flanigan the claimant had a grievance against his employer, the Leavenworth Recreation Commission, and received an award from the KCCR. On appeal summary judgment was entered setting aside the KCCR’s order on the grounds that the Leavenworth Recreation Commission had ceased to exist and there was no person or agency responsible for its outstanding obligations. The recreation commission was a joint enterprise of the City of Leavenworth and its school district. Subsequent to the entering of the award by the KCCR, the recreation commission was abolished and the city assumed its functions and combined them with those of the park system. We held the City of Leavenworth could not avoid liability by abolishing the recreation commission and that the city was its legal successor. If there is any analogy to the obligation of a private successor corporation, it would appear to be more in the nature of the liability of a successor corporation after a merger or consolidation. We do not find Flanigan applicable to the facts in this case. We hold that an award against a corporation based upon discriminatory employment practices is the same as any other unsecured debt and the general rules applicable to the liability of a successor corporation for its predecessor’s debts apply to such an award. The trial court did not commit error in its ruling.
Next the KCCR asserts the trial court was in error in entering judgment for Mr. Clipner.
In McFeeters v. Renollet, 210 Kan. 158, 500 P.2d 47 (1972), we recognized the general rule as to tort liability of corporate officers.
“It is true, as defendants suggest, that a director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character. If, however, an officer commits or participates in the commission of a tort, whether or not it is also by or for the corporation, he is liable to third persons injured thereby, and it does not matter what liability attaches to the corporation for the tort. (19 Am. Jur. 2d, Corporations, § 1382, p. 778.) It is well settled in this jurisdiction that an officer or agent of a corporation who violates a duty owed to third persons is liable to such persons.” p. 161.
In Van Scoyk v. St. Mary’s Assumption Parochial School, 224 Kan. 304, 307, 580 P.2d 1315 (1978), we recognized that an independent tort action would lie against a person alleged to be guilty of employment discrimination after all administrative remedies had been exhausted.
While it is possible that the claimant might have proved that Mr. Clipner was guilty of discriminatory acts or pierced the corporate veil of Service before the KCCR, resulting in personal liability, she chose to amend her complaint to specifically eliminate any representatives of Service. Having done so she can not now attempt to assert liability against Mr. Clipner in this collection proceeding. Assuming that Service could be shown to be the alter ego of Clipner or that Mr. Clipner was personally responsible for the discriminatory acts against Mrs. Howell, that showing should have been made before the KCCR with Clipner being named a party. He was not named a respondent in the KCCR proceedings. To the contrary, the complaint was amended to specifically exclude the representatives of Service which would include Mr. Clipner. Mr. Clipner was not given any notice or opportunity to be heard on an adjudication of a claim of personal liability. Nor did he have any opportunity for conciliation or settlement of any alleged personal liability.
We hold that in an action to enforce an employment discrimination award pursuant to K.S.A. 44-1011, individual officers, directors or employees of the original corporate offender may not be held liable unless such individuals were joined in the original discrimination proceedings before the KCCR and their liability established in those proceedings. Enforcement of the KCCR order based upon Mrs. Howell’s amended complaint naming only the company cannot be had against Clipner in this proceeding.
The judgment is affirmed. | [
-112,
-4,
-4,
-100,
8,
-29,
58,
-110,
81,
-95,
-89,
83,
-87,
-30,
29,
127,
-14,
29,
-48,
106,
-9,
-77,
83,
43,
-46,
115,
-15,
-35,
-79,
95,
-12,
-10,
72,
48,
74,
87,
-58,
-56,
69,
22,
-50,
2,
1,
-24,
-7,
-128,
52,
43,
-14,
79,
17,
-98,
-77,
40,
28,
-61,
108,
60,
-5,
-23,
-48,
113,
-117,
-121,
127,
20,
51,
4,
-104,
-123,
-16,
47,
-104,
53,
16,
-88,
18,
-90,
-98,
116,
33,
-103,
5,
44,
98,
114,
-123,
-25,
76,
-120,
15,
88,
-99,
-25,
-80,
88,
10,
45,
-102,
-99,
121,
22,
71,
-2,
-33,
5,
23,
44,
11,
-113,
-76,
-125,
13,
100,
22,
15,
-17,
-92,
-109,
112,
-55,
-96,
95,
3,
54,
23,
-18,
-112
] |
The opinion of the court was delivered by
Lockett, J.:
This action involves revocation of acceptance pursuant to K.S.A. 84-2-608. The issues raised in this appeal focus on the appropriate measure of damages for a buyer’s use of goods after revocation of acceptance.
John and Joan Johnson, the appellants, purchased a new 1981 Chevrolet Silverado half-ton diesel pickup truck from Ed Roberts Chevrolet in Bonner Springs, Kansas, on October 7, 1980. The Johnsons traded in a 1979 Chevrolet pickup and paid $4,202.10 in cash in exchange for the new pickup. The total cost of the new truck was $11,119.65. The Johnsons received a limited warranty for the truck from the General Motors Corporation (GMC).
Problems with the new truck appeared immediately. On the trip home from the dealership, the truck’s accelerator stuck in a wide open position while the truck was in traffic. Also, a substantial amount of oil leaked from the truck. The pickup was brought to the dealer for repairs but the problems continued.
In October, the Johnsons left for Idaho on a combined hunting and business trip in their new truck. While in Soda Springs, Idaho, on October 14, 1980, the truck’s transmission ceased to operate and. the truck would not move forward. The truck was towed to a Pocatello, Idaho, Chevrolet dealership for repairs. The Johnsons spent $121.00 for a motel room and $123.53 for a rental car during the several days it took the dealer to repair the truck. Coming back from Idaho, the truck ran rough, had trouble starting and was emitting quite a bit of smoke.
New problems with the truck developed. These included difficulties with the fuel injectors and injector pump, headlights, speedometer, air conditioner vent, hood, tailgate, paint job and glove compartment. Repairs were attempted under GMC’s warranty agreement but the Johnsons had lost confidence in the truck. On November 30, 1980, the Johnsons, through their attorney, sought to revoke their acceptance of the truck and to return it for a refund of the purchase price. Their offer to return the truck was refused by GMC and the Johnsons continued to use the truck after a lawsuit was filed. Some repairs were performed under the warranty agreement during the time period after revocation and prior to trial.
On March 2,1981, the Johnsons filed this action against GMC. The case was tried to the court April 2, 1982, and it was decided that the Johnsons’ revocation was justified. GMC does not appeal this ruling. The court held a second hearing on June 18, 1982, to determine what setoff amount should be awarded to GMC because of the appellants’ continued use of the truck after revocation. The trial court awarded a setoff of $4,702.94. The Johnsons would be refunded the remainder of the purchase price.
The principal issue is whether the trial court erred in allowing a setoff from the purchase price of the truck for the buyers’ continued use of the truck after the buyers’ revocation of acceptance. The buyers continued to drive the truck an additional 14,619 miles after notifying GMC of the revocation of acceptance.
The purpose of the Uniform Commercial Code (UCC) is to simplify, clarify and modernize the law governing commercial transactions. The doctrine of “liberal” construction is to be used when construing the UCC. The principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating causes supplement the UCC’s provisions except when displaced by a specific provision of the Act. K.S.A. 84-1-103.
Rejection and revocation are buyer’s remedies to return delivered goods. Rejection is the buyer’s refusal to keep delivered goods and notification to the seller of the buyer’s refusal to keep the goods is required. Revocation of acceptance is a refusal to keep delivered goods that occurs after a buyer has accepted and the time for rejection has expired.
The right to reject goods is a remedy that is more available since rejection occurs prior to the buyer’s acceptance. One who has held goods for a period of time or has by some action accepted, should have a greater burden to require a seller to accept return of the goods previously delivered to the buyer. The longer the buyer holds the goods, the greater the depreciation and if the buyer uses the goods after revocation of acceptance he will derive some benefit while using the goods.
Under proper rejection or revocation of acceptance, the buyer is freed from his obligation to pay the purchase price. A buyer has a right to recover that portion of the purchase price already paid when rejection or revocation of acceptance is proper.
A buyer that has accepted a truck and sues for breach of warranty will recover only for the injury that resulted from defects in the truck at the time of the sale. A buyer that properly rejects or revokes after acceptance is first made whole from the injuries resulting from the seller’s failure to perform his part of the agreement, escapes the bargain, and forces any loss resulting from depreciation of the goods back on the seller.
The basic policy for revocation of acceptance is contained in K.S.A. 84-2-608 which states in part:
“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it.
“(h) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”
The truck was purchased October 7, 1980. On November 30, 1980, through their attorney, the buyers notified the seller of their revocation of acceptance of the truck and requested a refund of the purchase price. GMC refused to accept the return of the truck but continued its offer to cure the defects under the warranty agreement given by GMC at the time of the sale. At the trial the court determined that the buyers’ revocation of acceptance was proper and occurred within a reasonable time after buyers discovered the defects.
Since the buyers had taken possession of the goods, they had a security interest in the goods for the purchase price paid and any expenses reasonably incurred for the care and custody of the truck. Vesting the revoking buyer with a security interest for payments made and expenses incurred is pursuant to K.S.A. 84-2-711, which states in part:
“(1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (section 84-2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
“(a) ‘cover’ ... or
“(b) recover damages . . .
“(3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (section 84-2-706).”
A buyer who revokes has the same rights and duties with regard to the goods involved as if had rejected them. K.S.A. 84-2-608(3). This places the revoking buyer in the same position with one who rejects prior to acceptance thus eliminating the need for different sets of standards for resolving commercial disputes. The manner and effect of rejection and revocation are contained in the UCC.
After notification of rejection or revocation to the seller, a merchant buyer is obligated to follow any reasonable instructions received from the seller. If no instructions are received from the seller, a merchant buyer or other buyer may choose any of the options available to him under the UCC. The goods may be returned, stored for the seller, or sold for the seller’s account with reimbursement to the buyer for reasonable expenses incurred caring for and expenses incurred in the sale of the goods. K.S.A. 84-2-603 and K.S.A. 84-2-604. A buyer is not permitted to retain such funds as he might believe adequate for his damages if he resells the goods. The proceeds are to be held by the selling buyer until his damages are properly determined.
Here buyers exercised none of the options available to them under the UCC. Instead, buyers, after revocation of acceptance, continued to use the truck. The UCC states after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller. K.S.A. 84-2-602(2)(a). A buyer’s continued use of the goods after revocation of acceptance can constitute an acceptance of ownership and invalidate a cancellation of a sale. Here buyers were placed in a position where if they stored the truck or properly sold the truck, they would not have a vehicle for transportation until the trial of the issues or would be required to lease or purchase an additional vehicle. The buyers’ continued use of the vehicle under these circumstances was not an act of continued use which constituted an acceptance of ownership after revocation: With little or no low-cost public transportation available to the public, private transportation has changed from a luxury to a necessity.
The buyers suggest that a revoking purchaser may use the goods after revocation without penalty or cost in limited circumstances where use of the goods is required even after notice of revocation of acceptance. This issue has not been settled by earlier Kansas decisions construing K.S.A. 84-2-608. All existing decisions involved purchasers who, upon discovery of the defects, returned or stored the goods immediately. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983); Newmaster v. Southeast Equipment, Inc., 231 Kan. 466, 646 P.2d 488 (1982); McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, 561 P.2d 832 (1977); La Villa Fair v. Lewis Carpet Mills, Inc., 219 Kan. 395, 548 P.2d 825 (1976). Precode decisions avoided the question altogether because the common law required purchasers to elect between “rescission” and recovery of damages. Prompt return of unsatisfactory goods was a condition precedent to an action for rescission. See decisions annotated in the materials following K.S.A. 84-2-608. The question of cancellation in the absence of immediate return of the goods did not arise until enactment of the Code.
There is much support for the proposition of awarding a setoff for continued use of goods after revocation of acceptance. Many courts have awarded setoffs in circumstances similar to the present case. Stroh v. Am. Rec., 35 Colo. App. 196, 530 P.2d 989 (1975); Johannsen v. Minn. Valley Ford Tractor Co., 304 N.W.2d 654 (Minn. 1981); Lawrence v. Modern Mobile Homes, Inc., 562 S.W.2d 729 (Mo. App. 1978); Erling v. Homera, Inc., 298 N.W.2d 478 (N.D. 1980); Jorgensen v. Pressnall, 274 Or. 285, 545 P.2d 1382 (1976); Moore v. Howard Pontiac-American, Inc., 492 S.W.2d 227 (Tenn. App. 1972). See also Mobile Home Sales Manage. Inc. v. Brown, 115 Ariz. 11, 562 P.2d 1378 (Ct. App. 1977).
The Colorado Court of Appeals in Stroh v. Am. Rec., 35 Colo. App. at 201-03, used this reasoning to justify a setoff:
“Having determined that plaintiffs’ revocation of acceptance was effective, we must determine whether their acts thereafter entitled them to an award for the entire purchase price. A buyer who asserts a right to revoke acceptance has the same duties and obligations as a buyer who asserts a right to reject the goods before acceptance. C.R.S. 1963, 155-2-608 (3). After rejection of goods, any exercise of dominion and ownership rights is considered wrongful as against the seller. C.R.S. 1963, 155-2-602 (2) (a). The purpose of this requirement is to insure that the seller may regain possession of the goods in order to resell the goods or utilize them in order to minimize his loss. Moeller Manufacturing, Inc. v. Mattis, 33 Colo. App. 300, 519 P.2d 1218. Accordingly, notice of revocation of acceptance is necessarily a recognition by the buyer that the property belongs to the seller. Here, after revocation of acceptance on October 15, 1970, plaintiffs retained only a security interest for return of their purchase price. C.R.S. 1963, 155-2-711 (3). However, they continued to occupy the mobile home as their residence until they purchased a house in March of 1972 and thereupon vacated the mobile home. Even though defendants did not give instructions with respect to the home after they received notice of revocation of acceptance, plaintiffs’ remedies under C.R.S. 1963, 155-2-711, do not include the right to beneficial use of the home. See C.R.S. 1963, 155-2-603. Therefore, we hold that plaintiffs’ continued occupancy of the mobile home after the reasonable time at which plaintiffs should have acted under C.R.S. 1963, 155-2-604, was wrongful and defendants are entitled to an award of damages.
“There is no specific provision in the Uniform Commercial Code for an offset award of damages for wrongful use by the buyer. However, C.R.S. 1963, 155-1-103, provides that:
‘Unless displaced by the particular provisions of this chapter, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.’
“We recognize that the general rule is that where a buyer is entitled to rescind the sale and elects to do so, the buyer shall thereafter be deemed to hold the goods as a bailee for the seller. 77 C.J.S. Sales §§ 116 and 118; and see Elwood Edwards, Inc. v. Kinsey, 123 Colo. 52, 255 P.2d 59. Thus, if the buyer uses the goods while he holds them as a bailee, he becomes liable for the value of that use. Staggs v. Herff Motor Co., 216 Tenn. 113, 390 S.W.2d 245. This reasoning is consistent with the Uniform Commercial Code, and, in the instant case, is consistent with the principles of law and equity which the Code provides for as supplementary to it provisions. Moore v. Howard Pontiac-American, Inc., 492 S.W.2d 227 (Tenn. App.).
“Since the evidence showed that plaintiffs used the mobile home for a considerable length of time after they should have acted under C.R.S. 1963, 155-2-604, it follows that this use reduced the value of the home. Accordingly, defendants are entitled to an offset of a fair and reasonable use value of the mobile home for this period. Gawlick v. American Builders Supply, Inc., 86 N.M. 77, 519 P.2d 313.”
The appellants cite Sanborn v. Aranosian, 119 N.H. 969, 409 A.2d 1352 (1979), which denied a setoff. In that case the purchasers exercised their right of resale and traded in the car purchased. The setoff requested was for use of the car before revocation.
The weight of authority supports the granting of a setoff for use after revocation. We agree that a seller is entitled to a setoff for the buyers’ continued use of the truck after their revocation of acceptance.
The buyers complain that the trial court erred in granting a setoff for post-revocation use because evidence of its value was not presented during the original hearing. The trial court, after determining that the buyers’ revocation of acceptance was valid, recessed the trial to allow the parties additional time to obtain evidence as to damages. At the second hearing the trial court denied the buyers’ request for an additional two-week recess to allow the buyers to obtain additional evidence of value. The power to grant a recess is inherent within the trial court’s power to control the orderly movement of cases. The exercise of the power is within the sound discretion of the trial court. Slavenburg v. Bautts, 221 Kan. 590, 595, 561 P.2d 423 (1977). The trial court did not abuse its discretion when it acted upon the two requests for recesses.
The buyers contend the trial court erred in the method of determining a proper setoff for the buyers’ continued use of the truck after revocation of acceptance. GMC called an expert witness in the field of vehicle leasing. All costs of operation, maintenance, lessor’s return on capital, insurance and other expenses were excluded by the expert witness to obtain pure depreciation. The expert witness testified that an identical vehicle leased for a term of 18 to 24 months depreciates at a rate of 2.75% per month. Therefore the truck depreciated in 20.33 months a total of $6,216.71. The setoff of the buyers’ use after revocation was then calculated as follows:
“Price of Vehicle 11,119.65
Monthly Rate of Depreciation (18 to 24 Month Lease) .0275
Monthly Depreciation Cost 305.79
Months of Actual Use : 20,33
Total Depreciation Accrued 6,216.71
Total Miles Driven ' 19,319
Depreciation Per Mile 00.3217
Post-Revocation Mileage 14,619
Use Offset 4,702.94”
The purpose of allowing revocation after acceptance is to restore the buyer to the economic position the buyer would have been in if the goods were never delivered. Rasor, Kansas Law of Sales § 10-3 (1981). After revocation of acceptance any significant use by the buyer should allow the seller to recover from the buyers restitution for the fair value of any benefit obtained resulting from such use. The seller could avoid depreciation of the goods by accepting the buyers’ revocation.
GMC contends the established rate of leased vehicle depreciation provides a simple and uniform method for calculating the value of the buyers’ post-revocation use. The calculation would have been the same whether or not the buyer drove 10 or 14,619 miles after revocation of acceptance. The only variable is the cost per mile.
The buyers had attempted revocation of acceptance two months after purchase. It was GMC’s failure to accept the vehicle’s return by the buyers that necessitated a law suit. Sixteen plus months after the buyers’ notice of revocation of acceptance the court tried the case and determined that the buyers’ revocation was proper. GMC’s pure depreciation method using the lease vehicle’s monthly depreciation rate was not the proper method of determining the offset due to the buyers’ use of the vehicle after revocation. This method allows the seller to recover a setoff based upon a period of time from the seller’s refusal to accept back defective goods until there is a judicial determination that the seller was wrong not to accept the buyers’ revocation of acceptance. The proper setoff is the value of use of the goods received by the buyer after his revocation of acceptance.
At the trial, over buyers’ objection, GMC introduced into evidence the Federal Highway Administration booklet entitled “Cost of Owning and Operating Automobiles and Vans 1982.” The booklet was authenticated by the government’s resident administrator in compliance with K.S.A. 60-465. The trial court did not abuse its discretion when it overruled the buyers’ objection to the introduction of the booklet into evidence. The Federal Highway Administration booklet stated the cost of owning and operating a similar vehicle to the truck purchased by the buyers is calculated at 33.2 cents per mile. After deduction of maintenance, gas and oil, parking and tolls, insurance and state and federal taxes, expenses the buyers have already paid, the booklet concluded the original vehicle cost to operate is 10.7 cents per mile. Since buyers drove the vehicle 14,619 miles at 10.7 cents per mile after revocation, the setoff would be $1,564.23. From the evidence presented in this case, GMC is entitled to the sum of $1,564.23 as a setoff for the buyers’ use of the truck after revocation of acceptance.
The buyers claim the trial court erred in failing to award them prejudgment interest from the date of revocation of acceptance. K.S.A. 16-201 provides:
“Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance; for money received for the use of another and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their daily or monthly employees, from and after the end of each month, unless paid within fifteen days thereafter.”
In the case of La Villa Fair v. Lewis Carpet Mills, Inc., 219 Kan. 395, the court awarded prejudgment interest to a purchaser who rejected nonconforming goods pursuant to K.S.A. 84-2-602. The interest was calculated from the date the purchaser paid for the goods. The situation is very similar to the present case.
The price buyers paid for the truck is not disputed ($11,119.65). For prejudgment interest to be awarded, the amount owed must be a liquidated sum. A setoff or counterclaim does not alter the fact a liquidated sum is owed as of a certain date. However, the setoff is credited against the liquidated claim as of the date the claim was due. Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, Syl. ¶¶ 1-4, 455 P.2d 555 (1969), explains liquidation and describes the effect of setoffs:
“Where an amount is due upon contract, either express or implied, and there is no uncertainty as to the amount which is due or the date on which it became due, the creditor is entitled to recover interest from the due date.
“A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation.
“Ordinarily, where the amount of a claim is sufficiently certain as to amount and time to justify the allowance of interest thereon, the existence of an unliquidated setoff or counterclaim will not preclude interest on the balance of the demand found due from the date it became due.
“When a plaintiff sues for a liquidated sum and the defendant establishes an offsetting claim arising out of the same contract or transaction, the offset is to be credited against the liquidated claim as of the due date of the original debt and the balance bears interest from that due date.”
A party justifiably revoking acceptance pursuant to K.S.A. 84-2-608 is entitled to prejudgment interest from the date revocation is attempted. Any setoff due the seller because of a buyer’s continued use of the goods after an attempt to revoke should be deducted from the total judgment which includes prejudgment interest. The setoff arises only after a seller refuses to accept return of the defective goods, and no setoff is due the seller on the revocation date.
Here there was no setoff at the date the claim was due. The setoff occurred after the due date because of seller’s refusal to accept return of the defective vehicle. Prejudgment interest on the purchase price would commence to accumulate from November 30, 1980, until the date of judgment. Two of the courts which permitted setoffs for use of goods after revocation of acceptance have awarded interest on a judgment. Stroh v. Am. Rec., 35 Colo. App. 196 (interest from date of revocation); Erling v. Homera, Inc., 298 N.W.2d 478.
GMC argues a direct contractual connection between parties is required before prejudgment interest may be awarded. In both cases cited, the manufacturer was a defendant and had to pay a portion of the judgment. Direct contractual privity is not a prerequisite to filing suit for flawed goods sold. See Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P.2d 82 (1967). The absence of a contract between GMC and the buyers is not significant. In terms of equity, if GMC takes advantage of a setoff, then it should be responsible for any prejudgment interest from the date of revocation. In addition, the warranty for the truck was provided by GMC.
Other issues raised by the parties have been carefully considered by this court but not included in the opinion. The trial court was correct when ruling on those issues.
The awarding of a setoff to GMC is affirmed, but from the evidence presented in this case, the setoff should be $1,564.23. The decision not to grant the plaintiffs prejudgment interest is reversed. The interest should be calculated upon the entire purchase price from the date revocation was attempted until the date of judgment at the rate of ten percent. The case is affirmed in part, reversed in part and remanded to enter judgment in accordance with this opinion. | [
-48,
-21,
-56,
-116,
28,
96,
43,
-102,
-11,
-95,
55,
-109,
-81,
2,
12,
123,
-2,
61,
-15,
106,
-47,
-77,
87,
-78,
-46,
-77,
-7,
77,
-71,
79,
116,
84,
76,
-48,
-54,
-123,
38,
-64,
-123,
-98,
-50,
6,
57,
-20,
-39,
2,
52,
-85,
20,
11,
113,
-114,
67,
46,
25,
67,
109,
40,
-85,
37,
-47,
-15,
-30,
5,
127,
22,
-111,
36,
-100,
5,
-8,
62,
-112,
-79,
8,
-8,
-13,
-90,
-61,
-76,
75,
-101,
8,
38,
114,
34,
49,
-51,
-4,
-104,
14,
-102,
-97,
-122,
-112,
24,
-88,
99,
-74,
-68,
-35,
2,
13,
124,
-34,
21,
15,
104,
4,
-54,
-76,
-127,
-115,
113,
12,
10,
-1,
-89,
-78,
113,
-115,
-94,
93,
87,
126,
19,
-121,
-72
] |
The opinion of the court was delivered by
McFarland, J.:
This appeal of consolidated cases arises from defendant Farm Bureau Mutual Insurance Co., Inc.’s umbrage over the trial court’s award of attorney fees pursuant to K.S.A. 40-3113a(<?) to its insured’s attorney following recovery of duplicative personal injury protection (PIP) benefits from the tortfeasors’ insurance carrier. Before proceeding, we note, in fact, Catherine M. Fotovich Potts is an appellee, not an appellant, in this action.
The relatively simple facts and rather complex procedural history of the controversy must be set forth in considerable detail. On February 17, 1980, defendant Christopher Goss, the 17-year-old son of defendant Imogene Goss, was driving his mother’s automobile in Kansas City, Kansas, when it collided with an automobile being driven by plaintiff, Cathleen M. Fotovich Potts. The Goss vehicle was insured by Farmers Insurance Company. The Potts vehicle was insured by Farm Bureau Mutual Insurance Co., Inc., which company paid Ms. Potts $8,861.46 in PIP benefits.
On June 18, 1981, Ms. Potts filed suit (No. 81-C-2291) against Imogene and Christopher Goss. Service of process was obtained on Imogene Goss. Service was not obtained on Christopher Goss as he had joined the U.S. Marine Corps and was then stationed in North Carolina. Farm Bureau did not intervene in this action but was kept informed of the progress of the case by its insured’s attorney. At one point Farm Bureau was advised that $6,000 might be the maximum settlement that could be obtained. Farm Bureau became concerned and hired attorney Paul Hasty to represent it if it became necessary to intervene in the Potts v. Goss litigation. No intervention occurred.
On or about February 3, 1982, a settlement of $10,000 was reached. A general release was signed by Ms. Potts releasing both Imogene and Christopher Goss. Potts v. Goss was dismissed with prejudice on February 4, 1982, by stipulation of the parties’ counsel. The Goss insurer issued its check for $10,000 made payable to Ms. Potts, her attorney and Farm Bureau. The check was forwarded to Farm Bureau for endorsement in order that its lien of $8,861.46 could be paid therefrom. Farm Bureau refused to endorse the check.
On February 16, 1982, after the Potts-Goss settlement, Farm Bureau filed an action (No. 82-C-0524) against Christopher Goss seeking recovery of the amount of PIP benefits paid Ms. Potts ($8,861.46) — notwithstanding the fact the Goss insurer had previously issued the check which would have totally satisfied the claim. On February 22,1982, the Potts counsel filed a “Motion to Fix Attorney Fees of Subrogated Pursuant to K.S.A. 40-3113a” in the original case (No. 81-C-2291). On March 31,1982, the district court sustained the motion and fixed attorney fees at one-third of Farm Bureau’s lien recovery. Farm Bureau’s action against Christopher Goss (No. 82-C-0524) was dismissed on May 28, 1982, on the basis that full settlement of the claim had been reached in the prior case. Farm Bureau appeals from the attorney fees award in case No. 81-C-2291 and from the dismissal of case No. 82-C-0524.
Four issues are raised on appeal.
For its first issue Farm Bureau contends that inasmuch as it was not a party' to the first action (No. 81-C-2291) the district court lacked jurisdiction to award attorney fees against it. This contention wholly ignores the provisions of K.S.A. 40-3113a.
K.S.A, 40-3113a(fe) provides:
“In the event of recovery from such tortfeasor by the injured person . . . byjudgment, settlement or otherwise, the insurer . . . shall be subrogated to the extent of duplicative personal injury protection benefits provided . . . and shall have a lien therefor against such recovery and the insurer . . . may intervene in any action to protect and enforce such lien.” (Emphasis supplied.)
K.S.A. 40-3113a(c) authorizes the insurer under certain circumstances to commence an action against the tortfeasor in the name of insurer or the insured as their interest may appear.
K.S.A. 40-3113a(e) provides:
“Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, his or her dependents or personal representatives in the amounts determined by the court.”
K.S.A. 40-3113a(e) directs the district court to fix proportional attorney fees between the insurer and the injured party when a recovery is made. The statute does not limit jurisdiction to make such determination to actions where the insurer is a named party. Farm Bureau’s argument would permit any insurer to defeat the clear legislative intent of the statute by simply not formally intervening in any action brought by the injured party against the tortfeasor. See Johnston & Johnston, P.A., v. Gulf Ins. Co., 8 Kan. App. 2d 401, Syl. ¶ 2, 659 P.2d 249 (1983).
This issue is wholly devoid of merit.
In its second issue Farm Bureau contends the district court was without jurisdiction to fix attorney fees by virtue of the prior dismissal of Ms. Potts’ action against Christopher and Imogene Goss upon settlement. K.S.A. 40-3113a(fe) grants .a lien to an insurer who has paid PIP benefits to an injured party on any judgment or settlement obtained by the injured party against the tortfeasor’ involving duplicative recovery. After such recovery has been made the trial court is mandated by K.S.A. 40-3113a(e) to fix proportional attorney fees between insurer.and the injured party. Such proceeding is obviously of no concern to the tortfea sor and is inherently a post-judgment intramural matter involving only the injured party and the insurer from whom he or she has received PIP benefits. K.S.A. 40-3113a clearly grants jurisdiction to the court to determine the matter. No reasonable basis for requiring this to be done in a separate action has' been asserted by Farm Bureau.
This issue also lacks merit.
Farm Bureau’s third issue is even more implausible. Farm Bureau contends the failure of Ms. Potts to obtain service upon Christopher Goss within 18 months of the accident rendered her legally incapable of entering into a settlement with the Goss insurer. In making this assertion, Farm Bureau relies on K.S.A. 40-3113a(c) and K.S.A. 60-203. Said statutes provide, in relevant part, as follows:
40-3113a(c). “In the event an injured person . . . fails to commence an action against such tortfeasor within eighteen (18) months after the date of the accident resulting in the injury, such failure shall operate as an assignment to the insurer or self-insurer of any cause of action in tort lohich the injured person . . . may have against such tortfeasor for the purpose and to the extent of recovery of damages which are duplicative of personal injury protection benefits. Such insurer . . . may enforce same in his or her own name or in the name of the injured person . . . for their benefit as their interest may appear by proper action in any court of competent jurisdiction.” (Emphasis supplied.)
“60-203. Commencement of action. A civil action is commenced by filing a petition with the clerk of the court, provided service of process is obtained or the first publication is made for service by publication, within ninety (90) days after the petition is filed; otherwise the action is deemed commenced at the time of service of process or first publication. An entry of appearance shall have the same effect as service.”
Specifically, Farm Bureau contends:
“When Potts failed to obtain service of process over Christopher Goss within ninety (90) days after filing her Petition, she failed to ‘to commence an action’ within eighteen (18) months after the accidentas those terms are used in K.S.A. 40-3113a. Her failure to commence her action within eighteen (18) months after the day of accident operated as an assignment to the P.I.P. carrier (Farm Bureau) of the cause of action Ms. Potts had against Christopher Goss to the extent of recovery of damages to the amount duplicating the P.I.P. benefits paid. The Trial Court held that plaintiff [Ms. Potts] could pursue this claim even after the assignment, and appellant feels that is clearly error.”
Imogene and Christopher Goss were the named defendants. The Goss vehicle was insured by one Farmers Insurance policy. Ms. Potts’ action reached one defendant and the all-important insurance carrier. The proposition that Ms. Potts, by operation of law, assigned to Farm Bureau part of her cause of action during the pendency of litigation upon the passage of 18 months after the accident, simply by being unable to serve one of the defendants, is patently absurd and deserves no further attention. It should also be noted that Farm Bureau did not contend there was an assignment' until five months after the alleged statutory assignment had occurred and after full recovery of Farm Bureau’s lien had been made but rejected by Farm Bureau.
In any event, Farm Bureau could not have prevailed in its action against the tortfeasor as, at most, it stood in the shoes of Ms. Potts, who had already released the tortfeasor. See Shelman v. Western Casualty & Surety Co., 1 Kan. App. 2d 44, Syl. ¶ 5, 562 P.2d 453, rev. denied 225 Kan. 845 (1977).
. The trial court did not err in dismissing Farm Bureau’s action against Christopher Goss (No. 82-C-0524).
For its fourth and final issue Farm Bureau contends the trial court erred in holding Ms. Potts’ attorney was entitled to a fee of one-third of its $8,861.46 lien. Farm Bureau does not contend the amount was unreasonable, rather it argues no fee was warranted. In support of its position, Farm Bureau makes broad, unsubstantiated claims of deceit and conflict of interest on the part of Ms. Potts’ attorney. In fixing the attorney fees the trial court was simply carrying out the mandate of K.S.A. 40-3113a(e). We find no error in the trial court’s determination relative to attorney fees.
Before concluding, we shall consider Ms. Potts’ Motion for Assessment of Costs and Fees Pursuant to Rule No. 7.07(b) filed in this appeal.
Supreme Court Rule 7.07(b) provides:
“FRIVOLOUS APPEALS. If the court finds that an appeal has been taken frivolously, or only for purposes of harassment or delay, it may assess against an appellant or his counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney’s fee for the appellee’s counsel. The mandate shall then include a statement of any such assessment, and execution may issue thereon as for any other judgment, or in an original case the clerk of the appellate courts may cause an execution to issue.” 230 Kan. lxii.
We find this appeal is frivolous in its entirety and sustain the motion. Appellant Farm Bureau turned up its corporate nose when full recovery of its lien was had and elected to bring this appeal in a legally baseless effort to avoid payment of its statu torily mandated fair share of the cost of the recovery. Attorney fees in the amount of $1,000 and the cost of the Potts brief are hereby assessed against Farm Bureau and ordered paid to Ms. Potts’ attorney. The Clerk of the Appellate Courts is directed to include in the mandate issued herein a statement of such assessment.
The judgments herein are affirmed. | [
-80,
-20,
121,
-19,
9,
98,
120,
10,
89,
-94,
37,
83,
-83,
71,
21,
121,
-2,
41,
69,
105,
-41,
-77,
23,
-62,
-42,
-77,
-71,
-60,
-80,
-51,
-28,
94,
77,
112,
74,
-43,
-30,
-62,
5,
26,
-122,
4,
-87,
-23,
-39,
-62,
-80,
107,
18,
75,
117,
-97,
-93,
40,
29,
-61,
41,
44,
123,
41,
-63,
-15,
10,
13,
127,
20,
49,
36,
-100,
71,
-38,
14,
-104,
-79,
1,
-3,
114,
-90,
-106,
116,
107,
-103,
8,
38,
102,
49,
53,
-51,
108,
-72,
38,
95,
-97,
-90,
-104,
88,
1,
14,
-74,
-99,
115,
21,
-121,
-8,
-7,
13,
15,
108,
1,
-113,
-110,
-95,
-81,
-31,
-100,
10,
-17,
15,
50,
113,
-61,
-30,
93,
-41,
126,
-105,
7,
-110
] |
The opinion of the court was delivered by
Holmes, J.:
This is an appeal on a question reserved by the State in a criminal action. K.S.A. 22-3602(fo)(3). The defendant was charged with driving while under the influence of alcohol in violation of K.S.A. 8-1567(a). In a trial to a jury he was found not guilty. The State appeals from the trial court’s jury instruction which set out the elements of the charge.
K.S.A. 8-1567(cz) provides:
“No person shall operate any vehicle within this state while under the influence of alcohol.”
In instructing the jury, the court gave its instruction No. 6 as follows:
“The defendant is charged with the crime of operating a vehicle while under the influence of alcohol. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant drove a vehicle;
“2. That the defendant while driving was under the influence of alcohol and the control of his mental or physical function was thereby impaired to the extent that he was incapable of safely driving a vehicle; and
“3. That this act occurred on or about the 24th day of July, 1982, in Lyon County, Kansas.”
(Emphasis added.)
Instruction No. 7 read:
“You are further instructed, however, that the mere showing that a person has consumed alcohol is insufficient, and in order to find the defendant guilty you must find that he was under the influence of alcohol as defined in instruction no. 6.”
Instruction No. 6 is essentially the same as PIK Crim. 2d 70.01 and as the defendant had submitted to a chemical analysis of his breath the court gave PIK Crim. 2d 70.02 as its instruction No. 8.
The State objects to the emphasized portion of instruction No. 6, contending that the phrase “and the control of his mental or physical function was thereby impaired to the extent that he was incapable of safely driving a vehicle” erroneously adds an element to the offense not contemplated by the legislature and not contained in the statute. The thrust of the State’s objection is not to the use of a definition or standard to be applied to the offense of driving under the influence of alcohol but to its being included in the elements instruction.
While the State argues that no definition or clarification of the term driving while “under the influence of alcohol” is needed, it is to be noted that the State, itself, requested a defining instruction. The State’s requested instruction included a phrase defining the offense as being “unable to operate his vehicle as a person exercising ordinary care would under like or similar circumstances.” Such a standard was approved by this court in State v. Sauvage, 201 Kan. 555, 441 P.2d 861 (1968), under an earlier statute (K.S.A. 8-530 [Corrick] repealed 1974), which was essentially the same as our present statute. We have recognized many times that it is proper for the trial court to furnish some guidance to the jury in its task of determining whether a defendant is “under the influence” of alcohol. In Sauvage, after quoting the then existing statute (K.S.A. 8-530), the court stated:
“It is thus seen our statute defines the offense only generally. This court has in a number of cases been concerned with further definition of the phrase ‘under the influence of intoxicating liquor’ as contained in a trial court’s instructions to a jury (State v. Ketter, 121 Kan. 516, 247 Pac. 430; State v. Hayden, 126 Kan. 799, 271 Pac. 291; Thornton v. Franse, 135 Kan. 782, 12 P.2d 728; State v. Spohr, 171 Kan. 129, 230 P.2d 1013; State v. Grimes, 193 Kan. 294, 392 P.2d 926).” pp. 555-56.
In City of Topeka v. Martin, 4 Kan. App. 2d 218, 604 P.2d 73 (1979), the Court of Appeals, in considering the proper instruction to be given in an action under the present statute, said:
“We believe that the legislature intended the law to be that a person could be found guilty of driving while under the influence of intoxicating liquor whenever his mental or physical function was impaired by the consumption of alcohol to the extent that defendant was incapable of safely driving a vehicle.” pp. 220-21 (Emphasis added.)
That is essentially the instruction given by the trial court in the instant case.
In establishing various presumptions to be attached to the results of chemical tests to determine the alcohol content of the blood of a driver, K.S.A. 8-1005(c)(2) provides:
“[I]f there was at the time .10% or more by weight of alcohol in the defendant’s blood, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely.” (Emphasis added.)
K.S.A. 8-1567(fe) provides:
“(b) No person shall operate any vehicle within this state if the person is a habitual user of or under the influence of any narcotic, hypnotic, somnifacient or stimulating drug or is under the influence of any other drug to a degree which renders such person incapable of safely driving a vehicle.” (Emphasis added.)
Thus it appears that the standard contained in PIK Crim. 2d 70.01 and the instruction in this case is the one contemplated by the legislature.
We do agree with the State, however, that the definition should not be included as an element of the crime. To do so might very well be confusing to the jury in a close case. It would be preferable if the elements of the offense were first set forth with the definitional standard added thereto as is the general format of the PIK Criminal Instructions. See, for example, PIK Crim. 2d 56.06; 57.11; 59.19; 60.03; 61.05; 62.01; 63.03; 64.06; 65.03; 66.03 and many others. A preferable instruction might be phrased:
“The defendant is charged with the crime of operating a vehicle while under the influence of alcohol. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant drove a vehicle;
“2. That the defendant while driving was under the influence of alcohol; and
“3. That this act occurred on or about the _day of_, 19_, in _County, Kansas.
As used in this instruction the phrase ‘under the influence of alcohol’ means that defendant’s mental or physical function was impaired by the consumption of alcohol to the extent that he was incapable of safely driving a vehicle.”
The foregoing suggested instruction could be adapted for gender and for driving while under the influence of drugs, etc., in a format similar to the present PIK Crim. 2d 70.01. We strongly recommend to the PIK Committee that it give consideration to a revision of 70.01 to separate the definitional portion of the instruction from the elements of the offense and that trial judges make a similar change in the instruction.
As the standard or definition used in the instruction was essentially correct and the instruction acceptable, and as we are of the opinion that the instructions when considered as a whole did not mislead the jury or place an undue burden on the State, the appeal is denied. | [
-48,
-22,
-36,
-98,
26,
64,
42,
24,
81,
-41,
-10,
115,
-17,
-46,
5,
57,
-7,
127,
85,
73,
-3,
-74,
23,
19,
-74,
-5,
-38,
-57,
-73,
75,
108,
-4,
13,
-80,
-53,
21,
6,
73,
-107,
-34,
-114,
12,
57,
-16,
65,
-102,
-92,
106,
118,
11,
49,
31,
-13,
42,
26,
-29,
-87,
40,
75,
-68,
-55,
-16,
-55,
-99,
111,
20,
-93,
4,
-100,
-123,
80,
46,
-98,
49,
9,
-4,
115,
-90,
-64,
-76,
109,
-119,
-116,
98,
98,
33,
21,
-18,
-83,
-71,
47,
106,
61,
-91,
-104,
25,
105,
12,
-106,
-33,
126,
50,
14,
-4,
-21,
84,
95,
124,
6,
-49,
-80,
-111,
-51,
52,
18,
72,
-21,
-91,
48,
101,
-40,
-2,
86,
69,
114,
27,
-121,
-108
] |
The opinion of the court was delivered by
Holmes, J.:
This is an appeal from a jury verdict, and judgments entered thereon, in favor of the plaintiff buyer and the former owners of the real property involved in an action for actual and punitive damages based upon allegations of fraud and negligence in the sale of a termite-ridden house to the plaintiff. In April, 1978, the plaintiff Mary Ettus bought a home in North Topeka from Alfred L. and Ethel M. Hohnbaum (Hohnbaums) through the Ken Bueltel real estate agency (Bueltel) and one of its salesmen, Wilbur T. Gorrell (Gorrell). Prior to trial Mr. Gorrell died and plaintiff secured the appointment of Daniel Mitchell as special administrator of his estate. The house had been inspected and certified termite-free by Orkin Exterminating Co., Inc. (Orkin).
When it was determined by Mrs. Ettus shortly after purchasing the house that it was infested with live termites and damaged beyond repair, she brought suit based upon claims of fraud and negligence against the Hohnbaums, Bueltel, Gorrell and Orkin. The Hohnbaums filed a cross-claim against Orkin for fraud. After a two-week trial the jury found against the plaintiff as to all the defendants on her claim for fraud. However, the jury found in plaintiff s favor on her claim for negligence and awarded actual damages of $33,195.00 and punitive damages of $50,000.00. The comparative fault or negligence of the parties was determined to be five percent (5%) against the Hohnbaums and ninety-five percent (95%) against Orkin. The plaintiff, Bueltel and Gorrell were found to be without negligence. Other parties named for the purpose of comparing negligence, but not formally joined as parties, were also found to be without fault. The jury also found in favor of the Hohnbaums and against Orkin on the Hohnbaums’ cross-claim for fraud and awarded them $410.00 actual damages and $20,000.00 punitive damages. All parties appeal from various aspects of the judgments and trial proceedings.
The Hohnbaums owned residential property on Kansas Avenue in North Topeka where they had resided for some thirty years. In April, 1976, Mr. Hohnbaum first became aware of termites on his property and promptly contacted Orkin. After an inspection of the premises by Orkin, the Hohnbaums entered into a contract for subterranean treatment of termites. The inspection had revealed live termites and damage although the written graph and information furnished by Orkin did not reveal the extensive damage which existed. The Hohnbaums paid Orkin $410.00 for the initial contract and treatment which carried with it a guarantee and a right to subsequent regular inspections and a lifetime retreatment contract. The initial treatment was performed by Orkin in April, 1976. In July of the same year the Hohnbaums, while painting, discovered additional termite infestation. Orkin was called and they again treated the area. On August 26th, an additional treatment was required. Thereafter, the Hohnbaums kept the contract current and in force by payment of an annual fee of $45.00.
In early 1978, the Hohnbaums desired to sell their home and listed it with Bueltel. One of the Bueltel salesmen, Mr. Gorrell, showed the property to Mrs. Ettus and on February 23,1978, she signed a purchase contract with the Hohnbaums in the amount of $21,000.00. The contract contained the following provision:
“Seller agrees to obtain and pay for a termite inspection of said property by a state licensed pest control company and furnish Purchaser a report from said company showing the property to be free of termite infestation; provided, however, if termite infestation is present, Seller may, at his option, pay for treatment and removal of said infestation and pay for repair or damage caused thereby or elect to cancel this contract and all moneys paid hereunder on the purchase price shall be refunded to Purchaser, and thereupon, all parties shall be released from further liability hereunder.”
Thereafter Orkin furnished a “wood infestation report” dated April 6, 1978, which found no visible evidence of active or previous infestation and no visible damage to the property. The report also stated that Orkin had treated the property in April, 1976, and that it remained under a guarantee and contract with Orkin. This report was placed in Gorrell’s file and was a part of the papers available at the closing of the sale. Sometime between April 7, 1978, and April 24, 1978, some flying insects were observed in the Hohnbaum house and Orkin was again called. Orkin responded and again treated the premises. Orkin prepared another “wood infestation report” which indicated there was some evidence of previous termite infestation and evidence of some nonstructural damage. The testimony is in dispute whether this report was delivered to the Hohnbaums or Gorrell or whether it was delivered at all. Mrs. Ettus was never made aware of its contents and, in any event, both reports were patently false. On April 28, 1978, the real estate sale was completed and Mrs. Ettus became the proud new owner of a home which soon turned out to be a nightmare.
Mrs. Ettus undertook to do landscaping and interior improvements to her newly acquired property. During the course of remodeling Mrs. Ettus discovered live termites in the house. She contacted Orkin and they offered to again treat the property but the offer was declined. Mrs. Ettus contacted Perma-Blitz Pest Control Co. and representatives of that company made a detailed inspection of the property and furnished a comprehensive report of their findings. They determined extensive structural damage, live termites and totally inadequate prior treatment. Various critical areas had not even been treated, despite the repeated visits by Orkin. During the inspection one of the Perma-Blitz men fell through the ceiling while checking the attic. The ceiling gave way due to extensive termite damage. It was recommended that Mrs. Ettus contact the entomology division of the State Board of Agriculture and she did. The report from the State Board of Agriculture, following their inspection of the premises, stated in part:
“An Orkin termite control contract had been issued to the former owner on April 19, 1976, indicating that the only damage was along the west wall. The contract also states how and where various types of treatment were performed on the property. Our inspection indicated that it is unlikely that some of these treatment procedures were followed. The contract stated that cellulose debris was removed but a large amount of debris was noted under the structure.
“Orkin issued a wood infestation report (clearance letter) on April 4, 1978, that stated that there were no termites, no termite damage and no evidence of a previous infestation.
“Perma-Blitz issued a very extensive report and diagrams of the structure, dated September 30, 1978. After examining these reports we find that we are in almost total agreement with the findings of Perma-Blitz.
“In our opinion termites have been present in this structure for quite a number of years. We do not feel that the treatment performed in 1976 was adequate or as complete as stated in the Orkin contract. The wood infestation report issued in 1978 is totally false and inaccurate. It is also our opinion that the termite damage is so extensive and general throughout the structure that it is not repairable. We feel that the termites have totally destroyed this house.”
The report further stated that some critical areas which required treatment to obtain effective control had not been treated at all. It was conceded at trial that the house was a total loss due to termite damage.
We will first consider the twofold appeal of the Hohnbaums. They first contend that the trial court committed error in failing to sustain their motion for a directed verdict against the plaintiff, asserting there was no evidence of any breach of duty owed by them, as sellers, to plaintiff. The evidence is clear that the Hohnbaums became aware of live termite infestation as early as 1976 and that numerous repairs were made to the property at that time. In addition, Orkin was called three times within a span of less than six months to treat for visible live termites. Just a few days before closing the sale of the property to Mrs. Ettus, the Hohnbaums observed flying insects in their home and, suspecting them to be termites, called Orkin for treatment. The first wood infestation report received from Orkin was patently false. None of the previous termite problems was revealed to Mrs. Ettus. In its instruction No. 7, the court told the jury:
“ ‘Negligence’ is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all of the circumstances then existing.
“A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which the claim is made.”
In Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 228 Kan. 532, Syl. ¶ 3, 618 P.2d 1195 (1980), we said:
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. Following Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977).”
Plaintiff clearly proved a submissible case against the Hohnbaums and there was no error in the court’s ruling.
Next the Hohnbaums appeal the trial court’s reduction of the punitive damages awarded against Orkin from $20,000.00 to $10,000.00. The trial court on its own motion reduced the punitive award because the amount in controversy as determined by the pretrial questionnaire and order was only $10,000.00. The record reflects that at the time of argument on the instructions to be given by the court, Orkin wanted the $10,000.00 figure to be included in the instruction or in the special verdict form to be submitted to the jury. The court refused to indicate any amount as to punitive damages for fear the jury might consider it a direction from the court when the jury might otherwise be inclined to give a lesser amount or none at all. The court handled the $250,000.00 punitive damages sought by the plaintiff in the same manner. It appears clear that all parties knew they were controlled by the limits in the pretrial order. The Hohnbaums made no request to amend or modify the pretrial order and did not object to the court’s position when it was considered during argument on the instructions and verdict form. A pretrial order, unless modified by the court to prevent manifest injustice, controls the subsequent course of the lawsuit. Sieben v. Sieben, 231 Kan. 372, 646 P.2d 1036 (1982). The judgment entered was consistent with the maximum amount of relief sought by the Hohnbaums and with the pretrial order and they cannot now complain when their recovery was limited to the maximum amount sought. The point' is without merit.
We now turn to the numerous allegations of error asserted by Orkin in its appeal from both the plaintiff s judgment and the Hohnbaums’ judgment. We will first consider the Orkin claims of error directed at plaintiff s judgment.
Orkin alleges error in the trial court’s instructions on actual damages which in essence allowed the jury to consider the value of the destroyed property along with “other and further damages that result naturally and were occasioned by the acts of the defendants.” The jury was further instructed that the total actual damages could not exceed $35,395.74, the maximum amount shown by the evidence. Orkin contends that as Mrs. Ettus paid $21,000.00 for the property, her damages should be limited to that amount plus loan costs of $771.00 less the value of the real estate lot and the salvage value of the house. Orkin relies on cases in which the court has stated that the ordinary measure of damages to real or personal property is the difference in value immediately before and after the destruction or damage and in the event of total destruction, the fair market value at the time of destruction. See Anderson v. Rexroad, 180 Kan. 505, 306 P.2d 137 (1957); Foster v. Humburg, 180 Kan. 64, 299 P.2d 46 (1956); Kennedy v. Heat and Power Co., 103 Kan. 651, 175 Pac. 977 (1918); and Insurance Co. v. Payne, 57 Kan. 291, 46 Pac. 315 (1896). We have no quarrel with the general principles of law as stated in those opinions. However, they do not limit the damages resulting from negligence to just the before and after value of the property when there are other damages. As held in Foster:
“One who commits a tortious act is liable for the injury and loss that are the natural and probable result of his wrongful act.” Syl. ¶ 5.
In the instant case Mrs. Ettus had expended money, over and above the purchase price of the house, for yard improvement and redecorating; she showed lost wages and personal property along with increased mortgage expense and other items. We have considered each of the items of damage complained of by Orkin and find all of them to be such as were the natural result of the acts of the defendants.
Next Orkin alleges error in certain jury instructions given by the trial court. In its instruction No. 2, the court set forth the claims of plaintiff and her burden of proof as to both the negligence and fraud claims. In the same instruction the court advised of the defenses and counterclaim of the Hohnbaums and the defenses of Orkin and the other named parties, which included affirmative defenses asserting negligence on the part of the Hohnbaums and plaintiff. The court also instructed on Orkin’s burden of proof in this regard. While the instruction might have been clearer on the respective burdens of proof of the various parties, when all of the instructions are considered together, as they must be, we find them to be adequate and that the jury could not reasonably have been misled as to the burden of proof required of plaintiff, the Hohnbaums or Orkin. See Hampton v. State Highway Commission, 209 Kan. 565, Syl. ¶ 6, 498 P.2d 236 (1972); Huxol v. Nickell, 205 Kan. 718, 473 P.2d 90 (1970).
Orkin also contends it was error for the court to refuse to give the following instruction:
“You are instructed that any written statements, contracts and records furnished by the pest control service, as defined by the Kansas Pesticide Law and Regulations, are only required to be presented to the customer who orders the service.”
The requested instruction was based upon K.S.A. 2-2455. It is the contention of Orkin that the statute limits its obligation and that it was only required to furnish reports to the Hohnbaums. While the statute does require that certain information be furnished to the customer, it in no way limits any obligation to furnish such information to third parties. The statute does not contain the word “only” as included in the requested instruction and in the instant case Orkin was fully aware that the “wood infestation reports” were to be furnished to a third party. The reports were patently false and Orkin knew a third party would rely upon them. The point is totally without merit.
We have carefully examined all of the instructions in light of all of the arguments of Orkin and when considered as a whole we find no reversible error in the court’s instructions. For an excellent discussion of the general principles to be applied in determining whether or not instructions of the trial court are in error see Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 545 P.2d 334 (1976).
Next Orkin complains about the form of the special verdict submitted to the jury. Due to the various claims, cross-claims and number of defendants, the special verdict form contained seven parts on four legal-sized sheets of paper'. It is argued that the location of the question of whether the jury found punitive damages, and if so, how much, was erroneous in that it followed the question relating to actual damages for negligence. Orkin asserts that it appears that if the jury is to find damages for negligence then they must automatically allow punitive damages. The court instructed the jury, in instruction No. 6, that:
“In considering an award of punitive damages for other than fraud, you must find that the defendant, in addition to the conduct being considered, was wilful, wanton or malicious in their actions.”
The instruction goes on to define wilful, wanton and malicious. When the verdict form is considered in light of the instructions, we do not believe the jury could have been misled.
Next Orkin charges plaintiff s counsel and the trial court with misconduct. In its assertions against counsel, Orkin claims plaintiff s attorney violated Orkin’s right to a fair trial when in closing argument he referred to specific dollar figures in his quest for actual and punitive damages. Plaintiff s counsel made reference to a chart which illustrated Orkin’s financial condition and suggested specific damage figures. Orkin claims the reference to the chart amounted to a request for specific dollar amounts in punitive damages and actual damages against Orkin and that as such it was improper under Supreme Court Rule No. 118(b) (230 Kan. lxxix-lxxx). That rule states:
“In any action in which the party seeking relief demands an unliquidated amount of money as all or part of the relief he seeks and which action is to be tried to a jury in the district court, the parties and attorneys may state in voir dire and in arguments their valuation of an item of claimed damage and the total amount of damages claimed to have been suffered. They shall not mention any amount as being the award demanded in the written statement.”
The last sentence of that rule, the only limitation on counsel’s argument, refers to a written statement of damages which may be requested by an adverse party under subsection (a) of the rule. The provisions of Rule 118(a) and (b) set forth the procedure to be followed in complying with K.S.A. 60-208(a) and apply only to the written statement of damages contemplated by Rule 118(a). The rule does not preclude an attorney from utilizing a blackboard or chart in final argument to illustrate amounts requested for actual or punitive damages so long as the figures are based upon evidence adduced at the trial. While not too clear, it appears that Orkin is also contending error because of the use of its financial worth in arguing for punitive damages. If so, the argument lacks merit. Ayers v. Christiansen, 222 Kan. 225, Syl. ¶ 4, 564 P.2d 458 (1977).
Orkin next complains of the court’s misconduct in unduly reprimanding its counsel in front of the jury and in allegedly falling asleep during trial. The trial of this case took about two weeks and the transcript fills eight volumes with over two thousand pages of testimony and argument. Plaintiff s case took some eight days to present. Orkin’s counsel, at a time near the end of trial, requested an early morning recess between witnesses when one witness was examined and finished sooner than expected. The request and response was as follows:
“Mr. Davis: Your Honor, the cross-examination was much shorter than we anticipated. Would it be possible to take the recess early? We may be able to wind up our testimony.
“The Court: Mr. Davis, I want to get this case concluded, you know that.
“Mr. Davis: I do too.
“The Court: I think I have borne down on counsel about that.
“Mr. Davis: We will call Mr. Lucas.”
Orkin now argues and argued on a. motion for mistrial that such conduct by the court prejudiced Orkin and made it appear that Orkin was responsible for the length of the trial and the discomfort and tedium experienced by the court and jury. The motion for mistrial was denied. The court did explain to the jury that its remarks were directed to all parties and not directed at Orkin alone. There is no merit to this claim of error.
In its other claim of misconduct by the court, Orkin alleges the trial judge fell asleep and thereby lost control of the trial. Orkin argues this is grounds for a new trial. Orkin equates this allegation of sleeping with the case where a trial judge left the courtroom, allowing his clerk to preside over final arguments. Feichter v. Feichter, 97 Kan. 166, 155 Pac. 42 (1916). In Feichter we said only a slight showing of prejudice would be necessary to authorize a reversal. In the instant case the record made during trial does not support the allegations although an affidavit from one of the jurors indicates she thought the judge appeared, in at least one instance, to be asleep. In ruling on the point in Orkin’s motion for new trial, the judge said he did not recall dozing off at anytime during the long trial. The court also pointed out that at no time during the trial did counsel claim the court was inattentive or bring any such claim to its attention. When the court did miss the tenor of an objection, it had the reporter’s read-back available to it. Assuming there was a credible showing of misconduct by the court, no prejudice has been shown and the mere possibility of prejudice is not sufficient to overturn a verdict. White v. New Hampshire Ins. Co., 227 Kan. 293, 607 P.2d 43 (1980).
Next Orkin contends the trial court erred in refusing to permit Orkin to introduce evidence of its attempts to compromise and settle plaintiff s claims. Orkin wanted to use the evidence for the sole purpose of its defense against plaintiffs claim for punitive damages and to show mitigating circumstances relating to punitive damages. The issue is one of first impression in this state. The proffer of evidence by Orkin’s counsel was:
“I will give you a proffer, Your Honor, and I will make a formal proffer, and I will ask specifically and state once again for the record my purpose for the offer and the limitations I think the Court should place upon it.
“The offer will be, (1) that in March of 1979, in advance of filing this lawsuit, in April of 1979, an attempt was made whereby Mr. Davis contacted Mr. Erickson, made an indication that a package amounting to twenty-five thousand dollars might be able to be put together, and to which there was a response that his client had already told him that unless he could get fifty thousand dollars, to file suit, at which time Mr. Davis responded.
“The manner in which we would elicit that testimony would be through the plaintiff, which would be through a question, ‘Had you been advised, ma’am, in March of 1979, in advance of filing this lawsuit, of the possibility to resolve this dispute for the sum of twenty-five thousand dollars,’ to which we would ask for her response.
“As an additional proffer, I would think prior to actual commencement of this litigation as to whether or not a formal offer had been extended for her consideration in the sum of thirty-five thousand dollars prior to the time of trial commencing on October 12th.
“The purpose of my offer is simply for the purpose of mitigation of damages, to which this defendant is exposed both in actual damages of evidence upwards of thirty thousand dollars, and a value of a home of twenty-one thousand dollars, and punitive damage claim of two hundred and fifty thousand dollars. It is not, and I repeat, not being offered for the purpose of liability or fault of any party, and we would suggest to the Court give a very strong limiting instruction as to the purpose of the offer directing it simply to the issue of mitigating circumstances either at the time of entry or at the time when instructing this jury concerning punitive damages.”
As indicated in the proffer Orkin sought the admission of the offers of settlement under a strong instruction limiting its purpose to the issue of mitigating circumstances concerning plaintiff s claim for punitive damages. It has been consistently held that offers of settlement and evidence of pretrial settlement negotiations are generally inadmissible. There are two statutes in Kansas which specifically concern the admissibility of evidence concerning settlement negotiations. K.S.A. 60-452 provides:
“Evidence that a person has, in compromise or from humanitarian motives furnished or offered or promised to furnish money, or any other thing, act or service to another who has sustained or claims to have sustained loss or damage, is inadmissible to prove his or her liability for the loss or damage of any part of it. This section shall not affect the admissibility of evidence (a) of partial satisfaction of an asserted claim on demand without questioning its validity, as tending to prove the validity of the claim, or (b) of a debtor’s payment or promise to pay all or a part of his or her pre-existing debt as tending to prove the creation of a new duty on his or her part, or a revival of his or her pre-existing duty.”
K.S.A. 60-453 states:
“Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act or service in satisfaction of a claim, is inadmissible to prove the invalidity of the claim or any part of it.”
Neither statute clearly addresses the question posed in this case. Both of these evidence provisions are silent on the question of punitive damáges. K.S.A. 60-452 is concerned with possible prejudice to the defendant on the issue of liability. K.S.A. 60-453 is concerned with protecting the plaintiff s claim. In addition to promoting settlement efforts, the purpose behind the former statute is to protect the defendant from an improper inference of liability while the purpose of the latter statute is to protect the full value of the plaintiff s claim during the negotiating process. As neither of these purposes is involved in the issue in the present case, we must look further to determine whether the court erred in excluding the Orkin offers of settlement for the limited purposes proffered. It is clear that all settlement offers or negotiations are not, per se, inadmissible. We have held that an offer of compromise, which may be inadmissible as a basis for an inference of liability, is admissible if it contains an admission of fact. Patterson v. Burt, 213 Kan. 463, 516 P.2d 975 (1973); Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 491 P.2d 917 (1971); O’Bryan v. Home-Stake Production Co., 195 Kan. 213, 403 P.2d 978 (1965). K.S.A. 60-406 provides:
“When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”
K.S.A. 60-407(f) provides that all relevant evidence is admissible unless otherwise provided by statute. Was the proffered evidence in the instant case relevant? We think not.
“Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs.” Henderson v. Hassur, 225 Kan. 678, Syl. ¶ 9, 594 P.2d 650 (1979).
In Will v. Hughes, 172 Kan. 45, Syl. ¶ 10,238 P.2d 478 (1951), we held:
“In assessing exemplary damages the nature, extent and enormity of the wrong, the intent of the party committing it, and generally, all the circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be considered.” (Emphasis added.)
In Restatement (Second) of Torts § 908 (1977), we find:
“(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
“(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.”
25A C.J.S., Damages § 159 at page 68 states in part:
“Evidence of other acts of the defendant, either preceding or following the particular acts alleged and for which damages are sought, is admissible if so connected with the particular acts as tending to show defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed.” (Emphasis added.)
Other states have had occasion to consider the admissibility of settlement offers and negotiations or other post-event occurrences in relation to the issue of punitive damages, and as might be expected, there is no unanimous agreement on the issue.
In Byers v. Santiam Ford, Inc., 281 Or. 411, 574 P.2d 1122 (1978), the buyer of an automobile brought an action against the seller to recover actual and punitive damages for fraud and violations of the Oregon Unfair Trade Practices Act. Defendant attempted to settle the case prior to trial but was unsuccessful, and during trial wanted to introduce evidence of the settlement offers contending it was relevant on the issue of punitive damages. The court stated:
“Evidence of the parties’ conduct subsequent to the event, which produces plaintiff s claim for punitive damages, whether aggravating or mitigating, must be probative of the defendant’s state of mind at the time of the transaction. [Citation omitted.]
“In the case here at issue the evidence of contrition and a conciliatory attitude of one of defendant’s agents after the complaint was filed has scant relevance respecting the state of mind of other agents of defendant at the time the car was sold to plaintiff. Assuming the evidence established the good faith and good will of defendant’s president toward plaintiff, such conduct came as a response to the complaint, which prayed for substantial punitive damages. The evidence shows a desire to ‘buy peace’ and minimize the risk of an award of punitive damages and not that defendant dealt in good faith with plaintiff in selling the car.” pp. 416-17. (Emphasis added.)
In Forquer v. Pinal County, 22 Ariz. App. 266, 526 P.2d 1064 (1974), an action involving an automobile collision, the issue did not involve settlement negotiations but did revolve around certain post-accident conduct of the defendant. The court, in considering the nature of a claim for punitive damages, stated:
“The concept of punitive damages is to punish the wrongdoer, over and above the rendition of pecuniary damages, for his ‘.aggravated, wanton, reckless or maliciously intentional wrongdoing.’ [Citation omitted.] Thus, it is the quality of the character of the tortious act itself which gives rise to the assessing of punitive damages, not the character of the wrongdoer, unless that personal character is material and relevant to the manner in which the tortious act was committed. [Citation omitted.] It follows that acts of the wrongdoer occurring after the liability-creating event are normally not material on the issue of punitive damages unless such acts constitute evidence as to either the manner in which the liability-creating event occurred or to the aggravation of the victim’s injuries.
“However, in those cases allowing the after-occurring conduct to be admitted on the issue of punitive damages, the conduct has a reasonable relationship either to the state of mind of the tortfeasor at the time of the event itself or to the injured parties’ actual damages. Therefore, after-occurring conduct not related to these matters, such as failing to file an accident report, is inadmissible on the issue of punitive damages.” pp. 269-70. (Emphasis added.)
In Charles F. Curry and Company v. Hedrick, 378 S.W.2d 522 (Mo. 1964), plaintiff wanted evidence of the defendant’s conduct after he had converted an airplane admitted on the issue of punitive damages. Defendant argued that if he had converted the airplane on a particular date and was required to answer in damages for it, then whatever he did with the property after that date was his own business. The court, however, disagreed and said:
“Evidence is considered relevant if the fact it tends to establish tends in turn to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue. [Citations omitted.] Evidence of other acts of defendant than those alleged for which damages are sought, both preceding as well as following the particular acts, is admissible under an issue of exemplary damages if so connected with the particular acts as tending to show defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed.” p. 536. (Emphasis added.)
See also Lemer v. Boise Cascade, Inc., 107 Cal. App. 3d 1, 11, 165 Cal. Rptr. 555 (1980).
Other courts have admitted settlement offers or other post-occurrence events under certain circumstances. In Fenters v. Fenters, 238 Ga. 131, 231 S.E.2d 741 (1977), the court held that, contrary to the general prohibition, evidence concerning settlement negotiations was relevant to an ex-husband’s responsibility for his former spouse’s attorney’s fees.
In Lawrence v. Boles, 631 S.W.2d 764 (Tex. Civ. App. 1981), the court was also faced with the effect of settlement offers upon the award of attorney fees.
“The trustee contends that this testimony by Boles on the attorney’s fee issue was inadmissible because it was an ‘offer to compromise’ a dispute. Offers to settle or compromise a suit are usually excluded at trial because it is the public policy of the law to encourage the settlement of controverted claims. See Ray, Law of Evidence, § 1142 (1980), and cases cited therein. In the instant case, Boles offered the testimony as evidence that the suit was filed unnecessarily. There was no policy reason for excluding the testimony, and the trial court did not err in admitting it.
“In other words, the reason for excluding settlement offers from evidence is to protect the party offering to settle from having such offers introduced against him at trial. The judicial system should encourage settlements, yet the introduction of settlement offers would tend to discourage the same. However, here it was the party offering to settle the dispute who introduced the evidence as a defense against the imposition of attorney’s fees. We think the evidence was properly admitted and supported the jury’s finding on the reasonable value of the attorney’s fees.” p. 769.
While not having specifically addressed the issue before us, we have in many cases adopted the position that in considering punitive damages all relevant evidence surrounding the event or occurrence which gave rise to the claim is admissible. The position was recently iterated in Slough v. J.I. Case Co., 8 Kan. App. 2d 104, 650 P.2d 729, rev. denied 232 Kan. 876 (1982):
“In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses, including attorney fees.” Syl. ¶ 8. (Emphasis added.)
Many elements enter into settlement negotiations and offers which have no bearing whatsoever on the culpability of the defendant for the alleged wrongful conduct. Availability of witnesses or other critical evidence, the financial condition of the parties, expense of litigation, possible adverse publicity and the possible generation of other claims are just a few things that come to mind which might encourage settlement offers but bear no relevant relationship to the awarding of punitive damages. Considering the underlying policy behind the granting of punitive damages, that is, punishment and deterrence, we think the rule adopted by the Oregon court is the better approach to the issue. Absent unusual circumstances, not shown in this case, we hold settlement offers and negotiations are inadmissible in evidence even when offered for the limited purpose of defending against an award of punitive damages. The trial court did not commit error in excluding the proffered evidence.
Finally, Orkin makes numerous allegations of error based upon the judgment for actual and punitive damages granted the Hohnbaums, including (1) insufficient evidence of fraud; (2) no showing of actual damages; (3) error in the instructions; (4) conduct of the Hohnbaums; and (5) the verdict was influenced by passion and prejudice of the jury. The actual damages awarded were $410.00, the amount paid by the Hohnbaums for the 1976 inspection, treatment and continuing retreatment contract. It would serve no useful purpose to detail at length the voluminous evidence in this case upon which the jury may have found Orkin committed fraud. We have considered all of the contentions raised by Orkin, find them to be without merit, and, certainly, the amount of the judgments rendered herein does not shock the conscience of the court. Orkin is fortunate that the Hohnbaums did not seek to amend the pretrial order and questionnaire to ask for more than $10,000.00 punitive damages and that the actual jury award was therefore reduced accordingly.
In view of the decision reached herein, plaintiff s request to dismiss her appeal is granted and the other appeals are found to be moot.
The judgments are affirmed. | [
-15,
108,
-11,
-67,
10,
96,
-8,
-24,
107,
-127,
-73,
91,
-49,
-53,
21,
105,
-26,
45,
-44,
107,
87,
-77,
23,
-125,
-106,
-13,
-7,
-59,
-67,
-54,
116,
-33,
72,
48,
-62,
-99,
-122,
-62,
79,
80,
-114,
7,
-119,
64,
-35,
82,
-76,
-65,
-12,
75,
17,
-114,
-5,
42,
29,
-61,
104,
40,
123,
61,
17,
-71,
43,
21,
-2,
18,
-109,
-124,
-98,
-125,
88,
78,
-112,
55,
0,
-24,
115,
-74,
-106,
116,
67,
-71,
8,
36,
98,
35,
13,
-81,
-8,
-120,
15,
93,
-121,
-89,
-78,
72,
-126,
33,
-66,
-97,
116,
16,
39,
126,
-12,
-51,
29,
108,
10,
-113,
-44,
-109,
-113,
-28,
28,
8,
-17,
-117,
51,
113,
-55,
-96,
93,
5,
51,
-117,
12,
-44
] |
On April 21, 1983, a panel of the Board for Discipline of Attorneys filed its report with the Clerk of the Appellate Courts in which they found the respondent, Robert E. Laubengayer, a member of the bar of this State, guilty of a violation of the Code of Professional Responsibility, DR 6-101(A)(3). 230 Kan. cxxii.
Joe M. Sahlfeld was injured on his job in April of 1977. He received workmen’s compensation payments from his employer’s insurance carrier until August, 1978, at which time he was offered a lump sum settlement of $6,700.00. Mr. Sahlfeld, being dissatisfied with the offer, retained respondent to represent him in securing a more adequate award. Respondent did very little in representing his client and in May of 1980, Mr. Sahlfeld died from causes not connected with his injury on the job. The panel made findings of fact, conclusions and recommendations as follows:
“FINDINGS OF FACT
“I. That the respondent, Robert E. Laubengayer, is an attorney at law, with his last registered address being at P. O. Box M, Ellsworth, Kansas 67439.
“2. That the Sahlfeld family, specifically Joe M. Sahlfeld and Mary Sahlfeld entrusted to the respondent a claim concerning an injury sustained by Joe M. Sahlfeld while in the course of employment, which claim was in the nature of a workmen’s compensation claim, and that the respondent accepted this employment in October of 1978. That the respondent only wrote one letter of inquiry to Dr. Lance concerning the injury to Joe M. Sahlfeld and that he received a letter back from a different doctor, which letter only concerned the other physical problems of Joe M. Sahlfeld. That the respondent directed no other letters or communications to any other doctors in relation to the claim and injury of Joe M. Sahlfeld.
“3. That the respondent did nothing further than look in a telephone book for the address of Crawford Insurance Company, which was the insurance company handling the claim for the employer.
“4. That at no time did respondent ever inform Joe M. Sahlfeld or his wife, Mary Sahlfeld, about the procedure in relation to workmen’s compensation claims or the fact that they had certain times within which to file such things as claim for compensation or written request for hearing.
“5. That respondent let these deadlines expire and did not file said claims or notices.
“6. That respondent did not inform Joe M. Sahlfeld or Mary Sahlfeld of the requirements and legal procedures in a workmen’s compensation claim. That as a result Joe M. Sahlfeld was not able to collect the lump sum settlement offer of $6,700, and his widow Mary Sahlfeld is unable to collect the same. That Joe M. Sahlfeld died in May of 1980 of causes other than that sustained in the workmen’s compensation case.
Effective this 15th day of July, 1983.
“7. That the respondent did not communicate adequately with the Sahlfelds concerning the claim.
“CONCLUSION
“The panel concludes as follows:
“That the respondent is guilty of a violation of DR 6-10I(A)(3), in that he neglected a legal matter entrusted to him.
“RECOMMENDATION
“It is the unanimous recommendation of the panel that respondent be given a public censure by the Supreme Court of the state of Kansas.”
Respondent took no exceptions to the report of the panel and appeared before this court on the 10th day of June, 1983, pursuant to the orders of this court under Rule 212(d) (230 Kan. civ-cv).
The court, having heard statements of the respondent and the disciplinary counsel and being fully advised in the premises, finds that the report and recommendations of the panel of the Board for Discipline of Attorneys should be accepted and approved.
It is Therefore by the Court Ordered that the report of the panel of the Board for Discipline of Attorneys be and the same is hereby accepted and approved.
It is Further by the Court Ordered that the respondent be and he is hereby disciplined by Public Censure, the costs herein are assessed to the respondent, and the Reporter of the Appellate Courts is directed to publish this order in the official Kansas Reports. | [
-80,
106,
-7,
95,
8,
98,
58,
90,
93,
-63,
-9,
115,
-3,
-29,
13,
39,
-16,
61,
68,
42,
-106,
-106,
51,
-85,
-42,
-77,
-7,
-59,
-78,
111,
-28,
-99,
79,
32,
10,
-43,
-26,
66,
-59,
88,
-124,
4,
90,
-4,
-101,
80,
48,
-5,
-76,
91,
49,
-98,
-94,
42,
55,
111,
40,
60,
122,
-93,
-112,
-15,
-104,
5,
125,
16,
-94,
2,
-104,
5,
-40,
62,
-104,
-79,
9,
-3,
35,
-74,
-122,
119,
55,
-103,
12,
102,
34,
52,
29,
-83,
-32,
-72,
15,
52,
29,
5,
-103,
89,
-119,
11,
-98,
-97,
96,
64,
38,
124,
-27,
85,
29,
-20,
11,
-122,
-12,
-95,
95,
118,
-100,
-101,
-17,
-121,
34,
85,
-52,
-94,
95,
71,
115,
19,
30,
-128
] |
The opinion of the court was delivered by
Holmes, J.:
Kearney, et al v. Kansas Public Service Company, Inc., et al, case No. 54,224, (hereinafter referred to as Kearney or the Kearney case), and the ten cases consolidated with it in this appeal, grew out of a natural gas explosion which occurred in Lawrence, Kansas, in the early morning hours of December 15, 1977. The explosion claimed two lives and caused serious personal injuries along with extensive property damage. Fourteen separate lawsuits were filed by various plaintiffs against the Kansas Public Service Company, Inc. (KPS), E. I. du Pont de Nemours and Company, Inc., (du Pont), and Dresser Industries, Inc. (Dresser). Two cases were settled by KPS and are not germane to this appeal. One of the cases was partially tried, then settled by KPS. The instant Kearney case was tried and resulted in a verdict placing 100% of the fault upon KPS and awarding actual damages of $97,066.42 and punitive damages of $80,000.00. Of the remaining ten cases, eight were settled between KPS and the plaintiffs and two are still pending. Subsequent to settlement of the eight cases KPS filed cross-claims in each case against du Pont and against Dresser for comparative indemnity. There have been no cross-claims filed in the two cases which are still pending in district court. However, after the jury verdict in Kearney, du Pont and Dresser were granted summary judgments in the two pending cases and the eight settled cases. Since the Kearney jury found du Pont and Dresser to be without fault in the unfortunate accident, the court found no genuine issues of material fact remaining upon the plaintiffs’ claims or the KPS cross-claims. KPS appeals from the Kearney judgment as well as the summary judgments in the ten other cases consolidated with it on appeal.
KPS is a one-city public utility company which supplies natural gas to its customers in Lawrence. Du Pont is the manufacturer and distributor of a polyethylene plastic pipe called Aldyl “A” which was used in the KPS gas distribution system. Du Pont also manufactures and distributes a metal insert pipe stiffener to be used with its pipe. Dresser is the manufacturer and distributor of a compression coupling called the Dresser 90 which was also used in the KPS system. The several lawsuits each alleged that KPS, du Pont and Dresser were at fault in the accident. In none of the suits is the comparative fault of the plaintiffs an issue. Mr. and Mrs. Kearney were the owners of a Pier I Imports business located at 747 Massachusetts Street in the City of Lawrence.
Sometime prior to June, 1975, KPS decided to replace some of its existing metal gas lines with plastic pipe. The plastic pipe involved in this case was a two-inch pipe snaked through the existing three-inch steel casing beneath the paved alley behind the Kearney s’ place of business.- At one end the plastic pipe had to be connected to the existing steel gas main. The transition joint joining steel to plastic was accomplished by means of a five-inch-long Dresser 90 compression coupling. The coupling device allowed the insertion of two and one-half inches of plastic pipe from one end and two and one-half inches of steel from the other. A metal insert stiffener is used to prevent the plastic pipe from being crushed when a compression coupling is applied and tightened around the pipe. It is not clear whether it was a du Pont stiffener which was actually used in this case. The installation was designed, made, owned, operated and maintained by KPS and was originally completéd on June 2, 1975. This was not the first installation of this type made by KPS.
The run of the plastic pipe from the steel main was three hundred ninety-four feet. It is undisputed that unsecured plastic pipe will expand or contract in length about one inch for every one hundred feet with any ten degree change in temperature. When the pipe is installed directly in the ground, with earth tamped along its length, the degree of contraction and expansion is reduced. With the use of proper anchoring devices the plastic pipe can be prevented from pulling out of the coupling.
The explosion leading to these lawsuits occurred when the plastic pipe contracted due to the cold weather and pulled free of the compression coupling. The gas then escaped from the steel main and migrated through the ground and accumulated in the nearby buildings. At about 1:20 a.m. on December 15, 1977, the gas exploded and burned causing death, personal injury and extensive property damage. It appears to be conceded by all parties that if the plastic pipe had been properly anchored, it would not have contracted and pulled free from the compression coupling and the explosion would not have occurred.
We will first consider the issues in the appeal by KPS from the Kearney judgment. KPS raises a number of arguments and issues which basically fall into four general categories. First, KPS claims that the trial court erred in its instructions on the duty of du Pont and Dresser to warn KPS on the proper use of their products and in its instructions on the alleged design defects of their respective products. Second, KPS contends the trial court made evidentiary and procedural errors which affected the jury findings as to du Pont’s and Dresser’s liability. Third, it claims error with respect to the actual damages and, last, error with respect to the punitive damages. The Kearneys have cross-appealed, claiming the court erred in refusing to grant treble damages under K.S.A. 66-176 and in refusing to grant prejudgment interest.
KPS contends that the court should have instructed that du Pont and Dresser were under a duty to warn KPS of the possible dangers involved in using their products in the manner utilized by KPS. The evidence revealed that the Dresser 90 coupling was not, by itself, designed to prevent pullouts from longitudinal shrinking due to temperature changes. It was contemplated and recommended that if the run of plastic pipe was to be extensive then proper anchoring devices should be used with the coupling to prevent contraction and expansion due to temperature changes. KPS sought to shift the blame for the tragedy to du Pont and Dresser by claiming the information furnished was insufficient to advise KPS of the dangers involved. KPS contends the trial court should have instructed the jury that du Pont and Dresser were under a duty to warn KPS unless they knew KPS was actually aware of the specific dangers involved. The trial court instructed the jury that du Pont and Dresser were under a duty to warn unless KPS knew or should have known of the existing dangers. There are two flaws in the KPS argument. First, the evidence was clear that KPS was actually aware of the specific dangers involved and had been adequately forewarned. Second, the contention of KPS has recently been resolved to the contrary in Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983). We find no error in the trial court’s instructions on the duty of du Pont and Dresser to warn KPS.
Next, KPS contends error in the trial court’s instruction on design defects. KPS argues the du Pont pipe was defective when sold without the appropriate anchoring devices recommended by both du Pont and Dresser. It claims the pipe was, per se, unreasonably dangerous when sold without the other products required to properly install the pipe. The trial court instructed the jury in detail about the contentions of the various parties and also instructed on defective products in language generally following that recommended in PIK Civ. 2d. It appears clear that the use of plastic pipe for transmission of gas is not inherently dangerous when properly installed. In view of the warnings and instructions furnished KPS and its actual knowledge of the dangers involved if the pipe was not properly anchored when installed, we find no error in the design defect instructions.
KPS contends it was error for the trial court to admit in evidence a report of the National Transportation Safety Board about a similar gas explosion which occurred in Fremont, Nebraska, on January 10, 1976, nearly two years before the Lawrence explosion. The Fremont disaster involved a hotel which was destroyed from an almost identical situation as in the instant case. KPS argues there were too many dissimilarities in the two events, and that the compression coupling was not a Dresser 90, that the report was hearsay, that its prejudicial impact far outweighed its probative value and, finally, that the use of the report was contrary to 49 U.S.C. § 1903(c). The report was received in evidence for the limited purpose of showing KPS was on notice that its type of installation was hazardous. The court instructed the jury that:
“Evidence has been admitted in this case concerning a gas explosion which occurred in Fremont, Nebraska, on January 10, 1976. This evidence has been admitted on this issue of whether the Kansas Public Service Company had notice or knowledge of the alleged cause of the Fremont, Nebraska, incident. You should only consider such evidence for that limited purpose.”
The Fremont explosion involved the same kind of du Pont pipe utilized with a compression coupling to make the plastic- to-steel transition joint. The Fremont installation was made without the recommended anchoring devices, the run of plastic pipe in both cases was in excess of three hundred feet, both installations were made in hot summer weather with the pipe contracting and pulling loose from the compression coupling in cold winter weather. The report was clear notice of the possibility of a pullout due to contraction of plastic pipe if it is not properly anchored. The report was not hearsay as it was not admitted to prove the truth of the statements contained therein but solely for the limited purpose of showing notice to KPS. Neither was the use of the report contrary to 49 U.S.A. § 1903(c), which prohibits the use of such reports in litigation “growing out of any matter mentioned in such report.” The Lawrence litigation obviously did not grow out of any matter mentioned in the Fremont report. While there is no doubt the report was damaging to KPS, we find no error in its admission for the limited purposes of which the jury was properly instructed. K.S.A. 60-406.
Next, KPS claims error in the testimony of Mr. Keith Chen, an expert witness for du Pont. After Mr. Chen had been cross-examined at length by counsel for KPS, attacking his credibility as a paid, professional witness for du Pont, he was asked on redirect examination whether he had testified in some of the Fremont, Nebraska, cases. An objection to the general question was overruled. When he replied in the affirmative, he was then asked and allowed to answer without objection as to the specific results of those trials which had been favorable to du Pont. The parties are not in agreement whether the initial objection of KPS constituted a contemporaneous objection to the specific question as required by K.S.A. 60-404. In any event, following an immediate conference at the bench, the court instructed the jury as follows:
“The Court: Members of the jury, you are instructed that the last answer given by Mr. Chen concerning the results of any trials that may have occurred or the trial that occurred about Fremont, Nebraska, the objection is sustained to that statement and you are instructed to disregard any statement that he made in that regard. It is not a part of this case and should have no bearing on your consideration of the facts in this case.”
Assuming arguendo the limited and untimely objection of KPS was sufficient and that the evidence was inadmissible, the error was not reversible error. In Cherry v. State Automobile Insurance Association, 181 Kan. 205, 310 P.2d 907 (1957), we stated:
“Assuming, as he contends, it was error to introduce such testimony in the first instance, we are unable to concur in his view respecting the force and effect of the court’s instruction. The books are full of cases holding that an instruction to disregard testimony erroneously admitted cures what might otherwise afford sound ground for reversal of the judgment.” p. 211.
The statements by Mr.. Chen constituted harmless error, at best.
Early in the trial, Arthur C. Barney, an investigator for the Kansas Corporation Commission, testified on behalf of the plaintiffs. On cross-examination KPS was precluded from eliciting testimony as to the custom and usage in the gas industry in the use of compression couplings for joining plastic pipe to steel. Custom and usage in the same field is usually relevant on the issue of negligence. Garst v. General Motors Corp., 207 Kan. 2, 484 P.2d 47 (1971). However, we find no reversible error in this case. KPS made no proffer of the evidence they hoped to present through Mr. Barney (K.S.A. 60-405), and later in the trial Mr. Robert Allison, plant superintendent for KPS, was allowed, over objection, to testify about the widespread usage of compression couplings in the industry. In addition, KPS could have called Mr. Barney when presenting its case in chief but did not choose to do so.
Next, KPS contends it was error to exclude evidence that it intended to comply with certain state and federal regulations. The Kansas Corporation Commission has adopted certain federal regulations pursuant to K.S.A. 66-1,150 in order to be in conformance with the natural gas pipeline safety act of 1968 (49 U.S.C. § 1671 et seq.). KPS wanted to show that it had complied with many of the regulations but the court ruled that such evidence must be limited to the subject of anchoring this type of installation and the relevant minimum safety standards pertaining thereto. Again, there is no proffer showing what portions of the Code of Federal Regulations KPS wanted to place in evidence and the court’s ruling that only regulations relevant to the issues in the case would be admissible was correct. The fact that KPS had complied with numerous federal regulations would have no relevance to its negligence in this case unless the regulations related to the issues in the case.
In the opening stages of the trial, the court set some ground rules to assure an orderly presentation of the evidence and examination of the witnesses. The order of examination of each witness was direct examination by plaintiffs, followed by cross- examination by KPS, du Pont and Dresser, in that order. Following cross-examination by all three defendants, plaintiffs were then permitted redirect examination followed again by re-cross-examination by KPS, du Pont and Dresser. The recross-examination was limited to the scope of the redirect examination. KPS claims that its re-cross-examination should not have been limited to the scope of the redirect examination but should have included the right to cross-examine each witness on matters developed by du Pont and Dresser in their original cross-examinations. The theory of KPS is that the plaintiffs, du Pont and Dresser had teamed up to put the blame on KPS and unless KPS was allowed the right to cross-examination based upon what du Pont and Dresser elicited from each witness, it was being deprived of a fair trial. The fact that actions based upon comparative negligence create adversary proceedings among the defendants is the inevitable result of the change from the doctrine of contributory negligence to the present one of comparative negligence. Under contributory negligence the defendants, ordinarily,- enjoyed a community of interest in that one of the principal objectives was to prove the plaintiffs contributorily negligent in some degree. If the defendants, working in concert, could accomplish that then all the defendants were ordinarily freed of liability. Under comparative negligence, each defendant must fight his own battle and. attempt to convince the trier of facts that not only the plaintiffs, but also the other defendants are the real culprits. As a result, the comparative negligence doctrine has converted - what used to be a cooperative effort on the part of the defendants into an adversarial relationship.
In the instant case the petition and pretrial order reflect that plaintiffs were asserting serious claims of negligence against du Pont and Dresser, although it must be conceded that the main thrust of their attack was against KPS. The procedure adopted by the trial court does not appear to have been unduly restrictive or prejudicial to the rights of KPS. If there were specific areas of examination which KPS desired to inquire into and which were precluded by the order and limitations placed on cross-examination, KPS could always recall the witness during its case in chief. In Manley v. Rings, 222 Kan. 258, 564 P.2d 482 (1977), we stated:
“Generally the relevancy of testimony elicited by a party from any witness and the scope of both direct and cross-examination of that witness is subject to reasonable control by the trial court. Exercise of reasonable control by the court will not constitute reversible error absent a showing of abuse resulting in prejudice.” p. 261.
The scope of cross-examination lies within the sound discretion of the trial court and no abuse of that discretion has been shown in this case. See Lemons v. St. John's Hospital of Salina, 5 Kan. App. 2d 161, 613 P.2d 957 (1980).
Next, we turn to the various issues raised by KPS in attacking the jury’s award of actual and punitive damages. KPS first attacks the jury’s award of $37,406.00 for loss of profits while plaintiffs’ business was closed and its award of $8,154.00 for loss of future profits. Dr. Darwin Daicoff, a professor of economics at the University of Kansas, testified as an expert witness on behalf of the plaintiffs. Plaintiffs’ business had been in operation for several years and had an established record of profitability. In addition, Mr. and Mrs. Kearney testified as to the financial history of the business. Following the disastrous explosion of December 15, 1977, plaintiffs’ business was closed until August 15,1979. The new location was not as desirable as the former one and therefore Mr. Daicoff projected that the net earnings of the business would be reduced during the ten-year period from August, 1979, to August, 1989. KPS objects to the testimony of Dr. Daicoff alleging he used an unrealistic formula and failed to consider certain essential factors in reaching his conclusions as to lost profits, past and future, and therefore the testimony was speculative and should not have been admitted. In Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974), we said:
“Unquestionably, a method of establishing a loss of profits with reasonable certainty is by showing a history of past profitability. Past profitability of a particular business is not, however, the only method of proving lost future profits. The evidence necessary in establishing lost future profits with reasonable certainty ‘must depend in a large measure upon the circumstances of the particular case. . . .’ (Requirements of Certainty of Proof of Lost Profits, 64 Harv. L. Rev. 317, 319.) Absolute certainty in proving loss of future profits is not required. (22 Am. Jur. 2d, Damages, § 172.) What is required is that the court or jury be guided by some rational standard. (Brenneman v. Auto-Teria, Inc., 260 Or. 513, 491 P.2d 992; Smith Development Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 308 A.2d 477; Mechanical Wholesale, Inc. v. Universal-Rundle Corp., 432 F.2d 228 [5th Cir. 1970].) As to evidentiary matters a court should approach each case in an individual and pragmatic manner, and require the claimant furnish the best available proof as to the amount of loss that the particular situation admits. (McCormick, Law of Damages, § 29 [1935].) It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury. (Peterson v. Bachar, [193 Kan. 161, 392 P.2d 853 (1964)].” p. 620.
There was sufficient evidence to furnish a rational standard and basis for the expert testimony. The trial court has wide discretion in allowing the testimony of expert witnesses and the use of such testimony ordinarily goes to the weight thereof and not its admissibility. Schaeffer v. Kansas Dept. of Transportation, 227 Kan. 509, 520, 608 P.2d 1309 (1980). KPS, by cross-examination, had the right to attack the credibility of Dr. Daicoff and the accuracy of his opinions and was free to fully go into what it perceived to be deficiencies in the testimony. The jury’s award of past and future lost profits is supported by substantial evidence and will not be disturbed on appeal. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 624 P.2d 420 (1981).
Next KPS alleges error in permitting recovery of actual damages for loss of fixtures, equipment, furniture, supplies, and miscellaneous other personal property. KPS contends there was no evidence of the market value of the personal property at the time of the loss. To the contrary Mr. Kearney consistently testified as to the fair market value as of the date of the loss. In addition, the jury was properly instructed that any such loss must be in terms of the “fair and reasonable market value of the property immediately before its destruction.” No error is shown. See Ultimate Chem. Co. v. Surface Transp. Int'l, Inc., 232 Kan. 727, Syl. ¶¶ 2, 4, 658 P.2d 1008 (1983).
KPS also asserts it was error for the court to accept the jury’s verdict awarding $2,900.00 for loss of leasehold improvements for the reason that such improvements became the property of the landlord, could not have been removed by plaintiffs and, therefore, plaintiffs had no compensable loss. No contemporaneous objection was made to the testimony of Mr. Kearney as to the loss and value thereof and therefore the issue is not properly before this court for review. K.S.A. 60-404. Even if the issue could be said to be properly before the court, we find no error. Plaintiffs expended money for leasehold improvements which could have been used throughout their tenancy if the property had not been destroyed and, therefore, the improvements did have an ascertainable value to plaintiffs.
Finally, as to actual damages, KPS asserts there was error in the award for expenses of relocating and reopening when a portion of such damages were duplicative of other damages allowed and included the cost of new improvements and assets. The total amount sought by plaintiffs was $6,386.03 and the jury allowed $4,586.03, thereby reducing the amount claimed by $1,800.00. We have no way of knowing which expenses of relocating and reopening were allowed and which were not. The amount awarded by the jury is supported by the evidence and no error is shown.
Next, KPS raises several arguments attacking the award of punitive damages in the amount of $80,000.00. Initially KPS contends it was error to submit the issue of punitive damages to the jury because there was no evidence of wilful, fraudulent, malicious or wanton conduct necessary to support punitive damages. We do not deem it necessary to detail at length the extensive evidence to the effect that KPS knew long before the Lawrence explosion that their method of utilizing the du Pont pipe and Dresser compression coupling could result in longitudinal contraction and pullout with temperature changes. KPS had previously experienced pullouts of plastic pipe from compression couplings in October and December of 1975. Officials of KPS testified they had considered the problem, discussed it, but failed to take any action to install the recommended anchoring devices. As early as July of 1974, representatives of Dresser warned KPS of the dangers involved in the type of installation being utilized by KPS and attempted to convince KPS that it should use anchoring devices. The evidence was clear that proper anchoring devices will secure the pipe in place thus preventing contraction and pullout. KPS was specifically put on notice by the Fremont report and by two subsequent letters from du Pont that anchors should be used to make the installations safe. The evidence was more than sufficient to establish wanton disregard of the known consequences of the type of installations utilized by KPS. The issue was properly submitted to the jury. See Byers v. Hesston Appliance, Inc., 212 Kan. 125, 509 P.2d 1151 (1973).
KPS asserts the trial court erred in its instructions to the jury because the instructions did not advise the jury relative to the intentions of KPS. Under the massive evidence adduced in this case we find no error in the instructions. The issue of punitive damages was submitted to the jury on the wanton conduct of KPS and not on the basis of any wilful act of that defendant.
KPS next contends it was error to preclude it from showing its good faith attempt to comply with the Code of Federal Regulations and that it actually did comply with the bulk of them. Compliance with regulations unrelated to the cause of the accident involved is not relevant to whether there was a wanton violation of other relevant regulations. KPS also claims error in the failure to allow it, to show that it had not been cited by the Kansas Corporation Commission for any violation in connection with the explosion. The fact KPS was not cited for violations is irrelevant to the determination of the actual conduct of KPS.
KPS complains it was error to allow the defendants to introduce evidence of its net worth for the years 1979 and 1980 in addition to 1981. KPS acknowledges that the financial condition of a defendant is a proper factor to take into consideration in awarding punitive damages but contends evidence thereof should be limited to the financial condition at the time of trial. Because the financial data of KPS during the time of trial was limited and incomplete, information of its financial condition for the two preceding years was allowed. No abuse of discretion in the allowance of such evidence has been shown.
It is also contended that the punitive damage figure was grossly excessive due not only to the admission of the evidence as to the financial condition of KPS in 1979 and 1980, but also due to the inflated and erroneous actual damages. We have already determined there was no error in the actual damages awarded by the jury or in the admission of the 1979 and 1980 financial data. As to the punitive damages being excessive, the argument lacks merit. We have, on several occasions, approved punitive damage awards several times in excess of the actual damages. Ettus v. Orkin Exterminating Co., 233 Kan. 555, 665 P.2d 730 (1983), $410 actual damages, $10,000 punitive damages; Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983), $20,000 actual damages, $600,000 punitive damages; Ultimate Chem. Co. v. Surface Transp. Int’l, Inc., 232 Kan. 727, $102,000 actual damages, $227,000 punitive damages; Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979), $48,000 actual damages, $215,000 punitive damages. In the instant case, the award of punitive damages was actually less than the actual damages sustained by the plaintiffs. Considering the evidence in this case and the total failure of KPS to heed the numerous warnings or to take any corrective action when it was known a dangerous condition existed, the amounts awarded in this case do not shock the conscience of this court. Henderson v. Hassur, 225 Kan. 678, Syl. ¶ 11.
We now turn to the cross-appeal of the plaintiffs wherein they assert error in the failure of the trial court to triple the jury award pursuant to K.S.A. 66-176, and in failing to grant prejudgment interest. We find no error in either ruling of the trial court. As to the claim for prejudgment interest the general rule is “that an unliquidated claim for damages does not draw interest until it becomes liquidated — usually by judgment.” Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 466, 562 P.2d 1, cert. denied 434 U.S. 876 (1977). See also Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P.2d 731 (1957); Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P.2d 773 (1954). Plaintiffs’ reliance on Lightcap is misplaced. There are no unusual circumstances in the present case which would justify prejudgment interest on the unliquidated claim of plaintiffs.
K.S.A. 66-176 provides:
“Any public utility or common carrier which shall violate any of the provisions of law for the regulation of such public utilities or common carriers shall forfeit, for every offense, to the person, company or corporation aggrieved thereby, three times the actual damages sustained by the party aggrieved, together with the costs of suit, and a reasonable attorney fee, to be fixed by the court; and if an appeal be taken from the judgment or any part thereof, it shall be the duty of the appellate court to include iri the judgment an additional reasonable attorney’s fee for services in the appellate court or courts.”
That statute has been on the books since 1883 and was last revised in 1923. It appears that no Kansas appellate court has ever had occasion to interpret, apply or consider the statute although it was mentioned along with others in the early case of Interstate Com. Commission v. Railway Co., 167 U.S. 479, 497, 42 L.Ed. 243, 17 S.Ct. 896 (1897). It is the position of the plaintiffs that the statute applies to the damages recovered in this case. They contend that K.S.A. 66-1,150, which reads:
“The state corporation commission is hereby authorized to adopt such rules and regulations as may be necessary to be in conformance with the natural gas pipeline safety act of 1968 (49 USCA 1671 et seq.). For the purpose of gas pipeline safety such rules and regulations shall be applicable to all public utilities and all municipal corporations or quasi-municipal corporations rendering gas utility service, the exemption provisions of K.S.A. 66-104, 66-131 and related statutes notwithstanding. Nothing in this section shall be construed as invalidating any present rules or regulations of the state corporation commission, concerning the regulation of pipelines and pipeline companies.”
requires the triple penalty provisions of K.S.A. 66-176 to be applied to any violation of the regulations adopted under the authority of K.S.A, 66-1,150. Kansas has adopted the regulations as contemplated by the statute to bring Kansas into compliance with the federal act. There is also no doubt but that KPS was in violation of the regulations in the instant case as they apply to the requirement for anchoring installations such as the one involved here.
K.S.A. 66-104 provides in pertinent part:
“Except as herein provided, the power and authority to control and regulate all public utilities and common carriers situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the right to apply for relief to the corporation commission as hereinafter provided in K.S.A. 66-133 and to the provisions of K.S.A. 66-131a.”
K.S.A. 66-133 and -131a are not relevant to the issue before the court. KPS is a one-city gas public utility within the provisions of K.S.A. 66-104 and is therefore subject to regulation only by the City of Lawrence except as otherwise specifically provided by statute. K.S.A. 66-1,151 and 66-1,152 provide specific penalties for violations of 66-1,150 and vest in the Kansas Corporation Commission the power to administer such penalty provisions. It is to be noted that 66-1,150 specifically provides that it shall be applicable to all gas public utilities notwithstanding the exemption provisions of K.S.A. 66-104. However, K.S.A. 66-176 does not contain a similar provision and K.S.A. 66-1,150 does not mandate that 66-176 shall be, applicable to violations of the regulations adopted pursuant to 66-1,150. K.S.A. 66-176 is penal in nature and is to be strictly construed and should not be expanded by implication. 82 C.J.S., Statutes § 389, pp. 922-927. In the instant case a violation of the regulations contemplated by K.S.A. 66-1,150 is specifically made applicable to one-city gas public utilities such as KPS. K.S.A. 66-176 contains no language indicating that it is to override the specific exemption from regulation contained in K.S.A. 66-104 and nothing in the legislative history of any of the statutes indicates any such intent. The adoption of K.S.A. 66-1,150 et seq., in 1970 did not automatically subject KPS to the provisions ofK.S.A. 66-176 or to other statutes from which it is exempt under K.S.A. 66-104. The trial court was correct in its determination that K.S.A. 66-176 does not apply to KPS.
As no reversible error has been shown, the judgment in the Kearney case must be affirmed.
We now turn to the appeal of KPS in the ten consolidated cases. In these cases, KPS contends the trial court committed error in sustaining motions for summary judgment in favor of du Pont and Dresser in each case. As pointed out earlier in the opinion, KPS settled with the plaintiffs in eight of the cases and thereafter filed cross-claims against du Pont and Dresser. Two cases are still pending and the only claims asserted against du Pont and Dresser in those were by the plaintiffs. The trial court held that no genuine issues of material fact existed after the jury determination in Kearney found du Pont and Dresser to be without fault. None of the ten plaintiffs has appealed the granting of summary judgment and there are no issues before the court as to the original claims of the plaintiffs against du Pont and Dresser in any of the cases. The trial court found that the doctrine of collateral estoppel or issue preclusion was applicable in each of the ten cases. KPS has appealed.
KPS contends the granting of summary judgment on the basis of collateral estoppel was improper because of (1) a lack of mutuality of the parties, (2) a lack of adversarial pleadings among the defendants in Kearney, and (3) Kearney had not been finally determined. As Kearney has now been finally determined adversely to KPS, the third argument of KPS is found to be moot. We will direct our attention to the holdings of the trial court that the jury verdict in Kearney established and settled the respective liability of KPS, du Pont and Dresser for all the cases. At the outset KPS contends that as the trial court refused to grant du Pont and Dresser summary judgment before the trial in Kearney, then in spite of the jury verdict in Kearney, the same issues of material fact exist in the remaining ten cases as were originally present in Kearney, and that collateral estoppel does not apply.
KPS relies on Williams v. Evans, 220 Kan. 394, 552 P.2d 876 (1976), wherein we held:
“The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue, based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties are the same or in privity; and (3) the issue was actually determined and was necessary to support the judgment.
“Parties are not bound by a judgment in a prior action in which they were co-defendants except on issues as to which they were adverse parties. To be ‘adverse parties’ they must be arrayed on opposite sides of the issue, which must be raised by appropriate cross-pleadings between the defendants themselves, so that each may have control of the proceedings to enable him to exhaust the question of liability inter se. It is not enough that they, by their separate answers, deny liability and claim that the accident was due to the negligence of the other.” Syl. ¶¶ 2, 3.
It is the position of KPS that as the plaintiffs in each case are different there is no mutuality of estoppel and as there were no cross-claims or adversary pleadings filed by the codefendants in Kearney, the requirement of “adverse parties” during the Kearney trial is lacking. It appears KPS now desires to contend, for the purposes of avoiding collateral estoppel, that the defendants in the Kearney case were not adversaries while its position on many of .the points in the Kearney appeal was that du Pont and Dresser had ganged up on KPS and were actually adversaries to the position of KPS. We think KPS was correct in its position in the Kearney appeal, that the codefendants were actual adversaries and that all issues of liability of the three defendants, inter se, have now been determined.
As we indicated earlier, the advent of comparative negligence had the practical effect of placing codefendants in an actual adverse position as to each other regardless of the filing of cross-claims or other adversarial pleadings among the codefendants. In Kearney the record discloses the extreme adversary nature of the trial proceedings as to the defendants, inter se, even though no cross-claims were on file. In the ten consolidated cases the discovery record reflects the same adversary positions. Although the absence of cross-pleadings was noted in Williams in support of the court’s' denial of collateral estoppel, that decision must be considered in light of its specific facts which occurred prior to comparative negligence. In many situations the adoption of comparative negligence has rendered the procedural requirement of adversarial pleadings unnecessary for the doctrine of collateral estoppel to apply in a later case where the codefendants in the earlier case were in .an actual adverse position as to each other and proceeded to trial in that manner. Numerous authorities have recognized and adopted this position. In Comment, Comparative Negligence in California: Multiple Party Litigation, 7 Pac. L.J. 770, 805 (1976), the author states:
“Some decisions rendered before the adoption of comparative negligence have held that a prior finding of negligence on the part of joint tortfeasors does not affect a later suit for contribution. The rationale of these cases is that the liability of the defendants inter se was not litigated in the first case wherein the joint judgment was rendered. Thus, in the contribution suit, the tortfeasors are free to litigate their relative liability on the judgment because the doctrine of collateral estoppel does not apply. The rule of these cases should be inapplicable under a comparative negligence system. Unlike the situations posed in the pre-comparative negligence cases, the proportionate liability of the parties would have been at issue in the first suit if specific findings were made as to the liability of each party. Therefore, if all parties to the contribution suit participated in the first case, the prior determination of their relative negligence should be made conclusive under the doctrine of collateral estoppel.” (Emphasis added.)
Several jurisdictions have found the requirement of cross-pleadings unnecessary when it is evident from the record in the prior action that the interests of the codefendants in the prior action were adverse, and that the issues as to which collateral estoppel is asserted were litigated in an adversary setting. Hopson v. Triplett, 380 F. Supp. 1169 (E.D. Okla. 1974); Nickert v. Puget Sound Tug and Barge Company, 335 F. Supp. 1162 (W.D. Wash. 1971); Schwartz v. Public Administrator, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); Gleason v. Hardware Mutual Casualty Co., 324 Mass. 695, 88 N.E.2d 632 (1949). See also Annot., 24 A.L.R.3d 318. In the present cases KPS states in its brief:
“In each case consolidated herein on appeal the allegations of fault as against the defendants Kansas Public Service Company, Du Pont and Dresser, are virtually identical to the allegations made in the Kearney case.”
The Restatement (Second) of Judgments has now recognized that adversity under formal pleading, such as cross-claims, in the first action is not always a prerequisite to the applicability of issue preclusion in a subsequent action. The Restatement (Second) of Judgments § 38 (1980), states:
“Parties who are not adversaries to each other under the pleadings in an action involving them and a third party are bound by and entitled to the benefits of issue preclusion with respect to issues they actually litigate fully and fairly as adversaries to each other and which are essential to the judgment rendered.” p. 378.
Comment a to § 38 states:
“[Pjarties aligned on the same side in the pleadings may be drawn into controversy between themselves on an issue that is at the same time material to their rights or obligations regarding their common adversary and to rights and obligations subsisting between them. Thus, defendants sued by a plaintiff who has stated a claim against them in the alternative may defend not only by disputing the plaintiff s case but by adducing proof and argument against each other. ... In such circumstances, the co-parties may have an opportunity and incentive to litigate the issues arising between them that is equivalent to that between parties whose opposition is defined through pleadings.” p. 379.
In Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978), the facts were stated as follows:
“This is an interlocutory appeal from an order granting summary judgment in favor of plaintiff Orlan L. Eurich, Jr., on the issue of liability in an action seeking recovery for personal injury.
“This is the second of two cases arising from a two-car crash on February 24, 1975, in Great Bend, Kansas. One car was driven by Bonnie Faris and the other car contained Eurich and Wesley D. Alkire, the defendant herein.
“The first lawsuit was instituted by Faris against Eurich and Alkire. In her petition she alleged she did not know who was driving but claimed both defendants were intoxicated and the driver was negligent. Each defendant filed a separate answer alleging the other to be the driver and himself to be a sleeping passenger. At pretrial plaintiff Faris amended her petition alleging that if the owner of the car, Alkire, was not driving he was guilty of negligent entrustment for allowing Eurich to drive when he knew Eurich was intoxicated. At trial the jury answered special verdicts finding Eurich was the driver at the time of the accident. Damages to plaintiff were $50,000, and fault was 40% attributable to Eurich and 60% to Alkire for negligent entrustment.
“This case was filed before the trial of the first lawsuit. Following the decision in the first case, Alkire moved for summary judgment in the instant case. On July 30, 1976, the district court granted judgment on liability, holding that the jury’s findings in the first case controlled. Because of our decision in Williams v. Evans, 220 Kan. 394, 552 P.2d 876 (1976), decided only one week prior to the trial court’s decision herein, Alkire moved for reconsideration. In Williams we held that a prior judgment against codefendants does not activate the doctrine of collateral estoppel as to liability between the defendants, pointing out that the question of liability between the defendants was not put in issue in the prior case. The trial court held Williams was not applicable.” pp. 236-37.
This court pointed out that Williams was tried prior to the adoption of comparative negligence and held the second action barred. We said:
“[W]e believe it was the intent of the legislature to fully and finally litigate all causes of action and claims for damage arising out of any act of negligence subject to K.S.A. 60-258a. The provision for determining the percentage of causal negligence against each person involved in a negligence action contemplates that the rights and liabilities of each person should be determined in one action. Because all issues of liability are determined in one action there can be no reasonable argument that the issues should be relitigated. Likewise, there is no reasonable argument for the proposition that a claim for damage arising out of one collision or occurrence should not be presented at the time negligence is originally determined. . . .
“We conclude that all persons who are named as parties and who are properly served with summonses are bound by the percentage determination of causal negligence.” 220 Kan. at 238.
The fact that there were no cross-claims or adversarial pleadings on file among the defendants in Kearney does not preclude the application of the doctrine of collateral estoppel where the codefendants were actual adverse parties.
We hold that in a comparative negligence action where codefendants actually occupy adversary positions, they may be subsequently bound by the determination of their respective degrees of negligence or fault even though adversarial pleadings may not have been filed at the time of trial of the first action.
KPS next assets that the requirement of mutuality of parties does not exist because there are different plaintiffs in the ten cases. In none of the cases was there any assertion that any of the plaintiffs were at fault in any way and the only issue of liability for trial was the degree of fault of the three codefendants. Thus mutuality of parties does exist on the issue of the respective liability of KPS, du Pont and Dresser as among themselves. That liability has been finally determined in the Kearney case and is binding upon KPS, du Pont and Dresser in all other litigation growing out of the same occurrence.
Hammond v. The Nebraska Nat. Gas Co., 204 Neb. 80, 281 N.W.2d 520 (1979), was one of the cases which grew out of the Fremont explosion. The plaintiff recovered damages against Nebraska Gas Company and its codefendant du Pont was held blameless.
Peterson v. The Nebraska Nat. Gas Co., 204 Neb. 136, 281 N.W.2d 525 (1979), was also one of the cases resulting from the Fremont, Nebraska, explosion. Peterson was the owner of a business building which was damaged in the Fremont explosion and fire. He filed suit against the Nebraska Natural Gas Company, du Pont and others. After the trial in Hammond but before the same had been appealed, the plaintiff Peterson filed a motion for partial summary judgment. That motion was sustained by the trial court on the basis that after Hammond there remained no genuine issue of material fact in regard to the issues of negligence and proximate cause, and that the doctrine of collateral estoppel or issue preclusion was applicable to the defendant gas company. In its decision, the Nebraska Supreme Court first noted the right of a court to examine its own records and take judicial notice of its own proceedings and judgment in a prior action, where cases are interwoven and interdependent, and the controversy involved has already been considered and determined in a prior proceeding involving one of the parties before the court.
Concerning the contention of the Nebraska Natural Gas Company that collateral estoppel was not applicable because of the lack of mutuality, the court said:
“Generally, mutuality of estoppel is no longer considered to be a requirement for the application of collateral estoppel. It is now generally held that collateral estoppel may be applied if the identical issue was decided in a prior action, there was a judgment on the merits which was final, the party against whom the rule is to be applied was a party or in privity with a party to the prior action, and there was an opportunity to fully and fairly litigate the issue in the prior action. See, Bernhard v. Bank of America, 19 Cal. 2d 807, 122 P.2d 892; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal. 2d 601, 25 Cal. Rptr. 559, 375 P.2d 439; Blonder-Tongue v. University Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788; Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552. The trial court has some discretion as to whether collateral estoppel may be invoked in a particular case. Parklane Hosiery Co., Inc. v. Shore, supra; Restatement Second, Judgments, (T.D. No. 3), § 88, p. 161.
“The judgment in the Hammond case was final for the purposes of collateral estoppel even though the defendant perfected an appeal to this court. See Kometscher v. Wade, 177 Neb. 299, 128 N.W.2d 781; Restatement Second, Judgments, (T.D. No. 1), § 41, p. 2.
“The record in the Hammond case establishes that the defendant had a full, fair, and complete opportunity to litigate the issues of negligence anfl proximate cause, and that in fact those issues were fully and fairly litigated.
“We conclude that the partial summary judgment against the defendant was properly granted.” 204 Neb. at 139-40.
In tbe trial qf the Kearney case all defendants fully litigated the issues qf their respective liability and that case has npw been finally determined. Under the facts of these cases where there were no claims by any defendants in any of the cases that any of the plaintiffs were negligent or at fault and the only issues thereon were among the three codefendants, there existed mutuality and identity of the parties sufficient to invoke collateral estoppel in the later cases. We are not called upon and do not here decide whether mutuality of estoppel is still a valid requirement for the application of the doctrine of collateral estoppel in other cases.
The record in Kearney clearly shows that KPS, du Pont and Dresser had a full, fair and complete opportunity to litigate the issue of negligence and that in fact that issue was fully and fairly litigated. There is no need to do it again. The trial court did not commit error in granting summary judgment in the ten consolidated cases in favor of du Pont and Dresser on the basis of collateral estoppel based upon the decision in Kearney, where there were no issues of possible liability by any of the plaintiffs or any other parties other than the three codefendants. Under the factual situation which existed in Kearney and the ten consolidated cases, the factors to invoke collateral estoppel are present. We make no determination of the applicability of the doctrine of collateral estoppel when other parties, such as the various plaintiffs in the present cases, are alleged to have been negligent.
The judgments in Kearney and the ten consolidated cases are affirmed. | [
-16,
104,
-4,
79,
8,
35,
120,
-120,
121,
-95,
119,
83,
-19,
-63,
-119,
125,
-5,
125,
-63,
123,
-27,
-73,
19,
66,
-42,
59,
-15,
-51,
-71,
95,
-4,
-33,
76,
80,
74,
-43,
-58,
2,
85,
92,
-50,
26,
40,
-24,
89,
80,
-76,
24,
114,
9,
113,
46,
123,
41,
28,
-17,
77,
44,
105,
-71,
-125,
-15,
-79,
-105,
127,
20,
34,
4,
-98,
71,
-48,
30,
-104,
-76,
16,
-20,
114,
-90,
-62,
-11,
33,
-119,
-124,
-30,
98,
32,
-123,
-89,
-20,
-88,
47,
-33,
-83,
-89,
1,
90,
67,
10,
-106,
-99,
98,
22,
-121,
126,
-2,
4,
95,
109,
2,
-114,
-12,
-79,
13,
102,
-99,
59,
-17,
-89,
32,
101,
-63,
-16,
92,
71,
58,
-105,
-49,
-4
] |
Per Curiam,:
This is an original proceeding in discipline, filed pursuant to Supreme Court Rule 212 (230 Kan. civ), against Robert D. Nelson, an attorney admitted to practice in the State of Kansas. A panel of the Kansas Board for Discipline of Attorneys, after a full evidentiary hearing, recommended that respondent be indefinitely suspended from the practice of law. The court concurs in that recommendation. Respondent filed exceptions to the report of the disciplinary panel but failed to file a brief and he is deemed to have conceded that the findings of fact made by the panel are supported by the evidence. Supreme Court Rule 212(e)(4).
The matter resulting in the complaint against respondent grew out of a series of real estate transactions which began in 1977. In March of that year Luis Alejos and Walter Bates retained respondent to represent them in the purchase of real estate in Topeka. Alejos and Bates were buying the property under a contract of sale from Mosby-Mack, Inc., a Topeka firm. In May of 1981, the purchasers had fallen behind in the payment of the April and May 1981, installments due under the contract. On May 15, 1981, Mosby-Mack filed suit to cancel the contract. In the meantime, Alejos and Bates had entered into a contract to sell the property to a third party at a substantial profit. They retained respondent to protect their interests in the suit filed by MosbyMack so they could proceed with the sale of the property which was scheduled for September 1, 1981,
Respondent entered an appearance in the pending litigation and filed an answer on behalf of Alejos and Bates to the first amended petition filed by Mosby-Mack. On June 10, 1981, the plaintiff filed a second amended petition and respondent did not file an answer to that petition, In May of 1981, the respondent had advised his clients that he thought the Mosby-Mack litigation could be settled if the delinquent payments, an insurance premium, court costs and a $300.00 attorney fee for MosbyMack’s lawyers was paid. On May 21, 1981, Mr. Alejos wrote respondent a check for $2,149.60 to cover those items. He also paid respondent $200.00 to apply on his attorney fee. When the June and July payments came due, those payments were made to the respondent. Respondent did not seek to settle the MosbyMack litigation and in August, 1981, Alejos consulted another attorney.
During August, 1981, several demands were made upon respondent for a return of the trust funds he was supposedly holding. Finally, on August 31, 1981, respondent wrote two checks to Mr. Alejos, one for $2,149.60 and one for $1,570.90. The checks were presented to respondent’s bank the same day and payment was refused due to a lack of funds in . the trust account. On September 3, 1981, respondent paid Alejos $2,149.60 by certified check. He did not replace the $1,570.90 check and it was only after Alejos sued respondent and recovered a judgment that the amount was finally paid. Bank records introduced before the panel of the Board for Discipline of Attorneys reveal that there never was a sufficient amount in respondent’s bank account to cover the amounts due Alejos. On occasions respondent’s trust account was actually overdrawn.
The disciplinary panel found that respondent had neglected a legal matter entrusted to him, that he had failed to pursue his client’s legal objective, that he had commingled his client’s money with his own, wrongfully retained money held in trust and had converted trust funds to his own use. A careful review of the record reveals clear and convincing evidence supporting all of the conclusions of the disciplinary panel, and it is the opinion of the court that its recommendation of indefinite suspension should be accepted.
It Is Therefore Ordered and Adjudged that Robert D. Nelson be and he is hereby indefinitely suspended from the practice of law in the State of Kansas. The costs herein are assessed to the respondent.
It Is Further Ordered and Adjudged that the respondent shall forthwith comply with Supreme Court Rule 218 (230 Kan. cvii). | [
-80,
-22,
-8,
28,
72,
32,
56,
-70,
95,
-13,
55,
83,
-19,
64,
4,
109,
-45,
109,
-64,
107,
-59,
-77,
118,
67,
102,
-13,
-15,
-63,
-75,
79,
-28,
-41,
76,
48,
-62,
-43,
-90,
-62,
-35,
20,
-86,
6,
26,
-28,
-35,
64,
48,
-85,
16,
7,
21,
-82,
-13,
42,
21,
-53,
108,
46,
63,
-83,
-48,
-79,
-101,
21,
126,
18,
-77,
-91,
24,
7,
-40,
126,
-104,
48,
1,
-23,
115,
-90,
-26,
116,
99,
-119,
104,
38,
98,
34,
-47,
-17,
-12,
-116,
15,
-16,
13,
-90,
-77,
88,
91,
9,
-106,
-36,
112,
4,
39,
-4,
-10,
-115,
29,
108,
10,
-54,
-124,
-109,
-65,
119,
-116,
27,
-18,
7,
-96,
81,
-113,
-90,
94,
-41,
51,
27,
-113,
-124
] |
The opinion of the court was delivered by
Herd, J.:
This is an action on a note and to foreclose a security interest in a mobile home. The trial court granted the United Northwest Federal Credit Union default judgment. The Arens appeal.
On September 8, 1980, appellants, William H. Arens and Katherine Arens, filed a voluntary petition in bankruptcy seeking relief pursuant to Chapter 7, Title 11, of the U.S. Code. On September 9, 1980, appellee filed a petition for recovery of money advanced to William H. Arens and Katherine Arens pursuant to its open-ended loan agreement to purchase a 1972 Kingwood mobile home. Appellee sought recovery of money and foreclosure of its security interest in the purchase money collateral. The omnibus order and notice of the bankruptcy court was issued on September 10, 1980. A summons was issued in Norton County on September 10, 1980, and served on the appellants by the Norton County Sheriff, Harland Reusink, on September 16, 1980.
No further action was taken in Norton County until after the bankruptcy petition was dismissed on May 4, 1981, for failure of the debtors to appear. A default judgment against appellants on May 11, 1981, was set aside on September 15, 1981, but reentered on January 4, 1982. Appellants challenge the entry of default judgment in favor of the Credit Union.
Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. (Supp. V 1981), authorizes establishment of priorities of claims and the liquidation of the assets of an insolvent debtor for pro rata payment to creditors. When a petition is filed under a Chapter 7 case, a trustee is appointed by the court and the debtor submits schedules to the trustee listing his debts and assets. The trustee then takes possession of the bankrupt estate, liquidates the assets subject to prior liens, and discharges the debts. See Matter of Davis, 691 F.2d 176 (3rd Cir. 1982).
11 U.S.C. § 362(a) (Supp. V 1981), provides for an automatic stay of all proceedings against the debtor once the bankruptcy petition is filed. That statute provides in pertinent part:
“(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
“(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . .”
“The purpose of the automatic stay is to preserve what remains of the debtor’s insolvent estate and to provide a systematic equitable liquidation procedure for all creditors, secured as well as unsecured, [citation omitted,] thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” Matter of Holtkamp, 669 F.2d 505, 508 (7th Cir. 1982).
The House Report on section 362 offers more insight into the purpose behind the stay:
“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.
“The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors.” Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 1978 U.S. Code Cong. & Ad. News 6296-97.
The automatic stay of section 362(a) is in force from the moment the bankruptcy petition is filed. The fact a creditor has not received notice of the filing is irrelevant. In re Garcia, 23 Bankr. 266 (N.D. Ill. 1982). Further, formal service is not required to effectuate the stay. In re Miller, 22 Bankr. 479, 481 (D. Md. 1982). The stay terminates automatically when the bankruptcy proceeding is closed or dismissed. 11 U.S.C. § 362(c)(2) (Supp. V 1981).
Appellants argue the district court was without jurisdiction to enter judgment against them because appellee’s lawsuit was filed after the bankruptcy petition and thus in violation of the automatic stay. We agree. The import of section 362(a)(1) is that all legal actions pending or to be taken against the debtor are halted. As such, no new lawsuit can be commenced. In re Joe DeLisi Fruit Co., 11 Bankr. 694, 696 (Bankr. D. Minn. 1981). The filing of appellee’s foreclosure action on September 9, 1980, was thus in violation of the automatic stay. It is settled that acts done in violation of the stay are “void and without effect.” In re Coleman American Companies, Inc., 26 Bankr. 825, 831 (Bankr. D. Kan. 1983).
Since the filing of the foreclosure action against appellants was “void and without effect,” there was no action on file when the appellants’ bankruptcy petition was eventually dismissed. We note parenthetically this would not be the case had the action been filed before the petition in bankruptcy. In that situation the action would have remained on file because it was not filed in violation of the stay. Only further proceedings pursuant to the action would have been stayed. The instant case, however, arises under different circumstances. Here the trial court was without jurisdiction to enter its order.
The judgment of the trial court is reversed. | [
-112,
108,
-7,
-116,
10,
-32,
58,
-70,
91,
-71,
-77,
83,
105,
74,
7,
73,
-10,
45,
-31,
125,
81,
-77,
15,
-128,
83,
-77,
-13,
-51,
-80,
-33,
-28,
-41,
8,
-16,
-22,
21,
-26,
-126,
-57,
94,
-114,
3,
-71,
-31,
-15,
74,
56,
-21,
22,
11,
65,
31,
99,
47,
57,
66,
105,
46,
89,
41,
80,
-80,
-117,
7,
127,
85,
-111,
-124,
-112,
97,
106,
10,
-112,
53,
1,
-24,
114,
-74,
-106,
-44,
107,
-97,
13,
102,
102,
-95,
-12,
-19,
-40,
-104,
6,
94,
-97,
-122,
-47,
29,
2,
32,
-74,
-99,
125,
1,
4,
-4,
-18,
-123,
29,
108,
5,
-54,
-34,
-111,
31,
121,
-37,
11,
-26,
-77,
48,
113,
-52,
-16,
94,
67,
59,
11,
-114,
-7
] |
The opinion of the court was delivered by
McFarland, J.:
This is an interlocutory appeal by the State, pursuant to K.S.A. 22-3603, challenging the propriety of the district court’s order suppressing evidence seized during the execution of a search warrant.
The general background facts are as follows. On June 22, 1982, Ronald Yadon was killed near his home in Johnson County by a hidden assailant. He was shot six times with .22 caliber bullets. His stepson, Robert Steven Binford, was shot once in the leg but escaped by running from the ambush scene. Five slugs were removed from Yadon’s body during the autopsy. Six .22 caliber shell casings were retrieved from the crime scene. The weapon utilized was determined to be a .22 caliber rifle.
The resulting police investigation focused upon defendant Steven Michael Worrell. Defendant was employed as the manager of the H and W Progressive Dealers warehouse in Leavenworth, Kansas. Defendant’s father was president and a stock holder of the corporation which owned the warehouse. Defendant’s parents were interviewed by police and advised the officers defendant had used a .22 caliber rifle two months earlier to shoot pigeons trespassing in the two upper floors of the warehouse.
On June 30, 1982, a search warrant was issued authorizing the law enforcement officers to search the warehouse for “spent .22 caliber slugs.” On July 1,1982, the search warrant was executed. Officers searched the two upper floors of the warehouse for spent .22 caliber slugs and .22 caliber shell casings. One spent slug and 13 shell casings were seized.
Defendant was subsequently charged with first-degree murder (K.S.A. 21-3401) and aggravated battery (K.S.A. 21-3414). Defendant moved to suppress the shell casings seized during the warehouse search contending their seizure was beyond the scope of the search warrant and was further rendered unlawful by the officers’ prior intent to search for such unlisted items. The district court held defendant had standing to challenge the seizure and suppressed the shell casings. This appeal results. Additional facts will be stated as necessary.
The first issue involves the propriety of the district court’s determination that defendant had standing to challenge the seizure of the shell casings. The field of law relative to the standing question herein has been the subject of considerable modification and refinement in recent years as summarized in the following excerpt from State v. Whitehead, 229 Kan. 133, 622 P.2d 665 (1981):
“Both in the trial court and again on the appeal, the defendant claimed that he had ‘automatic standing’ to challenge the legality of the search under Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725 (1960), on the basis that the evidence seized in the search when the defendant was present on the premises was the basis for the criminal charge of possession of heroin.
“Jones involved a factual situation similar to the case at bar. The petitioner was arrested in an apartment belonging to a friend when the police entered with a search warrant and found drugs and paraphernalia in the apartment. Before trial, the petitioner moved to suppress the evidence, contending that it had been illegally seized. The evidence showed that Jones had a key to his friend’s apartment, that he could come and go as he pleased, that he kept some clothing there, and that he had spent the night there before. The motion was denied on the ground that Jones lacked a possessory interest in the apartment and, therefore, lacked standing to challenge the validity of the search. The Supreme Court in Jones acknowledged that a criminal defendant in such a situation faced a dilemma:
“ ‘Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed sufficient, to convict him.’ 362 U.S. at 261-62.
The court in Jones held that under the circumstances the defendant had ‘automatic standing’ to challenge the validity of the search.
“The ‘automatic standing’ rule established in Jones has been rejected in later decisions of the United States Supreme Court. In Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978), rehearing denied 439 U.S. 1122 (1979), the court found the standing conferred in Jones because the defendant was ‘legitimately on the premises’ to be too broad. The court stated that the ‘capacity to claim the protection of the Fourth Amendment depends not upon the property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.’ p. 143.
“In United States v. Salvucci, 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547 (1980), the court specifically rejected the ‘automatic standing’ rule of Jones. As noted above, the rule of Jones conferred ‘automatic standing’ when the element of possession was also an element of the criminal charge. The court in Salvucci approved Rakas, stating that an illegal search can only violate the rights of those who have a ‘legitimate expectation of privacy in the invaded place.’ The basic test to determine whether or not a person present on the premises at the time of a search has standing to challenge the validity of the search is not whether that person 'had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.’ 448 U.S. at 93.
“This court has also recognized that the Fourth Amendment right to protection from unreasonable searches is based upon the individual’s right of privacy (State v. Chiles, 226 Kan. 140, 146, 595 P.2d 1130 [1979]), and that one does not have standing to challenge a search where there is no expectation of freedom from intrusion (State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 [1977]).” 229 Kan. at 135-36. (Emphasis supplied.)
Did defendant herein have an “expectation of privacy” in the searched premises? We believe not.
We reach this conclusion on the basis of the following facts. The warehouse in question is a large structure of rather ancient vintage. Each of its four floors is approximately the size of a football field. The building was owned by a corporation in the wholesale building materials business. Defendant’s father was president and a stockholder in the corporation. Defendant was the manager of the warehouse. The first floor of the warehouse was utilized for offices (including defendant’s) and goods on display. The second floor contained items for sale, but not on display. The third floor was basically not in use, but did contain some damaged goods. The fourth floor was empty except for some stacked pallets and discontinued displays. The corporation had decided to rent out the third and fourth floors and some clean-up activities had occurred preparatory thereto.
The building was protected by an alarm system. By virtue of numerous places of ready entry, pigeons had access to the upper floors. Their presence created problems such as the accidental setting off of the alarm system and the dirtying of inventory on the lower floors. The shooting of pigeons by defendant on the third and fourth floors was done to alleviate these problems.
Defendant had no personal property stored on either the third or fourth floors of the structure nor were business records stored there. As warehouse manager defendant was charged, among other things, with security of the structure. Although the upper floors were not open to the public, defendant, his father, his father’s two partners, and some thirteen other stockholders had access to the upper floors. Other employees went to the upper floors when directed to do so for cleaning or other purposes.
In support of his claim of an “expectation of privacy” in the third and fourth floors of the warehouse, defendant relies on Mancusi v. DeForte, 392 U.S. 364, 20 L.Ed.2d 1154, 88 S.Ct. 2120 (1968). DeForte was a union official suspected of various union-related crimes. DeForte ignored a subpoena duces tecum for union records, and his office was searched without a warrant with union records being seized from his desk and file cabinets. Under such circumstances the United States Supreme Court held defendant had an expectation of privacy in his office. The Mancusi case is readily distinguishable from the facts herein.
We conclude defendant had no expectation of privacy in the upper floors of the warehouse and, hence, had no standing to challenge the propriety of the seizure of the shell casings.
The order of the district court suppressing the seized shell casings is vacated and the case is remanded for further proceedings. | [
-79,
-17,
-3,
28,
11,
98,
98,
62,
82,
-93,
101,
83,
109,
-38,
5,
123,
106,
29,
117,
121,
-59,
-73,
51,
-47,
-110,
-77,
-40,
-43,
-70,
89,
108,
-44,
8,
100,
106,
-43,
70,
10,
-11,
-36,
-114,
13,
-103,
97,
67,
66,
-86,
46,
126,
15,
-111,
-100,
-29,
42,
30,
-61,
73,
40,
-53,
-83,
64,
-40,
-21,
13,
-50,
18,
-77,
38,
-108,
5,
88,
47,
24,
49,
0,
-24,
115,
-92,
-112,
116,
39,
-99,
-88,
103,
2,
38,
61,
-52,
-84,
-120,
47,
-101,
-113,
39,
-103,
24,
99,
-92,
-106,
-99,
112,
54,
7,
-12,
-22,
101,
95,
124,
14,
-41,
-80,
-109,
15,
112,
-102,
27,
-21,
-91,
32,
113,
-113,
-94,
92,
101,
112,
-101,
-114,
-16
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by Raymond and Mary S. Hoard (plaintiffs-appellants) from a summary judgment and directed verdict entered against them and in favor of Shawnee Mission Medical Center and Overland Park Family Medical Practice, P.A. (defendants-appellees). The issue presented is whether under the controlling facts in this case the parents of a minor daughter can recover under theories of negligent infliction of emotional distress or the tort of outrage for emotional and physical damages alleged to have been sustained as a result of being told their daughter had died, when in fact she had not but was critically injured and in another hospital.
This lawsuit arises out of an unfortunate series of events which took place in the early morning hours of August 8,1979. The facts are essentially undisputed. Around 10:30 p.m. on August 7, 1979, the plaintiffs’ seventeen-year-old daughter Lisa, along with five other teenagers, was involved in a serious one-car accident in southern Johnson County. Both Lisa Hoard and the driver of the car, Kathleen Iveson, suffered massive head injuries. Lisa had no identification with her in the car. Three of the teenagers, including Lisa Hoard, were taken to Suburban Medical Center for treatment. Kathleen Iveson and two less seriously injured passengers were taken by ambulance to Shawnee Mission Medical Center.
The ambulance carrying Kathleen Iveson to Shawnee Mission Medical Center arrived at the emergency room of the hospital shortly after midnight on August 8, 1979. Miss Iveson had not yet been identified and was therefore originally admitted as “John Doe,” which was soon thereafter changed to “Jane Doe” when it was determined the patient was female. The patient had been stripped of clothing in the course of emergency procedures performed prior to her arrival at the hospital and thus no clothing or other personal belongings accompanied the patient when she was admitted.
James Pike, an Olathe police officer, was present at the scene of the accident and subsequently went to Shawnee Mission Medical Center to determine the condition of the patients there and assist in identifying the unidentified patient. He arrived shortly after the ambulance carrying Miss Iveson. He talked to one of the teenagers involved in the accident and obtained the names of the six occupants in the car. About this time another officer at Suburban Medical Center also obtained the names of the six occupants from another passenger. He communicated these names along with the names of the three teenagers at Suburban Medical Center to a third officer at police headquarters, Chief Barnes. Among the three patients identified as being at Suburban was Kathleen Iveson. During oral arguments counsel indicated that Lisa Hoard was mistakenly identified at Suburban as Kathleen Iveson because Miss Iveson’s purse had been mistakenly sent with Miss Hoard to Suburban. By the process of elimination Officer Pike and Chief Barnes determined that the unidentified patient at Shawnee Mission Medical Center was Lisa Hoard. Officer Pike then informed the admitting clerk at Shawnee Mission that the name of the patient was Lisa Hoard.
Shortly thereafter a representative of Shawnee Mission Medical Center telephoned the appellants, informing them their daughter had been in an accident and they should come to the hospital. Upon their arrival they were told Lisa had suffered critical injuries and other close family members should be contacted. The Hoards asked if the hospital was sure the patient was Lisa and were told that positive identification had been made. Mrs. Hoard asked if there was any clothing, a purse or jewelry brought in with the patient that they could see to make sure it was Lisa. They were informed that no personal belongings had been brought in with the patient. They asked at various times if they could see Lisa, but were told it was not possible because of the severity of her condition and that it would interfere with the lifesaving procedures which were being performed. They were told they could see her after her condition stabilized.
For the next hour or so, the appellants and their family were kept informed on the critical condition of their daughter. At one point in time they were told by the hospital chaplain that they couldn’t see Lisa because “as fast as they were pumping blood into her it was gushing out of her head.” During this time Mary Hoard spoke with Officer Pike who had remained at the hospital. Officer Pike described the accident to Mrs. Hoard and indicated to her that Lisa was there at Shawnee Mission Medical Center receiving treatment. Sometime around 2:00 a.m. the appellants were informed their daughter had died. Mrs. Hoard became nauseated and had to be taken to the restroom and Mr. Hoard fell to his knees and began to sob. Medical records indicate the patient arrived at the hospital one hour and forty minutes prior to death, and during that time had been given seven units of blood.
The appellants were asked to select a funeral home and had to sign a form to release the body to the funeral home. As the Hoard family was leaving the hospital, the appellants’ son-in-law was asked to identify the body. He determined he could not be sure the patient was Lisa Hoard. A nurse ran out to the parking lot and told the appellants that there may have been a mistake concerning the identity of the patient. Mr. Hoard fainted and was caught by a priest accompanying them. The family returned to the hospital where Mrs. Hoard was asked to identify a necklace found on the patient. She said it did not belong to Lisa. (It was brought out in oral arguments that this necklace was concealed during treatment underneath a cervical collar which was placed on the patient at the accident and was apparently only discovered when the collar was removed after the patient’s death. This was not brought out by the plaintiffs’ evidence at trial, except for añ attempt to show that the necklace would have shown up on a neck X-ray taken during treatment, inferring that the hospital should have been aware of it before the victim died.)
One of the appellants’ sons was then asked to identify the patient and he determined it was not Lisa. About this time relatives of Kathleen Iveson arrived at the hospital and informed the Hoards that Lisa was at Suburban Medical Center.
The Hoards arrived at Suburban Medical Center around 3:30 a.m. and were told their daughter was in critical condition, having suffered severe head injuries. Throughout the night and the next several days the Hoards were informed that Lisa might die, but that if she survived she would not be the same. Lisa remained in intensive care in a coma for the next six weeks. During that time the Hoards were required to authorize lifesaving operative procedures on several occasions. Mrs. Hoard stayed at the hospital continually throughout this time, going home only to eat an occasional meal with her family and do laundry, despite advice from her doctor to remain at home and get some rest. Mr. Hoard also spent a great deal of time at the hospital.
Lisa’s condition slowly improved. Although she was able to return home, she required constant care and it was necessary for the appellants to hire nurses to assist with Lisa’s care. Lisa underwent rehabilitative treatment in Kansas City and Denver, Colorado, and relearned to talk. Although confined to a wheelchair, she is also learning to walk again. It is undisputed that the fact of the accident itself and Lisa’s resulting severe injuries, as well as her extensive recovery, rehabilitation and continuing care, have been a tremendous emotional and physical stress on the appellants.
Both appellants suffered from various health problems prior to August 7,1979. Mr. Hoard was diagnosed as having heart disease in 1950 when he was discharged from the service. In 1977 he was admitted to a hospital emergency room with chest pains which were diagnosed as angina. At the time of the accident he was overweight and had been advised by doctors that he should lose weight. Mrs. Hoard had suffered from nervousness throughout her adult life and at various times had been treated for depression, hypertension and esophagitis. From 1972 through 1979 she was on medication for her nervousness. Mrs. Hoard had also felt she might have a drinking problem and had joined Alcoholics Anonymous.
Following the accident the emotional health and stability of both appellants suffered. Mr. Hoard became severely distraught and depressed after the accident and had uncontrollable crying spells. He was hospitalized on October 6, 1979, suffering from severe depression and a nervous breakdown. He testified that he felt his emotional health was “extremely unstable and shattered” after the accident. His doctor testified that he felt the incident on August 8, 1979, at Shawnee Mission Medical Center caused Mr. Hoard to break down and become unable to cope with what was to follow concerning Lisa. Dr. Stanley Butts, a psychologist who evaluated the Hoards in preparation for trial, testified he felt Mr. Hoard could no longer handle a responsible position of employment.
Both appellants had nightmares associated with the incident at the hospital. Acquaintances testified the appellants constantly discussed the events at Shawnee Mission Medical Center in the months following the accident, oftentimes expressing their anger at being told Lisa was dead. Dr. Butts diagnosed both appellants as having “post-traumatic stress disorder.” This is the term used to describe the patient who continues to reexperience a traumatic event, resulting in significant kinds of distress which include recurrent dreams, withdrawal from the outside world, sleep disturbances and difficulty in concentrating. In Dr. Butts’ opinion, this condition was caused by the events on August 8,1979, at Shawnee Mission Medical Center.
Also during this time the health of both appellants deteriorated. During his hospitalization in October 1979, Mr. Hoard was diagnosed as having an enlarged heart. In late 1980 and early 1981 the appellant began noticing several symptoms associated with his heart problem. In July 1981, Mr. Hoard was hospitalized for severe congestive heart failure and also underwent surgery for infarction of his intestines.
Mrs. Hoard was hospitalized for two days in September 1979, with reflux esophagitis, an inflammation of the esophagus. Her doctor testified that this condition was brought on by the emotional stress she was under at the time, the fact that she had increased smoking from one pack to three packs of cigarettes a day following the accident, and because she was not eating properly during this time. In September 1980, Mrs. Hoard was hospitalized for chest pains which occurred when she had to move Lisa or she was emotionally upset. She was diagnosed as having significant narrowing of two coronary arteries. The appellants’ doctor testified that although they were under a great deal of stress at the time as a result of the accident and Lisa’s condition, the incident at Shawnee Mission Medical Center on August 8, 1979, placed a severe amount of stress on the appellants which significantly contributed to their subsequent physical problems.
At the time of the accident Mr. Hoard was a full-time principal in the Shawnee Mission School District. After his hospitalization in October 1979, Mr. Hoard was given a leave of absence and another person was assigned to fill his position as principal. Mr. Hoard returned to work as an assistant principal at a different school in March 1980, and remained there until May 1981, at which time the position was eliminated due to personnel cutbacks. At that time he was not certain he wanted to continue as a principal and elected instead to take an early retirement at half his former salary. He testified at trial this was a financial decision and his intention was to get another job, perhaps in another school district or in business, to supplement his retirement income. Since that time he has made three unsuccessful applications for employment. In addition to his position with the school district, Mr. Hoard worked fifteen to twenty hours a week as a salesclerk at a hardware store from November 1979 until his hospitalization in July 1981.
The appellants brought this lawsuit against the appellees Shawnee Mission Medical Center and Overland Park Family Medical Practice, P.A., seeking damages for their emotional distress and the resulting deterioration in their health which they alleged were caused by the events at Shawnee Mission Medical Center on August 8, 1979, when they were mistakenly informed by the appellants that their daughter Lisa was dead. Overland Park Family Medical Practice, P.A., had contracted with Shawnee Mission Medical Center to operate its emergency department, and as a part of that contract it provided physicians to staff the emergency room. The contract provided:
“The designated physician shall assume full responsibility for the professional conduct of the Emergency Department including supervision and administration of the Department’s professional activities. It also shall include discussions with and education of the Medical Center personnel in matters relating to the Emergency Department.”
On the night of August 7,1979, one of the designated physicians-on duty was Dr. Richard Williams, who treated Kathleen Iveson and communicated to the Hoards, during the early morning hours of August 8, that the patient had died.
The appellants assert they are entitled to damages under two theories of recovery: (1) for emotional and physical injuries caused by the hospital’s negligence in mis identifying the patient as Lisa; and (2) for emotional distress caused by extreme and outrageous conduct. In addition to recovery for all medical expenses incurred since the incident the appellants sought recovery for loss of income, claiming that Mr. Hoard’s emotional condition resulting from the incident required him to take an early retirement at half of his prior salary; reimbursement for additional help hired to care for Lisa, which the appellants contend was only necessary due to the emotional distress and physical disability they suffered from the incident; and punitive damages.
The trial court granted summary judgment in favor of the appellees on the appellants’ cause of action for negligence holding that Kansas does not recognize a cause of action for negligent infliction of emotional distress. However, the court directed that the appellants’ cause of action on the tort of outrage should proceed to trial. At the close of the appellants’ case the trial court directed a verdict in favor of the appellees, finding that the appellants had not presented any evidence that the appellees’ conduct was extreme and outrageous, intentional or reckless. At the time the trial court ruled on the motion for summary judgment all discovery had been completed. The trial court had before it all pleadings, discovery documents and depositions taken in the case. The facts related above which were testified to at trial were essentially the same as those brought out in discovery. The appellants first challenge the trial court’s dismissal of their cause of action for negligent infliction of emotional distress.
It has long been the general rule in Kansas that there can be no recovery for emotional distress suffered by the plaintiff which is caused by the negligence of the defendant unless it is accompanied by or results in physical injury to the plaintiff. Hough v. Atchison, T. & S. F. Rly. Co., 133 Kan. 757, Syl. ¶ 4, 3 P.2d 499 (1931); Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 184, 268 Pac. 103 (1928); Whitsel v. Watts, 98 Kan. 508, 509, 159 Pac. 401 (1916); Lonergan v. Small, 81 Kan. 48, 50-51, 105 Pac. 27 (1909); A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 113, 26 Pac. 453 (1891). See also Prosser, Law of Torts § 54, at 328-29 (4th ed. 1971); 38 Am. Jur. 2d, Fright, Shock and Mental Disturbance § 1; Annot., 64 A.L.R.2d 100, §§ 7, 9,11. This rule, however, does not apply where the injurious conduct is willful or wanton, or the defendant acts with intent to injure. Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983); Lonergan v. Small, 81 Kan. at 51; 38 Am. Jur. 2d, Fright, Shock and Mental Disturbance §§ 4, 17; 64 A.L.R.2d 100, § 8. The reasons for the rule have been summarized by Prosser, Law of Torts § 54 at 329:
“The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking.”
A limited exception to the general rule has been recognized in Kansas and other states where a close relative suffers emotional harm from the negligent mishandling of a corpse. See Alderman v. Ford, 146 Kan. 698, 72 P.2d 981 (1937); Hamilton v. Individual Mausoleum Co., 149 Kan. 216, 86 P.2d 501 (1939); Prosser, Law of Torts § 54 at 329-30, and cases cited therein; 64 A.L.R.2d 100, § 8. A minority of jurisdictions have also recognized an exception to the rule for emotional harm resulting from the negligent transmission of a death message by a telegraph company. See Kaufman v. Western Union Telegraph Company, 224 F.2d 723 (5th Cir. 1955), cert. denied 350 U.S. 947 (1956); Prosser, Law of Torts § 54 at 329 and cases cited therein; 64 A.L.R.2d 100, § 11. In a similar type of case the daughter of a long-time hospital patient was allowed to recover for emotional harm resulting from negligent information given to her by the hospital that her mother had died. Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 (1975). Liability was based on the hospital’s duty to advise the proper next of kin of the death of a patient. The case is distinguishable from the situation presented here in that the hospital in Johnson had the correct information available to it at all times and committed the error by violating its own procedures and carelessly pulling the wrong patient record. This is the only case disclosed by our research concerning the liability of a hospital or similar institution for giving erroneous notification of a patient’s death. See Annot., 77 A.L.R.3d 501. In Kansas recovery has been denied for mental distress alone resulting from the negligent failure to deliver a message announcing the death of a close relative. See Ramey v. Telegraph Co., 94 Kan. 196, 146 Pac. 421 (1915); Cole v. Gray, 70 Kan. 705, 79 Pac. 654 (1905); West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807 (1888).
The appellants contend that they have suffered physical injuries as a result of the emotional distress caused from being told their daughter had died, and therefore are entitled to maintain an action against the appellees for the negligent infliction of emotional distress. In the alternative they argue that if their physical injuries were not sufficient to permit recovery under the general rule, they should be permitted to recover for emotional distress in the absence of physical injury under one of the exceptions to the rule. The appellees contend the physical injuries suffered by the appellants were too remote in time from the incident and too speculative to permit recovery.
In our cases which have allowed recovery for physical injury resulting from emotional harm caused by the defendant’s negligence, the physical injury complained of occurred contemporaneously with or shortly after the incident causing the emotional distress. In Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. at 181, recovery was allowed where the physical injury suffered was “substantially simultaneous” with the emotional distress caused by the defendant’s conduct. In that case the defendant railroad failed to transport the plaintiff s deceased husband’s body to the proper location, and upon being informed the body had not arrived as anticipated, the plaintiff fainted and collapsed, which resulted in physical injuries. The court held:
“Here the fright, terror, grief, shock, and the fall with resulting physical injuries were substantially simultaneous, and by the allegations of the petition all of them resulted naturally and directly from the negligence of plaintiff. To say that the mental anguish preceded the physical injuries by a second or two, and therefore that there is no liability for either, is to make too much of a refinement for practical purposes, and one that would tend to defeat justice rather than to promote it.” 126 Kan. at 187.
See also 64 A.L.R.2d 100, § 6.
In Whitsel v. Watts, 98 Kan. 508, after being frightened by angry threats made by the defendant, the plaintiff ran into her house and collapsed. A few hours after gaining consciousness she suffered a miscarriage with subsequent illness. The court allowed the plaintiff to recover for her injuries which directly resulted from the fright caused by the defendant’s intentional conduct.
In Cernes v. Pittsburg Coca Cola Bottling Co., 183 Kan. 758, 332 P.2d 258 (1958), the plaintiff was allowed to recover for intense nausea directly resulting from emotional and psychological distress suffered when he swallowed part of a slimy substance while drinking a bottle of Coca Cola. A similar holding was reached in Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 357 P.2d 804 (1960), when the plaintiff suffered physical and emotional damages after discovering a decomposed centipede in a bottle of Coca Cola from which he was drinking.
The appellants maintain they suffered physical injury at the time they were told of Lisa’s death when Mr. Hoard collapsed and Mrs. Hoard became nauseated and vomited. Mr. Hoard also fainted upon being told a mistake may have been made. However, no evidence was presented concerning the nature or amount of injury from these events. Furthermore, these are not the injuries for which the appellants seek recovery. The injuries for which damages are sought for the hospital’s negligence occurred much later in time. Mr. Hoard first seeks recovery for his hospitalization for severe depression and a nervous breakdown in October 1979, two months after the incident at Shawnee Mission Medical Center. He also seeks recovery for health problems suffered in 1980 and 1981, resulting in his hospitalization in July 1981, almost two years after the incident. Mrs. Hoard seeks recovery for her hospitalization for esophagitis six weeks after the incident and her hospitalization for chest pains one year later. As a result of their physical and emotional problems the appellants contend Mr. Hoard was forced to quit his job, resulting in loss of income, and that they were required to hire additional help to care for Lisa, thus incurring additional expense.
The physical injuries suffered by the appellants occurred a substantial length of time, from six weeks to two years, after the incident. As in all actions for the recovery of damages for negligence, the appellants must show that the physical injuries complained of were the direct and proximate result of the emotional distress caused by the hospital’s alleged negligent conduct. Whitsel v. Watts, 98 Kan. at 510; Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. at 187; 38 Am. Jur. 2d, Fright, Shock and Mental Disturbance § 23; Annot., 64 A.L.R.2d 100, §§ 5, 9(c). Furthermore, it is a fundamental principle of law that recovery may be had only where it is shown with reasonable certainty that damage was suffered and that such damage resulted from the act or omission of which complaint is made. Apperson v. Security State Bank, 215 Kan. 724, 735-36, 528 P.2d 1211 (1974). Recovery may not be had where the cause of the injury is too remote and speculative and where the alleged resulting damages are too conjectural and speculative to form a sound basis for measurement. Buck v. Miller Amusement Co., 166 Kan. 205, 209, 200 P.2d 286 (1948). Other states have held that where a plaintiff seeks recovery for emotional disturbance and physical injury resulting therefrom the plaintiff must show that the physical injury was the natural result of fright or shock proximately caused by the defendant’s negligence, and recovery may be had if, but only if, there is shown a clear and unbroken chain of causal connection between the negligent act, the emotional disturbance and the physical injury. See Hughes v. Moore, 214 Va. 27, 35, 197 S.E.2d 214 (1973); 38 Am. Jur. 2d, Fright, Shock and Mental Disturbance § 23; Annot. 64 A.L.R.2d 100, § 9(c).
It cannot be disputed that the appellants suffered a tremendous amount of emotional and physical stress and anxiety as a result of the severe condition of their daughter and her subsequent rehabilitation. Despite this the appellants maintain that all of the emotional and physical maladies suffered by them, since the time of their daughter’s accident, have been caused solely by the emotional distress while at the Shawnee Mission Medical Center on August 8, 1979, when they were informed that Lisa had died, and in no way relate to the stress they have undergone as a result of the accident itself and Lisa’s condition. This claim is not supported by the appellants’ evidence. The appellants’ doctor testified that the stress experienced by them during the events at Shawnee Mission Medical Center “significantly contributed” to the overall amount of stress they were under as a result of Lisa’s condition, which had a definite relationship to their illnesses and the deterioration of their health. Specifically, he testified that the incident caused Mr. Hoard to “break down” so that he could no longer deal with stress and Lisa’s condition, which later caused him to neglect his own health. No evidence was presented that his subsequent heart problems in late 1980 and 1981 and intestinal surgery in 1981 resulted from the incident in 1979. Concerning Mrs. Hoard he testified that the stress she suffered from the incident contributed to her esophagitis because it increased the overall amount of stress she was under, causing her to smoke more and maintain an improper diet. The only evidence presented relating her subsequent diagnosis of narrowing of her coronary arteries to the incident is that it is a condition which is contributed to by cholesterol buildup which can be related to stress.
Concerning the appellants’ claim for loss of income, however, there is absolutely no evidence in the record that Mr. Hoard’s retirement was necessitated by his physical or emotional health. He worked at full salary in a position similar to the one he had occupied for several years until May 1981 when the position was eliminated. When no similar position was available for him to fill at the time, he elected to retire at half-salary and obtain another full-time position elsewhere, rather than take a teaching position at a much lower salary. This decision was clearly precipitated by financial, rather than health, concerns. Similarly, no evidence was presented by the appellants showing that due to their emotional and physical conditions it was necessary to hire nurses to care for Lisa, which ordinarily would not have been required.
The physical problems suffered by the appellants are so remote in time from the events at Shawnee Mission Medical Center that they form no basis for recovery under the theory of negligent infliction of emotional distress. Case law requires that the physical injuries must directly result from the emotional distress allegedly caused by the defendant’s negligence, and must appear within a short span of time after the emotional disturbance. Although the appellants’ doctor testified that these events “contributed” to the appellants’ physical illnesses, there is no evidence they are the direct, proximate, sole or even major cause of the appellants’ problems. The stress and anxiety suffered by the Hoards as a result of Lisa’s condition in the weeks and months following the accident overwhelmingly appear to be the major, if not sole, cause of the illnesses. The alleged resulting damages are simply too conjectural, speculative, and remote in time from the incident to form a sound basis for measurement, and therefore no recovery can be allowed upon the basis of negligent infliction of emotional distress.
The foregoing issue presented a question of law for the trial court and therefore a motion for summary judgment was properly sustained. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, Syl. ¶ 7, 624 P.2d 971 (1981). In ruling on the motion for summary judgment, however, the trial court was incorrect in its unqualified statement that Kansas does not recognize the tort of negligent infliction of emotional distress. The cause of action can be maintained where emotional distress is accompanied by or results in immediate physical injuries. The facts alleged by the appellants in their pleadings did not state a cause of action because it was not shown that the appellants suffered any immediate physical injury which was a direct and proximate result of the emotional distress caused by the alleged negligence.
The appellants next claim the trial court erred in directing a verdict against them on their action for outrage. In Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974), this court recognized the tort of outrage and adopted the test set forth in the Restatement (Second) of Torts § 46(1) (1963):
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
In Roberts v. Saylor, 230 Kan. 289, 292, 637 P.2d 1175 (1981), we discussed the elements which must be shown to establish a cause of action for outrage: (1) the conduct of the defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant’s conduct and plaintiff s mental distress; and (4) plaintiff s mental distress must be extreme and severe.
The trial court ruled the evidence presented by the appellants did not show that the appellees’ actions were intentional or in reckless disregard of the appellants, or that the conduct was extreme or outrageous. In reviewing a directed verdict the court will resolve all facts and inferences in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied. Lemley v. Penner, 230 Kan. 25, 27, 630 P.2d 1086 (1981).
It is clear from the evidence that the identification of the patient as Lisa Hoard was not intentional. We must therefore first consider whether the hospital’s conduct was in reckless disregard of the appellants. What constitutes “reckless” conduct to establish a cause of action for outrage was discussed at length in Wiehe v. Kukal, 225 Kan. 478, 483-84, 592 P.2d 860 (1979). The court quoted the following discussion from the Restatement (Second) of Torts § 500 comment a (1963):
“Types of reckless conduct. Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.
“For either type of reckless conduct, the actor must know, or have reason to know, the facts which create the risk. . . .
“For either type of conduct, to be reckless it must be unreasonable; but to be reckless, it must be something more than negligent. It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.”
After reviewing other definitions of reckless the court concluded:
“Thus we see that recklessness requires knowledge. The person who is reckless must have prior knowledge; he must know or have reason to know of facts which create a high degree of risk of harm to another, and then, indifferent to what harm may result, proceed to act.” 225 Kan. at 484.
See also Blackburn v. Colvin, 191 Kan. 239, 246, 380 P.2d 432 (1963); State v. Custer, 129 Kan. 381, 395, 282 Pac. 1071 (1929). In Wiehe the plaintiff brought an action for emotional distress she suffered from witnessing an angry confrontation between a neighbor and her husband in which the neighbor threatened her husband with a pitchfork in the course of ranting, raving, cursing and shouting at her husband. The court held this did not constitute reckless conduct because the average person would not have expected a bystander to suffer such emotional injury.
Did the hospital’s actions in this case constitute reckless conduct? Relying upon the testimony of their expert witness, Dr. Bennie Scott, the appellants contend the hospital was reckless in notifying the Hoards of the serious injury and subsequent death of their daughter when there was no basis for identification of the patient as Lisa Hoard. Dr. Scott testified that in his opinion information provided by a police officer concerning the identity of a patient did not constitute positive identification of a patient unless corroborated by other evidence; information regarding the source or basis of the identification should be obtained before the family is notified and informed of the deteriorating condition of the patient. He further testified that where tentative identification has been made the hospital should inform the family of this fact only and request that they come to the hospital and make a positive identification before any further information concerning the patient is released. On cross-examination Dr. Scott explained that his opinion was based on operational guidelines used by hospitals where he has worked. He also admitted he did not know upon what basis the police officers in this case identified Lisa Hoard.
The evidence discloses there are no nationally published standards for procedures to be used in identifying patients. Janice Marr, the hospital’s Emergency and Outpatient Depart ment Manager, testified that it is standard practice to rely on information concerning the identity of a patient supplied by a police officer who was at the scene of the accident. The hospital was not informed of how the identification was made, nor that there was any reason to doubt the information supplied by Officer Pike that the patient was Lisa Hoard. Had the hospital made an inquiry into the basis of the identification, as recommended by Dr. Scott, they would have been informed of the same facts upon which Officer Pike and Chief Barnes made the identification, and like the police officer, they would have had no reason to suspect that the information was not correct.
In short, the hospital had no knowledge of the actual circumstances, nor that its conduct could result in such extreme harm to the appellants. The hospital did not proceed to act in total disregard of the knowledge that its information was or could be wrong. Janice Marr testified it is a primary concern of the hospital to notify the family of a critically injured trauma patient as soon as possible. It is difficult to say that the hospital was negligent, much less reckless, in contacting the Hoards under the circumstances and informing them that Lisa had been critically injured. Conversely, if in fact the patient had been Lisa, it may have been negligent conduct for the hospital to fail to contact the Hoards until well after death had occurred: refusing to rely on the information supplied by the police officer and instead insisting on corroboration to establish “positive identification” may have subjected the hospital to a charge of negligence.
The fact the appellants were not given an opportunity to see the patient until after they were notified of the death and that they were repeatedly told that positive identification had been made also does not render the conduct reckless. There is no evidence to suggest the hospital was aware of the error until the appellants’ son-in-law tried to identify the body. Likewise the evidence indicates the hospital was unaware of the necklace worn by the patient until after the patient had died and the family informed. The family was not permitted to see the patient because it would interfere with lifesaving procedures being performed. The plaintiff s expert, Dr. Scott, testified that under such circumstances identification of the patient by family members should not be permitted until after the patient’s condition has been stabilized. Unfortunately, this opportunity never arose.
It is also necessary to determine whether the appellees’ conduct was extreme and outrageous. In prior cases this court has recognized that to meet this requirement the conduct must be so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Further, liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead the citizen to spontaneously exclaim, “Outrageous!” Roberts v. Saylor, 230 Kan. at 293; Dotson v. McLaughlin, 216 Kan. 201, 210, 531 P.2d 1 (1975); Restatement (Second) of Torts § 46 comment d.
Numerous cases involving the tort of outrage have come before this court and the Court of Appeals since our decision in Dawson; however, in only one other case has the conduct been held to be extreme and outrageous. In Dawson we held that harassment by a creditor knowing the debtor was ill and which worsened the debtor’s condition was sufficient to constitute a cause of action for outrage. In Gomez v. Hug, 7 Kan. App. 2d 603, 645 P.2d 916, rev. denied 231 Kan. 800 (1982), the Court of Appeals held that unprovoked racial insults and threats made by an employer, which caused the employee to be fearful for his job and family, was sufficient evidence of extreme and outrageous conduct for the action to be submitted to a jury.
In other cases, however, the conduct complained of has fallen short of the extreme conduct contemplated by the Restatement. In Roberts v. Saylor, a doctor expressing his dislike for a patient being prepared for surgery, with whom he had had previous unpleasant encounters, did not go beyond the bounds of decency to be sufficiently outrageous. In Wiehe v. Kukal, 225 Kan. at 478, the defendant’s conduct was not considered extreme and outrageous where he threatened the plaintiff s husband with a pitchfork during a fenceline dispute. Recently in Hanrahan v. Horn, 232 Kan. 531, 657 P.2d 561 (1983), we held that statements made by the defendant to a real estate class that the plaintiff was a suspect in the. disappearance and murder of his son would not support an action of outrage. In Bradshaw v. Swagerty, 1 Kan. App. 2d 213, 563 P.2d 511 (1977), racial slurs and other insults directed at the plaintiff during a private encounter were held not to be outrageous. See also Dotson v. McLaughlin, 216 Kan. 201; Young v. Hecht, 3 Kan. App. 2d 510, 597 P.2d 682, rev. denied 226 Kan. 793 (1979); Vespa v. Safety Fed. Savings & Loan Ass’n, 219 Kan. 578, 549 P.2d 878 (1976); Peasley v. TeleCheck of Kansas, Inc., 6 Kan. App. 2d 990, 637 P.2d 437 (1981).
In line with the foregoing cases, the action of the hospital on the evidence in this case in informing the plaintiffs that their critically injured daughter was being treated at the hospital and that she subsequently died did not constitute extreme and outrageous conduct. The acts of the hospital consist of good-faith reliance on information provided by a police officer which was considered to be reliable, and notifying the family of a critically injured patient in accord with the hospital’s standard practice. A situation factually similar to the instant case was involved in Peddycoart v. City of Birmingham, 392 So. 2d 536 (Ala. 1980). The plaintiffs were told by a police officer that their son had attempted suicide in jail and upon their arrival at the hospital they were told the boy had died. After viewing the body the plaintiffs determined it was not their son. The court rejected the plaintiffs’ claim that the police officer’s conduct in wrongfully identifying the boy was extreme and outrageous conduct, holding:
“Nothing is contained in the evidence to suggest that the police sergeant whose conduct precipitated the emotional responses did anything but commit a mistake. That is, there is no evidence that he intentionally or recklessly caused the distress which ensued.” 392 So. 2d at 540.
In Wood v. United Air Lines, Inc., 404 F.2d 162 (10th Cir. 1968), the court held that the defendant airline’s erroneous statements to the plaintiff that his wife was not a passenger on an airplane which had crashed, when in fact she had been on the airplane and had been killed, did not amount to outrageous conduct.
In this case, the hospital merely relayed information considered reliable to those thought to be the family of a critically injured patient. The mistake of mis identifying the patient as Lisa Hoard was not made by employees of the hospital. The hospital’s conduct certainly was not tantamount to malice and it cannot be said that reliance by hospitals on information concerning identity of critically injured patients supplied by police officers is utterly intolerable in a civilized society. To hold that a hospital could not rely in good faith on information provided by a police officer who was present at the scene of the accident would create a seemingly impossible burden on hospitals in identifying accident victims.
The actions of Dr. Williams, an employee of Overland Park Family Medical Practice, P.A., were even less culpable. He merely assumed the responsibility of informing those people thought to be the family of the patient of the patient’s death. There is no evidence to show that he was responsible in any way for identifying the patient. He only relied on what he had been told by hospital personnel. The conduct of these defendants does not amount to such extreme and outrageous conduct as to constitute a cause of action for outrage.
Finally the appellants argue that putting aside all legal theory, rules and technicalities it must be remembered that they have suffered severe emotional damage from the events of August 8, 1979, at Shawnee Mission Medical Center, and they should be allowed to recover for these damages. Being told that a child has died is undoubtedly a tragic and traumatic experience for any parent, even though it may later be discovered that the information received was false. Without doubt the appellants here suffered shock, grief and emotional distress at being told their daughter had died and later were confused, angry and distressed upon being told a mistake had been made. Nevertheless, as we recently discussed in Schmeck v. City of Shawnee, 231 Kan. 588, 590, 647 P.2d 1263 (1982), damages do not create a right or cause of action. The “cause of action” is the wrong done, not the measure of compensation for it, or the character of relief sought. Damages are merely a part of the remedy which the law allows for the injury resulting from a breach or wrong. See also Foster v. Humburg, 180 Kan. 64, 67-68, 299 P.2d 46 (1956).
The judgment of the lower court is affirmed. | [
-48,
76,
-107,
-83,
24,
98,
32,
10,
83,
-93,
52,
83,
-83,
-53,
5,
107,
70,
53,
-64,
97,
-13,
-73,
7,
-86,
-14,
123,
50,
-59,
-78,
-49,
38,
-12,
77,
112,
-118,
-99,
-90,
-54,
-43,
84,
-118,
18,
-86,
-31,
89,
-110,
-68,
122,
-42,
6,
-79,
31,
-29,
46,
62,
-41,
-87,
40,
75,
-67,
-123,
-80,
-55,
5,
-33,
20,
-95,
4,
-68,
103,
-40,
91,
-40,
-79,
48,
-4,
48,
-96,
-126,
117,
103,
-119,
12,
103,
102,
-95,
12,
-25,
96,
-68,
47,
62,
13,
-123,
-102,
89,
0,
13,
-74,
-67,
125,
16,
11,
-8,
-21,
76,
93,
-24,
-52,
-53,
-12,
-79,
-49,
32,
-100,
43,
-29,
-53,
34,
113,
-55,
-16,
92,
-41,
115,
-109,
-82,
-78
] |
On March 2, 1983, a panel of the Board for Discipline of Attorneys filed its report with the Clerk of the Appellate Courts in which they found the respondent, Robert M. Socolofsky, a member of the bar of this State, guilty of a violation of the Code of Professional Responsibility, DR 7-108(D). 230 Kan. cxxvi.
The panel, in its report stated, inter alia;
“SUMMARY OF EVIDENCE
“Highly summarized, the evidence revealed the following, to wit:
“It is uncontroverted that on or about June 14,1982, the respondent, as county attorney of Riley County, Kansas, caused an anonymous mailing to discharged members of a jury that had on May 20, 1982 acquitted a criminal defendant on charges of selling a controlled substance. The content of the mailing was a copy of a newspaper article that the acquitted defendant subsequently had pled guilty to a misdemeanor charge of delivery of L.S.D. in an unrelated case.
“Members of that particular jury who received the anonymous mailing were part of a larger panel of prospective jurors of approximately 148 persons who were to be called to serve for jury duty for the May, 1982 term of Court which was from May 1 to the end of September, 1982. It was the experience of the District Court in Riley County, Kansas that better than sixty percent (60%) of the persons on the panel list would be called to serve on more than one jury during any term of Court. An assistant to the District Court Judge, responsible for compiling juror lists for each case to be tried, indicated that it was not unusual for a person on the larger jury panel list to be called to serve on more than one jury during any particular term of Court.
“On June 16,1982, another criminal action with a different criminal defendant came on for hearing in the District Court of Riley County, Kansas with the respondent appearing as county attorney. The criminal defendant in this subsequent case was charged with two counts of selling a controlled substance. Six or seven members of the jury panel called for this subsequent criminal case had served as jurors on the prior criminal case resulting in the acquittal on May 20, 1982 and had received the respondent’s anonymous mailing.
“On the morning of June 16, 1982, the District Court Judge became aware of the six or seven jury panel members who had received the anonymous mailing and declared a mistrial. The District Court Judge indicated a concern that the anonymous mailings might constitute criminal jury tampering and directed the respondent to immediately initiate an investigation to determine the source of the anonymous letters either through the respondent’s office or through the police department.
“Without acknowledging his responsibility for the anonymous mailings to the District Court Judge or to the police department, respondent contacted the police department to initiate the investigation requested by the District Court.
“Early the next day, June 17, 1982, investigations by the police department determined a similarity of type between that on one of the envelopes used in the anonymous mailing and that received on communications from the District Attorney’s office. By noontime, respondent’s sécretary informed the police- department she had mailed the anonymous letters to members of the jury in the drug related acquittal case at the direction of the respondent. At approximately 4:00 p.m., respondent met with the police department investigators and advised he was solely responsible for the anonymous mailings. Respondent then went to the chambers of the District Court Judge and again admitted his responsibility for the mailings.
“Respondent then made a public announcement as to his responsibility for the mailings and an apology for his actions to the news media. Respondent testified that he mailed the newspaper articles in question about the acquitted defendant’s subsequent plea of guilty to other drug related charges because the respondent had been informed that the jury, although believing the acquitted defendant was, in fact, guilty, felt he was a nice, college kid and had never done anything like that before. Respondent testified that he wanted to make sure that the jurors saw the newspaper article because the jurors had operated on an untrue assumption and respondent felt they had made a mistake.
“The newspaper article in question had been published about June 4, 1982 and several days later, respondent cut the article out and took it to his office on or about June 8 or 9, 1982 and told his secretary to make twelve copies and to mail those copies anonymously to the jurors in the acquittal case. Respondent was not aware of the actual mailing date of the anonymous mailings, but at no time prior to June 16, 1982 had he seen the final jury panel list for the trial to commence on June 16,1982. Respondent also testified that he had no thought or realization that the same jurors in the acquittal case would appear on the June 16, 1982 jury panel.
“Respondent further testified that from the time he ordered the mailing until the mentioning of the mailings on June 16,1982, he had not thought further about it and was shocked and frightened by the suggestion of the District Court that perhaps a crime of jury tampering had been committed.
“Respondent further testified that had he realized that the jurors in the acquittal case would have been called for further jury service, he would not have mailed the clipping and that in his experience as a District Attorney, he had never seen jurors called back for further duty so soon.
“Before beginning his testimony, respondent advised the panel and all concerned that he understood that his testimony could be grounds for criminal prosecution, but he chose to waive all his constitutional-rights in order to answer any question concerning this matter.
“Respondent, in concluding his testimony, admitted that it was a mistake to make the anonymous mailing and that although the results were terrible, they were not intended.
“A great deal of evidence from the bench, bar, and laity as to the respondent’s good character and reputation was introduced and admitted, all of which is believed by the panel.”
Effective this 15th day of July, 1983.
It is Therefore by the Court Ordered that the report of the panel of the Board for Discipline of Attorneys be and the same is hereby accepted and approved.
It is Further by the Court Ordered that the respondent be and he is hereby disciplined by Public Censure, the costs herein are assessed to the respondent, and the Reporter of the Appellate Courts is directed to publish this order in the official Kansas Reports. | [
-80,
-32,
-23,
-34,
10,
98,
62,
60,
81,
-111,
-9,
115,
-19,
-53,
4,
107,
-48,
109,
84,
107,
-60,
-106,
55,
-61,
38,
-13,
-8,
-59,
-78,
111,
-26,
-3,
73,
-80,
-118,
-43,
-122,
-62,
-122,
26,
-126,
6,
-103,
-13,
-102,
-128,
54,
-73,
54,
15,
117,
30,
-77,
40,
22,
75,
104,
60,
91,
-83,
64,
-111,
-104,
85,
111,
18,
-93,
-94,
27,
5,
-24,
63,
-100,
49,
-128,
-8,
51,
-106,
2,
84,
79,
-103,
12,
102,
34,
33,
29,
-83,
-92,
-119,
63,
51,
-116,
-25,
-103,
89,
11,
12,
-106,
-35,
100,
116,
34,
-4,
-31,
69,
61,
108,
42,
-50,
-80,
-109,
95,
116,
-50,
-102,
-29,
-90,
16,
117,
-40,
114,
94,
71,
82,
27,
-50,
4
] |
The opinion of the court was delivered by
Holmes, J.:
This is an appeal by Barbara J. Mason, the natural mother of Timothy Stremel, a minor, from an order of the Barton County District Court denying her petition to terminate the appointment of Bernadette Dome as guardian of and conservator for Timothy. She also appeals from the order of the court denying her request that she be appointed conservator of the estate of Timothy.
The facts are not in dispute. In 1971, Leon James Stremel and Barbara Jean Stremel (now Mason) were divorced in the District Court of Barton County. Timothy Stremel, who was then two years of age, was placed in the custody, care and control of his father. Timothy remained with his father until approximately four years ago when he went to live with his mother in Johnson County, Kansas, although legal custody was never changed to the mother. The thirteen-year-old boy is still living with his mother.
On July 9, 1981, Leon James Stremel died. Upon his death, legal custody of Timothy reverted to his natural mother. In re Vallimont, 182 Kan. 334, 336, 321 P.2d 190 (1958). In 1972, shortly after the Stremel divorce, Mr. Stremel executed a will in which he left all of his property to his sister Bernadette Dome, the appellee here, in a discretionary trust for the benefit of Timothy. The will was admitted to probate and Mr. Stremel’s sister was appointed executrix in accordance with the directions in the will.
One of the clauses in the will read as follows:
“I hereby petition and request the Probate Court to appoint as guardian of the person of my minor son, Timothy Stremel, my sister, Bernadette Dome of Bison, Kansas.”
On October 26, 1981, Bernadette Dome filed a petition in the District Court of Barton County seeking her appointment as guardian of and conservator for Timothy Stremel. At the same time, petitioner, without notice and without compliance with other provisions of the statutes, obtained an order appointing herself as guardian and conservator. The order finds that “the natural guardian of said minor is Bernadette Dome.” The finding is patently erroneous. The order was prepared by counsel for Bernadette Dome as were all the other pleadings filed at that time, including letters of guardianship and conservatorship issued to Mrs. Dome.
In February, 1982, the appellant Barbara J. Mason, having learned of the proceeding in Barton County, filed a petition seeking to set aside the order appointing Bernadette Dome as guardian and conservator and asking that Mrs. Mason, after proper notice and hearing, be appointed conservator of the estate of her son Timothy Stremel. In her petition Mrs. Mason also questioned the legal sufficiency of the original petition filed by Mrs. Dome and of the proceedings based thereon.
The petition of appellant was set for hearing and notice of the hearing was given to all interested parties pursuant to K.S.A. 59-2208. We are advised, and the record indicates, that the trial court did not hear any evidence as to the qualifications and capacities of either Mrs. Mason or Mrs. Dome, stating to the parties that it recognized that both were well qualified. Subsequently the court denied the petition of Mrs. Mason and confirmed its prior action appointing Mrs. Dome.
At the time of oral argument before this court, counsel advised that the underlying reason for the filing of the district court action was a $34,000.00 insurance policy owned by Leon James Stremel in which his son Timothy Stremel was the named beneficiary. Counsel for Mrs. Dome also advised the court that she was abandoning any contention that she should be retained as guardian of the person of Timothy Stremel. Appellee appears to concede the court was in error in making that appointment under the facts in this case.
Appellant raises several points on appeal which require consideration of several statutes as they apply to this action. K.S.A. 59-2203 is the general venue statute for the filing of proceedings under the probate code. It provides that proceedings for the appointment of a guardian shall be filed in the county of the proposed ward’s residence or where the proposed ward may be found. Proceedings for the appointment of a conservator shall be filed in the county of the proposed conservatee’s residence unless the proposed conservatee is a nonresident of the state, in which case the proceedings may be filed in any county where property of the proposed conservatee is situated. K.S.A. 59-3002(3) defines “natural guardian” as being both parents of a legitimate child and if either parent be deceased, the survivor is the “natural guardian.” K.S.A. 59-3004 authorizes any natural guardian to nominate by last will a conservator for that portion of the estate of such guardian’s minor children which is devised or bequeathed by the testator. A surviving natural guardian may nominate by will a guardian or conservator or both. K.S.A. 59-3009 provides that any person may file a verified application for appointment of a guardian in the county of the residence or presence of the proposed ward and any person may file an application for appointment of a conservator in the county of the residence of the proposed conservatee unless a nonresident. It also sets forth the requirements of the application including, inter alia, the name, age, residence and present address of the minor, if known; the name and address of the natural guardian, if known; the names and addresses of witnesses; and the name, address and relationship to the minor of the person sought to be appointed.
K.S.A. 59-3010 provides that unless the application is filed by the minor’s next friend or by the natural guardian, the application shall not be heard earlier than seven days nor later than fourteen days from the date of the filing of the application. If filed by a next friend or natural guardian, the application may be heard forthwith without notice. K.S.A. 1982 Supp. 59-3012 provides for the type and contents of the notice and the parties to whom it shall be directed. It requires service on the minor and his or her attorney. K.S.A. 59-3013 sets forth the procedure to be followed at the hearing and provides the minor shall be afforded an opportunity to appear, testify and participate in the proceedings. Finally, K.S.A. 59-3014 sets forth certain priorities for the appointment of a guardian or conservator including first, the nominee of the minor if the minor is over 14 years of age, and second, the nominee of a natural guardian of the minor.
None of the foregoing procedural and jurisdictional statutes were followed by Bernadette Dome when she initially instituted proceedings to have herself appointed guardian of and conservator for Timothy Stremel. Mrs. Dome was the appointed executrix of the will of Leon James Stremel and the file in that action discloses she had full knowledge that Timothy was residing with his mother in Johnson County, Kansas, and that she knew Mrs. Mason’s residence address. Appellant based her petition in district court on the fact that no notice of the proceedings was given to her or her son or her son’s guardian ad litem appointed in the Leon James Stremel estate proceedings. She also claimed that venue was improper in Barton County as Timothy’s residence was in Johnson County. And finally, she contended that the appointment of Bernadette Dome as guardian and conservator was in violation of the parental preference doctrine. She requested her own appointment instead. On appeal she raises the same three contentions before this court.
Our statutes governing the appointment of guardians and conservators were revised by the legislature in 1965 when a detailed and comprehensive act was adopted. K.S.A. 59-3001 et seq. In her first point on appeal, Mrs. Mason asserts the district court lacked jurisdiction to appoint Mrs. Dome because of a failure to give proper notice of the proceedings. Appellee asserts that no notice was required inasmuch as she was acting as the “next friend” of Timothy Stremel. No such allegation appears in her petition, or in the record of the trial court, and in fact it appears that it was represented to the court that Mrs. Dome was Timothy’s natural guardian.
K.S.A. 59-3010 provides in pertinent part:
“(B) When the proposed ward or proposed conservatee is alleged to be a minor, the court shall issue an order fixing the time and place of the hearing on the application. If the application is filed on behalf of the minor by such minor’s next friend or by the natural guardian of the minor, the time of the hearing designated in the order may be forthwith and without notice, but in no event later than fourteen (14) days after the date of filing of the application. In all other cases the time designated in the order shall in no event be earlier than seven (7) days or later than fourteen (14) days after the date of the filing of the application.”
Appellee also contends thatKS.A. 59-3011(B)(4) provides that the giving of notice is a discretionary matter with the court and that it may order notice to be given in accordance with K.S.A. 1982 Supp. 59-3012 but is not required to do so. At first blush it would appear that the provisions of K.S.A. 59-3010(B) and 59-3011(B)(4) are inconsistent. K.S.A. 59-3010(B), which provides that an application, if filed by a next friend or natural guardian, may be heard forthwith and without notice requires that when filed by anyone else the hearing cannot be held except at a time set in accordance with the statute and would also seem to require notice. However, when the entire act (K.S.A. 59-3001 et seq.) is read in pari materia, as it must be, we think the intent of the legislature is clear. K.S.A. 59-3011(B)(4) indicates that one of the discretionary orders a court may issue is for notice in the manner provided in 59-3012. It appears that this discretionary order of the court may be entered in an action filed by the natural guardian or a next friend but is not mandatory. On the other hand, K.S.A. 59-3010(B) clearly requires that if the application is by anyone other than a natural guardian or next friend, the hearing “shall in no event be earlier than seven (7) days or later than fourteen (14) days after the date of the filing of the application.” For what reason would the legislature require that a hearing be delayed until seven to fourteen days later if not to give notice and protect the minor’s substantial rights which accrue under K.S.A. 59-3013? As previously indicated, K.S.A. 59-3013 provides, inter alia, that the minor shall be afforded an opportunity to appear, testify and participate in the proceedings. These rights would be hollow indeed if the hearing could be carried out without any notice to .the minor or his attorney. Thus it appears, and we hold, that the statutory procedure as adopted by the legislature requires that every proceeding for the- appointment of a guardian or conservator, or both, of a minor requires notice pursuant to K.S.A. 1982 Supp. 59-3012 unless the proceeding is brought by the minor’s natural guardian or next friend. When brought by the natural guardian or next friend the giving of notice is a discretionary matter, with the court (K.S.A. 59-3011[B][4]). In the present case the original petition was not filed by the natural guardian of Timothy and no allegation or showing was made that Bernadette Dome was purporting to act in the capacity of a next friend. The trial court was in error in hearing the petition ex parte without proper notice.
Next, appellant asserts that the venue and jurisdiction of this action was in Johnson County and not in Barton County. We agree. Venue clearly was in Johnson County under K.S.A. 59-2203. It also appears proper jurisdiction was in Johnson County. K.S.A. 59-3009 provides in part:
“Any person may file in the district court of the county of the residence or presence of the proposed ward a verified application for the appointment of a guardian. Any person may file in the district court of the county of the residence of the proposed conservatee a verified application for the appointment of a conservator. If the proposed conservatee resides without the state, such application may be filed in any county in which any of the property of the proposed conservatee is situated.”
See also In re Miller, 5 Kan. App. 2d 246, 616 P.2d 287, aff'd in part, rev'd in part 228 Kan. 606, 620 P.2d 800 (1980). We hold K.S.A. 59-3009 is jurisdictional and establishes the proper forum in which to file an action for the appointment of a guardian or conservator.
Finally, appellant asserts it was error for the trial court not to apply the “parental preference doctrine” which would require the appointment of Timothy’s mother as opposed to Mrs. Dome. The trial court based its decision on a construction of the will of Leon James Stremel and found that the intent of the decedent should be controlling. The court also found the best interests of Timothy would be served by continuing the appointment of Mrs. Dome as conservator although no evidence was received by the court and no findings of fact were made which would support such a conclusion. As Mrs. Mason, Timothy’s mother, survived Mr. Stremel, the provision in the will that Mrs. Dome be appointed guardian has no validity. (K.S.A. 59-3004; Chumos v. Chumos, 105 Kan. 374, 381, 184 Pac. 736 [1919], The will of Mr. Stremel is clear, unambiguous and is not subject to construction. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 2, 596 P.2d 137 (1979). There is no provision in the will appointing Mrs. Dome conservator of assets passing to Timothy outside the will and it was error for the court to resort to rules of construction to find such an intent in Mr. Stremel’s will. The Stremel will has no bearing on these proceedings. If it had been the intention that Mrs. Dome control the proceeds of the insurance policy, Mr. Stremel could have accomplished such an objective by a simple change of beneficiary on the policy.
K.S.A. 59-3014 provides:
“Subject to K.S.A. 59-3004, the court in appointing a suitable guardian or conservator shall give priority in the following order:
“(1) To the nominee of a minor over the age of fourteen (14) years who is not himself or herself an incapacitated person.
“(2) To the nominee of a natural guardian.”
In Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), we said:
“It is clear under our decisions and those of the United States Supreme Court that a natural parent’s right to the custody of his or her children is a fundamental right which may not be disturbed by the State or by third persons, absent a showing that the natural parent is unfit. As we noted in In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), a parent’s right to the custody, care, and control of his or her child is a fundamental liberty right protected by the Fourteenth Amendment of the Constitution of the United States.” p. 152.
No reason has been shown why Mrs. Mason, who has had the actual custody and care of Timothy for several years, should not be his conservator. Absent a factual showing based upon sufficient evidence that it would not be in the best interests of Timothy for his mother to be appointed conservator or that she is not suitable to serve as conservator, K.S.A. 59-3014 mandates her appointment.
In closing we also note that the original petition filed in this action failed to comply with K.S.A. 59-3009(B)(2), (3), (5), and (8). See Vilm v. Hudson, 167 Kan. 372, 205 P.2d 1021 (1949).
The district court having lacked subject matter jurisdiction under K.S.A. 59-3009, the case is remanded to the district court with directions to dismiss all proceedings. As it appears that a conservator for Timothy will be required to properly administer the insurance proceeds, proper proceedings may be instituted in Johnson County. | [
-79,
-20,
-35,
44,
11,
32,
42,
-66,
115,
-77,
39,
83,
-21,
-53,
21,
106,
91,
47,
65,
105,
-46,
-74,
87,
-120,
80,
-5,
-80,
-51,
-77,
-49,
118,
-41,
72,
112,
10,
-107,
70,
-127,
-115,
-112,
-106,
1,
-85,
-75,
-47,
-61,
60,
-7,
30,
15,
85,
30,
-77,
44,
60,
-17,
72,
46,
-37,
57,
88,
-72,
-53,
7,
95,
27,
-121,
20,
-78,
-121,
80,
47,
-112,
56,
0,
-24,
51,
-74,
-114,
116,
15,
93,
8,
118,
70,
32,
-116,
-25,
-96,
-120,
78,
42,
21,
-89,
-101,
9,
66,
101,
-73,
-65,
117,
84,
3,
-4,
-25,
12,
62,
-20,
0,
-49,
-42,
-79,
13,
24,
-122,
17,
-5,
-27,
32,
113,
-38,
-92,
92,
-61,
59,
-69,
-106,
-2
] |
The opinion of the court was delivered by
Herd, J.:
This is a teacher nonrenewal case. The school board appeals from the trial court’s order awarding the teacher reinstatement and damages.
Leota Coats was employed by U.S.D. No. 353 in 1973 to teach in the Wellington High School Language Arts department. She had attended Parsons Junior College from 1963-65 and received her bachelor of science degree in education from Kansas State Teachers College at Emporia in 1967. She obtained her Master’s degree from the same institution in 1968 at which time she was a teaching assistant. Before coming to Wellington she taught freshman composition, creative writing, English literature and American literature at Cowley County Community College.
Ms. Coats taught a variety of English courses at Wellington High School, including grammar and composition. In 1976 she was named chairperson of the Language Arts Department. There were four teachers in the Wellington High School Language Arts department who taught English courses such as grammar and composition — Ms. Coats, Alice Corley, Louise Leslie and Sherri Lichtenberger. Leslie and Corley had both been at Wellington Senior High since 1972. Lichtenberger came to the high school in 1978.
In addition to those who taught only the English classes, other teachers in the department worked in specialized areas of language arts, including some extracurricular activities. Mary Ellen Garver taught journalism and published the yearbook. Chris Hutchens taught dramatics and produced the school plays. Garland Pugh taught senior high debate and forensics. Judy Snodgrass taught French and Terry Brecheisen taught Spanish. Only Garver, Pugh and Brecheisen had been at Wellington longer than Coats.
Wellington Junior High School also has a language arts department. In addition to their work at the senior high school, Pugh, Hutchens and Snodgrass taught some junior high language arts classes. Other junior high English teachers included Margaret Moore, Ron Keefer, Richard Roberts, Shelly Staten and Donis Whaley. Of this group only Moore and Whaley had been with the Wellington schools longer than Ms. Coats. Keefer, Roberts, and Staten were nontenured teachers.
As in most schools Wellington Senior High School experienced a decline in general enrollment during the time Ms. Coats taught there. Between the 1975-76 and 1979-80 school years enrollment dropped from 542 students to 418 students. Projected enrollment for 1980-81 was 390 students. There was a like decline in enrollment in junior high school. Accordingly, there was also a decrease in the number of students taking language arts.
As a result of the enrollment slump an administrative decision was made to reduce force in the language arts department! Richard Wain, superintendent of schools for U.S.D. No. 353, testified regarding the method used to determine which teacher or teachers were to be terminated. Based on pre-enrollment figures for the 1980-81 school year it was determined that the Wellington Senior High Language Arts department should be reduced by one full-time ■ and one part-time teacher. (Sherri Lichtenberger, who had only been-at Wellington for one year, was the part-time teacher.) The administration then removed from consideration for nonrenewal those teachers who taught in the specialized areas of language arts. That left only the four English teachers to be considered for nonrenewal. Of those four Leota Coats had the least seniority. Junior high English teachers were not considered for nonrenewal because the school board considered the high school teachers unqualified to teach in junior high. Thus, a tenured high school English teacher could not move into a position vacated by a nontenured junior high English teacher.
On March 11, 1980, the school board adopted a resolution indicating its intent to nonrenew Ms. Coats due to a “reduction of the teaching staff in said district because of a decline in enrollment in the high school in the district.” A written notice of nonrenewal was timely served on Ms. Coats.
Because Ms. Coats had taught at Wellington High School for two consecutive years she was entitled to the due process protections of the Teacher Tenure Law, K.S.A. 72-5436 et seq. Accordingly, she requested a due process hearing pursuant to K.S.A. 72-5438. A hearing committee was impaneled. The school board chose its attorney, C. E. Russell, as its designee. The hearing was held June 3 and 4, 1980.' Subsequently the hearing committee recommended by a two-to-one vote that Ms. Coats’ contract be nonrenewed. The school board followed the recommendation and voted to nonrenew Ms. Coats.
Ms. Coats appealed to the district court, which reversed the school board, holding: (1) The appointment of the school board’s attorney to the hearing committee violated Ms. Coats’ right to due process, and (2) the school board acted fraudulently, arbi trarily and capriciously by nonrenewing Ms, Coats when it retained nontenured language arts teachers. The district court also ordered Ms. Coats be reinstated and awarded her damages in the amount of $8,940.44-
The school board has appealed.
Before proceeding with a discussion of the issues, general principles regarding scope of review and due process under the Teacher Tenure Law, K.S.A. 72-5436 et seq., should be noted. This court recently restated the scope of review rules in Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 754-55, 648 P.2d 225 (1982):
“[I]n reviewing a district court’s decision the Supreme Court will, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court. [Citations omitted.] That said, it should also be noted the district court’s scope of review on appeal is very limited. The applicable rule was first stated in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450, 436 P.2d 828 (1968):
“ ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.’
"This three-pronged standard has been repeated frequently.”
More specifically, under the Teacher Tenure Law a tenured teacher may be terminated or nonrenewed only if good cause is shown, “including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.” Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980). See also Haddock v. U.S.D. No. 462, 233 Kan. 66, 661 P.2d 368 (1983), Good cause must be supported by substantial evidence. The burden of proof is on the board. K.S.A, 72-5442; Schmidt v. U.S.D. No. 497, 231 Kan. 267, 269, 644 P.2d 396 (1982); Haddock v. U.S.D. No. 462, 233 Kan. 66.
The nature of Ms. Coats’ argument must be clearly understood. She does not contend there was no need for a reduction in the language arts teaching staff. Further, she offers no argument a bona fide reduction.in force .does not constitute good cause for nonrenewal. Instead, Ms. Coats’ dispute is with the method by which the reduction in force took place. She maintains the school board’s method was fraudulent, arbitrary and capricious.
Ms. Coats is certified by the State Department of Education to teach composition, grammar and literature in both senior and junior high schools. She is further certified to teach social studies in junior high only. She argues the school board’s nonrenewal of a tenured teacher legally certified to teach junior high English while retaining nontenured junior high English teachers was “arbitrary, capricious, irrational, unreasonable and inconsistent with the purposes of the Teacher Tenure Law.” Thus, she does not claim good cause for reduction of the teaching staff was lacking; she only argues there was not good cause to nonrenew the teacher chosen by the school board.
The trial court agreed with Ms. Coats, calling the school board’s conduct “fraudulent, arbitrary and capricious.” The propriety of this holding constitutes the first point on appeal.
This is an issue of first impression in Kansas and cases previously decided by this court offer little help. Two decisions deserve to be mentioned. In Sells v. U.S.D. No. 429, 231 Kan. 247, 644 P.2d 379 (1982), this court held the school board’s decision to nonrenew a tenured teacher based on the elimination of the special education program in which she taught was supported by good cause. Second, Million v. Board of Education, 181 Kan. 230, 234, 310 P.2d 917 (1957), provides a general statement of the purpose behind the Teacher Tenure Law which serves as a good background for discussion of the immediate issue:
“The evident purpose of the Tenure of Instructors Act is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind — political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear, but it does not confer special privileges upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public school system; and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.”
Even though the Kansas court has never dealt with this issue, the problem has provided the basis for a wealth of litigation in other states. Court decisions on the subject can generally be divided into three categories: (1) those which give the school board complete discretion in who to terminate as a result of a reduction in force; (2) those which give the school board discretion subject to it being exercised in good faith; and (3) those which require the school board to retain a tenured teacher when there is a nontenured teacher in a position for which the tenured teacher is qualified to teach.
A good example of those cases in the first category is Dykeman v. Board of Education, 210 Neb. 596, 316 N.W.2d 69 (1982). There the Board determined that it must reduce its staff in the high school business education department. Two teachers taught business education. Both were tenured and both had identical teaching certificates. In deciding which teacher to eliminate the Board considered the contribution each made to the activities program. The court held this was proper, stating “the selection of a teacher to be eliminated from the staff through a reduction in force is an executive or administrative function” subject to “limited review.” 210 Neb. at 599. Similarly, in Reed v. Edgeley Public School Dist. No. 3, 313 N.W.2d 775 (N.D. 1981), the teacher argued that when declining enrollments force a reduction in the teaching force the school board must articulate its reasons for choosing which particular teacher to nonrenew. The court held the North Dakota statute which required the school board to give “maximum consideration to basic fairness and decency” in making its decision did not mandate such an articulation.
An example of the second category of cases is Chester v. Harper Woods Sch. Dist., 87 Mich. App. 235, 273 N.W.2d 916 (1978). There a drop in revenue precipitated a reduction in teaching personnel during which the plaintiffs, three tenured school teachers, were laid off. When financial conditions improved the school board hired new, probationary teachers to fill the vacancies created by the three plaintiffs. A Michigan statute required a tenured teacher who had been terminated because of a reduction in force to be appointed to the first vacancy for which he was “certified and qualified.” The court held the term “qualified” referred to “some level of competence above and beyond mere certification, the criteria of which must be established by the school board.” As such, the court’s review was limited to whether the reduction in force “was not made in good faith but amounted to a subterfuge” to avoid the tenure act’s protections. 87 Mich. App. at 242, 244.
In Paradis v. School Administrative Dist., Etc., 446 A.2d 46 (Me. 1982), the plaintiff, a tenured teacher, was one of six teachers in the language arts department and one of two French teachers. The other French teacher was not tenured. The school board decided a reduction in its teaching force was necessary and the plaintiff received notice she was to be nonrenewed. She also learned, however, the other French teacher was to be retained. The court upheld the school board’s action. It first noted the tenure law gave the school board the right to terminate a teacher’s contract “ ‘when changes in local conditions warrant the elimination of the teaching position for which the contract was made.’ ” p. 50. This statute, the court said,
“imposes on the Board only an implied duty to exercise that reserved power in good faith for the best interests of education in the district. A duty of good faith, both in determining whether changes in local conditions warrant elimination of teaching positions and in selecting the specific individuals whose contracts are to be terminated, is readily inferable from the statutory reservation of power in the school directors. To go beyond that inference and declare judicially that a seniority rule restricts the school directors in the exercise of their reserved power, would be to add a substantive provision to section 161(5) that is conspicuously absent from the legislative enactment.” 446 A.2d at 50.
Against a mere good faith standard the school board’s action in this case might be upheld. There was no evidence the school board was out to get Ms. Coats. The evidence showed the school board considered various alternatives when it became necessary to reduce its teaching staff. Arguably, the school board simply picked the alternative which, in its opinion, was best for the school district.
A mere good faith requirement, however, has the potential of emasculating the Teacher Tenure Law. When probationary teachers are retained while a tenured teacher certified to teach the same subjects is terminated, much of the theoretical protection of the Teacher Tenure Law is lost. This is true regardless of the school board’s good faith.
Some states have attempted to provide more protection to tenured teachers, both through legislation and judicial rules. A good example is New Mexico. In Swisher v. Darden, 59 N.M. 511, 287 P.2d 73 (1955), the court held when a tenured teacher was nonrenewed as a result of a reduction in force the school board was required to “show affirmatively that there was no position available” which the tenured teacher was qualified to teach. 59 N.M. at 516. The fact a nontenured teacher is retained in a position for which the tenured teacher is qualified makes that position “available” to the tenured teacher. Penasco Independent School District No. 4 v. Lucero, 86 N.M. 683, 526 P.2d 825 (Ct. App. 1974); Fort Sumner Municipal School Board v. Parsons, 82 N.M. 610, 485 P.2d 366 (Ct. App. 1971).
The reason for such a rule was well stated in Watson v. Burnett, 216 Ind. 216, 222, 23 N.E.2d 420 (1939);
“If a justifiable decrease in the number of teaching positions should be held to give to the trustee the power to choose between tenure and nontenure teachers, both of whom are licensed to teach in the teaching position which remains, he is thereby given the power to nullify the Teachers’ Tenure Act, and to discharge without cause a teacher who has, by reasoh of having served satisfactorily as a teacher during the specified period, secured a tenure status and an indefinite permanent contract. To countenance such an interpretation of the law would be to permit the trustee to do indirectly that which the law expressly forbids him to do directly.”
The problem with such a rule is in determining whether the tenured teacher is “qualified” to teach in the nontenured teacher’s position. As seen in the Chester v. Harper Woods Sch. Dist., 87 Mich. App. 235, case, some jurisdictions consider “qualified” to mean more than mere certification to teach in the position. In such a case the school board is given discretion to make the final determination as to whether the tenured teacher is qualified. In other instances the school board is left with little discretion. In Illinois, for example, the tenured teacher need be only “legally qualified” to teach in the nontenured teacher’s position. Illinois courts retain a large amount of supervisory control, even to the point of ordering reassignment to accommodate the tenured teacher. See Peters v. Bd. of Education, 106 Ill. App. 3d 77, 62 Ill. Dec. 16, 435 N.E.2d 814 (1982); Higgins v. Bd. of Education, 101 Ill. App. 3d 1003, 57 Ill. Dec. 446, 428 N.E.2d 1126 (1981). Finally, other states take a more moderate approach. In Delaware, for example, the tenured teacher must be retained if there are nontenured teachers “teaching in the general area of competence, interest and training” of the tenured teacher. Bd. of School Trustees v. O’Brien, 56 Del. 79, 85, 190 A.2d 23 (1963).
We reject the argument the school board has absolute discretion to nonrenew whomever it wishes in reduction of force situations. It should first conduct a good faith examination of the competence, interest and training of all teachers in the area where the reduction of staff is to occur. Where there are tenured and nontenured teachers in the department and all are qualified, the nontenured teachers should be the first terminated.
In the instant case Leota Coats is eminently qualified to teach language arts in either junior high or high school. It is uncontested she did a superior job of teaching and as chairperson in the most important department in school. The only criticism of her was that she demanded excellence of her students and graded them accordingly. We find such criticism unfounded and commend others to emulate her standards. No student can learn-who cannot read or write. A school board cannot be permitted to terminate qualified tenured teachers under the guise of reduction in force while continuing to hire probationary teachers after an enrollment decline is readily apparent. Such would nullify the Teacher Tenure Law.
Here the school board set up specialties for teaching in junior or senior high school. Those categories are not recognized in either school board policy, certification or the law. We hold unless good cause is otherwise shown a tenured teacher may not be nonrenewed due to reduction in force until all nontenured teachers teaching subjects which the tenured teacher is qualified to teach are first terminated. Here there were several probationary teachers teaching subjects which Leota Coats was both certified and qualified to teach who were rehired while Ms. Coats was nonrenewed. As such the school board acted improperly in nonrenewing Ms. Coats.
The trial court also found the school board’s appointment of its own attorney to the hearing committee violated Ms. Coats’ right to due process. The school board argues this was error. Ms. Coats made a contemporaneous objection to the appointment of Mr. Russell at the hearing and argued the matter to both the district court and this court. Thus, the issue is properly preserved.
K.S.A. 72-5438 governs the procedure by which the hearing committee is formed. Each side designates one person to sit on the panel. These two people then designate a third person who serves as chairman of the panel. If the two hearing committee members cannot agree on a third person a district judge in the home county of the school district appoints a chairman. K.S.A. 72-5439 states the procedural requirements of the initial hearing.
That statute provides in pertinent part:
“The heaving provided for in K.S.A. 72-5438, shall afford procedural due process, including the following: , ■
“(f) the right of the teacher to a fair and impartial decision based on substantial evidence.”
Clearly the statutes place no express limitation on whom a party may appoint to serve on the hearing committee. The only requirement which must be met is the constitutional due process requirement which holds the method of decision must not “offend the concept of fundamental fairness.” Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895, 905 (D. Kan. 1977); Haddock v. U.S.D. No. 462, 233 Kan. 66, 661 P.2d 368 (1983). This carries with it some inherent limitations. The purpose of the hearing, as this court stated in Gillett v. U.S.D. No. 276, 227 Kan. at 78, “is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice.” The due process hearing, then, is more of a fact-finding process. However, it still must be “fair and just, conducted in good, faith, and dominated throughout by a sincere effort to ascertain whether a good cause exists for the notice given.” 227 Kan. at 78. Even though it only results in a recommendation to the school board, the due process hearing is an integral part of the actual decision regarding nonrenewal. Fundamental fairness is thus necessarily applicable.
We conclude the school board’s appointment of its own attorney to the hearing committee violated the rule of fundamental fairness. In a situation such as this the school board attorney has a conflict of interest. He is the person who prepared all the documents and gave the school board its legal counsel in arriving at its decision to nonrenew the teacher. Further, he has an obvious financial interest in confirming the school board decision. Such a blatant defiance of due process cannot be countenanced. We hold the school board’s appointment of its own attorney to the hearing panel violated Ms. Coats’ right to due process.
The judgment of the trial court is affirmed and the case is remanded with an order to reinstate Leota Coats and to deter mine the amount of baok pay owed. Back pay shall include the difference between the salary Leota Coats receives in her present position, less transportation costs, and the salary she would have received had she been retained at Wellington, plus interest. | [
48,
-2,
-44,
45,
10,
34,
126,
-114,
121,
-95,
52,
83,
-83,
-39,
20,
109,
-45,
109,
68,
105,
-109,
-77,
19,
-115,
-124,
-9,
-5,
-35,
-69,
94,
-76,
87,
74,
112,
-54,
-43,
-122,
-53,
65,
80,
-82,
7,
-53,
-61,
93,
-62,
56,
99,
-72,
15,
49,
43,
115,
40,
28,
-53,
104,
38,
58,
97,
70,
-47,
26,
-121,
103,
94,
-109,
36,
-98,
-125,
-48,
42,
-36,
49,
-128,
-24,
34,
-12,
-34,
68,
21,
-119,
9,
100,
102,
81,
60,
-51,
-72,
-119,
110,
-14,
45,
-31,
-80,
25,
98,
5,
-97,
-97,
112,
86,
3,
126,
-30,
77,
95,
108,
-115,
-34,
-12,
-111,
77,
40,
28,
63,
-5,
39,
49,
117,
-63,
-94,
93,
-64,
51,
-101,
78,
-108
] |
The opinion of the court was delivered by
Lockett, J.:
This is a declaratory judgment action brought by the plaintiff, Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau), versus the defendants, Anton Horinek and Stanley Smith. The case was submitted to the trial court on motions for summary judgment. The trial court sustained the plaintiff Farm Bureau’s motion for summary judgment and denied the defendant Anton Horinek’s motion for summary judgment. The defendant appeals.
The pertinent facts are: On April 13, 1981, Anton Horinek, defendant, was the owner of a 1952 Ford truck which was properly licensed and registered. Defendant Horinek was insured under two policies of insurance written by the plaintiff, Farm Bureau: an automobile liability insurance policy and a Farm-Master Policy. On April 13, 1981, defendant Horinek was operating the 1952 truck hauling dirt from a grain bin construction site on his farm property to his farmyard. The trips necessitated his use of Kansas Highway K-25. Approximately three miles north of Atwood, Kansas, defendant Horinek’s farm access road to the grain bin site intersects K-25. While attempting to execute a right-hand turn onto his farm property, defendant Horinek was involved in a motor vehicle accident with the defendant, Stanley Smith. Defendant Smith instituted an action against the defendant Horinek in the United States District Court for the District of Kansas for personal injuries received in the accident.
Horinek claimed that plaintiff, Farm Bureau, afforded liability coverage under both the automobile liability insurance policy and the Farm-Master Policy. Farm Bureau denied coverage under the Farm-Master Policy, acknowledged coverage under the motor vehicle liability policy and is supplying a defense to defendant Horinek under the terms of the motor vehicle policy. Farm Bureau filed the present declaratory judgment action to determine whether or not the Farm-Master Policy afforded liability coverage to the defendant Horinek.
The Farm-Master Policy is a combination property and liability policy divided into two major sections. “Section I” of this policy consists of seven (7) pages, and covers losses peculiar to farm structures and operations. Covered under Section I are: dwellings, household and personal effects, farm personal property, outbuildings and livestock. “Section II” covers the farmer’s comprehensive liability.
Farm-Master policies are designed to provide protection against risks that are peculiar to farming activities. Certain limitations are contained within the policy to decrease risk in order to reduce premium cost. Farm Bureau claims injuries or property damage arising from the maintenance, operation or use of a motor vehicle on the public highway is one of the exclusions of this policy.
The construction and effect of insurance contracts are questions of law to be determined by the court. None of the facts are disputed by the parties. If the facts are admitted, then it is for the court to decide whether they come within the terms of the policy, and the function of the appellate court is the same as the trial court. Scott v. Keever, 212 Kan. 719, 721, 512 P.2d 346 (1973). Each of the questions raised by defendant Horinek in his appeal deal with the exclusions contained in Section II, “Coverage K - Medical Payments - Other Than Named Insured and Family and Employees” Exclusions (5)(b).
“SECTION II
FARMERS COMPREHENSIVE LIABILITY
COVERAGE G - LIABILITY
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
Bodily Injury or Property Damage
to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend suits against the Insured seeking damages on account of such bodily injury or property damage even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Coihpany’s liability has been exhausted by payment of judgments or settléments.
“COVERAGE K - MEDICAL PAYMENTS - OTHER THAN NAMED INSURED AND FAMILY AND EMPLOYEES
“To pay all reasonable medical expenses for treatment rendered within one year from the date of the accident, to or for each person who sustains bodily injury caused by an accident to which this insurance applies, while such person is:
“1. On an insured premises with the permission of any Insured; or
“2. Elsewhere, if such bodily injury:
a. arises out of a condition in the insured premises or the ways immediately adjoining.
b. is caused by the activities of any Insured, or by a resident employee or farm employee in the course of his employment by any Insured.
c. is caused by an animal owned by or in the care of any Insured.
“EXCLUSIONS
UNDER COVERAGE G LIABILITY AND COVERAGE K MEDICAL PAYMENTS - OTHER THAN NAMED INSURED AND FAMILY AND EMPLOYEES, THIS POLICY DOES NOT APPLY TO:
“ 1. Any business pursuit of any Insured except activities therein which are ordinarily incident to non-business pursuits or fanning;
“ 2. The rendering of or failing to render professional services;
“ 3. Loss arising out of any premises, other than an insured premises, owned, rented or controlled by any Insured;
“ 4. The handling or use of or the existence of any condition in goods, products, or containers thereof manufactured, produced, sold, handled or distributed by an Insured, if the occurrence takes place after the Insured has relinquished possession thereof to others and away from the insured premises or work completed by or for the Insured out of which the accident arises;
“ 5. The maintenance, operation, use, loading or unloading of, or instructions for use of:
a. aircraft owned, borrowed, or hired by an Insured, including damage to property arising out of any substance released or discharged from any aircraft;
b. any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (b) does not apply to bodily injury or property damage occurring on the insured premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the insured premises or kept in dead storage on the residence premises;
c. any recreational motor vehicle owned by any Insured if the bodily injury or property damage occurs away from the insured premises; but this subdivision (c) does not apply to golf carts while used for golfing purposes;
d. watercraft exceeding twenty-six feet in over-all length or if with inboard motor power exceeding fifty horsepower;
e. motor vehicles, trailers or semi-trailers towed by motor vehicles while away from the premises or the ways immediately adjoining;
“ 6. Liability assumed by the Insured under any contract or agreement, but this exclusion shall not apply to liability assumed by the Insured under any written contract relating to the business of farming;
7. Loss which is expected or intended by an Insured;
8. Bodily injury to or sickness, disease or death of any employee of an Insured, if benefits therefore are either payable or required to be provided under any workmen’s compensation law;
9. Damages because of injury to or destruction of property owned, used, or in the care, custody, or control of an Insured;
“10. Custom farming operations, in excess of $1000 gross receipts in any one policy year unless specified in the Declarations;
“11. The operation of any motor vehicle, recreational motor vehicle, or watercraft while being operated in any prearranged race or competitive speed test, or while hired or chartered or used as a public livery conveyance;
“12. Loss or damage sustained by an independent contractor or employee thereof;
“13. Any liability for punitive damage;
“14. Any Insured as defined under the definition of Insured.
“UNDER COVERAGE K MEDICAL PAYMENTS - OTHER THAN NAMED INSURED AND FAMILY AND EMPLOYEES, THIS POLICY SHALL NOT APPLY TO BODILY INJURY TO:
“1. Any person regularly residing on any part of the insured premises; or
“2. Any person while on the insured premises because a business is conducted or professional services are rendered thereon.”
The first contention raised is whether the exclusion heading in Section II excludes defendant Horinek from coverage. The section states;
“EXCLUSIONS
Under Coverage G liability and Coverage K medical payments ■— other than named insured and family and employees, this policy does not apply to
Following are listed fourteen (14) exclusions of coverage under the contract. The heading Exclusions is directed to Coverage G and K. Coverage G and K are set out by completely stating the letter designation and title; therefore it should be read:
EXCLUSIONS
Under Coverage G [Liability] and Coverage K [Medical payments — Other than named insured and family and employees], this policy does not apply to ... .
“Coverage G” extends coverage to the insured for all sums the insured might become legally obligated to pay because of bodily injury or property damage. “Coverage K” covers payment of medical expenses of third persons. Both “Coverage G and K” are subject to the fourteen (14) exclusions set forth in the contract.
Exclusion 14 specifically excludes “any Insured as defined under the definition of Insured.” The policy defines insured as:
“The unqualified word ‘Insured’ includes the (1) Named Insured and (2) if residents of his household, his spouse, and relatives of either, and any other person under twenty-one years of age in the care of the Named Insured or spouse, and wherever used in Liability, includes, with respect to animals and watercraft owned by the Named Insured, any person or organization legally responsible therefor.”
Defendant Horinek could obtain medical coverage under Coverage L, “Optional Coverage - Coverage L - Medical Payments - Named Insured and Family.” The policy distinguishes between coverage for the insured and his family and those “other than named insured.”
An insurance policy should be construed to give effect to the intention of the parties. The test applied in determining that intention is not what the insured intended the policy to mean, but what a reasonable pei'son in the position of the insured would understand it to mean. Wheeler v. Employer’s Mutual Casualty Co., 211 Kan. 100, 104, 505 P.2d 768 (1973). The terms of an insurance contract, as in the case of any written contract, must be considered as a whole. Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P.2d 157 (1970). The exclusions clearly apply to the defendant Horinek under “Coverage G and Coverage K.”
The next contention is that the exclusion heading is ambiguous. Language in an insurance contract is ambiguous if the woi'ds used to express the meaning and intention of the parties are insufficient in a sense that the contract may be understood to reach two or more possible meanings. Wood v. Hatcher, 199 Kan. 238, 428 P.2d 799 (1967); Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 452 P.2d 279 (1969). In construing a written instrument, reasonable rather than unreasonable interpretations are favored by law. Results which vitiate the purpose or reduce the terms of the contract should be avoided. Weiner v. Wilshire Oil Co., 192 Kan. 490, 496, 389 P.2d 803 (1964). Ambiguity is not to be dexived from or created by the fragmentation of an insurance contract. The terms of an insurance contract, as in the case of any written contract, must be considered as a whole. Scott v. Keever, 212 Kan. at 723. The policy provisions which bear upon the issue are concisely and cleax'Iy expressed and not ambiguous.
Defendant Horinek’s third contention is that if the particular exclusion relied on by Farm Bureau only excludes coverage to the insured’s property or property over which he has some light to control, then damage to defendant Smith’s property is covered, since Smith’s property is not the insured’s property and the insured has no right to control. Cleaxiy there is comprehensive liability coverage contained in Section II, Covex-age G - Liability. Coverage is stated:
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
Bodily Injury or Property Damage
to which this insurance applies, caused by an occurrence.”
The liability coverage is limited by the exclusion for liability stated in the policy:
“5. The maintenance, operation, use, loading or unloading of, or instructions for use of:
“b. any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (b) does not apply to bodily injury or property damage occurring on the insured premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the insured premises or kept in dead storage on the residence premises.”
Defendant Horinek was operating a registered, licensed 1952 Ford truck, which he owned. The accident occurred during Horinek’s operation of the truck on Highway K-25. This is the method of operation that is specifically excluded under the Farm-Master Policy. Here Farm Bureau clearly limited the coverage; neither defendants Horinek nor Smith were covered under the contract.
The final contention is the Farm-Master Policy is void for being in violation of the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. The material portions of the Act in K.S.A. 40-3107(c) and (b) are:
“Every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this state shall:
“(a) Designate by explicit description or by appropriate reference of all vehicles with respect to which coverage is thereby to be granted;
“(b) insure the person named therein and any other person, as insured, using any such vehicle with the expressed or implied consent of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle within the United States of America or the Dominion of Canada, subject to the limits stated in such policy.”
K.S.A. 40-3103(m) defines motor vehicles:
‘“Motor vehicle’ means every self-propelled vehicle of a kind required to be registered in this state, including any trailer, semitrailer or pole trailer designed for use with such vehicle, but such term shall not include a motorized bicycle.”
K.S.A. 40-3105 provides for certain exemptions from the Kansas Automobile Injury Reparations Act:
“The following vehicles shall be exempt from the provisions of this act:
“(a) Any motor vehicle owned by the government of the United States, any state or any political subdivision of any state;
“(b) an implement of husbandry or special mobile equipment which is operated only incidentally on a highway or property open to use by the public;
“(c) a vehicle operated on a highway only for the purpose of crossing such highway from one property to another; and
“(d) a non-highway vehicle for which a non-highway certificate of title has been issued pursuant to K.S.A. 1976 Supp. 8-198, except when such vehicle is being operated pursuant to subsection (f) of K.S.A. 1976 Supp. 8-198.”
Exclusion (5)(b) of the Farm-Master Policy excludes coverage of motor vehicles unless the vehicle is not subject to motor vehicle registration, and the vehicle is used exclusively on the insured premises or kept in dead storage on the residence premises. The Farm-Master Policy is not a motor vehicle liability insurance policy within K.S.A. 40-3107 and is not in violation of the Act.
Judgment is affirmed. | [
-12,
-19,
-8,
-115,
8,
96,
56,
26,
89,
-48,
52,
83,
-49,
-61,
5,
41,
-1,
13,
69,
105,
-11,
-78,
87,
-14,
-10,
-77,
-85,
-51,
-98,
91,
109,
70,
77,
16,
10,
85,
-90,
-120,
-124,
30,
-50,
4,
-103,
-7,
-39,
66,
-68,
107,
84,
77,
53,
-97,
51,
42,
-101,
-61,
41,
40,
-69,
45,
-63,
-16,
-118,
7,
127,
18,
-79,
4,
-104,
101,
90,
10,
-112,
49,
8,
-8,
114,
-94,
-126,
36,
43,
-103,
8,
-90,
103,
35,
21,
-51,
-20,
-104,
6,
123,
15,
-124,
-102,
24,
51,
6,
-73,
31,
113,
53,
6,
-4,
-4,
5,
15,
104,
5,
-121,
-48,
-79,
-113,
112,
-100,
-117,
-17,
-121,
-96,
117,
-119,
-22,
93,
-59,
118,
51,
6,
-108
] |
The opinion of the court was delivered by
Miller, J.:
Burle Hill, defendant and appellant in this action, was convicted by a Crawford County jury of the premeditated first-degree murder of Velma Darlene Collins in violation of K.S.A. 21-3401. He was sentenced to life imprisonment. He appeals and contends that the trial court erred (1) in refusing to grant a change of venue, (2) in refusing to grant a judgment of acquittal and in refusing to reduce the conviction to murder in the second degree, (3) in refusing to grant a new trial, (4) in refusing to suppress certain evidence, (5) in refusing to set aside the verdict because it was based on passion and prejudice, and (6) in sentencing the defendant to life imprisonment.
On March 29, 1982, a local resident was cutting wood near the Lightning Creek bridge west of Pittsburg when he saw a red pickup truck stop on the bridge. He saw the driver get out and go to the rear of the truck, and he observed a mattress in the truck bed. Assuming that the driver was going to dispose of the mattress, he returned to his work. When he next looked up, he saw the man driving away with the mattress still in the back of the truck. This aroused his curiosity and after he loaded his wood he drove onto the bridge to see what the truck driver had thrown out. He observed a body in the creek bed; another passer-by soon confirmed his observations, the authorities were notified, and an investigation commenced. A blood-stained mattress was found a short distance up the road. The body was identified as being that of Mrs. Collins, and evidence began to surface connecting the defendant to the crime.
Mrs. Collins was last seen alive in the company of the defendant. The truck observed on the bridge had several distinguishing characteristics, including the fact that it was being driven with a flat tire. Defendant’s truck matched the description. Defendant’s house was thoroughly searched and blood stains were found throughout — on kitchen walls, on the paneling, in the master bedroom, on the living room walls, in the hallway near the kitchen, in the garage, and in the truck. An autopsy disclosed that the victim’s jaw was broken in two places; the left half of her lower jaw was completely broken free or severed; there was multiple bruising all over her body.
The defendant admitted being with Mrs. Collins at the time of her death. He testified that she tripped while carrying two cans of beer, and fell against the coffee table in his home. Upon discovering that she was dead, he decided not to call the police because some five years previously he had been charged with the murder of a woman who died under similar circumstances. He had been acquitted, but he thought his previous involvement might be held against him. He admitted that he had retained the body in his home for a couple of days, deliberated how to best dispose of it, and finally threw it into Lightning Creek. There was extensive medical testimony to the effect that the injuries sustained by Mrs. Collins before her death were caused by a great deal of force, not such little force as might be encountered in a common household fall or other accident. One witness likened the force necessary to inflict such injuries to that encountered in automobile accidents. A dentist testified that a blow to the victim’s left jaw dislodged a tooth on the right side of her mouth. The pathologist concluded that the severe injury to her jaw resulted in her death because the fracture allowed her tongue to fall back in the throat, obstructing the airway and causing her to suffocate.
The first issue is that of the trial court’s refusal to grant a change of venue. Defendant presented some six newspaper accounts of the crime, which for the most part were factually accurate with the exception that it was reported that the woodcutter had seen the body being thrown into the creek. Some of the articles also mentioned the defendant’s prior acquittal on unrelated murder charges. Defendant contended that these reports were read by the jurors prior to voir dire, and that he was prejudiced by this publicity. He presented no evidence to support this conclusion. One hundred twenty jurors were summoned, but only 51 were examined, and a panel of 37 jurors was passed for cause. The peremptory challenges were exercised and a jury of twelve, with one alternate, was empaneled before noon on the first day of trial.
In State v. Salem, 230 Kan. 341, 634 P.2d 1109 (1981), Justice Fromme summarized the holdings of this court on the question of a change of venue, saying:
“We have many cases in which the requirements for a change of venue have been discussed; among them are State v. McLaughlin, 207 Kan. 594, 597, 485 P.2d 1360 (1971); State v. Gander, 220 Kan. 88, Syl. ¶ 6, 551 P.2d 797 (1976); State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977); and State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980). To obtain a change of venue under K.S.A. 22-2616(1) the defendant must satisfy the court that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.
“In our cases it has been held (1) the burden to establish prejudice is on defendant, (2) not only prejudice must be shown but the prejudice must be such as to make it reasonably certain the defendant cannot receive a fair trial, (3) speculation as to possible prejudice is not sufficient, (4) the State is not required to produce evidence to refute affidavits obtained by defendant, (5) the granting of a change of venue lies within the sound discretion of the trial court, and (6) the trial court’s ruling thereon will not be disturbed absent a showing of prejudice to the substantial rights of the defendant. See State v. Sanders, 223 Kan. at 280.
“To establish the existence of prejudice against a defendant sufficient to justify a change of venue, specific facts and circumstances must be established to indicate it will be practically impossible to obtain an impartial jury to try the case. Such a showing may not be based on speculation. State v. Myrick & Nelms, 228 Kan. at 417.” 230 Kan. at 343-44.
Here the defendant did little more than provide copies of factual news reports for the trial court. The one factual item which was erroneous is of little moment, since the defendant admitted throwing the body into the creek. Specific facts and circumstances to establish that it would be practically impossible to obtain an impartial jury were not offered, and trial experience proved the opposite to be true: an impartial jury was readily available and was selected without difficulty. The trial court did not abuse its discretion in refusing to grant a change of venue.
We next turn to defendant’s claim that the trial court erred in refusing to grant a judgment of acquittal notwithstanding the verdict, or in refusing to allow a reduction of the verdict from first-degree murder to second-degree murder. The test which trial courts must apply in passing upon a motion for judgment of acquittal is concisely stated by Chief Justice Schroeder in State v. Mack, 228 Kan. 83, 612 P.2d 158 (1980):
“A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980); State v. Rodriquez, 226 Kan. 558, 564, 601 P.2d 686 (1979).” 228 Kan. at 89.
The same rule is stated and applied in State v. Myrick & Nelms, 228 Kan. 406, Syl. ¶ 7, 616 P.2d 1066 (1980), and in State v. Diaz & Altemay, 232 Kan. 307, Syl. ¶ 1, 654 P.2d 425 (1982). The State’s evidence clearly established the cause of death as a severe beating; the extensive and severe injuries sustained by the victim could not have been occasioned by and were inconsistent with a simple and single fall. Witnesses saw the victim shortly before her death; they did not observe any bruises on her body. The evidence also establishes activity by the defendant designed to remove evidence of the victim’s death from his home and clothing. Under the standards above noted, the trial court did not err in overruling the motion for judgment of acquittal.
Defendant’s contention that the crime cannot be first-degree murder, but only second-degree, is premised upon his contention that no premeditation was established by the evidence. It is not necessary that premeditation be established by direct evidence; it may be established by circumstantial evidence, and may be inferred from the established circumstances of the case provided the inference is reasonable. The jury has a right to make that inference from substantial evidence. See State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978), where we discussed a similar issue and the rules applicable thereto, saying:
“Proof of premeditation as an element in first-degree murder was considered by this court in two recent eases. (State v. Henson, 221 Kan. 635, 562 P.2d 51 [1977]; State v. Hamilton, [216 Kan. 559, 534 P.2d 226 (1975)]). Those two cases hold that the element of premeditation, essential to first-degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, such as lack of provocation, the defendant’s conduct before and after the killing or the dealing of lethal blows after the deceased was rendered helpless, the evidence may be sufficient to support an inference of deliberation and premeditation. Our problem in this case is to determine whether the evidence in the record before us is sufficient to establish a deliberate and premeditated killing. In a prosecution for murder the law does not presume or imply the existence of premeditation and deliberation from any state of circumstances, but it is not necessary that they be established directly. Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such case, the jury has the right to make the inference. (Craft v. State, 3 Kan. *450 [1866].)” 223 Kan. at 597.
Also, see State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980), and State v. Hutton, 232 Kan. 545, 551-52, 657 P.2d 567 (1983).
The question to be resolved is whether premeditation can reasonably be inferred from the established facts and circum stances of the case. No weapon identifiable as the instrument of death was admitted in evidence, and none was found at the defendant’s home. The medical evidence, however, indicated that the victim must have been beaten with some blunt instrument; the medical experts did not believe that the victim’s injuries could have been caused by a beating with fists alone. The severe injuries to the victim’s jaw, head, and all over her body were sustained while she was still alive and were not consistent with a fall. Outside of the defendant’s testimony, there is no other evidence indicating that the victim fell against a coffee table. There is no evidence showing that the attack was provoked. There is a strong likelihood that death would follow a beating of such severity, although the assailant may not have planned death by suffocation. Following the victim’s death, defendant hid her glasses, her watch, and one of her shoes. He hid the body, and testified that he contemplated dismembering the body so that he could dispose of it in a foot locker. He dropped the body from his attic to the concrete garage floor; he hauled the body some ten miles away and disposed of it in the creek bed. He burned the clothing he was wearing and attempted to clean up the bloodstains throughout his home. Nevertheless, blood was found throughout the house and not only in those portions of the house where the defendant testified the victim had been. There is nothing in the evidence to suggest that anyone other than the defendant was present throughout the victim’s ordeal. Under the circumstances disclosed by the record, we conclude that the jury could reasonably have concluded that the killing was premeditated.
We turn next to the new trial issue: Defendant states two grounds upon which he maintains that the trial court should have granted him a new trial: First, he contends that the verdict was given under passion and prejudice and second, he argues that the verdict is contrary to the evidence. The first is a restatement and reargument of his claim that the trial court erred in refusing to grant a change of venue, and the second is simply a restatement and reargument that the evidence is insufficient to support a finding of premeditation and deliberation. Neither reargument is persuasive and we will not devote further attention to them.
His claim of error relating to the refusal of the trial court to suppress evidence seized during the search of the defendant’s residence is based upon the fact that there is a misstatement of fact in the application for search warrant. The statement is the same as that repeated in the news stories — that a witness observed a white male throwing a blanket-clad body over a bridge. The State concedes that this is not true.
The general rule as to the validity of an affidavit for a search warrant is stated in State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978):
“However, there is a presumption of validity with respect to an affidavit supporting a search warrant and generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application. Franks v. Delaware, 438 U.S. at 171.
“An exception to the above general rule is recognized if the challenger’s attack is supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth. Under this exception an evidentiary hearing would be required on a motion to suppress evidence obtained in the search. The challenger has a duty to point out specifically the portion of the warrant affidavit that is claimed to be false, and a statement of supporting reasons should accompany the motion to suppress.” 225 Kan. at 43-44.
Here, the defendant was afforded an evidentiary hearing outside the hearing of the jury, and the single erroneous statement noted above was the only misstatement of fact that the defendant was able to demonstrate. In State v. Towles & Brewer, 4 Kan. App. 2d 567, 609 P.2d 228 (1980), the Court of Appeals discussed a similar claim of error and said:
“The issue as presented is integrally related to the United States Supreme Court’s decision announced in Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). The holding in Franks may be summarized as follows: ‘[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.’ 438 U.S. at 155-156. (Emphasis added.)” 4 Kan. App. 2d at 569.
We must then examine the remaining portions of the affidavit. These tie the blanket and the mattress found at or near the scene with the defendant; they tie the defendant’s truck with the one seen at the bridge shortly before the body was discovered; and they tie the defendant and the defendant’s home to the victim, showing that shortly before her death she was at defendant’s residence, wearing the same clothing she was wearing when her body was found. Numerous recitals in the affidavit tie the defendant to the crime; the remainder of the affidavit, with the erroneous statement deleted, is fully sufficient to provide probable cause for the issuance of a search warrant. The trial court did not err in refusing to suppress the evidence obtained in the search pursuant to the warrant.
Defendant’s final claim of error is that the sentence of life imprisonment is excessive, and that the court should have reduced the conviction to one for second-degree murder wherein the minimum sentence is five years’ imprisonment. We have already dealt with the latter contention and have determined that, upon the evidence adduced, the defendant was properly convicted of murder in the first degree. The life sentence imposed by the trial court is that prescribed for the offense of first-degree murder, and the trial court, upon the defendant’s conviction, had no discretion to impose a lesser sentence.
The judgment is affirmed. | [
-47,
-22,
-11,
-116,
41,
96,
43,
56,
40,
-125,
116,
83,
-119,
-53,
9,
105,
58,
61,
85,
105,
-11,
-73,
23,
-127,
-45,
-101,
113,
-44,
-69,
-38,
52,
-1,
74,
96,
74,
77,
-90,
72,
84,
90,
-114,
-122,
-39,
-16,
-61,
82,
54,
42,
118,
14,
-75,
-98,
-81,
47,
22,
-58,
9,
40,
123,
-83,
88,
-79,
106,
-105,
95,
20,
-93,
-124,
-68,
-121,
88,
47,
-47,
-79,
0,
-24,
115,
-74,
-128,
-44,
109,
-119,
12,
-26,
3,
33,
-36,
-17,
-88,
-119,
47,
126,
-99,
-89,
24,
73,
65,
44,
-105,
-99,
109,
116,
12,
-8,
-17,
69,
29,
96,
13,
-49,
-78,
-111,
-33,
32,
-110,
122,
-21,
5,
51,
101,
-115,
-6,
78,
37,
112,
-101,
95,
-80
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought by the State of Kansas on relation of the Secretary of Human Resources to enforce the provisions of the Kansas Minimum Wage and Maximum Hours Law (K.S.A. 44-1201 et seq.). The named defendants are the Board of County Commissioners of Johnson County and the Johnson County Med-Act agency.
For purposes of this appeal, the facts in the case are undisputed and essentially are as follows; The State of Kansas, acting through its Secretary of Human Resources, took the assignment of certain wage claims for overtime on behalf of certain employees of the Johnson County Med-Act. A special investigator for the department conducted an audit of the payroll records of the defendant and concluded that the county had underpaid approximately 63 employees by the amount of $28,850.79 from January 1, 1978, to July 1 of that same year. The State demanded that the Med-Act agency pay the overtime compensation allegedly due. The defendants refused. The State then brought this action on behalf of the Med-Act workers pursuant to K.S.A. 44-1211(¿>). In its petition, plaintiff, in substance, claims that the defendants knowingly and willfully failed to pay overtime wages as required by the Kansas Minimum Wage and Maximum Hours Act. It seeks the recovery of wages, damages, interest, and attorney fees. The State further prays for an injunction to prevent further violations of the wages law by the defendants.
In their answer, defendants raised a number of defenses and then filed a motion for judgment on the pleadings. In support of their motion, defendants rely on the legal proposition that Johnson County is not an “employer” within the meaning of the statutory provisions contained in K.S.A. 44-1202(d) and thus the defendants are not bound by the requirements of the act. It should be noted that there are other defenses raised which are not involved on this appeal. The sole issue for determination is whether Johnson County and its Med-Act agency fell within the statutory definition of an “employer” during the period from January 1, 1978, to July 1, 1978, so that the defendants were bound by the provisions of the minimum wage and maximum hours law (K.S.A. 44-1201 et seq.). The district court answered that question in the negative. It granted the defendants’ motion for judgment on the pleadings. Plaintiff has brought a timely appeal to this court.
Since the issue presented is strictly one of law and requires a construction of the Kansas Minimum Wage and Maximum Hours law, it would be helpful at the outset to examine the pertinent sections of the act as they existed prior to 1979.
K.S.A. 1978 Supp. 44-1201 provides:
“Short title. On and after January 1, 1978, K.S.A. 1977 Supp. 44-1201 to 44-1213, inclusive, shall be known and may be cited as ‘the minimum wage and maximum hours law.”’
K.S.A. 1978 Supp. 44-1202(¿Z), (e), and (/) provide:
“(d) ‘Employer’ means any individual, partnership, association, corporation, business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include any employer who is subject to the provisions of the fair labor standards act of 1938 (29 U.S.C.A. § 201 et seq.) and any other acts amendatory thereof or supplemental thereto;
“(e) ‘Employee’ means any individual employed by an employer, but shall not include: (1) Any individual employed in agriculture; (2) any individual employed in domestic service in or about a private home; (3) any individual employed in a bona fide executive, administrative or professional capacity or in the capacity of an outside commission paid salesman, as such terms are defined and delimited by regulations of the secretary; (4) any individual employed by the United States; (5) any individual who renders service gratuitously for a nonprofit organization as such terms are defined by regulations of the secretary; or (6) persons eighteen years of age or less or sixty years of age or older employed for any purpose of an occasional or part-time basis;
“(f) ‘Occupation’ means employment in any service, trade, business, industry or other gainful employment;” (Emphasis supplied.)
K.S.A. 1978 Supp. 44-1203 provides:
“(a) On and after January 1, 1978, and except as otherwise provided in K.S.A. 1977 Supp. 44-1201 to 44-1213, inclusive, every employer shall pay to each employee wages at a rate of not less than one dollar sixty cents ($1.60) an hour. In calculating such minimum wage rate, an employer may include tips and gratuities received by an employee in an amount not to exceed forty percent (40%) of the minimum wage rate, if such tips and gratuities have customarily constituted part of the remuneration of the employee and if the employee concerned actually received and retained such tips and gratuities. The secretary shall require each employer desiring approval of an allowance for gratuities to provide substantial evidence of the amounts of such gratuities on account of which the employer has taken an allowance pursuant to this section.
“(b) The provisions of this section shall not apply to any employers and employees who are covered under the provisions of section 6 of the fair labor standards act ofl938 as amended (29 U.S.C.A. § 206), and as amended by the fair labor standards amendments of 1974 and any other acts amendatory thereof or supplemental thereto.”
K.S.A. 1978 Supp. 44-1204 provides in part as follows:
“(a) On and after January 1,1978, no employer shall employ any employee for a work week longer than forty-six (46) hours, unless such employee receives compensation for employment in excess of forty-six (46) hours in a work week at a rate of not less than one and one-half (1 14) times the hourly wage rate at which such employee is regularly employed.
“(b) No employer shall be deemed to have violated subsection (a) with respect to the employment of any 'employee who is covered by this section, who is engaged in fire protection or law enforcement activities, including any member of the security personnel in any correctional institution, and who is paid compensation at a rate of not less than one and one-half (1 14) times the regular rate at which such employee is employed;
“(c) The provisions of this section shall not apply to the employment of:
“(1) Any employee who is covered under the provisions of section 7 of the fair labor standards act of 1938 as amended (29 U.S.C.A. 8 207), and as amended by the fair labor standards amendments of 1974 and any other acts amendatory thereof or supplemental thereto; or
“(2) Any employee who is primarily engaged in selling motor vehicles, as defined in subsection (b) of K.S.A. 1977 Supp. 8-126, for a nonmanufacturing employer primarily engaged in the business of selling such vehicles to ultimate purchasers;
“(3) Any person roho is sentenced to the custody of the secretary of corrections and any person serving a sentence in a county jail.” (Emphasis supplied.)
K.S.A. 1978 Supp. 44-1207 provides in part:
“(a) On and after January 1, 1978, the secretary shall adopt such rules and regulations as are necessary to carry out the purposes and provisions of K.S.A. 1977 Supp. 44-1201 to 44-1213, inclusive, to prevent the circumvention or evasion thereof and to safeguard the minimum wage and overtime rates established by this act. Such rules and regulations may include, but are not limited to, regulations defining and governing: Outside salesmen; bonuses; part-time rates; special pay for special or extra work; allowances as part of the wage rates applicable under this act for board, lodging and gratuities; other facilities or services furnished by employers and used by employees; and other special items usual in a particular employer-employee relationship.
“(b) On and after January 1, 1978, in order to prevent curtailment of opportunities for employment, avoid undue hardship and safeguard the minimum wage rates under K.S.A. 1977 Supp. 44-1201 to 44-1213, inclusive, the secretary also may adopt rules and regulations providing for: (1) The employment of handicapped workers or patient laborers at state institutions or hospitals at wages lower than the wage rates applicable under K.S.A. 1977 Supp. 44-1201 to 44-1213, inclusive, under permits and for such periods of time as specified therein; and (2) the employment of learners and apprentices at wages lower than the wage rates applicable under this act, under permits and subject to such limitations on number, proportion, length of learning period, occupations and other conditions as the secretary may prescribe.” (Emphasis supplied.)
The other sections of the act are not relevant to the issue now before us. Before examining these statutory provisions, it would also be helpful to consider the history of the legislation and subsequent amendments thereto. In 1938, Congress enacted the Fair Labor Standards Act of 1938 which required employers to pay employees a set minimum wage and to pay wages at a higher rate for hours worked in excess of a set number of hours or overtime. The present act is codified in 29 U.S.C.A. §§ 206, 207. Prior to 1966, the sovereign states and their subdivisions were exempt under the act. Congress removed that exemption for employees of hospital, institutions, and schools in 1966. In 1968, a number of states challenged the validity of the law. It was upheld by the United States Supreme Court in Maryland v. Wirtz, 392 U.S. 183, 20 L.Ed.2d 1020, 88 S.Ct. 2017 (1968). In 1974, Congress again broadened the act’s scope of coverage of state employees, and another challenge was brought by the states to the Supreme Court. In National League of Cities v. Usery, 426 U.S. 833, 49 L.Ed.2d 245, 96 S.Ct. 2465 (1976), the Supreme Court, by a five-to-four decision, struck out the language in the act as it applied to employees of states and their political subdivisions on the basis that Congress had exceeded its powers under the commerce clause of the United States Constitution, Article 1, Section 8, Clause 3. In 1977, following Usery, the Kansas legislature enacted the Kansas Minimum Wage and Maximum Hours Law. Thereafter, certain counties raised the issue whether the Kansas act applied to them. In March of 1978, the attorney general, CurtT. Schneider, issued an attorney general opinion concluding that the legislative intent was to include counties as employers under the act. Att’y. Gen. Op. No. 78-123.
In the spring of 1979, the legislature considered proposed amendments to the act and granted a special exemption to emergency medical technicians, such as those employed by Johnson County in its Med-Act Department. Specifically, the 1979 legislature in Laws of 1979, Chapter 162, amended 44-1204(b) to exempt employees engaged in the public or private delivery of emergency medical services as a crash injury management technician, emergency medical technician or mobile intensive care technician. Those employees were added to previously exempt employees engaged in fire prevention and law enforcement activities. In the same chapter, the legislature also amended 44-1202 to exempt as employees under the act “any individual employed by a unified school district in an executive, administrative or professional capacity, if the individual is engaged in such capacity fifty percent (50%) or more of the hours during which the individual is so employed.” K.S.A. 44-1202(e)(7). The exemptions of those employees included in the 1979 amendments to the act were effective on publication of the enactment in the official state paper on April 26, 1979.
In May 1979, the assistant county counselor of Johnson County requested an opinion from the attorney general regarding the applicability of K.S.A. 1978 Supp. 44-1201 et seq, to county governments. Attorney general Robert T. Stephan, in Att’y. Gen. Op. No. 79-97, answered the question in the affirmative. The Board of County Commissioners of Johnson County disagreed with this opinion and refused to recognize the claims for wages of the emergency medical personnel involved in the case now before us.
With these matters in mind, we now turn to a determination of the basic issue in the case. There are certain rules of statutory construction which are to be applied by the courts in determining the purpose and intent of the legislature in statutory enactments. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested. In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature. .These principles are recognized in Brown v. Keill, 224 Kan. 195, 199-200, 580 P.2d 867 (1978).
In determining legislative intent in this case, the district court apparently considered in isolation only the statutory definition of “employer” as contained in K.S.A. 44-1202(d). The court concluded that, since the legislature did not see fit to specifically include counties within the definition of employer, it must have intended that they be excluded from the application of the act. We have considered the history and circumstances which existed at the time the act was enacted along with the various sections of the act in their entirety and have concluded that counties do fall within the definition of “employer,” and, therefore, are subject to the provisions of the act, We agree that the definition of “employer” contained in K.S.A. 44-1202(d) does not specifically include counties. That, however, is not controlling.
The legislature by K.S.A. 77-201 has established certain rules of statutory construction to be observed unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute. Specifically, K.S.A. 77-201 Thirteenth provides as follows:
“Thirteenth. The word ‘person’ may be extended to bodies politic and corporate.”
In K.S.A. 19-101, it is stated that each organized county within this state shall be a body corporate and politic. As noted above, the term “employer” as contained in K.S.A. 44-1202(d) was written to include any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee. Applying K.S.A. 77-201, the word “person” may be extended to include counties and other political subdivisions provided the act can be construed to establish that was the'intent of the legislature.
In construing the Kansas Minimum Wage and Maximum Hours Law, we are required to consider the act in its entirety in arriving at the legislative intent. When we examine the various sections of the act, it is clear to us that the legislature intended to include counties within the definition of an “employer” and that the act should apply to them. The act excludes certain specifically named employees of governmental agencies:
(1) Employees engaged in fire prevention and law enforcement activities (K.S.A. 44-1204[b]);
(2) Persons sentenced to the custody of the secretary of corrections and any person serving a sentence in a county jail (K.S.A. 44-1204[c][3]);
(3) The employer of handicapped or patient workers at state institutions (K.S.A. 44-1207[b][l]);
(4) Any individual employed by the unified school district in an executive, administrative or professional capacity, if the individual is engaged in such capacity fifty percent or more of the hours during which the individual is so employed (K.S.A. 44-1202[e][7], as amended in 1979);
(5) Employees engaged in the public or private delivery of emergency medical services (K.S.A. 44-1204[b] as amended in 1979).
Obviously these categories involve employees who labor at the municipal, county, or state levels. By excluding only these employees, it logically follows that the legislature intended the minimum wage and maximum hours law to cover other employees of the state, counties, and other political subdivisions.
In 1979, the attention of the legislature was directed to the question of the desirability of excluding employees engaged in the public and private delivery of emergency medical services. If the legislature had intended that the minimum wage and maximum hours law not apply to any public employees, it could easily have amended the statute at that time to specifically exclude the State and the various political subdivisions from the definition of “employer” in K.S.A. 44-1202(d). It did not choose to do so. Instead it amended the statute to exclude only certain categories of governmental employees from the operation of the act.
Based upon the rationale set forth above, we hold that a county and its agencies, such as an emergency medical service agency, are employers within the meaning of K.S.A. 44-1202(d) and are subject to the application of the Kansas Minimum Wage and Maximum Hours Law.
We wish to emphasize that we have decided only the issue presented on this appeal and that there may be other factual issues or issues of law in the case which must be determined in the district court. We, therefore, reverse and remand the case to the district court for further proceedings. | [
-112,
-22,
-3,
-19,
14,
-32,
35,
2,
81,
-61,
37,
83,
-31,
-50,
1,
123,
-6,
45,
16,
107,
-61,
-77,
83,
-21,
-74,
-69,
-23,
-59,
-69,
75,
-12,
-12,
77,
16,
10,
-43,
70,
66,
-123,
92,
-54,
4,
-23,
-8,
-40,
-126,
56,
107,
118,
11,
49,
30,
-5,
40,
25,
-61,
-20,
44,
91,
47,
-63,
-13,
-46,
-123,
124,
81,
-79,
69,
-100,
71,
-40,
55,
-102,
57,
-95,
72,
82,
-74,
-62,
52,
51,
-71,
12,
98,
98,
35,
-76,
-57,
108,
-76,
14,
118,
-99,
-89,
-77,
24,
122,
-117,
-106,
-100,
124,
22,
14,
126,
-25,
21,
31,
108,
-62,
-49,
-32,
-77,
15,
101,
-106,
-117,
-17,
7,
-111,
97,
-110,
34,
90,
71,
50,
27,
-17,
-100
] |
The opinion of the court was delivered by
Holmes, J.:
Robert C. Johnson appeals from his conviction by a jury of four felony counts of giving a worthless check. K.S.A. 21-3707.
During the month of June, 1982, four checks were issued by Your Aerobics Fitness Center, Inc., a Kansas corporation, a business enterprise principally owned and managed by Johnson. Three of the checks were issued to Kathryn Lauren Kahn and one to Kay Barrett, both being employees of the corporation. When the checks were presented for payment to the drawee bank there were insufficient funds in the corporate account to cover the checks. Each of the checks was in an amount in excess of fifty dollars and all of them were signed by Johnson as president of the corporation. At trial Johnson did not deny that he had issued the checks nor did he deny that he knew at the time there were insufficient funds on deposit for payment of the checks. The defense was that the employees knew at the time they accepted the checks that the corporation was in dire financial straits and that there were insufficient funds on deposit to pay the checks. The employees testified that although they may have known that the corporation was in financial difficulties, neither had actual knowledge at the time the checks were received that the funds on deposit were insufficient to pay the checks. Each one also testified that she did not think Johnson had any intention to cheat her out of the money or to defraud her. Several points are presented on appeal.
K.S.A. 21-3707 provides:
“(1) Giving a worthless check is the making, drawing, issuing or delivering or causing or directing the making, drawing, issuing or delivering of any check, order or draft on any bank, credit union, savings and loan association or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft, that the maker or drawer has no deposit in or credits with the drawee or has not sufficient funds in, or credits with, the drawee for the payment of such check, order or draft in full upon its presentation.
“(2) In any prosecution against the maker or drawer of a check, order or draft payment, of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, the drawee unless the maker or drawer pays the holder thereof the amount due thereon and a service charge not exceeding $3 for each check, within seven days after notice has been given to the maker or drawer that such check, draft or order has not been paid by the drawee. As used in this section, ‘notice’ includes oral or written notice to the person entitled thereto. Written notice shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be given notice at such person’s address as it appears on such check, draft or order.
“(3) It shall be a defense to a prosecution under this section that the check, draft or order upon which such prosecution is based:
(a) Was postdated, or
(b) was given to a payee who had knowledge or had been informed, when the payee accepted such check, draft or order, that the maker did not have sufficient funds in the hands of the drawee to pay such check, draft or order upon presentation.
“(4) Giving a worthless check is a class E felony if the check, draft or order is drawn for $50 or more. Giving a worthless check is a class A misdemeanor if the check, draft or order is drawn for less than $50.” (Emphasis added.)
Written notice as provided in subsection (2) was properly served on Johnson and he does not deny receipt of the notice.
. Appellant contends that instruction number eleven given to the jury shifted the burden of proof to the defendant in violation of the due process clause of the Fourteenth Amendment as interpreted by statutes and case law requiring that the State prove every element of a criminal offense beyond a reasonable doubt. Instruction eleven read:
“In any prosecution against the maker or drawer of a check, order or draft, payment of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, the drawee unless the maker or drawer pays the holder thereof the amount due thereon and a service charge not exceeding $3.00 for each check, within seven days after notice has been given to the maker or drawer that such check, draft or order has not been paid by the drawee. As used in this section ‘notice’ includes oral or written notice to the person entitled thereto. ‘As used in this instruction, “prima facie evidence” is evidence that on its face is true, but may be overcome by evidence to the contrary.’ ” (Emphasis added.)
No objection was made at time of trial to instruction eleven and unless the instruction was clearly erroneous it is not properly before us on appeal. K.S.A. 60-251(b). Is the instruction clearly erroneous? We think so.
Appellant attacks the combination of the provision establishing prima facie evidence of “intent to defraud and of knowledge of insufficient funds” contained in K.S.A. 21-3707(2), and the last sentence of instruction eleven as creating a conclusive presumption unless overcome by evidence to the contrary thereby resulting in a shift of the burden of proof to the defendant. We have previously upheld K.S.A. 21-3707(2) as being constitutional on its face. State v. Haremza, 213 Kan. 201, Syl. ¶¶ 4 and 5, 515 P.2d 1217 (1973). The questioned portion of the instruction in the case at bar is identical to language in the instructions in State v. Powell, 220 Kan. 168, 551 P.2d 902 (1976), which we approved. In Haremza we held that the statute creates a rebuttable statutory presumption which only affects the burden of going forward with the evidence and not the ultimate burden of proof. Haremza and its progeny were decided before the United States Supreme Court decided Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979), and the recent case of Connecticut v. Johnson, 460 U.S. __, 74 L.Ed.2d 823, 103 S.Ct. 969 (1983).
In Sandstrom the jury was instructed, in a case in which intent was an element of the crime charged, that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” The Court held that such an instruction was unconstitutional as it could be concluded by the jury as a conclusive presumption or one which shifted the burden of proof or of persuasion to the defendant, either of which would be in violation of the Fourteenth Amendment. The Court stated:
“First, a reasonable jury could well have interpreted the presumption as ‘conclusive,’ that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their ‘ordinary’ consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than ‘some’ evidence — thus effectively shifting the burden of persuasion on the element of intent. Numerous federal and state courts have warned that instructions of the type given here can be interpreted in just these ways.
“We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with ‘some’ evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom’s jurors actually did proceed upon one or the other of these latter interpretations. And that means that unless these kinds of presumptions are constitutional, the instruction cannot be adjudged valid.
“As in Morissette [342 U.S. 246 (1952)] and United States Gypsum Co. [438 U.S. 422 (1978)], a conclusive presumption in this case would ‘conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,’ and would ‘invade [the] factfinding function’ which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom’s jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and ‘ordinary consequences’ of defendant’s action), Sandstrom’s jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove ‘beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged,’ 397 U.S., at 364, and defendant was deprived of his constitutional rights as explicated in Winship [397 U.S. 358 (1970)].
“A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom’s jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney v. Wilbur, 421 U.S. 684 (1975). . . .
“Because David Sandstrom’s jury may have interpreted the judge’s instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional.” pp. 517-24.
It has long been recognized that any instruction which shifts the burden of proof or of persuasion to the defendant is unconstitutional and is clearly erroneous. It appears that under Sandstrom any instruction which might reasonably be construed by the jury as shifting the burden of proof to the defendant is also unconstitutional. Obviously, instruction eleven in the instant case, if not actually shifting the burden of proof to the defendant, could reasonably have been so construed by the jury.
In Connecticut v. Johnson, 460 U.S. _, 74 L.Ed.2d 823, 103 S.Ct. 969 (1983) the Court had before it another case in which the jury had been instructed upon the conclusive presumption of intent based upon a person’s voluntary acts. The case had been tried in the state courts before the decision in Sandstrom. While the issue in Johnson was whether a Sandstrom-type instruction can ever be harmless error, the Court had occasion to comment at length upon its decision in Sandstrom. The Johnson Court stated:
“In Sandstrom the jury was instructed that ‘the law presumes that a person intends the ordinary consequences of his voluntary acts.’ 442 U.S., at 512. We held that instruction unconstitutional because a reasonable juror might have viewed it as creating a conclusive or burden-shifting presumption on intent.” 74 L.Ed.2d at 832.
The Court went on to note:
“We note that a defendant in a criminal trial is justified, of course, in defending solely in reliance on the presumption of his innocence and the State’s burden of proof.” 74 L.Ed.2d at 835, n. 16.
Our court anticipated the results of Sandstrom in 1973 when it was held that a Sandstrom-type instruction without qualifying language constituted error. State v. Warbritton, 211 Kan. 506, 506 P.2d 1152 (1973). PIK Crim. 2d 59.06-A, after setting forth the elements of the statute necessary to create the presumption of intent to defraud and of knowledge of insufficient funds under K.S.A. 21-3707(2), includes the following:
“The presumption may be considered by you along with all other evidence in the case. You may accept or reject it in determining whether the State has met the burden to prove that the defendant had (the intent to defraud) (knowledge of insufficient funds in, or on deposit with the [bank] [credit union] [savings and loan association] [depository]). This burden never shifts to the defendant.”
Similar instructions which protect the defendant’s rights when adverse presumptions are proper are found at PIK Crim. 2d 54.01 and 54.01-B. In State v. Smith, 223 Kan. 192, 573 P.2d 985 (1977), we held:
“A statutory presumption that proof of one fact shall constitute prima facie evidence of another is rebuttable and governs only the burden of going forward with the evidence, not the ultimate burden of pi'oof. Likewise, the use of a presumption to establish prima facie evidence does not destroy a defendant’s presumption of innocence, nor does it invade the province of the jury as fact finders.” Syl. ¶ 1.
The rebuttable nature of the presumption created by K.S.A. 21-3707(2) has been recognized in a number of cases. See State v. Calhoun, 224 Kan. 579, Syl. ¶ 1, 581 P.2d 397 (1978); State v. Fisher, 2 Kan. App. 2d 546, 583 P.2d 1038 (1978). We adhere to our prior decisions that a rebuttable statutory presumption constitutes a rule of evidence and is constitutional; however, under the pronouncements of Sandstrom and Johnson, the jury must be clearly instructed as to the nature and extent of the presumption and that it does not shift the burden of proof to the defendant. Any instruction which may reasonably lead the jury to believe that a presumption is conclusive or that the burden to disprove an element of the crime rests with the defendant is unconstitutional. The instruction in the instant case could clearly have led the jury to believe that the burden was upon the defendant to overcome the rebuttable presumption of intent to defraud and that upon failure to do so, the presumption was conclusive regardless of other evidence to the contrary. That this may have happened is highly possible in view of the testimony of both victims that they did not believe the defendant intended to defraud them and the evidence of their knowledge of the corporation’s precarious financial condition. Instruction number eleven was clearly erroneous and requires reversal of the conviction.
Appellant also attacks his conviction on the grounds there can be no “intent to defraud” as required by the statute when the worthless check is given for a pre-existing debt. K.S.A. 21-3110 provides in part:
“(9) ‘Intent to defraud’ means an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.
“(16) ‘Property’ means anything of value, tangible or intangible, real or personal.”
The defendant contends on appeal that when a worthless check is given for a pre-existing debt, there can be no conviction under the statute as the recipient of the check does not “assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” His argument is that the pre-existing nature of the debt precludes as a matter of law any intent to defraud. The four checks which provided the basis for this prosecution were all given to pay for services already rendered which were obligations of the fitness center existing prior to the issuance of the checks. Regardless of the merits of this argument, as the issue was not presented to the trial court, it is not properly before us and will not be considered for the first time on appeal. Anderson v. Overland Park Credit Union, 231 Kan. 97, Syl. ¶ 6, 643 P.2d 120 (1982). In view of the conclusion reached on the erroneous nature of instruction eleven* other points raised by the appellant need not be addressed.
The judgment is reversed and the case remanded for a new trial. | [
112,
-8,
-40,
-4,
10,
-32,
58,
-102,
27,
-83,
-73,
115,
-23,
99,
4,
109,
-12,
45,
-44,
99,
-43,
-77,
39,
-21,
-26,
-13,
-7,
-43,
-75,
91,
-12,
-43,
76,
48,
-86,
-43,
102,
74,
-61,
-106,
-114,
17,
56,
-47,
89,
-128,
48,
-86,
100,
15,
-15,
-98,
99,
58,
20,
78,
104,
44,
123,
-19,
-48,
-15,
-69,
-123,
125,
84,
-78,
5,
-100,
69,
-8,
46,
-104,
49,
10,
-56,
59,
-74,
-58,
116,
75,
59,
68,
106,
98,
2,
-111,
-49,
-68,
-119,
30,
-41,
-99,
-89,
-112,
88,
67,
43,
-76,
-99,
124,
22,
14,
-4,
-50,
-108,
27,
108,
-117,
-54,
-12,
-109,
13,
116,
14,
-82,
-49,
-93,
17,
97,
-50,
-32,
94,
-25,
59,
27,
-49,
-111
] |
The opinion of the court was delivered by
Herd, J.:
This is a personal injury action. McGraw appeals from a jury verdict awarding him $28,000 for his personal injury claim.
Larry McGraw was employed as a construction worker by Robert E. McKee, Inc., the general contractor of a construction project in Kansas City, Kansas. McKee subcontracted part of the work to appellee Sanders Company Plumbing & Heating, Inc. The other appellee, Herman Birks, was employed by Sanders as a backhoe operator.
The original contract between McKee and Sanders called for Sanders to install a “mud interceptor box,” a septic tanklike pit, into which waste water from the building floor was to drain. After construction was commenced on the main project, it was determined Sanders did not have the capability of installing the mud interceptor box. It was then agreed McKee would perform this task as general contractor.
Despite McKee’s agreement to construct the interceptor box, Herman Birks, the backhoe operator for Sanders, made the excavation. Subsequently several McKee employees, including McGraw, entered the pit for the purpose of leveling and tamping the base prior to construction of the concrete interceptor box.
Later Birks was asked to return to the excavation site with his backhoe and assist in removal of the tamping device used in the pit. Birks brought the backhoe to the pit. As he lowered the stabilizer bars the machine slipped into gear, causing it to lurch into the pit on top of the workers. Fortunately no one was killed, but McGraw suffered serious injuries to his hand.
McGraw filed this action in February of 1980, alleging negligence on the part of both Birks and Sanders. Subsequently appellees, pursuant to K.S.A. 60-258a(c), joined McKee as an additional party for the purposes of determining that company’s fault. The case went to trial and the jury determined McGraw’s damages to be $80,000. Fault was apportioned as follows:
Larry McGraw 5%
Sanders Company Plumbing & Heating, Inc. and/or
Herman Birks 35%
McKee Construction Co., Inc. 60%
McGraw thus received a total award of $28,000, all of which was subject to a subrogation claim by McKee for workers’ compensation paid by McKee.
Appellant first argues the trial court erred in excluding evidence of a workers’ compensation lien and in refusing to instruct the jury on the issue of workers’ compensation reimbursement.
During direct examination by appellant’s counsel McGraw’s wife mentioned briefly her husband had received workers’ compensation benefits and that it had “helped for a while.” During her cross-examination counsel for appellee inquired as to the extent of the benefits. Appellant’s counsel made no objection. Later appellant attempted to introduce the workers’ compensation lien which had been filed against any proceeds McGraw might have received from the lawsuit. See K.S.A. 1982 Supp. 44-504(fe). The trial court sustained Sanders’ objection.
McGraw then attempted to place the workers’ compensation lien before the jury by offering this instruction, which was refused by the court:
“Following his injury on November 19, 1979, Larry W. McGraw was entitled to and did receive certain workers’ compensation payments under the Kansas Workmen’s Compensation Act. Those payments total $30,451.66. By operation of Kansas law, the $30,451.66 sum must be repaid by Larry McGraw first out of any recovery he realizes in this case.”
This issue points up the then existing conflict between workers’ compensation law and our comparative fault statute. At the time of trial, under the workers’ compensation statutes an employer who paid benefits to an injured worker was entitled to be subrogated to the extent of his payments against any recovery the worker might receive from a third party tortfeasor. K.S.A. 1982 Supp. 44-504(h). This was so even if the employer was found at fault under the comparative fault statute, K.S.A. 60-258a. The practical result was that a concurrently negligent employer could profit from the suit of the employee by obtaining reimbursement of all compensation expenditures. Negley v. Massey Ferguson, Inc., 229 Kan. 465, 470-71, 625 P.2d 472 (1981).
This inequity has been corrected by the enactment of K.S.A. 1982 Supp. 44-504(d) which states:
“If the negligence of the worker’s employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party’s injury, the employer’s subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the damage award attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker.”
Generally, a statute operates prospectively unless its language clearly indicates the legislature intended it to operate retrospec tively. Davis v. Hughes, 229 Kan. 91, 101, 622 P.2d 641 (1981); Nitchals v. Williams, 225 Kan. 285, Syl. ¶ 1, 590 P.2d 582 (1979). Since K.S.A. 1982 Supp. 44-504(d) contains no such indication, this statute operates prospectively.
Disclosure to the jurors of additional sources of compensation received by the appellant is improper. Negley v. Massey Ferguson, Inc., 229 Kan. at 473. Thus the trial court properly denied admission of the workers’ compensation lien. Further, the fact a trivial amount of such evidence found its way into the lawsuit first inadvertently and then without objection does not mean it was error for the trial court to refuse the requested instruction.
Appellant next argues the trial court erred in suppressing evidence regarding prior acts of carelessness on the part of Birks and in refusing to instruct the jury on the theory Sanders was negligent in supervising Birks.
The prior acts in question first surfaced during the deposition of Larry Clark, McKee’s superintendent for the construction project. Clark related one instance in which Birks almost knocked over a newly poured concrete wall with his backhoe. Another time Birks punctured one of the backhoe’s tires on a steel reinforcing bar. Clark then went to the foreman for Sanders and told him Birks should not be working near anyone else.
With this information in mind, prior to trial the appellees moved to suppress evidence of previous acts of negligence. The trial court took the matter under advisement. Later, during the testimony of Robert Hoenschiedt, an experienced backhoe operator, appellant’s counsel asked about the witness’ previous observation of Birks operating a backhoe. Counsel for appellees again objected aijid the court sustained the objection, thereby suppressing the response.
Finally, during cross-examination by counsel for appellees, Harold McClintock, Sanders’ job superintendent, testified he was satisfied with the work performed by Birks. Then on redirect appellant’s counsel attempted to inquire of McClintock regarding specific instances of Birks’ previous operation of the backhoe to rebut McClintock’s testimony. Again the court restrained inquiry about Birks’ prior negligence.
Generally, prior instances which tend to show a person’s character with respect to care or skill are inadmissible to prove the quality of his or her conduct on a specified occasion. K.S.A. 60-448. Here, however, appellant argues evidence of Birks’ prior carelessness was offered to show Sanders was negligent in supervising its employees.
Appellee responds that despite the possible merit of appellant’s argument he has failed to comply with the requirements of the Kansas Code of Civil Procedure. K.S.A. 60-405 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reserved, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
See also K.S.A. 60-243(c).
Even though appellant made no formal proffer of evidence to show the expected answer of the witnesses questioned, the argument on the motion in limine coupled with the in-court colloquy fully set out appellant’s position. Given the liberal construction to be accorded our rules of civil procedure, (K.S.A. 60-102), this was sufficient to satisfy the statutes. The trial court erred in excluding the evidence. The prejudice resulting from this error is obvious. If the jury had been allowed to attribute Sanders with fault for negligently supervising Birks, the fault of McKee, from whom McGraw could recover nothing more, might have been reduced.
Appellant’s argument regarding the trial court’s failure to instruct on the theory Sanders negligently supervised its employees is related to the previous issue. Generally, a party is entitled to an instruction explaining his theory of the case where evidence is introduced in support thereof. Shawnee Township Fire District v. Morgan, 221 Kan. 271, 277, 559 P.2d 1141 (1977). Here appellee again argues because the trial court allowed no testimony regarding prior- conduct and because appellant made no formal proffer to such testimony there was no evidence to support the proposed instruction. Although appellant’s main target was Birks, the pretrial order lists Sanders’ negligence as an issue. We hold the pleadings together with appellant’s proffered evidence are sufficient to entitle him to an instruction on his theory of the case.
Finally, appellant argues the trial court erred in refusing to instruct the jury that a defendant seeking to reduce its percentage of fault by comparing the fault of a party joined pursuant to K.S.A. 60-258a(c) has the burden to prove specific acts of negligence on the part of the joined party by a preponderance of the evidence.
One of the instructions appellant proposed to the trial court stated:
“The défendants have the burden to prove that their claims of fault on the part of the plaintiff and Robert E. McKee, Inc., are more probably true than not true.”
The trial court refused to give the instruction as proposed. Instead it deleted the reference to Robert E. McKee, Inc., resulting in a jury instruction which informed the jurors the defendants only had to prove their claims of fault on the part of the plaintiff were more probably true than not.
As previously noted, a party is entitled to an instruction explaining his theory of the case where evidence is introduced in support thereof. The trial judge, in turn, has the duty to instruct the jury with regard to the law governing the theories raised by the parties. See Garrison v. Marlatt, 224 Kan. 390, 580 P.2d 885 (1978).
This problem is a matter of law.. Discussion of the issue is best premised by an examination of the Kansas comparative fault statute, K.S.A. 60-258a. That statute provides in pertinent part:
“(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action, shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent’s wrongful death, the negligence of the decedent, if any, shall be imputed to such party.
“(c) On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.
’‘(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of his or her causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.”
The purpose of this statute is “to impose individual liability for damages based on the proportionate fault of all parties, to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.” Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867 (1978).
The specific portion of the statute relevant to the case at bar is subsection (c). That provision evidences a legislative intent to allow a defendant to force comparison of his fault with that of a third party. Kennedy v. City of Sawyer, 228 Kan. 439, 460, 618 P.2d 788 (1980). Formal joinder, however, is not a necessary prerequisite to effecting comparison of fault. Brown v. Keill, 224 Kan. at 205-07. Subsection (c) operates merely to prevent the plaintiff from defeating proportionate liability by suing only one defendant when more than one party was arguably at fault. As such it “benefits only the defendant through potential reduction of the percentage of fault attributable to him rather than benefiting the plaintiff through increased recovery. Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 189, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982).
The extent of the burden faced by a defendant who joins additional parties pursuant to K.S.A. 60-258a(c) is a question of first impression for this court. Such a defendant’s burden with regard to the plaintiff, however, is undisputed. Both parties agree, and the trial court so instructed, that when a defendant in a negligence case claims the plaintiff was at fault he has the burden to “prove that [his] claims of fault on the part of the plaintiff are more probably true than not true.” PIK Civ. 2d 6.01 (1977). This is true because such a defense constitutes an affirmative defense pursuant to K.S.A. 60-208(c), which states:
“In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”
The purpose the requirement set out in this statute is to give the opposing party notice of the plea and a chance to argue, if he can, why such a defense is inappropriate. Blonder-Tongue v. University Foundation, 402 U.S. 313, 350, 28 L.Ed.2d 788, 91 S.Ct. 1434 (1971) (discussing Fed. R. Civ. Proc. 8(c), which is similar to K.S.A. 60-208(c).
The question here involves the position occupied by a defendant who, pursuant to K.S.A. 60-258a(c), joins another party whom he claims contributed to the plaintiff s injuries. Appellant argues such a defendant must operate under the same burden as the defendant who claims the plaintiff was partially or entirely at fault. This makes sense. The defense that a “phantom party” contributed to the plaintiff s injuries is arguably a “matter constituting an avoidance” and as such the defendant offering the argument would be procedurally in the same position as if he were claiming the plaintiff was negligent. See Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 458 (10th Cir. 1982). This is also in line with the general rule that the “burden of proof on any point is upon the party asserting it . . . .” In re Estate of Wright, 170 Kan. 600, 604, 228 P.2d 911 (1951). Thus the defendant would have the burden to plead and prove his claims. Since the standard in all but a few specifically excepted civil cases is a preponderance of the evidence, the defendant would have the burden to prove his claims were more probably true than not.
On the other hand, a party joined pursuant to K.S.A. 60-258a(c) occupies a different position than does an ordinary defendant. As the court stated in Ellis, 231 Kan. at 190, petitions filed pursuant to this statute do not alone state a claim for recovery. This observation points to the unique status of the party joined pursuant to K.S.A. 60-258a(c). Plaintiff cannot recover against him without at least amending the petition. The joined party, on the other hand, cannot file counterclaims or cross-claims. He is not normally represented by counsel and thus does not present evidence. In short, he is merely a spectator albeit with a ringside seat. The focus of this analysis, however, is misplaced. The central figure here is the original defendant, not the joined party. The defendant’s burden of proof is the issue. The fact the K.S.A. 60-258a(c) party occupies a different position should not change the defendant’s burden to prove his claims by a preponderance of the evidence. We hold a defendant who seeks to reduce his percentage of fault by comparing the fault of a party joined pursuant to K.S.A. 60-258a(c) has the burden of proving the joined party’s fault by a preponderance of the evidence. Thus a plaintiff is entitled to an instruction accordingly on burden of proof. It was error not to give the requested instruction.
The prejudice of the trial court’s error is obvious. If the jury were aware of Sanders’ burden it might not have been so likely to find McKee at fault. Presumably, the less fault attributed to McKee, the more fault attributed to Sanders, thereby increasing plaintiff s recovery. .
The judgment of the trial court is reversed and this case remanded for a new trial consistent with this opinion.
Schroeder, C.J., concurs. | [
-44,
104,
-103,
-52,
12,
-21,
42,
26,
113,
-91,
-27,
95,
-49,
-123,
13,
99,
-13,
61,
64,
43,
119,
-93,
3,
-30,
-126,
115,
-15,
-59,
-71,
79,
-76,
-41,
72,
112,
10,
-107,
-26,
2,
85,
84,
-118,
20,
58,
-30,
121,
0,
60,
122,
-12,
71,
17,
-116,
114,
40,
28,
-49,
44,
46,
-5,
44,
81,
-15,
-54,
5,
93,
21,
-93,
6,
-98,
71,
-36,
28,
-112,
-72,
0,
-88,
114,
-90,
-45,
-11,
99,
-101,
12,
99,
98,
34,
-103,
-59,
-24,
-72,
15,
-34,
-115,
-89,
-71,
24,
49,
9,
-74,
-99,
114,
22,
4,
-2,
-26,
29,
95,
45,
-125,
-113,
-48,
-47,
15,
32,
-34,
-117,
-17,
3,
50,
116,
-49,
-94,
95,
71,
114,
31,
31,
-104
] |
The opinion of the court was delivered by
Miller, J.:
This is a breach of contract action brought by the Ottawa Education Association (OEA) against the Board of Education of Unified School District No. 290, Ottawa, Kansas (the Board), for a declaratory judgment, temporary and permanent injunction, and mandamus. The trial court sustained the Board’s motion to dismiss for failure to state a claim upon which relief can be granted; OEA appeals. The principal issue is whether certain provisions of a negotiated agreement between OEA and the Board, relating to the reduction of the teaching staff, violates any provisions of the teachers’ contracts statutes, K.S.A. 72-5401 to 72-5446.
The parties entered into a negotiated agreement for the 1981-1982 school year. Article XIII of that agreement sets forth procedures to be followed for reducing the teaching staff due to declining enrollment or declining revenues. Briefly stated, the article requires the administrative staff first to determine the number of teachers needed for the ensuing year. If a reduction is necessary, it is to be achieved, if possible, through “normal attrition” at all grade levels. If further reduction is necessary, school principals for kindergarten through sixth grade are to submit the names of one or two teachers for consideration, and junior and senior high department heads are similarly to submit names for consideration. If further reduction is necessary, the determination of who shall be affected shall be made by an evaluation committee made up of three persons selected by the. Board and three by the OEA. Any teacher who may be affected by the proposed staff reduction is to be given notice by April 1 that his or her position has been terminated pending a decision of the evaluation committee. Affected teachers desiring to stay must submit a merit folder to the superintendent’s office by not later than May 1 and the committee must make its report promptly thereafter. The committee is to review the merit folders of each teacher, determine which teachers are best suited for reemployment, and submit its report to the superintendent who then passes the recommendation on to the Board. Teachers affected are to be notified of the decision of the evaluation committee on or before May 15. The Board then makes the final decision.
While this agreement was in effect, the Board became aware that the number of pupils for the following year would be smaller and therefore a reduction in the teaching staff was necessary. On March 8, 1982, the Board met and voted not to renew the contracts of ten nontenured or probationary teachers. Notice of the intent not to renew was given to the ten teachers affected. On March 15, 1982, the Board unanimously passed a motion resolving to nonrenew the ten teachers’ contracts, and caused notice of such resolution to be sent to those teachers. The procedures for reduction of the teaching staff set forth in Article XIII of the negotiated agreement were not followed.
The OEA filed its petition in this action on March 25, 1982, and on April 1, 1982, filed an amended petition. It states many of the facts given above and seeks judgment declaring that Article XIII of the agreement applies to all teachers (including those without tenure) employed by USD No. 290, declaring the Board’s action to be a violation of that article, and for temporary and permanent orders enjoining the Board from breaching the provisions of Article XIII, and an order in the nature of man damus directing the Board to reinstate the ten teachers. An answer was filed April 12, 1982, including an allegation that the petition fails to state a claim upon which relief can be granted. The Board later filed a motion to dismiss for failure to state a cause of action. That motion was argued and sustained by the court on April 29, 1982, and the case was dismissed with prejudice. This appeal followed.
We shall first consider the meaning of “attrition” as used in the agreement. At the hearing on the motion to dismiss, both counsel indicated to the court that, as used in the agreement, the term referred to the reduction of employee staff through voluntary resignations or retirement as opposed to involuntary retirement or the nonrenewal of current employees. The trial court, however, concluded that normal “attrition” includes the process of nonrenewing nontenured teachers. We disagree. Webster’s Seventh New Collegiate Dictionary (1969), as well as later editions of Webster’s New Collegiate Dictionary (1976) and (1977), define attrition as “a reduction (as in personnel) chiefly as a result of resignation, retirement or death.” The word is frequently used in connection with personnel matters, and carries the connotation of voluntary or natural reduction in the number of employees, rather than reductions created by action of the employer such as discharge or failure to renew. We conclude that the trial court erred when it included nonrenewal of nontenured teachers within the scope of the meaning of normal attrition. This error, however, is not determinative of the case.
The next and determinative issue is whether Article XIII conflicts with any of the provisions of the teachers’ contracts statutes, K.S.A. 72-5401 et seq. We conclude that it does.
K.S.A. 72-5410, -5411 and -5412 make up the teachers’ continuing contract law. Section 5411 provides in part that all teachers’ contracts “shall be deemed to continue for the next succeeding school year unless written notice of intention to terminate the contract is served by the board of education upon any teacher on or before the fifteenth day of April . . . .” (Emphasis supplied.) Similarly, K.S.A. 72-5437, a part of the due process procedure act, provides in part that: “All contracts of employment of teachers . . . shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served as hereinafter provided. Written no tice . . . of intention to nonrenew a contract shall be served by a board upon any teacher on or before the fifteenth day of April.” Under these statutes, it is clear that the Board was bound to make a determination of which teachers were to be nonrenewed and to give those teachers notice of nonrenewal on or before April 15; otherwise, the teachers would have continuing contracts for the ensuing school year.
Article XIII of the agreement does not speak specifically about notices to terminate or to nonrenew. It requires an April 1 notice to the teacher that the teacher’s position has been terminated pending a decision of the evaluation committee. It then requires a submission of a merit folder by May 1 of teachers who wish to be considered for future employment, an evaluation by the committee by May 15, notice to the teachers affected of that decision by May 15, and a final decision by the board thereafter.
The purpose of this Article is to give the teachers, through the OEA, an opportunity to have some input into the decision-making process, a voice in the determination of which teachers will be retained and which will be released, either by nonrenewal or by termination, when a reduction in the teaching staff is required. The recommendation, however, comes thirty days too late; the Board must determine which particular teachers are to be terminated or nonrenewed and must give those persons notice of termination or nonrenewal by April 15. If the Board delays that decision until after May 15, it loses its chance to reduce its teaching staff.
Appellant argues that the April 1 notice that a teacher’s position is being terminated is not the equivalent of notice of intent not to renew. We agree. But appellant also points out that if a teacher is given notice that his position is being terminated but is not notified that his contract is being nonrenewed, “the teacher may safely assume that he will be transferred to another position within the district.” This is also true. But notification that a position is being terminated, without an accompanying notice of nonrenewal of contract, does not effect a reduction in the size of the teaching staff. Under the quoted statutes, the Board is required to serve notice of termination or nonrenewal by April 15, and in order to do that it must determine which teachers to terminate or nonrenew prior to that date. The Board could have given notice of nonrenewal or termination by April 15 to a large group of teachers and then awaited the May 15 report of the evaluation committee before determining which teachers should be retained and which should be terminated; but this procedure would leave the affected teachers, the affected departments and the Board in limbo for another month. Such an alternative is not realistic, surely was not contemplated, and is certainly not beneficial to the teachers, the school system, the Board, or the public.
The purpose of the continuing contract law is to eliminate uncertainty and possible controversy regarding the future status of a teacher and a school with respect to the teacher’s continued employment. Krahl v. Unified School District, 212 Kan. 146, Syl. ¶ 2, 509 P.2d 1146 (1973). Article XIII of the agreement has the effect of preventing the fulfillment of this statutory objective.
If wholesale notices of nonrenewal or termination are given by the Board prior to April 15, in order to give meaningful effect to the provisions of Article XIII providing for participation of the teaching staff in the decision of who to retain and who to release, a large' number of teachers are left in limbo not knowing if their contracts are to be renewed. If the Board, as it did here, selects the teachers whom it wishes to nonrenew, then there can be no meaningful application of Article XIII since the ultimate decision has already been made. Surely Article XIII does not contemplate that the Board will wait until after May 15 to give notice of nonrenewal or termination, for the Board cannot contract to vary the terms of the applicable continuing contract statutes. Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, Syl. ¶ 5, 627 P.2d 335 (1981).
We conclude that the Board was fully authorized by statute to give the notices of nonrenewal which it issued prior to April 15, 1982. The provisions in the negotiated agreement conflict with the purposes of the statutory scheme and are therefore ineffective and void.
Other issues raised have not been overlooked, but need not be determined in view of our disposition of the case. For the reasons stated, we hold that the trial court was correct in sustaining the motion to dismiss. The judgment is affirmed. | [
-110,
-24,
-47,
-84,
12,
99,
122,
-110,
57,
-13,
39,
83,
109,
-69,
21,
123,
-105,
109,
-48,
107,
-46,
-77,
114,
74,
-90,
-45,
-15,
-51,
-69,
126,
-76,
95,
74,
48,
-54,
-43,
-122,
-62,
-55,
84,
-118,
38,
-119,
-38,
-2,
-25,
56,
47,
-70,
11,
48,
-118,
-13,
44,
24,
71,
-20,
58,
-7,
33,
4,
-79,
42,
-107,
111,
18,
-77,
32,
-98,
5,
-40,
110,
-104,
49,
9,
-4,
50,
-26,
-58,
52,
53,
41,
8,
99,
102,
67,
-76,
-57,
-108,
-56,
46,
123,
-83,
102,
-109,
24,
98,
13,
-106,
-100,
116,
20,
1,
126,
-29,
5,
31,
36,
-106,
-126,
-20,
-109,
95,
105,
-102,
11,
-21,
3,
49,
81,
-120,
-90,
95,
-63,
50,
-105,
126,
-103
] |
The opinion of the court was delivered' by
Herd, J.:
This is an appeal from the trial court’s order granting summary judgment in favor of the city of Olathe with regard to an annexation controversy.
This is our third look at this case. The facts are undisputed. Pursuant to a petition from David Miller requesting his property be annexed to the city, on June 4,1979, the city of Olathe passed Ordinance No, 844 annexing the property. Miller’s petition described the property as follows;
“The East half of the Northwest quarter of Section 18, Township 13 South, Range 24 East, Johnson County, Kansas.” (Emphasis added.)
Ordinance No. 844 mistakenly described the land as follows:
“The East half of the Northwest quarter of Section 18, Township 14 South, Range 24 East, Johnson County, Kansas.” (Emphasis added.)
On June 5, 1979, Ordinance No. 844 was published in the official newspaper containing the reference to Township 14 instead of Township 13.
On June 5,1979, the city of Olathe, pursuant to a petition from George and Nelda Meredith requesting their property be annexed to the city, passed Ordinance No. 845 annexing that property. The ordinance correctly described the property as follows:
“The NW 'A, the SW 14 of the NE lA, the NW 14 of the SW 14 and-the SW lA of the SW 14, all in Section 7, Township 13, Range 24, except that part in road and highway; the SE lA and the S 14 of the S 14 of the NE-14, all in Section 12, Township 13, Range 23, except that part in railroad and road right-of-way, all in Johnson County, Kansas.”
Ordinance No. 845 was published on June 6, 1979.
On June 6, 1979, pursuant to a petition from Josef and Helen Sorkin requesting their property be annexed to-the city, the city of Olathe passed Ordinance No. 855, annexing their property. The Ordinance described the property as follows:
“The North Half of the Northeast Quarter (N 14 NE 14) and the North Half of the South Half of the Northeast Quarter (N 14 S 14 NE 14) of Section Twelve (12), Township Thirteen (13), Range Twenty-three (23); also the Northwest Quarter of the Southwest Quarter (NW 14 SW 14), of Section Six (6), Township Thirteen (13), Range Twenty-four (24); also the South Half of the Southeast Quarter (S 14 SE 14) of Section One (1) Township Thirteen (13), Range Twenty-three (23), except that part thereof lying North and West of the right of way of the Atchison, Topeka and Santa Fe Railway Company.”
Ordinance No. 855 was published on June 9, 1979.
On June 8, 1979, Ordinance No. 844 was republished with the corrected legal description of the land Olathe intended to annex.
The following map illustrates the situation:
KEY:
IA — Ordinance #844 as adopted on 6-4-79 and published on 6-5-79 IB — Ordinance #844 as corrected and published on 6-8-79 (Miller tract)
II —-Ordinance #845, published 6-6-79 (Meredith tract)
III — Ordinance #855, published 6-9-79 (Sorkin tract)
On June 8, 1979, the city of Lenexa filed suit challenging the annexations. In September of 1979, the district court dismissed the case and Lenexa appealed to the Supreme Court. In City of Lenexa v. City of Olathe, 228 Kan. 773, 620 P.2d 1153 (1980) (Lenexa I), filed December 6,1980, the Supreme Court affirmed. There the court held:
“[WJhere a dispute arises as to the annexation of land which adjoins a city the only interested parties to the controversy are the city and the owner of the land which has been proposed for annexation. Other incorporated cities in the county do not have standing to challenge a proposed annexation where the land adjoins the city and the owner of the land consents to the annexation.” 228 Kan. 773, Syl. ¶ 2.
Subsequently, the Supreme Court granted a rehearing of the matter and in an opinion filed March 12, 1981, reversed and remanded. City of Lenexa v. City of Olathe, 229. Kan. 391, 625 P.2d 423 (1981) (Lenexa II). There the court noted that at the time the original opinion was filed it had erroneously assumed there was no dispute regarding the question of whether tracts II and III adjoined the city of Olathe. Lenexa had, in fact, disputed this. It claimed tract IB was not legally annexed at the time of the incorrect publication. Accordingly, the court remanded the case to the district court for a determination of whether tracts II and III “were adjoining the city at the time of their attempted annexation by the city of Olathe and, if not, whether the city of Olathe complied with all applicable statutory requirements.” 229 Kan. at 392-93.
On remand the district court held that despite the misdescription of the property, the city of Olathe had substantially complied with all statutory requirements and tract IB had been effectively annexed'at the time tracts II and III were annexed. Further, the court said, since tract IB was legally annexed the annexation of tracts II and III was effective. The city of Lenexa has appealed. (It should be noted in the meantime Lenexa attempted to annex the same land. The Board of County Commissioners of Johnson County, however, denied Lenexa’s petition to annex. This decision was recently upheld by the Supreme Court. See In re Appeal of City of Lenexa, 232 Kan. 568, 657 P.2d 47 [1983].)
Appellant first argues the trial court erred in holding Olathe had substantially complied with K.S.A. 12-519 et seq. in annexing tract IB. An examination of the relevant statutes will help resolve this issue.
K.S.A. 12-520 outlines the conditions which permit a city to annex land. That statute states in pertinent part:
“Except as otherwise hereinafter provided, the governing body of any city may by ordinance annex land to such city if any one or more of the following conditions exist:
“(g) The land adjoins the city and a written petition for or consent to annexation is filed with the city by the owner.”
As was noted in the two previous cases bearing the same name as the present one, under this statute the only interested parties to the controversy are the city and the owner of the land which has been proposed for annexation. 228 Kan. 773, Syl. ¶ 2; 229 Kan. 391.
K.S.A. 12-520c governs the procedure for annexation of land not adjoining the city. That statute provides:
“(1) The land is located within the same county as such city;
“(2) The owner or owners of the land petition for or consent in writing to the annexation of such land; and
“(3) The board of county commissioners of the county find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county.
“(c) Whenever the governing body of any city deems it advisable to annex land under the provisions of this section such governing body shall by resolution request the board of county commissioners of the county to make a finding as required under subsection (a)(3) of this section. The city clerk shall file a certified copy of such resolution with the board of county commissioners who shall, within thirty (30) days following the receipt' thereof, make findings and notify the governing body of the city thereof. Such findings shall be spread at length upon the journal of proceedings of said board. The failure of such board to spread such findings upon the journal shall not invalidate the same.”
K.S.A. 12-523 provides annexation ordinances shall take effect “on publication as provided by law.”
Lenexa’s argument is in three parts; (1) The city of Olathe attempted to annex tracts II and III pursuant to K.S.A. 12-520(g) which requires properties to be annexed must adjoin the annexing city. Tracts II and III were dependent for contiguity to the city of Olathe through tract IB; (2) the misdescription in Ordinance No. 844 and its subsequent publication June 5, 1979, was fatal to the annexation of tract IB. Tract IB was thus not effectively annexed until the correct publication on June 8, 1979; (3) the ordinances annexing tracts II and III were adopted on June 5, and 6, 1979. Because this was before the effective date of the annexation of tract IB, tracts II and III were not adjoining the city of Olathe at the time these ordinances were adopted. Thus, the only legal way to annex them would have been to follow K.S.A. 12-520c, which governs annexation of nonadjoining land. Both parties agree this was not done.
The city of Olathe, on the other hand, argues tract IB was legally annexed when Ordinance No. 844 was published on June 5, 1979, because the city had substantially complied with the requirements set out in the annexation statutes, K.S.A. 12-519 et seq.
In reviewing an annexation decision by a municipality the function of the court is to determine whether the municipality has statutory authority to act and has acted in accordance with that authority. The test of the municipality’s action is one of substantial compliance. Clarke v. City of Wichita, 218 Kan. 334, 348, 543 P.2d 973 (1975); Grandon v. City of Hutchinson, 6 Kan. App. 2d 896, Syl. ¶ 1, 636 P.2d 205 (1981), rev. denied 230 Kan. 817 (1982).
The question for this court’s determination, then, is whether the city of Olathe substantially complied with the requirements of K.S.A. 12-519 et seq. in annexing tract IB. If it did, the annexation of tract IB was effective and, assuming for the moment tract II “adjoins” tract IB, so was the annexation of tracts II and III. “Substantial compliance,” according to this court, refers to “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” Sabatini v. Jayhawk Construction Co., 214 Kan. 408, Syl. ¶ 1, 520 P.2d 1230 (1974).
The general purpose of the annexation statutes is to protect the rights of landowners against unilateral action by a city in annexing their land. Clarke v. City of Wichita, 218 Kan. at 348; Grandon v. City of Hutchinson, 6 Kan. App. 2d at 899. Because all the land involved here was land which the owners petitioned the city to annex, this general objective has been served. If that were the only objective the publication requirement in K.S.A. 12-523 would be redundant. However, the publication requirement is there. It can be assumed the legislature intended publication to be of some importance and not merely a useless or meaningless act when it passed K.S.A. 12-523. Herd v. Chambers, 158 Kan. 614, 628, 149 P.2d 583 (1944).
“Publication” refers to “An advising of the public; a making known of something to them for a purpose.” Regarding the publishing of ordinances publication means “printing or otherwise reproducing copies of them and distributing them in such a manner as to make their contents easily accessible to the public.” Black’s Law Dictionary 1463-64 (3rd ed. 1933). The definition réveals the purpose behind the publication requirement. The objective of K.S.A. 12-523 is to inform the public of the city boundaries as a result of annexation. Thus, for publication of an annexation ordinance to properly serve its purpose the public must be accurately informed of what land is to be annexed.
Ordinance No. 844, as published, informed the public the city of Olathe planned to annex certain property in Township 14, Range 24, in Johnson County. The city’s intention was, in fact, to annex land in Township 13. This mistake was no ordinary typographical error in spite of which the public could have ascertained the city’s true intent. The property in Township 14 was a piece of land which could have been annexed had the proper procedures been followed. The public had no way of knowing from reading the ordinance an error had been made.
The power of a municipality to alter its boundaries by annexation is completely controlled by statute. State, ex rel., v. City of Kansas City, 186 Kan. 190, 198, 350 P.2d 37 (1960). K.S.A. 12-523 requires a city to publish annexation ordinances. We hold the attempted annexation of tract IB did not substantially comply with the statute.
Since the annexation of tract IB was not effective until the second publication of Ordinance No. 844 on June 8, 1979, tracts II and III were not adjoining the city of Olathe at the time of their attempted annexation. As a result, their annexation was likewise ineffective. See, e.g., State, ex rel., v. City of Overland Park, 215 Kan. 700, 717, 527 P.2d 1340 (1974).
This leaves as a final issue for our determination whether tract II adjoins tract IB. Appellant argues “adjoins”, under K.S.A. 12-520(g), requires contiguity with the city boundary of a “substantial nature” because the land requirements for providing services to an annexed area would require more than mere touching. In support it cites several out-of-state cases. In settling the question, we need look no further than Kansas law. K.S.A. 12-519(d) provides: “‘Adjoins’ means to lie upon or touch (1) the city boundary line.” Also, in State, ex rel., v. Bunton, 141 Kan. 103, 40 P.2d 326 (1935), we spoke to the issue in Syllabus ¶ 1, stating: “The word ‘adjoining’ as used in R.S. 1933 Supp. 72-605 has its usual and ordinary meaning, that of being contiguous or touching.” See also Smith v. City of Garden City, 6 Kan. App. 2d 826, 635 P.2d 1271 (1981). It is well settled words in common usage should be given their natural and ordinary meaning in construing a statute. Coe v. Security National Ins. Co., 228 Kan. 624, 630, 620 P.2d 1108 (1980); Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972 (1980). It is undisputed tract II touches tract IB at one point. We hold tract II and tract IB are adjoining tracts.
The judgment of the trial court is reversed. | [
-80,
108,
-15,
-115,
-70,
-64,
48,
-99,
72,
-79,
-74,
83,
11,
-40,
17,
121,
22,
61,
-44,
113,
68,
-73,
71,
-61,
-78,
115,
-13,
-44,
-78,
92,
-26,
-42,
75,
1,
75,
-99,
-58,
-22,
-109,
-36,
-36,
7,
-119,
80,
-53,
0,
60,
41,
56,
-118,
81,
42,
-13,
45,
24,
-29,
-24,
44,
-37,
45,
11,
-8,
-1,
87,
93,
10,
1,
2,
-120,
-121,
-64,
-118,
-112,
57,
32,
-8,
119,
-94,
-106,
-28,
21,
-101,
12,
110,
99,
65,
92,
-17,
-96,
-104,
14,
122,
-99,
103,
-106,
24,
106,
32,
-106,
-99,
117,
82,
7,
-2,
-21,
5,
29,
104,
-117,
-114,
-96,
27,
-49,
112,
2,
67,
-29,
-57,
32,
112,
-63,
38,
76,
-60,
50,
-101,
-97,
-40
] |
The opinion of the court was delivered by
Lockett, J.:
Early in 1974 Haysville School District No. 261 discovered that two elementary school buildings needed reroofing. Carmichael-Wheatcroft & Associates, P.A. (architects) were retained by the school district to determine the extent of repairs required in the repair of the two school building roofs. The architects prepared the specifications which included use of products manufactured by W. R. Grace & Company and GAF Corporation. The architects requested bids from contractors, requiring the bids to be submitted by June 19,1974, at 2:00 p.m. July 8, 1974, the contracts for reroofing were entered into between the school district and Ruckley Roofing Company, Inc. (roofing contractor).
December 3, 1974, just prior to completion of the reroofing, the school district and GAF entered into two “Inspection and Service Guarantees.” December 6, 1974, the roofing contractor completed work on the roof except for a few repair items that required warm weather, which were completed in April, 1975.
After installation of the new roofs, cracks appeared in both of the elementary school building roofs. The school district alleged that the cracks were caused by inadequate and defective materials provided by GAF. The school district contacted GAF and requested repairs to both of the leaking roofs. GAF denied liability under the contract with the school district. The school district incurred substantial repair bills and suffered interior damage to the school buildings which it alleged was caused by water penetrating the outer roof membrane. The school district sued GAF in May, 1980, on several fault-based theories, including breach of warranties under the Uniform Commercial Code, negligence and fraud. In addition, the school district alleged breach of the inspection and service guarantees between it and GAF. The school district made no claim against GAF or any other individual involved in the repair of the roof for faulty installation.
GAF joined as third-party defendants (K.S.A. 60-214) the architects, the roofing contractor and the manufacturer of the lightweight concrete insulating material on which the roofs were placed, W. R. Grace & Company (Grace). GAF alleged the third-party defendants primarily were responsible for the damages and GAF was entitled to indemnity for any judgment the plaintiff school district might obtain.
The inspection and service guarantees were produced during discovery. The guarantee contracts between the school district and GAF allegedly were entered into after GAF oversaw and inspected insulation of the roofing membranes of the two schools. The contracts between GAF and the school district are reproduced as follows:
Both inspection and Service Guarantees are identical and only one is reproduced.
After the two inspection and repair contracts were produced during discovery, the third-party defendants filed their motions for summary judgment on GAF’s third-party claims for indemnity based upon the inspection and service guarantees. GAF admitted it had no legal theory for recovery of damages from the third-party defendants except as may arise by reason of its inspection and service guarantees between GAF and the school district.
The district court granted the motions for summary judgment and found that the inspection and service guarantees created neither a legal relationship between GAF and the third-party defendants nor an implied cause of action against them. The district court found as follows:
“A. No legal relationship exists between the defendant GAF Corporation and the third-party defendants by reason of the inspection and service contract between GAF corporation and the plaintiff Haysville Unified School District No. 261; the Court further finds that GAF Corporation as third-party plaintiff has no implied cause of action against any other third-party defendants.
“B. The court finds that any liability GAF might have to the plaintiff under the inspection and service contract between GAF Corporation and the plaintiff is not for conduct claimed to have been done by any of the third-party defendants.”
GAF moved the court to reconsider the dismissal of its third-party claims for indemnity based on the guarantee agreements. The court denied the motion and permission was granted to take this interlocutory appeal. On September 9, 1982, the Court of Appeals granted the defendant GAF’s application for permission to take an interlocutory appeal pursuant to K.S.A. 60-2101(fe). Further proceedings in the appeal were stayed until the decision of the Kansas Supreme Court on rehearing in Ellis v. Union Pacific R. R. Co., 231 Kan. 182, 643 P.2d 158, aff'd 232 Kan. 194, 653 P.2d 816 (1982). On October 6, 1982, the case was transferred from the Court of Appeals to the Kansas Supreme Court.
In the original specifications for reroofing, the architects included a requirement that the roofing contractor provide a 10-year inspection and service guarantee program (with a 10-year renewable option) equal to the GAF Sentinel System. GAF has not alleged that the inspection and service' guarantees signed December 3, 1974, between the school district and GAF were the agreements required to be included in the roofing contractor’s bid. The third-party defendants allege, and GAF has not denied, that the guarantee agreements entered into December 3, 1974, were separate agreements between the school district and GAF.
The school district sued GAF under two types of theories: (1) fault-based theories (tort), and (2) a breach of inspection and service guarantees between the school district and GAF (contract). The school district made no claim against GAF or any other party for faulty installation.
Under the fault theory, the school district originally sued GAF. GAF answered the school district’s petition and was allowed to join as defendants the architect, the roofing contractor and Grace pursuant to K.S.A. 60-258a(c), which states:
“On motion of any party against whom a claim is asserted for negligencé resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.”
The school district did not amend its petition to include a claim against the added defendants on the fault theory as allowed by K.S.A. 60-220(a), which states in part:
“A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.”
The school district allowed the statute of limitation on the fault theory (tort) against the third-party defendants to expire. The school district therefore has no claim against the architect, roofing contractor and Grace under the fault theory (tort). By suing one defendant, the plaintiff knows under a fault-based theory that he will recover only the percentage of damages for which GAF is responsible. After GAF’s joinder of the architect, roofing contractor and Grace for purposes of comparison of fault, the plaintiff in this action was aware of the identity of the joined parties, the allegations of negligence attributed to each, and how such allegations, if proven, could affect the recovery from the original defendant at trial. The school district determined to proceed to trial against only GAF. The school district did not attempt to amend the petition to include claims against the third-party defendants before or after the running of the statute of limitation.
The trial court correctly determined that the school district had stated no fault-based claim (tort) against the architect, roofing contractor or Grace, and dismissed them as defendants. The trial court further ruled GAF would only be responsible for its proportionate share of damages under the school district’s fault claim (tort) (as stated in Ellis v. Union Pacific R. R. Co., 231 Kan. 182). Neither the school district nor GAF appealed that ruling by the court.
The school district’s second theory of recovery contained in its petition was for a breach of the inspection and service guarantees (contract) entered into between the school district and GAF. GAF joined the architect, roofing contractor and Grace as third-party defendants. K.S.A. 60-214(a) states:
“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and the third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff s claim as provided in K.S.A. 60-212 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in K.S.A. 60-213. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff s claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in K.S.A. 60-212 and his counterclaims and cross-claims as provided in K.S.A. 60-213. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.”
After the production of the GAF inspection and service guarantee agreements, the third-party defendants filed motions for summary judgment. GAF admitted its only theory of recovery against the third-party defendants for damages was indemnity arising by reason of the service and guarantee agreements between GAF and the school district. The court found the relationship between GAF and the school district was contractual and the third-party defendants were not parties to the contracts between GAF and the school district. The court determined that implied comparative indemnity is not applicable in a contract action.
The Kansas comparative negligence statute, K.S.A. 60-258a, allows a party in a civil action to recover damages for negligence which results in death, personal injury or property damages. The award of damages is diminished in proportion to the amount of negligence attributed to such party. The comparative negligence concept comes as a result of a desire to soften the harsh “all or nothing” rule of common law contributory negligence.
The concept of joint and several liability between joint tortfeasors which previously existed in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer needed in such cases because separate individual judgments are to be rendered. Kennedy v. City of Saywer, 228 Kan. 439, Syl. ¶ 3, 618 P.2d 788 (1980). We compare negligence under three theories: (1) common law negligence, (2) strict liability, and (3) implied warranty. Those actions brought under implied warranty are more akin to an action in tort than one in contract. 228 Kan. at 451. The statutory adoption of comparative negligence in Kansas has had the effect of abrogating the concept of indemnification based on the dichotomy of active/passive negligence. Russell v. Community Hospital Association, Inc., 199 Kan. 251, Syl. ¶ 3, 428 P.2d 783 (1967). In actions where comparative negligence is an issue, the court deals in percentages of causal responsibility, and distinctions between primary, secondary, active and passive negligence lose their previous identities. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the all or nothing concept is no longer valid. Kennedy v. City of Sawyer, 228 Kan. 439, Syl. ¶ 6.
There are two traditional situations in which claims of indemnity are allowed. The first occurs where there is an expressed contract of indemnity, such as a “hold harmless” agreement. The second occurs where a contract of indemnity may be implied when one is compelled to pay what another party ought to pay. The implied or constructive liability usually arises when one personally, without fault, is made to pay for a tortious act of another. The person paying has a right of action against the person at fault.
The question here is whether GAF’s guarantee to the school district creates potential liability on behalf of the third-party defendants. GAF voluntarily contracted under specified conditions to pay for repairs to the roofs of the two schools. GAF does not claim the third-party defendants are parties to the contracts, or that the third-party defendants had agreed to be bound by the contracts between GAF and the school district either before or after the contracts were negotiated. GAF predicates its third-party claim on a contract in which the third-party defendants are not parties. GAF is attempting to apply comparative negligence/implied comparative indemnity principles to breach of contract claims.
If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 845, 610 P.2d 1107 (1980). The school district claims GAF breached its inspection and service guarantee contracts to pay for repairs to the roofs, and damages resulting from leaks in the roof. The use of the comparative negligence theory is not proper in breach of contract actions. The school district’s claim under the contracts was for pure economic relief sought for GAF’s breach of those contracts.
In Broce-O’Dell Concrete Products, Inc. v. Mel Jarvis Constr. Co., 6 Kan. App. 2d 757, 634 P.2d 1142 (1981), the Court of Appeals determined comparative negligence principles did not apply to breach of contract cases. Plaintiff, Broce-O’Dell, a supplier of concrete mix, sued defendant Mel Jarvis Construction for payment due for concrete supplied by plaintiff to defendant to construct concrete grain storage cylinders at an elevator. During construction, it was discovered that the concrete at the base of the cylinders was not properly setting. It was necessary to tear down the portion of the cylinders that had been completed and to rebuild. When Broce instituted an action for its unpaid concrete bill, Jarvis counterclaimed for the actual cost of tearing down and rebuilding the cylinders to the same level. Jarvis claimed that the concrete supplied by Broce was defective. The jury found for Jarvis.
Broce’s first claim of error was the trial court’s refusal to instruct the jury on comparative negligence under PIK Civ. 2d 20.01 and 20.02. The Court of Appeals reasoned:
“Our comparative negligence statute, K.S.A. 60-258a reads:
“ ‘(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made . . . .’ Emphasis added.
“The decisions construing our comparative negligence statute have a common thread running through them — all involved death, personal injury or property damage. No case applies the statute to purely economic loss resulting from a breach of contract.
“Although Kansas interjects comparative negligence principles into areas which ‘previously were considered beyond the ordinary tort negligence situation’ (Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788 [1980]), the court in Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), had qualified the application of the statute by stating:
“ ‘If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply; if contributory negligence would have been a defense, the statute is applicable.’ 227 Kan. at 845. Emphasis in original.
“And see Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan. App. 2d 308, 628 P.2d 239 (1981), rev. denied July 15, 1981. (Comparative negligence applies in nuisance case to the extent the nuisance is based on negligence, based on the availability of contributory negligence as a common law defense.)
“It is well settled that contributory negligence is no defense to a breach of contract. Carter v. Hawaii Transportation Co., 201 F. Supp. 301 (D. Hawaii 1961); Trinity Universal Insurance Co. v. Fuller, 524 S.W.2d 335 (Tex. Civ. App. 1975); Rotman v. Hirsch, 199 N.W.2d 53 (Iowa 1972); 17A C.J.S., Contracts § 525 (1), p. 1018.
“Express warranties are contractual in nature, Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 521 P.2d 281 (1974); Brunner v. Jensen, 215 Kan. 416, 524 P.2d 1175 (1974). The manufacturer’s neligence plays no role, Cantrell v. R. D. Werner Co., 226 Kan. 681, 685, 602 P.2d 1326 (1979). All the plaintiff must show is a failure of performance as warranted — a specific defect need not be proved. Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, Syl. ¶ 2, 571 P.2d 48 (1977). The court in Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P.2d 1210 (1972) concluded in Syl. ¶ 2:
“ ‘Contributory negligence or assumption of risk as normally used are not defenses to an action based on breach of an express warranty; however, an unreasonable use of a product after discovery of a defect and becoming aware of a danger is a defense.’ Emphasis added.
“As to implied warranty, Kennedy v. City of Sawyer, 228 Kan. at 439, expressly held ‘the doctrine of comparative fault or comparative causation should be and is applicable to both strict liability claims and to those claims based on implied warranty in products liability cases.’ Concededly the fact a products liability case is based on implied warranty does not prevent the application of comparative fault principles. This, however, is nota products liability case: There is no claim of injury to person or property from a dangerous product, but only of economic loss through the furnishing of a defective product. Unless a breach of warranty, either express or implied, causes death, personal injury or physical damage to property, the comparative negligence statute does not apply. If the result is simple economic loss, liability and damages are governed by breach of contract principles.
“Of course ‘fault’ does play some part in contract actions in that it may bear on the broader question of damages. One who breaches a contract is liable for damages caused by the breach; he is not liable for damages flowing from other causes whether or not those other causes have the connotations of culpability associated with the term ‘fault.’ In this case it may be said that it was Jarvis’s ‘fault’ that 26 feet of good concrete were poured on top of six feet of bad concrete, even though the decision to pour may have been entirely reasonable. However, the fact that more than half Jarvis’s loss may have been attributable to its own decision should not and does not mean it may not recover that portion of its loss caused by Broce’s breach of contract. The instructions given and verdict reached attained that result and cannot be disturbed.” 6 Kan. App. 2d at 759-61.
GAF entered into the inspection and service guarantees with the school district after GAF had inspected the nearly completed roofing of the two schools. The guarantee contracts covered the roofs for a period of ten years from date of completion. The guarantees covered repairs to the GAF roofing membranes and base flashing as necessary to correct leaks resulting from any of the causes set forth in the guarantee contracts, at no cost to the owner. The guarantees were contracts between two or more persons, founded upon consideration, by which GAF promised to answer to the school district for specific defects set forth in the contracts. GAF’s guarantee contracts are related to the reroofing contract between the school district and the roofing contractor, and are a collateral undertaking between GAF and the school district. The formation of guarantee contracts, like any other contract, is governed by the principles of mutual assent, adequate consideration, definiteness, and a meeting of the minds. GAF does not deny the validity of the inspection and service guarantee contracts.
GAF is, in effect, attempting to apply comparative negligence and implied comparative indemnity, which are tort-based theories, to contract law. The difference between a tort and a contract action is that a breach of contract is a failure of performance of a duty arising under or imposed by agreement, whereas a tort is a violation of duty imposed by law. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 79, 652 P.2d 665 (1982). Where there is a breach of a duty imposed by law (tort) one is allowed to join all wrongdoers, determine the wrongdoers’ proportionate shares of the damages, and require each wrongdoer to pay his own proportionate share of the damages either to the injured party or under proper circumstances to allow a wrongdoer who has paid more than his proportionate share by settlement to the injured party, to recover back from the nonpaying wrongdoers, according to the nonpaying wrongdoers’ percentages of fault.
GAF entered into guarantee contracts with the school district; the third-party defendants are not parties to those contracts. A guarantee is a contract between two or more persons, founded upon consideration, by which one person promises to answer to another for the debt, default or miscarriage of a third person, and in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking. Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 3, 553 P.2d 315 (1976). If GAF is forced to pay under the agreements it has the right of subrogation against those whose fault actually caused the damage to occur to the roofs in a separate action. GAF has a right to substitute itself in the place of the school district.
There are two kinds of subrogation: one which arises under a contract and one that has its origin and basis in equity, legal subrogation. Legal subrogation does not depend upon contract, assignment or privity. Legal subrogation allows one who has paid the debt of another to be substituted in the place of the original creditor.
To entitle a party to subrogation, he must pay the debt for which another is primarily responsible and such payment must generally be in full discharge of that party’s obligation. Mere liability to pay is not ordinarily enough for one to be substituted to the rights of the creditor. In Halpin v. Frankenberger, 231 Kan. 344, 644 P.2d 452 (1982), Justice Holmes wrote:
“ ‘A surety, on paying the debt of the principal, is entitled to be subrogated to the rights of the creditor in all or any of the securities, means or remedies which the creditor has for enforcing payment against his principal. . . . The creditor is entitled to full payment of his debt before subrogation can be invoked.’ p. 767.
“While the terms ‘surety’ and ‘guarantor’ are not synonymous, they are often used interchangeably and the contract of a surety and that of a guarantor are similar in many respects. 38 Am. Jur. 2d, Guaranty §§ 14-16. In both situations the party sought to be charged is liable for the debt of another. In most instances a surety is liable on the original instrument along with the principal debtor, while a guarantor ordinarily enters into a separate contract with the creditor whereby he guarantees payment or performance by the debtor. The principles surrounding the right of a surety or a guarantor to be subrogated to the rights of the creditor, however, are similar.
“Ordinarily the rights and obligations of a guarantor are established by the contract of guaranty. . . . It is also generally recognized that when a guarantor pays the principal’s debt, the guarantor becomes subrogated to the rights of the creditor in seeking total reimbursement from the principal debtor .... Subrogation, as the term is defined, contemplates one person stepping into the shoes of another. As applied to a guarantor, it implies that the guarantor takes the place of, or inures to all of the rights of the creditor.
“73 Am. Jur. 2d, Subrogation § 30 states:
“ ‘The general rule is that a person is not entitled to be subrogated to the rights or securities of a creditor until the claim of the creditor against the debtor has been paid in full, although the entire debt need not necessarily be paid by the party seeking subrogation. This rule finds its principal application in the case of sureties. Formerly, the right of subrogation was limited to transactions between principals and sureties, and doubtlessly the rule grew out of the inequitable result which would otherwise necessarily follow in this class of transactions. Until the debt is paid in full, there can be no interference with tire creditor’s rights or securities that might, even by a bare possibility, prejudice or in any way embarrass him in the collection of the residue of his debt. Obviously, it would be unjust to permit a surety or other person on payment of part of a debt to appropriate to himself the security the creditor holds for the satisfaction of the entire indebtedness. If a surety who has made a partial payment should be subrogated pro tanto, he would occupy a position of equality with the holder of the unpaid part of the debt, and if the property were insufficient to pay the remainder of the debt for which the surety is bound, the loss would fall proportionately on the creditor and the surety. . . .
“ ‘The rule that the debt must be paid in full has in apparently every instance been invoked for the protection of the creditor, and never to defeat contract obligations in the interest of the debtor alone. Consequently, if the creditor consents to pro tanto subrogation, no one else is entitled to object. And even the creditor can object only to the extent that such subrogation would impair his preferred rights. The rule against allowing' subrogation on the basis of part payment does not apply where the reason for it does not exist, as where there is no possibility that the creditor could be in any way prejudiced.’ pp. 617-619.
“In 73 Am. Jur. 2d, Subrogation § 54, we find:
“ ‘The requirement that the entire debt be paid before a right of subrogation arises is, of course, applicable where subrogation is sought by a surety.’ p. 632.” 231 Kan. at 350-51.
To allow GAF to withhold payment alleged due under its guarantee contracts with the school district, until the percentage of fault of all possible wrongdoers is determined in an action, would defeat the very purpose of the guarantee agreements. Under GAF’s theory, all parties that warrant, guarantee or insure under a contract would be entitled to withhold payments due under the contract until the rights and obligations of all parties, including those that are not contracting parties, are determined in one action. This theory eliminates the need for any type of warranty, guarantee or insurance agreement because the purchaser of the agreement has in reality only purchased a lawsuit.
The trial court was correct in granting summary judgment to the third-party defendants. GAF has no claim against the non-contracting parties until it pays or is required to pay the school district under the contracts.
The trial court’s granting third-party defendants’ motions for summary judgment is affirmed. | [
-12,
106,
-4,
-20,
26,
-128,
90,
-102,
121,
-91,
37,
-47,
-3,
67,
13,
115,
-105,
109,
-64,
107,
87,
-14,
115,
74,
-44,
-9,
-14,
-59,
-71,
110,
-12,
94,
72,
48,
-62,
-97,
-90,
-64,
-51,
88,
-58,
6,
58,
99,
-35,
67,
32,
26,
50,
79,
101,
-100,
-13,
37,
29,
-53,
108,
40,
121,
41,
64,
-15,
10,
5,
109,
15,
-77,
52,
-98,
-121,
-8,
14,
-100,
49,
0,
-8,
114,
-90,
-62,
-12,
73,
-119,
9,
-96,
98,
2,
49,
-115,
-4,
-120,
14,
-42,
45,
-90,
-109,
40,
51,
45,
-65,
28,
112,
18,
-107,
126,
-25,
5,
31,
124,
11,
-114,
-108,
-93,
-51,
32,
26,
1,
-17,
1,
48,
117,
-49,
-68,
95,
-58,
19,
-97,
82,
-98
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiffs, Dr. Robert F. Hustead and Joy K. Hustead, his wife, to recover damages for personal injuries suffered in an airplane crash. The defendants involved on this appeal are the Bendix Corporation, Avco Lycoming Corporation, The Piper Aircraft Corporation, and Midwest Piper, Inc.
Each plaintiffs action was brought on the basis of three legal theories: (1) negligence, (2) strict liability in tort, and (3) breach of implied warranty under K.S.A. 84-2-314. The trial court sustained the separate motions of the defendants for summary judgment on the basis that the action of each plaintiff was barred by the statute of limitations. Plaintiffs have appealed to this court.
The facts in this case were not fully developed by discovery, and it appears to us that there are serious factual issues in the case which have not been fully explored. However, many of the essential facts are undisputed and are as follows: On or before December 29, 1976, Hustead Aviation Enterprises, Inc. sold a Piper Lance aircraft to the Husteads. On January 8, 1978, Dr. Hustead, accompanied by his wife, Joy, his two daughters, Barbara and Rhonda, and another guest, was flying the airplane when it crashed in Sedgwick County, resulting in serious personal injuries to the plaintiffs and to other passengers. Three years later on January 8, 1981, the present action was filed in district court. Each of the defendants raised the defense that the plaintiffs’ actions were barred by the applicable statute of limitations.
The defendants contended in the district court, as they do in this court, that the statute of limitations applicable to each plaintiff’s cause of action based on negligence and strict liability in tort is K.S.A. 60-513, which requires that the action be filed within two years from the date the cause of action accrued. They maintain that, since the plaintiffs first suffered substantial injury on the date of the crash, January 8,1978, plaintiffs were required to file their lawsuits based upon negligence and strict liability not later than January 8, 1980. Since the actions were filed on January 8, 1981, plaintiffs’ causes of action in negligence and strict liability in tort are barred by K.S.A. 60-513.
As to each plaintiff’s cause of action based on breach of implied warranty arising from the sale of products, the defendants maintain that the applicable statute of limitations is K.S.A. 84-2-725 which requires a claim for breach of warranty to be filed within four years after tender of the product. Using the date of December 29, 1976, as the date when the Piper aircraft was sold to plaintiffs, each of the defendants contend that the plaintiffs were required to file their action for breach of warranty within four years from that date, which would be December 29, 1980. Since plaintiffs’ action was filed on January 8, 1981, more than four years after December 29, 1976, each plaintiff s cause of action for breach of implied warranty is barred under K.S.A. 84-2-725. On this appeal, counsel for plaintiffs concedes that the two statutes mentioned govern the period of limitations for filing actions in this case.
The response which plaintiffs asserted in the trial court to the defense of the statute of limitations was that of equitable estoppel. Stated simply, the basis of plaintiffs’ contention is that, while the actions were pending, the agents of the United States Aviation Underwriters (USAU) representing all of the defendants admitted that they were liable to the plaintiffs, agreed to pay all of the plaintiffs’ damages, and made advance payments to the two plaintiffs totaling $280,000. The evidentiary record indicates that on or about July 20, 1978, USAU paid Dr. Hustead $125,000, and Joy K. Hustead $65,000 in advance payments on their claims. On November 29,1978, USAU paid Dr. and Mrs. Hustead jointly $70,000 on their claims. A final payment was made to Mrs. Hustead in the amount of $20,000 on or about September 12, 1979. The specific factual circumstances about these payments has not been fully explored by discovery.
At that point, USAU refused to make any further payments. On December 5, 1980, counsel for plaintiffs requested the agent of USAU to extend the statute of limitations which plaintiffs’ attorney stated would run on January 8,1981. USAU was unwilling to extend the statute of limitations but indicated that the case was now capable of being settled. On January 8, 1981, plaintiffs filed their lawsuit. In December of 1981, all defendants filed motions for summary judgment on the basis of the running of the statute of limitations. On March 18, 1982, summary judgment was granted to each of the defendants on that basis.
On the appeal, the plaintiffs also rely on two Kansas statutes which provide for the tolling of the statute of limitations under certain circumstances. Those two statutes are K.S.A. 60-520 and K.S.A. 40-275, which will be discussed in the course of the opinion.
The first point raised by the plaintiffs on the appeal is that the trial court erred in granting summary judgment to defendants and in rejecting plaintiffs’ claim of equitable estoppel, (1) because it did so without permitting discovery and supplemental affidavits, (2) because the court selected the wrong date for the commencement of the statute of limitations, and (3) because it resolved conflicting factual questions as to the parties’ state of mind and credibility. The leading case in Kansas on the issue whether a defendant is estopped from raising the statute of limitations is Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). In Bowen, a trial court granted summary judgment to the defendants on the ground the action was barred by the statute of limitations. The plaintiffs claimed that the defendants were estopped from defending on the basis of the statute of limitations. On appeal, this court reversed holding that on the basis of the evidentiary record, taken in the light most favorable to the plaintiffs, it was error for the trial court to conclude that as a matter of law there was no genuine issue as to any material fact and to enter judgment on the pleadings, depositions, and written documents. Because of the genuine factual issues, summary judgment was premature. The court recognized the rule that, in considering a motion for summary judgment, a trial court must give to a litigant against whom summary judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. It was stated that a court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. The doctrine of equitable estoppel is based upon' the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. The court further stated that a party can be equitably estopped from reliance on the statute of limitations as a defense to the claim against him. The issue to be determined in such a case is whether the plaintiffs’ claim of equitable estoppel must be rejected as a matter of law or whether there are legitimate factual issues to be fully developed by further discovery and determined by the court.
The critical element in this case is whether the plaintiffs can show that they actually relied upon any assurances, representations, admissions, or silence of USAU when its representative had a duty to speak. It would serve no useful purpose to set forth in great detail the factual materials contained in the various affidavits submitted to the trial court. We have held on many occasions that when summary judgment is sought the parties against whom the motion is filed is to receive the benefit of all reasonable inferences that may be drawn from the facts under consideration. Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, 575 P.2d 507 (1978). Ordinarily, a motion for summary judgment is not to be sustained if pretrial discovery remains incomplete. Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, 535 P.2d 873 (1975).
We note in the record the affidavit of Dr. Robert F. Hustead wherein he states that, after the accident occurred, he was contacted by a representative of USAU, Errol Hall, who advised him that the insurance carrier was 97% certain that the cause of the accident was the magnetoes furnished by Bendix; that the insurance company wanted Dr. Hustead and the injured members of his family to have the very best medical care available without regard to cost; and that Bendix felt obligated to restore Dr. Hustead and his family to their former status to the extent that money could do so. On another occasion, Dennis Doody, an attorney and vice-president of USAU from New York, told Dr. Hustead that it had been determined that the cause of the accident was the defective magnetoes; that his insurance company wanted everyone injured in the accident to be taken care of and treated fairly to the end that the injured persons would not pursue litigation and try to hit “the homerun ball.” Doody assured Hustead that his lost wages, both past and future, would be paid and that, furthermore, Bendix, through its insurance carrier, would take care of any damages caused by the accident. Dr. Hustead, in his affidavit, also noted the advances made from USAU to the doctor and his wife in the total amount of $280,000. On December 5, 1978, the claim of Barbara Hustead was settled by the insurance company for $1,750. In September of 1980, Rhonda Hustead’s claim was settled by the company.
The affidavit of Charles J. Woodin, attorney for the plaintiffs, states that he was advised by Errol Hall, representative of USAU, that that insurance company was the insurance carrier of the Hustead’s insurance on the destroyed airplane as well as the liability insurance carrier in the matter. In February of 1978, Hall advised Woodin that the National Transportation Safety Board had determined that the Bendix magnetoes had failed in flight; that the insurance company wanted all of the injured members of the Hustead family to have the very best medical care; and that the insurance company for Bendix wanted to restore all of the Hustead family to the extent that money could do so. Woodin was also present at the conversation where Dennis Doody speaking for USAU stated that it had been determined that the cause of the accident was the defective magnetoes; that his insurance company wanted everyone injured in the accident to be taken care of and treated fairly to the end that the injured persons would not pursue litigation and try to hit “the homerun ball,” and that Bendix, through its insurance carrier, would take care of all injuries caused by the accident. According to Woodin, representatives of USAU met with Dr. and Mrs. Hustead on occasions when Woodin was not present.
We have concluded that the statements made to Dr. and Mrs. Hustead and to Mr. Woodin, if made, could reasonably be construed as admitting liability on the part of the insurance company and that it could have brought about delay in the filing of an action by plaintiffs. Whether or not the Husteads and their attorney relied upon these statements in delaying the filing of the action was a legitimate fact issue. We wish to emphasize, however, that some of the statements in the affidavit of Dr. Hustead and Mr. Woodin are disputed by defendants and will have to be clarified and developed on further discovery. The reliance of plaintiffs and their attorney on the affirmative statements, actions, or silence of USAU agents could not properly have been determined by the trial court as a matter of law at the time the motions for summary judgment were sustained. The situation is essentially the same as in Bowen v. Westerhaus, 224 Kan. 42, where a resolution of the issue of reliance necessitated a determination of the state of mind of the parties. We, therefore, reverse the trial court in its granting summary judgment to the defendants since, in our opinion, the plaintiffs should have an opportunity to develop by further discovery the factual matters which support its contention of equitable estoppel.
A second point raised by the plaintiffs on the appeal is that the trial court erred in granting summary judgment based upon the statute of limitations, because the statute was tolled by USAU’s acknowledgment of liability and in making advance payments to the plaintiffs. Specifically, the plaintiffs rely on K.S.A. 60-520(a) and K.S.A. 40-275 which provide as follows:
“60-520. Part payment or acknowledgement of liability, (a) Effect. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
“40-275. Advance or partial payment not admissible as admission against interest or admission of liability; credit; no recovery; limitation of actions. No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person, or on his behalf to others, or to the heirs at law or dependents of a deceased person of medical expenses, loss of earnings and other actual out of pocket expenses, because of an injury, death claim, property loss or potential claim against any person, firm, trust or corporation, shall be admissible into evidence as an admission against interest or admission of liability by such party or self insurer, or if paid by an insurer of such party, as the insurer’s recognition of such liability with respect to such injured or deceased person, or with respect to any other claim arising from the same accident or event. Any such payments shall, however, constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. In the event of a trial involving such a claim, the fact that such payments have been made shall not be brought to the attention of the jury: Provided, If after an advance payment or partial payment is made as herein provided for, and thereafter it shall be determined by final judgment of a court of competent jurisdiction that the person, firm, trust or corporation is not liable for an amount sufficient to satisfy the advance payment or partial payment, such person, firm, trust or corporation shall have no right of action for the recovery of any such a payment: Provided further, That the period fixed for the limitation for the commencement of actions shall commence on the date of the last payment or partial payment made hereunder.” (Emphasis supplied.)
The plaintiffs contend that, throughout the discussions, the representative of USAU conceded liability arising from the defective condition of the magnetoes manufactured by Bendix Corporation and that USAU actively pursued settlement. Furthermore, they point out that USAU made advance payments on the admitted obligation in July of 1978, and again on November 29,1978, to Dr. and Mrs. Hustead and on September 12, 1979, to Mrs. Hustead. These advances totaled $175,000 to Dr. Hustead and $105,000 to Mrs. Hustead. As to K.S.A. 60-520, the plaintiffs point out that defendants’ claimed breach of warranty is based on K.S.A. 84-2-314 which is founded on contract. Thus, a breach of an implied warranty under K.S.A. 84-2-314 arises on a contractual theory, and, comes within the provisions of K.S.A. 60-520. The plaintiffs maintain that Dr. Hustead had four years from the last payment from USAU, being November 29, 1978, to file his action, and that Mrs. Hustead had four years from September 12, 1979, to file her action. Less than four years elapsed from either date to the date the plaintiffs filed their actions on January 8, 1981.
In their briefs, the defendants contend that K.S.A. 60-520 is not applicable because an acknowledgment which will remove the bar of the statute of limitations must be distinct, unequivocal, and without qualification, and nothing less than a direct admission of a present existing liability is sufficient, citing Bowen v. Westerhaus, 224 Kan. 42. In this regard, we believe that counsel for defendants have overlooked the rationale of Fisher v. Pendleton, 184 Kan. 322, 336 P.2d 472 (1959), which holds that a part payment is an executed acknowledgment which speaks for itself and requires no writing to establish it. Although in Fisher the question of the tolling of the statute of limitations by part payment involved G.S. 1949, 60-312, we believe that the logic of that case applies also to K.S.A. 60-520. The requirement of a written acknowledgment or promise in K.S.A. 60-520 pertains only to situations involving acknowledgment of an existing liability or a promise to pay the same. A part payment speaks for itself, and, when a part payment is made in a contract case, the provisions of K.S.A. 60-520 come into play, having the effect of tolling the statute of limitations.
K.S.A. 40-275 states clearly that where there is an advance or partial payment of damages, predicated on possible tort liability, the period fixed for the commencement of actions shall commence on the date of the last payment or partial payment made. K.S.A. 40-275 provides certain protections both to the claimant and also to the person against whom the claim of liability is made and his insurer. The fact that an advance or partial payment has been made is not admissible into evidence as an admission of negligence or liability. Such a payment constitutes a credit and may be deducted from any settlement or final judgment rendered. In the event there is a trial involving the claim, the fact that such payments have been made are not to be brought to the attention of the jury. These protections are provided to the party against whom the claim was asserted and his insurer. On the other hand, the claimant is protected by the extension of the statute of limitations in the last proviso.
We note from the affidavits that these advance payments were made by USAU with the understanding they were to be without prejudice to any of the rights of the parties. Since the evidence may show that it was understood that the rights of all parties would be protected, the protections provided under K.S.A. 40-275 may come into play. As noted above, however, the factual circumstances have not been fully developed by discovery. The applicability of K.S.A. 60-520 and 40-275 are issues still to be determined by the trial court, and we make no final determination of those issues on this appeal.
In their briefs, the defendants, Avco Lycoming Corporation, Piper Aircraft Corporation, and Midwest Piper, Inc., raise a separate argument that the trial court properly granted summary judgment to.them, because the record shows as a matter of law that USAU was not their agent in making any admissions or representations or payments to the plaintiffs and, therefore, those defendants were not bound by any actions of USAU, and, hence, the defense of equitable estoppel or the tolling of the statute of limitations for advance payments does not affect their defense of the statute of limitations. We have considered the record and concluded that there remain in the case factual issues on the question whether those three defendants are bound by the acts of the agents of USAU in this regard. We note the affidavits of Mr. Woodin that he was aware that USAU works as manager of the United States Aviation Group and that he was aware that that company and that group were the liability insurance carriers for Bendix, Midwest Aviation, Inc., and Avco Lycoming Corporation, and for the corporations above a fixed minimum level. Also there is in the record a letter dated January 17,1978, to Dr. Hustead from Errol Hall of USAU indicating that that company might represent Midwest Piper Flight, Inc., in connection with the hull loss. We further note in the record a letter from Errol Hall of USAU dated March 28, 1978, to Mr. Woodin possibly indicating its representation of Midwest Piper Flight, Inc., under an insurance policy. There is also in the record the release form signed by Rhonda Hustead which releases and discharges from liability Bendix Corporation, Avco Lycoming Corporation, Midwest Piper Flight, Inc., United States Aviation Underwriters and all other persons from the claim of Rhonda Hustead. Finally, there is a letter from Fred L. Maars, attorney for Avco Lycoming Corporation, dated November 13, 1980, to Charles J. Woodin indicating that the funds being advanced will be proportionately secured from the “various insurers on the risk.” These documents, of course, are not conclusive but they present some possible evidence of participation in the advance payment of funds to the plaintiffs from various defendants in addition to Bendix. We believe that the plaintiffs are entitled to further discovery to clarify the question of USAU’s representation of the various parties in the action other than Bendix, so that the issue of representation can be properly determined.
We also hold that the trial court was premature in granting summary judgment to defendant Piper Aircraft Corporation on the basis that the service of process was defective. That issue may be determined by the trial court, if it becomes relevant after all discovery has been completed.
For the reasons set forth above, we have concluded that the trial court prematurely granted summary judgment to the defendants in this case. We have further concluded that the case should be reversed and remanded to the trial court with directions to permit the parties to conduct further discovery to determine whether there are bona fide factual issues on the defense of the statute of limitations and other defenses..
The judgment of the district court is reversed and remanded with directions as set forth in the opinion. | [
-16,
106,
-12,
14,
24,
-30,
104,
90,
81,
-59,
101,
-45,
-21,
-53,
-123,
123,
118,
13,
80,
106,
19,
-77,
87,
-110,
-42,
51,
-40,
-60,
-80,
78,
-28,
-42,
12,
32,
-126,
85,
38,
66,
5,
28,
-50,
6,
41,
-52,
89,
10,
-76,
122,
-124,
78,
113,
14,
-29,
43,
30,
-61,
104,
40,
107,
-83,
-61,
-80,
-117,
5,
125,
18,
-95,
-122,
-68,
101,
72,
15,
-112,
-80,
40,
-24,
48,
-94,
-58,
-28,
33,
-119,
4,
102,
102,
32,
21,
-27,
-4,
-72,
38,
50,
47,
-89,
-108,
64,
-119,
44,
-65,
29,
119,
16,
13,
124,
-26,
20,
-97,
-24,
7,
-54,
-42,
-111,
71,
4,
-102,
7,
-21,
-125,
34,
112,
-115,
-32,
92,
71,
123,
55,
-46,
-98
] |
The opinion of the court was delivered by
Miller, J.:
Joe Buddy Myers appeals from his conviction by a jury in Riley District Court of aggravated burglary, K.S.A. 21-3716, kidnapping, K.S.A. 21-3420, and felony murder, K.S.A. 21-3401. The case was previously before us on an interlocutory appeal, State v. Myers, 229 Kan. 168, 625 P.2d 1111 (1981). The issues now raised all relate to the defense of compulsion, as defined in K.S.A. 21-3209.
The trial transcript is over 1,100 pages in length and the facts are quite detailed. We summarize them here. On September 10, 1979, Cristel Watson and her sister, Elke McGuyton, shared an apartment in Manhattan, Kansas, where Cristel was a student at Kansas State University. Cristel’s boyfriend, Eric Sands, who lived in Kansas City, had left a parcel containing fifteen pounds of marijuana in the apartment. Cristel was to deliver it to the defendant, Joe Buddy Myers; Myers was to sell the marijuana and then pay Cristel, who in turn would give the money to Sands. Elke’s boyfriend, Kevin Kitchens, the homicide victim, was spending the night with her in the apartment. Both Elke and Kitchens were apparently unaware of the marijuana transaction or of the presence of the contraband in the apartment.
Myers telephoned Cristel and made arrangements to pick up the marijuana. He came to the apartment around 11:00 o’clock p.m. on September 10, and Cristel took him to her bedroom where she delivered the marijuana to him. Myers did not see Elke or Kitchens; apparently they were in another bedroom, with the door closed. Myers left the apartment, taking the marijuana with him.
Cristel studied, then went to sleep. She awoke around 2:00 o’clock a.m. to find Myers standing at the foot of her bed. Myers gave her some money; she got up and went over to her desk, where she began counting the money. Myers produced a handgun, which he pointed at Cristel’s head. He instructed her to telephone Sands and tell him that he (Myers) did not want the marijuana. Cristel complied. Elke, meanwhile, had come out of her bedroom to go to the bathroom, and she discovered a man, later identified as Lorin Axvig, standing in the hallway. Elke darted into the bathroom. About this time, Myers brought Cristel out of her bedroom and she discovered that Axvig was in the apartment. Myers stated that both girls would have to leave the apartment. Cristel went into Elke’s bedroom and got some clothing for Elke. Axvig was pointing a handgun at Kitchens, who was stretched out on the bed. Cristel took the clothing to Elke; Elke dressed, and both women came out of the bathroom. Elke went into her bedroom to get her shoes, and Axvig was still in there, pointing a gun at Kitchens. Myers then took both women out of the apartment, holding Elke with his left hand and his gun with the other. Axvig remained in the apartment. During all of this period of time, Axvig said nothing; Myers did all of the talking, and he seemed calm and collected.
Once outside the apartment building, Cristel broke away, screamed, and quickly disappeared from sight. Myers, meanwhile, held onto Elke; he pushed her into his car, shoved her over into the back seat, and then drove slowly around the parking lot and stopped. Axvig came running out of the building, ran around the car, and got in the front seat with Myers. Myers drove, and proceeded to an area known as the tank trails on the Fort Riley military reservation. Myers stopped the car, and eventually told Elke to get out. She and Axvig got out of the car. Myers drove off, leaving Elke and Axvig at the tank trails. Myers returned in about an hour, driving a different vehicle. The three then drove to Myers’ house trailer, where Elke was taken inside and left with Myers’ wife. Myers and Axvig left; Myers returned alone after an hour or more. Mrs. Myers then drove Elke back to her sister’s apartment.
In the interim, Cristel went to the apartment of friends and called Sands to report the events to him. With several other young people, she returned to her apartment about an hour later and discovered the body of Kevin Kitchens in Elke’s bedroom. He had been shot twice in the back of the head. The police were called and came to the scene. Elke and Mrs. Myers returned to find the police at the apartment. Myers was arrested later the same day, and both he and Axvig were charged with the felony murder of Kevin Kitchens, thé kidnapping of the two young women, and aggravated burglary. Axvig was found murdered some months later in the State of Oklahoma.
Both Cristel and Elke testified that Myers was calm and deliberate throughout; Axvig said little, if anything. Myers did all of the talking and appeared to be completely in charge. Neither young woman ever saw Axvig point a weapon at Myers, or otherwise threaten him. Elke testified that she had been in the military service, stationed at Fort Riley, and that she had some familiarity with handguns of the type carried by Myers and Axvig, which -she identified as Army-type .45 caliber automatic pistols, clip-fed through the bottom. She did not see a hole in the bottom of Myers’ gun, where the clip is inserted, and she thinks that she would have noticed if there had been no ammunition clip in the weapon.
At trial, the defendant indicated that he planned to introduce evidence of compulsion, that Axvig disarmed him immediately before the two men entered the girls’ apartment in the early morning hours of September 11, 1979, and that his actions thereafter were directed and compelled by Axvig. Our statute relating to the defense of compulsion is K.S.A. 21-3209. It provides:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
The trial court, after receiving the defendant’s proffered testi mony on compulsion out of hearing of the jury, ruled that the defense of compulsion is not available to one charged with felony murder; that neither Myers nor his family were under any threat of immediate harm; and that Myers was provided with various reasonable opportunities to escape or withdraw from the criminal activity and failed to do so. The court concluded that the proffered evidence did not establish compulsion, that the defense of compulsion was not available under the proffered facts, and that the proffered evidence could not be used for the purpose of establishing a compulsion defense. The record disclosing the proffer is as follows:
“THE COURT: . . . [L]et me ask a little bit more specificity in regard to the proffer. What is [the defendant] going to testify as to what Axvig said and what the situation was? . . .
“MR. ARTHUR [counsel for the defendant]: Okay, at the time they arrived at the Watson apartment the second time, testimony would be that Axvig pulled a gun on Joe Myers, took his gun away from him, took the clip out of it; gave it back to him and said, 7 have your family, do as I tell you or they’ll be hurt.’ They went in to the apartment, Axvig testified at that point in time or, excuse me, stated that he was going to tie up Kevin Kitchens and knock him out.
“THE COURT: Again, I want you to remember that I indicated that that’s an anticipatory thing that he might do and I don’t want that in under — in regard to Axvig said.
“MR. ARTHUR: Your Honor, I need Mr. Myers to help me at this point.
“THE DEFENDANT: He told me to go inside the apartment. I was inside the apartment before he stated that there was somebody at the house with Nanette and the kids. He never — when it comes to tying up Kevin and knocking him out, that falls in a whole different category, that is where Cristel and Elke were seated in the living room.
“MR. ARTHUR: I know it was later.
“THE COURT: Let me ask you this, another thing as well, that is, how did that clip get out of Mr. Myers’ gun? Theoretically that’s going to be a factor here.
“MR. ARTHUR: Axvig put the gun to Mr. Myers’ head and reached around in his holster, pulled the gun out and the clip just drops out if you press a button.
“THE COURT: That’s what his testimony is going to be?
“MR. ARTHUR: Right.”
The controlling issue in this case is whether the evidence of compulsion proffered by the defendant was sufficient to allow that evidence to go to the jury, and sufficient to require that an instruction on compulsion be given. The defense of compulsion was discussed at length in the case of State v. Milum, 213 Kan. 581, 582, 516 P.2d 984 (1973), where we said:
“Insofar as this case is concerned the key statutory phrase is that the threat must be of the ‘imminent’ infliction of death or great bodily harm. The codifica tion thus embodies the common law characteristics of the defense exemplified by the encyclopedists:
“ . . In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. . . . The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. And threat or fear of future injury is not sufficient.’ 21 Am. Jur. 2d, Criminal Law, § 100.
“ ‘The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed.’ 22 C.J.S., Criminal Law, § 44.”
In the more recent case of State v. Harrison, 228 Kan. 558, 560, 618 P.2d 827 (1980), we quoted from Milum and then said:
“The general rule followed throughout the country is that in order for the defense of compulsion to be established it must be shown that the accused was without a reasonable opportunity to escape or withdraw from the criminal activity.”
In the case at hand, the evidence with regard to Myers’ opportunity to escape, to withdraw from the criminal activity, or to alert others and seek help, is abundant. Myers was alone with Cristel in her bedroom, and he made no effort to communicate to her, or to others over her telephone, that he was under compulsion from Axvig. To the contrary, he told Cristel in substance that this was a “rip off,” and that he had his family waiting to leave town with the money he would make from the fifteen pounds of marijuana. At a later point, he was alone with Cristel and Elke in the living room of the apartment, near the front door, while Axvig was in the bedroom with Kitchens; Myers made no effort to leave at that time, or to permit the two women to escape. Again, when he took the two women outside, leaving Axvig in the apartment, Myers took Elke to the car, put her in it, and instead of speeding off to make his escape, he drove slowly, stopped, and waited to pick up Axvig. Some time later, he left Axvig and Elke at the Fort Riley tank trails and was away from Axvig for at least an hour before returning to pick them up. At that time he made no attempt to escape, to check on his family, or to notify the authorities. Finally, after he took Axvig somewhere and returned alone to his (Myers’) apartment, Myers did not tell his wife and Elke about any coercion or forced participation, nor did he alert the authorities and report the matter to them so that Axvig could be apprehended.
Compulsion, to constitute a defense under K.S.A. 21-3209, must be present, imminent, and impending; it must be continuous; there must be no reasonable opportunity to escape the compulsion without committing the crime. Here, under the proffered evidence, the compulsion was imminent when Myers entered the apartment; thereafter, when Myers was out of the sight and presence of Axvig, it was not imminent. The compulsion was not continuous; Myers and Axvig went their separate ways and operated independently; the compulsion was interrupted time after time. Finally, Myers had abundant opportunities to make his escape, and failed to do so. Myers could have freed the women before or at the time they left the apartment, and he could have made his escape before the murder was committed.
We recognize, of course, that a trial court in a criminal action has a duty to instruct the jury on the law applicable to the theories of both the prosecution and the accused, so far as those theories are supported by any competent evidence. State v. Farmer, 212 Kan. 163, 510 P.2d 180 (1973). Further, when considering the refusal of a trial court to give instructions requested by the defendant, we must consider the evidence supporting those instructions in the light most favorable to the defendant. State v. Farmer, 212 Kan. at 167. Viewing the proffered testimony in this light, we conclude that such evidence would not, as a matter of law, have established the defense of compulsion under K.S.A. 21-3209 for the reasons above set forth. The trial court did not err in refusing to admit the testimony for the stated purpose, or in refusing to instruct the jury on the defense of compulsion. The resolution of this issue is dispositive of this appeal and it is not necessary to reach the other issues raised.
We have carefully examined the record on appeal and find no prejudicial error. The defendant was afforded a full and fair trial.
The judgment is affirmed. | [
-79,
-19,
-3,
-81,
10,
96,
46,
56,
98,
-9,
-16,
115,
-81,
-24,
1,
105,
24,
47,
84,
105,
-47,
-89,
3,
-63,
-78,
-5,
56,
-44,
-73,
79,
-18,
-35,
73,
112,
-122,
61,
102,
-102,
-9,
88,
-114,
9,
-88,
96,
-13,
18,
48,
43,
78,
14,
49,
31,
-73,
42,
21,
69,
77,
40,
-5,
61,
-112,
-15,
-101,
-107,
124,
22,
-125,
-92,
-100,
-123,
-48,
47,
-100,
49,
0,
96,
113,
-92,
-122,
84,
79,
-103,
76,
96,
98,
33,
-36,
-19,
-27,
-111,
63,
103,
-67,
-89,
-104,
73,
65,
-20,
-108,
-33,
116,
53,
15,
-16,
-31,
-34,
77,
-4,
0,
-113,
-80,
-109,
13,
120,
-42,
-7,
-21,
37,
32,
97,
-51,
34,
68,
117,
120,
-37,
-118,
-43
] |
The opinion of the court was delivered by
Prager, J.:
This is an appeal by the City of Kansas City, Kansas, from the dismissal of a criminal complaint charging the defendant, Alfred Griffin, with driving a vehicle while under the influence of alcohol (DUI) in violation of a Kansas City, Kansas, city ordinance. The facts in the case are undisputed and are as follows: The defendant was found guilty of DUI in municipal court of Kansas City, on August 2,1982. The crime was allegedly committed on May 28,1982. On July 1,1982, the Kansas City city commission enacted a new city ordinance covering the offense of DUI. The effect of the new ordinance was to change the penalty provisions for the offense to comply with the newly enacted state statute on the subject, K.S.A. 8-1567. The new ordinance repealed the old ordinance without providing for an express savings clause to specifically authorize continuing pending prosecutions under the old ordinance. Following his conviction on August 2, 1982, defendant appealed to the district court. There defendant moved to dismiss the prosecution, contending that the adoption of the new city ordinance, without a savings clause, required the abatement of all pending prosecutions under the old ordinance. The district court agreed and sustained defendant’s motion for dismissal. The city has appealed.
It would be helpful to bring into sharper focus the provisions of the old and new ordinances covering the subject of DUI. The Kansas City ordinance in effect at the time the defendant allegedly committed the offense provided as follows:
“Sec. 36-59(1). It is unlawful and punishable as provided in subsection (4) of this section for any person who is under the influence of intoxicating liquor to operate any vehicle within this city.”
“Sec. 36-59(4). Every person who is convicted of a violation of this section shall be punished by imprisonment for not more than six (6) months, or by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00), or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than ninety (90) days nor more than six (6) months, and, in the discretion of the court, a fine of not more than five hundred dollars ($500.00).”
The new city ordinance, which became effective upon publication on July 1, 1982, provided in part as follows:
“Sec. 36-59(1). No person shall operate any vehicle within this City while under the influence of alcohol.”
“Sec. 36-59(4). Upon a first conviction of a violation of this section, a person shall be sentenced to not less than 48 hours’ imprisonment or 100 hours of public service nor more than 6 months imprisonment and fined not less than $200 nor more than $500, or by both such fine and imprisonment. The person convicted shall not be eligible for release on probation or suspension or reduction of sentence until the minimum sentence has been satisfied. . . .”
There were other changes in the new ordinance providing for increased penalties for subsequent convictions, and covering certain presumptions arising from the presence of alcohol in a person’s blood. Simply stated, the new city ordinance was enacted so that the Kansas City ordinance on the subject of DUI would be in substantial compliance with the new Kansas statute on the subject (K.S.A. 8-1567).
At the outset, we should consider certain general principles of law applicable in cases where a criminal statute is repealed and then reenacted in a modified form by a legislative body. It was the generally recognized rule at common law that the outright repeal of a criminal statute without a savings clause terminates or bars prosecution for a violation thereof committed prior to such repeal.
“Bishop states the principle thus: ‘No court can entertain a cause without authority of law. Therefore the repeal of a statute terminates all proceedings under it. . . . If the common or statutory law, which authorizes a prosecution and conviction for any offense, is repealed or expired before final judgment, the court can go no further with the case. Even after verdict rendered against the prisoner, or after he has pleaded guilty, sentence cannot be pronounced; and he must be discharged. . . . But after final judgment, a repeal of the law will not arrest the execution of the sentence.’ Bishop, Statutory Crimes, 3d ed, p 192, § 177.” Annot., 167 A.L.B.. 845, 850 n. 10.
The common-law rule has been recognized by this court in a number of Kansas cases. See for example State v. Boyle, 10 Kan. *113 (1872); State v. Showers, 34 Kan. 269, 8 Pac. 474 (1885); Wichita v. Murphy, 78 Kan. 859, 99 Pac. 272 (1908); State v. Cramer, 196 Kan. 646, 413 P.2d 994 (1966).
Where a statute contains a savings clause which reserves prosecution under the former statute, the former statute is determined to be effective as to those offenses, and a prosecution may continue. In the area of statutory enactments, it has long been held in Kansas that the first provision of K.S.A. 77-201 is to be construed as a general savings statute, preserving all rights and remedies under a repealed statute when the repealing statute is silent as to whether such rights and remedies shall be abrogated or not. K.S.A. 77-201 provides in part;
“In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:
“First. The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
In the present case, there was no general Kansas City ordinance in effect in the nature of a general savings clause comparable to K.S.A. 77-201.
In the absence of a general savings statute, the prevailing rule in the United States today is that where a statute which defines a crime and provides for its punishment is repealed by a statute which, in effect, reenacts the substance of the original one, the new statute does not interrupt the operation of the old statute and does not prevent a prosecution or a conviction or affirmance of a conviction after the reenactment for an offense committed before the repeal and reenactment. This rule is discussed in the many cases set out in the annotation in 77 A.L.R.2d 336, 364. Where a statute is amended only to increase the penalty for the crime and the statute is repealed, there has been a split of authority as to whether pending prosecutions are to be abated. See the annotation at 167 A.L.R. 845.
According to what has now become the great weight of authority, there are at least three situations to which the common-law rule does not apply:
(1) Where the statute passed after the offense is committed but before final judgment mitigates rather than increases the punishment;
(2) Repeals by implication are not favored, and where a new statute is passed in a field already occupied by an older statute, the new statute will not be held to have repealed by implication the old statute as to crimes already committed at the time the statute is passed. This exception is based upon the presumed intent of the legislature; and
(3) Where there is an outright repeal and a substantial reenactment, it will be presumed that the legislature did not intend that there should be a remission of crimes not reduced to final judgment.
These three exceptions are recognized in the leading case of Sekt v. Justice’s Court, 26 Cal. 2d 297, 159 P.2d 17, cert. denied 326 U.S. 756 (1945), which is discussed in the two annotations mentioned above.
In State v. Boyle, 10 Kan. *113, the opinion emphasized that the application of the common-law rule is a matter of determining the intent of the legislature. At pages *116-17 the court states as follows:
“And we also suppose it will be conceded that if this court can determine from all the statutes that it was the will and intention of the legislature, when they repealed any given statute, that all rights and remedies which had previously accrued thereunder should be saved, it would be our duty to so declare, whether the legislature had made their will and intention known by any express provision in the repealing statute or not.”
This court, thus, has the obligation in this case to determine the intent of the city commission of Kansas City when it repealed the old DUI ordinance and enacted the new city ordinance.
It is obvious to us that if there is a special savings clause in the statute or ordinance, the legislative intent to preserve prosecutions under the former law is clear. If there is no savings clause and there is an outright repeal of a crime, and a new crime is not created to take its place, the intent of the legislative body is also clear. Where a new statute or ordinance defining a crime is enacted which is still the same basic crime with the same basic elements and only the penalty is increased, it seems logical to us that, in the absence of some evidence of a contrary intention, the legislative intent is not to abate pending prosecutions. We have concluded that the principles of law set forth in Sekt v. Justice’s Court are sound and that the rationale of that case should be adopted in this state.
In this case, the offense of DUI as set forth in the new ordinance is essentially the same as the old DUI offense; none of the basic elements of the crime have been changed. The only changes have been to increase the penalties and to modify certain procedural provisions. On the basis of the rationale set forth above, we reverse the district court and remand the case with directions to reinstate the complaint and to proceed with the disposition of the case.
Reversed and remanded. | [
-16,
-22,
-100,
-50,
63,
64,
10,
-36,
82,
-41,
-90,
115,
-23,
66,
5,
121,
-13,
125,
84,
105,
-64,
-89,
71,
67,
-66,
-13,
-21,
-41,
-65,
93,
-27,
-27,
78,
48,
-53,
-99,
6,
-54,
-108,
-36,
-118,
4,
-119,
-48,
90,
9,
-76,
106,
3,
11,
-79,
30,
-9,
42,
24,
-46,
-87,
108,
-101,
-115,
-16,
-15,
-119,
-107,
122,
18,
-79,
20,
-100,
-123,
84,
45,
-100,
49,
96,
104,
115,
-90,
4,
-12,
111,
-103,
-116,
38,
98,
33,
53,
-117,
-96,
-119,
14,
82,
-97,
-91,
-104,
89,
75,
-119,
-106,
-103,
125,
22,
7,
-4,
-26,
21,
93,
108,
23,
-54,
-80,
-79,
-49,
53,
-126,
93,
-17,
101,
33,
97,
-50,
70,
94,
53,
114,
27,
-121,
-108
] |
The opinion of the court was delivered by
Herd, J.:
This is an appeal from a conviction for second degree murder. On February 2, 1982, Marsha Thrasher left for her job at a local restaurant at approximately 4:15 p.m. Her husband, Richard Thrasher, Sr., remained at home with the three children, Gregory Martin, age 4, William Martin, age 2, and Richard Thrasher II, 5 months. While Marsha was at work, Richard called at approximately 5:30 p.m., 8:00 p.m. and 10:30 p.m. During these calls Richard sought assurance that Marsha still loved him. During the final call he told her they might have to make a trip to Montana.
Marsha left for home shortly after the 10:30 call. As she arrived her husband came outside and wanted to sit in the pickup and talk. Eventually they went inside and Richard, after asking Marsha again whether she loved him, told her that he had something to tell her and she wouldn’t love him anymore. Thrasher stalled awhile longer, then told his wife their baby, Richard II, was dead. He explained the baby had fallen in the toilet earlier in the evening. Marsha wanted to call the police but Thrasher threatened to kill her and the other children if she did. Marsha then waited until Thrasher went to sleep at which time she went to a neighbor’s house and called the police. The police came and found the dead child in its crib with a pillow over its head. Thrasher was taken into custody for questioning. At this time he told officers he had gone to the front porch with the baby in his arms, slipped on the snow and fell on the baby, killing it.
An autopsy was performed on Richard Thrasher II. Cause of death was listed as asphyxiation. During the autopsy the pathologist also found evidence of numerous bumps and bruises, including a subdural hematoma approximately one month old. He stated the child’s death was not likely to have been caused in the manner suggested by Mr. Thrasher, but that it could have been the result of drowning or smothering.
Richard Thrasher was charged with murder in the first degree. K.S.A. 21-3401. After a jury trial he was convicted of second degree murder. K.S.A. 21-3402. He appeals.
The first issue on appeal concerns the propriety of allowing Marsha Thrasher’s four-year-old son, Gregory Martin, to testify.
When the prosecution called Gregory Martin to testify, defense counsel challenged the competency of the witness. Subsequently the trial court conducted a hearing outside the presence of the jury to determine Gregory’s competency. Based on Gregory’s actions at this initial hearing the court decided not to let him testify, stating Gregory was “unable to listen to the questions and respond . . . .”
Later the prosecution requested the trial court again talk to Gregory to determine whether he had “calmed down” and could testify. The court agreed and this time Gregory was more attentive and responsive to the court’s questions. The trial court then changed its mind and decided to allow Gregory to testify.
On the stand Gregory was no model of clarity. He did, however, give testimony damaging to the appellant. When asked who killed “baby Richard,” he replied “Richard” (meaning the appellant). He also related that Thrasher “hollered” at the baby, telling him to “shut up” and.“suck the bottle.” He then stated he saw the appellant choke the baby and flush him down the toilet.
Two Kansas statutes are relevant to this question, First, K.S.A. 60-407 provides in pertinent part:
“Except as otherwise provided by statute (a) every person is qualified to be a witness, and . , . . (c) no person is disqualified to testify to any matter .. .
K.S.A. 60-417 discusses disqualification of witnesses:
“A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of this article relating to witnesses.”
Kansas law does not disqualify a witness simply because of age.
Under K.S.A. 60-407 a witness, no matter how young, is presumed competent to testify. The burden of establishing incompetency rests on the challenger. State v. Poulos, 196 Kan. 253, 263, 411 P.2d 694, cert. denied 385 U.S. 827 (1966). K.S.A. 60-417, in turn, directs to the discretion of the trial court the disqualification of a witness for any of the enumerated reasons. State v. DeLespine, 201 Kan. 348, 351, 440 P.2d 572 (1968). See also State v. Jones, 204 Kan. 719, 727-28, 466 P.2d 283 (1970); State v. Whiting, 173 Kan. 711, 713, 252 P.2d 884 (1953); State v. Gaunt, 98 Kan. 186, 157 Pac. 447 (1916). Thus, in order for a witness to be disqualified, the trial court must be convinced the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury, or is incapable of understanding the duty of a witness to tell the truth. State v. Poulos, 196 Kan. at 264.
Gregory Martin’s inattentiveness at the initial competency hearing was apparently caused by the appearance of the appellant, whom the little boy had not seen for some time. (There was evidence Thrasher had abused Gregory approximately two years earlier.) At the second hearing and at trial, however, Gregory indicated he was aware of his duty to tell the truth by stating that if he didn’t he would get in trouble. The question of whether Gregory was capable of expressing himself so as to be understood by the judge and jury is not so clear. For example, in response to a question regarding how the baby died, Gregory responded “He got dead with a kill.” At other times, however, Gregory clearly expressed himself, stating exactly what he heard Thrasher say and what he saw him do. Indeed, he generally expressed himself in language suitable to his age. State v. Jones, 204 Kan. at 728. We hold the trial court did not abuse its discretion.
Appellant also argues the allowance of testimony by Gregory Martin effectively denied him his right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. No cases are cited to support this proposition. His theory is that Gregory was so unresponsive to defense counsel’s questions on cross-examination there was inadequate confrontation.
It is well settled the right of confrontation is satisfied when the defendant has had an opportunity to cross-examine the witnesses against him. State v. Busse, 231 Kan. 108, 111, 642 P.2d 972 (1982). It is clear defense counsel had the opportunity to thoroughly cross-examine Gregory Martin, which she did quite well. At times she was able to get him to answer her questions to her satisfaction. Other times, however, he was unresponsive or implicated the appellant. We hold the appellant was not denied his Sixth Amendment right to confront the witnesses against him.
The judgment of the trial court is affirmed.
Miller and Holmes, JJ., dissenting. | [
-64,
-24,
-44,
-84,
42,
98,
-86,
92,
83,
-61,
-31,
119,
-113,
-37,
29,
105,
122,
-81,
85,
105,
-45,
-89,
23,
-96,
-78,
-13,
50,
-41,
-77,
-52,
60,
-2,
12,
64,
-114,
85,
-30,
-118,
-31,
82,
-126,
-105,
-71,
-16,
82,
2,
48,
42,
-10,
15,
-79,
-98,
-29,
43,
126,
-62,
40,
42,
123,
45,
84,
49,
-85,
13,
-33,
18,
-78,
-110,
-66,
-89,
-40,
63,
28,
61,
0,
-24,
49,
-76,
-122,
124,
75,
-103,
12,
102,
-57,
1,
77,
-51,
40,
25,
46,
126,
-99,
-89,
-103,
120,
1,
-92,
-98,
-65,
96,
-76,
58,
120,
-50,
87,
93,
-28,
24,
-58,
-108,
-109,
-51,
16,
-44,
56,
-29,
1,
38,
117,
-99,
32,
92,
68,
115,
-103,
-102,
-110
] |
The opinion of the court was delivered by
Miller, J.:
This is an interlocutory appeal by Triangle Drilling of El Dorado, Inc., one of the defendants in this mortgage foreclosure action, from an order of the distract court of Cowley County holding that judgment liens do not automatically attach to oil and gas leasehold interests. The sole issue presented is whether that ruling is correct.
Triangle Drilling recovered a judgment against G. W. Marney in the district court of Cowley County on December 17,1979, for $19,642.50. Some $3,600 was paid on this judgment within the next five months, leaving the remainder unsatisfied. Triangle Drilling did not file or foreclose a lien against the oil and gas leasehold interests with which we are here concerned nor did it levy an execution on its judgment against those interests.
On July 23, 1980, G. W. Marney and others executed a promissory note in the sum of $160,000 to the plaintiff, Utica National Bank and Trust Company of Tulsa, Oklahoma. At the same time, as security for the note, the debtors gave Utica National a mortgage on certain oil and gas leasehold interests in Cowley County which are the subject of this lawsuit. The mortgage was filed for record in the office of the register of deeds in Cowley County, Kansas, on August 18, 1980. Utica National filed this lawsuit on July 30, 1981, seeking judgment in the amount of the unpaid principal and interest on the note, and for foreclosure of its mortgage. In addition to Marney and the other principal debtors, Triangle Drilling and other parties who held claims of record against one or more of the debtors were joined as defendants.
The trial court issued an order in which it found that the judgment lien of Triangle Drilling did not attach to oil and gas leasehold interests under K.S.A. 1982 Supp. 60-2202 because those leasehold interests are personal property and not interests in real estate.
K.S.A. 1982 Supp. 60-2202 reads in relevant part as follows:
“Any judgment rendered in this state on or after January 10, 1977, by a court of the United States, or any judgment rendered by a district court of this state on or after such date in an action commenced pursuant to chapter 60 of the Kansas Statutes Annotated shall be a lien on the real estate of the debtor within the county in which judgment is rendered.”
The question is, then, are oil and gas leasehold interests “real estate” for the purposes of this statute? The trial court found that they were not, and we agree. This ruling is supported by a long line of Kansas cases.
In Connell v. Kanwa Oil Co., 161 Kan. 649, 653, 170 P.2d 631 (1946), we said:
“[Wjhateverthe situation may be elsewhere and irrespective of how the present personnel of this tribunal would decide the question if it were one of first impression . . . since Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, down to the present time this court has definitely committed itself to the doctrine— even to the extent it can be said to be an established rule of property and must be adhered to — that an oil and gas lease conveys no interest in the land therein described but merely a license to explore, and is personal property — an incorporeal hereditament — a profit a prendre.” (Citations omitted.)
In Ingram v. Ingram, 214 Kan. 415, 521 P.2d 254 (1974), we said:
“We have stated in many cases that an oil and gas lease does not create any present vested estate in the nature of title to the land which it covers or to the oil and gas in place. It merely conveys a license to enter upon the land and explore for such minerals and if they are discovered to produce and sever them. We have further declared that an oil and gas leasehold interest is personal property — an incorporeal hereditament — a profit a prendre. (Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P.2d 631, citing many Kansas cases to that effect.) The Kansas courts, like those of other jurisdictions, have found some difficulty in fitting the interest of an oil and gas lessee into the traditional common-law classifications relating to ordinary surface interests in land. It seems to be agreed that an oil and gas leasehold interest is a property right, but there still remains wide disagreement among the various jurisdictions of this country as to whether it is real property or personal property. A number of our opinions state categorically in general language that an oil and gas lease is personal property. (Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P.2d 463; Connell v. Kanwa Oil Inc., supra; Wilson v. Holm, 164 Kan. 229, 188 P.2d 899.) In Western Natural Gas Co. v. McDonald, 202 Kan. 98, 446 P.2d 781, we qualify the rule by stating that the rights created by oil and gas leases covering land in Kansas constitute intangible personal property except when that classification is changed for a specific purpose by statute.” 214 Kan. at 418-19. (Emphasis in original.)
See also Western Natural Gas Co. v. McDonald, 202 Kan. 98, 100, 446 P.2d 781 (1968).
Seizing upon the last quoted sentence from the Ingram opinion, the appellant points to a number of Kansas statutes which declare that real estate includes oil and gas leasehold interests for the purposes of the statute and argues that these statutes indicate that oil and gas leases are real estate under the judgment lien statute. The statutes cited, K.S.A. 55-210 (mortgage and lien foreclosures), K.S.A. 58-2221 (recordation of oil and gas leases), K.S.A. 60-601 (venue), K.S.A. 60-1001 (actions to recover property), K.S.A. 60-2401 (execution), all provide for situations where oil and gas leases and real estate are treated the same or similarly. None of these sections, however, mandates the classification of oil and gas as real estate for purposes of the judgment lien statute. K.S.A. 1982 Supp. 60-2202 is notably silent on the question.
In Beren v. Marshall Oil & Gas Corp., 122 Kan. 134, 251 Pac. 192 (1926), we declared that the predecessor to the current judgment lien statute, R. S. 1923, 60-3126, which also provided that judgments became liens upon real estate, did not apply to an ordinary oil and gas lease because such leases are personal property, incorporeal hereditaments and not real estate. 122 Kan. at 135. The judgment lien statute, although amended several times in various particulars since Beren, has not been changed to include oil and gas leases.
The legislature has frequently modified statutes in response to holdings by this court. That it has not modified the judgment lien statute is indicative of a legislative determination to continue the doctrine announced in Beren, that judgment liens do not attach to ordinary oil and gas leasehold interests. We adhere to the Beren opinion. Under K.S.A. 1982 Supp. 60-2202, judgments of district courts of this state in actions commenced pursuant to Chapter 60 of Kansas Statutes Annotated become liens upon the real estate of the debtor but they do not become liens upon oil and gas leasehold interests. Such interests constitute personal property except in those specific instances when that classification is changed by statute for a specific purpose. Such is not the case here.
The judgment is affirmed. | [
-43,
108,
-111,
92,
-118,
-32,
40,
24,
89,
-95,
117,
87,
79,
-54,
4,
45,
-60,
105,
101,
104,
-73,
-73,
39,
96,
-64,
-13,
-15,
-35,
-78,
127,
-26,
-41,
8,
16,
-54,
-107,
-58,
10,
69,
92,
-50,
7,
-101,
100,
-39,
0,
52,
123,
112,
15,
81,
-91,
-14,
33,
28,
99,
40,
44,
-1,
45,
-47,
-40,
-65,
-121,
95,
16,
19,
5,
-104,
37,
-8,
26,
-112,
52,
0,
-24,
114,
-90,
-42,
117,
13,
27,
41,
-10,
39,
33,
61,
-21,
-24,
-104,
15,
-42,
-115,
-89,
-77,
24,
34,
40,
-105,
-67,
124,
81,
71,
-10,
-18,
5,
31,
125,
23,
-50,
-42,
-95,
15,
115,
-103,
-61,
-9,
7,
-80,
96,
-51,
-78,
93,
71,
120,
59,
15,
-80
] |
The opinion of the court was delivered by
Miller, J.;
Defendant Daniel J. Bourne appeals from his jury conviction in Wyandotte District Court of three counts of aggravated kidnapping, K.S.A. 21-3421; one count of kidnapping, K.S.A. 21-3420; and one count of aggravated battery, K.S.A. 21-3414. Before trial, Bourne pled guilty to two charges of aggravated robbery and charges of rape and indecent liberties with a minor, all arising out of the same series of incidents. He contends that the trial court erred in admitting a knife into evidence, in overruling his motion for judgment of acquittal on two counts of aggravated kidnapping, and in refusing a requested instruction; and he contends that one count of aggravated kidnapping was multiplicitous with the charge of aggravated battery and merged with it into a single count.
The evidence discloses brutal and revolting acts, but it must be reviewed. A family of five, consisting of mother, father, two daughters, ages fourteen and eleven, and a son, age seven, were asleep in their Wyandotte County home on December 8, 1981. The mother responded to a knock at the door; Bill Alderman appeared and asked to see her husband. She knew Alderman, so she let him in; defendant, whom she had not seen and whom she did not know, also came in. Both men followed her back to the master bedroom, where her husband and son were sleeping. Alderman produced an automatic pistol which he held pointed at family members during the ensuing events.
Bourne produced a knife, cut an electrical cord from a vacuum cleaner, and tied the husband’s hands and feet. He stabbed the husband in the shoulder. He then brought the two little girls to the master bedroom. He cut another electrical cord and tied the mother with it. Bourne took the older girl to another bedroom and attempted to assault her; he stopped, returned to the parents’ bedroom and completely severed the husband’s right thumb from his hand. Defendant then returned to the adjoining bedroom and raped the girl. Next, he took the younger girl away from her parents, brought her into the same bedroom with her sister, and manually assaulted her, causing pain and bleeding in her vaginal area. Thereafter, Bourne returned to the master bedroom and stabbed the husband in the buttocks and kicked him in the head. Bourne and Alderman took money, wedding rings and other jewelry from the parents, and a .38-caliber handgun from a closet. They broke a bottle over the headboard of the bed, causing glass to shatter over husband, wife and son; and they fired a shot into the bed. Fortunately, no one was hit. After threatening to kill the entire family, Bourne and Alderman left. The police were notified, and on the following morning they arrested both men near Alderman’s property. Bourne had a knife and the stolen handgun in his possession when he was arrested.
Defendant first claims error in the admission of the knife, contending that it was not relevant because there was no evidence that it was the knife used in the various crimes. A knife was used repeatedly by this defendant throughout the events of December 8; defendant was arrested the next morning, not far away, in possession of the knife introduced in evidence. Items found in an accused’s possession are relevant and admissible when the circumstances logically tend to connect the accused with the crimes charged. See State v. Baker, 219 Kan. 854, 858-59, 549 P.2d 911 (1976). Here there was no issue of identity; defendant admitted that he was present at the crime scene by his guilty pleas to four felony charges arising at the same time. The knife was relevant and was properly admitted into evidence. The lack of positive identification goes to the weight, rather than the admissibility, of the evidence.
Defendant contends that his removal of the girls, separately, to an adjoining bedroom for the purposes of rape and indecent liberties, respectively, does not constitute aggravated kidnapping under the rules stated in State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976). It does. Moving each little girl into another room and away from her parents, her brother, and defendant’s accomplice, so that none of them could see or interfere with defendant’s acts, was sufficient movement to constitute kidnapping. The rape and the indecent liberties supplied the bodily harm to make the kidnapping aggravated. This claim of error is covered fully by the rationale of our recent opinion in State v. Chears, 231 Kan. 161, 163-165, 643 P.2d 154 (1982).
Defendant requested two jury instructions based upon Buggs, which the court refused. The trial court gave full and complete instructions, fairly stating the law and covering generally the matter contained in the requested instructions. “Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused.” State v. Peoples, 227 Kan. 127, 136, 605 P.2d 135 (1980); State v. Wilson, 221 Kan. 92, Syl. ¶ 3, 558 P.2d 141 (1976).
Finally, defendant contends that Counts I and X are multiplicitous. Count I charged Bourne with aggravated kidnapping of the father in order to facilitate the crimes of aggravated robbery, rape and. indecent liberties, and alleges that -the victim was injured during confinement by being beaten. Count X charged Bourne with the aggravated battery of the same person with a deadly weapon, a knife.
The victim was tied up at gunpoint. He was beaten and stabbed. He was constantly threatened with the pistol. He was not constantly threatened or stabbed with the knife; its use was intermittent and was not a continuing act of force. The severing of his thumb was a separate and wholly unrelated act of violence. The offense of aggravated kidnapping, as charged, did not require proof of dismemberment or use of the knife; the offense of aggravated battery required proof of use of that deadly weapon. If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge and there is no multiplicity. See State v. Garnes, 229 Kan. 368, Syl. ¶ 6, 624 P.2d 448 (1981). Here there was no multiplicity and no merger. We find no error.
The judgment is affirmed. | [
-15,
-28,
-72,
-97,
27,
66,
42,
56,
-106,
-45,
-78,
115,
105,
-22,
1,
105,
30,
61,
84,
121,
-127,
-73,
37,
35,
-78,
123,
57,
-43,
-77,
-55,
60,
-12,
73,
96,
74,
-43,
2,
-118,
-11,
28,
-122,
1,
-88,
-30,
-47,
2,
44,
111,
108,
14,
53,
-100,
-13,
42,
52,
-54,
9,
44,
11,
61,
24,
-71,
-24,
23,
-33,
22,
-93,
-92,
-104,
13,
-64,
52,
-103,
49,
0,
-20,
115,
-112,
-124,
117,
101,
27,
-116,
98,
98,
35,
-35,
-50,
-71,
-119,
63,
118,
-99,
-89,
-103,
41,
64,
77,
-98,
-97,
108,
84,
7,
-8,
-9,
6,
29,
100,
-122,
-49,
-112,
-111,
13,
48,
90,
-72,
-13,
53,
0,
113,
-51,
-30,
84,
113,
122,
-77,
-114,
-77
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is a criminal action in which Frank D. Calderon (defendant-appellant) appeals a conviction of aggravated sodomy (K.S.A. 21-3506) from the district court of Pottawatomie County. The appellant contends the trial court erred in refusing to sustain his motion to dismiss on the grounds that this prosecution violated the double jeopardy provisions of K.S.A. 21-3108(2)(a) and his constitutional right to a speedy trial, and that he is entitled to credit under K.S.A. 21-4614 for the time served from the date of his arrest on that charge.
The evidence in the record reveals that the appellant forcibly placed an eleven-year-old boy in his car in Manhattan, Riley County, Kansas, and drove to a farm near Manhattan, located in Pottawatomie County. There the appellant performed sodomy on the boy. The appellant then drove the boy back to Manhattan where he was released.
The next day, on August 20, 1980, the appellant was charged with kidnapping and aggravated sodomy in the district court of Riley County. On September 8, 1980, the aggravated sodomy charge was dismissed without prejudice on a motion by the State. On September 17, 1980, the appellant was charged with aggravated sodomy in the district court of Pottawatomie County.
On December 8, 1980, the appellant entered a plea of nolo contendere to the kidnapping charge in Riley County. The appellant was sentenced to the state penitentiary at Lansing.
On September 2, 1981, the appellant was returned from the state penitentiary to Pottawatomie County to answer the charge of aggravated sodomy, and was arraigned on September 17, 1981, exactly one year after the charge was first filed in Pottawatomie County. On October 9, 1981, the trial court heard the appellant’s motion to dismiss, which alleged violations of K.S.A. 21-3108(2)(c) (double jeopardy), K.S.A. 22-3402 (right to speedy trial), and K.S.A. 22-4301 et seq. (Uniform Mandatory Disposition of Detainers Act). The motion was overruled. The matter was tried to the court on October 27, 1981, with evidence being presented upon stipulation of the parties by the county attorney. No evidence was presented by the appellant. The trial court found the appellant guilty of aggravated sodomy. In imposing sentence the court gave the. appellant credit for the time spent in jail on the Pottawatomie County charge from September 2, 1981, through October 27, 1981. This appeal followed.
The first issue on appeal concerns the double jeopardy provisions of K.S.A. 21-3108(2)(c), which provides:
“A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely . . . .”
The appellant contends the Pottawatomie County prosecution is barred because evidence concerning the sodomy charge was admitted during the proceeding before the Riley County court at which the appellant entered his plea of nolo contendere to the kidnapping charge. The “evidence” the appellant relies on in support of his claim of double jeopardy consists of the following statement made by the Assistant Riley County Attorney in response to the court’s inquiry concerning the factual basis for the kidnapping charge:
“Your Honor, I don’t think there’s any question that there’s a factual basis for the plea. . . . Basically the State’s evidence would show that this defendant, who [was] identified at the preliminary hearing, did pick up [the victim] by force —• actually removing him from his bicycle and then putting him into an automobile, taking him outside this county, over to Pottawatomie County where the State had alleged that he had performed aggravated sodomy on the boy.”
Three elements must be present to bar a subsequent prosecution under K.S.A. 21-3108(2)(a). First, the prior prosecution must have resulted in a conviction or acquittal, second, evidence of the present crime must have been introduced in the prior prosecution, and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. State v. Mahlandt, 231 Kan. 665, Syl. ¶ 2, 647 P.2d 1307 (1982); In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979).
The State maintains the Pottawatomie County prosecution was not barred for the reasons that the sodomy charge could not have been charged as an additional count in the Riley County prosecution because venue was improper there, and that K.S.A. 21-3108(2)(a) requires that evidence of the subsequent prosecution must have been admitted at a former trial, and is inapplicable where the prior conviction is based upon a plea of guilty or nolo contendere.
The resolution of this issue requires us to first determine whether the aggravated sodomy charge could have been brought as an additional charge in Riley County. The general rule is that venue exists in the county where the crime was committed. K.S.A. 22-2602. An exception to this rule appears in K.S.A. 22-2603, which states:
“Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.”
Construing this language as it appeared in the then-existing venue statute, K.S.A. 62-404 (Corrick), the court in Addington v. State, 199 Kan. 554, 563, 431 P.2d 532 (1967), held that for the statute to apply an overt act must occur in one county and the effects of such overt act, which are necessary to complete the crime, must occur in another county.
The State contends the act of kidnapping was not essential or necessary to the act of aggravated sodomy as set forth in K.S.A. 21-3506(&), as that section requires only that sodomy be committed with a child under the age of sixteen years, and does not require that the sodomy be committed with force or threat of force, as is provided in K.S.A. 21-3506(a). The State relies in part on State v. Korbel, 231 Kan. 657, 660, 647 P.2d 1301 (1982), wherein the defendant claimed venue was not proper for a prosecution for rape in Sedgwick County, where the victim was kidnapped from Sedgwick County, but the rape occurred in Sumner County. It was held that venue was proper in Sedgwick County because the element of the crime of rape of overcoming a woman’s resistance by force or fear was accomplished by the act of kidnapping in Sedgwick County. The State argues that under 21-3506(h), with which the appellant was charged, the crime was complete in and of itself when the sodomy was performed in Pottawatomie County on a person under sixteen years of age and, because overcoming the victim by force or fear was not an element of the crime, venue was proper only in Pottawatomie County.
Similar to the situation presented in Korbel, K.S.A. 22-2603 has been applied in several cases involving prosecutions for kidnapping and felony murder which have held that venue is proper in the county where the underlying felony of kidnapping occurred, although the act of murder, necessary to complete the crime of felony murder, occurred in a different county. See State v. Duvaul, 223 Kan. 718, 721, 576 P.2d 653 (1978); State v. Higdon, 224 Kan. 720, 724, 585 P.2d 1048 (1978); State v. Pencek, 224 Kan. 725, 730, 585 P.2d 1052 (1978).
To resolve the venue issue it is important to examine the crime charged and the elements necessary to prove that the crime has been committed. The crime of aggravated sodomy is complete under section (b) of 21-3506 when sodomy is committed with a child under the age of sixteen years. Proof of force, threat of force, or infliction of bodily harm on the victim is not necessary to establish the crime. Proof of this element is necessary, however, where a person is charged with aggravated sodomy under section (a) of the statute. It is important to note that the appellant was not charged in Riley County with aggravated kidnapping, which requires proof of infliction of bodily harm upon a person kidnapped to support a conviction. K.S.A. 21-3421. In that instance the act of aggravated sodomy would have been the overt act necessary to complete the crime of aggravated kidnapping and could have been charged as an additional count in the Riley County prosecution, thereby precluding a subsequent prosecution of the aggravated sodomy charge in Pottawatomie County.
In this case, however, we are concerned only with the actual charges brought against the appellant, and not what might have been charged by the prosecution. The crime charged in Pottawatomie County, aggravated sodomy as defined by 21-3506(b), was complete in and of itself in Pottawatomie County when sodomy was committed on the victim, an eleven-year-old child. The element of force, which concededly occurred by the act of kidnapping in Riley County, was not necessary to the completion of the crime charged and thus the situation here can readily be distinguished from State v. Korbel and other cases cited above. Venue did not lie in Riley County under K.S.A. 22-2603 because no act required to establish the crime of aggravated sodomy under 21-3506(fe) occurred there. The charge of aggravated sodomy was properly dismissed by the State and refiled in Pottawatomie County. Recause the crime could not have been charged in Riley County there was no violation of the double jeopardy provisions of 21-3108(2)(a).
The State further contends the double jeopardy statute does not apply where the prior conviction is based on a plea of nolo contendere. Those cases which have construed K.S.A. 21-3108(2)(a), or its forerunner, K.S.A. 62-1449 (Corrick), have focused upon the admission of evidence at a prior trial as the necessary factor bringing the statute into play. In State v. McCarther, 198 Kan. 48, 50, 422 P.2d 1012 (1967), the court stated:
“An essential component of 62-1449, supra, is the admission of evidence at the first trial. The sense of the statute is that the state may not retry a defendant for any offense which might have been included as an additional count in the information or on which the state might have elected to rely when evidence thereof was admitted at the first trial.” (Emphasis in original.)
In Coverly v. State, 208 Kan. 670, 493 P.2d 261 (1972), the defendant pled guilty to charges of escape and assault contained in separate informations arising out of an escape from jail. The court rejected the defendant’s claim that the conviction on the escape charge barred prosecution on the assault charge, stating:
“The thrust of the section is double jeopardy, but the operational fact is a trial at which evidence is introduced. . . .
“Thus, if there had been a separate trial of the jail break charge at which evidence of the assault had been admitted, subsequent prosecution for the assault would have been barred under the statute. The State’s remedy, had the matter gone to trial, would have been to include both charges as separate counts in one information or to have sought a consolidation.
“Here, however, there was no trial and no evidence introduced. The statute was therefore inapplicable, as the court below correctly held.” (Emphasis in original.) 208 Kan. at 672-73.
In Struble v. Gnadt, 164 Kan. 587, 191 P.2d 179 (1948), the court rejected the defendant’s contention that evidence introduced at the preliminary hearing of the three offenses charged violated the double jeopardy provisions of G.S. 1935, 62-1449 (K.S.A. 62-1449 [Corrick]), stating:
“The statute itself by its own terms applies to trial in the district court and not to preliminary hearings. It says ‘properly charged’ and ‘upon trial’ ‘conviction or acquittal’ ‘asked for a conviction.’ A preliminary hearing is not a trial. An accused is neither convicted nor acquitted at a preliminary hearing. He is merely held for trial in district court or discharged.” 164 Kan. at 591-92.
The statement relied on here by the appellant as barring the subsequent prosecution for aggravated sodomy was given by'the assistant district attorney to inform the court of a factual basis for the appellant’s plea. A plea of nolo contendere establishes that the accused is unwilling to contest the charges against him. K.S.A. 22-3209(2). Under K.S.A. 22-3210(4), before accepting a plea of guilty or nolo contendere, the court must first find that a factual basis exists for the plea. Under 22-3209(2) the court may make a finding of guilty upon a plea of nolo contendere, but the plea cannot be used against the defendant as an admission in any other action based on the same act. See also 21 Am. Jur. 2d, Criminal Law § 499; 1 Wright, Federal Practice and Procedure: Criminal 2d § 177.
In establishing a factual basis for the plea the court must establish that all elements of the crime charged are present. To establish the crime of kidnapping under 21-3420(fe) the prosecution must present evidence tending to show the defendant took or confined the victim by force, threat or deception, with the intent to hold the victim to facilitate the commission of a crime. See PIK Crim. 2d § 56.24. The latter element requires proof of the accused’s specific intent during the commission of the kidnapping to take or confine the victim for a particular purpose. Intent, like any element of a crime, may be shown by circumstantial evidence. State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977). Here the prosecution indicated to the court the nature of the crime allegedly committed by the appellant in Pottawatomie County, from which it could be inferred that the appellant had the intent to commit that crime at the time of the commission of the kidnapping. The prosecutor’s statement did nothing more than show that the element of intent to facilitate the commission of a crime was present as required by the kidnapping statute. The appellant was not tried on the kidnapping charge and no evidence of the aggravated sodomy was introduced. We hold that the statement of a factual basis by the State for the appellant’s plea of nolo contendere establishing the elements of the crime charged was not sufficient to bring K.S.A. 21-3108(2)(a) into play. For this reason also K.S.A. 21-3108(2)(a) is inapplicable and the Pottawatomie County prosecution for aggravated sodomy was not barred.
The appellant next contends he was denied his constitutional right to a speedy trial in violation of the 6th Amendment of the United States Constitution and Section 10 of the Kansas Bill of Rights. This claim is based on the thirteen-month delay between the time the appellant was charged with aggravated sodomy in Pottawatomie County and his trial on that charge. In his motion to dismiss before the district court the appellant claimed the delay had violated the statutory speedy trial provisions embodied in K.S.A. 22-3402. This claim has been abandoned on appeal and in its stead the appellant asserts a violation of his constitutional right to a speedy trial.
The speedy trial requirements in K.S.A. 22-3402 are made conditional on the lapse of time between arraignment and trial, not the lapse of time between the date the defendant was charged and the preliminary hearing. State v. Smith, 215 Kan. 34, 39, 523 P.2d 691 (1974). Here the appellant was brought to trial 40 days after his arraignment. No violation of his statutory right to speedy trial occurred.
The determination of a constitutional violation of the right to speedy trial depends upon the facts and circumstances of each case; the mere passage of time alone is not determinative. State v. Wilson, 227 Kan. 619, 621-22, 608 P.2d 1344 (1980). The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins. State v. Wilson, 227 Kan. at 621; Williams v. Darr, 4 Kan. App. 2d 178, 182, 603 P.2d 1021 (1979); State v. Taylor, 3 Kan. App. 2d 316, 321, 594 P.2d 262 (1979).
In State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972), this court adopted a balancing test set forth in Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), in which the conduct of both prosecution and accused is to be weighed. The four factors identified in Barker for consideration are: length of the delay, the defendant’s assertion of his right to speedy trial, reasons for delay and the prejudice resulting to the defendant.
In examining these factors as they apply to the facts of this case, we must first consider the length of the delay. A period of thirteen months elapsed between the time the appellant was charged in Pottawatomie County and when he was brought to trial. The length of delay in itself does not establish a violation but must be viewed in light of the other three factors. State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975); State v. Wilson, 227 Kan. at 622. In Wilson the court held a three-year delay was nonviolative of the speedy trial right. In Barker v. Wingo a five-year delay did not violate constitutional rights. In State v. Fink a delay of fourteen months was not considered constitutionally infirm. (See also cases cited therein, 217 Kan. at 678.) The Court of Appeals recently held in State v. Hunt, 8 Kan. App. 2d 162, 167-68, 651 P.2d 967 (1982), that a delay of one year between the defendant’s arrest and trial was not per se unreasonable.
Next we must consider the defendant’s assertion of his right to speedy trial. The defendant maintains he had no knowledge of the pending charge in Pottawatomie County and therefore his failure to assert his right to a speedy trial cannot be held against him. However, the record on appeal shows the defendant was well aware of related charges pending against him in Pottawatomie County at the time his plea was entered in Riley County on the kidnapping charge and at the time of hearing. Also, in a letter to the district court dated June 5, 1981, the appellant requested the case number “of the warrant on file at Pottawatomie County so that I may file a Mandatory disposition of a detainer act with the district attorney there.”
Although it is not mandatory that the defendant assert his right to speedy trial, the failure to do so makes it difficult to prove he was denied his constitutional right to speedy trial. State v. Hemminger, 210 Kan. 587, 595, 502 P.2d 791 (1972); State v. Hunt, 8 Kan. App. 2d at 168. This factor necessarily weighs heavily against the appellant in the Barker balancing test. Of greater significance is the appellant’s failure to attempt to preserve or assert his right to a speedy trial as provided by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., although it is clear from his letter to the district court the appellant was aware of the act.
The Uniform Mandatory Disposition of Detainers Act provides the means by which an inmate of a penal institution can require the disposition of criminal charges against him. This court has held that where a prosecution is pending against an accused confined in a state penal institution for another offense, the definition of speedy trial and the procedure for relief are gov erned solely by the provisions of the act. State v. Brooks, 206 Kan. 418, Syl. ¶ 1, 479 P.2d 893 (1971); Townsend v. State, 215 Kan. 485, 487, 524 P.2d 758 (1974). To obtain the right of speedy trial provided by section 10 of the Kansas Bill of Rights, as legislatively defined by the act, it is incumbent upon the accused incarcerated in a penal institution of this state to comply with all provisions of the act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the charge is pending against him and to the county attorney charged with the duty of prosecuting it. State v. McCowan, 226 Kan. 752, 758, 602 P.2d 1363 (1979), cert. denied 449 U.S. 844 (1980); State v. Dolack, 216 Kan. 622, 634, 533 P.2d 1282 (1975); Brimer v. State, 195 Kan. 107, Syl. ¶ 2, 402 P.2d 789 (1965). Where an inmate fails to assert his right of speedy trial under the provisions of this act it is deemed to have been waived. State v. McCowan, 226 Kan. at 758; State v. Dolack, 216 Kan. at 634; State v. Brooks, 206 Kan. at 421.
We must next consider the reasons for the delay. The State does not assert any reason for the delay, other than to point out that the appellant was in the custody of Riley County authorities until February 2, 1981, a period of five months. The appellant does not allege the delay was deliberate on the part of the State. Where a delay is due to negligence or inadvertence on the part of the State it is to be weighted less heavily but nevertheless should be considered since the responsibility for bringing the defendant to trial rests with the State rather than the accused. Barker v. Wingo, 407 U.S. at 531; State v. Fink, 217 Kan. at 679; State v. Taylor, 3 Kan. App. 2d at 323.
The final factor to consider is the resulting prejudice to the defendant. The appellant alleges he has been prejudiced by the delay because his sentence for the sodomy conviction could possibly have been ordered to run concurrently with the kidnapping sentence, and therefore he has lost up to a year he will have to spend in prison. The possibility that had a speedy trial been afforded, a sentence imposed would likely have been ordered to run concurrently with another sentence the defendant is serving, has been recognized as prejudicial to the defendant. See Williams v. Darr, 4 Kan. App. 2d at 183; Smith v. Hooey, 393 U.S. 374, 378, 21 L.Ed.2d 607, 89 S.Ct. 575 (1969).
The appellant relies on Williams v. Darr, 4 Kan. App. 2d at 183, to establish that his right to speedy trial was violated. There the Court of Appeals held that a delay of nineteen and one-half months between the time the defendant was charged and prosecuted violated his right to speedy trial. The court emphasized that the defendant was incarcerated on an unrelated charge and had no knowledge of the pending charge and was prejudiced in that he had been denied the possibility of having a sentence on the pending charge run concurrently with the sentence he was currently serving. We distinguish this case from Williams first because the length of delay is shorter, and second, because the appellant was aware of the possible charges pending against him and could have requested his right to speedy trial under the provisions of the Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. In Williams v. Darr the petitioner was unaware of the charges and was unable to discover their existence.
The only factor weighing heavily in the appellant’s favor is a loss of the possibility that his sentence on the aggravated sodomy charge could have been ordered to run concurrently with his sentence on the kidnapping charge. The weight of this factor, however, is greatly tempered by the failure of the appellant to assert his right to a speedy trial under the Uniform Mandatory Disposition of Detainers Act. Under the facts of this case we conclude the appellant was not denied his constitutional right to a speedy trial.
In his final point on appeal the appellant contends he is entitled to credit under K.S.A. 21-4614 for the time served from his arrest on the aggravated sodomy charge on August 20, 1980, until he was sentenced on that charge. The trial court ordered his sentence to be effective from September 2, 1981, the date the appellant was returned to Pottawatomie County from the state penitentiary. The provisions of K.S.A. 21-4614 are mandatory and require that a criminal defendant sentenced to incarceration be given credit for all time spent in custody solely on the charge for which he is being sentenced. Brodie v. State, 1 Kan. App. 2d 540, 542, 571 P.2d 53 (1977).
The appellant relies on State v. Thorn, 1 Kan. App. 2d 460, 570 P.2d 1100 (1977), where it was held the defendant was entitled to credit for time spent in juvenile court custody pending certification and trial as an adult in the district court on forgery charges, as well as for jail time in another state where he was held on a Kansas bench warrant for probation violation of his sentence on the forgery conviction. The State directs our attention to Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978), where we held a defendant is entitled only to credit for the time held in custody solely on account of, or as a direct result of, those charges for which he is now being sentenced. In that case a warrant was outstanding in Reno County on burglary and theft charges at the time the defendant was arrested in Barton County on drug charges. The defendant pled guilty to the Barton County charges and was sentenced. He later pled guilty to the burglary and theft charges in Reno County. Relying on State v. Thorn and Brodie v. State, the court rejected the defendant’s argument that he was entitled to credit on his Reno County sentence from the time of his arrest on the Barton County charges, stating:
“Under [K.S.A. 21-4614] a defendant should be given credit by the sentencing court for each day spent in jail solely on account of the pending charge, for which the prisoner is later .sentenced. But the record before us does not show that Campbell was held in Barton County on the burglary and theft charges. According to his motion, the record, and the brief, he was arrested in Barton County on drug charges. He was held on those charges until they were disposed of on December 19,1975, and he was credited for jail time in the sentence pronounced on that date. Though burglary and theft charges, and a charge of violation of probation, were pending against him in Reno County, he was not held in custody in Barton County solely or as a direct result of those charges.” 223 Kan. at 530-31.
In State v. Thorn, the defendant was being held at all times solely on the charge for which he was sentenced. The appellant in the present case was initially arrested on August 20, 1980, on both the kidnapping and sodomy charges, but the aggravated sodomy charge was dismissed on September 8,1980. Thereafter, the appellant was held in Riley County solely on the kidnapping charge. Although the sodomy charge filed on September 17, 1980, was pending against him in Pottawatomie County during the Riley County prosecution, the appellant was not held in custody in Riley County solely or as a direct result of the aggravated sodomy charge filed in Pottawatomie County. The appellant was not held in Pottawatomie County solely on the sodomy charge until he was returned there on September 2, 1981. The trial court properly credited the appellant with jail time served from September 2, 1981, prior to sentencing on the aggravated sodomy charge.
The judgment of the lower court is affirmed. | [
-44,
-18,
-3,
31,
10,
96,
58,
24,
19,
-77,
38,
115,
-23,
-54,
4,
121,
-37,
45,
-44,
121,
-63,
-73,
87,
-63,
-110,
115,
-7,
-35,
-77,
78,
-26,
-12,
72,
48,
10,
21,
6,
-56,
-57,
92,
-114,
1,
-119,
112,
-45,
3,
36,
123,
18,
2,
49,
46,
-77,
106,
60,
-21,
-55,
44,
-37,
45,
-103,
-111,
-7,
-105,
95,
82,
-93,
-92,
-100,
4,
-8,
58,
-104,
57,
16,
-20,
83,
-94,
-122,
-12,
77,
-87,
44,
102,
98,
35,
20,
-83,
-4,
-119,
31,
31,
-115,
-89,
-103,
72,
99,
37,
-106,
-99,
116,
54,
11,
-6,
-17,
7,
23,
-20,
2,
-50,
-80,
-109,
-49,
52,
2,
113,
-13,
53,
1,
117,
-59,
-26,
92,
87,
122,
-101,
-66,
-76
] |
The opinion of the court was delivered by
McFarland, J.:
The issue presented in this appeal is whether the nonclaim statute (K.S.A. 59-2239) bars payment from a decedent’s estate of conservatorship and guardian fees and expenses allowed in a conservatorship estate where no claim or demand' has been filed in the decedent’s estate within six months after the date of the first published notice to creditors. The district court held the failure of the. conservator Union National Bank & Trust Company of Manhattan, Kansas, to exhibit a claim in the decedent’s estate pursuant to K.S.A. 59-2239 barred payment of same by the decedent’s estate. The bank appeals from said determination.
Defendant Estate of Herman A. Werning, deceased, is in agreement with the facts as recited in the appellant bank’s brief. These facts are summarized as follows. On July 3,1980, the Riley County District Court issued Letters of Conservatorship to the bank for Herman A. Werning, an incapacitated person (Case No. 80 P 53). The ward’s daughter, Wilma A, Brooks, was named guardian of Mr. Werning.
On May 6,1981, the ward died intestate. On May 15,1981, Mr. Werning’s widow, Helen L. Werning, petitioned the Riley County District Court (Case No. 81 P 46) to appoint an administrator for the estate of Herman A. Werning, deceased. On May 19, 1981, notice to creditors was published pursuant to K.S.A. 59-2236 by the decedent’s estate.
On May 26, 1981, the conservator bank filed a petition in the conservatorship for final settlement including allowance of fiduciary fees and expenses. On July 29, 1981, the Court in the conservatorship allowed the following fees and expenses: (1) guardian fees $660.00; (2) guardian expenses $675.00; (3) conservator fees $1,065,00 and (4) conservator expenses (attorney fees) $2,915.17. On the same date the conservator bank was directed to pay the deceased’s-funeral bill and $500.00 to the guardian ad litem. The guardian and guardian ad litem were each discharged at that time. The conservator bank paid the funeral bill. Additionally the guardian was paid her expenses and a partial payment was made on the guardian fees. There were insufficient liquid assets in the conservatorship to pay the balance of the allowed fees and expenses.
Mr. Werning left three heirs. They are his two daughters, Wilma A. Brooks and Adria Gay Parker, and his widow, Helen L. Werning, who is the stepmother of deceased’s daughters. There was much dissension among the heirs as to who should be appointed administrator. As a result thereof the administrator, Paul E. Miller, was not appointed until October 20, 1981. In the interim period the bank performed services for the decedent’s estate in an unofficial capacity but the bank’s claim for fees and expenses does not involve any of these transitional services. On November 19, 1981, the six-month period for exhibiting claims against the decedent’s estate, pursuant to K.S.A. 59-2239, expired. On May 19, 1982, the bank filed a “Petition to Intervene and For Order to Deliver Funds” in the decedent’s estate. The purpose of the petition was stated as follows:
“Petitioner further states that it should be permitted to intervene in this proceeding as a party who has an interest in the assets of the decedent’s estate, That the court should enter its order directing the administrator .to pay the following fees, expenses and costs in Case No. 80 P 53 [conservatorship] in this court, to-wit:
(1) To Wilma Brooks for the balance due for guardian’s compensation. $ 454.00
(2) To the Union National Bank & Trust Co., for conservator’s compensation. 1,065.00
(3) To the Union National Bank & Trust Co., for its attorneys’ fees. 2,915.17
(4) To this court for costs.
On June 11, 1982, the petition was heard. On September 2, 1982, the petition was denied' on the grounds the claim was barred by K.S.A. 59-2239. The Bank, former conservator, appeals therefrom.
The issue presented appears to be one of first impression in Kansas. The nonclaim statute, K.S.A. 59-2239, provides:
“(1) All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within six (6) months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control. No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of said decedent’s death, unless a petition is filed for the probate of the decedent’s will or for the administration of the decedent’s estate within nine (9) months after the death of the decedent and such creditor shall have exhibited his or her demand in the manner and within the time herein prescribed, except as hereinafter provided.
“(2) Nothing in this section shall affect or prevent the enforcement of a claim arising out of tort against the personal representative of a decedent within the period of the statute of limitations provided for an action on such claim. For the purpose of enforcing such claims, the estate of the decedent may be opened or reopened, a special administrator appointed, and suit filed against said administrator within the period of the statute of limitations for such action. Any recovery by the claimant in such action shall not affect the distribution of the assets of the estate of the decedent unless a claim was filed in the district court within the time allowed for filing claims against the estate under subsection (1) of this section or an action commenced as provided in subsection (2) of K.S.A. 59-2238. Such action may be filed in any court of competent jurisdiction and the rules of pleading and procedure in such cases shall be the same as apply in civil actions. Any such special administration shall be closed and the special administrator promptly discharged when the statute of limitations for filing such actions has expired and no action has been filed or upon conclusion of any action filed. All court costs incurred in a proceeding under this subsection shall be taxed to the petitioner.” (Emphasis supplied.)
K.S.A. 59-2236 sets forth the requirements of the published notice to creditors of a decedent’s estate and is reproduced in pertinent part as follows:
“59-2236. Notice to creditors. The publication notice to creditors shall be to all persons concerned. It shall state the date of the filing of the petition for administration or petition for probate of a will and shall notify the creditors of the decedent to exhibit their demands against the estate within six (6) months from the date of the first published notice as provided by law, and that if their demands are not thus exhibited they shall be forever barred.”
K.S.A. 59-2237 sets forth how a demand may be exhibited in a decedent’s estate and is reproduced in pertinent part as follows:
“Any person may exhibit his or her demand against the estate of a decedent by filing a petition for its allowance in the proper district court. Such demand shall be deemed duly exhibited from the date of the filing of said petition. The petition shall contain a statement of all off-sets to which the estate is entitled. The court shall from time to time as it deems advisable, and must at the request of the executor or administrator, or at the request of any creditor having exhibited demand, fix the time and place for the hearing of such demands, notice of which shall be given in such manner and to such persons as the court shall direct.”
To recapitulate, K.S.A. 59-2239, the nonclaim statute, provides “[a]ll demands . . . against a decedent’s estate . . . not exhibited as required. by this act within six (6) months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment . . . .” (Emphasis supplied.) Are the guardian’s fees, conservator fees and conservator expenses for which payment is sought herein encompassed within the statutory term all demands? We believe logic mandates the question be answered affirmatively.
As stated in Gano Farms, Inc. v. Estate of Kleweno, 2 Kan. App. 2d 506, 582 P.2d 742, rev. denied 225 Kan. 844 (1978):
“The characterization of the nonclaim statute as a special statute of limitations is found throughout the Kansas cases. See, In re Estate of Dumback, 154 Kan. 501, 119 P.2d 476 (1941); Hutchinson v. Pihlblad, 157 Kan. 392, 139 P.2d 835 (1943); Jardon v. Price, 163 Kan. 294, 297, 181 P.2d 469 (1947); In re Estate of Bowman, 172 Kan. 17, 238 P.2d 486 (1951); In re Estate of Brasfield, 168 Kan. 376, Syl. 5, 214 P.2d 305 (1950); In re Estate of Wood, 198 Kan. 313, Syl. 2, 424 P.2d 528 (1967).” 2 Kan. App. 2d at 508.
Continuing:
“The Nebraska Supreme Court explained in Storm v. Cluck, [168 Neb. 13, 95 N.W.2d 161 (1959)], that nonclaim statutes are special statutes of limitations that are more rigorously enforced than general statutes of limitations. The defense of nonclaim generally cannot be waived by the administrator, and the statute runs regardless of the minority or incompetency of the claimant.” 2 Kan. App. 2d at 509.
“All demands” is certainly broad language. As noted in 3 Bartlett, Kansas Probate Law and Practice § 1316 (Rev. ed. 1953):
“The language of the nonclaim statute is clear, unambiguous, and comprehensive. Words more significant to express every demand to which a personal representative can or ought to respond, or which can charge the assets in his hands subject to administration, or more expressive of every liability, resting upon the decedent, could not have been employed.”
In In re Estate of Grindrod, 158 Kan. 345, 148 P.2d 278 (1944), this court discussed the broad application of the statute as follows:
“The words, ‘all demandsas used in [K.S.A.] 59-2239, which require demands to be exhibited in the probate court within a stated time were intended to be all-inclusive and to include claims or demands of every type and character against a decedent’s estate and to any portion thereof, except in particular cases where a statute may expressly provide otherwise.” Syl. ¶ 5. (Emphasis supplied.)
Exceptions from the requirement of having to file claims against a probate estate are not favored by law. One treatise has observed:
“[I]n general the course of legislative and judicial thought has been that it is better policy to deny exceptions to the bar of the nonclaim statute rather than to impair its final effect by allowing exceptions, however meritorious.” Atkinson, Law of Wills § 127, p. 691 (2d ed. 1953). ,
K.S.A. 59-2239(2) provides a limited exception to the six-month limitation imposed on those making demands against an estate. It provides an individual who has a tort claim against the decedent may file suit against the personal representative at any time within the statute of limitations for the tort action itself, notwithstanding the limitations of K.S.A. 59-2239. Gatewood v. Bosch, 2 Kan. App. 2d 474, 478, 581 P.2d 1198 (1978).
In 1979 Mr. Richard C. Harris, writing in the Kansas Law Review, commented:
“[T]he Kansas nonclaim statute has long been held to be an absolute bar to all demands against a decedent’s estate that are not timely filed. This rule is relied upon by heirs and beneficiaries, as well as all others dealing with the estate. Any weakening of this bar tends to bring an uncertainty into the administration of estates that has been missing since the adoption of the probate code in 1939. At some point it should be possible to know with certainty exactly what remains in an estate after the payment of all debts, taxes, and expenses of administration, so that the estate can be properly closed and distributed with finality.” Harris, Survey of Kansas Law: Wills, Trusts, and Probate, 27 Kan. L. Rev. 365, 372 (1979).
Bartlett’s Kansas Probate Law and Practice, in discussing the purpose of the nonclaim statute, declared:
“It is a very simple matter to stop the running of the statute in the matter of presenting claims against estates if a claimant manifests the lightest diligence regarding his rights; and the object of the statute is that he shall be required to do so. An evident purpose of the statute is to protect the executor or administrator against stale claims and to enable him to close the estate and distribute the balance thereof without unnecessary delay. A primary purpose is the speedy settlement of the estates of deceased persons in the interest of creditors, heirs, legatees, and devisees, and to render certain the titles to real estate. A speedy administration of the estate is for the benefit of creditors, who have the priority of right; and, when their claims are satisfied, for the payment of legacies or distribution to the heirs. When beneficiaries or heirs succeed to the estate it should be to a title freed from the incumbrance of or liability to debts. In subservience to this purpose has been the uniform construction of these statutes, and especially of the statute of nonclaim. In the absence of this statute, a settlement of an executor or administrator and the payment of legacies or distributive shares would be attended with the peril of future litigation by creditors against the beneficiaries and distributees to subject their legacies or distributive shares to the payment of debts. In making distribution or paying legacies, the personal representative would act at his own hazard.
“The statutes are therefore deemed to operate as a complete bar to all demands which could be charged on the assets subject to administration; a bar on which the personal representative could rely with safety, and proceed to pay legacies or make distribution; a bar which a creditor could invoke to protect the assets subject to the payment of his debt from diminution by being compelled to allow participation therein by those not having presented their claims within the prescribed period; a bar on which the heirs and beneficiaries may insist, for the exclusion of all claims not presented, which would reduce or exhaust the assets otherwise subject only to pay legacies or to distribution.” 3 Bartlett, Kansas Probate Law and Practice § 1316 (Rev. ed. 1953).
The district court in its opinion denying the conservator’s action to intervene and take funds from the sale of the deceased’s real estate, noted the repercussions the bank’s argument could have upon the stability and certainty of probate administration as follows:
“Once the conservator has delivered the assets to the fiduciary of the decedent’s estate they are assets of the estate. One of the paramount reasons for K.S.A. 59-2239 is for the orderly and timely administration of the estate and to provide a time frame in which the administrator or executor will be advised of any claims or demands being made so that final settlement and distribution of the remaining assets to the rightful heirs and/or beneficiaries can be made.”
Jones v. St. Francis Hosp. & School of Nursing, 225 Kan. 649, 594 P.2d 162 (1979), has been cited by both parties to this action and was referred to by the court below. In Jones the hospital obtained a personal judgment against the deceased before his death. After his death the hospital did not comply with the nonclaim statute. The hospital’s claim was held barred by reason of its failure to comply with K.S.A. 59-2239. The estate in the instant action asserts the status of the hospital, as a judgment creditor, is akin to the status of the conservator bank in the present litigation. Namely, both the hospital and the bank had obtained court judgments. The hospital had obtained its judgment through a personal action against the deceased before his death and the bank had received its judgment in the final accounting of a conservatorship. As the court in Jones ruled it was necessary for the hospital to have taken its personal judgment and complied with K.S.A. 59-2239, the estate herein argues it was also necessary for the conservator to have taken its award in the conservatorship case and complied with the nonclaim statute by filing a claim in the decedent’s estate. The district court herein found Jones persuasive when it stated:
“Certainly the ease of Jones v. St. Francis Hospital and School of Nursing, 225 Kan. 649, is factually different than the issue before the court, but I find that its legal principle still applies. There the judgment had been entered and it was in the nature of an unsecured demand or lien and the court ruled it must be filed within the time limits of K.S.A. 59-2239.”
While Jones is factually distinguishable from the instant action, Jones and its legal ancestors, e.g., Burns v. Drake, 157 Kan. 367, 139 P.2d 386 (1943); In re Estate of Charles, 158 Kan. 460, 148 P.2d 765, modified on rehearing 159 Kan. 228, 154 P.2d 117 (1944); In re Estate of Bourke, 159 Kan. 553, 156 P.2d 501 (1945), 157 A.L.R. 1107, stand for the proposition a party seeking to remove something from a decedent’s estate must comply with the nonclaim statute in the absence of an express statutory exception such as set forth in K.S.A. 59-2239(2). No such statutory exception exists applicable to the guardian and conservator fees and expenses herein.
We therefore conclude the district court did not err in holding the bank’s claim for guardian and conservator fees and expenses was barred by the nonclaim statute, K.S.A. 59-2239.
The judgment is affirmed.
Miller, J., dissenting. | [
-44,
-20,
-15,
94,
10,
-32,
42,
26,
75,
-15,
53,
83,
-21,
-54,
21,
105,
-14,
13,
113,
121,
-61,
-77,
87,
-128,
-46,
-6,
-79,
-35,
-72,
127,
-90,
-9,
76,
-80,
74,
-43,
102,
-126,
65,
-36,
-114,
0,
9,
5,
-39,
66,
48,
109,
30,
73,
113,
63,
51,
56,
25,
103,
72,
46,
-5,
41,
-64,
-112,
-85,
5,
127,
21,
1,
20,
-104,
35,
72,
42,
-104,
113,
0,
-24,
114,
-90,
-122,
-12,
103,
89,
40,
102,
102,
33,
53,
-49,
-96,
-104,
15,
-46,
-99,
-89,
-110,
89,
99,
37,
-106,
63,
125,
68,
7,
-4,
-26,
-108,
-113,
-20,
3,
-49,
-42,
-79,
-103,
127,
-99,
11,
-17,
-91,
50,
113,
-117,
-30,
95,
-58,
50,
27,
-114,
-71
] |
The opinion of the court was delivered by
Lockett, J.:
This is an appeal by the prosecution from an order of the court dismissing the complaint and discharging the defendant at the close of the preliminary hearing. The defendant, Lester Dwayne Jones, was charged with two counts of aggravated battery in violation of K.S.A. 21-3414. Both the prosecution and the defendant called witnesses and introduced evidence at the preliminary hearing.
The facts were as follows; On the evening of June 29, 1982, and the early morning of June 30, 1982, defendant and two friends arrived at the Foundry 21, a private club located in Wichita, Sedgwick County, Kansas. Between 2:00 and 2:30 the morning of June 30, 1982, an argument developed at the Foundry 21 between several customers of the club. The argu ment inside the club calmed down, but soon moved to the parking lot.
The victim in this case, Robert M. Davis, testified he observed the disturbance in the club and proceeded to follow the argument into the parking lot. Davis had no involvement with the defendant at this point but felt compelled to follow the argument into the parking lot to look after a business interest his family held in the Foundry 21 club.
It is at this point that the testimony of the defendant’s and the prosecution’s witnesses differ, causing much confusion in determining what actually happened. Prosecution’s witnesses testified that the defendant was the aggressor — picking up a large tow chain and swinging it around, yelling at everyone to leave, Davis started to turn away, the defendant advanced and struck Davis across the arm, shoulder, and on the head with the chain. A second individual, Bosch, advanced to see if the fallen Davis was a friend and was struck by the swinging chain.
Defendant’s witnesses testified to a much different story. They testified that the crowd outside the club was angry and armed with various weapons causing the defendant to use the chain as a defense to ward off the crowd. Davis was in front of the crowd shouting threats at the defendant and his friends.
It was from these varied versions of what happened in the parking lot that the trial judge at the conclusion of the evidence determined that a crime had not been committed, and that the defendant should be discharged and the case dismissed. The court stated:
“This is a very close case in the Court’s opinion. Normally the duty at preliminary hearing is to hear the evidence and if it shows that a crime has been committed and that there is probable cause to believe the defendant committed the crime, the Court is to hold the person to answer the charge. The preliminary hearing is not a trial. It is not a rehearsal for a larger trial to the jury. Normally the Court does not judge the credibility of witnesses in a preliminary hearing. That is the problem in this case, that the testimony of Davis can be understood to be if truthful to make out a crime that he was not the aggressor and that he was attacked without cause when he was not doing anything that he didn’t have a right to do. That much is obvious to everyone in the courtroom cannot be explained on the basis of the truthfulness of the other witnesses totally contradictory. All the other witnesses put him in the forefront of a crowd which was menacing in one way or another the defendant and two of his companions. If that is true, Jones has a right to use reasonable force to protect himself from an imminent attack. To me, from the evidence I am not convinced that that isn’t the truth. It may or may not be the truth; but from all the evidence I can’t find that a crime was committed. If the State has additional evidence, they can refile this case; but based upon what I have heard, I am not going to send it to the District Court. I will discharge the defendant and dismiss the case.”
Two issues were raised in this appeal. One, the trial judge erred at the preliminary examination by requiring the State not only to meet its statutory burden of proof, but also to disprove the defendant’s possible defense to the crimes charged. Two, the defendant claims that an appeal by the prosecution is not the proper procedure after the dismissal of the complaint by a trial judge at the preliminary examination.
Under our law, prosecution is commenced when a magistrate receives a complaint (K.S.A. 22-2301). The complaint must contain sufficient facts to allow a magistrate to make an intelligent and independent determination that probable cause exists to believe that a specific crime has been committed, and that the defendant committed or is committing it. Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978). The facts for the issuance of a complaint may be based on hearsay or personal knowledge of the affiant. The factual statement for obtaining a complaint need not be admissible under the rules of evidence as required in the preliminary examination or trial of the defendant.
At the preliminary examination tire defendant must be present, represented by an attorney unless that right is waived, and the witness examined in the defendant’s presence. The defendant has the right to cross-examine witnesses against him and introduce evidence on his behalf. K.S.A. 22-2902. This testimony, if preserved, may be used at the trial of the defendant, thus the requirement that the rules of evidence apply at this stage of the procedure. The quality of the evidence to obtain the complaint/information is no longer sufficient during the preliminary examination. Only evidence admissible in the trial of the defendant is to be considered by the magisfrate. If from the evidence it appears to the magistrate that a crime has been committed and there is probable cause to believe the defendant committed a felony, the magistrate binds the defendant over for trial. The proper test is whether there is amply sufficient evidence to support “probable cause” that a crime was committed and that the defendant committed it. State v. Ramsey, 228 Kan. 127, 131-32, 612 P.2d 603 (1980).
A preliminary examination differs from a trial. This court stated in In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963);
“There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty.”
In the recent case of State v. Hunter, 232 Kan. 853, 854, 658 P.2d 1050 (1983), Justice Miller stated:
“The reasonable doubt test has no place in a preliminary examination. As we have said many times, a magistrate conducting a preliminary examination serves a limited function: to determine whether it appears that a felony has been committed, and whether there is probable cause to believe that the accused committed it. It is an inquiry as to whether the defendant should be held for trial. A thorough discussion of the matter, with reference to many earlier cases, is contained in our recent case of State v. Ramsey, 228 Kan. 127, 131-32, 612 P.2d 603 (1980).”
The State complains that the trial judge at the preliminary examination placed on the prosecution an additional burden of disproving the- defendant’s defenses to the crime charged. The defendant has the right to cross-examine witnesses called by the prosecution and introduce evidence in his own behalf. These rights, especially the right to introduce evidence, imply the defendant can present a defense. The right to introduce evidence would have little meaning if the magistrate was not to seriously consider the defense.
Here the defendant claimed he acted in self-defense. The exercise of the right of self-defense is a lawful act. State v. Gregory, 218 Kan. 180, 185-86, 542 P.2d 1051 (1975). K.S.A. 21-3211 states:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
If the defendant struck in self-defense, there is no crime. No probable cause existed for trial of the defendant. But, if evidence conflicts there is a factual question for the trier of fact to determine. State v. Blocker, 211 Kan. 185, 505 P.2d 1099 (1973); State v. Stringfield, 4 Kan. App. 2d 559, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980). Self-defense was raised at the preliminary examination in People v. Doss, 406 Mich. 90, 103, 276 N.W.2d 9 (1979). The Supreme Court of Michigan held:
“The object of a preliminary examination is not to prove guilt or innocence beyond a reasonable doubt, nor should a magistrate discharge a defendant when evidence conflicts or raises reasonable doubt of his guilt; such questions should be left for the jury upon the trial. People v. Medley, 339 Mich. 486; 64 NW2d 708 (1954).”
The magistrate at a preliminary examination has a duty not only to pass judgment on the credibility and competency of a witness, but may consider evidence of a defense. The defendant should not be discharged where evidence conflicts or raises a reasonable doubt as to the guilt of the defendant. Where there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution. Where there is some doubt that the defendant failed to act in self-defense, he must be bound over for trial.
The defendant claims that an appeal by the prosecution is not the proper procedure following the dismissal of the complaint after the preliminary examination. K.S.A. 22-3602(fo)(l) states:
“Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in the following cases, and no others;
“(1) From an order dismissing a complaint, information or indictment.”
The defendant’s claim is without merit.
The trial court erred in applying an inappropriate test and in discharging the defendant. The evidence was sufficient to support a probable cause finding and to order the defendant bound over for trial. The discharge by the magistrate, at the preliminary examination stage of this matter, is not a bar to further prosecution. State v. Bloomer, 197 Kan. 668, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967).
We treat the order as one dismissing the complaint, K.S.A. 22-3602(b)(l). The judgment of the trial court is reversed and the case remanded with directions to reinstate the complaint and for further proceedings in conformity with this opinion. | [
-80,
-21,
-16,
-100,
9,
-32,
58,
-68,
80,
-126,
-16,
-13,
9,
-54,
5,
123,
122,
95,
84,
105,
-62,
-73,
7,
67,
-46,
19,
-5,
-43,
-77,
-50,
-12,
-3,
8,
112,
-54,
-35,
102,
74,
-57,
86,
-114,
1,
-87,
88,
-47,
8,
-76,
58,
114,
15,
49,
30,
-13,
42,
16,
-54,
105,
40,
91,
-81,
96,
-79,
-55,
-123,
-4,
50,
-77,
-94,
-98,
37,
-8,
26,
-103,
49,
2,
-24,
115,
-90,
4,
-12,
109,
-119,
12,
46,
99,
35,
25,
-49,
-24,
-119,
63,
54,
-99,
-89,
-103,
9,
9,
37,
-98,
-97,
112,
20,
-121,
-10,
-17,
28,
-39,
108,
-125,
-50,
-126,
-77,
77,
48,
-102,
-5,
-21,
-123,
16,
100,
-49,
50,
92,
97,
114,
-37,
-97,
-108
] |
The opinion of the court was delivered by
McFarland, J.:
In this action plaintiff Larry Keith Mays seeks recovery for personal injuries suffered when a gas pipeline system on which he was working exploded. Theories advanced for liability of the various defendants include negligence, manufacturing defect, failure to warn, and breach of express warranty. The trial court entered summary judgment in favor of each defendant and plaintiff appeals therefrom.
PRELIMINARY FACTUAL STATEMENT
A number of complex issues are raised, several of which involve intensive scrutiny of different facets of the factual circumstances herein. We believe it would be appropriate at this point to state only a preliminary factual framework which identifies the parties and their relationship to this controversy as well as the basic facts of what occurred. Factual details will be set forth in the opinion as needed.
Plaintiff Larry Keith Mays was an employee of intervenor, Doc’s Backhoe and Roustabout Service, a sole proprietorship owned and operated by Mr. Donald “Doc” Dale and located in Attica, Kansas. On December 18, 1976, Doc’s Backhoe and Roustabout Service was engaged in connecting a new gas well to an existing separator on property located three miles south of the town of Murdock, in Kingman County, on what is referred to as the Kostner lease. The leasehold property already had two producing gas wells and the third was complete except for connection to the separator, some 1,200 feet from the new well. This new well is referred to as Kostner No. 3.
After digging the ditch, installing the pipe, and making all the connections, Doc Dale checked the line for defects and proceeded to test the new pipeline system. Plaintiff was directed by Dale to remain near the separator and read the pressure gauge. As gas surged through the pipeline system on the test, the line whipped up and an explosion ensued. Plaintiff was engulfed in flames and severely burned.
Defendant, Graves Drilling Company, Inc., was the producer-operator of the lease but had no ownership interest therein. Graves had served as the drilling contractor on the new well and had hired a completion rig to be moved onto the site. After the completion work was finished, Graves hired Doc Dale to connect the new well to the separator. This type of work was frequently done by Dale as a part of his business.
Doc Dale purchased most of the materials utilized on this job from defendant Misco-United Supply, Inc., an oil field supply company located in Medicine Lodge. Included within those purchases were fiberglass pipe, adaptors and epoxy glue which had been manufactured by defendant Ciba-Geigy Corporation.
Numerous errors in the installation and testing procedures utilized by Dale were established. They include:
1. Use of a low-pressure nipple in the pipeline system which required a high-pressure nipple;
2. Failure to backfill or pin the fiberglass pipe between connections prior to testing;
3. Failure to thruster-block the elbows of the pipe prior to testing;
4. Failure to test the system with a nonflammable substance; and
5. Failure to turn off open flames on separator and heater prior to testing.
AFFIDAVITS
The first issue on appeal is whether the district court erred in striking portions of three affidavits attached to plaintiff s memorandums in opposition to defendants Misco and Ciba-Geigy’s motions for summary judgment.
Plaintiff s deposition was taken on May 12, 1978. Plaintiff was the only eyewitness as to the movement and rupture of the line. He testified in his deposition the pipe whipped up and broke within five feet either side of the steel-to-fiberglass connection. Five feet on the gas well side of the connection would be in the fiberglass pipe manufactured by Ciba-Geigy. Five feet on the separator side would be in the steel pipe not manufactured by Ciba-Geigy. More than three years later, on September 2, 1981, Misco filed its motion for summary judgment which included some six pages of “uncontroverted facts.” On September 16, 1981, Ciba-Geigy filed its motion for summary judgment with 55 detailed “uncontroverted facts.” On September 25, .1981, and October 19, 1981, plaintiff filed his memorandums in opposition to the respective summary judgment motions. Attached to the October 19, 1981, response was an affidavit of plaintiff dated October 8, 1981, which stated inter alia the pipe broke five feet into the fiberglass side of the connection.
The deposition of Doc Dale was taken on March 27, 1978. In his deposition Dale testified he believed he was well versed and well experienced in operations such as he was engaged in on the accident site. Specific examples of his testimony relative to his belief and reliance in his own expertise in hooking up wells will be set forth in the discussion of Issue No. 5. Further, Dale testified he did not read the Ciba-Geigy package inserts on making the bond of steel to fiberglass connections. The picture that came across was clearly that of a man who thought he knew all there was to know about hooking up oil and gas wells and did not need to read, and would not read, instruction manuals issued in conjunction therewith.
In his two affidavits, both dated September 21, 1981, and each attached to the respective responses, a very different Doc Dale is portrayed — a man thirsting for knowledge, who, if adequately instructed by defendants Misco and Ciba-Geigy, would have performed all the steps properly and thereby avoided the explosion and resultant tragic injuries to plaintiff.
In determining the issue, Judge Calvert held:
“The first matters that have to be dealt with are the supplemental affidavits. Those affidavits, to the extent that they are inconsistent with or contrary to the deposition testimony of Doc Dale and Mr. Mays, are stricken. I adopt the holding and the theory oF Radobenko [v.] Automated Equipment [Corporation, 520 F.2d 540 (9th Cir. 1975)] and Perma Research and Development [Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969)] cases.
“I conclude, as a matter of law, that a party who has been fully deposed cannot contradict his own prior testimony by affidavit, in order to defeat a motion for summary judgment.”
The cases referred to by the district court, Radobenko v. Automated Equipment Corporation and Perma Research and Development Co. v. Singer Co., are sound authority for the proposition that a party who has been examined at length on deposition may not raise a fact issue and thereby defeat a summary judgment motion simply by submitting an affidavit contradicting his prior testimony.
Roth federal cases involve application of Fed. R. Civ. Proc. 56 which is identical to K.S.A. 60-256. In Radobenko the Ninth Circuit affirmed a district court’s granting of summary judgment for defendant where plaintiff contended there had been fraud, breach of contract, and breach of fiduciary duties in connection with a stock repurchase option and an employment contract. In order to avoid summary judgment for defendant, plaintiff submitted an affidavit which was at odds with his prior deposition. The district court refused to consider the affidavit. In affirming the lower court, the appellate court noted:
“Mere allegations, and denials, that the contract was breached, that a fraud was committed, or that some fiduciary duty was breached do not alone establish the existence of a genuine dispute of material fact. Such allegations and denials thereof merely frame the ultimate issues to be determined by applying the relevant rules of law to established facts. Thus, appellants’ contention that the existence of these ultimate issues raises questions of fact which bar summary judgment is without merit. The proper test is whether, upon examination of the proofs appearing in the record, there exists a genuine dispute of material fact.
“Examination of the entire record discloses many pages of sworn statements by appellant Radobenko submitted in opposition to the motion for summary judgment. From the welter of conclusionary and argumentative recitals therein, we glean few probative facts. If there is any issue of fact in the proofs, it exists only because of the inconsistent statements made by Radobenko the deponent and Radobenko the affiant. Thus, we are presented with the question of whether contradictory testimony of a plaintiff alone can be used by him to defeat a defendant’s summary judgment motion where the only issue of fact results from the necessity of choosing between the plaintiff s two conflicting versions.” 520 F.2d at 543-44. (Emphasis supplied.)
After reviewing the conflicts between the deposition and affidavit, the federal appellate court declared:
“While the facts embraced in these three recitals are both material and relevant to the issues raised by the pleadings, we reject appellants’ efforts to characterize them as genuine issues of fact. . . .
“The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended, so that only the former may subject the moving party to the burden of trial. Suckow Borax Mines Consolidated, Inc. et al. v. Borax Consolidated, Limited et al., 185 F.2d 196, 205 (9th Cir. 1950). Here we are convinced that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial. Thus, we hold that the District Court properly found that there was no genuine issue as to any material fact.” 520 F.2d at 544.
The other case relied on by the district court, and also cited in Radobenko, was Perma Research and Development Co. v. Singer Co., 410 F.2d 572. In Perma Research plaintiff brought an action contending he was fraudulently induced to enter into a contract with defendant. In an affidavit filed to forestall partial summary judgment for defendant, plaintiff stated he had been advised by defendant that defendant had no intention of performing the contract. Plaintiff s affidavit was inconsistent with his prior deposition where he had said he had no way of knowing what defendant’s intentions were when the contract was executed. The district court granted partial summary judgment for defendant. In affirming, the Second Circuit Court of Appeals observed:
“If there is any dispute as to the material facts, it is only because of inconsistent statements made by Perrino the deponent and Perrino the affiant.” 410 F.2d at 578.
Continuing:
“Nor is this a case where the contradicting affidavit can fairly be said to contain evidence ‘newly discovered.’ If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary 'judgment as a procedure for screening out sham issues of fact. Cf. Dressler v. MV Sandpiper, 331 F.2d 130 (2d Cir. 1964).” 410 F.2d at 578. (Emphasis supplied.)
Concluding:
“The object of summary judgment is ‘to discover whether one side has no real support for its version of the facts,’ Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494, 498 (2d Cir. 1962), and thereby to avoid unnecessary trials. We recognize that summary judgment was never intended to be a substitute for trial by jury where the parties ‘really have issues to try.’ Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 621, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944). We recognize also that there may be some instances where summary judgment is too blunt a procedural device for deciding difficult cases. See, for example, Miller v. General Outdoor Advertising Co., 337 F.2d 944 (2d Cir. 1964). Nonetheless, summary judgment cannot be defeated by the vague hope that something may turn up at trial. Radio City Music Hall Corp. v. United States, 135 F.2d 715 (2d Cir. 1943). Since neither the Perrino deposition nor the Perrino affidavit raises any issue which we can call genuine, and since the allegations of fraud amount to little more than allegations on non-performance, we hold that Judge Bryan properly granted summary judgment dismissing the fraud claims.” 410 F.2d at 578.
Radobenko and Perma Research do not stand as isolated examples for the proposition a party may not use a contradicting affidavit against his own prior deposition testimony. See also Holifield v. Cities Service Tanker Corp., 421 F. Supp. 131, 136 (E.D. La. 1976), aff'd 552 F.2d 367 (5th Cir. 1977), and Bryant v. Western Elec. Co., Inc., 572 F.2d 1087, 1088 (5th Cir. 1978).
The Radobenko-Pernia Research rationale is consistent with Kansas law. In Powell v. City of Haysville, 203 Kan. 543, 455 P.2d 528 (1969), defendant was granted summary judgment in an action for personal injuries. Plaintiff moved to set aside the judgment. In so moving plaintiff filed an affidavit which was at odds with his, and his doctor’s, prior deposition testimony. In affirming the lower court’s summary judgment for defendant, we stated:
“Plaintiff asserts that his affidavit filed in support of his motion to set aside the summary judgment creates a fact question in that he denied he was told of a connection between his lung condition and his work with lime, alum and chlorine. The effect of his affidavit is an attempt to impeach the testimony of his own doctor. Further, plaintiff s own testimony conclusively shows that he knew his exposure to dust, under the conditions he related, adversely affected his condition and caused the severe attack in 1965.
“Except under conditions not prevailing here, plaintiff may not by his subsequent affidavit impeach his previous testimony upon deposition or the testimony of his attending physician and sole medical expert. (Amerine v. Amerine, Executor, 177 Kan. 481, 280 P.2d 601 [1955], and Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76 [1924].)” 203 Kan. at 549. (Emphasis supplied.)
See also Sade v. Hemstrom, 205 Kan. 514, 521, 471 P.2d 340 (1970).
Plaintiff s argument the affidavits are not inconsistent with the deposition testimony is wholly without merit. The affidavits were in direct conflict with the prior sworn testimony on extremely material facts relating to crucial issues, particularly insofar as the Dale affidavits were concerned.
Next, plaintiff likens the situation herein to that in Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980). Kennett-Murray is, as noted in the decision, distinguishable from the Radobenko and Perma Research cases.
In Kennett-Murray an employer brought suit against a former employee to recover on a promissory note and an employment contract. On February 23, 1978, the defendant employee was deposed. On April 21, 1978, the employee was permitted to file an amended answer. Subsequently, the employer moved for summary judgment. The employee filed an affidavit in opposition to summary judgment. The employer contended the district court should not consider the affidavit as it was inconsistent with the employee’s February deposition. The trial court agreed and granted summary judgment for the employer. On appeal the Fifth Circuit Court of Appeals reversed, holding the lower court erred when it declined to consider the employee’s affidavit. The Fifth Circuit reviewed the deposition and found plaintiffs counsel’s questioning confusing and the deposition, as a result of the confusing questions, was inconsistent even without reference to the affidavit. The federal appellate court found the employee’s postamended answer affidavit was submitted to clarify his deposition responses in light of plaintiff s confusing questions. The Fifth Circuit Court of Appeals stated:
“In considering a motion for summary judgment, a district court must consider all the evidence before it and cannot disregard a party’s affidavit merely because it conflicts to some degree with an earlier deposition. See, e.g., Camerlin v. New York Central R. Co., 199 F.2d 698, 701 (1st Cir. 1952); Adams v. United States, 392 F. Supp. 1272, 1274 (E.D. Wis. 1975). ‘An opposing party’s affidavit should be considered although it differs from or varies his evidence as given by deposition or another affidavit and the two in conjunction may disclose an issue of credibility.’ 6 Moore’s Federal Practice ¶ 56-15[4], p. 56-522 (2d Ed.) (footnote omitted). See generally Guarantee Insurance Agency Co. v. Mid-Continental Realty Corp., 57 F.R.D. 555, 563 [(N.D. Ill. 1972)]. Thus, a genuine issue can exist by virtue of a party’s affidavit even if it conflicts with earlier testimony in the party’s deposition.” 622 F.2d at 893.
Continuing:
“The gravamen of the Perma Research-Radobenko line of cases is the reviewing court’s determination that the issue raised by the contradictory affidavit constituted a sham.” 622 F.2d at 894.
Noting:
“In light of the fact that the affidavit is generally consistent with the position forwarded in the deposition, the concerns raised in Perma Research and Radobenko are not present in this case.” 622 F.2d at 895. (Emphasis supplied.)
Each of the court cases discussed herein (Radobenko, Perma Research, Powell, and Kennett-Murray) concerns an affidavit of a party which is challenged on the basis of inconsistency with the party’s prior deposition as considered in conjunction with a summary judgment motion against that party. Doc Dale technically does not come within that category. However, Doc Dale, d/b/a Doc’s Backhoe and Roustabout Service, and its workers’ compensation carrier, Cimarron Insurance Company, Inc., were voluntary parties as intervenors and were allied in interest with the plaintiff. They had a financial interest in any recovery by plaintiff against the defendants and were in the action as intervenors to protect their subrogated interest as authorized by K.S.A. 44-504. Under such circumstances, we see no legitimate reason why the Radobenko, Perma Research and Powell rationale should not apply with equal force to the affidavits of Doc Dale.
The questions and answers in the depositions pertinent to the issue herein are clear and free from any confusion of meaning. Over three years elapsed between their taking and the filing of the affidavits herein. The affidavits are unquestionably in direct response to the filing of the summary judgment motions. In fact, the affidavits attached to the response to the Ciba-Geigy motion (plaintiff s affidavit and one of Dale’s affidavits) were not even filed until subsequent to the granting of summary judgment to Misco on October 1, 1981, and were also utilized by plaintiff in a motion to reconsider said summary judgment. The summary judgment motions illuminated major flaws in plaintiff s case and the affidavits were obviously intended to contradict the prior depositions and thereby defeat the entry of summary judgment.
We conclude the district court did not err in striking the three disputed affidavits so far as they were inconsistent with, or contrary to, the respective affiant’s prior deposition testimony.
AMENDMENT OF UNCONTROVERTED FACTS
The second issue is alleged error in permitting defendant Ciba-Geigy orally to add, at the summary judgment hearing, a 56th “uncontroverted” factual statement to its previously filed 55 “uncontroverted” facts.
On July 24, 1981, plaintiff took the deposition of Ciba-Geigy’s marketing manager, Louis C. DiSioudi. On September 25, 1981, plaintiff took the deposition of a Ciba-Geigy’s expert engineering witness, Dr. Charles R. Manning.
The Ciba-Geigy motion for summary judgment was heard on October 22-23, 1981, wherein counsel for said defendant, Ciba-Geigy stated:
“Those are the uncontroverted facts which, from Ciba-Geigy’s standpoint, should be found in this case, with one additional uncontroverted fact we would like to suggest, based upon expert testimony in this case.
“And I’m sorry I don’t have this typed out. I would be happy to do that and furnish it to the Court. It would read, as follows: with references, the only expert testimony as to the initial cause of the failure which allowed gas and/or oil to escape causing the explosion was expressed by two experts for defendant Ciba-Geigy, Louis C. DiSioudi, and Dr. Charles R. Manning.
“Mr. DiSioudi of Ciba-Geigy testified that the steel low pressure nipple, which is not a Ciba-Geigy product, failed as a result of a slug of fluid hitting the separator end of the pipe at the elbow, and that almost simultaneously this caused the connection somewhere in the area of the steel, and fiberglass connection to fail; reference DiSioudi deposition, page 180 on line 16 through page 181, line 20.
“Dr. Charles Manning, who has a doctorate degree in materials engineering and is a professor of materials engineering at New York State University; Manning Deposition, page 4, line 9 through page 6, line 21.
“Dr. Manning testified, based upon his calculations and tests, that the low pressure nipple failed first, and that this then caused a failure at the steel to fiberglass connection, or a failure at the two couple interfaces, the Victaulic coupling; deposition of Manning, page 52, line 12, through 54, line 5. ,
“The low pressure nipple should have been a high pressure nipple; deposition of Dale, page 31, line 17, through page 34, line 6.
“The steel low pressure nipple was not manufactured by Ciba-Geigy Corporation, nor sold by Ciba or the defendant Misco. The grooved steel nipple, which is the part beyond the Victaulic coupling — added, parenthetically, the grooved steel nipple and the Victaulic coupling were not manufactured or sold by the defendant Ciba-Geigy — that reference on that is deposition of DiSioudi, page 168, line 17 through page 169, line 14.
“Your Honor, with respect to the plaintiffs response, they have in their response a number of additional uncontroverted facts. I would either be happy to go through my comments on those, at this time, or wait until they explain those additional uncontroverted facts that they feel are necessary, and then make any comments at that time.”
Plaintiff objected to this additional factual statement and contends on appeal it is violative of Supreme Court Rule 141, (230 Kan. lxxxv).
Supreme Court Rule 141 provides in relevant part:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record).”
Plaintiff contends the record shows the district court relied on this improper factual statement in entering summary judgment and cites the following comments by Judge Calvert at the October 23, 1981, hearing:
“I have prepared roughly, or perhaps specifically, uncontroverted facts taken from the statement of uncontroverted facts b.y both parties. I have also considered that there are some uncontroverted facts as set forth in the oral argument of the parties which was taken from the depositions.
“Taken in its best light, the Court must make a determination of what the evidence of the plaintiff is about where the failure was. The only evidence that I have heard that anybody came up with about where it probably was was the low pressure nipple that was located about twenty feet from any product manufactured by [Ciba-Geigy], There were other failures.
“Thei-e was, after that failure, a chain reaction of some type. I’m not sure anybody understands exactly what happened. The only person that I ever heard that stated their opinion as to what it probably was was Mr. DiSioudi, that said the pipe came up out of the ground and then it separated. The testimony from the witness is that it separated five feet either side of the joint.
“The initial failure was probably, by every construction of the testimony, at a place not manufactured by Ciba-Geigy.
“Ciba’s duty to warn does not extend to a product not manufactured by them.” (Emphasis supplied.)
The formal findings prepared by the district court make no specific findings as to precisely where the failure occurred. It is difficult to find any reliance by the trial court on the complained-of statement.
In any event, the additional factual statement did not contain any material new to the plaintiff. His counsel had taken the DiSioudi and Manning depositions which were the sources for virtually all the additional factual statement. The Dale deposition was also well known to plaintiff as his counsel had participated therein. There is no claim of inaccuracy which went undetected by virtue of the late introduction of the statement. Even assuming the district court did rely in part on the additional statement, we see no prejudice to the plaintiff. The allowance of the additional statement was within the discretion of the district court and we find no abuse of that discretion.
MATERIAL FACTS IN DISPUTE
For his third issue on appeal plaintiff contends the district court ignored material fact issues in entering summary judgment for the defendants. The trial court made extensive findings of uncontroverted facts, relative to the Ciba-Geigy summary judgment, wherein some 55 findings of uncontroverted facts are set forth. Plaintiff finds fault with virtually every unfavorable finding in both judgments. Many of the complaints are predicated on material contained in the stricken affidavits already discussed. Nothing would be gained in this opinion by setting forth each of the numerous complaints and discussing them individually. It is sufficient to say that each specific point has been individually considered and no error of any substance has been found.
Further plaintiff complains about numerous findings of fact which he proposed, but which were not adopted by the trial court. Each point of this aspect of the issue has also been afforded careful consideration and no error has been shown. We conclude that issue three in its totality is without merit.
MANUFACTURING DEFECT
The fourth issue is whether the district court erred in holding defendant Ciba-Geigy was entitled to summary judgment on plaintiff s theory of strict liability in tort based on manufacturing defect.
At the onset it should be noted that there is no direct evidence of a specific defect in any product manufactured by Ciba-Geigy which was a component of the gas line system herein. This brings us to the theory of nonspecific manufacturing defect asserted by the plaintiff. Simply put, may a manufacturing defect be proved by circumstantial evidence? In Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980), plaintiff brought an action to recover on a lien on a gas storage tank it had sold to defendant. Defendant cross-claimed contending the tank was defective as it had leaked gasoline into nearby water supplies. Defendant was unable to establish a specific defect but proceeded on a nonspecific theory. Quoting from authority, the Arkansas Supreme Court commented:
“The doctrine of strict liability does not change the burden of proof as to the existence of a flaw or defect in a product. However, it does away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W.2d 898 (1975); and Cockman v. Welder's Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979). Prosser, The Fall of the Citadel, 32 ATL L.J., p. 21 (1968), has discussed the elements of proof:
“ ‘Strict liability eliminates both privity and negligence; but it still does not prove the plaintiffs case. He still has the burden of establishing that the particular defendant has sold a product which he should not have sold, and that it caused his injury. This means that he must prove, first of all, not only that he has been injured, but that he has been injured by the product. The mere possibility that this may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not .... The plaintiff must prove also that he was injured because the product was defective, or otherwise unsafe for his use . . . .’
“Further [in] Prosser Torts, § [103], p. 672 (4th Ed. 1971), it is stated that such proof may be by circumstantial evidence:
“ ‘The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are not less applicable. The plaintiff is not required to eliminate all other possibilities, and so prove his case beyond a reasonable doubt. As on other issues in civil actions, it is enough that he makes out a preponderance of probability. It is enough that the court cannot say that reasonable men on the jury could not find it more likely than not that the fact is true.’
“See also, Woods, Comparative Fault, §§ 14:18 and 14:19 (1978); and Restatement, Torts 2d § 402A (1965).
“It is true, as appellant argues, that liability cannot be based on mere conjecture and guess. Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S.W.2d 885 (1964). However, in the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raises a reasonable inference that the defendant as argued here, is responsible for the defect. Higgins v. General Motors Corp., [250 Ark. 551,] and Cockman v. Welder's Supply Co., [265 Ark. 612], See also Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 199 A.2d 826 (1964); Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3rd Cir. 1969); Corbin v. Camden Coca-Cola Bottling Co., 290 A.2d 441, 60 N.J. 425 (1972); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972).
“The burden of proof was upon appellees to show that the circumstances surrounding the transaction were such as to justify a reasonable inference of probability rather than a mere possibility that appellant is responsible.” 2-71 Ark. at 225-26.
In Stewart v. Ford Motor Co., 553 F.2d 130 (D.C. Cir. 1977), deceased had bought a new automobile and a few days later, after driving 1,400 miles, the vehicle veered off a highway, headed straight for a bridge, and into a river. Plaintiff lacked direct evidence of a product defect but by a process of elimination was able to establish the cause of the accident originated in something produced by defendant.
“[C]ircumstantial evidence is admissible to prove the existence of a defect. See McCrossin v. Hicks Chevrolet, Inc., [248 A.2d 917 (D.C. 1969).]
“In holding that the existence of a defect may be proved by circumstantial evidence, however, courts in other jurisdictions have indicated that the burden remains on the plaintiff to present evidence on two closely related points. First, plaintiff must present evidence which would tend to negate causes for an accident other than a defect in the product. See Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 640 (8th Cir.), on remand, 352 F. Supp. 633. (E.D. Mo. 1972), aff'd, 485 F.2d 1288 (8th Cir. 1973); Franks v. National Dairy Products Corp., 414 F.2d 682, 684 (5th Cir. 1969); Bollmeier v. Ford Motor Co., 130 Ill. App. 2d 844, 265 N.E.2d 212, 217 (1970). Second, plaintiff must present proof which would suggest that whatever defect might have existed was one introduced into the product by the defendant. See, e.g. Lindsay v. McDonnell Douglas Aircraft Corp., supra, 460 F.2d at 637; Greco v. Bucciconi Engineering Co., 407 F.2d 87, 91 (3d Cir. 1969); Elmore v. American Motors Corp., 70 Cal. 2d 578, 75 Cal. Rptr. 652, 451 P.2d 84, 87 (1969) (en banc); Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 216 N.E.2d 244, 247-249 (1966);. Wojciuk v. United States Rubber Co., 19 Wis. 2d 224, 120 N.W.2d 47, 52 (1963).
“The quantum of proof that must be adduced to meet these two specific requirements is not great.” 553 F.2d at 137.
Continuing:
“[T]he burden on the plaintiff is only to negate those causes not in the control of the defendant which might reasonably have led to the accident. In identifying the causes plaintiff must negate, courts have usually required proof rebutting only the most obvious causes.” 553 F.2d at 138. (Emphasis supplied.)
See also Wolff v. Whittaker Marine & Mgf Co., Inc., 484 F. Supp. 1021 (E.D. Mo. 1979).
Mateika v. La Salle Thermogas Co., 94 Ill. App. 3d 506, 418 N.E.2d 503 (1981), was a case involving a propane tank which exploded and burned a workman. Plaintiff brought suit but had no direct evidence of product defect. Summary judgment was entered in favor of the defendant manufacturer. The Illinois Court of Appeals affirmed, stating:
“For the plaintiff to present a prima facie strict liability case, he must produce proof of three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) These elements may be proven inferentially, by either direct or circumstantial evidence. (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449.) For circumstantial evidence to make out a prima facie case, it must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective. (Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 336 N.E.2d 338.) Because liability in a products liability action cannot be based on mere speculation, guess or conjecture, the circumstances shown must justify an inference of probability as distinguished from mere possibility.
“While a plaintiff is not normally required to prove his case at the summary judgment stage, he must present some facts to support the elements of his claim. (Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 392 N.E.2d 663.)” 94 Ill. App. 3d at 508.
The closest case in Kansas to this issue is Farmers Ins. Co. v. Smith, 219 Kan. 680, 549 P.2d 1026 (1976), a case where, coincidentally, Judge Calvert also served as trial judge. Farmers’ insured purchased a new mobile home. The insureds had difficulties with the home including electrical problems. Three months after purchase and while the insureds were absent, the home burned. Numerous causes of the fire were propounded including an electrical heating tape, hot water service, power surges and a drop cord. The trial court directed verdicts for the defendants. Plaintiff produced an expert on mobile home fires who, by a process of elimination, ultimately concluded the source of the fire was a loose connection at or near the circuit breaker box in the mobile home. In holding the trial court erred in precluding the expert from giving his ultimate opinion as to the cause of the fire, we said:
“Sevart [the expert] stated that he looked for all of the possibilities that could start a fire and then by the process of elimination, he went through the complete checklist of possibilities to arrive at his opinion as to the source of ignition and the source of combustion in this fire.
“. . . Severt testified that in his opinion the cause of the fire was a loose connection at or near the electrical circuit breaker box. The trial court then inquired as to how Sevart came to that conclusion. The substance of Sevart’s testimony was as follows: This was a nearly new electrical home which had been occupied for only a short period of time. There was nothing to indicate that the wiring into the home and the wiring remaining in the home and the construction of the home were not in compliance with the code. The purpose of the circuit breaker box is to protect against overloads and not to protect against loose circuits and, in fact, there is no standardized test to check for loose circuits. Loose circuits cause trouble by degree. If the circuit is very loose, like the wire is disconnected, there is no problem because there is no current flow. But if the circuit is merely loose because it leaves the factory this way or vibrates loose over the 300 mile trip from the factory and it happens to be a relatively high current carrying circuit then there will be heat generated at that location, and this has been a cause of fires and he has personally investigated a fire of this type. Sevart arrived at his conclusion partly because he did not find any other things wrong. . . . Based upon the knowledge he gained as a result of his investigation of the fire, reading the depositions taken, and being present at the trial, it was Sevart’s opinion that a loose connection, rather than a short circuit, at or near the breaker box was the cause of the fire. Based upon his investigation he determined that the hot spot of the fire was in the area of the circuit breaker box. He was not of the opinion, however, that the breaker box itself was substandard or that any other thing was wrong with it.
“[T]he trial court was in error in excluding from evidence Sevart’s opinion as to the source of the electrical fire. It is, of course, settled law in this state that a cause of action may be proved by circumstantial evidence, and such evidence, in order to be sufficient to sustain a verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. . . . It is quite proper to use expert testimony to prove the cause of a fire provided the opinion of the expert is based upon adequate facts and is not based upon evidence which is too uncertain or speculative. (Virginia Surety Co. v. Schlegel, 200 Kan. 64, 434 P.2d 772 [1967]; American Family Mutual Ins. Co. v. Grim, 201 Kan. 340, 440 P.2d 621 [1968].)” 219 Kan. at 686-89. (Emphasis supplied.)
Concluding:
“By his elimination of other possible causes for the fire it would appear that his conclusion was reasonable that the fire was the result of some defect in the mobile home’s electrical system.” 219 Kan. at 690.
The action in Farmers Ins. was predicated on breach of express or implied warranty. The direction of the verdicts was affirmed on the basis plaintiff had no evidence such loose connection, even if it were the cause of the fire, existed at the time it left the manufacturer’s possession. The excluded expert testimony did not go to this issue. We see no reason, however, why the rationale of Farmers Ins. as far as proving manufacturing defects by circumstantial evidence should not apply equally to a products liability action.
We believe the test cited herein from Mateika v. La Salle Thermogas Co., 94 Ill. App. 3d 506, is an appropriate statement of the applicable law and we adopt the same. We therefore conclude the plaintiff, to present a prima facie strict liability case, must produce proof of three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant’s control. These elements may be proven inferentially, by either direct or circumstantial evidence. For circumstantial evidence to make out a prima facie case, it must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective. Because liability in a products liability action cannot be based on mere speculation, guess or conjecture, the circumstances shown must justify an inference of probability as distinguished from mere possibility. While a plaintiff is not normally required to prove his case at the summary judgment stage, he must present some facts to support the elements of his claim.
The findings of the district court established blatant and massive misuse of the products as components of the system installed and tested by Doc Dale. Further, the district court held:
“Generally, the court finds that the plaintiff is unable to negate products by manufacturers other than Ciba-Geigy as being products where a failure occurred. Although there is a possibility that a Ciba-Geigy product failed, there is an equal possibility that a non-Ciba-Geigy product failed.”
We conclude the district court did not err in entering summary judgment for defendant Ciba-Geigy on plaintiff s theory of strict liability in tort based on manufacturing defect.
DUTY TO WARN
The fifth issue is whether the district court erred in holding defendants were entitled to summary judgment on the claims of liability for failure to warn under theories of strict liability and negligence.
Plaintiff seeks to predicate liability on the failure to warn as to both Doc Dale and his employee, plaintiff herein. By virtue of their differing status, we shall consider them separately.
We shall first consider the issue as it relates to Doc Dale.
Doc Dale worked as a roustabout for Mull Drilling Co. prior to becoming the firm’s Production Superintendent in about 1964. He continued such employment until starting his own business in March 1974, which business operated under the name Doc’s Backhoe and Roustabout Service. Doc Dale described his business as “setting pumping units, hooking up wells, setting tank batteries, separators and what have you.” The separator on the lease in question had been put in place by Doc. Dale at some date prior to the accident herein for use in conjunction with the other two wells. Dale had attended a Ciba-Geigy C-300 fiberglass installation demonstration conducted on a Mull Drilling job site in the early 1960’s.
Ciba-Geigy prepared and sent to Misco an instruction manual on the installation of C-512 fiberglass .pipe. No claim is made the 42-page illustrated material is in anyway inadequate or incomplete. The manual covers, step by step, the proper installation and testing of a pipeline system based on the usage of Ciba-Geigy products including fiberglass-to-steel connections. The manual was intended for the usage of Ciba-Geigy fiberglass pipe purchasers and installers. Copies of the manual were placed on the Misco sales counter and were available to Dale and other customers. Dale did not have a copy of the manual and did not read the manual.
The Misco employee with whom Doc Dale primarily transacted business was Paul Lipscomb. Mr. Lipscomb believed Dale was a good installer and his work had always been given highest recommendations for quality. Lipscomb personally knew Dale had installed at least 20,000 feet of fiberglass pipe and had no knowledge of any problems Dale might have previously encountered in the installation of fiberglass pipe. Dale, apparently, had never had an accident installing such pipe. On the day of installation of the pipe on the lease in question, Kostner No. 3, Dale went to the Misco store to purchase the materials he had determined were needed for the job. Dale characterized his method of purchasing from Misco as follows:
“Q. When you go to — like in this case when you went to get this material do you till Lipscomb — how do you and Paul Lipscomb go about getting this material together? In other words, do you go down and itemize each item that you need or how does that work?
“A. No sir. Usually I don’t even write it down. I have done enough of that that I go in there and I say, ‘Paul, I need this and that and — ’ —I’ll start telling him and they start getting it.
“Q. You just start rattling it off to him?
“A. Right.”
Illustrative of Dale’s confidence in and reliance on his own expertise in hooking up wells are the following excerpts from his deposition:
“Q. I’m going to hand you what’s been marked as Deposition Exhibit 20 which I understand are instructions that were packed with the kit [Ciba-Geigy epoxy kit] that Mr. Withers has provided to us. Do you recall seeing instructions like those in the kit that you got to make this hook-up on this particular well, whether you did or not?
“A. I can’t say as I did.
“Q. If you had had instructions in that kit would you have read them?
“A. No, sir.
“Q. Did you need instructions to know how to make the connection?
“A. I felt like I didn’t.
“Q. Do you know whether or not the connecter kit for making the steel to Ciba connections which was purchased and used on this particular job had any written instructions with it?
“A. You mean the Ciba kit?
“Q. Right
“A. I can’t say whether it did or didn’t, because I have used so many of them I don’t pay any attention to whether it had instructions in it or not.”
"Q. Insofar as directions for use and that type of thing, you didn’t really need anybody from Misco as of December 18, 1976, to give you any directions on how to install that Ciba pipe, did you?
“A. No, sir.
“Q. You had done it before and—
“A. Right.
“Q. And you consider yourself to be an experienced man and indeed an expert on the job of doing what you were doing out there on this Kostner #3, don’t you?
“A. I figured I knew what I was doing, yes.
“Q. And the people at Misco-United Supply understood you to be an experienced man and an expert in the field when they sold you this material, didn’t they?
“A. Yes.
“Q. Didn’t the people at Misco treat you as a man who knew his business as you think you do?
“A. Yes, right.”
Under the circumstances herein did defendant Ciba-Geigy and Misco breach a duty to warn Dale of the danger resulting from improper installation and testing procedures of the pipeline system? We believe not.
In Younger v. Dow Corning Corporation, 202 Kan. 674, 451 P.2d 177 (1969), the Court reiterated Restatement (Second) of Torts § 388 (1965), comment c.
“[I]t is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe.” 202 Kan. at 678.
In Russell v. G.A.F. Corp., 422 A.2d 989 (D.C. 1980), plaintiff was injured when a sheet of corrugated asbestos cement shattered while it was being installed. There was no evidence the product was inherently defective, either by design or manufacture; however, there was information the product could be dangerous if not properly used. The Russell court stated the general proposition of law:
“A product can be perfectly made and still require directions or warnings on proper use in order to be safe. See Biller v. Allis Chalmers Manufacturing Co., 34 Ill. App. 2d 47, 180 N.E.2d 46 (1962).” 422 A.2d at 991.
The court in Russell noted:
“A plaintiff may limit the claim to negligence in failing to warn about foreseeable harm from a product, see Burch v. Amsterdam Corporation, D.C. App., 366 A.2d 1079, 1086 (1976), or claim strict liability for injury derived from the same failure. See Restatement (Second) of Torts § 402A, Comment j (1965). In either case, however, the duty is the same: ordinary care. See Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir. 1969) (Restatement, supra § 402A, Comment k, adopting the ordinary negligence standard of duty to warn).” 422 A.2d at 991.
In Harris v. Northwest Natural Gas Company, 284 Or. 571, 588 P.2d 18 (1978), plaintiff brought suit against a gas company when pilot lights on a hot water service or furnace exploded gasoline vapors which built up in a garage. The Harris court, relying upon Restatement (Second) of Torts § 402A (1965), commented:
“It is not essential that the product be defective in the sense that it was not properly manufactured. A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics. Jackson v. Coast Paint and Lacquer Company, 499 F2d 809, 811 (9th Cir 1974), citing Davis v. Wyeth Laboratories, Inc., 399 F2d 121 (9th Cir 1968). It is considered defective when it is sold without a warning. Comment h, § 402A.” 284 Or. at 576-77, n. 8.
In Eyster v. Borg-Warner, 131 Ga. App. 702, 206 S.E.2d 668 (1974), an electrician installing a heating and air conditioning unit attached house aluminum wires to copper wires in the unit. The electrician knew aluminum-copper connections could cause fires. A fire occurred. Suit was filed against Borg-Warner, the manufacturer, for failure to warn of the hazards associated with aluminum to copper connections. The trial court granted Borg-Warner a directed verdict and the Georgia Court of Appeals affirmed, stating:
“As the specific danger of the aluminum-copper connection was one commonly known to those in the trade, there was no duty on the manufacturer to warn of this hazard. There is no ‘duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product.’ Poppell v. Waters, 126 Ga. App. 385, 388 (190 SE2d 815) [1972], ‘Where the product is vended to a particular group or profession, the manufacturer is not required to warn against risks generally known to such group or profession.’ Frumer & Friedman, Products Liability, Vol. 1, § 8.04, p. 181, n. 3. See also Parker v. State, 201 Misc. 416, 105 N.Y.S.2d 735 [1951], aff'd 112 N.Y.S.2d 695 [1952].” 131 Ga. App. at 704. (Emphasis supplied.)
In Littlehale v. E. I. du Pont de Nemours & Co., 268 F. Supp. 791 (S.D. N.Y. 1966), aff'd 380 F.2d 274 (2d Cir. 1967), defendant had manufactured blasting caps for the U.S. Government during World War II. In 1957, plaintiffs, a Navy seaman and a civilian employee, were conducting propagation tests for the Navy’s Underwater Sound Laboratories in New London, Connecticut when one of the caps exploded prematurely. Plaintiffs alleged du Pont had failed to warn of certain inherent dangers in the use of blasting caps. In entering judgment for du Pont the federal district court observed:
“[T]here is ordinarily no duty to give warning to members of a profession against generally known risks. ‘There need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession.’ 4 Shearman & Redfield, Negligence § 656 (Rev. ed. 1941); see Rosebrock v. General Elec. Co., 236 N.Y. 227, 237-238, 240-241, 140 N.E. 571, 574, 575 (1923); McDaniel v. Williams, 23 App. Div. 2d 729, 257 N.Y.S.2d 702 (1st Dep’t 1965); Parker v. State, 201 Misc. 416, 105 N.Y.S.2d 735, 741 (Ct. Cl. 1951), aff'd, 280 App. Div. 157, 112 N.Y.S.2d 695 (3d Dep’t 1952); cf., Marker v. Universal Oil Prod. Co., 250 F.2d 603 (10th Cir. 1957); Kapp v. E. I. Du Pont De Nemours & Co., 57 F. Supp. 32 (E.D. Mich. 1944); Morrocco v. Northwest Eng’r Co., 310 F.2d 809, 810 (6th Cir. 1962); Jamieson v. Woodward & Lothrop, 247 F.2d 23 (D.C. Cir.), cert. denied, 355 U.S. 855, 78 S.Ct. 84, 2 L.Ed. [2d] 63 (1957); Sawyer v. Pine Oil Sales Co., 155 F.2d 855 (5th Cir. 1946); Stottlemire v. Coward, 213 F. Supp. 897 (D.D.C. 1963).
“If no warning is required to be given by the manufacturer to a purchaser who is well aware of the inherent dangers of the product, there is no duty on the part of the manufacturer to warn an employee of that purchaser. Marker v. Universal Oil Prod. Co., 250 F.2d 603 (10th Cir. 1957).” 268 F. Supp. at 798-99.
The above cases refer generally to dangers associated with the use of a particular product. As previously noted in this opinion, we are not dealing with a particular product manufactured by Ciba-Geigy that is specifically claimed to be defective or have caused the injury. Some Ciba-Geigy products were used as the component parts of the pipeline system along with products manufactured by others. Under the circumstances herein, any failure to warn must be predicated on breach of some duty to instruct on proper procedures of testing the completed system.
Dale was in the business of hooking up oil and gas wells. The numerous errors he made in testing the system he installed on this job go to his basic competence to perform his trade. Ry analogy, is a manufacturer or supplier of plumbing materials required to instruct every professional plumbing contractor to whom its plumbing products may be sold on basic plumbing procedures? We believe not. The installation of a gas pipeline system is obviously a highly specialized industrial field of endeavor — not the weekend activity of a neophyte do-it-yourselfer. Inherent in any installation of a system to transport natural gas under pressure from one place to another is the risk of fire and explosion. Under the circumstances herein it would be wholly unrealistic to hold that Misco’s employee, Mr. Lipscomb, had a duty to refuse to sell Dale the pipeline component parts in question until he explained to him the fundamentals of pipeline installation and testing procedures, or had required Dale to read the 42-page Ciba-Geigy installation manual.
In Thibodaux v. McWane Cast Iron Pipe Co., 381 F.2d 491 (5th Cir. 1967), a manufacturer sold cast iron gas pipe to a Louisiana town. Town officials knew the local soil was corrosive upon metal in the ground. Twenty-one years after the pipes had been laid a residential gas explosion occurred. The explosion’s cause was determined to be a hole in the pipe due to the caustic nature of the soil. Plaintiff homeowner brought an action contending defendant-manufacturer had breached its duty to warn in not telling the town officials about what effect soil may have on metal pipes. The federal district court granted defendant a directed verdict and the Fifth Circuit Court of Appeals affirmed. After noting a nondefective cast iron pipe was not, in and of itself, a dangerous substance nor that there was any danger inherent in such pipe, the court observed town officials already knew of the corrosive effect of the soil.
“[T]he duty to warn does not exist where the other party is already aware of the danger. Singleton v. Olin Mathieson Chemical Corp., 131 So. 2d 329 (La. App. 1961); Bragg v. Boh Bros. Const. Co., et al., 147 So.2d 258 (La. App. 4 Cir. 1962); Knott v. Williams, 109 So. 2d 517 (La. App. 1959); Sawyer v. Pine Oil Sales Co. et al., 155 F.2d 855 (5 Cir. 1946).” 381 F.2d at 495.
Continuing:
“We find that the consulting engineers were familiar with or chargeable with knowledge of the corrosion characteristics of McWane pipe and that such facts were properly within the scope of their own responsibility and expertise. We therefore conclude that McWane was under no obligation to inform them of such, or to give the warning as contended by the appellant.” 381 F.2d at 495.
Concluding:
“Finally and most importantly, the consulting engineers, hired by the City to design, supervise and control the construction of the gas distribution system were or should have been as knowledgeable of the characteristics of cast iron pipe as was McWane, perhaps more so. In these circumstances, we conclude that McWane did not breach any duty owed to the City and its consulting engineers and therefore we find that McWane was not negligent.” 381 F.2d at 497.
K.S.A. 1982 Supp. 60-3305, although enacted after the incident herein, states the generally applicable rules of law as follows:
“In any product liability claim any duty on the part of the manufacturer or seller of the product to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product, and any duty to have properly instructed in the use of such product shall not extend: (a) To warnings, protecting against or instructing with regard to those safeguards, precautions and actions which a reasonable user or consumer of the product, with the training, experience, education and any special knowledge the user or consumer did, should or was required to possess, could and should have taken for such user or consumer or others, under all the facts and circumstances;
“(b) to situations where the safeguards, precautions and actions would or should have been taken by a reasonable user or consumer of the product similarly situated exercising reasonable care, caution and procedure; or
“(c) to warnings, protecting against or instructing with regard to dangers, hazards or risks which are patent, open or obvious and which should have been realized by a reasonable user or consumer of the product.”
We conclude the district court did not err in entering summary judgments for defendants Misco and Ciba-Geigy on the issue of failure to warn Dale.
We turn now to the failure to warn issue as it relates to plaintiff himself.
Plaintiff was working as a roustabout for Dale at the time of the explosion. He had only a few weeks experience working in such capacity. He was working under the direct supervision of Dale. Dale was in charge of the installation. In Dale’s deposition the issue of control of the installation was explored, specifically as to the role of the Graves’ employee Bob Miller. The following questions and answers were made:
“Q. You’re the boss?
“A. Right.
“Q. And you determine how it’s going to be hooked up and what’s going to be done?
“A. And Bob and I have discussed that before, who was going to be boss.
“Q. And who is it, you?
“A. And I’m the boss when I’m hooking her up, yes sir.
“Q. It’s your baby to do it your way?
“A. Yes, sir, right.” (Emphasis supplied.)
Dale was in charge of the installation and testing of the system and he wholly controlled what was done that day. Were Misco and/or Ciba-Geigy under some duty to instruct plaintiff in basic gas pipeline laying and system testing? We believe not. To hold otherwise would place an impossible burden on manufacturers and sellers of industrial products.
As previously noted, the hooking up of a natural gas well is a highly specialized industrial activity. The danger of explosion and fire during such activities is common knowledge. The determination of the testing procedures to be utilized is under the control of the person in charge of the installation. This may be distinguished from- the operation of a machine commonly used by low echelon personnel or laborers where a simple warning on the machine may be necessary to advise or remind its users of a particular danger in the use of the machine. Misco and Ciba-Geigy are not under a duty to provide each employee of the installer of their products with the manual on proper installation and testing procedures or otherwise train such employees.
We conclude the trial court did not err in entering summary judgment in favor of Misco and Ciba-Geigy on the issue of failure to warn plaintiff.
EXPRESS WARRANTY
The sixth issue on appeal is whether the district court erred in granting summary judgment to defendants on plaintiff s claim of breach of express warranties.
Plaintiff contends express warranties were created by Ciba-Geigy and Misco under K.S A. 84-2-313(l)(a) and (c), reproduced as follows:
“Express warranties by the seller are created as follows:
“(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
“(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.”
Specifically, plaintiff contends the fiberglass pipe failed to withstand its rated 1400 p.s.i. testing pressure which was expressly warranted pursuant to (a) section above. Further, plaintiff contends improper installation procedures shown Doc Dale in the early 1960’s by defendants constituted a breach of express warranty under section (c) of the statute.
We shall first discuss the point relative to failure of the fiberglass pipe. The pipe was a component part of the pipeline system installed by Dale to connect the oil and gas well to the separator and tank battery. The failure of the system was due to improper installation, improper testing procedures, or one or more defective component parts. Plaintiff simply did not produce evidence tending to show the cause of the system’s failure was inability of the fiberglass pipe to withstand pressure up to its warranty capacity of 1400 p.s.i. Additionally, there are the previously referred to findings of grossly improper testing procedures of the system which clearly constituted product misuse.
We turn now to the point of alleged breach of express warranty stemming from the training session. The training session occurred at least ten years prior to the 1976 explosion herein and involved procedures for installing a low-pressure C-300 Ciba-Geigy fiberglass pipe. The pipe herein was a much newer product, a C-512 high-pressure pipe. In the intervening years Doc Dale had extensive experience in installing all types of oil and gas line pipe. Under the circumstances herein, it simply cannot be said Doc Dale purchased the C-512 pipe in reliance on anything said or done in the old C-300 training session or that same was a “basis for the bargain.” To do so would mean the 1960’s training session was some type of express warranty at taching to the use and purchase of all subsequent Ciba-Geigy pipeline products — a wholly unsupportable position.
In disposing of the express warranty claim the district court stated:
“As to the express warranty; express warranty, I think the evidence just fails, period, in that regard. It wasn’t part of the bargain, it wasn’t an on-going thing; it was just way too remote in time, among other things.”
We conclude the district court did not err in granting summary judgment to defendant on the issue of breach of express warranties.
WORKERS’ COMPENSATION
The final issue concerns the propriety of the summary judgment entered in favor of defendant Graves Drilling Company, Inc., on the basis that said defendant was the statutory employer of plaintiff pursuant to K.S.A. 44-503(c). Said statute provides in pertinent part:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform, and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen’s compensation act, references to the principal shall be substituted for references to the employer.” (Emphasis supplied.)
The facts relative to the nature of Graves’ business and its relationship to the type of work activity giving rise to the injury herein must be set forth in detail.
Graves Drilling Company, Inc., is a corporation engaged in the business of leasing, developing, operating and producing oil and gas properties. There were two producing gas wells on the Kostner lease property along with a separator and a tank battery. Graves was the operator-producer of this particular lease, but had no ownership interest in it. Graves operated the lease for the owners under an oral agreement. There was no production on the lease prior to the time Graves became the operator thereof. Under the operating agreement Graves was paid a monthly overhead and supervising charge. Graves hired an independent pumper for the lease who was paid by Graves, but the cost thereof was passed on to the owner. Graves supervised the operation, made minor repairs, and arranged for major repairs to be done.
Sometime prior to the December 18, 1976, accident the owners of the lease decided a third gas well should be drilled. Included in the duties of operator/producer Graves was the responsibility of transforming this decision into the creation of the third producing well. Graves as operator/producer of the lease hired Graves as drilling contractor to drill the well. The cost of same was passed on to the owners on a set charge per foot of drilling basis. After the well had been drilled Graves hired an outside firm to complete the well. After completion of the well, all that remained to be done was to hook up said well to the existing separator and tank battery some 1,200 feet away. This involved digging a suitable ditch and installing a pipeline between the well and the separator.
Graves performed the hookup procedure on about 30 percent of the wells it drilled, but elected to hire an outside firm, Doc’s Backhoe and Roustabout Service, to hook up the well in question. Plaintiff was an employee of Doc’s company. Graves did not own digging equipment and, when hooking up wells itself, would hire someone with trenching equipment to dig the necessary ditches. Graves may or may not have had enough roustabouts on the payroll on the day in question to have performed the hookup operation itself. Its Superintendent of Production was experienced in well hookups. When Graves hooks up new wells the owners are charged for the payroll labor.
Under the circumstances herein was Graves the statutory employer of plaintiff? We believe that it was.
In Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 564 P.2d 521 (1977), we held:
“K.S.A. 44-503(a) does not require the work undertaken to be the primary work of the principal contractor. It is sufficient if such work is a part of the overall operations of the principal contractor. A principal contractor may engage in several types of business activity, any one of which may constitute an integral part of its trade or business.” 222 Kan. at 315.
In Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976), the appropriate test was enunciated as follows:
“ ‘(1) £I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“ ‘If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s “trade or business,” and the injured employee’s sole remedy against the principal is under the Workmen’s Compensation Act.’ ” 220 Kan. at 483-84.
See also Zehring v. Wickman, 232 Kan. 704, 658 P.2d 1004 (1983), and Hanna v. CRA, Inc., 196 Kan. 156, 409 P.2d 786 (1966).
The provisions of the Workmen’s Compensation Act are to be liberally construed to bring workers under the act whether or not it is desirable for the specific individual’s circumstances. Orr v. Holiday Inns, Inc., 230 Kan. 271, 634 P.2d 1067, adopting 6 Kan. App. 2d 335, 627 P.2d 1193 (1981).
The business of Graves is leasing, developing, operating and producing oil and gas properties. The undisputed facts show the drilling of wells, their completion, and their hookup to tank batteries were integral parts of such business. Further, Graves, as producer/operator of the lease, had the responsibility' of bringing the new well into production — either by performing the necessary work itself or hiring it done by outsiders:
We conclude the trial court did not err in entering summary judgment in favor of defendant Graves Drilling Company, Inc., on the basis that said company was the statutory employer of plaintiff and hence plaintiff s sole remedy was under the Workmen’s Compensation Act.
CONCLUSION
The entry of summary judgment in favor of each of the defendants is affirmed. | [
-16,
108,
-40,
29,
8,
96,
42,
91,
85,
-93,
-11,
87,
-115,
-51,
13,
107,
-18,
125,
-11,
104,
115,
-77,
3,
67,
-42,
-73,
-72,
-59,
-78,
95,
124,
-33,
73,
96,
10,
-43,
-26,
10,
-43,
86,
-114,
4,
-87,
-32,
89,
-126,
34,
122,
112,
71,
49,
13,
106,
43,
29,
-61,
105,
46,
107,
-84,
-63,
-15,
66,
-123,
93,
16,
35,
38,
-108,
47,
-40,
30,
-104,
-72,
33,
-20,
114,
-90,
-44,
-11,
41,
-103,
12,
-30,
98,
33,
21,
-55,
109,
-104,
15,
-97,
-113,
-89,
57,
8,
-109,
8,
-97,
29,
114,
31,
-121,
126,
-24,
29,
95,
-3,
6,
-126,
-78,
-79,
15,
100,
-35,
-21,
-21,
-125,
36,
101,
-51,
-94,
93,
71,
118,
-97,
95,
-104
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought for injunctive relief and for reformation of a construction contract due to a unilateral mistake of plaintiffs employee in calculating the amount of plaintiff s bid. The facts in the case are essentially undisputed. Plaintiff, Anco Construction Company, Ltd., is a construction contractor. Defendant City of Wichita owns and operates a municipal water utility to provide water for its residents. On September 1, 1981, the city adopted a resolution declaring it necessary to improve its waterworks utility by constructing a pumping station and a reservoir to be known as the Webb Road Pumping Station and Reservoir. Revenue bonds were to be issued to finance the construction. On October 29,1981, the city caused an invitation to bid notice to be published in the official newspaper of the city, announcing that sealed bids on the construction of the pumping station and reservoir would be received by the city until 10:00 a.m. on December 4, 1981. Prospective bidders were advised that, immediately after the specified time for receiving bids and at the place designated, the bids would be opened and read aloud.
The invitation to bid also advised prospective bidders that the bid should be in a lump sum for the entire project and that a bid security in the amount of five percent of the total bid must accompany each bid. The bid security was to be made payable to the city of Wichita and was to be retained by and forfeited to the city as liquidated damages if the bid was accepted and the award was entered thereon, and the bidder, thereafter, failed to enter into a construction contract within ten days after the award was made by the city. Prior to 10:00 a.m. on December 4, 1981, the plaintiff, Anco, submitted its sealed bid, which bid was secured by a corporate surety bond in the amount of 5 percent of plaintiff s bid. Precisely at 10:00 a.m., the deputy city clerk for the city carried the eleven bids that had been received to the board room for opening, reading, tabulation, and action thereon by the city’s Board of Bids and Contracts. Immediately thereafter, each bid was opened and tabulated by the deputy city clerk. While the bids were being read and after the bid from the plaintiff had been read, the secretary for the mayor’s office came into the room and asked for Mr. Tinkum, plaintiff s representative, who was in the room at the time. Tinkum was advised that there was a long-distance telephone call for him in the mayor’s office. Tinkum and the secretary then left the room and the remaining bids were opened and read. When all the bids had been opened and read, the consulting engineer requested the Board of Bids and Contracts to defer its consideration of the bids for one week. The board granted the request and deferred action until December 11, 1981.
After consideration of the bids had been deferred, Tinkum returned to the board room and advised the deputy city clerk that Anco had apparently made a mistake in its bid and that he would like to withdraw it. The deputy city clerk advised Tinkum that the Anco bid had been opened and read and that he should address his request to the chairman of the board. No such request was made to the board chairman.
On December 4, 1981, plaintiff sent a Western Union Mail-gram to the city of Wichita, which was first received telephonically and later confirmed by mail on December 7,1981. A second communication was a letter sent by certified mail, bearing the date of December 4, 1981, and received on December 8, 1981. Both communications referred to a mistake in the bid submitted by Anco on the Webb Road Pumping Station and Reservoir and requested that Anco be permitted to withdraw its bid from consideration for the award of the construction project. Neither the letter nor mailgram stated what the mistake was. On De cember 10, 1981, plaintiff sent a letter to the mayor and city commission of Wichita, which letter identified the mistake in its bid as a mathematical error of $95,794, resulting from the omission of that amount for certain sections of the specifications pertaining to electrical instrumentation. The mathematical error occurred when the figures for those items were not properly transferred on Anco’s recapitulation sheets and included in Anco’s lump sum bid.
It is undisputed that the mistake was committed by an Anco employee as a part of the process in preparing the bid. The district court found that the defendant city had no knowledge that such mistake had occurred until after the bids were opened and read. On December 11, 1981, the various bids received, opened, and read on December 4, 1981, were considered by the city’s Board of Bids and Contracts. The board’s action was to recommend to the city’s governing body the bid of Anco as the lowest responsible bid. On December 15, 1981, at the regular meeting of the city commission, the commission was apprised of the recommendation of the Board of Bids and Contracts and of the request of Anco to withdraw its bid from consideration for award of the construction contract. Thereafter, the city approved the plaintiff s bid and awarded the construction contract to Anco. Notice of the award of the bid contract was thereafter transmitted to Anco by a representative of the consulting engineers. The contract documents for the job were delivered to Anco at its office in Topeka on December 18, 1981.
On December 21, 1981, the plaintiff filed this action in the district court of Sedgwick County. In substance, the plaintiff prayed the court to either cancel the bid and to order return of its bid bond or, in the alternative, for an order reforming the construction contract to prevent unjust enrichment of defendant. With this action pending on December 24, 1981, Anco executed all the contract documents and bonds and mailed them to the city’s consulting engineer accompanied by a protest signed by the president of Anco protesting the fact that it had not been allowed to withdraw its bid or obtain relief for the mistake in its bid. On December 29, 1981, the city accepted and signed the construction contract. The case was tried by the district court, sitting without a jury. The trial court entered judgment in favor of the defendant, denying plaintiffs petition for relief.
In arriving at its decision, the trial court relied on the decision of this court in Triple A Contractors, Inc. v. Rural Water Dist. No. 4, 226 Kan. 626, 603 P.2d 184 (1979), which held that the successful bidder for a public construction contract will not be granted equitable relief, by way of cancellation of the construction bid and the discharge and relief from its bid bond, because of a unilateral error in calculating costs. We agree with the trial court that that case is controlling and precluded the granting of equitable relief to the plaintiff on its petition in this case.
In its brief, counsel for plaintiff urges the court to reconsider and reject the rule adopted in Triple A Contractors. The court has reconsidered the matter, and the majority of the court adhere to the position previously taken in that case. We, therefore, hold, in accordance with Triple A Contractors, that in cases involving the letting of bids for public construction projects, equitable relief by way of rescission or reformation is not ordinarily available to the low bidder for a unilateral error of the bidder in calculating costs, where the bid is not withdrawn until after the process of opening bids has commenced and any bid has been opened. We wish to emphasize that this case does not involve a factual situation where notice of a mistake was given to the public body and the bid was actually withdrawn before the bid opening process commenced. This is a case where notice of the mistake was given and the bid was withdrawn after bids were opened.
We further note that the equitable remedy of reformation is not an appropriate remedy under the circumstances of this case. The construction contract for the Webb Road Project is the identical contract which was signed by the parties and which the parties intended to sign. The purpose of the equitable remedy of reformation of a contract is not to make a new contract or to supply terms upon which the minds of the parties have not met. Jones v. Crowell, 164 Kan. 261, 264, 188 P.2d 908 (1948). The prevailing rule in Kansas does not permit reformation of a contract in instances involving unilateral mistake. Squires v. Woodbury, 5 Kan. App. 2d 596, 599, 621 P.2d 443 (1980), rev. denied 229 Kan. 671 (1981).
The judgment of the district court is affirmed.
Miller, J., dissenting. | [
-16,
108,
-12,
-50,
30,
-64,
24,
-101,
121,
-91,
-91,
87,
-81,
-50,
4,
115,
-121,
125,
-44,
107,
-58,
-78,
11,
74,
-42,
-13,
-14,
-59,
-22,
125,
-10,
-58,
72,
49,
-62,
-99,
-26,
-62,
86,
92,
-50,
-123,
-54,
-31,
-15,
73,
54,
107,
48,
71,
49,
-116,
-13,
41,
16,
-61,
-20,
60,
-5,
45,
65,
-5,
-119,
-123,
-3,
21,
-128,
-92,
-70,
-57,
72,
34,
-104,
-71,
8,
-24,
115,
-74,
-126,
116,
79,
-5,
12,
98,
104,
0,
53,
-21,
-32,
-56,
23,
-33,
-113,
-92,
-77,
88,
106,
71,
-74,
-98,
112,
22,
5,
-2,
-2,
-44,
91,
108,
-125,
-122,
-16,
-13,
79,
124,
-100,
3,
-18,
3,
18,
100,
-55,
-78,
94,
71,
51,
-33,
-114,
-102
] |
The opinion of the court was delivered by
McFarland, J.:
The determinative issue in each of these consolidated appeals is whether a city may, under authority of the Home Rule Amendment to the Kansas Constitution (Kan. Const, art. 12, § 5) opt out from under K.S.A. 19-1310 which exempts attorneys registered for county law library purposes from payment of any occupation tax or city license fee.
The City of Overland Park (appeal no. 54,851) and the City of Pittsburg (appeal no. 55,031) each duly passed a charter ordinance exempting itself from K.S.A. 19-1310 and thereafter enacted an ordinance levying an occupation tax, or license fee, on attorneys practicing law within the respective cities (Overland Park City Code 5.04 and Pittsburg City Code 11-102). Both Johnson and Crawford. counties have county law libraries and practicing attorneys residing therein are required to be registered in connection therewith. The named party attorneys are registered for county law library purposes.
In the Overland Park case plaintiff James M. Brewster, and other affected attorneys, brought a civil action to enjoin the municipality from enforcing its ordinance against attorneys. In the Pittsburg case defendant-attorney, Carl Pingry, was criminally prosecuted for violation of the licensing ordinance. In both cases the attorneys prevailed with the respective district courts concluding cities could not, in the exercise of Home Rule powers, exempt themselves from K.S.A. 19-1310. Overland Park and Pittsburg appeal from said judgments.
Kansas county law library legislation has aptly been described by writers in the field as a “hodgepodge” needing replacement by a general county law library act. Putnam, County Law Libraries in Kansas, 22 J.B.A.K. 112, 119 (1953), Root, The County Library Law, 36 J.K.B.A. 177 (1967). In 1919 K.S.A. 19-1308, -1309 and -1310 were originally enacted authorizing the creation of the Wyandotte County law library. Through twelve amendments, between 1920 and 1974, county classifications were expanded to include more counties. Between 1939 and 1967 the Crawford County law library operated under legislation applicable to it alone (K.S.A. 19-1311 through -1313, repealed in 1967). Putnam, 22 J.B.A.K. 112; Root, 36 J.K.B.A. 177. In 1957 K.S.A. 19-1314 through -1318 were enacted, further expanding the list of eligible counties. Finally, in 1967 any county was authorized to have a county law library through enactment of K.S.A. 19-1319 through -1325. Although differing slightly, the various statutes have a common format of establishing a county law library by a majority vote of practicing attorneys residing in the county in which the library is to be maintained by a registration fee imposed on the attorneys in the county plus a docket fee on the court cases filed in the county.
K.S.A. 19-1310 provides:
“All attorneys registered under this act shall not be liable to pay any occupation tax or city license fees levied under the laws of this state by any municipality.”
The battle was fought at the district court level and in the briefs before us on the .basis of whether K.S.A. 19-1310 applies uniformly to all cities. The pertinent portion of the Home Rule Amendment (Kan. Const, art. 12, § 5). is as follows:
“Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness.” (Emphasis supplied.)
The district courts herein held K.S.A. 19-1310 was uniformly applicable to all cities and hence cities could not exempt themselves from its application. We agree with the ultimate result reached by the district courts herein but believe the issue should be determined on a different rationale.
County law libraries are authorized to be created upon a vote of the majority of the attorneys practicing or residing in the particular county. If a county law library is so created, all practicing attorneys in the county must register and pay an annual registration fee. There is a variation in the county law library statutes as to whether just residing in the county mandates registration or whether a nonresident attorney who maintains an office in the county is subject thereto, but these differences are of no significance to the issue herein.
The county law library statutes are located in Article 13 of Chapter 19 which concerns the functions of the clerk of the district court. The clerk has charge of the election, registration, and fees paid by attorneys as well as deducting the appropriate docket fees for the library’s maintenance. Management of the library is vested in the district judges and representatives of the bar. The county law library is only peripherally a governmental function, although the county commission is required to provide space therefor or pay a sum in lieu thereof. See K-S.A. 19-1321 for this exception,
K,S,A, 19-1310 grants an exemption from any occupation tax or city license fee to attorneys registered, for county law library purposes, K,S.A. 19-1310 does not forbid a county or city from imposing such a tax or fee, but merely grants an exemption therefrom to a class of individuals, Under such circumstances we conclude K,S.A. 19-1310 does not meet the threshold require ment of the Home Rule Amendment that an enactment from which a city wishes to exempt itself from be applicable to cities. Accordingly, the question of whether K.S.A. 19-1310 is uniformly applicable to cities is not reached.
The judgment in civil appeal no. 54,851 is affirmed. Criminal appeal no. 55,031 is dismissed. | [
-12,
-22,
-3,
126,
74,
-58,
26,
-100,
88,
-79,
103,
83,
-49,
-38,
13,
105,
-69,
61,
-48,
121,
-27,
-74,
83,
-62,
-122,
-5,
-45,
-44,
-7,
95,
-10,
-11,
78,
112,
-54,
-43,
6,
75,
5,
-98,
-114,
0,
-119,
81,
-55,
64,
60,
107,
50,
10,
-111,
-113,
-77,
40,
28,
-61,
-84,
44,
-37,
-92,
81,
-48,
-37,
-105,
92,
21,
1,
0,
-100,
-121,
-64,
-81,
-104,
59,
32,
-20,
115,
38,
-122,
-9,
13,
-39,
-87,
110,
98,
34,
48,
-17,
-72,
-85,
14,
81,
-115,
-26,
-107,
89,
99,
42,
-106,
-99,
101,
22,
11,
-6,
-30,
5,
31,
108,
-114,
14,
-44,
-77,
-113,
113,
-123,
17,
-17,
35,
-112,
81,
-127,
110,
95,
-57,
50,
27,
-50,
-44
] |
The opinion of the court was delivered by
Herd, J.:
This is an appeal from the trial court’s decision holding the school board’s nonrenewal of Dwight Haddock’s teaching contract was not supported by substantial evidence and was in violation of his due process rights. We affirm.
. Dwight Haddock was first employed by U.S.D. No. 462 as a teacher of vocational agriculture for the 1975-76 school year. His employment in that capacity continued through the 1978-79 school year, allowing him to acquire tenure under K.S.A. 72-5410 et seq., the Teacher Tenure Law. Mr. Haddock taught a variety of subjects related to vocational agriculture during this period of time, including farm management, farm power (farm equipment), animal science, metal shop and welding shop. He was also employed by supplemental contract as a Future Farmers of America (FFA) sponsor.
During the 1978-79 school year the administration recommended the Board of Education not renew Haddock’s contract for the 1979-80 school year. The Board made its administrative decision to follow the recommendation on March 6, 1979. On April 11, 1979, Haddock was informed by letter of the Board’s intention not to renew his contract for the 1979-80 school year. The reasons given for the Board’s decision were:
“1. Failure to work with Administration
“2. Failure to maintain adequate control of the classroom
“3. Failure to maintain adequate lesson plans
“4. Failure to properly care for school livestock over the weekend
“5. Failure to properly care for the school equipment.”
Later, on August 6, 1979, in response to a request for more specificity, the Board’s attorney explained what it meant by “Failure to work with administration”:
“(1) Failure to follow orders of the superintendent and principal to have adequate lesson plans for substitute teachers when Mr. Haddock was to be absent because of illness or other reason; (2) failure to follow the directives and orders of his high school principal, Bob J. Wesbrooks, in regard to controlling the behavior of Mr. Haddock’s students; (3) permitting students to drive school vehicles after being ordered by his principal and superintendent not to let students drive school vehicles; (4) failure to follow orders and directives of his principal and superintendent in regard to the care of livestock being used in class projects; (5) failure to follow orders and directives of the superintendent and principal in regard to Mr. Haddock’s duties in supervising the loading and unloading of students on school buses; (6) failure to follow orders and directives of his principal and superintendent to keep said principal and superintendent advised of his activities on behalf of the school district during the week before and the week after each school year; (7) failure to establish a good working relationship with his principal and superintendent; (8) failure to cooperate with his principal and superintendent concerning his teaching and nonteaching duties for the school district; (9) failure of Mr. Haddock to cooperate with his superintendent in regard to Mr. Haddock’s bankruptcy and in regard to garnishment proceedings against Mr. Haddock wherein Mr. Haddock’s salary was garnisheed by his creditors.”
Pursuant to K.S.A. 72-5438 Haddock requested a due process hearing and a hearing committee was impaneled. The hearing was held on September 10, 11 and 12 of 1979. Afterward, the committee voted two to cine recommending Haddock’s contract be renewed for the coming year. The full Board considered the hearing committee’s recommendation and voted five to two to reject it. A resolution to that effect was adopted February 11, 1980.
Haddock then perfected an appeal to the district court. Judge Robert Bishop, after considering the transcript of the hearing and deposition of the Board members, filed a thirty-nine page opin ion reversing the Board. He held the Board’s decision was not supported by substantial evidence and the Board had denied the teacher’s right to due process. From this ruling the Board appealed.
Appellant first argues the trial court erred in employing the “substantial evidence” standard to gauge the Board’s actions. The Board contends the proper standard is one of “minimal evidence,” claiming this standard was adopted by the federal district court in Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F.Supp. 895 (D. Kan. 1977).
We reject the Board’s argument. The statement in Bogart pertaining to the evidentiary standard for due process is inapplicable in this case. Bogart arose prior to the Kansas Teacher Due Process Act and enunciates only the minimum standard for constitutional due process. K.S.A. 72-5439 provides:
“The hearing provided for in K.S.A. 72-5438 shall afford procedural due process, including the following:
“(f) the right of the teacher to a fair and impartial decision based on substantial evidence.”
In addition, this court’s position has always been clear. A Board’s decision to nonrenew a tenured teacher’s contract must be supported by substantial evidence. See Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 755, 648 P.2d 225 (1982) (Kelly); U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980); Gillett v. U.S.D. No. 276, 227 Kan. 71, 79, 605 P.2d 105 (1980). The trial court properly employed the “substantial evidence” test.
Let us now turn to an examination of the record for the purpose of determining whether the Board’s decision was supported by substantial evidence. We have held in reviewing a district court’s decision the Supreme Court will make the same review of the Board’s action as did the district court. Kelly, 231 Kan. at 754; U.S.D. No. 461 v. Dice, 228 Kan. at 49. Under the Teacher Tenure Law, K.S.A. 72-5410 et seq., a tenured teacher may be terminated or nonrenewed only if good cause is shown, “including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.” Gillett v. U.S.D. No. 276, 227 Kan. at 78. The burden of showing substantial evidence of good cause rests with the Board. K.S.A. 72-5442; Kelly, 231 Kan. at 760. “Substantial evidence” means evidence “which possesses relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved.” Kelly, 231 Kan. at 755; U.S.D. No. 461 v. Dice, 228 Kan. at 50; Brinson v. School District, 223 Kan. 465, 473, 576 P.2d 602 (1978). The question for this court, then, is whether the U.S.D. No. 462 Board of Education met its burden. The answer requires a detailed examination of the evidence.
The evidence offered by the Board to show good cause for nonrenewal of Mr. Haddock’s contract was the testimony of Bob Wesbrooks, the principal; Dean McGrath, the superintendent; Edwin Flower, the custodian; and Myrl Dobbs, a woodworking and drafting teacher whose shop was next door to Haddock’s. Documents consisting of evaluations, letters and memoranda were introduced for the purpose of illustrating certain physical circumstances in the shop building where Haddock taught.
In discussing this issue let us use the reasons for nonrenewal outlined by the Board’s attorney in his letter specifying what “[f]ailure to work with the administration” meant. The reasons given in the letter were essentially the same as those outlined in the Board’s April 11, 1979, letter to Haddock, but with several additional points.
“(1) Failure to follow orders of the superintendent and principal to have adequate lesson plans for substitute teachers when Mr. Haddock was to be absent because of illness or other reasons.”
Mr. Wesbrooks testified Haddock’s performance in this regard had deteriorated from above average in 1977 to needing improvement in 1979. The Board also offered evidence of three letters written by Mr. McGrath expressing his concern over the absence of lesson plans. The first letter, dated February 1, 1978, was written to Mr. Wesbrooks after McGrath had substituted in the Vocational building. It stated that in the metals area, where Haddock taught, “No lesson plans are available so I suppose the students basically lack directions!” The second letter, dated September 18, 1978, was from McGrath to Haddock. It stated:
“You need to have weekly lesson plans on file in your desk in case of absence such as last Thursday, September 14.
“This calling in absence [sic] and giving me the daily plan on the phone doesn’t do the job.
“Lesson plan books and grade books are issued at the beginning of each school year. The purpose of both is to help the substitute maintain adequate records and follow a set classroom procedure.”
Finally, a January 4, 1979, letter to Haddock expressed McGrath’s concern over Haddock’s “lack of lesson plans, you always have to call in the plan rather than having it in the school issued plan book.”
Haddock responded by testifying that prior to 1979 he gave oral instructions and instructions written on his tablet to substitute teachers without objection from the administration. Other teachers testified the lesson plan books issued by the school were rarely used to advise substitutes of what should be done. Mr. Wesbrooks admitted on cross-examination lesson plans were not essential for shop-oriented courses because the students pursued their ongoing projects without interruption regardless of who supervised. Such projects made up a large portion of Haddock’s teaching load. Wesbrooks also acknowledged he was not strict regarding lesson plans with those teaching project-oriented courses.
“(2) [Fjailure to follow the directives and orders of his high school principal, Bob J. Wesbrooks, in regard to controlling the behavior of Mr. Haddock’s students.”
The Board offered evidence that Haddock’s failure to control his students resulted in vandalism and poor housekeeping in the shop area. First, in McGrath’s January 4, 1979, letter to Haddock the superintendent stated:
“The upkeep of the shop area, classroom, restroom, tool room, and office area is below standard. Your students have taken cans of spray paint, brown and black, and written names, some vulgar, in the restroom area and on the outside of the vocational building.”
The Board presented photographs of the shop area to illustrate these problems. Another letter from McGrath blamed Haddock for hand cleaner which had been smeared over lockers in the shop area. McGrath stated it “appeared” this was the work of Haddock’s fifth and sixth hour students. Mr. Flower, the custodian testified a few tools were sometimes left outside the shop area after school where the students were forced by overcrowded conditions to work on their projects.
The Board also offered the testimony of Myrl Dobbs, another shop teacher, to show Haddock had lost control of his students. He testified Haddock’s students came to his shop to “visit his girls” and that several brooms he loaned to Haddock’s students had disappeared. In Dobbs’ opinion Haddock’s students had no respect for their teacher. His opinion was based in part on an incident in which a student called Haddock a son-of-a-bitch. Haddock took the student to the principal and refused to take him back in class. Dobbs admitted a student had once referred to him in that manner. Dobbs, also a football coach, stated he tore all the buttons off the student’s shirt.
Finally, the Board offered evidence of administrative evaluations of Haddock’s ability to control students. Again, from March 1978 to March 1979, the rating in this area had gone from above average to “needs improvement.”
On the other hand, Wesbrooks admitted he had only “indirect” knowledge the shop damage was done by Haddock’s students. There was never any direct testimony the shop damage was done by Haddock’s students. For example, it turned out no one knew whether the hand cleaner vandals were students of Dobbs or Haddock. Further, there was no testimony Haddock condoned the damage or fostered an attitude of disrespect for school property. The school administration had a liberal policy toward the use of school facilities, including the shop, by the public and student groups. The Board’s evidence failed to establish Haddock’s students were responsible for the damage.
It is clear Dobbs’ problems with Haddock were of a philosophical nature. Dobbs was a strict disciplinarian, while Haddock, although not afraid to discipline students, was inclined to accept the fact some students are “ornery.”
The photographs offered by the Board depict some disrepair and damage to the shop area. Again, however, there was no direct evidence this was caused by Haddock’s students. Indeed, the worst damage shown, that of a steel pipe penetrating one of the shop doors, was illustrated by simulation in a photograph taken by McGrath and Wesbrooks after the incident occurred and after the decision to nonrenew had been made. The testimony regarding this incident indicated the door had only been cracked before the picture was taken.
Finally, with regard to the poor evaluation of Haddock’s ability to control his students, it should be noted this evaluation was done after a tentative decision to nonrenew Haddock had been made. It is evidence McGrath made an effort to document the decision to nonrenew after the fact.
“(3) [P]ermitting students to drive the school vehicles after being ordered by his principal and superintendent not to let students drive school vehicles.”
This concern emanated from a fatal accident which occurred in 1975 while a student was operating a school-owned pickup. It was conceded Haddock bore no responsibility for the accident.
Wesbrooks testified he once saw a student of Haddock’s driving a school pickup to haul feed and straw. Haddock testified he had twice permitted the use of a school tractor by students to clear a path through the snow so water could be hauled to school livestock but never permitted students to drive the pickup. After receipt of a memo from Wesbrooks the students were not allowed to use the tractor again. David Brothers, who taught with Haddock during the 1978-79 school year, testified he saw students of other teachers driving the tractor on numerous occasions after Wesbrooks’ memo to Haddock.
“(4) [F]ailure to follow orders and directives of his principal and superintendent in regard to the care of livestock being used in class projects.”
The care of the animals was a student responsibility as part of a course in animal science. McGrath testified regarding one incident when some sheep were without food and two or three times when the hogs were without water. There was also an incident where a hog was electrocuted as a result of chewing on a brightly colored wire which supplied electricity to a water heater.
Haddock admitted there were times when the sheep and hogs were not fed or watered on time. He testified this was a student responsibility and that since they used self-feeders and waterers with a reserve supply the animals were in no danger of harm from lack of feed or water. There was no evidence Haddock was at fault by not caring for the animals or providing for their care by students. All members of the hearing committee agreed this charge had not been substantiated.
“(5) [Fjailure to follow orders and directives of the superintendent and principal in regard to Mr. Haddock’s duties in supervising the loading and unloading of students on school buses.”
Bus duty was assigned to every teacher in the school. Wesbrooks testified there had been times when Haddock failed to show up for this duty. The Board offered a letter dated September 27, 1976, from Wesbrooks to Haddock which stated:
“I informed you last week of your late arrival at school. Bus duty is a part of the job. I realize FFA has you very busy, but the school structure should come first in your line of duty.”
Wesbrooks also testified bus duty was “easily forgotten,” and he didn’t consider it of sufficient importance to include in Haddock’s evaluations. Other teachers testified they had forgotten about bus duty periodically but had never received a written reprimand.
“(6) [F]ailure to follow order's and directives of his principal and superintendent to keep said principal and superintendent advised of his activities on behalf of the school district during the week before and the week after each school year.”
This criticism is apparently related to the fact the Board agreed to put Haddock on a ten-month instead of a nine-month contract. McGrath had requested Haddock give him and Wesbrooks a schedule indicating the teacher’s activities during the two weeks prior and the two weeks subsequent to the 1978-79 school year. Haddock failed to provide the two-week schedule at the end of the 1978-79 school year. Since this criticism refers to an incident which occurred after the Board decided to let Haddock go, it is irrelevant. In spite of that it is interesting to note Haddock testified he saw McGrath every day the first week and the second week he was at an FFA convention which the administration authorized.
“(7) [FJailure to establish a good working relationship with his principal and superintendent;
“(8) [F]ailure to cooperate with his principal and superintendent concerning his teaching and nonteaching duties for the school district.”
These two reasons are essentially indistinguishable. Wesbrooks and McGrath characterized them as generalizations of the preceding reasons.
There was considerable evidence concerning Haddock’s relationship with the two administrators and his willingness to cooperate with them. First, there were Wesbrooks’ evaluations of Haddock. On October 30, 1975, Wesbrooks characterized Haddock as an enthusiastic teacher who “works well with [the] rest of faculty.” On February 3, 1976, Wesbrooks wrote Haddock “has been receptive to change.” In October of 1977 the principal stated Haddock was “Receptive to change but need a more structured classroom with more organization.” On February 11, 1977, the evaluation form read: “Your planning and classroom organization has certainly shown improvement. I appreciate your co-operation and like the way you work with the staff.” Again, in March of 1978, Wesbrooks wrote: “You are receptive to change and accept criticism readily.” Suddenly, however, in the evaluation written March 6, 1979, Wesbrooks appeared to have an eye on the coming litigation:
“You have so many things going that some don’t get done well. There has been considerable destruction to the classroom and tool room as well as to the running track. Housekeeping needs improving. Permitting students to drive school vehicles, if an accident should occur, could be serious. The type of students you have need constant supervision at all times. You will need to organize to do this. You are a good FFA sponsor.”
McGrath and Wesbrooks attempted to explain the inconsistency between the high evaluations they had given Haddock for cooperation prior to the controversy and their present allegations of failure to cooperate and work with the administration. They made tortured distinctions between cooperation as a function of personality and cooperation as necessary to the performance of teaching responsibilities. These explanations defy reason. We are led to believe Mr. McGrath gave the true reason for the change of attitude to Haddock in his testimony on cross-examination:
(Question by Mr. Kinch)
“Q: Something intervened, I guess, to cause this dramatic change in your attitude. One of the things that intervened during the years between was that Mr. Haddock was involved in professional negotiations as a chief negotiator for the Association in the year of 1977-78, wasn’t he?
“A: That was one of his problems, yes.”
McGrath had been chief negotiator for the Board and Haddock for the teachers. After negotiating from December 1977 to July 1978, no agreement was reached and the Board issued unilateral contracts to the teachers.
No evidence was offered concerning reason No. 9 and it was accordingly dismissed at the conclusion of the Board’s case.
We must look at the Board’s evidence in the context of the surrounding circumstances. Haddock’s classes were too large and included the students with discipline problems. His courses were primarily project-oriented. The shop furnished Haddock was also used for a bus garage part of the time which restricted the useable space for student projects. Under school policy the shop was accessible to the public and other students. There was no way Haddock could be held responsible for tools, equipment oreare of the shop area. Further, there was no credible evidence Haddock permitted students to drive the school pickup. There was evidence students drove the tractor twice under Haddock’s supervision but the evidence the coaches used student operators of the tractor more often than Haddock cast reflections on the good faith of the criticism of Haddock. Finally, everyone admitted Haddock was an outstanding FFA sponsor. In light of these circumstances, and the administrators’ admissions concerning Haddock’s cooperation, and that being a negotiator was his problem, we conclude the Board complaints were not supported by substantial evidence.
The Board also argues the trial court erred in holding the Board violated Haddock’s right to due process. The court held this right was violated in two respects: (1) by the Board’s reliance on evidence outside the record; and (2) by the Board’s including in its final resolution to nonrenew reasons which were not included in the notice of nonrenewal or argued before the hearing committee.
That some of the Board members relied on evidence outside the record came to light in depositions taken subsequent to the due process hearing. Three Board members testified they had investigated Haddock beyond the hearing committee proceedings and had given weight to their extraneous determinations. The first question presented by the depositions is whether they violate the rule set out in Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 757, 648 P.2d 225 (1982) where we held:
“[A]bsent statutory authority an administrative body performing a quasi-judicial function is not subject to inquiry concerning its mental processes in reaching a decision.”
The district court found the depositions were admitted by stipulation. The record, however, reveals no such agreement. In fact, counsel for the school board filed a motion for protective order to keep the depositions from being taken. Thus, admissibility of the depositions is in issue.
As noted above, we held in Kelly the mental processes of the Board in reaching a quasi-judicial decision are not subject to inquiry or review. We also noted, however, the mental process rule is inapplicable where a prima facie case of misconduct is shown. 231 Kan. at 757; KFC National Management Corp. v. N.L.R.B., 497 F.2d 298, 305 (2nd Cir. 1974). Thus, inquiry into improper conduct of board members may be proper. Here the depositions were geared toward the conduct of school board members in pursuing their own investigations. As such the depositions were properly admitted.
Further, it is clear the conduct engaged in by certain members of the Board violated Mr. Haddock’s right to due process. Here, three of the five board members who voted to ignore the hearing committee’s recommendation testified they conducted their own independent investigations into the facts. They interviewed witnesses and sampled public opinion about the case. For example, Mrs. Ballin, a former board member, presented to board member Kessinger a letter which was essentially a statement of facts condemning Mr. Haddock. Kessinger took the letter to the Board meeting February 11,1980, when the report of the hearing committee was considered. Copies of the letter were circulated to all board members during the executive session before final action was taken.
It has been said, “due process requires at least notice, a hearing, and a method of decision which does not offend the concept of fundamental fairness.” Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. at 905; Kelly, 231 Kan. at 761. Indeed, the United States Supreme Court has recognized that:
“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” Greene v. McElroy, 360 U.S. 474, 496, 3 L.Ed.2d 1377, 79 S.Ct. 1400 (1959).
See also Schwartz, Administrative Law § 67, pp. 192-93 (1976). Here, Mr. Haddock had no opportunity to hear the evidence gathered during the independent investigations or to cross-examine the secret witnesses to test their credibility. This procedure was fundamentally unfair. We hold the Board violated Mr. Haddock’s right to due process.
We recognize a board of education has a dual role as both an administrator and a quasi-judicial body. Regardless of the inherent difficulty in the conflict of these roles, the teacher’s entitlement to a “fair and impartial decision” (K.S.A. 72-5439[/]), requires that the Board strive for a high standard of detached objectivity when performing its role as a quasi-judicial body. Attainment of this standard demands the Board abandon its role as prosecutor after the due process hearing and make a good faith review of its previous tentative decision in light of the case presented to the hearing committee. Accordingly, board members should refrain from discussing the case with any persons other than fellow board members and counsel from the date the hearing is completed until the Board renders its final decision.
The Board also violated Mr. Haddock’s right to due process in another way. In connection with its final decision to nonrenew Haddock the Board passed a resolution outlining the reasons for its actions. Those reasons included: “(1) Poor use of classroom space; (2) favoritism towards students in F.F.A.; (3) failure to use grade books as required; (4) lack of resourcefulness, innovation and common sense; (5) blame of the administration for his own shortcomings.” Obviously this was a wholesale change from the reasons given at the time of the Board’s initial decision to nonrenew. Haddock received no notice of these items and was thus not able to prepare a defense to them at the hearing. As such the essential elements of due process were not met. A teacher whose contract is being nonrenewed is entitled to be judged solely on the reasons enunciated in the notice of nonrenewal. Due process requires no less.
Appellee also complains the Board’s attorney acted improperly in advising the Board concerning procedure and the evidence after the due process hearing. Under the present legislative scheme, the actions of the Board’s attorney were proper.
Appellee argues the Board violated the Kansas Open Meetings Act, K.S.A. 75-4317 et seq., in adopting a resolution during an executive session of the Board on February 11, 1980. In light of our action on other issues herein that issue is moot.
We conclude Dwight Haddock’s teaching contract was improperly nonrenewed. The judgment is affirmed and the case remanded to the district court for determination of the amount of salary and interest owed appellee. | [
20,
-22,
92,
-81,
8,
-55,
58,
-102,
81,
-85,
37,
87,
109,
-105,
21,
121,
115,
109,
80,
105,
-57,
-78,
83,
-128,
36,
-5,
-37,
-35,
-69,
79,
-11,
95,
78,
48,
-126,
-41,
-122,
-61,
-55,
80,
-122,
5,
-85,
-6,
88,
-61,
60,
41,
-70,
15,
32,
30,
-13,
44,
24,
67,
-20,
46,
91,
109,
-127,
-15,
58,
-113,
111,
22,
-109,
4,
-98,
-121,
-8,
46,
-104,
-72,
-115,
-8,
58,
-74,
-62,
68,
45,
-103,
-120,
99,
98,
82,
-68,
-51,
-108,
-103,
78,
-70,
13,
-30,
-104,
25,
98,
4,
-98,
-98,
112,
86,
7,
116,
103,
-60,
31,
109,
10,
94,
-36,
-77,
15,
-19,
-106,
9,
-5,
39,
17,
85,
-119,
-20,
93,
69,
115,
23,
-58,
-74
] |
The opinion of the court was delivered by
McFarland, J.:
This is an interlocutory appeal by defendant Board of County Commissioners of Sedgwick County from the order of the district court overruling said defendant’s motion to dismiss predicated upon governmental immunity pursuant to K.S.A. 1978 Supp. 46-902(¿>).
The uncontroverted facts may be summarized as follows. On May 17, 1979, plaintiff Paul E. Griggs, Jr., was arrested by defendant Tim Martin, a police officer employed by defendant City of Wichita. The reason for the arrest was a traffic warrant issued by defendant City of Goddard. Officer Martin escorted plaintiff to the Sedgwick County Courthouse wherein the Wichita Police Department booking desk was located. The police vehicle was parked in the courthouse parking lot. The two men then started walking across the courthouse lawn to reach the booking desk but both fell over an unmarked wire stretched between two parking meters which was obscured by high grass and nighttime darkness. Although unclear from the record, apparently the wire had been stretched between the parking meters by Sedgwick County employees to discourage the public from walking on the courthouse grass. Plaintiff brought this action to recover damages for personal injuries arising from his fall over the wire. Motions to dismiss were filed by defendant police officer and the two defendant cities. The district court granted said motions and no appeal has been taken from said dismissals. The defendant Board of County Commissioners filed a motion to dismiss predicated on governmental immunity as provided by K.S.A. 1978 Supp. 46-902(h) and said motion was overruled. The district court duly certified the issue of the defendant county’s claim of governmental immunity as a proper subject for interlocutory appeal pursuant to K.S.A. 60-2102(fo) and the defendant county then perfected this interlocutory appeal.
The sole issue on appeal is whether maintenance of county courthouse grounds is a governmental function under K.S.A. 1978 Supp. 46-902(h).
A brief discussion of the history of K.S.A. 1978 Supp. 46-902(h) and its purpose is appropriate.
The judicially created doctrine of governmental immunity of a municipality for the negligent acts of its officers or employees in the performance of a governmental function was judicially abolished by this court in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978). The 1978 Kansas Legislature, in direct response to the Gorrell decision, amended K.S.A. 46-902 (Weeks) to include:
“(b) Except as may be otherwise specifically provided by statute and except for causes of action based upon nuisance and, in the case of cities, actions based upon negligent failure to correct defects in streets, local units of government shall be immune from liability and suit for torts committed by officers or employees of such local unit of government when engaged in a governmental function. The provisions of this section shall not affect, change or diminish any procedural requirement necessary for recovery from any local unit of government, nor shall it grant any immunity to a local unit of government when engaged in a proprietary function.” (Emphasis supplied.)
This amendment, effective May 16,1978, further provided that the provisions of the statute would expire July 1, 1979 (the effective date of the Kansas Tort Claims Act [K.S.A. 1982 Supp. 75-6101 et seq.]). The unfortunate incident involved in the case before us occurred May 17,1979 — clearly within the time period in which governmental immunity had been reimposed by statute. Hence the sole issue before us is whether maintenance of the grounds of the Sedgwick County Courthouse is a governmental function. If such activity is a governmental function, then defendant Board of County Commissioners is immune from suit and the district court erred in overruling said defendant’s motion to dismiss.
In State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, 578 P.2d 281, rev. denied 225 Kan. 845 (1978), the Court of Appeals distinguished governmental from proprietary functions, stating:
“Governmental functions are those which are performed for the general public with respect to the common welfare and for which no compensation or particular benefit is received, while proprietary functions are exercised when an enterprise is commercial in character or is usually carried on by private individuals or is for the profit, benefit or advantage of the governmental unit conducting the activity. Brown v. Wichita State University, 217 Kan. 279, 305, 540 P.2d 66 (1975) (Brown I); rehearing granted and opinion modified in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976) (Brown II) and cases cited therein.” 2 Kan. App. 2d at 276.
See also Prosser, Law of Torts § 131, pp. 977-84 (4th ed. 1971); Black’s Law Dictionary 826 (4th ed. rev. 1968); Black’s Law Dictionary 626 (5th ed. 1979).
In determining whether a function is governmental, the test is whether the activity in question is carried on for the use and benefit of the general public. Shoemaker v. City of Parsons, 154 Kan. 387, 391, 118 P.2d 508 (1941). If an activity is governmental in character the municipal corporation is immune.
In Harford County v. Love, 173 Md. 429, 196 A. 122 (1938), Anna M. Love was on her way to the women’s lavatory in the basement of a county courthouse when, by virtue of faulty construction and poor lighting, she fell on a staircase. After noting at common law no civil action would lie against a municipal corporation for the neglect of a public duty imposed upon it as the agent of the public by law for the benefit of the public generally.; 173 Md. at 431, Maryland’s highest court proclaimed:
“The maintenance of a court house is a distinctive function of government. It is requisite for the convenient administration of public justice. The buildings devoted to that primary purpose in the counties are also customarily used by the county commissioners in the performance of their functions as the governing body of the county, and by other officials who are engaged in rendering essential public services. The judicial and administrative purposes to which such buildings are devoted necessarily impress them with a governmental character.” 173 Md. at 433.
See also Erpenbeck v. City of Covington, 253 Ky. 233, 69 S.W.2d 338 (1934); and Hilgers v. Woodbury County, 200 Iowa 1318, 206 N.W. 660 (1925).
The maintenance of the Sedgwick County courthouse is clearly a governmental function and plaintiff does not seriously contend otherwise. Is maintenance of the courthouse grounds likewise a governmental function? We believe it is.
Frost v. City of Topeka, 98 Kan. 636, 161 Pac. 936 (1916), involved a situation where a young child had gone to a detention hospital where his parents were quarantined for smallpox. The defendant city operated the hospital. The detention hospital was required to have its own water supply and sewage system. While such system was being installed on the hospital’s grounds, dynamite was used. Blasting caps were negligently left on the grounds, and the child was severely injured when one of the caps was found and detonated by the child at play. The court held that the operation of the detention hospital was a governmental function and that:
“It makes no difference in principle whether the building or the grounds appurtenant to the building be defective, and it makes no difference whether the dangerous agency act by penetration or by concussion.” 98 Kan. at 638-39. (Emphasis supplied.)
Inasmuch as the operation and maintenance of the courthouse is a governmental function, it is logical that the maintenance of its grounds is likewise a governmental function. Liability should not be dependent on which side of the courthouse door an injured party fell.
In support of his contention that maintenance of the courthouse grounds is a proprietary function, plaintiff relies on Spear v. City of Wichita, 113 Kan. 686, 216 Pac. 305 (1923). Such reliance is misplaced. While working in a city park, Spear was directed by his foreman to cut down' a tree and was injured in the process of felling the tree. The Spear case arose prior to the enactment of worker’s compensation legislation and is concerned solely with the master-servant relationship. Taken in the light most favorable to plaintiff herein, Spear only stands for the proposition that even when functioning in a governmental capacity, an employer city must provide its employees with a safe place to work.
We conclude the maintenance of the courthouse grounds herein was a governmental function within the purview of K.S.A. 1978 Supp. 46-902(h) and the defendant Board of County Commissioners is immune from liability herein. It therefore follows the district court erred in overruling said county’s motion to dismiss.
The district court order overruling defendant county’s motion to dismiss is vacated and the case is remanded with directions. | [
-80,
-32,
-4,
-34,
15,
97,
48,
-114,
65,
-77,
-26,
119,
-87,
-40,
5,
123,
122,
109,
84,
105,
-55,
-74,
87,
-61,
-76,
115,
-23,
-33,
-65,
79,
-12,
-90,
76,
113,
-118,
-123,
6,
-62,
-57,
30,
-114,
6,
-87,
-8,
80,
-118,
-80,
41,
50,
27,
113,
14,
-5,
104,
24,
-29,
-87,
44,
91,
-84,
-95,
-7,
-87,
-107,
126,
16,
-93,
38,
-100,
7,
112,
42,
-112,
57,
16,
120,
115,
-126,
-122,
-12,
109,
-103,
-88,
38,
98,
33,
28,
-17,
-24,
-119,
14,
22,
-113,
-26,
-107,
89,
97,
13,
-106,
-99,
101,
18,
7,
-4,
-25,
5,
31,
108,
-121,
-54,
-48,
-111,
15,
44,
2,
83,
-49,
-123,
18,
113,
-121,
-26,
92,
-42,
48,
31,
-50,
-112
] |
The opinion of the court was delivered by
McFarland, J.:
Charles R. Thornton, Kenneth E. McCue and Virginia McCue, plaintiffs in these consolidated wrongful death actions, appeal from the district court’s entry of summary judgment in favor of .defendant police officer, Victor L. Shore. Plaintiffs’ decedents were killed when their automobile was struck by a vehicle driven by defendant Donald Bender. At the time of the collision, the Bender vehicle was being pursued by Officer Shore who was attempting to arrest Bender for multiple traffic violations. The district court found Officer Shore operated his vehicle in compliance with K.S.A. 8-1506 and, accordingly, was immune from liability pursuant to K.S.A. 1982 Supp. 75-6104(d) of the Kansas Tort Claims Act (K.S.A. 1982 Supp. 75-6101 et seq.). On appeal plaintiffs challenge the propriety of this determination.
The uncontroverted facts must be set forth in detail. On November 18, 1979, defendant Victor L. Shore, a Kansas University police officer, was in a marked patrol car which was parked on Jayhawk Boulevard across from Hoch Auditorium on the university campus. The officer was performing radar speed checks on passing vehicles. At about 1:30 a.m. a blue 1978 Jeep, later found to be registered to and- driven by defendant Donald L. Bender, went by Officer Shore at 15 miles per hour (m.p.h.) above the posted 20 m.p.h. speed limit. Officer Shore activated his overhead emergency warning lights and pulled up behind the Jeep. Instead of stopping, the Jeep speeded up. The officer then turned on his siren. In response thereto, the Jeep slowed down briefly but then accelerated. In short order, with Officer Shore in pursuit, Bender committed numerous other traffic violations including attempting to elude the officer, speeding, running stop signs and reckless driving.
The route of the chase was Jayhawk Boulevard to West Campus Road to Eleventh Street, briefly onto Mississippi Street, then back to Eleventh Street. At the intersection of Eleventh and Connecticut streets, slightly east of the Lawrence downtown area, Bender ran a stop sign and collided with the McCue vehicle, killing Kenneth E. McCue, III,'and Margie Thornton.' Bender, who had consumed beer and smoked marijuana during the evening, was subsequently convicted of involuntary manslaughter.
Throughout the chase, Officer Shore had his emergency lights and siren activated and informed his dispatcher of the pursuit. The officer was about a half block behind the Jeep at the time of the collision.
Plaintiff Charles R. Thornton, father of decedent Margie Thornton, brought a wrongful death action against Victor L. Shore, Donald Bender and Virginia McCue, as administrator of the estate of Kenneth E. McCue, III. Summary judgment was entered in favor of defendant Shore. On appeal, the judgment was affirmed by an equally divided court. Thornton v. Shore, 232 Kan. 394, 654 P.2d 475 (1982). Subsequently, plaintiffs motion for rehearing was granted and the appeal was consolidated with that of McCue v. Shore hereinafter discussed.
Kenneth E. McCue and Virginia McCue, parents of decedent Kenneth E. McCue, III, brought a wrongful death action against "Victor L. Shore, Donald Bender, State of Kansas, and the City of Lawrence. Summary judgment was entered in favor of Officer Shore and plaintiffs appeal therefrom.
As previously noted, this consolidated appeal is concerned solely with the propriety of the summary judgment entered in each case in favor of Officer Shore. The district court found, as a matter of law, Officer Shore had operated his vehicle in compliance with the emergency vehicle statute, K.S.A. 8-1506 and, based thereon, was immune from liability pursuant to K.S.A. 1982 Supp. 75-6104(d) of the Kansas Tort Claims Act (K.S.A. 1982 Supp. 75-6101 et seq.). We agree with the district court’s ultimate determination that Officer Shore had no liability and hence was entitled to summary judgment herein. However, we reach that conclusion on a different rationale.
K.S.A. 8-1506 provides:
“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire, alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(1) Park or stand, irrespective of the provisions of this article;
“(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
“(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;
“(4) Disregard regulations governing direction of movement or turning in specified directions; and
“(5) Proceed through toll booths on roads or bridges without stopping for payment of tolls, but only after slowing down as may be necessary for safe operation and the picking up or returning of toll cards.
“(c) The exemptions herein granted to an authorized emergency oehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
“(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.” (Emphasis supplied.)
It is undisputed Officer Shore, at all times in question, was the “driver of an authorized emergency vehicle ... in the pursuit of [a] . . . violator of the law.” It is also uncontroverted Officer Shore’s vehicle did not collide with decedent’s vehicle and was not physically involved in the tragic collision which took the lives of Margie Thornton and Kenneth E. McCue, III. It is further undisputed the visual and audible signal devices specified in K.S.A. 8-1506(c) were activated at all pertinent times.
The appellants contend the continuance of the chase after the extreme recklessness of Bender became apparent to Officer Shore was in violation of K.S.A. 8-1506(d). They argue said statute imposes a duty upon law enforcement officers to abandon pursuit or take alternative action, such as setting up a roadblock. The essence of this position is the privilege to pursue law violators granted to law enforcement officers specified in K.S.A. 8-1506 is limited to pursuit of rational and responsible violators unless the setting is remote and isolated. We do not agree.
Inherent in any emergency run, whether it be by a police, fire department or ambulance vehicle, is the risk of injury to innocent persons. It is a matter of public policy whether the benefit accruing to the public by allowing such emergency runs outweighs the risk of harm. The legislature has determined the benefit is greater than the risk and has granted privileges to the drivers of such vehicles subject to conditions specified in K.S.A. 8-1506.
It should be noted K.S.A. 8-1404 defines authorized emergency vehicles as:
“[SJuch fire department vehicles, police vehicles and ambulances as are publicly owned and such other publicly or privately owned vehicles as are designated by the secretary of transportation pursuant to K.S.A. 8-2010.”
K.S.A. 8-2010 provides:
“The secretary of transportation shall designate any particular vehicle as an authorized emergency vehicle upon a finding that designation of such vehicle is .necessary to the preservation of life or property or to the execution of emergency governmental functions. The designation shall be in writing and the written designation shall be carried in the vehicle at all times, but failure to carry the written designation shall not affect the status of the vehicle as an authorized emergency vehicle.”
It may be concluded that ambulance, fire department and police vehicles are automatically declared to be “necessary to the preservation of life or property or to the execution of emergency governmental functions” and a specific finding of such status is unnecessary.
Refore the privileges and immunities of K.S.A. 8-1506 may be afforded the driver thereof, the authorized emergency vehicle must be on an emergency run, K.S.A. 8-1506(c), and must comply with audible and visual signal requirements of K.S.A. 8-1506(c). The audible signal device must be in conformity with K.S.A. 8-1738(d) which provides:
“(d) Every authorized emergency vehicle shall be equipped with a siren, whistle or bell, capable of emitting sound audible under normal conditions from a distance of not less than five hundred (500) feet and of a type approved by the secretary of transportation, but such siren shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which said latter events the driver of such vehicle shall sound said siren when reasonably necessary to warn pedestrians and other drivers of the approach thereof.”
The visual signal device must be in conformity with K.S.A. 8-1720 which provides:
“(a) Every authorized emergency vehicle, in addition to any other equipment required by this act, shall be equipped with signal lamps mounted as high and as widely spaced laterally as practicable, which shall be capable of displaying to the front two (2) alternately flashing red lights located at the same level and to the rear two (2) alternately flashing red lights located at the same level, or in lieu thereof, any such authorized emergency vehicle shall be equipped with at least one rotating or oscillating light, which shall be mounted as high as practicable on such vehicle and which shall display to the front and rear of such vehicle a flashing red light or alternate flashes of red and white lights in combination. All lights required or authorized by this subsection shall have sufficient intensity to be visible at five hundred (500) feet in normal sunlight.
“(b) A police vehicle when used as an authorized emergency vehicle may, but need not, be equipped with flashing red lights specified herein, but any flashing lights, including rotating or oscillating lights, used on a police vehicle, other than the flashing lights specified in K.S.A. 8-1722, shall be red in color.”
The duty of a driver upon the immediate approach of an authorized emergency vehicle with activated audible and visual signals is prescribed in K.S.A. 8-1530 as follows:
“(a) Upon the immediate approach of an authorized emergency vehicle making use of an audible signal meeting the requirements of subsection (d) of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall drive immediately to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
“(b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”
Audible and visual signals serve a twofold purpose: (1) they give a safety warning to other users of the roadway; and (2) they assist in clearing a path for the emergency vehicle to travel. In the case of a police vehicle attempting to stop a law violator, such signals serve, an additional purpose — to advise the violator to stop his vehicle. See K.S.A. 8-1568 which provides in pertinent part:
“(a) Any driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (b). The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying such officer’s badge of office, and the officer’s vehicle shall be appropriately marked showing it to be an official police vehicle.”
The privileges and immunities granted to the drivers of authorized emergency vehicles are not carte blanche. In Shawnee Township Fire District v. Morgan, 221 Kan. 271, 559 P.2d 1141 (1977), we discussed the purpose and effect of K.S.A. 8-1506 as follows:
“Because plaintiffs driver was the operator of an authorized authorized emergency vehicle he was entitled to the privileges and immunities set forth in K.S.A. 1971 Supp. 8-505(c) (now K.S.A. 8-1506[fe]), which stated:
“ ‘(c) The driver of an authorized emergency vehicle may: (1) Park or stand, irrespective of the provisions of this act. (2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation. (3) Exceed the maximum speed limits so long as he does not endanger life or property. (4) Disregard regulations governing direction of movement or turning in specified directions.’
“Although the statute endowed the driver with certain immunities, they were not absolute in nature. K.S.A. 1971 Supp. 8-505(e) (now K.S.A. 8-1506 [d]) provided:
“ ‘(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.’
“K.S.A. 8-536 [Corrick] (now part of K.S.A. 8-1506), relating to speed limitations, provided:
“ ‘The speed limitations set forth in this act shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren, or exhaust whistle. This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street or highway, nor shall it protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.’
“K.S.A. 1971 Supp. 8-554 (now K.S.A. 8-1530) included the following provision:
“ ‘(b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.’
“It is important to recognize that K.S.A. 8-505(e) [Corrick] was amended after this court last construed it in Scogin v. Nugen, [204 Kan. 568, 464 P.2d 166 (1970)]. The phrase ‘ordinary negligence,’ which established the standard of care for emergency vehicle drivers in Scogin, was deleted by the legislature in 1970. Because it is a fundamental rule of law that a change in phraseology or the deletion of a phrase in amending or revising a statute raises a presumption that a change of meaning was also intended, the standard of care set forth in Scogin is not controlling in this case. (McGowen v. Southwestern Bell Tel. Co., 215 Kan. 887, 891, 529 P.2d 97 [(1974)], and cases cited therein.)
“Our reading of K.S.A. 1971 Supp. 8-505(e), as amended by the legislature in 1970, leads us to the conclusion that the standard of ‘ordinary negligence’ is no longer applicable to the driver of an emergency vehicle. (See, Bennett, The 1970 Legislature in Review, 39 J.B.A.K. 107, 108 [1970].) . . .
“The standards of care charged to the driver of an emergency vehicle and to the driver of an ordinary vehicle are not the same. The privileges and immunities granted to the driver of an emergency vehicle are not available to the driver of an ordinary vehicle. Notwithstanding the grant of immunities, the statutes require the driver of an emergency vehicle to drive with ‘due regard for the safety of all persons,’ and further provide the immunities do not protect the driver from the consequences of his ‘reckless disregard for the safety of others.’ Even though the use of the word ‘reckless’ suggests an element of wantonness, we believe it was the intent of the legislature to charge the driver of an emergency vehicle with due care under the existing facts and circumstances. The facts and circumstances include the privileges and immunities granted by statute. The test of due care (or due regard as used in the statute), as applied to the driver of an emergency vehicle, is whether with the privileges and immunities provided by statute he acted as a reasonably careful driver.
“An important factor to be considered under this test is the right of the driver of an emergency vehicle to rely on the duty of an ordinary driver. Under K.S.A. 1971 Supp. 8-554 (now K.S.A. 8-1530) the driver of an ordinary vehicle is under a duty to yield the right of way to an emergency vehicle by immediately pulling parallel and as close as possible to the right edge or side of the road, clear of any intersection-, and remaining there until the emergency vehicle has passed. Although the driver of an emergency vehicle is not permitted to act on the blind assumption that this will be done, he has the right to assume other drivers will yield the right of way as required by law until it is otherwise apparent.” 221 Kan. 277-79. (Emphasis supplied.)
The privileges and immunities granted to police officers under K.S.A. 8-1506 would indeed be hollow if the test of due care (or due regard as used in the statute) were extended to include the acts of the fleeing motorist whom the officer is trying to apprehend. The net effect of such an extension would be to make the officer the insurer of the fleeing violator, be he or she a mentally deranged person, prison escapee, murderer, drug addict or drunk.
A number of jurisdictions have discussed the undesirable effects of making the law enforcement officer the insurer of this highly irresponsible group. Representative of the majority, view which holds the law enforcement officer is not liable for the acts of the fleeing violators are the following cases.
In Reenders v. City of Ontario, 68 Cal. App. 3d 1045, 137 Cal. Rptr. 736 (1977), city police were hotly pursuing a motorcycle. The driver was wanted for aggravated assault and hit and run. The police cars were operated with emergency lights and sirens. Speeds of 80 to 100 m.p.h. were attained and numerous stop light violations and other acts of reckless driving by the violator were noted. By virtue of heavy traffic the police could not immediately apprehend the violator. Ultimately the violator’s motorcycle collided with plaintiffs car at an intersection. Plaintiff contended but for the negligence of the police in pursuing the violator, the violator would not have run the red light at the intersection where plaintiff was struck. The California Court of Appeals held the police were not negligent. In so holding the California court wrote:
“[T]he relationship between the defendant’s conduct and plaintiffs injury is not necessarily a direct one.
“No moral blame attaches to City’s conduct. Its police officers were attempting to apprehend and remove from the public streets a man who had reportedly been drinking and driving a motorcycle in a reckless and dangerous manner and who was suspected of assault with a deadly weapon as well as reckless driving and numerous other violations of the Vehicle Code.
“As to the policy of preventing future harm, who can say whether greater harm would result from the imposition or nonimposition of a duty upon municipalities to refrain from pursuing a lawbreaker already engaged in reckless and dangerous operation of a motor vehicle on the public streets. The injury in this case was tragic. Conceivably, however, even more tragic results could have ensued had [the violator] not been pursued. Suppose he had lost control of his motorcycle and had run into a group of children standing on the sidewalk, killing or maiming several of them.
“To impose a duty upon municipalities not to pursue a lawbreaker already engaged in dangerous conduct on the city streets would obviously cast a considerable burden on such cities and have serious consequences to the community. One of the prime functions of government is to insure law-abiding, orderly conduct. What is a law enforcement officer to do faced with a situation such as that confronting the police officers in this case? Nothing? The imposition of a duty not to pursue would severely restrict necessary law enforcement conduct without any guaranty that serious injury to members of the public might not ensue anyway.” 68 Cal. App. 3d at 1053-54.
Continuing:
“In our assessment, considerations of public policy preponderate against the imposition of a duty upon a municipality and its police officers to refrain from pursuing a lawbreaker who is already operating a vehicle on the public streets and thoroughfares in a reckless and dangerous manner.” 68 Cal. App. 3d at 1054.
The Kentucky Court of Appeals (then Kentucky’s highest court) reached the same result in Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky. 1952). In Chambers the police noticed a suspicious vehicle near a business and when they went to investigate the vehicle sped away. The police pursued. Eventually, the violator’s car collided with a vehicle belonging to the plaintiff. The police car had its warning lights and siren on and the police were subject to a statute akin to K.S.A. 8-1506. The Kentucky court held the police were not liable to the plaintiff.
“Charged as they were with the obligation to enforce the law, the traffic laws included, they would have been derelict in their duty had they not pursued him. The police were performing their duty when Shearer, in gross violation of his duty to obey the speed laws, crashed into the milk wagon. To argue that the officers’ pursuit caused Shearer to speed may be factually true, but it does not follow that the officers are liable at law for the results of Shearer’s negligent speed. Police, cannot be made insurers of the conduct of the culprits they chase.” 245 S.W.2d at 590-91 (Emphasis supplied.)
In City of Miami v. Horne, 198 So. 2d 10 (Fla. 1967), the Florida Supreme Court was confronted by a case where decedent’s vehicle was hit by an offender trying to elude a pursuing police car. As in the instant action, the police officer was operating his lights and siren, and reduced his speed at intersections where he did not have the right-of-way. The violator went through all intersections in total disregard of the danger to others. Eventually the police officer came upon an intersection where the violator’s car had collided with the decedent’s automobile, killing her instantly. Plaintiff contended the manner of the police pursuit was negligent. The Florida court rejected the plaintiffs claim:
“[I]t was the police officer’s duty when, in his presence, the offender refused to accept the tickets and escaped at excessive speed, ignoring stop signs and red lights, to halt the violations and apprehend the offender.” 198 So. 2d at 12.
Continuing:
“In determining whether an officer, in pursuit, has acted negligently or recklessly it is to be borne in mind that he is charged with the duty of arresting the offender and must often exceed the precautions normally imposed upon individuals. The [City of Miami v. Albro, 120 So. 2d 23 (Fla. Dist. Ct. App. 1960)] case held the standard of care exercised by him must be judged liberally and that the city, exercising its police power for the protection of the public, should not be liable in damages for every mistake of judgment by its officers . . . .” 198 So. 2d at 13.
In concluding, the Florida Supreme Court observed in City of Miami v. Simpson, 172 So. 2d 435 (Fla. 1965), it had previously approved the Florida District Court of Appeal opinion in City of Miami v. Albro, 120 So. 2d 23 (Fla. Dist. Ct. App. 1960).
“ ‘We share the view of [the Albro] court that the standard of care imposed should give due regard to the type of duty which is required to be performed in the public interest.’
“The rule governing the conduct of police in pursuit of an escaping offender is that he must operate his car with due care and, in doing so, he is not responsible for the acts of the offender. Although pursuit may contribute to the reckless driving of the pursued, the officer is not obliged to allow him to escape.” 198 So. 2d at 13. (Emphasis supplied.)
Roll v. Timberman, 94 N.J. Super. 530, 229 A.2d 281, certification denied 50 N.J. 84 (1967), involved a situation where a violator’s car collided with plaintiff s vehicle and plaintiff alleged a police officer was negligent in pursuing the violator at an excessive speed. The New Jersey Superior Court, Appellate Division, rejected the claim stating:
“Police officers are charged with the duty of enforcing the motor vehicle laws. N.J.S.A. 39:5-1. They have the power to arrest without warrant when the violation takes place in their presence. N.J.S.A. 39:5-25. While engaged in the apprehension of violators of the law, or of persons charged with, or suspected of, any such violation, they are exempt from speed regulations. N.J.S.A. 39:4-103.
“The decisive issue in this case is whether a police officer is liable for damage caused by a vehicle operated by a fleeing law violator who is being pursued by the officer in the performance of his duty.
“The precise question has not been dealt with in any of the reported decisions in our State. However, the majority view expressed in other jurisdictions in similar cases holds that the police officer is not liable. See Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky. Ct. App. 1952); Morris v. Coombs’ Adm’r, 304 Ky. 187, 200 S.W.2d 281 (Ct. App. 1947); Pagels v. City and County of San Francisco, 135 Cal. App. 2d 152, 286 P.2d 877 (D. Ct. App. 1955); Draper v. City of Los Angeles, 91 Cal. App. 2d 315, 205 P.2d 46 (D. Ct. App. 1949); United States v. Hutchins, 268 F.2d 69, 83 A.L.R.2d 447 (6 Cir. 1959); Wrubel v. State of New York, 11 Misc. 2d 878, 174 N.Y.S.2d 687 (Ct. Claims 1958).
“The reasoning which underlies the rejection of liability in these cases is two-fold: (1) it is the duty of a police officer to apprehend those whose reckless driving makes use of the highway dangerous to others; (2) the proximate cause of the accident is the reckless driving of the pursued, notwithstanding recognition of the fact that the police pursuit contributed to the pursued’s reckless driving. Typical of this rationale is the court’s statement in Draper v. City of Los Angeles, supra:
“ Tt is true that he [the pursued] was endeavoring to escape from them [the police] and for that reason, perhaps, was driving recklessly, but that was his affair, not theirs. Although the pursuit no doubt contributed somewhat to his reckless driving, the officers were under no duty to allow him to make a leisurely escape.’ (205 P.2d, at p. 48)” 94 N.J. Super, at 535-36. (Emphasis supplied.)
Continuing;
“We are in accord with the majority view as above expressed. When Officer Martin observed Timberman violate the motor vehicle laws it became the officer’s duty to apprehend him. When he pursued Timberman the officer was exempt from speed regulations. He was performing his duty when Timberman, in gross violation of the motor vehicle laws, crashed into plaintiff s car. To argue that the officer’s pursuit caused Timberman to speed may be factually true, but it does not follow that the officer is liable at law for the results of Timberman’s negligent speed. Police cannot be made insurers of the conduct of the culprits they chase. Chambers v. Ideal Pure Milk Co., supra, 245 S.W.2d at pp. 590-591.
“We have carefully reviewed the record. We find no evidence of actionable negligence on the part of Officer Martin. His pursuit of Timberman was not the legal or proximate cause of the accident. The motions by defendants for judgment of involuntary dismissal made at the close of the case should have been granted.” 94 N.J. Super, at 537-38. (Emphasis supplied.)
New York courts have considered the matter of police liability for a fleeing violator’s collision with an innocent victim on a number of occasions. In Wrubel v. State of New York, 11 Misc. 2d 878, 174 N.Y.S.2d 687 (1958), the New York Court of Claims dealt with a case where a state trooper, with lights and siren on, chased a speeder and the speeder collided with the plaintiff. Plaintiff sued the State of New York.
“Distilled to its essence, the case presents one question: Is the State liable for the damage occasioned by a fleeing lawbreaker while being pursued by a State trooper who was performing his duty?
“We do not believe so under the circumstances here.
“In the presence of a violation of law it is the officer’s duty to take steps to suppress the offense and apprehend the offender. At its inception the offense being committed was only a traffic infraction. However, it developed, in the opinion of the court, into reckless driving, a misdemeanor, also into resisting an officer, and other crimes which could be made out of the incident as it developed.
“Claimants’ predication of liability on the State is founded on the novel position that the trooper, in attempting to halt one increasing the danger on the highway, did by his attempt alone increase the danger himself. To extend this position to the ultimate would require a police officer to pursue, at an otherwise laioful rate of speed, a lawbreaker traveling at an unlawful rate of speed, or to ignore him in the first place.
“An operator who is speeding, or who is a reckless driver on the highway, would know that all he had to do was to go faster — and under claimants’ theory escape would be possible — there would be no chase. A burglar, bank robber or any other felon could threaten to shoot and under claimants’ theory escape would be possible and arrest avoided. It is fantastic to further expand claimants’ theory — such thinking would place a police officer in the same category as the Marquis of Queensbury in a pier six brawl.” 11 Misc. 2d at 879-80. (Emphasis supplied.)
Continuing:
“A police officer has a right to use whatever means necessary to make an arrest and unless he exceeds proper and rational bounds or acts in a negligent, careless or wanton manner, he is not liable for damages sustained, even by innocent parties, under the circumstances that arose herein. We think the action of the trooper was proper. The contention of claimants is unsound.
“The proximate cause of the accident was the speeding of the Buick car. It was the reckless manner in which William Coon conducted himself and not the action of officer Marchione that caused this accident. With an earnestness amounting to almost prescience, Marchione, at the risk of his own life, attempted to curb this hazard. He is to be commended on the manner in which he endeavored to perform his duty as an officer of the law. The evidence in no way indulges the conclusions that he was the cause or contributed thereto.
“If officer Marchione had abandoned his duty and the Buick car had proceeded unmolested and a serious accident had resulted, he would have been subjected to severe criticism for failing to perform his duty to which the public is entitled. (Any automobile on the highway could have been involved in such an acci dent — even claimants’ automobile.) It would be most unwise to discourage police officers in time of emergency. Such a course would tend to lessen law enforcement.
“In an emergency a police officer must do his duty. He should not be careless or reckless. He should act in a prudent and in as careful a manner as he possibly can. He should not be hesitant and should act promptly and resolutely. Reluctance to act in an emergency might indeed result, to some extent, in stripping the community of proper and adequate protection against malefactors.
“The action of the trooper must be weighed in the light of the circumstances as they arose and not measured by subsequent developed facts. Indeed, public policy militates against denying protection to the officer under the circumstances herein involved.
“This may seen severe in view of the damages suffered by two innocent people but no other conclusion is possible. To give claimants a judgment herein would mean extending the liability of the State to unrealistic limits. Further discussion is unnecessary.
“The claims herein, and each of them, are dismissed.” 11 Misc. 2d at 880-81.
In Stanton v. State, 29 App. Div. 2d 612, 285 N.Y.S.2d 964 (1967), aff'd 26 N.Y.2d 990, reh. denied 27 N.Y.2d 817 (1970), a New York appellate court dealt with a case where a state trooper, after some difficulty, managed to stop a speeder only to see him flee down the wrong side on a highway. The officer pursued, turning on flashing red lights and siren and moving a spotlight from side-to-side to give warning to oncoming vehicles. The violator’s automobile collided with an innocent motorist, killing him. The motorist’s estate brought an action against New York. Besides the factual similarities, Stanton involved the application of a New York traffic statute (N.Y. Veh. & Traf. Law § 1104 [McKinney I960]) comparable to K.S.A. 8-1506.
The New York court noted:
“In order to establish liability against the State for the injury and death of claimant’s intestate, the claimant must prove the negligence of the State, and further prove that such negligence was the proximate cause of the injury and resulting death.” 29 App. Div. 2d at 612-13.
Continuing:
“Examining the manner in which Trooper Radloff operated his patrol car and considering his use of the siren, flashing light, and spotlight to warn oncoming motorists, he did in fact drive with due regard for the safety of all persons using the highway.” 29 App. Div. 2d at 613.
Further:
“The majority view expressed in other jurisdictions in similar cases holds that a police officer is not liable for damages caused by a vehicle being pursued by the officer in the performance of his duties. (83 ALR 2d 452; Pagels v. City and County of San Francisco, 135 Cal. App. 2d 152; Draper v. City of Los Angeles, 91 Cal. App. 2d 315; United States v. Hutchins, 268 F.2d 69; Roll v. Timberman, 94 N.J. Super. 530; Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 [Ky.].)” 29 App. Div. 2d at 613-14.
After quoting from Roll v. Timberman, 94 N.J. Super. 530, and Wrubel v. State of New York, 11 Misc. 2d 878, the New York court concluded:
“Considering the entire record, it is our opinion that it was not the manner in which Trooper Radloff drove his patrol car which was the proximate cause of this accident, but rather the manner in which Hayden drove his vehicle which was the proximate cause. Trooper Radloff s actions were merely those of a police officer performing his duty in an emergency situation. He was neither careless nor reckless and acted in as prudent and careful a manner as possible under the circumstances. His actions must be weighed in the light of the circumstances as they developed and not by subsequent facts or in retrospect. If we were to adopt the claimant’s theory that a trooper in attempting to remove a danger on the highway acts negligently by increasing the danger when he exceeds the speed limit in the pursuit of a wrongdoer, police officers would be reluctant to act in such emergency situations with the result that tire public would be deprived of proper and adequate protection against such violators. (Wrubel v. State of New York, supra.)” 29 App. Div. 2d at 614. (Emphasis supplied.)
The New York Court of Appeals in affirming the lower appellate court noted the human emotions of such a tragic event were not a substitute for the necessary elements of an action.
“While it is most unfortunate that bystanders are sometimes innocently involved and injured by the police in the performance of their duties, such emotional and understandable human considerations are not a substitute for proof of negligence. The trooper in the instant case was engaged in the regulation of highway traffic. He was faced with an emergent situation and chose what he considered, in his best judgment, to be the most effective means of dealing with a motor vehicle operator who was endangering the lives of other motorists on the highway. While hindsight can often furnish reasons for following one course or another, the acts of the trooper here must be considered as of the time when, and circumstances under which, they occurred. With that in mind, we find that his conduct was not unreasonable or negligent.” 26 N.Y.2d at 991-92.
A case the district court herein relied upon in granting Officer Shore’s summary judgment was State of West Virginia v. Fidelity & Cas. Co. of N.Y., 263 F. Supp. 88 (D. W. Va. 1967), wherein plaintiff brought an action against police who chased an escapee who collided with plaintiff. Plaintiff contended the police pursued in a negligent manner resulting in the escapee hitting plaintiff. The federal district court forcefully rebuked the notion the officer’s pursuit of the escapee was the proximate cause of plaintiffs injury.
“The question of an officer’s liability for injuries or damages arising from the operation of a vehicle pursued by him in the line of duty does not appear to have been considered in West Virginia or in many other jurisdictions. However, in those instances where it has been treated, the officer has generally been held not liable. See Annot. 83 A.L.R.2d 452 (1962). We must not forget that the primary duty was upon the pursued to stop, and although an utter willful, reckless, disregard for the life and property of third parties, such as an officer’s continued high speed chase through a crowded school zone, would be difficult to excuse, the instant complaint indicates no such facts. It is hardly necessary to point out the overriding public policy of apprehending criminals as rapidly as possible, thus eliminating continued criminal acts, as a factor outweighing the undesirable consequences of holding an officer liable for the damages sustained by a third party as a result of negligence such as described in the complaint.
“We are not prepared to hold an officer liable for damages inflicted by the driver of a stolen vehicle whom he was lawfully attempting to apprehend for the fortuitous reason only that the criminal drove through an urban area. To do so would open the door for every desperado to seek sanctuary in the congested confines of our municipalities, serene in the knowledge that an officer would not likely give chase for fear of being liable for the pursued’s recklessness. Such is not now the law nor should it be the law.” 263 F. Supp. at 90-91. (Emphasis supplied.)
The general rule relative to the liability of municipalities in such circumstances was stated in 57 Am. Jur. 2d, Municipal, School, and State Tort Liability § 263, p. 226.
“Assuming that there is no governmental immunity from tort liability, a municipality responsible for the conduct of a police officer is nevertheless not liable for personal injuries, death, or property damage inflicted by a vehicle being pursued by a police vehicle where the police vehicle is only involved to the extent that it was being driven in pursuit of the fleeing vehicle which actually cause[d] the injury or damage complained of.”
The privileges and immunities of the officer and municipality have not been upheld where the officer failed to operate warning lights and siren. See Sparks v. City of Compton, 64 Cal. App. 3d 592, 134 Cal. Rptr. 684 (1976); and Thain v. City of New York, 35 App. Div. 2d 545, 313 N.Y.S.2d 484 (1970), aff'd 30 N.Y.2d 524 (1972). A good summary of the case law in this area is set forth at Annot., Liability of Governmental Unit or its Officers for Injury to Innocent Occupant of Moving Vehicle, or for Damage to such Vehicle, as Result of Police Chase, 4 A.L.R.4th 865.
A common theme in the cases denying liability where a fleeing violator’s vehicle causes the injury or death is the officer in attempting to arrest is doing his duty and is not the insurer of the violator. In Hendrix v. City of Topeka, 231 Kan. 113, 643 P.2d 129 (1982), a case arising under differing circumstances, we noted:
“A police officer is not an insurer against all harm for the people with whom he has official contact.” 231 Kan. at 123.
Officer Shore was operating his emergency vehicle in complete compliance with the requirements of K.S.A. 8-1506 and is entitled to all privileges and immunities granted to him by the statute. To extend the “due care” requirement to the decision to chase or to continue the chase and hence make the officer the insurer of the law violator would emasculate the privileges and immunities afforded by the statute and thwart the public policy purpose of the statute.
The 1982 amendments to the driving under the influence statute (K.S.A. 8-1567) and statute governing evidence to be admitted in such prosecutions (K.S.A. 8-1005) were the direct result of public concern over the terrible trail of carnage caused by intoxicated drivers. Clearly it is strong public policy to remove drunken drivers from Kansas- roads. It would be directly contrary to this policy to hamstring the efforts of law enforcement officers to apprehend these persons.
We conclude the “due care” requirement of K.S.A. 8-1506(d) applies only to the police officer’s physical operation of his own vehicle and not to the decision to chase or continue to chase a law violator. If the officer is in compliance with the statute in the operation of his own vehicle, he is entitled to the privileges and immunities afforded by the statute and is not vicariously liable or responsible for the reckless or negligent acts of the law violator he is pursuing. The officer is not the insurer of the fleeing law violator. The officer in such circumstances has breached no duty owed to persons injured by the fleeing violator’s own negligence or wanton conduct and, accordingly, as a matter of law the officer has not committed a tort upon such injured persons. There being no tort, as a matter of law, reference to the Tort Claims Act (K.S.A. 1982 Supp. 75-6101 et seq.) is rendered unnecessary.
In the case before us, under the uncontroverted facts, Officer Shore was operating his authorized emergency vehicle in full compliance with the requirements of K.S.A. 8-1506 and is entitled to the privileges and immunities granted by the statute. As a matter of law the defendant officer, whose only involvement in the tragic accident was pursuit of the law violator, breached no duty owed to plaintiffs’ decedents. Hence, summary judgment was properly entered in his favor, although we disagree with the district court’s rationale applying the discretionary function or duty exception (K.S.A. 1982 Supp. 75-6104[d]) of the Kansas Tort Claims Act.
The judgments are affirmed. | [
-110,
78,
-104,
-82,
25,
96,
-104,
2,
81,
-10,
112,
83,
45,
-53,
69,
57,
-6,
29,
85,
105,
-89,
-73,
71,
-96,
-74,
115,
-5,
-59,
-109,
79,
100,
-9,
77,
-16,
-117,
85,
70,
74,
-107,
-34,
-58,
6,
-87,
-15,
83,
-110,
-76,
120,
-12,
15,
97,
-113,
-9,
43,
18,
103,
-19,
46,
-39,
-88,
-95,
-15,
-55,
-123,
-4,
20,
-93,
4,
-66,
9,
-48,
59,
-104,
-79,
32,
120,
118,
-90,
-110,
-12,
103,
-115,
12,
102,
99,
33,
21,
-19,
-92,
-72,
46,
123,
15,
-89,
-100,
105,
105,
5,
-106,
29,
123,
84,
15,
120,
-26,
-44,
95,
-24,
-121,
-53,
-76,
-111,
75,
116,
-106,
66,
-21,
-123,
34,
97,
-40,
-30,
94,
71,
114,
-77,
-41,
-108
] |
The opinion of the court was delivered by
Miller, J.:
This case was heard and affirmed by a panel of the Court of Appeals composed of Judge Corwin C. Spencer, Judge Sherman A. Parks, and District Judge Harry G. Miller, retired. The opinion, written by Judge Miller, was unpublished. We granted review and now find that we agree with the resolution of the case by the Court of Appeals. Its opinion sets forth the factual background, the provisions of the pension plan which are involved, the contentions of the parties, the trial court’s holding, and the Court of Appeals’ determination of the issues. The opinion reads as follows:
“This is an appeal by the defendant Treva J. Hinds from an order of the district court determining that pension funds held by the Board of Public Utilities of Kansas City, Kansas, were payable to plaintiff Ruth L. Hinds. The defendants Board of Public Utilities and the Board of Pension Trustees have filed notice of disclaimer of interest and are not participants in the appeal.
“The present action was commenced by the plaintiff, Ruth Hinds, the surviving spouse of Athel Hinds, who was formerly employed by the Board of Public Utilities, seeking a declaratory judgment to determine whether certain pension funds were payable to her as surviving spouse, or to the designated beneficiary, Treva J. Hinds, who is Athel’s ex-wife.
“The case was tried to the court on stipulated facts. The essential facts to this appeal are herein summarized. Athel Hinds was married to Treva Hinds in 1940. Of this union two children were born. On January 3,1955, he went to work for the Board of Public Utilities and became a participant in the Board’s Employee Beneficiary Pension Program (Plan). At that time he designated Treva J. Hinds as his beneficiary under the Plan, and this designation was never cancelled or changed during his lifetime.
“In 1960, Athel divorced Treva, and in 1962 he married Ruth Hinds. On February 4, 1978, Athel died at the age of fifty-eight years. He was survived by his wife Ruth and two minor children, and also by two adult children of his first marriage.
“It was not the practice of the Board of Public Utilities to request from its employees periodic updates with regard to their designation of beneficiaries. However, the Plan was revised from time to time and the Board’s policy was to make available to its employees at various times a booklet explaining the Plan. This was done in 1959,1966 and 1970. The Plan, in general, provided for pension benefits to an employee, with options, upon attaining ‘Normal Retirement’ age (which was defined to mean age sixty-five) or upon ‘Voluntary Early Retirement’ after age fifty-five, or upon ‘Disability Retirement.’
“The particular provisions of the Plan about which the controversy here centers are as follows:
“Article III (3):
“ ‘(3) Surviving Spouse Benefit.
‘If the death of a Member occurs after age 55 and after the revised date of the Plan, but prior to actual retirement, the surviving spouse of the Member shall receive a benefit as if the Member had retired the day prior to his death and had selected Option A under subsection (1) (c) of this Article III. In lieu of the Surviving Spouse Benefit provided in this section (3) of Article III, the surviving spouse may elect to receive a refund of the member’s accumulated contributions at the date of his death.’
“Article III (9):
‘(9) Beneficiary.
‘A member shall have the right to name any person as his beneficiary and to change such designation at any time, by written notice filed with the Pension Board. If there is no surviving beneficiary at the death of a Member, the benefits, if any, shall be payable to his heirs in accordance with the laws of descent and distribution of the State of Kansas.’
The option given to the surviving spouse under section 3 was to receive a reduced pension for life or to receive a refund of the deceased employee’s accumulated contributions.
“Plaintiff s claim to the pension funds is based on the provisions of section 3 of Article III. Defendant, as the designated beneficiary, bases her claim to the funds on section 9.
“The defendant Treva Hinds urges that the question presented should be determined in accordance with the general principles used in life insurance cases. This is often done in some jurisdictions, but other jurisdictions differ. In 60 Am. Jur. 2d, Pensions and Retirement Funds § 51, the following comment appears:
‘Public pension or retirement plans sometimes provide that the employee may designate a beneficiary to receive payment of benefits under the fund in the event of the death of the member or employee before retirement. Some courts take the position that designation of beneficiaries for pension purposes is governed by the same rules applicable to the designation of beneficiaries of policies of life insurance, and hold that a designation of a beneficiary or beneficiarles by the employee which is duly executed and properly on file will absolutely control the disposition of survival benefits. Courts in other jurisdictions, however, deny that the interpretation of the provisions of retirement acts for public employees is governed by the same principles as are applicable to ordinary life insurance policies, and hold that the cases dealing with ordinary life insurance contracts are not controlling in matters involving public employee pensions. In these jurisdictions the courts seek to discover and effectuate the employee’s intent with respect to nominating a beneficiary of survival benefits. Thus, a change of designation of beneficiary of survival benefits has been held effective where the pensioner completed the required form but failed to file it before his death.’ See also Annot., 5 A.L.R.3d 644.
“As yet this state has not adopted either one of the above approaches. In the context of insurance cases, however, the rule in this state is firmly established that the designated beneficiary is entitled to the proceeds of the policy. Matthews v. Matthews, 163 Kan. 755, 186 P.2d 233 (1947); Filley v. Insurance Co., 91 Kan. 220, 137 Pac. 793 (1914).
“In Tromp v. National Reserve Life, 143 Kan. 98, 53 P.2d 831 (1936), in a case involving an insurance policy, the court dealt with a conflict between decedent’s ex-wife, whom he had divorced, and his widow. The court stated at page 106:
“ ‘What motives prompted the insured to procure the policy, why after the divorce proceedings he did not designate either his second wife or his executors or administrators as beneficiary, or whether he felt the proceeds, in event of his death, should justly go to his first wife, are of no consequence. With full power to change his beneficiary, he let the policy stand as originally written. All that we may assume is that he left the policy as he wanted it. We are not warranted in making another and different disposition. Our conclusion is that the rights of the first wife as the designated beneficiary were not affected by the decree in the divorce action.’ (Emphasis supplied.)
“More recently, however, in Hollaway v. Selvidge, 219 Kan. 345, 548 P.2d 835 (1976), the court indicated a willingness to consider other factors to determine who should be the decedent’s beneficiary and arrived at a different conclusion by examining the decedent’s divorce decree and his actions near the time of his death. The court noted that the decedent had applied to change his designated beneficiary in his life insurance policies and under his pension plan, but such change had not been effected prior to his death, The court found that the settlement agreement between the parties entered into at the time of the divorce was sufficiently comprehensive to include the ex-wife’s interest in the decedent’s life insurance and pension plan.
“The cases cited above, however, do not deal with the problem of specifically conflicting provisions in a pension plan concerning surviving spouses and designated beneficiaries such as is presented here. The issue to be decided in the present case is whether the Plan, under the particular circumstances here, provides by its own terms for the payment of retirement benefits to the surviving spouse over the designated beneficiary.
“The position of the defendant Treva Hinds is that section 9 of Article III should control and that section 3 should be construed to provide pension benefits to the surviving spouse only if she is also the named beneficiary under the Plan at the time of her husband’s death. Such a construction, she contends, would not only give the recipient spouse an option not available to other beneficiaries, but would give effect to section 9 of the article and would be more consistent with the overall design of the Plan.
“Plaintiff argues, however, that such an interpretation ignores the plain terms of section 3 which specifically provides that in such a situation as here ‘the surviving spouse of the Member shall receive’ the benefits, including the option provided for.
“There is nothing in the record in the nature of comment or discussion by the drafters of the Plan which might explain the reasons why the particular terminology in section 3 was used. There is in the record, however, a brochure dated January 1, 1970, which describes the Plan and how it is administered, and, in addition, gives a short history of the Plan and its development from the date of its inception.
“According to the brochure, the Plan was revised to include a number of changes to become effective as of January 1, 1970. Of significance here among the changes made is one, stated to be ‘one of the major changes,’ described as follows:
“ ‘Pensions for widows are provided in case of death of employees prior to normal retirement age, with the additional privilege that widows’ pensions in all cases may be an alternate choice to receiving the employee’s accumulated contributions.’
“This bit of history tends to support the plaintiff s contention that at the time the Plan was revised, section 3 was purposefully written into the Plan in order to provide for widows in the specific situation presented here, i.e., the widow of an employee who dies after age fifty-five but before retirement.
“The plain and ordinary meaning of the term ‘widow’ is that of a woman who has outlived the man to whom she was married at the time of his death. Webster’s New World Dictionary, Second College Ed. 1625 (1974). Only in section 3 is the ‘surviving spouse’ the provided for recipient of pension benefits upon-the death of an employee. Elsewhere throughout the Plan, survivor’s benefits after retirement of an employee are designated to go to a recipient described in such terms as ‘the beneficiary’ or ‘the dependent beneficiary designated at the time of his death,’ and the options are different in certain respects.
“This court should not speculate on the reasons why section 3 was engrafted into the Plan at the time of the 1970 revision. Its terms are plain and unambigu ous, and we conclude that the trial court did not err in holding that under the facts presented, the pension benefits should go to the plaintiff.”
We agree with the rationale of the Court of Appeals. Additionally, we call attention to the statutes under which the Plan was authorized and adopted. The Board of Public Utilities is a public administrative agency or arm of the City of Kansas City, Kansas. Board of Public Utilities v. City of Kansas City, 227 Kan. 194, 198, 605 P.2d 151 (1980). It is an elected board, created by statute, and has only those powers which are granted to it by law. Other powers are granted to the City.
K.S.A. 13-1246, last amended in 1953, grants the authority to establish retirement plans for employees of the BPU. The statute reads:
“13-1246. . . . The governing body of any municipality of the state of Kansas having a population of more than one hundred twenty thousand (120,000) and owning and operating a public utility or utilities is hereby empowered and may at its option enter into an agreement with its employees in said municipally owned public utility or utilities providing for the establishment of a retirement pension plan for the benefit of said employees, their wives and dependents: Provided, That in any municipality of over one hundred twenty thousand (120,000) population where the public utility or utilities are operated, managed, and controlled by a board of public utilities or any other managing board, however designated, such managing board instead of the governing body of the municipality shall be empowered to enter into the agreement and establish the retirement pension plan provided for herein.” (Emphasis supplied.)
It is the expressed purpose of the statute to authorize retirement pension plans for the benefit of the employees, their wives and dependents. However, the following section of the statute K.S.A. 13-1246a provides in part:
“That the members and employees of any retirement pension plan continued, revised and adopted under the provisions of this act, may name one or more beneficiaries to receive any benefits that may be due or become due to said member and employee in the event of his or her death.”
Both sections of the statutes must be read into the plan.
Article III (3) provides that if the death of a Member occurs after age fifty-five but prior to actual retirement, the surviving spouse of the Member shall receive the benefit. Both contingencies — death after age fifty-five and prior to retirement — occurred here. We read Article III (3) as an exception to the normal situation: death after retirement. To give effect to Article III (3), it necessarily follows that the designation of a beneficiary under Article III (9) must be overridden in favor of the surviving spouse when death occurs after age fifty-five but prior to retirement. This holding gives effect to the expressed statutory purpose, and also to the specific amendment made to the plan by the 1970 revision.
We conclude that the trial court and the Court of Appeals were correct in concluding that the pension benefits payable upon the death of Athel Hinds should be paid to his widow, Ruth L. Hinds.
The judgment of the Court of Appeals affirming the trial court, and the judgment of the trial court, are affirmed.. | [
-80,
108,
-43,
-34,
56,
-30,
-70,
-104,
114,
-84,
39,
83,
-5,
-8,
17,
121,
-5,
13,
-44,
107,
-45,
-73,
23,
-64,
86,
-13,
-71,
-43,
-80,
93,
-90,
-41,
73,
48,
74,
-43,
102,
-62,
71,
16,
-116,
4,
-119,
-47,
89,
-62,
48,
-21,
-16,
79,
49,
14,
-69,
61,
28,
98,
44,
46,
89,
-87,
84,
-16,
-86,
-122,
91,
15,
35,
7,
-108,
-25,
-40,
47,
-104,
48,
73,
-24,
122,
-90,
22,
52,
107,
-103,
5,
98,
98,
3,
37,
-91,
-100,
-120,
-114,
-106,
-99,
-91,
-77,
24,
83,
-91,
-108,
-68,
88,
28,
-58,
124,
-26,
13,
95,
108,
1,
-113,
-90,
-79,
77,
60,
-102,
-117,
-29,
1,
32,
101,
-33,
-94,
93,
-57,
50,
19,
-121,
-16
] |
The opinion of the court was delivered by
Miller, J.:
George Eric Rainey was convicted, upon jury trial in Butler County District Court, of the first-degree murder of Ferdinand “Bud” Pribbenow, a trooper on the Kansas Highway Patrol. Rainey appeals, claiming that the trial court erred in denying his motion for a change of venue, in failing to sustain his challenges of three jurors for cause, in permitting the State to introduce in evidence certain “gruesome” photographs of the deceased, in allowing a tape recording and a transcript thereof to be received in evidence, in limiting the testimony of a defense witness, in refusing to instruct the jury on voluntary manslaughter, involuntary manslaughter and self-defense, and in giving the jury an instruction on motive.
About 8:00 o’clock p.m. on July 11, 1981, Trooper “Bud” Pribbenow, a twenty-two-year veteran of the Kansas Highway Patrol, was northbound on the Kansas Turnpike between El Dorado and Wichita, Kansas. He observed a speeding Oldsmobile in the southbound lane, crossed the median, and gave chase. Pribbenow, by radio, stated that he had spotted a car going 98 miles per hour; he gave his location and the Wisconsin tag number of the speeding car, and said that it was occupied by a lone black male. Nothing further was heard from the trooper. Several southbound travellers observed the speeding Oldsmobile and the trooper’s pursuit. Both cars sped out of the travellers’ fields of vision. A few miles later, the travellers reached the patrol car and observed the trooper lying in the grass at the right of his car; he had been shot through the neck and the chest. One of the travellers broadcast that information on the trooper’s radio. Another, a physician, attempted to help Pribbenow, but was unable to assist the mortally wounded trooper. The Oldsmobile was spotted by other law enforcement officers as it approached Wichita; it sped through the toll booth at the east Wichita exit, proceeded west on Kellogg Street at a high rate of speed, and was finally stopped by traffic at Rock Road. The driver of the Oldsmobile, later identified as George Eric Rainey,. fired out the window of the car at police officers and a gun battle ensued. Rainey was shot several times, disarmed, arrested, and taken to a Wichita hospital. Police officers found two .357-caliber revolvers on Rainey; one of those was later identified as belonging to Trooper Pribbenow. All of the radio communications noted above were automatically tape recorded; a copy of the tape recording and a transcript of those communications were received in evidence at trial.
Before the trial defendant moved for a change of venue and appended to his motion various press clippings which were published at or about the time of the homicide. He offered no affidavits and no testimony in support of the motion. We have recently and repeatedly held that one moving for a change of venue has the burden of establishing prejudice, and that specific facts and circumstances must be established which indicate that it will be practically impossible to obtain an impartial jury in the original county to try the case. State v. Salem, 230 Kan. 341, 343, 634 P.2d 1109 (1981). As we said in State v. Myrick & Nelms, 228 Kan. 406, 417, 616 P.2d 1066 (1980):
“The murder of [a highway patrol trooper] evoked a feeling of outrage all over the State of Kansas. The press, radio and TV responded in kind. The act was shocking and was resented by people everywhere. Those facts alone, however, do not entitle a defendant to a change of venue.”
Also, as we noted in Myrick It Nelms, a change of venue in a criminal case lies within the sound discretion of the trial court. The defendant in this case, like Myrick and Nelms, failed to show prejudice sufficient to make it reasonably certain that he could not receive a fair trial. The district court did not abuse its discretion in denying the motion for change of venue.
Defendant claims that the trial court committed prejudicial error in overruling his challenges for cause to jurors Leonard, Hurd and Winzer. Challenges for cause are to be tried by the trial court. K.S.A. 22-3410.
“ ‘Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion. [Citation omitted.]’ ” State v. Folkerts, 229 Kan. 608, 617, 629 P.2d 173 (1981).
Mrs. Winzer did not sit as a juror during the trial and thus any error in overruling a challenge to her for cause is not ground for reversal, no prejudice being shown. State v. Case, 228 Kan. 733, 738, 620 P.2d 821 (1980); State v. Sagebiel, 206 Kan. 482, Syl. ¶ 1, 480 P.2d 44 (1971). We have carefully examined the transcript of the voir dire, and find that both Mr. Leonard and Mrs. Hurd indicated that they understood the presumption of innocence and that they would follow the instructions of the court. Both believed that they could sit as fair and impartial jurors in the trial of the case. We conclude that the trial court did not err in overruling defendant’s challenges of these jurors for cause.
The photographs which defendant claims were gruesome and prejudicial are simply photographs of the scene of the crime, with the trooper’s body shown as it was found. They were utilized by several prosecution witnesses in their testimony, and they were identified as fair and accurate representations of the scene. They were not the type of photograph which we have found to be unduly gruesome; they were relevant to matters in issue such as the manner and cause of death, and were an aid in an understanding of the evidence. Though the defendant may characterize them as gruesome and inflammatory, we hold that they were admissible and were properly received in evidence. See State v. Salem, 230 Kan. at 347.
We turn next to defendant’s claim of error regarding the Highway Patrol tape recording and the transcript thereof which were admitted into evidence. The State laid a careful foundation for these items. The dispatcher on duty on the night of the homicide identified the master tape and testified that it had not been altered to her knowledge. The chief dispatcher testified that all highway patrol transmissions are automatically recorded; that he has custody of the master tapes; and he also identified the master tape and a smaller cassette tape which he recorded from the master tape. He identified the transcript, and testified that the cassette and the transcript were accurate reproductions of the original tape. Another witness testified that he had muted the background noise on the cassette so that the recorded conversation would be more readily understandable, but that the muting did not in any way alter the conversations. Another trooper testified as to the meaning of patrol code numbers mentioned on the tape. Finally, three of the persons whose voices were recorded were present and testified in person at the trial.
The trial judge ruled that the tapes were admissible under the business records exception to the hearsay rule, codified as K.S.A. 1982 Supp. 60-460(m), which reads:
“60-460. . . . Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(m) .... Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.”
The statute uses the term “writings,” but that term has generally been held to be broad enough to include sound recordings. See 3 Jones on Evidence § 17.2 (6th ed. 1972). The exception applies to records kept by public authorities. See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(m), p. 262 et seq. (1979). The recording was made as a part of the patrol’s usual and ordinary business. The tape recordings were made at virtually the same time that the act, condition or event discussed was occurring and while the speakers were observing the events narrated or described. The sources of information from which the tape recording was made, and the method and circumstances of the making of the tape were such as to indicate its trustworthiness. We find that the tape recording was admissible under K.S.A. 1982 Supp. 60-460(m). The persons speaking during the radio transmissions were for the most part under stress caused by their perception of the events; there was no incentive to falsify or distort. We hold thus that the tape recording was also admissible under K.S.A. 1982 Supp. 60-460(d), which reads:
“A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
The tape recording was thus properly received in evidence. The transcript of the tape, being merely a written statement of the conversations contained therein, and the cassette re-recording are not challenged as to accuracy. Jurors, witnesses, court and counsel may refer back to portions of a written statement more easily than to conversations contained in a tape recording. The writing was unquestionably helpful. The tape itself was an official record; secondary evidence as to the contents of official records is admissible. K.S.A. 60-467. We find no error in the admission of the written transcript or the cassette tape.
The defendant proffered certain testimony regarding his involvement in the voodoo religion, part of which he wished to present through the witness Donald Mackaffee. Counsel stated that had the court not sustained the objection, Mr. Mackaffee would have testified that sometime earlier in 1981 he saw the defendant when he was in a trance-like state; that the defendant at that time said that a girl had tied dolls together and she wanted the defendant to marry her. Defendant asked Mackaffee to kill him, saying that he didn’t want to marry the girl and he didn’t have any control over that. Later, in June 1981, the defendant came to Mackaffee’s house and said that he (the defendant) was controlled, possessed to kill Mackaffee. The defendant did not testify.
The trooper’s death occurred on Saturday, July 11. On that day the defendant was driving his mother’s car. Defendant’s sister, Jacqueline L. Rainey, testified that on Friday night, July 10, the defendant asked her for the keys to her mother’s car. She asked if her mother had given permission, and he replied that he had already checked it out with her. He was not then in a trance or any kind of a “far-out” state, there was no mention of being under a voodoo spell of any kind, and so far as she knew her brother had not had any psychological problems. Against this background, the trial court sustained an objection by the prosecution to the proffered testimony on the grounds that the testimony was hearsay and that it was too remote to be of any value in determining the defendant’s state of mind at the time of the homicide.
It has long been the rule in this state that the exclusion of evidence on the ground of remoteness rests in the sound discretion of the trial court, and that ruling will not be reversed on appeal unless it appears that the ruling prejudiced substantial rights of the accused. State v. Fenton, 228 Kan. 658, 668, 620 P.2d 813 (1980); State v. Betts, 214 Kan. 271, 519 P.2d 655 (1974); State v. Calvert, 211 Kan. 174, 505 P.2d 1110 (1973); State v. Schuman, 151 Kan. 749, 100 P.2d 706 (1940). In the case at hand, evidence that the defendant was under a voodoo spell a month or more before the occurrence on July 11, 1981, would seem to have little probative value as regards the determination of whether he was under such a spell at the critical time. We find nothing in the record to indicate that the defendant’s substantial rights were prejudiced and we conclude that the trial court did not err in excluding the proffered evidence.
Next, we turn to the trial court’s instructions. The defendant complains of the court’s failure to instruct on the crimes of voluntary and involuntary manslaughter. A trial court is required to instruct on lesser included crimes only when there is evidence upon which a defendant might reasonably have been convicted of lesser crimes. K.S.A. 21-3107(3); State v. Johnson & Underwood, 230 Kan. 309, 634 P.2d 1095 (1981); State v. Prince, 227 Kan. 137, Syl. ¶ 1, 605 P.2d 563 (1980). Here the defendant’s case consisted of character evidence, evidence that he was “possessed,” and evidence of insanity. There was not a shred of evidence which would even support an inference that the crime committed was voluntary or involuntary manslaughter.
Similarly, the trial court’s obligation to instruct on self-defense is premised upon the supposition that there is some evidence presented at trial which would support that theory. There was absolutely no evidence presented at this trial which would indicate self-defense. The trial court did not err in refusing to give instructions on voluntary manslaughter, involuntary manslaughter, or self-defense.
Finally, defendant objects to the trial court’s instruction on motive. The trial court’s instructions were not made a part of the record on appeal, but this particular instruction is reproduced in the State’s brief. The instruction .appears to accurately state the law, defendant has shown no prejudice, and we find no error.
We have carefully considered all points raised, all arguments made, and all authorities cited by the defendant and find no prejudicial error. The judgment is affirmed. | [
-80,
-54,
-32,
-36,
9,
96,
59,
56,
-16,
-73,
-16,
123,
9,
-53,
5,
121,
58,
61,
68,
57,
-15,
-73,
103,
-120,
-78,
115,
-23,
-60,
-78,
-35,
38,
-12,
95,
112,
10,
-35,
102,
74,
-123,
-34,
-114,
6,
-119,
-16,
82,
-104,
-96,
58,
-26,
15,
49,
-113,
-61,
42,
30,
-57,
-87,
62,
27,
-87,
0,
-79,
-52,
-123,
-1,
16,
-77,
-96,
-102,
3,
88,
63,
-35,
49,
72,
-72,
99,
-90,
-116,
-11,
37,
-119,
44,
-26,
35,
33,
60,
-119,
-92,
-120,
14,
121,
-81,
-89,
28,
72,
1,
-91,
-105,
-97,
123,
48,
6,
-4,
-17,
85,
125,
-32,
3,
-49,
-76,
-111,
79,
56,
-102,
-38,
-21,
-59,
48,
113,
-49,
-14,
95,
69,
122,
-103,
-107,
-80
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Robert G. Garcia (defendant-appellant) guilty of three counts of first-degree murder (K.S.A. 21-3401) and one count of aggravated battery. (K.S.A. 21-3414.)
The evidence disclosing how the crimes were committed is essentially undisputed. The appellant spent the evening of November 16,1981, at the home of Maria Robles at 928 North Doris, Wichita, Kansas. The appellant had occasionally dated Maria. Living, with Maria at this time were her four-year-old son, Gabriel Longeria; Cecil Browning and her fifteen-year-old daughter, Aimee Uffner; and Karen Neil. The appellant wanted Maria to go out with him that night, but she declined, explaining that she and Karen had made plans for the evening.
During the evening the appellant worked on Cecil’s car and then ate dinner with all the .residents of the house. After dinner Aimee played the piano and everyone sang songs. Around 10:30 Cecil left the house to go out of town with her boy friend. The appellant continued to stay at the house although Karen and Maria told him they had to leave. Finally, around midnight, Maria and Karen left the house and the appellant departed in his car.
Maria and Karen returned home around 2:45 that morning. Aimee, who had been looking after Gabriel, was watching television. The three were sitting in the living room talking when the appellant knocked on the door. He was carrying a 12-gauge shotgun and told Maria “he ought to beat the shit out of her.” The four of them sat in the living room for a while with the appellant holding the shotgun. At one point when Karen stood up and said she had to use the bathroom, the appellant pointed the gun at her and told her to sit down.
At Aimee’s insistence the appellant unloaded the gun and briefly rested it against the wall. He then ordered everyone into the kitchen and reloaded the gun. Maria went into one of the bedrooms to check on Gabriel and refused to come to the kitchen to talk to the appellant unless he again unloaded the gun. He complied, and they talked at the kitchen table for a few minutes. Meanwhile Karen got Gabriel from his bed because he was crying. While the appellant was at the house he had two drinks. After everyone returned to the living room the appellant said he “was going to take [his] glass with him because it would leave fingerprints,” and “the biggest mistake he could make would be to have any sympathy for the victims because it would leave a witness, and he would get caught.”
Aimee again pleaded with the appellant to put the shotgun away. The appellant replied, “Say your prayers for me,” and then said, “No, say them for yourself,” and began loading the gun. Standing only a few feet away from the victims he began shooting, hitting Gabriel in the face with the first shot, Karen Neil with the second shot, and finally shooting Aimee and Maria each twice. The appellant then sarcastically said “goodbye” and left the house. Karen, who received wounds to her right hand and face, was able to get to a neighbor’s house for help. Gabriel and Aimee were found dead at the scene and Maria died later at the hospital from her wounds. Karen Neil survived but lost three fingers on her right hand. She testified at trial concerning the above-related circumstances surrounding the event.
The appellant was charged with three counts of first-degree murder and one count of aggravated battery to which he pled not guilty by reason of insanity. The appellant had been admitted to the Veterans Administration Hospital in Wichita in February 1981, as a result of a suicide attempt. He had a history of several previous attempts. Dr. R. L. Stegman, a clinical psychologist, and Dr. Santharam Yadati, a psychiatrist, participated in the appellant’s treatment during the appellant’s hospitalization and testified on his behalf at trial. Dr. Stegman testified that tests performed on the appellant indicated that he was not psychotic, that he was depressed at the time of his discharge in March 1981 but was not considered to be dangerous to others, and that he knew the difference between right and wrong and the nature and quality of his acts. Dr. Stegman continued to see the appellant on an outpatient basis until October 23,1981. Dr. Yadati testified he did not consider the appellant to be psychotic, or a danger to others. At the time of the appellant’s discharge in March 1981, Dr. Yadati diagnosed the appellant as having atypical depression and a passive/dependent personality. He also considered the appellant to be psychologically unemployable.
Another clinical psychologist, Dr. Theodore Moeller, interviewed the appellant three times following the killings and performed a variety of clinical psychological tests on him. He testified that his evaluation of the appellant showed evidence of emotional disorganization and schizophrenia, as well as a strong possibility of psychosis. From his evaluation he determined the appellant did not know the nature and quality of his actions and was unable to judge right from wrong on the night of the killings because his judgment was impaired when he was under stress.
The appellant was convicted of each charge. He raises numerous trial errors on appeal. He first contends the trial court erred in admitting into evidence six color photographs depicting the scene of the crime and various wounds suffered by the victims. The first photograph shows the living room of the house with the bodies of two of the victims visible. While some blood is apparent on the carpet, furniture and a blanket, the injuries to the victims cannot be seen. Two other photographs were also taken in the house and show the blood-covered body of Aimee Uffner, with the feet of Gabriel Longeria visible, and the mangled, blood-covered face of Gabriel Longeria. The other three photographs were taken at the hospital. One shows the blood-covered face of Karen Neil, another shows her dismembered right hand, and the third depicts a large gaping wound to Maria Robles’ shoulder and the bloody side of her face.
In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. See, e.g., State v. Green, 232 Kan. 116, 118, 652 P.2d 697 (1982), and cases cited therein. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Campbell, 210 Kan. 265, 276, 500 P.2d 21 (1972); State v. Dargatz, 228 Kan. 322, 329, 614 P.2d 430 (1980); State v. Henson, 221 Kan. 635, 647, 562 P.2d 51 (1977). Photographs depict ing the extent, nature and number of wounds inflicted are generally relevant in a first-degree murder case. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978). Photographs are erroneously admitted when they are unduly repetitious, gruesome, and add nothing to the State’s case. State v. Dargatz, 228 Kan. at 329; State v. Henson, 221 Kan. at 647; State v. Clark, 218 Kan. 18, 24, 542 P.2d 291 (1975).
Relying on State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975), the appellant contends the photographs were not necessary to the State’s case, were unduly repetitive, and offered solely to prejudice the minds of the jury. The appellant maintains the testimony by the witnesses which vividly described the scene of the crime and the victims’ injuries was not challenged, thus eliminating the need for corroboration. In Boyd, fourteen photographs of the body of the victim taken at an autopsy were offered by the State. The court held that while some of the photographs were helpful in explaining the victim’s wounds to the jury, the trial court abused its discretion in admitting repetitious photographs, and in particular a picture of the body of the deceased “cut open from chin to groin and laid out like a disemboweled beef in a packing plant.” 216 Kan. at 377.
The photographs admitted into evidence here were not repetitious. Each photograph depicts a different view of the scene, or a different victim or wound. In fact, the trial court excluded several photographs which were duplicitous of those admitted. The photographs which were admitted served to corroborate the testimony of Karen Neil concerning the location of the victims and the appellant at the time of the shooting and the various shots fired. They also corroborate the testimony of the pathologist regarding the nature and extent of the various wounds to the victims. The photographs illustrate the violence of the crime, the severity of the wounds, the lack of randomness in the shootings, the size of the room where the shooting occurred and the locations of the victims, all of which directly relate to the elements of malice and premeditation. Although the photographs are not pleasant to view, they were highly relevant to the State’s case. Nothing of a prejudicial nature was introduced merely to inflame the jury, and we find no error in the admission of these photographs.
The appellant next contends the trial court violated his right to be present at all stages of the trial as provided by K.S.A. 22-3405(1) and the Sixth Amendment to the United States Constitution. Following the noon recess on the fifth day of trial it was brought to the court’s attention that the appellant had become “emotionally overwrought.” The court was.concerned with the appellant’s ability to assist in his defense and ordered a continuance so a determination regarding his competency could be made. These findings were made outside the presence of the jury. Over defense counsel’s objection the court ruled that “in view of the Defendant’s obvious reactions,” the appellant would be removed from the courtroom before the jury was brought in and excused for the weekend recess. The jury was informed that a matter had arisen necessitating a continuance, given the normal admonitions, and excused. The following Monday the court learned the results of the appellant’s examination would not be available until Wednesday. The record reflects only that the appellant was not present but was represented by his attorney. No objection was raised concerning the appellant’s absence. The jury was brought into the courtroom and informed that the matter necessitating the continuance was unresolved and the case would be continued to Wednesday. The court then conversed with a member of the jury concerning a funeral which the juror wanted to attend and the jury was excused.
The trial commenced on Wednesday, at which time the court found the appellant competent to stand trial, commenting that the appellant appeared “to be in much more presentable and . . . stable condition today than he did on Friday when we took a recess.”
K.S.A. 22-3405 concerns the presence of a defendant in a criminal prosecution, and provides in part:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the tidal including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.”
In State v. Mantz, 222 Kan. 453, 463, 565 P.2d 612 (1977), we construed K.S.A. 22-3405 to mean that a criminal defendant must be present at all times when the jury is present in the courtroom, except when the defendant is voluntarily absent, as set forth in the statute. We recognized the general rule that the defendant’s statutory and constitutional rights are violated only if the defendant is absent when the jury is hearing the case or when he is prevented from attending such other proceedings where his presence is essential to a fair and just determination of a substantial issue. The defendant’s rights to be present, however, do not encompass proceedings before the court involving matters of law. In Mantz it was held the defendant’s right to-be present under K.S.A. 22-3405 was not violated by an in-chambers conference between the court and counsel in the absence of the defendant concerning instructions, as the conference involved only matters of law and was not a “stage of the trial” within the meaning of the statute. Similarly, no error was found in State v. Sanders, 227 Kan. 892, 893-94, 610 P.2d 633 (1980), where the defendant complained of a conference concerning motions in limine at which he was not present. In State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), we held there was no violation of the defendant’s right to be present where she was voluntarily absent from two hearings before the court. In State v. Nelson, 223 Kan. 251, 253, 573 P.2d 602 (1977), we held the presence of a defendant is not required by K.S.A. 22-3405 during an evening recess in the trial proceedings at which time a juror is granted permission to visit a sick relative, and the court may declare a continuance to assure the return of the juror when no prejudice to the defendant’s rights are shown. On two occasions the Court of Appeals has held error was committed when the trial court allowed testimony to be read back to the jury during its deliberations in the absence of the defendant. See State v. Antwine, 4 Kan. App. 2d 389, 400-01, 607 P.2d 519 (1980); State v. Gammill, 2 Kan. App. 2d 627, 631, 585 P.2d 1074 (1978).
The United States Supreme Court held in Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S.Ct. 1057, reh. denied 398 U.S. 915 (1970), that the Sixth Amendment guarantees a defendant the right to be present at every stage of trial. This rule includes the defendant’s right to be present whenever the court communicates with the jury. Shields v. United States, 273 U.S. 583, 71 L.Ed. 787, 47 S.Ct. 478 (1927). Most federal courts have held that where the defendant’s constitutional right to be present is violated, such error is harmless and does not require reversal where there is no reasonable possibility of prejudice from the error. See 3A Wright, Federal Practice and Procedure: Criminal 2d § 724, p. 31 (1982); Jones v. United States, 299 F.2d 661, 662 (10th Cir.), cert. denied 371 U.S. 864 (1962). This court has held that in applying the harmless error rule in line with state and federal constitutional requirements, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. State v. Johnson, 231 Kan. 151, Syl. ¶ 7, 643 P.2d 146 (1982). It is the defendant’s burden on appeal not only to show error, but further to establish that the error resulted in substantial prejudice to his rights. State v. Holt, 223 Kan. 34, 45, 574 P.2d 152 (1977).
“The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas, 380 U.S. 400 (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” 397 U.S. at 338.
In the present case the appellant had a right under K.S.A. 22-3405 and the Sixth Amendment to be present in the courtroom when the jury was informed of the continuance and admonished prior to being excused. The trial court thus erred in having the appellant removed before the jury was brought in. The appellant contends this error was prejudicial to him because it would have aided his insanity defense for the jury to see him in an unstable condition. This argument is not persuasive because there is a distinction between the defendant’s competency to stand trial and the issue of the defendant’s legal insanity at the .time of the commission of the crime. The former concerns the defendant’s ability to understand the nature and purpose of the proceedings against him and to assist in making his defense at the time of trial (see K.S.A. 22-3301), whereas the latter concerns evidence of mental disease or defect suffered by the defendant when the crime was committed, which impaired his ability to judge right from wrong. See, e.g., State v. Buckner, 221 Kan. 117, 120, 558 P.2d 1102 (1976).
The trial judge obviously wanted to protect against any confusion or misunderstanding in the minds of the jury which might have resulted from the appellant’s unstable appearance and the subsequent continuance. A full record was made of the court’s communications to the jury during the appellant’s absence and nothing improper or of any substance concerning the case was said. The appellant’s presence was not essential to a fair and just determination of a substantial issue in the case and would not have aided in his insanity defense. It is apparent that no prejudice was suffered from this error.
Next the appellant alleges the court erred in refusing to admit into evidence video tapes of an interview with the appellant conducted by Dr. Moeller on January 15, 1982. Dr. Moeller conducted three interviews with the appellant, the last of which was taped and was offered as evidence. A hearing on the admissibility of the tapes was held outside the presence of the jury. Dr. Moeller testified the appellant’s conduct during the interview formed part of the basis of his opinion that the appellant did not know the difference between right and wrong when the crime was committed, and the tapes would assist him in explaining his conclusions to the jury.
The trial court viewed the tapes and refused to admit them into evidence. Initially the court ruled the tapes were inadmissible hearsay under K.S.A. 60-460. Following a renewed motion to offer the tapes the court ruled they were also inadmissible because only one of the three interviews had been taped, which would place undue emphasis on that interview and distort the overall picture of the appellant’s mental condition. Also, it would raise a collateral issue before the jury regarding the validity of the doctor’s conclusions. The court later modified its ruling by stating the tapes probably constituted admissible hearsay under 60-460(7) as statements of the declarant’s then-existing state of mind, but would not be admitted on the basis that it raised a collateral issue.
The appellant offered the tapes to lend support to Dr. Moeller’s diagnosis of the appellant’s mental condition and opinion that the appellant was legally insane at the time the crime was committed. Dr. Moeller indicated the tapes would be useful in demonstrating to the jury the appellant’s behavior during the interview, which he considered to be a significant factor in his diagnosis and conclusions. The tapes were not offered to prove the truth of the statements made by the appellant during the interview, but rather to show state of mind and behavior at that time in support of Dr. Moeller’s conclusions, and therefore did not constitute hearsay evidence. However, the videotapes of the interview were properly excluded for the following reasons.
The admission of expert testimony is controlled by K.S.A. 60-456(fe), which reads:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
The basis for the admission of expert testimony is the need to assist the jury under the facts of the particular case. State v. Reed, 226 Kan. 519, 521, 601 P.2d 1125 (1979). In Massoni v. State Highway Commission, 214 Kan. 844, Syl. ¶ 3, 522 P.2d 973 (1974), we held:
“Opinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.”
See also State v. Moore, 230 Kan. 495, 497, 639 P.2d 458 (1982).
The general rule concerning limitations on the admissibility of expert testimony is stated in 31 Am. Jur. 2d, Expert and Opinion Evidence §§ 20, 21:
“Expert testimony is admissible only where, by reason of peculiar skill and experience, inferences which an ordinary untrained mind cannot deduce can be drawn from facts, or where such testimony relates to a subject which is not within the average experience and common understanding of the jury. Since expert testimony constitutes an exception to the general rules of evidence — an exception founded upon necessity — the admission of such testimony should be limited within the bounds of necessity.
“Expert opinion testimony, while not limited or restricted in its scope to matters of science, art, or skill, cannot invade the field of common knowledge .... If the subject is one of common knowledge, as to which the facts can be intelligibly described to the jury and understood by them and they can form a reasonable opinion for themselves, the opinion of an expert will be rejected.”
See also Gardner v. Pereboom, 197 Kan. 188, 195, 416 P.2d 67 (1966); 2 Jones on Evidence § 14:28 (6th ed. 1972).
It has been recognized that the issue of a person’s mental capacity is one where expert opinion is particularly useful and oftentimes necessary. As stated in 2 Jones on Evidence § 14:38 (6th ed. 1972):
“But there is no subject quite so remote from the capacity of a jury to pass on the issue without the aid of expert testimony as that pertaining to sanity or insanity. The manifestations of mental derangement and the significance of symptoms are of such importance as to call for expert appraisal in most cases . . . .”
The necessity of expert testimony in this area is also discussed in 31 Am. Jur. 2d, Expert and Opinion Evidence § 86:
“Probably in no class of cases is the use of expert testimony so general and almost indispensable as in that where the issue is sanity or insanity. Unless a person is a raving maniac or complete imbecile, it is evident that a jury can hardly be deemed competent to reach a satisfactory decision on the question of his mental condition without being instructed by expert witnesses as to the manifestations of mental derangement or disease and the significance of symptoms which are in evidence. . . .
“A qualified expert may, in a criminal case, state his opinion as to the sanity of the accused at the date of the event in question, although his opinion is based solely on an examination subsequently made.”
It is also a well-established principle that an expert witness can be examined concerning the facts upon which his opinion is based. State v. Pyle, 216 Kan. 423, 442, 532 P.2d 1309 (1975); State v. Dargatz, 228 Kan. 322, 331, 614 P.2d 430 (1980); Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 6, 574 P.2d 136 (1977); State v. Brooks, 217 Kan. 485, 536 P.2d 1365 (1975); K.S.A. 60-458; 31 Am. Jur. 2d, Expert and Opinion Evidence §§ 36, 86; 2 Jones on Evidence § 14:19 (6th ed. 1972). As was stated in State v. Pyle, 216 Kan. at 442, the underlying data upon which a psychiatric expert opinion is based would, presumably, be in large part the communications made by the subject to the doctor. It does not necessarily follow, however, that this rule entitled the appellant to introduce the videotape of the interview into evidence to permit the jury to see for themselves the behavior of the appellant on which Dr. Moeller partially based his opinion.
The interviews involved here were conducted by Dr. Moeller long after the event to enable him to form an expert opinion concerning the appellant’s mental condition at the time the crimes were committed. The appellant argues the jury should have been permitted to see for themselves the mental deterioration exhibited during the third interview, rather than hear “mere opinions” about the behavior. The issue before the jury is whether or not the appellant was legally insane at the time the crimes were committed, not whether at a later point in time the appellant exhibited mental aberrations. The behavior of an accused subsequent to the event in question is relevant at trial to the issue of insanity only where it can assist in determining the accused’s mental condition at the time of the event. As noted by the authorities cited above, members of a jury usually are not competent to analyze the defendant’s behavior and render a decision on the issue of his mental condition at a specific point in time without the testimony of expert witnesses concerning the manifestations of mental derangement and the significance of the defendant’s symptoms.
Other courts have considered the admissibility of videotape and sound recordings under similar circumstances. In State v. White, 60 Wash. 2d 551, 568, 374 P.2d 942 (1962), cert. denied 375 U.S. 883 (1963), the court approved the exclusion of a tape recording of an interview between the defendant and his psychiatrist conducted while the defendant was under the influence of a truth serum. The defendant contended the tape recording was not offered to prove the truth of statements made by him during the interview, but to enable the jury to better understand the basis of the psychiatrist’s opinion concerning his mental condition. The court stated:
“A layman would find it extremely difficult, if not impossible, to make an accurate evaluation of the testimony which was offered. On the other hand, the possibility that a jury might be confused or misled by such evidence is quite real. Therefore, the trial court could have concluded that whatever dubious value such testimony might have would be more than outweighed by the danger of its misinterpretation and misuse by the jury.”
Similarly, in Tripp v. State, 36 Md. App. 459, 482-83, 374 A.2d 384 (1977), it was held the trial court did not abuse its discretion in excluding a videotape of an interview with the defendant conducted while a truth serum was being administered. The interview was a basis for the testimony of the psychiatric experts on the issue of insanity. In ruling on its admissibility the trial court noted the strong possibility “that the jury would be misled into considering certain answers, given under the influence of the drug, upon the merits of the case and not as the basis for an expert psychiatric opinion.” See also State v. Harris, 241 Or. 224, 405 P.2d 492 (1965); Eaton v. State, 394 A.2d 217 (Del. 1978). Cf. Pratt v. State, 39 Md. App. 442, 452-54, 387 A.2d 779 (1978), aff'd 284 Md. 516, 398 A.2d 421 (1979).
Here the videotapes were offered by the appellant to support Dr. Moeller’s opinion concerning the appellant’s mental condition at the time the crimes were committed. It is highly possible that the jury would be misled by the evidence and misuse it in considering the issue of insanity on the night in question, rather than limiting its use to support the basis of Dr. Moeller’s opinion. Furthermore, as noted above, the jury does not possess the training, skill or experience to analyze the behavior of the appellant exhibited during the interview and interpret from it his mental condition at the time the crimes were committed. The strong possibility of. misuse of the evidence by the jury outweighs whatever probative value the evidence may have had in lending support to Dr. Moeller’s conclusions. In addition, the admission of this evidence would have placed before the jury the issue of the validity of the expert’s conclusions and would have required them to evaluate whether, based upon that evidence, those conclusions were proper. This the jury was not qualified to do.
Dr. Moeller’s conclusions and the basis thereof were thoroughly developed and tested through direct and cross-examination. He testified he used the three interviews with the appellant, as well as several psychological tests and medical records, in evaluating the appellant’s condition. Dr. Moeller was questioned on both direct and cross-examination concerning statements made by the appellant and his behavior during the interviews. We conclude the videotapes of the interview between the appellant and his expert witness were properly excluded.
The appellant further argues the trial court erred in refusing to admit the tapes once the prosecution “opened the door” to their introduction during cross-examination of Dr. Moeller. The appellant relies on the oft-stated rule that where a defendant opens an otherwise inadmissible area of evidence, the prosecution may then present evidence on that formerly forbidden subject. State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980); State v. Roach, 223 Kan. 732, 737, 576 P.2d 1082 (1978); State v. Wasinger, 220 Kan. 599, 604, 556 P.2d 189 (1976). During cross-examination of Dr. Moeller the prosecutor made inquiries regarding the appel lant’s conduct and statements during the three interviews. Following cross-examination, defense counsel reoffered the tapes, arguing the prosecutor’s questioning had opened the door to their introduction.
This point is without merit for two reasons. First, the subject of the interviews was first opened by defense counsel on direct examination of Dr. Moeller by questioning him concerning what took place during the interviews, including statements made by the appellant as well as his behavior. On cross-examination the prosecution was entitled to explore the details of the interviews further. Not only was cross-examination entirely within the scope of direct, but no objection was raised to this line of questioning. Secondly, as noted earlier, in the area of expert testimony the adverse party may question the witness on cross-examination concerning the data upon which his opinion was based. Dr. Moeller stated during direct examination that his conclusion concerning the appellant’s sanity was based in part on the interviews with the appellant. For these reasons the State properly cross-examined Dr. Moeller on the subject of the interviews. The appellant was not entitled to offer the tapes of the third interview into evidence where he himself had opened the area of the interviews on direct examination.
The next point involves a “personal history sheet” prepared by police from information elicited from the appellant. Following his arrest the appellant was advised of his Miranda rights. He stated he wanted to speak to an attorney and questioning ceased. A few hours later a detective with the Wichita Police Department, Ted Milham, introduced himself to the appellant and told him he wanted to talk to him about a shooting, but first, it was necessary to fill out a personal history sheet on the appellant. The information obtained from the appellant included his name, address, physical description, description of his car, names and addresses of relatives, prior arrests, and his parole officer. The detective estimated it took five minutes to complete the form. He testified the appellant’s speech was clear and understandable, and he did not have any hesitation about his answers. He further testified it was his opinion that at the time the appellant knew the difference between right and wrong and the nature and quality of his acts. The appellant contends this information was elicited from him during a custodial interrogation after asserting his right to counsel, in violation of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966).
In Miranda the United States Supreme Court directed that an accused be apprised of his constitutional rights against self-incrimination and to the assistance of counsel before a custodial interrogation is conducted. The court stated:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. . . .
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. 473-75.
In Rhode Island v. Innis, 446 U.S. 291, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980), the Supreme Court defined “interrogation,” as it is used in the context of Miranda, to refer to whenever a person in custody is subjected to either express questioning or its functional equivalent in the form of “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” 446 U.S. at 301. The court also stated that ‘“[interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” 446 U.S. at 300.
In the present case the parties agreed the appellant was fully informed of his Miranda rights and had invoked his right to counsel at the time the detective sought the information from him for the personal history sheet. The question squarely presented is whether the taking of personal background information from an accused after he has asserted his right to counsel amounts to an interrogation in violation of the right to remain silent under Miranda until an accused has had an opportunity to consult with a lawyer.
The appellant relies on United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982), in which the defendant, John Hinckley, Jr., was arrested for the attempted assassination of President Ronald Reagan. While in the custody of the local police department Hinckley was advised of his rights and requested to speak to an attorney. He was later turned over to the Federal Bureau of Investigation and F.B.I. agents were informed that he did not want to make a statement until consulting with an attorney. Later an agent asked Hinckley to answer several background questions. For 25 minutes, in response to the agent’s questions, Hinckley provided information about his physical description, criminal record, parents’ names and addresses and father’s employment, the name of his defense lawyer, his marital status, his closest friend, military service, a description of his car, his educational background and employment history. In addition he was asked about his activities over the preceding year and erratic travel patterns, including names, dates and addresses of hotels he had stayed at during this time, his medical problems, psychiatric treatment and relationship with his parents. Hinckley then renewed his request for an attorney and the interview stopped.
The court held the questioning by the F.B.I. was an interrogation within the meaning of Miranda and Innis and thus violated Hinckley’s right to remain silent after his request for an attorney. The court reasoned that the agents would have been aware that Hinckley would present an insanity defense and the defendant’s responses to the background questions would later prove to be relevant to the determination of the defendant’s sanity. Of more significance was the likelihood that the agents’ observations about Hinckley’s demeanor during the interview would be a key part of the government’s rebuttal to the insanity defense. The court concluded that under the circumstances the 25-minute “background” interview was designed to elicit incriminating responses as defined in Innis. The court rejected the government’s argument that the questioning fell outside of Miranda because it was mere “standard processing procedures” and was “essentially administrative.” The questioning was not similar to normal police booking procedures and was undertaken to determine, inter alia, whether others were involved in the attempted assassination, and the degree of danger Hinckley posed to those protected by the Secret Service. 672 F.2d at 122-23.
In contrast to Hinckley, the majority of federal circuit courts of appeals have held the routine gathering of background biographical data will not constitute an interrogation. In United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 (2d Cir. 1975), cert. denied 423 U.S. 1090 (1976), the court distinguished between questioning designed to investigate crimes, or the involvement of the arrested person in crimes, and noninvestigative questioning, holding that obtaining basic identification data required for booking did not constitute a Miranda violation. Similarly, in United States v. Grant, 549 F.2d 942, 946-47 (4th Cir.), cert. denied 432 U.S. 908 (1977), it was held the Miranda rule only prohibits investigative interrogation related to the specific crime itself and does not prevent a police officer from seeking standard identification information from the suspect where the officer acts in good faith and without guile or subterfuge in conducting his inquiry. See also Harryman v. Estelle, 616 F.2d 870, 874-75 (5th Cir.), cert. denied 449 U.S. 860 (1980), (apparently citing LaVallee with approval); United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974); United States v. McDaniel, 463 F.2d 129, 136 (5th Cir. 1972), cert. denied 413 U.S. 919 (1973); United States v. Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981), cert. denied 457 U.S. 1133 (1982); United States v. Prewitt, 553 F.2d 1082, 1085-86 (7th Cir.), cert. denied 434 U.S. 840 (1977); United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981); United States v. LaMonica, 472 F.2d 580, 581 (9th Cir. 1972); United States v. Glen-Archila, 677 F.2d 809, 815-16 (11th Cir. 1982). Holding otherwise is Proctor v. United States, 404 F.2d 819 (D.C. Cir. 1968), where it was held a routine booking question concerning the defendant’s employment which was later used at trial to impeach him constituted a per se violation of Miranda. However, that court has since indicated its holding in Proctor may need to be modified in light of the subsequent decision by the Supreme Court in Innis. See United States v. Foskey, 636 F.2d 517, 522 n. 3 (D.C. Cir. 1980). Several state courts have also agreed that normal identifying and biographical information inquiries by police do not constitute interrogation. Varner v. State, 418 So. 2d 961, 962 (Ala. Crim. App. 1982); State v. Cozad, 113 Ariz. 437, 439, 556 P.2d 312 (1976); State v. Rassmussen, 92 Idaho 731, 735-36, 449 P.2d 837 (1969); People v. Stewart, 84 Ill. App. 3d 855, 858-59, 406 N.E.2d 53 (1980); State v. Beatty, 305 N.W.2d 496, 498-99 (Iowa 1981); Clarke v. State, 3 Md. App. 447, 450-51, 240 A.2d 291 (1968); State v. Widell, 258 N.W.2d 795, 797 (Minn. 1977); Upshaw v. State, 350 So. 2d 1358, 1364-65 (Miss. 1977); State v. Jordan, 506 S.W.2d 74, 82-83 (Mo. App. 1974); State v. Cunningham, 153 N.J. Super. 350, 352, 379 A.2d 860 (1977); People v. Rivera, 26 N.Y.2d 304, 309, 310 N.Y.S.2d 287, 258 N.E.2d 699 (1970).
This question has not been previously addressed by our court. We recently held in State v. Taylor, 231 Kan. 171, 174, 642 P.2d 989 (1982), that a request for a person in custody to identify himself is not an interrogation within the meaning of Miranda and Innis. In State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981), we discussed the relevant Supreme Court cases and held that where incriminating statements made by an accused are introduced by the State, the State must prove:
“(1) [T]hat the accused knowingly and intelligently waived his right to retained or appointed counsel; (2) that interrogation ceased for an appreciable period when the accused requested consultation with an attorney; and (3) that the statements made by the police after the request for counsel did not amount to questioning, its functional equivalent, or statements known to be likely to produce an incriminating response.” 229 Kan. at 355.
In Newfield the defendant asked to talk to a lawyer before further questioning from K.B.I. agents and discussed with the agents what lawyer he could call. One of the agents then told the defendant that if he wanted to talk to them he would have to do it at that time because his attorney would tell him not to talk to the K.B.I. Shortly thereafter the defendant gave an incriminating statement to the agents. We held the defendant voluntarily waived his right to counsel. The statement made by the agent was not likely to elicit an incriminating statement if the defendant did not want to make one and was not the “functional equivalent” of direct questioning after assertion of his right to counsel, in violation of Miranda and Innis.
The questions asked the appellant apparently were routine police booking questions and did not relate in any way to the crime charged or the defendant’s involvement in the crime. None of the questions can reasonably be construed as being likely to elicit an incriminating response from the accused. The appellant contends, however, they were incriminating because the description of the appellant’s vehicle matched the description of the car seen leaving the victim’s house and because Detective Milham was allowed to testify concerning the appellant’s demeanor during the questioning. The fact the description of the appellant’s car was obtained can hardly be considered incriminating in view of the fact it was largely undisputed the appellant committed the crime and therefore it was of little significance that his car was seen leaving the scene. Furthermore, there is no indication the detective was aware of or would have known at the time that the appellant would raise an insanity defense. Detective Milham did not ask the questions in order to view the appellant’s demeanor and capacity to answer; rather, it would appear the information was needed for administrative purposes.
The Hinckley case is distinguishable from the present case. The Hinckley court stressed that F.B.I. agents were obviously conducting an investigative interrogation under facts known to them at the time of the interview. The interview lasted 25 minutes and the information sought went far beyond the scope of normal booking inquiries. Testimony of the interviewing agents clearly demonstrated that the goal of the questioning was to obtain information concerning the crime charged and Hinckley’s involvement in the crime. The court contrasted this inquiry to the “routine processing questions” asked of Hinckley by the local police department after he had requested counsel, which apparently was considered by the court to be a permissible practice. 672 F.2d at 123. This information included the defendant’s name, aliases, address, sex, race, and date and place of birth. 672 F.2d at 120 n. 30.
In this case the information taken by Detective Milham cannot be compared to the lengthy inquiry conducted by the F.B.I. agents in Hinckley. Instead it more closely parallels the .information obtained by the local police department in the Hinckley case. The interview conducted by Detective Milham covered a shorter length of time- — -five minutes — and none of the questions asked were designed to, nor in actuality did, elicit any information concerning the crime charged or the appellant’s involvement in the crime.
The information obtained from the appellant to complete the personal history sheet following his request for counsel did not violate his rights against self-incrimination and right to counsel under Miranda. The personal background questions did not constitute an “interrogation” within the meaning of Miranda and Innis.. The trial court did not err in admitting the personal history sheet and Detective Milham’s testimony into evidence.
The appellant next contends the trial court erred in allowing the State’s expert witness to testify about the weight and credibility to be given to previous testimony of certain witnesses. The State called as a rebuttal witness Dr. Robert Schulman, a clinical psychologist. Dr. Shulman testified he did not consider the psychological tests performed by Dr. Moeller to be valid or reliable. Toward the end of his testimony Dr. Schulman was asked by the prosecutor whether the psychological tests and hospital reports relied on by Dr. Moeller or the testimony of Karen Neil was the most reliable source of determining whether or not the appellant knew the difference between right and wrong and the nature and quality of his acts on the night of the murders. Defense counsel objected on the ground Dr. Schulman had not heard any of the previous testimony and therefore could not speculate concerning which was the better evidence in the case, and to the form of the question. The witness was allowed to answer and stated that the testimony of the person who saw what happened that night would be the most reliable source of determining the appellant’s state of mind at the time.
The specific objection to Dr. Schulman’s testimony raised here by the appellant was not raised at trial. The trial court was never given an opportunity to rule on this ground. This court has adhered to the rule that it will not review alleged errors in the admission of evidence in the absence of timely objection made thereto, or, if objection is made, unless the specific grounds thereof are clearly stated. Humphries v. State Highway Commission, 201 Kan. 544, 551, 442 P.2d 475 (1968); State v. Parker, 213 Kan. 229, 232, 516 P.2d 153 (1973); K.S.A. 60-404. The specific ground of the objection to the admissibility of this evidence was not properly raised below and therefore the claim of error will not be considered on review.
As his final point on appeal the appellant contends the trial court erred in refusing to instruct the jury on the lesser included crime of second-degree murder. This court has stated on numerous occasions that the district court’s duty under K.S.A. 21-3107(3) to instruct on lesser included offenses arises only when there is evidence under which the defendant might reasonably have been convicted of the lesser offense. State v. Hutton, 232 Kan. 545, Syl. ¶ 5, 657 P.2d 567 (1983); State v. Prince, 221 Kan. at 140. We have also pointed out that before instructions on lesser included offenses are required there must be positive testimony presented by the defendant for the express purpose of proving a version of how the homicide occurred which is contrary to the version presented by the State. State v. Hutton, 232 Kan. at 554; State v. Marks, 226 Kan. 704, 714, 602 P.2d 1344 (1979).
Second-degree murder is defined as the malicious killing of a human being committed without deliberation or premeditation. K.S.A. 21-3402. The appellant contends it could be inferred from Karen Neil’s testimony the killings were not premeditated. Specifically, the appellant points to evidence that he unloaded his shotgun on two occasions and allowed Aimee to hold it briefly, that he allowed Karen and Maria to leave the room, and a statement made by Karen shortly after the killings that he had seemed to change his mind back and forth as to whether to shoot the victims. The appellant also points to evidence that he had two alcoholic drinks just prior to the shootings and another earlier in the evening, from which the jury could have inferred the appellant was too intoxicated to form the intent to kill. The appellant further contends evidence was presented that the killing of Gabriel Longeria was unintentional. The State called Ronnie Keeney as a witness who testified about a conversation with the appellant in jail, during which the appellant stated he had not meant to shoot Gabriel, but that “the girl put the little boy in front of herself to protect herself, and that’s how he shot the little boy.”
In order to negate the State’s theory of the case, evidence must have been presented which would have supported the conclusion the appellant did not commit the killings with premeditation and deliberation. The overwhelming evidence presented by the State showed the victims were brutally killed by shotgun blasts at close range to the head and chest areas, the appellant came to the house armed with a loaded shotgun which he unloaded and reloaded twice while virtually holding the residents of the house hostage prior to the killings, and that he told the victims he would have to kill them all so no witnesses would be left. The appellant’s defense was that if he committed the killings he was legally insane at the time. The testimony of the witnesses called by the appellant centered upon the issue of the appellant’s mental condition before and after the killings. No affirmative evidence was presented by the appellant contradicting the State’s version of how the crime was committed. The evidence upon which the appellant relies was either testified to by the State’s witnesses on direct examination or was elicited on cross-examination to corroborate the appellant’s insanity plea. Further, evidence that the appellant had consumed alcoholic beverages was insufficient standing alone to negate the element of intent and require an instruction on lesser offenses. No evidence was introduced that the appellant was even intoxicated, much less that he was intoxicated to such an extreme as to prevent the existence of an intent to kill. See State v. Seelke, 221 Kan. 672, 678, 561 P.2d 869 (1977); State v. Masqua, 210 Kan. 419, 425, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973).
While it is true the defendant is entitled to have his theory of the case presented to the jury under appropriate instructions, intoxication was never presented by the appellant as a theory in this case, and he cannot do so for the first time on appeal. The appellant’s sole defense was insanity. The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction of the lesser charge. State v. Prince, 227 Kan. at 140. Here the evidence would not have supported a conviction of second-degree murder. To have given the instruction on that offense “would have permitted the jury to speculate on a degree of homicide not in the case upon any theory.” State v. Zimmer, 198 Kan. 479, 504, 426 P.2d 267, cert. denied 389 U.S. 933 (1967).
The judgment of the lower court is affirmed. | [
-16,
-30,
-103,
-82,
47,
96,
42,
-8,
118,
-45,
-78,
-13,
-87,
-22,
21,
105,
126,
45,
84,
105,
-125,
-77,
7,
-127,
-78,
115,
-16,
-43,
-78,
74,
-66,
-9,
8,
96,
74,
85,
102,
-54,
-27,
80,
-114,
7,
-87,
-12,
66,
66,
-92,
122,
110,
14,
-75,
-114,
-29,
42,
28,
-49,
8,
44,
11,
61,
-40,
-71,
75,
23,
-37,
18,
-125,
38,
-100,
37,
-40,
55,
-103,
53,
0,
-24,
114,
-124,
-124,
116,
117,
-117,
12,
38,
98,
37,
77,
-51,
-24,
-119,
111,
118,
-99,
-89,
-103,
89,
1,
100,
-74,
-99,
108,
17,
43,
116,
-27,
15,
29,
-28,
10,
-49,
-112,
-111,
79,
48,
-38,
-24,
-29,
37,
33,
97,
-49,
32,
92,
65,
122,
-111,
-114,
-106
] |
Per Curiam:
This is an original proceeding in discipline. The complaint against B. L. Pringle arose out of the respondent’s representation of Delbert Parker.
Delbert Parker, a resident of Greenleaf, Kansas, was engaged in the business of farming. He also operated a grain elevator and trucking business in partnership with his son. As a result of his business enterprises Parker incurred substantial indebtedness. Respondent had represented Delbert Parker and his family for about ten years, for the most part, defending Parker from claims of his creditors.
In addition to his other enterprises, Delbert Parker owned and farmed land in Canada. He was represented there by a Canadian solicitor, Edward A. Komarnicki. In the course of their relationship Parker entrusted certain funds to the Komarnicki Law Firm. A garnishment in the amount of. $19,064.40 was filed against the firm by a creditor of Parker. Komarnicki contested the legal validity of the garnishment.
Respondent was the lawyer for Delbert and Evelyn Parker in the United States at the times pertinent to the allegations of the complaint. Respondent consented to an arrangement whereby he would hold the funds garnisheed pending a determination of legal validity of the garnishment. By letter dated September 17, 1980, the Komarnicki Law Firm sent respondent $19,064.40 in Canadian funds to be held in trust for the Parkers. The trust conditions under which the Komarnicki Law Firm remitted the funds to respondent were set forth in Komarnicki’s letter as follows:
“It appears quite likely that the Garnishee will not hold. In the event it does not hold, there is a possibility of a second Garnishee. Accordingly I am relinquishing the amount over and above the $19,064.40 to Delbert and Evelyn Parker and at the same time sending to you the said $19,064.40 on the trust condition that the same is to be released to Delbert and Evelyn Parker upon the Garnishee served upon me being unsuccessful and the appeal period expiring. I will be advising you when that takes’ place. In the event that the Garnishee should be valid, I would request the return of the said funds. It would be advisable that the same be invested in a term deposit or an interest bearing account. I am proceeding in this manner so that a second Garnishee cannot be served upon me.”
The trust funds held by respondent for the Parkers were never invested in an interest bearing account. Respondent deposited the funds in the B. L. Pringle Special Account, Account No. 78-310-2, First National Bank of Topeka, Kansas, on October 1, 1980. The balance in the account prior to the deposit was $14,869.25. On October 17, 1980, the First National Bank debited respondent’s special account for the difference in currency value between Canadian and United States funds in the amount of $2,764.33, leaving a balance of $16,300.07 held by respondent in trust for the Parkers. On October 17, 1980, after the Canadian discount debit, the balance in Account No. 78-310-2 was $11,537.67.
The balance in respondent’s special account fell below the amount held in trust for the Parkers ($16,300.07) as of October 9, 1980. Thereafter the account never again reflected a balance sufficient to total the amount held in brust. The balances reflected on the monthly statements on Account No. 78-310-2 after the deposit of the Parkers’ funds which were subpoenaed and admitted into evidence are as follows:
October 15, 1980 $14,906.50
November 13, 1980 $ 4,297.85
December 12, 1980 $ 979.85
January 13, 1981 $ 24.49
February 12, 1981 $ .70 -
March 12, 1981 $ 81.35 -
April 14, 1981 $ 12.92
May 12, 1981 $ 961.19 -
June 12, 1981 $ 135.90 -
July 14, 1981 $ 135.90 -
August 12, 1981 $ 135.90 -
September 9, 1981 $ .00
November 13, 1981 $ 12.21
December 14, 1981 $ 12.80
January 13, 1982 $ 5.82
After depositing the Parkers’ funds in his special account, respondent withdrew those funds in a series of cash withdrawals over a period of about three months, keeping those funds in cash in his office in his desk drawer.
Respondent claims that Delbert Parker contacted the respondent to insure transfer of the funds from Komarnicki. Respondent explained to Mr. Parker that the funds would be subject to garnishment. If placed in respondent’s client’s account, they would be labeled as funds belonging to Mr. Parker and two banks having judgments against the Parkers could locate the funds. Mr. Parker then asked respondent to hold the funds. Late in September, 1980, after respondent received the check for the Parkers’ funds, a second conference was held in respondent’s office. Respondent explained to Delbert Parker that if the funds were placed in an interest-bearing account, the Parkers’ name would have to appear on the account. Parker determined that since he had already been garnisheed in Canada, plus the numerous outstanding judgments against him in the United States, that the respondent should hold the funds in cash at the respondent’s office. Parker denies that either conversation occurred.
The regular monthly statements of the First National Rank maintained on respondent’s special account reflect only the net balance, and the amount of any deposit or debit. They do not reflect the source of any funds being held therein by the respondent. Specific transactions corresponding in total to a withdrawal of the amount held in trust for the Parkers ($16,300.07) and allegedly transferred to respondent’s office in cash could not be identified from the bank records maintained on respondent’s Special Account No. 78-310-2. Respondent did not produce any other records identifying or providing an accounting of the withdrawal of the Parkers’ funds. Respondent claimed that his register showing specific withdrawals from his trust account had been lost when he moved his office.
Ultimately the Canadian garnishment was set aside. Komarnicki, by letter dated January 26, 1981, instructed respondent to release to the Parkers the funds remitted pursuant to the trust conditions set out in his previous letter. At the time respondent would have received this notice he had withdrawn virtually all the funds in his special account. January 29, 1981, respondent’s special account showed a balance of $3.84.
Subsequent to Komarnicki’s letter in January of 1981, respondent did not return all the funds held in trust. However, Delbert Parker did receive partial reimbursement of the funds in a piecemeal fashion. Respondent paid Parker in cash $1,000.00 on February 11, 1981; $2,500.00 by check number 828 drawn on his special account dated April 24, 1981; and $10,000.00 by check number 836 on his special account dated May 5, 1981. The $10,000.00 check was returned and not paid by the First National Bank for the reason of insufficient funds.
Delbert Parker testified that he requested return of the entire amount held in trust in a meeting with respondent on February 11, 1981. According to Parker, respondent said the money was invested and could not be obtained for sixty to ninety days. However, on that date Parker contends respondent gave him a personal check for $1,000.00. (Respondent’s records indicate payment was in cash.)
Parker also testified that he again requested the return of the funds in a meeting with respondent on April 23, 1981. Parker required the money to plant a crop in Canada. According to Parker, respondent advised him he would have the funds the following morning. On April 24, 1981, respondent told Parker the funds were unavailable due to an error in processing the withdrawal. On that date, however, respondent gave Parker a $2,500.00 check drawn on his special account and promised another $10,000.00 would be sent to Parker in Canada within a short time.
Subsequently respondent sent Parker the $10,000.00 check drawn on his special account dated May 5, 1981. That check eventually was not honored because of insufficient funds. At the time he mailed that check, respondent also mailed Parker the following accounting:
“ACCOUNTING FOR CLIENTS FUNDS
“10-2-80 Received Canadian check of Edward A. Komarnicki Law Firm $19,064.40
10-21-80 Bank takes Canadian discount 2,764.33
16,300.07
Interest on $16,300.07 at 10 V4% for 7 mo. 974.61
17.274.67
2-11-81 Returned to D. C. Parker 1,000.00
16.274.67
2,500.00 4-24-81 Returned to D. C. Parker
13.774.67
5-5-81 To Bob Sigler & T. A. Blaser at D. C. Parker’s request 800.00
12,574.67
5-5-81 Check to D. C. Parker 10,000.00
2,574.67
Enclosed is a statement of charges and expenses advanced to date on all other litigation not previously paid 5,815.21
I hope you will consider applying the balance to the fees and costs set out above.”
Respondent testified that he did not immediately return all of the Parkers’ funds because Parker at periodic intervals only requested the return of portions of the funds. As to the $10,000.00 insufficient funds check, respondent contends that after he sent Parker the check, Parker countermanded, his request for the money and asked respondent to retain the funds to negotiate the settlement of several judgments outstanding against him.
Notwithstanding the discrepancies in the testimony of respondent and Delbert Parker, the following facts are not contested. On April 25, 1981, there were insufficient funds in respondent’s special account to cover the check number 828 ($2,500.00) drawn on that account on that sáme date, payable to Delbert Parker. Subsequent to writing that check but prior to its negotiation on April 27, 1981, respondent deposited sufficient funds to cover the check. Those deposits consisted of the following: (1) a check drawn on the State of Kansas, payable to Edward Curry, in the amount of $1,108.03, which was endorsed over to the respondent, less $62.50 taken in cash; and (2) a check made payable to cash in the amount of $1,560.00 drawn on respondent’s account number 5132-2363 with Topeka Bank and Trust.
It is not contested that on May 5, 1981, there were insufficient funds in respondent’s special account to pay check number 836 ($10,000.00) drawn on that account on that same date. Respondent sent that check to Delbert Parker and it was received by him on May 14, 1981. On May 15, 1981, Delbert Parker negotiated that check at his bank in Canada, received value, and wrote checks on the amount credited. Ultimately payment was refused by the First National Bank of Topeka because of insufficient funds in respondent’s special account. The check was presented for payment a second time, and payment was again refused because of insufficient funds. That check was never honored.
Respondent’s special account did not have sufficient funds to pay the check number 836 at any time during the balance of calendar year 1981. Throughout calendar year 1981, respondent’s special account was frequently overdrawn.
Although respondent admits that almost immediately after depositing the Parkers’ funds in his special account on October 1, 1980, he began withdrawing those funds, and, notwithstanding his contention that he held those funds in cash with the Parkers’ knowledge and consent, respondent’s May 5, 1981, accounting to Parker shows a credit of $974.61 as interest on the full amount held in trust at 10 lk% for seven months.
The Kormarnicki Law Firm subsequently demanded that respondent make good his check number 836 in the amount of $10,000.00 which had been returned for insufficient funds. Respondent failed to do so. Thereafter, on September 1, 1981, Edward Kormarnicki sent a letter of complaint to the disciplinary administrator.
Since respondent’s check number 836 in the amount of $10,000.00 was not honored, respondent continued to be indebted to the Parkers for the remaining funds held in trust - $12,574.67 according to respondent’s accounting.
After this complaint was registered with the disciplinary administrator by Edward Komarnicki in October of 1981, respondent closed the sale of certain property he owned to Gary Padgett, a banker in Greenleaf, Kansas, for a purchase price of $8,500.00. The property, located in Greenleaf, Kansas, had been conveyed to the respondent in April of 1979 by Delbert Parker in payment of legal fees. In order to close the sale, respondent was required to pay a judgment lien on the property in the amount of $4,040.21 which was attached as a result of Parker’s prior ownership.
Subsequently, on November 10, 1981, respondent paid Delbert Parker $2,509.40 by cashier’s check representing the balance of Parker’s trust funds less certain deductions. At that time respondent also sent Parker a final accounting of the trust funds. That accounting shows a deduction for attorney fees ($5,815.21), a deduction for the amount respondent paid to release the judgment lien on the property he personally sold to Gary Padgett ($4,040.21), a deduction of one-half the costs involved in closing the sale of respondent’s property to Padgett ($209.79), and payment to Parker of the amount remaining. These deductions were taken by the respondent after this complaint had been initiated. Parker eventually filed suit in the Shawnee County District Court. After certain setoffs, the court entered judgment against the respondent.
A hearing was conducted before a panel of attorneys. The panel recommended the respondent be indefinitely suspended from the practice of law. The respondent filed exceptions to the panel’s decision. He attacks Parker’s veracity and character and challenges the panel’s finding. Witnesses testified before the panel that Delbert Parker’s reputation for truth was not good. Respondent claims Parker requested him to hold Parker’s funds in cash and Parker told the respondent he was not going to cash respondent’s check for $10,000.00.
The findings of a panel should be accorded some weight, although the panel’s report is advisory and not binding on the court. State v. Freeman, 229 Kan. 639, 644, 629 P.2d 716 (1981). In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), 93 A.L.R.3d 869, the court stated:
“The State Board of Law Examiners [now Kansas Board for Discipline of Attorneys] was created by rule of this court (K.S.A. 1974 Supp. 7-124, No. 202 [a]), as an adjunct of the court to have general supervision over the discipline of attorneys. The role of the Board is similar to that of a commissioner appointed by this court to conduct hearings and to make a report of his findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. (See 7 C.J.S. Attorney and Client § 37, p. 805.)”
The panel concluded that DR 9-102 (A) requires that funds of a client shall be deposited in one or more identifiable bank accounts. While respondent initially deposited the Parkers’ funds in his special account, he withdrew the same by making several cash withdrawals over a period of time. The panel was .persuaded that such conduct constitutes a violation of DR 9-102 (A) and that under the circumstances of this case, the Parkers’ funds should not have been removed from respondent’s special account.
DR 9-102 (A) provides:
“All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
“(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
“(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.” 230 Kan. cxxvii.
Respondent claims his client requested that he hold the funds in cash. The respondent’s action is a clear violation of DR 9-102 (A). The motive beyond the withdrawals was to avoid a garnishment. Holding his clients’ funds in cash would not prevent a garnishment of the funds, but would involve the respondent in a scheme to secrete Parker’s funds from his creditors. Respondent first properly deposited his clients’ funds in his trust account. According to the respondent, he then withdrew a portion of the funds and secreted them in his desk drawer.
DR 9-102 (B)(2) requires that a lawyer must, upon receipt of client’s securities and properties, promptly identify and label the items and “place them in a safe deposit box or other place of safekeeping as soon as practicable.” If respondent held the Parkers’ funds in cash in his office under the circumstances described in this case, the panel believed that such conduct constituted a violation of DR 9-102 (B)(2). Furthermore, the panel believed that the proper place of safekeeping for cash is a bank rather than respondent’s office.
DR 9-102 (B) provides in part:
“A lawyer shall:
“(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
“(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.” 230 Kan. cxxvii.
Respondent again claims that he was following the specific request of his clients by holding the money in an office safe. An attorney cannot intentionally violate the disciplinary rules at the request of a client. The violation is incidental to the violation in DR 9-102 (A), the failure to keep the client’s funds in the bank.
DR 9-102 (B)(3) requires that a lawyer maintain complete records of all funds coming into his possession. Respondent maintained no records of withdrawals of the Parkers’ funds from his special account and was unable to identify those withdrawals. Furthermore, no records were presented to the panel of cash funds allegedly held by respondent in his office. The panel concluded that respondent’s failure to maintain records of his withdrawal of funds under the circumstances of this case constituted a violation of DR 9-102 (B)(3).
DR 9-102 (B)(3) requires an attorney to:
“Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.” 230 Kan. cxxvii.
The respondent claims his records were lost in a move. Respondent made no effort to obtain duplicate records from the bank to replace the missing records as required by DR 9-102 (B)(3). Respondent’s failure to replace the lost bank records is a clear violation of the disciplinary rule.
Upon request of the client, a lawyer must promptly pay to the client funds in the lawyer’s possession which the client is entitled to' receive. While there is a conflict ip the testimony, on balance the panel was inclined to believe that Delbert Parker requested that his funds be paid to him and that respondent failed to do so as required by DR 9-102 (B)(4). There may have been a conflict as to the precise amount the Parkers were “entitled to receive” on account of attorney fees owed respondent by the Parkers. However, the panel believed it significant that notwithstanding those unpaid fees, respondent sent Delbert Parker his check in the amount of $10,000.00 drawn on his special account. Such conduct constitutes a violation of DR 9-102 (B)(4).
DR 9-102 (B)(4) provides an attorney shall:
“Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.” 230 Kan. cxxviii.
Respondent claims he always followed his ■ clients’ instructions. The evidence shows that the respondent failed to disburse the funds to the Parkers when requested. Parker denies ever instructing respondent to hold the funds after the release of the Canadian garnishment.
The conduct of respondent in withdrawing the Parkers’ funds from his special account by máking cash withdrawals over a period of time and the issuance of an insufficient fund check to Delbert Parker appeared to the panel to constitute conduct involving dishonesty and adversely reflects on respondent’s fitness to practice law. The panel concluded that such conduct violates DR 1-102 (A)(4) and DR 1-102 (A)(6).
DR 1-102 (A) provides:
“A lawyer shall not:
“(1) Violate a Disciplinary Rule.
“(2) Circumvent a Disciplinary Rule through actions of another.
“(3) Engage in illegal conduct involving moral turpitude.
“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
“(5) Engage in conduct that is prejudicial to the administration of justice.
“(6) Engage in any other conduct that adversely reflects on his fitness to practice law.” 230 Kan. cxi.
The respondent claims he delayed putting the necessary funds into his account to protect the Parkers’ money, and before he deposited the funds Parker notified him that the check would not be cashed. If respondent’s claim is true, he. was assisting his client’s effort to secrete funds from creditors.
Whether violations are found depends upon whose version of the events is believed. We agree with the hearing panel’s conclusions. Certain undisputed facts weigh heavily: the respondent did not place the clients’ funds in an interest bearing account as requested or withdraw the entire amount of Parkers’ money at one time; his account never contained sufficient funds to cash the $10,000.00 check; he never stopped payment on the check after being advised Parker would not cash the check; the respondent lost his register of the special bank account and failed to replace his lost records. In addition, DR 9-102 (A) does not provide for an exception to the requirement of placing a client’s fund in an identifiable bank account fund or a place of safekeeping even at the client’s request or consent. One cannot circumvent a disciplinary rule at the request of a client.
The respondent contends the punishment of suspension from the practice of law, suggested by the panel, is too severe. In State v. Scott, 230 Kan. 564, 639 P.2d 1131 (1982), this court reviewed past court decisions in disciplinary cases from this state involving ethical violations and the penalties involved. This court stated on page 572:
“Among the matters to be considered in determining the nature and extent of punishment or discipline for a breach of professional responsibility, this court may consider in mitigation the following: (1) Whether restitution has been made; (2) previous violations or the absence thereof; (3) previous good character and reputation in the community; (4) the present or past attitude of the attorney as shown by his cooperation during the heai'ing and acknowledgement of the transgression; (5) letters from clients, friends and lawyei-s in support of the character and general imputation of the attorney; and (6) any statement by the complainant expressing satisfaction with any restitution made and requesting no discipline. 7 Am. Jur. 2d, Attorneys at Law § 52, p, 112; State v. Stakes, 227 Kan. 711, 608 P.2d 997 (1980) (aggravating or mitigating circumstances); State v. Leon, 229 Kan. 178, 621 P.2d 1016 (1981) (previous record of professional conduct); In re Ratner, 194 Kan. 362, 399 P.2d 865 (1965) (testimony as to attorney’s reputation and character).”
Under the circumstances, we believe the Board’s recommendation for indefinite suspension is appropriate.
It is Therefore by the Court Considered, Ordered and Adjudged that the respondent be suspended from the practice of the law for an- indefinite period. The costs. of this action are assessed to respondent.
Effective this 5th day of July, 1983. | [
-78,
-24,
-103,
77,
10,
32,
56,
26,
113,
-15,
99,
87,
-17,
-17,
24,
43,
-25,
47,
116,
122,
-45,
-77,
62,
64,
66,
-5,
-15,
-43,
-80,
125,
-28,
-41,
76,
50,
-62,
85,
103,
-126,
-95,
-36,
-114,
6,
9,
-27,
89,
0,
48,
101,
18,
9,
49,
-100,
-13,
34,
28,
102,
8,
46,
-81,
-83,
-48,
-8,
-85,
15,
127,
23,
-96,
4,
-100,
71,
-40,
46,
-112,
49,
1,
-24,
50,
54,
-122,
116,
11,
15,
8,
118,
98,
32,
101,
-19,
-108,
-116,
46,
-1,
-99,
-89,
-15,
72,
19,
97,
-73,
-98,
116,
84,
7,
-4,
-50,
-99,
29,
108,
19,
-50,
-44,
-109,
-99,
-2,
-100,
-117,
-17,
-89,
18,
113,
-51,
-94,
76,
71,
57,
-101,
-98,
-71
] |
The opinion of the court was delivered by
Herd, J.:
In Bohl v. Bohl, 232 Kan. 557, 657 P.2d 1106 (1983), we affirmed the judgment of the trial court but remanded the case for the limited purpose of receiving evidence regarding the tax consequences of various methods of satisfying the judgment. This court retained jurisdiction. The case has now returned for our review of the findings made by the trial court pursuant to our mandate.
The trial court held three hearings affording the parties an opportunity to present any evidence they desired relevant to the question on remand. The court found methods exist by which the judgment can be satisfied without undue tax consequences. We have reviewed the record and conclude the findings are supported by substantial, competent evidence and do not constitute an abuse of discretion. Thus, they will not be disturbed on appeal.
The judgment of the trial court is affirmed.
Prager and Miller, JJ., not participating. | [
-15,
-22,
-11,
-68,
10,
66,
50,
-101,
97,
-17,
55,
115,
41,
-38,
-112,
105,
-110,
61,
85,
98,
-33,
-73,
23,
81,
-42,
-77,
-71,
-44,
-79,
-6,
101,
21,
76,
48,
-54,
-11,
102,
-53,
-43,
88,
-90,
12,
-72,
-35,
-7,
64,
52,
107,
-14,
75,
97,
-36,
-61,
42,
26,
-61,
41,
44,
90,
49,
16,
-16,
-70,
6,
79,
18,
-111,
48,
-104,
70,
-40,
46,
-116,
57,
11,
-23,
59,
-74,
-110,
92,
105,
-87,
12,
100,
100,
-112,
76,
-17,
-8,
-104,
46,
-33,
-99,
-89,
-111,
88,
-110,
107,
-122,
-67,
116,
114,
7,
-20,
-18,
21,
-97,
124,
29,
-113,
-90,
-93,
-17,
116,
-88,
80,
-9,
-127,
16,
64,
-56,
2,
94,
71,
91,
-117,
-42,
-60
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by the State from an order of the Sedgwick County District Court dismissing a complaint charging Ronald E. Mourning (defendant-appellee) with driving under the influence of alcohol or drugs (K.S.A. 8-1567).
On August 6,1982, the defendant was issued a Uniform Notice to Appear and Complaint by the Sedgwick County Sheriffs Office, charging four traffic offenses: speeding (K.S.A. 8-1338), failure to drive completely within marked lanes (K.S.A. 8-1522[c]), reckless driving (K.S.A. 8-1566) and driving under the influence of alcohol or drugs. The defendant pled guilty to all charges except driving under the influence of alcohol or drugs. A trial date was then set. At trial the defendant moved to dismiss on the ground he had been convicted of the lesser included offense of reckless driving charged in the same complaint. The trial court sustained the motion, ruling the prosecution for driving under the influence of alcohol or drugs was barred under K.S.A. 21-3108 by the prior conviction for the included offense of reckless driving arising out of the same conduct. The State duly perfected this appeal.
Under the doctrine of double jeopardy a person cannot be put twice in jeopardy for different degrees of the same offense arising out of a single act. Stated another way, the State may not split a single offense into separate parts, and where there is a single wrongful act, such act will not furnish the basis for more than one criminal prosecution. State v. Hutchison, 228 Kan. 279, 284, 615 P.2d 138 (1980); Jarrell v. State, 212 Kan. 171, 173, 510 P.2d 127 (1973). This principle has been codified in K.S.A. 21-3108(2)(c), as follows:
“A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution . . . was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution . . . .”
Kansas decisions construing this portion of 21-3108 and its predecessor, K.S.A. 62-1449 (Corrick), have held identity of offenses to be an indispensable ingredient of jeopardy. Where one statute describing an offense requires proof of a fact which another statute does not, then one offense is not a bar to the prosecution of the other on the ground of double jeopardy. State v. Edgington, 223 Kan. 413, 416, 573 P.2d 1059 (1978); State v. Pruitt, 216 Kan. 103, 105, 531 P.2d 860 (1975); State v. Pierce, et al., 205 Kan. 433, Syl. ¶ 3, 469 P.2d 308 (1970); State v. Anderson, 172 Kan. 402, Syl. ¶ 4, 241 P.2d 742 (1952). Regarding this provision one commentator wrote:
“A common test of the application of double jeopardy is the substantial identity of the former and subsequent offenses, and this is ordinarily measured by the character and effect of the evidence in each case. If the evidence which will support a conviction in the subsequent prosecution would have supported a conviction of the crime charged or an included offense in the former prosecution, then the second prosecution is substantially identical to the former and a conviction or acquittal in the former is a bar. Thus, one cannot be twice prosecuted for crimes involving the same conduct, unless in each prosecution facts must be proven which are not necessary to the other prosecution.” Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179, 185 (1970).
See also 21 Am. Jur. 2d, Criminal Law §§ 266, 279.
It has also been generally recognized that culpable conduct of a defendant, although constituting a single transaction, may result in multiple violations of the criminal code for which the defendant may be severally prosecuted. The prohibition against double jeopardy does not bar prosecutions of multiple violations which arise from one criminal transaction. The prohibition is against multiple prosecutions of the same criminal delinquency. See State v. Pencek, 224 Kan. 725, 728, 585 P.2d 1052 (1978), and cases cited therein. As stated in 21 Am. Jur. 2d, Criminal Law § 266:
“It is not a second jeopardy for the same act, but a second jeopardy for the same offense that is prohibited. The question is whether the two offenses are essentially independent and distinct — or whether one offense can be committed without necessarily committing the other.”
See also 21 Am. Jur. 2d, Criminal Law § 277.
Another statute for consideration here is K.S.A. 21-3107, outlining the doctrine of lesser included offenses in this state. It provides in part:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.”
This statute was construed in State v. Arnold, 223 Kan. 715, 716, 576 P.2d 651 (1978), where it was stated:
“Lesser included offenses fall into three categories under our statute. The first is the offense which is merely a lower degree of the offense charged or subparagraph (a) under the statute. The second category is the attempt as a lesser included offense or subparagraphs (b) and (c) under the statute. The third category is the offense which is necessarily committed by the defendant in perpetrating the crime charged or subparagraph (d) under the statute. Under this section it is impossible to commit the greater offense without first having committed the lesser offense. The offense must not require some additional element which is not needed to constitute the greater offense. In other words, there must be ‘identity of elements.’ (See Note, ‘The Doctrine of Lesser Included Offenses in Kansas,’ 15 Washburn L.J. 40, 41-45 [1976].)
“Our court has consistently construed subparagraph (d) to mean a lesser included offense must not require proof of any element not necessary in the greater crime charged.”
Other cases have also used the test set forth above in Arnold in determining whether a lesser offense is a lesser included offense under 21-3107(2)(d). See State v. Russell, 229 Kan. 124, 125-26, 622 P.2d 658 (1981); State v. Daniels, 223 Kan. 266, 270, 573 P.2d 607 (1977); Wisner v. State, 216 Kan. 523, Syl. ¶ 2, 532 P.2d 1051 (1975); Jarrell v. State, 212 Kan. at 175; State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983).
Therefore, it can be said the test is substantially the same to be used in determining whether offenses charged in a complaint or information constitute lesser included offenses and are multiplicitous and the prosecution of one is not barred by a former prosecution of the other.
Does the offense of driving under the influence of alcohol or drugs require proof of an additional element which is not necessary to prove reckless driving, and vice-versa? Under K.S.A. 8-1567(c) three things must be established to support a conviction for driving under the influence of alcohol or drugs: (1) that the defendant operated the vehicle; (2) that the defendant was under the influence of alcohol or drugs while operating the vehicle, and (3) that the operation took place within the jurisdiction of the court. See State v. Reeves, 233 Kan. 702, 664 P.2d 862 (1983); State v. Hall, 1 Kan. App. 2d 730, 731, 573 P.2d 635 (1977). In Reeves “under the influence of alcohol” was defined to mean that the defendant’s mental or physical function was impaired by the consumption of alcohol to the extent that he was incapable of safely driving a vehicle. 233 Kan. at 704.
K.S.A. 8-1566(a) provides:
“Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”
The gist of the proscribed conduct is driving a vehicle in reckless disregard for the safety of others. PIK Crim. 2d § 70.04 defines “reckless” under K.S.A. 8-1566 to mean “driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is reckless disregard or complete indifference and unconcern for the probable consequences of such conduct.”
The two offenses require different evidence for a conviction. To violate 8-1567 one needs only to operate a vehicle while his mental or physical capacity to function is impaired by alcohol or drugs to the extent he is no longer capable of safely driving the vehicle. It is unnecessary to prove, in addition, that the vehicle was driven in a reckless manner, although such driving may constitute circumstantial evidence the driver was under the influence of alcohol or drugs. On the other hand, to obtain a conviction for reckless driving under 8-1566 it is only necessary to establish that the vehicle was driven in willful or wanton disregard for the safety of others; in other words, under circumstances that show a realization of the imminence of danger and a reckless disregard or complete indifference for the probable consequences of such conduct. Proof is not required that the driver was under the influence of alcohol or drugs.
An argument can be advanced that any time a person under the influence of alcohol or drugs operates a vehicle he does so in willful or wanton disregard for the safety of others. Under such reasoning any time a person was guilty of driving under the influence, of alcohol or drugs he would also necessarily be guilty of reckless driving and therefore the offense of reckless driving would constitute a “crime necessarily proved if the crime charged were proved.” (K.S.A. 21-3107[2][d].) However, it is merely the driving of a vehicle while under the influence of alcohol or drugs which is proscribed by 8-1567. One does not need to swerve all over the road or drive through another’s yard to be guilty of driving under the influence of alcohol or drugs. While a person under the influence of alcohol may actually drive in a straight line in the proper lane of traffic down the street, although incapable of safely operating the vehicle in accordance with traffic regulations that may be encountered, a person guilty of reckless driving is able to safely control his vehicle but, in willful or wanton disregard for the safety of others, does not do so. It is evident that a person guilty of driving under the influence of alcohol is not necessarily guilty of driving in reckless disregard for the safety of others.
In the instant case the defendant’s plea of guilty to the charge of reckless driving would have been insufficient, without more, to support a conviction for driving under the influence of alcohol or drugs. In addition, it established proof of the element of driving in a reckless manner which is not required for a conviction of the latter offense. Each offense required proof of an additional element which the other did not. For these reasons we conclude the offense of reckless driving is not a lesser included offense of driving under the influence of alcohol or drugs, and conviction of one will not bar a subsequent prosecution for the other arising out of the same transaction.
This holding is in accord with authority from other jurisdictions. In 7A Am. Jur. 2d, Automobiles and Highway Traffic § 389, the general rule is stated:
“The offense of reckless driving is a distinct offense and is established by different evidence that the crime of driving while intoxicated or under the influence of intoxicating liquor, so that a conviction or acquittal of one offense will not bar prosecution for the other.”
See also 22 C.J.S., Criminal Law § 295(2), p. 771; Rea v. Motors Ins. Corporation, 48 N.M. 9, 14, 144 P.2d 676 (1944); State v. Sisneros, 42 N.M. 500, 507, 82 P.2d 274 (1938); Akron v. Kline, 165 Ohio St. 322, 59 Ohio Op. 414, 135 N.E.2d 265 (1956); State v. Amaral, 109 R.I. 379, 382-83, 285 A.2d 783 (1972); Usary v. State, 172 Tenn. 305, Syl. ¶ 10, 112 S.W.2d 7 (1937); McMillan v. State, 468 S.W.2d 444, 445 (Tex. Crim. 1971); Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336 (1952); State ex rel. Foley v. Yuse, 191 Wash. 1, 5, 70 P.2d 797 (1937). Cf. State v. Johnson, 273 Minn. 394, 141 N.W.2d 517 (1966).
It must further be determined whether the prosecution for driving under the influence of alcohol or drugs in the present case is otherwise barred by the double jeopardy provisions of 21-3108 or the Kansas Constitution. K.S.A. 21-31'08(2)(c) provides that a prosecution is barred if a former prosecution against the defendant:
“Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely . . . .”
This portion of 21-3108(2)(a) has been construed to require the presence of three elements to bar a subsequent prosecution: (1) the prior prosecution must have resulted in a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution, and (3) the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. See State v. Calderon, 233 Kan. 87, 89, 661 P.2d 781 (1983); State v. Mahlandt, 231 Kan. 665, Syl. ¶ 2, 647 P.2d 1307 (1982). We further held in State v. Fisher, 233 Kan. 29, 35, 661 P.2d 791 (1983), that when a defendant has been convicted on a sufficient information or complaint in a court of competent jurisdiction, either upon a plea of guilty or nolo contendere and the plea has not been withdrawn, the accused has been in jeopardy and is entitled to the protection afforded by our constitution from additional prosecution for the same or an included offense based upon the same facts. See also 21 Am. Jur. 2d, Criminal Law § 271.
As set forth above the two offenses charged here, reckless driving and driving under the influence of alcohol or drugs, are not the same offense and neither is a lesser included offense of the other. Therefore, the rule enunciated in Fisher does not apply to this case.
Of the three elements required to bar a subsequent prosecution under 21-3108(2)(a) only the first and third elements are present here. The defendant’s plea of guilty to the charge of reckless driving resulted in his conviction. The charge of driving under the influence of alcohol or drugs was actually charged as an additional count in the original complaint, and resulted in a later prosecution on that charge because the defendant plead guilty to the other counts contained in the complaint. The second element, evidence of the present crime introduced in the prior prosecution, is not met here. In State v. Calderon, 233 Kan. at 92, this court recognized the admission of evidence at a prior trial is necessary to bring the statute into play. Only the Uniform Complaint and Notice to Appear issued to the defendant charging him with the four traffic offenses was before the district court when the defendant entered his guilty plea. Nothing in the record indicates any evidence was introduced before the court when the pleas were entered.
We conclude the trial court erred in ruling the prosecution for driving under the influence of alcohol or drugs was barred under K.S.A. 21-3108 by the previous conviction for reckless driving arising out of the same conduct.
The decision of the lower court is reversed and the case remanded. | [
-16,
-24,
-3,
126,
11,
64,
51,
60,
81,
-41,
116,
83,
-21,
-38,
5,
59,
-5,
109,
116,
105,
-31,
-74,
19,
1,
-26,
-13,
-61,
-41,
-102,
-53,
-20,
-12,
76,
-16,
11,
117,
6,
-56,
5,
30,
-116,
2,
-71,
-15,
82,
10,
-68,
105,
86,
23,
-79,
30,
-69,
42,
26,
-57,
72,
108,
91,
-84,
-119,
-80,
-39,
23,
120,
18,
-77,
20,
-100,
5,
112,
39,
-100,
56,
32,
120,
114,
-122,
-42,
-12,
109,
-103,
-116,
38,
98,
33,
21,
-17,
-84,
-88,
46,
55,
-99,
-89,
-104,
17,
73,
8,
-106,
-100,
116,
54,
15,
-4,
-21,
22,
89,
-4,
-123,
-54,
-80,
-79,
77,
49,
2,
95,
-61,
-91,
49,
101,
-41,
-26,
86,
85,
82,
27,
-122,
-108
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.